Mrs Z Spence v UK Direct Business Solutions Ltd — 2023

At the public preliminary hearing on 8 June and 28 November 2023, Employment Judge Morris sitting alone considered the respondent's strike-out application. The claimant appeared in person and the respondent was represented by counsel. The tribunal struck out the direct sex discrimination complaint, refused to strike out the harassment-related complaints, recorded that the claimant could not pursue an indirect sex discrimination complaint, and struck out the monetary claims for unpaid bonus and commission.

The direct sex discrimination complaint failed because the claimant compared herself with another woman, so there was no actual or hypothetical comparator who did not share her protected characteristic of sex. The tribunal treated that as a clearest-case strike-out under rule 37(1)(a) of the Employment Tribunals Rules 2013.

By contrast, the tribunal refused to strike out the harassment complaint based on the 15 June 2022 shirt-dress incident and the separate sexual harassment complaint based on earlier alleged incidents in June 2021, December 2021 and March 2022. It held that those allegations were fact-sensitive, that core issues turned on oral evidence, and that the limitation questions, including any just and equitable extension of time under section 123 of the Equality Act 2010, were better determined later.

The tribunal also recorded that the claimant had not pleaded indirect sex discrimination in the ET1 or amended ET1 and had not properly particularised a section 19 claim, so she may not pursue that complaint. The monetary claims for bonus and commission were struck out because the claimant's contract and commission scheme said no bonus or commission was payable once employment terminated. No remedy was awarded in this judgment.