Mendy v Motorola Solutions UK Ltd [2022] EAT 47
Under rule 56 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, an Employment Tribunal cannot strike out a claim by way of case management orders at a closed preliminary hearing. Moreover, under rule 37(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, a claim cannot be subject to strike out by the Employment Tribunal unless the Claimant has been afforded a reasonable opportunity to make written representations or to request a hearing.
In the case of Mendy v Motorola Solutions UK Ltd (2022), the Claimant commenced proceedings in the Employment Tribunal on 4 separate ET1s, which included a claims for indirect discrimination. The overall claims were later consolidated by the Tribunal, to be heard together. The Claimant then in accordance with an order from the Tribunal, lodged consolidated grounds of complaint.
At a closed preliminary hearing, the Judge held that the Claimant had “no discernible claim of indirect discrimination” and that the claim could only proceed should the Claimant lodge a successful application to amend.
Decision Amounted To A De Facto Strike Out Of The Claimant’s Claim
Upon appeal to the Employment Appeal Tribunal (EAT), the President of the EAT, Eady J, held that the orders made at the closed preliminary hearing amounted to a de facto strike out of the Claimant’s claim and were therefore unlawful. By making the continuation of the indirect discrimination claim subject to a successful application to amend, it amounted to a final determination on the claim without any consideration of the evidence. It also amounted to a judgment, as well as being tantamount to a de facto strike out of the Claimant’s claim. As such, the effective strike out of the indirect discrimination claim meant that the aforementioned rules 37(2) and 56 had been breached.
The case was remitted back to the Employment Tribunal.
This case is a reminder that Tribunals must be careful when making case management orders so as not to inadvertently strike out a claim. No matter how inadvertant a strike out at a closed preliminary hearing is, it would still amount to a breach of the relevant rules.
Mr A Finn v The British Bung Manufacturing Company Ltd and Mr J King (2022)
The Claimant, Mr Finn, was dismissed in May 2021 for gross misconduct following altercations between him and Mr King in which Mr King referred to Mr Finn as “a bald [obscenity]”. Mr Finn was also threatened with physical violence.
At the Employment Tribunal, the Claimant successfully brought claims for unfair dismissal, wrongful dismissal, and sex related harassment.
The Claimant succeeded with the sex-related harassment claim according to the Tribunal, as it held that with respect to the “a bald [obscenity]” remark, "Mr King crossed the line by making remarks personal to the claimant about his appearance. The conduct was therefore unwanted. There is no evidence that the claimant complained about the use of industrial language towards him other than about the epithets ‘old’ and ‘bald’ and therefore we find that the claimant was particularly affronted by them."
The Tribunal added: "We are satisfied that Mr King’s conduct towards the claimant on 24 July 2019 was unwelcome and uninvited and therefore was unwanted. It is difficult to conclude other than that Mr King uttered those words with the purpose of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him."
The Tribunal further added: "it is much more likely that a person on the receiving end of a remark such as that made by Mr King would be male. Mr King made the remark with a view to hurting the claimant by commenting on his appearance which is often found amongst men. The Tribunal therefore determines that by referring to the claimant as a “bald [obscenity]” on 24 July 2019 Mr King’s conduct was unwanted, it was a violation of the claimant’s dignity, it created an intimidating etc environment for him, it was done for that purpose, and it related to the claimant’s sex."
Mr Finn's claim for sex-related harassment succeeded despite being 18 months out of time. Adopting a purposive approach, and having established the link between the baldness remark and sex, the tribunal held that it was just and equitable to allow the claim in out of time.
This case highlights the very wide ranging nature of the protection afforded by the Equality Act 2010 in relation to harassment in the workplace, and just how imperative it is that employers have a comprehensive training programme in place, plus proper policies and procedures, with regards to the standards staff are required to adhere to in terms of employee interaction.
