EAT Report: Strike Out and Discrimination Claims

St Philips Chambers reception
Written by:

Janita Patel


Can a tribunal strike out a direct discrimination or harassment claim in which the employee alleges that the employer behaved deceitfully and unreasonably?

Possibly, held the Employment Appeal Tribunal in Morgan v DHL Services Ltd, but not without specifically examining or sufficiently explaining whether such allegations might shift the burden of proof.

Mr Morgan, a fork-lift truck operator at DHL, brought claims against his employer under the Equality Act 2010. His claim form included assertions that management had deliberately advanced false accusations of misconduct against him on two occasions and unfairly proceeded with a disciplinary hearing in his absence. At a preliminary hearing, the employment tribunal struck out the claims on the basis that, taking the claims at their highest, Mr Morgan had failed to shift the burden of proof.

The EAT overturned the strike-out decision and held that the alleged false accusations of misconduct and unfair handling of the disciplinary process might provide the building blocks for an arguable case. The tribunal should have engaged directly with these points and explained what effect they had on Mr Morgan’s ability to meet his burden of proof. However, the EAT could not conclude that there was only one correct outcome and so remitted the matter to a different tribunal.

Joel Wallace acted for the successful Appellant.

Written by Janita Patel