in person For the v Respondent — 2019

The respondent applied to strike out the claim, or alternatively for a deposit order, at an open preliminary hearing on 8 July 2019. The claimant was in person and had an interpreter. The tribunal recorded that she had been employed from 15 January 2018 as a French Financial Services Specialist on a three-month probationary period. Ms de Boer decided at the end of probation that the claimant had not attained the required standard and the employment was terminated at a review meeting on 13 April 2018. The internal appeal was heard on 9 May 2018 and the dismissal was upheld. The tribunal also noted that the claimant did not have two years' service for an unfair dismissal claim.

Applying Rule 37 of the Employment Tribunals Rules of Procedure 2013, and noting the cautious approach required in discrimination cases, the tribunal first held that indirect discrimination had no reasonable prospect of success. It found that none of the matters complained of amounted to a provision, criterion or practice adopted by the respondent; they were individual actions only, so the indirect discrimination elements were missing. It also held that there was no properly advanced harassment claim: although the ET1 used the phrase 'moral harassment', after the order for further and better particulars the claimant had advanced only direct and indirect discrimination.

Direct race discrimination was the only claim the tribunal regarded as potentially arguable, but it found that the pleaded allegations were not connected to race. The claimant did not explain how the conduct complained of related to her protected characteristic. The tribunal noted in particular that Ms de Boer had been one of the three people who decided to offer the claimant the job, managed an ethnically diverse team, and that the comparators named by the claimant were themselves from minority ethnic backgrounds. It also observed that the claimant had not raised a discrimination complaint against Ms de Boer during her employment. Taking the case at its highest, the tribunal concluded that the direct discrimination claim had no reasonable prospect of success and struck it out. It refused to make a deposit order.