Mr G Macik v Represented by: Mr L Shand, Solicitor Edinburgh Napier University — 2024

At a preliminary hearing on 10 January 2024, Employment Judge A Kemp struck out Mr G Macik's two direct discrimination claims, one on age and one on disability, under Rule 37(1)(a) on the basis that they had no reasonable prospects of success. The hearing had already dealt separately with an amendment application, and the respondent's strike-out application was considered together with the alternative request for a deposit order. For the strike-out application, disability status and knowledge were treated as established.

The basic facts were not disputed. The claimant was in a small room with his manager, took out a Stanley knife with a blade of about one inch, and brandished it while making stabbing motions towards himself during a discussion about complaints he had about how he was being treated. After an investigation and disciplinary process, the respondent dismissed him for gross misconduct and rejected his appeal.

The Tribunal accepted the high threshold for striking out discrimination claims and referred to the authorities on that issue, including Dolby, Hassan, Anyanwu, Tayside Public Transport v Reilly, Ukegheson, Ahir, Romanowska, Mechkarov and Cox. It nevertheless concluded that the pleadings did not set out facts from which a prima facie case of direct discrimination could be inferred. In particular, there was no proper comparator, no pleaded link between the protected characteristics and the dismissal decision taken by an independent dismissing officer, and the earlier complaints about training, equipment and qualifications did not bridge that gap.

The Tribunal held that the claimant's explanation that he acted out of frustration and because of limited English did not change the position on the admitted facts, and that dismissal for the conduct described was an obvious response for an employer. The Judge noted sympathy for the claimant, who was being treated for cancer, but concluded that striking out the claim was appropriate in accordance with the overriding objective.