Ms. S. Merritt v Mr. M Bivol Open Preliminary Hearing Heard via: Reading by Cloud Video Platform — 2023

At the open preliminary hearing on 7 February 2023, Employment Judge Boyes considered whether the claimant’s discrimination claims should be struck out for having no reasonable prospects of success. The claimant accepted that she could not pursue marriage/civil partnership discrimination because she was not married or in a civil partnership, withdrew that claim, and the tribunal dismissed it upon withdrawal.

The tribunal identified the remaining sex-related allegations as potentially direct discrimination under section 13 of the Equality Act 2010 and harassment related to sex under section 26. It noted the claimant’s allegations about the 16 March 2021 conversation, later emails while she was on sick leave, and the respondent’s time-limit arguments, but it did not make findings of fact on those disputed matters at this stage.

Applying the strike-out authorities and the low threshold for striking out discrimination claims, the tribunal held that it could not be said on the documents before it that the sex discrimination and harassment claims had no reasonable prospects of success. It therefore refused strike out, made no deposit order, and recorded that the claim would proceed to further case management. The tribunal also noted that the claimant referred to pregnancy discrimination at the hearing, but that point had not been pleaded and would require amendment if pursued.