Employment Tribunal Strips Discrimination Claims for Lack of Merit

OUTCOME: Struck Out

Case Number: 6016961/2024

1

EMPLOYMENT TRIBUNALS

Claimants:

[redacted]

Respondent: [redacted]

London South Employment Tribunal

On:

5 February 2026

Before: Employment Judge Burge

Appearances For the Claimant: [redacted] For the Respondent: [redacted]

JUDGMENT

It is the Judgment of the Tribunal that:

1. The following complaints are struck out under Employment Tribunal Rule 38(1)(a) because they have no reasonable prospect of success: a. Indirect race discrimination; and b. Direct discrimination/harassment relating to an incident in 2019

2. The Claimant’s complaint of breach of contract is dismissed upon withdrawal

3. The remainder of the Claimant’s claims continue.

REASONS

1. This Preliminary Hearing was listed by Employment Judge Sudra at the Preliminary hearing on 17 September 2025 to: (i) Determine the Respondent’s strike out and Deposit Order applications; and (ii) make any other Orders as appropriate.

2. Reasonable adjustments: The Claimant required extra time to absorb information so questions were asked at a steady pace and she was given

Case Number: 6016961/2024

2 sufficient time to read documents. I also explained things as we went along and she asked when she was not sure that she followed what was being said.

3. Employment Judge Sudra had ordered that

a. By no later than 29th October 2025, the Respondent must send to the Tribunal and [APPELLANT] any application it wishes the Tribunal to consider at the preliminary Hearing.

4. On 28 October 2025 the Respondent made an application for strike out and/or deposit on the following grounds:

a. Unfair dismissal – a deposit Order as the complaint has little reasonable prospects of success. The Respondent says that the [APPELLANT] admitted to receipt of substantial sums of money at around the time that each of three people were registered to her staff travel. The money was given to her by a [NAME] in the abuse of the Respondent’s staff travel benefit. The [APPELLANT] contention that she was given substantial sums of money by a colleague was inherently implausible, especially when weighed against the alternative explanation, which was that the sums were payment for a benefit. The [APPELLANT] actions were clearly dishonest, and the matters put forward by her as mitigation did not overcome her dishonesty and the future difficulty in trusting her, given the inherent autonomy of her role. The [APPELLANT] disagrees and points to various instances of unfairness during the dismissal process.

b. Race related harassment (Issue 9a) – strike out on the grounds that the alleged conduct took place in December 2019 and it is no longer possible to have a fair hearing, or that there is no reasonable prospect of the Claimant being able to show that this is conduct extending over a period of time or that it would be just and equitable to extend time. Or strike out/deposit on time limits.

- The Respondent says that it has no realistic means after the passage of so much time to identify the people whom the [APPELLANT] alleges said the things alleged in issue 9(a). The Claimant did not pursue a prompt internal complaint about this, or bring a claim to the Employment Tribunals. It is plain that this complaint has only been added by the Claimant because of her later complaints. Given the long passage of time, the absence of any documentary evidence, and the Respondent’s consequent inability to investigate and defend the complaint a fair trial is no longer possible; the Respondent has been denied the opportunity to investigate and consider its defence to the complaint as a result of the long delay in bringing the complaint. - The Claimant says that she is unsure about who made the comment as her working memory is not very good. She says the delay in bringing the claim is due to the Respondent’s slow internal procedures (which commenced in 2024).

Case Number: 6016961/2024

3 c. Race related harassment or direct race discrimination (Issues 9b and c and 12a – c) – strike out or deposit Order

- The Respondent says that although these are later allegations, they are also out of time and entirely unrelated (in terms of subject matter and personnel) to the later disciplinary conduct to which the Claimant was subject. The Claimant therefore has no realistic prospect of showing that this was conduct extending over a period which ended on or after 03 June 2024. Further, it is not just and equitable to extend time, again, because the passage of time means that a fair trial is no longer possible: the Respondent is unable to investigate and properly defend these allegations by leading evidence to rebut, or contextualise the complaints, or to advance the statutory defence, since the Claimant is not able to identify the makers of the alleged comments. - The Claimant says she is unsure about who made the comments as her working memory is not very good. She needs more information from the [NAME]. She says the delay in bringing the claim is not very long, she has ADHD and the delay is also due to the Respondent’s internal procedures which she thought would be fair. She also had various personal issues at the time (which I make no findings of fact on as I do not want to tie the hands of the final Tribunal).

d. Indirect race discrimination (issues 16-19) – the Respondent says the complaint has no reasonable prospects of success and the Respondent applies for it to be struck out on that ground, alternatively to be made the subject of a deposit order. It is entirely lacking in cogency as a complaint of indirect race discrimination.

e. Indirect sex discrimination (Issues 24—27) – the Respondent says the complaint has no reasonable prospects of success and the Respondent applies for it to be struck out on that ground, alternatively to be made the subject of a deposit order. It is entirely lacking in cogency as a complaint of indirect discrimination. A PCP is only a valid PCP if it is applied to everyone within a relevant pool. The PCP on which the Claimant purports to rely is—even on the face of the [APPELLANT] pleaded claim—not a PCP which was applied to [NAME] and [NAME]. Instead, the Claimant is simply describing differential treatment between two different pools of employees — [NAME], on the one hand, and [NAME] on the other.

