Mr John O’Neill v University of Leicester — 2021

The hearing was an open preliminary hearing to decide whether the claim should be struck out as having no reasonable prospect of success, or whether a deposit order should be made because it had only little reasonable prospect of success. The claimant's case was that he was not given a further contract to teach English as a foreign language for the respondent in China around 20 June 2020 because the respondent knew or believed he would give evidence in the employment tribunal claim of his colleague, Mr Dargle. The tribunal recorded that, if true, that could be victimisation pursuant to section 27 of the Equality Act.

The tribunal declined to strike out the claim. Employment Judge Britton found that he could not rule out, at the preliminary stage, that Mr J Horsfall may have seen Mr Dargle's ET1 when it was served on 27 May 2020 and that this might have influenced him against the claimant. The judge held that Mr Horsfall's knowledge of Mr Dargle's likely intentions and of the tribunal claim before 20 June 2020 could not be resolved without findings of fact after hearing evidence at the main hearing.

The tribunal nevertheless found that the claim had only little reasonable prospect of success. It considered the claimant's evidence to Mr Dargle's grievance investigation and found that, on its face, it was fanciful to suggest that the respondent would wish to victimise him given what he had said. The tribunal also noted the respondent's position that the claimant was not given a new contract because of concerns about his performance, and that another member of the 2019 teaching cohort who had not been a witness in Mr Dargle's investigation was also not given a further contract.

The tribunal made a deposit order under rule 39 of the Employment Tribunal Rules 2013. The claimant was ordered to pay a £1,000 deposit as a condition of continuing with the claim, taking account of his means, including savings of about £15,000 and his pattern of TEFL assignments. The judgment recorded that if the deposit was not paid the claim would be automatically struck out, and if it was paid then case management orders and a seven-day main hearing would follow.