Mr E Ali v Marks and Spencer plc — 2023

This was a preliminary hearing on the respondent's application to strike out claims or, alternatively, for deposit orders. The Tribunal struck out the procedurally unfair dismissal claim because the claimant did not have two years' continuous employment, and struck out the automatic unfair dismissal claim under section 104 ERA 1996 because the pleaded case did not allege that the claimant had asserted an infringement of a statutory right and was dismissed for doing so. The breach of contract claim based on the flexible working policy was also struck out because the policy stated it was not part of formal terms and conditions of employment.

The Tribunal did not strike out the notice pay claim. It found that the documentary material did not show that the claimant had no or little reasonable prospect of arguing that he was dismissed on 11 December 2021 rather than having resigned on 7 November 2021. The Tribunal also declined to strike out the Equality Act claims on limitation grounds because issues about a continuing act, the employment end date, and any extension of time were fact-sensitive.

The victimisation, harassment related to race, direct race discrimination, and direct religion discrimination claims were allowed to continue, but only subject to deposit orders. For victimisation, the Tribunal considered there was little reasonable prospect of showing a protected act. For harassment, it considered there was little reasonable prospect of showing conduct with the purpose or effect required by section 26 Equality Act 2010. For the direct discrimination claims, it found the pleaded case was, at that stage, no more than a bare assertion of difference in status and treatment, applying Efobi and Madarassy.