5. No witness statements had been directed on time limits. The Claimant had thought that the witness statements to be provided were the same as the witness statements for the final hearing. I therefore declined to decide time limits substantively and instead proceeded with the tests for strike out and/or deposit (including whether the Claimant had no or little reasonable prospect of arguing that there was a continuing act/time should be extended).

Case Number: 6016961/2024

4 6. The Claimant gave oral evidence and also gave submissions on her means. On behalf of the Respondent, Ms [RESPONDENT] gave evidence on the efforts the Respondent had made to identifying the flights the Claimant said the discriminatory comments were made on. Also on behalf of the Respondent, Ms [RESPONDENT] gave evidence on why two other employees were treated differently to the Claimant when they committed misconduct.

7. Both sides provided oral submissions.

Relevant law

Time Limits for discrimination

8. Section 123 of the Equality Act 2010 (“EqA”) provides that no complaint may be brought after the end of:

(2) “(a) the period of three months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section (a) conduct extending over a period is to be treated as done at the end of that period (b) failure to do something is to be treated as occurring when the [NAME] decided on it”.

9. An act will be regarded as extending over a period if an employer an “ongoing situation” or a “continuing state of affairs” which can be contrasted with a “succession of unconnected or isolated specific acts”: Commissioner of Police of the [NAME] v Hendricks [2003] ICR 530. When considering whether separate incidents form part of an act extending over a period, “one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents” ([NAME] v FDA 2010 EWCA Civ 304, CA).

10. s.140B EqA provides an extension of time to ensure that the period between the date when the [NAME] contacts ACAS and the date when the [NAME] receives or is treated as receiving the ACAS Early Conciliation Certificate does not count towards the three-month primary limitation period.

11. If the claim is presented after the relevant three months, the tribunal may still have jurisdiction if, in all the circumstances, it is “just and equitable” to extend time. The claimant bears the burden of persuading the tribunal that it is just and equitable to extend time ([NAME] v Bexley Community Centre [2001] UKEAT 1516/00, [2003] IRLR 434).

12. There is a “very broad general discretion” conferred on tribunals to decide whether it is just and equitable to extend time [NAME] v [COMPANY] [2021] EWCA Civ 23 per [NAME] LJ at [37]. The “best approach” is for the Tribunal to “assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular … ‘the length of, and the reasons for, the delay’” (paragraph 37).

Case Number: 6016961/2024

5 13. In [NAME] v [NAME] [2022] EAT 132, the EAT has held that, when considering whether it was just and equitable to extend the time limit for presenting discrimination complaints, or to grant an application to amend to add a further out of time discrimination complaint, the tribunal was entitled to weigh in the balance its assessment that the merits of the proposed complaints were weak.

Strike out/deposit

14. Rule 38 of the Employment Tribunals Rule of Procedure 2024 provides:

38. Striking out (1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).

No reasonable prospects of success

15. In [NAME] [COMPANY] and anor 2001 ICR 391, HL, the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases. Discrimination claims are generally fact-sensitive, and it is a matter of public interest that they should be fully examined to make a proper determination.

16. The central [NAME] for the Tribunal was whether the claims have a realistic as opposed to a fanciful prospect of success: [NAME] v North Glamorgan NHS Trust [2007].

17. In Abertawe Bro Morgannwg University Health Board v Ferguson [2013] ICR 1108 the EAT remarked that:

“33. We would add this final note. Applications for strike-out may in a proper case succeed. In a proper case they may save time, expense and anxiety. But in a case which is always likely to be heavily fact sensitive, such as one involving discrimination or the closely allied ground of public interest disclosure, the circumstances in which it will be possible to strike out a claim are likely to be rare. In general it is better to proceed to

Case Number: 6016961/2024

6 determine a case on the evidence in light of all the facts. At the conclusion of the evidence gathering it is likely to be much clearer whether there is truly a point of law in issue or not…”

18. In [NAME] [COMPANY] [2017] EWCA Civ 1392 the tribunal’s decision to strike out a claim was upheld by both the EAT and Court of Appeal in circumstances where the claimant’s case was inherently implausible. [NAME] LJ said that a case should not be allowed to proceed on the basis of mere assertion, as follows (at 24):

“[I]n a case of this kind, where there is on the face of it a straightforward and well documented explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced.''

