Mr F Yousafzai v Government Digital Service — 2022

At the preliminary hearing on 1 August 2022, Employment Judge Gardiner struck out Mr F Yousafzai's disability discrimination claim under Rule 37 of the Employment Tribunal Rules 2013 as having no reasonable prospect of success. The claimant did not attend the hearing. The tribunal decided it was appropriate to proceed in his absence after considering the correspondence, the prior listing and notice, and the absence of any sufficient basis for an adjournment or postponement.

The tribunal found that the claim was not in substance a complaint about treatment as an employee or job applicant. Instead, it was a complaint that the Employment Tribunal website and related online forms did not comply with the Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018. The tribunal noted the regulatory route for such complaints: notification to the public body and, if necessary, complaint to the Equality and Human Rights Commission. It held that those regulations do not confer jurisdiction on the Employment Tribunal to decide whether the accessibility requirement has been breached.

Mr Yousafzai had also accepted in correspondence that he was not and had never been an employee or job applicant of the respondent. The tribunal noted that he had not shown a basis for Employment Tribunal jurisdiction under the Equality Act 2010, including by failing to complete the ET1 box that applied where a claimant was not employed by the respondent but was making a claim connected to employment. On that basis, the tribunal concluded that he had no reasonable prospect of establishing jurisdiction or succeeding on the merits.

In deciding to strike out rather than merely consider a deposit order, the tribunal took account of the caution required in discrimination cases and the claimant's stated difficulties, including reference to autism and problems completing online forms. It nevertheless concluded that he had been given a fair and reasonable opportunity to explain the claim, and that his complaint was about online accessibility rather than employment or prospective employment. The tribunal therefore struck out the claim and did not need to decide whether a deposit order should be made.