EAT Practice and Procedure : Striking-Out/Dismissal – (1) Strike-out
The EJ had been entitled to have regard to the case of the person (who shared the relevant protected characteristic with the Claimant) appointed to the position in issue. Whilst not the Claimant’s actual comparator, this was an appropriate evidential comparison and the EJ was entitled to have regard to this case when testing the possible construction of a hypothetical comparator.
This was all the more so given the difficulty in understanding the Claimant’s case. Allowing that ‘race’ can be defined broadly and can take into account cultural/ethnic traits, there was no basis (other than racial stereotype) for the Claimant’s assertion that he suffered detriment as a result of Japanese cultural deference.
The EJ had been entitled to conclude that claims 2 and 3 had no reasonable prospect of success and should be struck out.
(2) Deposit Orders
Save in respect of claim 6, the EJ had applied the correct test and was entitled to reach the conclusion that the allegations had little reasonable prospect of success and should therefore be made subject to deposit orders.
In relation to claim 6, the EJ had not taken account of the way in which the Claimant put his case in terms of the copying him into an email in Japanese, which might be construed as insulting about him. His case was that he had been copied in on the basis of an assumption that, as an English member of staff, he could not understand Japanese and so this was mocking him. The failure to take that argument (which was rather more readily comprehensible as a complaint of race discrimination than the others) into account could amount to a failure to have regard to a relevant factor and on that basis the deposit order of this claim could not safely stand.
(3) The Quantum of the Deposit Orders
The 2013 Rules permitted the making of separate deposit orders in respect of individual arguments or allegations and the EJ had been entitled to make a number of such orders. If making a number of deposit orders, how ever, an EJ (or ET) should have regard to the question of proportionality in terms of the total award made. Here the EJ did so. He had reached decisions in respect of the amount of each deposit order that were entirely open to him and had had proper regard to the total sum awarded. There was no error of law.
Eady QC HHJ
[2014] UKEAT 0113 – 14 – 1709
Bailii
England and Wales
Employment, Discrimination
Updated: 22 December 2021; Ref: scu.537757