Two stage process

19. The striking out process involves a two-stage test: first the grounds for striking out must be established; second, the tribunal should decide, as a matter of discretion, whether to strike the claim out or order that a deposit must be paid: HM Prison Service v Dolby [2003] IRLR 694 EAT at [15].

Witness evidence? Strike out: continuing acts of discrimination and time limits

20. In E v X, L, Z and L v X, Z, E UKEAT/0079/20/RN and UKEAT/0080/20/RN the EAT doubted that no evidence was required in a hearing that dealt with strike-out arising from a time point. The test that a tribunal must apply is whether the claimant has established a prima facie case. Where the Claimant has not dealt with time limits in their pleadings, it may be advisable for oral evidence to be called.

What is the preliminary hearing to decide?

21. The distinction between time as a preliminary issue and strike out because there are no reasonable prospects of the complaint being within time was considered by HHJ Auerbach in [COMPANY] v Mrs K [NAME]/0149/19/RN.

22. In [NAME] v [COMPANY] [2025] EAT 103 HHJ Tayler confirmed that once an order is made fixing a Preliminary Hearing, it can generally only be varied if it is in the interests of justice to do so, such as where there has been a material change in circumstances. If a time point is determined as a matter of substance, it is a preliminary issue for the purposes of Rule 52. There needs to be clarity about whether the Tribunal is deciding time points substantively (for example, whether the complaints were brought in time, whether there was a continuing act and whether it is just and equitable to extend time) or deciding whether the complaint should be struck out

Case Number: 6016961/2024

7 because there are no reasonable prospects of the complaint being found to be in time.

Deposit orders

23. Rule 40 provides:

40. Deposit orders (1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“[NAME]”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”). (2) The Tribunal must make reasonable enquiries into [NAME]’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order must be provided with the order and [NAME] must be notified about the potential consequences of the order. (4) If [NAME] fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates. (5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim). (7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against [NAME] for substantially the reasons given in the deposit order— (a) [NAME] must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b) the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit must be refunded. (8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against [NAME] in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.

24. In considering whether to make deposit orders, the Tribunal is entitled to have regard to the likelihood of a party being able to establish facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. In [NAME] v [NAME] of Kingston Upon Thames [2007] UKEAT/0096/07, [NAME] held:

“…the test of little prospect of success…is plainly not as rigorous as the test that the claim has no reasonable prospect of success… It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response”;

25. In Hemdan v Ishmail [2017] IRLR 228, [NAME] described the purpose of a deposit order as being:

Case Number: 6016961/2024

8

“…to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails.”

Indirect discrimination

26. Section 19 and 19A Equality Act 2010 say:

“19 Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if: (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are— … race…”

19A Indirect discrimination: same disadvantage

(1) A person (A) discriminates against another (B) if—

(a) A applies to B a provision, criterion or practice,

(b) A also applies, or would apply, the provision, criterion or practice to— (i) persons who share a relevant protected characteristic, and (ii) persons who do not share that relevant protected characteristic,

(c) B does not share that relevant protected characteristic,

(d) the provision, criterion or practice puts, or would put, persons with the relevant protected characteristic at a particular disadvantage when compared with persons who do not share the relevant protected characteristic,

(e) the provision, criterion or practice puts, or would put, B at substantively the same disadvantage as persons who do share the relevant protected characteristic, and

(f) A cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.

(2) The relevant protected characteristics for the purposes of this section are— … Race …”

Conclusions

27. In deciding whether to order strike-out or a deposit, tribunals should have regard to the overriding objective of dealing with cases “fairly and justly”, set out in rule 3 of the Tribunal Rules 2024. This includes, among other things,

Case Number: 6016961/2024

9 ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, and avoiding delay. The overriding objective requires that the proportionality of the sanction must be at the forefront of the Judge’s mind, having regard to the relevant default, its effect on the other side, and whether a lesser sanction is available and appropriate. I am particularly aware that the Claimant in this case is a [NAME] and she has ADHD.

Unfair dismissal

28. A mini trial should not take place. Taking the Claimant’s claim at its highest, she has more than little reasonable prospects of success – no Deposit Order is therefore appropriate. The matter should be properly heard at the final hearing.

Direct and Race related harassment in 2019

29. Race related harassment (Issue 9a). Discrimination is important but this is a historic allegation that should have been brought within 3 months and the Claimant has not given a valid reason as to why she did not bring a claim at the time. There is a large gap between this allegation and the next one (from 2019 – 2024) and they do not involve the same people who are alleged to have made the comment. The alleged conduct took place in December 2019. The Claimant has no reasonable prospect of showing that the complaint is conduct extending over a period of time or that she would persuade a Tribunal that it would be just and equitable to extend time. The threshold having been met I have decided to exercise the discretion to strike out the claim. This is one of those rare cases where strike out is appropriate, for the reasons set out above.

