Indirect Discrimination – Strike Out dismissed on Appeal to EAT 

Martina Murphy successfully represented the Appellant, appealing the tribunal’s strike out of an indirect discrimination claim. 

The Appellant had brought an indirect sex discrimination claim against his previous employer. The case is subject to an RRO, but a number of important principles on both indirect discrimination and strike out can be discussed. It is hoped these will be of use to practitioners generally.


The Claimant was dismissed and brought a claim of indirect discrimination in the ET. 

On appeal, the Claimant argued that the ET had erred in its consideration of the PCP it had identified with the Claimant (a Litigant in Person) at a preliminary hearing. Having regard to the particular disadvantage arising from the indirect discrimination, it erred in focusing on suspension, whereas at the heart of the Claimant’s claim was his dismissal. 

On review of the ET judgment, the EAT (Deputy High Court Judge Matthew Gullick KC, sitting alone) drew guidance from Essop and the “salient features” identified by Lady Hale. One of these features is the requirement of a causal link between the PCP and the particular disadvantage alleged.

In this case, the ET had erred in their consideration of the PCP. They had focussed their consideration of disadvantage on suspension and excluded dismissal. The “active and important part” of the PCP was not properly considered. 

This led a) to the flawed conclusion that the disadvantage claimed by the Appellant could only be in relation to a claim for direct discrimination and b) that the proceedings had no prospects of success. The ET had failed to address properly the causal link between the PCP and the particular disadvantage claimed. 

In agreeing with the Appellant that dismissal lie at the heart of his claim, the Judge made the following important points as regards Litigants in Person before the ET:

  • It was entirely appropriate for Tribunal judges to “roll up their sleeves” and reformulate submissions in consultation with the Claimant (drawing on Cox v Adecco and ors);
  • Discrimination cases are generally fact sensitive and as such strike out really should be for only plain and obvious cases (Anyanwu and anor v South Bank Student Union and anor, and White v HC-One Oval Ltd);

The case has been remitted to the ET. Martina was instructed through Advocate and assisted by Rebecca Henshaw (pupil).

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