Mr Jagjiwan Singh Jhammat v Newcross Healthcare Solutions Limited — 2019

At the preliminary hearing in Glasgow on 8 May 2019, Employment Judge I McPherson heard the claimant in person and the respondent's solicitor on applications to strike out, or alternatively to impose a deposit order, in relation to the claimant's victimisation complaint under ss.27 and 77 of the Equality Act 2010 and his detriment complaint under ss.45A and 48(1ZA) of the Employment Rights Act 1996. The claimant said restrictions were placed on his hours after he raised a holiday pay claim; the respondent said the restriction followed an ECS positive verification notice dated 2 July 2018 and subsequent Home Office guidance, not the holiday pay complaint.

The tribunal applied the familiar cautionary approach to strike out in fact-sensitive cases, referring to authorities including Anyanwu, Ezsias, Mechkarov, Dolby and related cases. It held that the case involved core disputed facts that should be resolved by oral evidence at a final hearing, and that the documents relied on by the respondent did not conclusively disprove the claimant's account. The strike-out application was therefore refused and the claim was listed for full disposal, including remedy if appropriate.

The tribunal also refused to make a deposit order under Rule 39. It heard evidence about the claimant's means and found that he was the sole earner for a family of four, with monthly pay of about £984.89, no savings or capital, and limited disposable income. The judge concluded that even a modest deposit would, in effect, bar access to justice. The tribunal said that if it had made a deposit order it would have been at £20 per head of claim, but it did not do so, and it reserved any application for expenses or preparation time for the final hearing.