Direct and Race related harassment in 2024

30. Race related harassment or direct race discrimination (Issues 9b and c and 12a – c). Discrimination complaints are important and strike out is a tool of last resort. We are not yet at the stage where it would be appropriate to strike out due to prejudice to the Respondent given that disclosure has not yet taken place. While I sympathise with the Claimant as she says her working memory is not very good and she cannot remember who said the comments to her, it would not be fair for the Respondent to have to defend a claim where even the Claimant is not clear about who allegedly said the offending statements. The Respondent would not be able to properly defend the complaint. I have therefore decided to make an Unless Order (see Case Management Orders). The Respondent must disclose the full list of crew with their identifiers (so the Claimant can see how long each crew member had been in service) as part of disclosure. The Claimant must then specify within 14 days from receiving that list who she says made the comments alleged in Issues 9b and c and 12a – c. If she does not do so, or she is still not sure who said the things she alleges, the complaint(s) will be dismissed without further Order.

31. Further, I decline to strike out/ make a deposit order on whether it is just and equitable to extend time limits. Given the Claimant’s ADHD and personal

Case Number: 6016961/2024

10 circumstances at the time, she has more than “no” or “little” reasonable prospects of success of persuading a Tribunal that it would be just and equitable to extend time. I make no findings of fact in this regard, this task is properly left to the final Tribunal.

Indirect race discrimination

32. The context of the investigation questioning is agreed between the parties. Numerous employees (including the Claimant) were investigated for receiving financial payments from a [NAME] in return for registering individuals as their Staff Travel beneficiaries. The original investigation was to consider the allegations of: (1) registering unknown individuals as staff travel concession beneficiaries and (ii) booking staff travel for individuals in return for gratuity or other monetary gain. In order to investigate the allegations the Respondent had to find out if the Claimant knew the people she had registered and what relationship she had with them. The Claimant’s complaint of indirect race discrimination is that she was “queried about the race, nationality, and heritage of [her] travel companions, asking if they were black (asking me if they were of Nigerian heritage and if they had a UK passport) registered companions”.

33. Initially I considered that the Claimant had no reasonable prospects of success in relation to this complaint because of the wording of s.19 of the Equality Act 2010 “in relation to a relevant protected characteristic of B's”. However, upon reflection, it is arguable that the Tribunal must have regard to the ECJ’s decision in [NAME] [NAME] C‑38/24 under s.6 of the [NAME] (Withdrawal) Act 2018. However, it is the requirement that “it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom [NAME] does not share it” and “it puts, or would put, [APPELLANT] at that disadvantage” that I have decided the Claimant has no reasonable prospect of succeeding in. Why does the alleged policy of asking about the nationality/race of those she had registered as her staff travel beneficiaries put black African Americans at a disadvantage? What disadvantage is she put at? It also does not work as a s.19A claim. What is the “same disadvantage”? There is no point in allowing hopeless complaints to continue. The threshold having been met, I have decided to exercise the discretion to strike out the complaint as it has no reasonable prospects of success. This is one of those rare cases where strike out is appropriate, for the reasons set out above.

Indirect Sex Discrimination

34. The application to strike out/deposit the Indirect sex discrimination (Issues 24—27) is refused. I disagree with the Respondent that the PCP is not applied to [NAME] and the [NAME]. I disagree that it is an intersection between two practices as in [COMPANY] and anor v [NAME]. In this case the PCP is “Did the Respondent apply the PCP of including [NAME] and excluding Pilot and First Officers from the investigation and dismissal process?” The PCP is applied to both groups, although one benefits from being excluded from the

Case Number: 6016961/2024

11 investigation/dismissal process and one is disadvantaged by being included in scope for the investigation/dismissal process.

35. When thinking about the pool for comparison, both the [NAME] and the [NAME] have staff travel benefit. There has been an abuse of staff travel benefit and the Respondent decides to investigate (according to the Claimant) only [NAME], not [NAME]. If an employer could escape an indirect discrimination claim because they can choose a group to treat worse (or better) than another group and the other affected group are not within scope for comparison then it would undermine the protection afforded by the indirect discrimination provisions. In the equal pay context, a Tribunal found that a Union failed adequately to pursue women’s historic equal pay claims, had encouraged them to accept low back-pay settlements and had prioritised the interests of other members who required pay protection under the new pay structure. The EAT (although subsequently overturned by the Court of Appeal on objective justification who restored the Tribunal’s decision that the women had been indirectly discriminated against) discussed appropriate pools and the application of PCPs. [NAME] (P) held

“…Similarly in our judgment it is perfectly sensible to say that the policy is being applied to those who are directly affected by it. It is not just an incidental or consequential effect but is the very object of the policy to secure greater protection for one group rather than another. If Mr [NAME] were right, it would equally be open to a union to say that the policy of differentiating between full and part timers in the process of negotiating was not a policy being applied to the part timers. That would be a bizarre conclusion. Nor would it be relevant that the part-timers were content to be less favourably treated.” [paragraph 64]

