Weak claims and the power to strike out
Employers who face weak claims involving allegations of discrimination or victimisation often ask: ‘surely we can get the Tribunal to strike the claim out?’.
We understand and sympathise: when you know a decision has not been taken because of a prohibited characteristic – such as race, gender or disability – it is frustrating to be put to the inconvenience and the cost of defending it.
Common sense suggests that the justice system should be able to strike out weak claims without the need for a full hearing and a lot of evidence.
But this seldom happens: why?
The reason is that discrimination claims are ‘fact sensitive’: it is rare that a claim can be safely judged to be ‘misconceived’ without the need for the allegation to be fully aired and the evidence carefully examined. This is deemed to be a matter of public interest.
If the essential facts of the case are in dispute then the Tribunal must hear the evidence and cannot simply judge the claim to be weak and strike it out.
We advise clients that the best way to avoid these types of claims is to ensure that when difficult decisions are taken (e.g. in a case involving dismissal), the reasons for the decision are pressure tested to ensure they are cogent and credible, and those reasons are carefully explained to the employee.
It takes time and care to do this: but the effort is worth it.