EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103110/2022 Preliminary Hearing at Edinburgh on September 2022 Employment Judge: M A Macleod v Dariya Krasnova The Scottish Ministers — 2022

The claimant, who was unrepresented, brought a complaint about being discriminated against by wrongly assumed nationality in the course of an application for employment with the Scottish Ministers. Following clarification at an earlier preliminary hearing, the claim was treated as one of direct discrimination because of race, with the claimant identifying her protected characteristic as German nationality and saying the less favourable treatment was the respondent's failure to apologise for assuming she was Russian.

The respondent applied to strike out the claim under Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013. It argued that the claimant had not identified a valid comparator, that the treatment complained of was not because of race, and that the respondent had acted lawfully under the Civil Service Nationality Rules and paragraph 5 of Schedule 22 to the Equality Act 2010. The respondent also relied on the agreed factual position that the claimant had said she was of Russian birth and had another nationality or citizenship, and that her application was later reinstated and considered.

The tribunal held that the claim as pleaded had no reasonable prospect of success. It accepted the respondent's point that there was no valid comparator between a German national by birth and a German national by naturalisation for the purposes of this claim, and it also accepted that the claimant was not in truth saying she was treated less favourably because she was German. The tribunal considered that her complaint was difficult to understand and that, as framed, it could not succeed as a race discrimination claim based on German nationality.

The tribunal noted that the agreed facts might have supported a different formulation of the complaint, because the claimant had indicated that she held another nationality or citizenship and the respondent had assumed that Russian birth meant continuing Russian citizenship. However, that was not the basis of the claim pursued after clarification. Citing Ezsias v North Glamorgan NHS Trust and the general reluctance to strike out discrimination claims where central facts are disputed, the tribunal nevertheless concluded that this was an exceptional case where strike out was justified. The claim was therefore struck out under Rule 37(1)(a), and no remedy was awarded.