[NAME] v [NAME] & Others [2007] UKEAT/0425/06

Approved by: Employment Judge Burge 11 February 2026

Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/

Case Number: 6016961/2024 1 EMPLOYMENT TRIBUNALS Claimants: [redacted] Respondent: [redacted] London South Employment Tribunal On: 5 February 2026 Before: Employment Judge Burge Appearances For the Claimant: [redacted] For the Respondent: [redacted] CORRECTED

JUDGMENT Corrections under rule 67 Employment Tribunal Rules 2024 shown in bold and underlined It is the Judgment of the Tribunal that:

1. The following complaints are struck out under Employment Tribunal Rule 38(1)(a) because they have no reasonable prospect of success: a. Indirect race discrimination; and b. Direct discrimination/harassment (on grounds of race and/or religion or belief) relating to an incident in 2019 2. The Claimant’s complaint of breach of contract is dismissed upon withdrawal 3. The remainder of the Claimant’s claims continue.

REASONS 1. This Preliminary Hearing was listed by Employment Judge Sudra at the Preliminary hearing on 17 September 2025 to: (i) Determine the Respondent’s strike out and Deposit Order applications; and

Case Number: 6016961/2024 2 (ii) make any other Orders as appropriate.

2. Reasonable adjustments: The Claimant required extra time to absorb information so questions were asked at a steady pace and she was given sufficient time to read documents. I also explained things as we went along and she asked when she was not sure that she followed what was being said.

3. Employment Judge Sudra had ordered that a. By no later than 29th October 2025, the Respondent must send to the Tribunal and [APPELLANT] any application it wishes the Tribunal to consider at the preliminary Hearing.

4. On 28 October 2025 the Respondent made an application for strike out and/or deposit on the following grounds: a. Unfair dismissal – a deposit Order as the complaint has little reasonable prospects of success. The Respondent says that the [APPELLANT] admitted to receipt of substantial sums of money at around the time that each of three people were registered to her staff travel. The money was given to her by a [NAME] in the abuse of the Respondent’s staff travel benefit. The [APPELLANT] contention that she was given substantial sums of money by a colleague was inherently implausible, especially when weighed against the alternative explanation, which was that the sums were payment for a benefit. The [APPELLANT] actions were clearly dishonest, and the matters put forward by her as mitigation did not overcome her dishonesty and the future difficulty in trusting her, given the inherent autonomy of her role. The [APPELLANT] disagrees and points to various instances of unfairness during the dismissal process. b. Race related harassment (Issue 9a) – strike out on the grounds that the alleged conduct took place in December 2019 and it is no longer possible to have a fair hearing, or that there is no reasonable prospect of the [APPELLANT] being able to show that this is conduct extending over a period of time or that it would be just and equitable to extend time. Or strike out/deposit on time limits. - The Respondent says that it has no realistic means after the passage of so much time to identify the people whom the [APPELLANT] alleges said the things alleged in issue 9(a). The Claimant did not pursue a prompt internal complaint about this, or bring a claim to the Employment Tribunals. It is plain that this complaint has only been added by the Claimant because of her later complaints. Given the long passage of time, the absence of any documentary evidence, and the Respondent’s consequent inability to investigate and defend the complaint a fair trial is no longer possible; the Respondent has been denied the opportunity to investigate and consider its defence to the complaint as a result of the long delay in bringing the complaint.

Case Number: 6016961/2024 3 - The [APPELLANT] says that she is unsure about who made the comment as her working memory is not very good. She says the delay in bringing the claim is due to the Respondent’s slow internal procedures (which commenced in 2024). c. Race related harassment or direct race discrimination (Issues 9b and c and 12a – c) – strike out or deposit Order - The Respondent says that although these are later allegations, they are also out of time and entirely unrelated (in terms of subject matter and personnel) to the later disciplinary conduct to which the Claimant was subject. The Claimant therefore has no realistic prospect of showing that this was conduct extending over a period which ended on or after 03 June 2024. Further, it is not just and equitable to extend time, again, because the passage of time means that a fair trial is no longer possible: the Respondent is unable to investigate and properly defend these allegations by leading evidence to rebut, or contextualise the complaints, or to advance the statutory defence, since the Claimant is not able to identify the makers of the alleged comments. - The Claimant says she is unsure about who made the comments as her working memory is not very good. She needs more information from the [NAME]. She says the delay in bringing the claim is not very long, she has ADHD and the delay is also due to the Respondent’s internal procedures which she thought would be fair. She also had various personal issues at the time (which I make no findings of fact on as I do not want to tie the hands of the final Tribunal). d. Indirect race discrimination (issues 16-19) – the Respondent says the complaint has no reasonable prospects of success and the Respondent applies for it to be struck out on that ground, alternatively to be made the subject of a deposit order. It is entirely lacking in cogency as a complaint of indirect race discrimination. e. Indirect sex discrimination (Issues 24—27) – the Respondent says the complaint has no reasonable prospects of success and the Respondent applies for it to be struck out on that ground, alternatively to be made the subject of a deposit order. It is entirely lacking in cogency as a complaint of indirect discrimination. A PCP is only a valid PCP if it is applied to everyone within a relevant pool. The PCP on which the Claimant purports to rely is—even on the face of the Claimant’s pleaded claim—not a PCP which was applied to [NAME] and [NAME]. Instead, the Claimant is simply describing differential treatment between two different pools of employees — [NAME], on the one hand, and [NAME] on the other.

