Ms M Milewska First v Second Respondent: DS Smith Packaging Limited Abstract Recruitment Limited — 2023

At a public preliminary hearing on 28 February 2023, Employment Judge Anderson sitting alone heard applications by both respondents for strike out and/or deposit orders. The claimant's pleaded case included automatic unfair dismissal and pregnancy discrimination; the discrimination case concerned the ending of her assignment with the First Respondent and, against the Second Respondent, an allegation that she was an employee and automatically unfairly dismissed under s.99 ERA 1996 and/or discriminated against in the ending of her agency relationship.

The tribunal refused strike out. It held that knowledge of the claimant's pregnancy was a genuine trial issue and that a full tribunal would not be bound to accept the respondents' account. The claimant's case, taken at its highest, was that she told the First Respondent of her pregnancy and the next day was told her assignment had ended; that close timing was capable of supporting an inference under s.136 Equality Act 2010.

The judge considered several factors that meant the claims had not been shown to have little reasonable prospect of success: the respondents' reliance on an earlier undocumented meeting on 24 May, the absence of the documentary evidence referred to at the earlier case management hearing, the possible ambiguity of Mr Benjamin's email, and the need for a fact-finding hearing on the Second Respondent's knowledge and the circumstances in which the claimant's relationship with it ended. The tribunal therefore also refused a deposit order, and no monetary remedy was awarded at this stage.