Ms N Mitchell v Diligenta Limited — 2023

The claimant presented her claim on 18 January 2023 after early conciliation on 17-18 January 2023. The tribunal had already dealt with case management at preliminary hearings on 19 April 2023 and 8 June 2023, when the claimant was directed to provide further particulars of each indirect discrimination allegation, including the relevant PCP, the group to which it was applied, the protected characteristic relied on, and the alleged group disadvantage.

At the strike out hearing on 22 August 2023, the respondent argued that the indirect discrimination complaints still lacked a valid PCP and had no reasonable prospect of success. The claimant declined to make substantive submissions. When questioned, she confirmed that the acts relied on were examples of being singled out for treatment, not examples of how others were, or would be, treated in the same way. The tribunal held that each asserted PCP referred to one-off acts taken by the respondent that solely related to the claimant, and that no group disadvantage was pleaded in the further particulars.

Applying the caution required by Mbuisa and Anyanwu, and taking the claimant’s case at its highest in line with Mechkarov, the tribunal concluded that the complaints could not satisfy the strict legal definition of indirect discrimination. It therefore struck out the claimant’s complaints of indirect discrimination under Rule 37(1)(a) as having no reasonable prospect of success. The tribunal noted that the same acts were also pleaded, in the main, as direct discrimination and/or harassment, and said those complaints could still proceed.