5. No witness statements had been directed on time limits. The Claimant had thought that the witness statements to be provided were the same as the witness statements for the final hearing. I therefore declined to decide time

Case Number: 6016961/2024 4 limits substantively and instead proceeded with the tests for strike out and/or deposit (including whether the Claimant had no or little reasonable prospect of arguing that there was a continuing act/time should be extended).

6. The [APPELLANT] gave oral evidence and also gave submissions on her means. On behalf of the Respondent, Ms [RESPONDENT] gave evidence on the efforts the Respondent had made to identifying the flights the [APPELLANT] said the discriminatory comments were made on. Also on behalf of the Respondent, Ms [RESPONDENT] gave evidence on why two other employees were treated differently to the [APPELLANT] when they committed misconduct.

7. Both sides provided oral submissions. Relevant law Time Limits for discrimination 8. Section 123 of the Equality Act 2010 (“EqA”) provides that no complaint may be brought after the end of: (2) “(a) the period of three months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section (a) conduct extending over a period is to be treated as done at the end of that period (b) failure to do something is to be treated as occurring when the [NAME] decided on it”.

9. An act will be regarded as extending over a period if an employer an “ongoing situation” or a “continuing state of affairs” which can be contrasted with a “succession of unconnected or isolated specific acts”: Commissioner of Police of the [NAME] v Hendricks [2003] ICR 530. When considering whether separate incidents form part of an act extending over a period, “one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents” ([NAME] v FDA 2010 EWCA Civ 304, CA). 10. s.140B EqA provides an extension of time to ensure that the period between the date when the [NAME] contacts ACAS and the date when the [NAME] receives or is treated as receiving the ACAS Early Conciliation Certificate does not count towards the three-month primary limitation period.

12. There is a “very broad general discretion” conferred on tribunals to decide whether it is just and equitable to extend time [NAME] v [COMPANY] [2021] EWCA Civ 23 per [NAME] LJ at [37]. The “best approach” is for the Tribunal to “assess all the factors in the

Case Number: 6016961/2024 5 particular case which it considers relevant to whether it is just and equitable to extend time, including in particular … ‘the length of, and the reasons for, the delay’” (paragraph 37).

13. In [NAME] v [NAME] [2022] EAT 132, the EAT has held that, when considering whether it was just and equitable to extend the time limit for presenting discrimination complaints, or to grant an application to amend to add a further out of time discrimination complaint, the tribunal was entitled to weigh in the balance its assessment that the merits of the proposed complaints were weak. Strike out/deposit 14. Rule 38 of the Employment Tribunals Rule of Procedure 2024 provides:

38. Striking out (1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim). No reasonable prospects of success 15. In [NAME] [COMPANY] and anor 2001 ICR 391, HL, the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases. Discrimination claims are generally fact-sensitive, and it is a matter of public interest that they should be fully examined to make a proper determination.

17. In Abertawe Bro Morgannwg University Health Board v Ferguson [2013] ICR 1108 the EAT remarked that: “33. We would add this final note. Applications for strike-out may in a proper case succeed. In a proper case they may save time, expense and

Case Number: 6016961/2024 6 anxiety. But in a case which is always likely to be heavily fact sensitive, such as one involving discrimination or the closely allied ground of public interest disclosure, the circumstances in which it will be possible to strike out a claim are likely to be rare. In general it is better to proceed to determine a case on the evidence in light of all the facts. At the conclusion of the evidence gathering it is likely to be much clearer whether there is truly a point of law in issue or not…” 18. In [NAME] [COMPANY] [2017] EWCA Civ 1392 the tribunal’s decision to strike out a claim was upheld by both the EAT and Court of Appeal in circumstances where the claimant’s case was inherently implausible. [NAME] LJ said that a case should not be allowed to proceed on the basis of mere assertion, as follows (at 24): “[I]n a case of this kind, where there is on the face of it a straightforward and well documented explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced.'' Two stage process 19. The striking out process involves a two-stage test: first the grounds for striking out must be established; second, the tribunal should decide, as a matter of discretion, whether to strike the claim out or order that a deposit must be paid: HM Prison Service v Dolby [2003] IRLR 694 EAT at [15]. Witness evidence? Strike out: continuing acts of discrimination and time limits 20. In E v X, L, Z and L v X, Z, E UKEAT/0079/20/RN and UKEAT/0080/20/RN the EAT doubted that no evidence was required in a hearing that dealt with strike-out arising from a time point. The test that a tribunal must apply is whether the claimant has established a prima facie case. Where the Claimant has not dealt with time limits in their pleadings, it may be advisable for oral evidence to be called. What is the preliminary hearing to decide? 21. The distinction between time as a preliminary issue and strike out because there are no reasonable prospects of the complaint being within time was considered by HHJ Auerbach in [COMPANY] v Mrs K [NAME]/0149/19/RN.

