Mr M French v 1) Aquatronic Group Management plc 2) SVC Technical Limited — 2019

The Claimant brought sex discrimination complaints against Aquatronic Group Management Plc and SVC Technical Limited arising out of a short assignment as an accounts assistant from 6 December 2018 to 21 December 2018. On 17 December 2018 he had been offered a 12-month direct contract by the First Respondent. On 20 December 2018 there was a dispute about whether he had left five minutes early the previous day; after discussions with Emily, Barbara and the Finance Director, the contract offer was withdrawn and the temporary assignment ended.

The tribunal set out the strike-out and deposit-order framework under Rules 37 and 39 of the Employment Tribunal Rules 2013, together with sections 13, 23 and 136 of the Equality Act 2010 and the burden-of-proof guidance in Madarassy. It also referred to Balls, Chandhok and Ahir on the high threshold for striking out discrimination claims, and proceeded on the Claimant's case at its highest for the purposes of the applications.

The sex discrimination complaints against the First Respondent were struck out because Emily was not a proper comparator: she was the Claimant's supervisor and an employee of the First Respondent, not an agency worker accused of leaving early. The tribunal held that, even on the Claimant's pleaded case, a hypothetical female comparator had no reasonable prospect of being treated differently, and that the fact Emily was believed and the Claimant was not, or that no formal procedure was followed, was not enough to shift the burden of proof.

The complaint against the Second Respondent was also struck out. The tribunal found that the decision to withdraw the contract offer and end the assignment was taken by the First Respondent, that the Second Respondent had tried to investigate the grievance, and that the Claimant had not accepted an invitation to meet. It concluded that the claim appeared to be about employment status rather than sex, and that there was no reasonable prospect of showing that a hypothetical female agency worker would have had the grievance investigated more fully. On costs, the First Respondent was awarded £600 after a warning letter and the tribunal's finding that the claims had no reasonable prospects of success; the Second Respondent's costs application was refused because there had been no prior warning and the amount sought was not identified.