Mr D Duployen v Connect Appointments Limited — 2023

Mr D Duployen applied in February 2023 for bottling hall work via Connect Appointments Limited, an agency supplier, to work with Whyte & Mackay Ltd. He had previously left Whyte & Mackay and had succeeded in a 2022 tribunal claim for constructive dismissal and disability discrimination. After a registration interview on 27 February 2023, he emailed the agency saying he had brought successful claims for constructive dismissal and disability discrimination, that he had not informed them of his disability because he did not expect it to impede his ability in the role, and inviting questions. Earlier that morning Connect Appointments had emailed Whyte & Mackay asking whether he would be re-employed, and later sought to recall that email.

Both respondents applied for strikeout or, alternatively, deposits under Rules 37 and 39. They argued there was no adequate basis for actual or constructive knowledge of disability or of the protected act, that the claimant had not properly identified comparators for the direct discrimination claim, and that the section 15 case depended on speculation about alleged absences. The tribunal reviewed the high threshold for strikeout in discrimination cases and the lower deposit-order test, citing Ezsias, Anyanwu, Machkarov and Ahir, together with the section 15(2) knowledge test and paragraph 5.14 of the Code of Practice on Employment.

The tribunal refused to strike out the claims or to order deposits. It held that the 27 February 2023 email could potentially give actual or constructive knowledge of disability, but that a full tribunal would need to assess its effect, including whether the reference to previous claims and to disability was enough and whether further enquiry would have been reasonable. It also held that the section 15 allegation based on absences and the victimisation allegation based on the earlier tribunal proceedings turned on disputed facts and inferences that could not be resolved on this preliminary application. The claims were left to proceed, the respondents were given 28 days to answer the further and better particulars, and the claimant was asked to consider judicial mediation.