22. In [NAME] v [COMPANY] [2025] EAT 103 HHJ Tayler confirmed that once an order is made fixing a Preliminary Hearing, it can generally only be varied if it is in the interests of justice to do so, such as where there has been a material change in circumstances. If a time point is determined as a matter of substance, it is a preliminary issue for the purposes of Rule 52. There needs to be clarity about whether the Tribunal is deciding

Case Number: 6016961/2024 7 time points substantively (for example, whether the complaints were brought in time, whether there was a continuing act and whether it is just and equitable to extend time) or deciding whether the complaint should be struck out because there are no reasonable prospects of the complaint being found to be in time. Deposit orders 23. Rule 40 provides:

24. In considering whether to make deposit orders, the Tribunal is entitled to have regard to the likelihood of a party being able to establish facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. In [NAME] v [NAME] of Kingston Upon Thames [2007] UKEAT/0096/07, [NAME] held: “…the test of little prospect of success…is plainly not as rigorous as the test that the claim has no reasonable prospect of success… It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response”;

Case Number: 6016961/2024 8 25. In Hemdan v Ishmail [2017] IRLR 228, [NAME] described the purpose of a deposit order as being: “…to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails.” Indirect discrimination 26. Section 19 and 19A Equality Act 2010 say: “19 Indirect discrimination (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if: (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. (3) The relevant protected characteristics are— … race…” 19A Indirect discrimination: same disadvantage (1) A person (A) discriminates against another (B) if— (a) A applies to B a provision, criterion or practice, (b) A also applies, or would apply, the provision, criterion or practice to— (i) persons who share a relevant protected characteristic, and (ii) persons who do not share that relevant protected characteristic, (c) B does not share that relevant protected characteristic, (d) the provision, criterion or practice puts, or would put, persons with the relevant protected characteristic at a particular disadvantage when compared with persons who do not share the relevant protected characteristic, (e) the provision, criterion or practice puts, or would put, B at substantively the same disadvantage as persons who do share the relevant protected characteristic, and (f) A cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim. (2) The relevant protected characteristics for the purposes of this section are— … Race …” Conclusions

Case Number: 6016961/2024 9 27. In deciding whether to order strike-out or a deposit, tribunals should have regard to the overriding objective of dealing with cases “fairly and justly”, set out in rule 3 of the Tribunal Rules 2024. This includes, among other things, ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, and avoiding delay. The overriding objective requires that the proportionality of the sanction must be at the forefront of the Judge’s mind, having regard to the relevant default, its effect on the other side, and whether a lesser sanction is available and appropriate. I am particularly aware that the Claimant in this case is a [NAME] and she has ADHD. Unfair dismissal 28. A mini trial should not take place. Taking the Claimant’s claim at its highest, she has more than little reasonable prospects of success – no Deposit Order is therefore appropriate. The matter should be properly heard at the final hearing. Direct Religion/Belief and Race related harassment in 2019 29. Race and Religion or Belief related harassment (Issue 9a and 12a). Discrimination is important but this is a historic allegation that should have been brought within 3 months and the Claimant has not given a valid reason as to why she did not bring a claim at the time. There is a large gap between this allegation and the next one (from 2019 – 2024) and they do not involve the same people who are alleged to have made the comment. The alleged conduct took place in December 2019. The Claimant has no reasonable prospect of showing that the complaint is conduct extending over a period of time or that she would persuade a Tribunal that it would be just and equitable to extend time. The threshold having been met I have decided to exercise the discretion to strike out the claim. This is one of those rare cases where strike out is appropriate, for the reasons set out above. Direct Religion/Belief and Race related harassment in 2024 30. Race or Religion or Belief related harassment or direct race discrimination (Issues 9b and c and 12b – c). Discrimination complaints are important and strike out is a tool of last resort. We are not yet at the stage where it would be appropriate to strike out due to prejudice to the Respondent given that disclosure has not yet taken place. While I sympathise with the Claimant as she says her working memory is not very good and she cannot remember who said the comments to her, it would not be fair for the Respondent to have to defend a claim where even the Claimant is not clear about who allegedly said the offending statements. The Respondent would not be able to properly defend the complaint. I have therefore decided to make an Unless Order (see Case Management Orders). The Respondent must disclose the full list of crew with their identifiers (so the Claimant can see how long each crew member had been in service) as part of disclosure. The Claimant must then specify within 14 days from receiving that list who she says made the comments alleged in Issues 9b and c and 12b – c. If she does not do so, or she is still

Case Number: 6016961/2024 10 not sure who said the things she alleges, the complaint(s) will be dismissed without further Order.

