Mr A Tideswell v Wilko Retail Limited Heard: via Cloud Video Platform — 2021

At a preliminary hearing on 20 November 2020, Employment Judge Ayre, sitting alone, considered whether the claimant's complaints of discrimination should be struck out under Rule 37(1)(a) of the Employment Tribunal Rules 2013, or alternatively whether a deposit order should be made under Rule 39. The claimant had been employed by Wilko Retail Limited from 3 October 2013 until his resignation took effect on 4 December 2019. The complaints concerned the respondent's absence management decisions on 21 October 2019, 5 November 2019 and 17 November 2019, which resulted in a first absence level warning, an appeal outcome upholding that warning, and then a second absence level sanction that was later revoked on appeal.

On the marital-status complaint, the tribunal held that there was no evidence the claimant was treated less favourably because he was married. The claimant accepted in evidence that he would have been warned if he had been caring for an unmarried partner, and that other employees had also received absence warnings. For the indirect claim, the tribunal said there was no evidence, or even an assertion, that married people were more likely than unmarried people to suffer the disadvantage relied on, namely the effect of the attendance policy. It therefore found that the marital-status discrimination complaint had no reasonable prospect of success.

On the disability complaint, the tribunal held there was no evidence that the claimant was treated less favourably than non-disabled employees, even if he could establish disability within the meaning of the Equality Act 2010. The claimant accepted that he would have received the warnings if he himself had not been disabled, and the tribunal noted that he could only rely on his own disability, not his wife's, for the indirect discrimination case. It found no prima facie group disadvantage arising from the attendance policy and concluded that the disability discrimination complaint also had no reasonable prospect of success. Applying the high threshold for strike-out in discrimination cases and the caution required with litigants in person, the tribunal nevertheless decided this was an appropriate case to strike out the discrimination complaints; it did not make a deposit order.