31. Further, I decline to strike out/ make a deposit order on whether it is just and equitable to extend time limits. Given the [APPELLANT] and personal circumstances at the time, she has more than “no” or “little” reasonable prospects of success of persuading a Tribunal that it would be just and equitable to extend time. I make no findings of fact in this regard, this task is properly left to the final Tribunal. Indirect race discrimination 32. The context of the investigation questioning is agreed between the parties. Numerous employees (including the [APPELLANT]) were investigated for receiving financial payments from a [NAME] in return for registering individuals as their Staff Travel beneficiaries. The original investigation was to consider the allegations of: (1) registering unknown individuals as staff travel concession beneficiaries and (ii) booking staff travel for individuals in return for gratuity or other monetary gain. In order to investigate the allegations the Respondent had to find out if the Claimant knew the people she had registered and what relationship she had with them. The Claimant’s complaint of indirect race discrimination is that she was “queried about the race, nationality, and heritage of [her] travel companions, asking if they were black (asking me if they were of Nigerian heritage and if they had a UK passport) registered companions”.

33. Initially I considered that the Claimant had no reasonable prospects of success in relation to this complaint because of the wording of s.19 of the Equality Act 2010 “in relation to a relevant protected characteristic of B's”. However, upon reflection, it is arguable that the Tribunal must have regard to the ECJ’s decision in [NAME] [NAME] C-38/24 under s.6 of the [NAME] (Withdrawal) Act 2018. However, it is the requirement that “it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it” and “it puts, or would put, [APPELLANT] at that disadvantage” that I have decided the Claimant has no reasonable prospect of succeeding in. Why does the alleged policy of asking about the nationality/race of those she had registered as her staff travel beneficiaries put black African Americans at a disadvantage? What disadvantage is she put at? It also does not work as a s.19A claim. What is the “same disadvantage”? There is no point in allowing hopeless complaints to continue. The threshold having been met, I have decided to exercise the discretion to strike out the complaint as it has no reasonable prospects of success. This is one of those rare cases where strike out is appropriate, for the reasons set out above. Indirect Sex Discrimination 34. The application to strike out/deposit the Indirect sex discrimination (Issues 24—27) is refused. I disagree with the Respondent that the PCP is not applied to [NAME] and the [NAME]. I disagree that it is an

Case Number: 6016961/2024 11 intersection between two practices as in [COMPANY] and anor v [NAME]. In this case the PCP is “Did the Respondent apply the PCP of including [NAME] and excluding Pilot and First Officers from the investigation and dismissal process?” The PCP is applied to both groups, although one benefits from being excluded from the investigation/dismissal process and one is disadvantaged by being included in scope for the investigation/dismissal process.

35. When thinking about the pool for comparison, both the [NAME] and the [NAME] have staff travel benefit. There has been an abuse of staff travel benefit and the Respondent decides to investigate (according to the Claimant) only [NAME], not [NAME]. If an employer could escape an indirect discrimination claim because they can choose a group to treat worse (or better) than another group and the other affected group are not within scope for comparison then it would undermine the protection afforded by the indirect discrimination provisions. In the equal pay context, a Tribunal found that a Union failed adequately to pursue women’s historic equal pay claims, had encouraged them to accept low back-pay settlements and had prioritised the interests of other members who required pay protection under the new pay structure. The EAT (although subsequently overturned by the Court of Appeal on objective justification who restored the Tribunal’s decision that the women had been indirectly discriminated against) discussed appropriate pools and the application of PCPs. [NAME] (P) held “…Similarly in our judgment it is perfectly sensible to say that the policy is being applied to those who are directly affected by it. It is not just an incidental or consequential effect but is the very object of the policy to secure greater protection for one group rather than another. If Mr [NAME] were right, it would equally be open to a union to say that the policy of differentiating between full and part timers in the process of negotiating was not a policy being applied to the part timers. That would be a bizarre conclusion. Nor would it be relevant that the part-timers were content to be less favourably treated.” [paragraph 64] [NAME] v [NAME] & Others [2007] UKEAT/0425/06 Approved by: Employment Judge Burge 11 February 2026 26 March 2026 Corrected Judgment sent to the parties on: 28 March 2026

Case Number: 6016961/2024 12 For the Tribunal Office: [NAME] judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/