No Reasonable Prospect of Success 2 | Employment Law Advocates London

Very weak claims are bad for everybody. They clog up the tribunal system and generate costs for employers who have to defend them. Employment judges can protect employers by making the employee pay a deposit, with the result that an award of costs is likely if he or she loses. If costs are awarded against the employee, he or she will probably wish the claim had just been struck out in the first place, which is probably what everybody else also wanted at the time.

Such consequences probably go some way to explaining the recent decision of the Employment Appeal Tribunal in Community Law Clinic v Methuen, a case in which two weak-looking discrimination cases were indeed struck out, although a third one was allowed to proceed to hearing. The basis for the decision was that the claimant had no evidence to support his claims of discrimination, save that he was of a different sex and race to the person who replaced him following his dismissal, there being no doubt that this is not sufficient to make out his case.

However, as I said in a post in March, it is not quite that simple. The problem is that it is impossible to determine discrimination claims without hearing evidence and especially before disclosure has taken place. It sometimes happens that an employee begins with no more than a hunch that discrimination has taken place and it is only after the full story emerges from the employer that it becomes clear that this hunch is justified. Therefore, it is not appropriate to test the merits of a case only on the way in which it is initially formulated by an unrepresented party.

There is an irony here in that the claimant has probably made a tactical blunder. If he thinks that he has been discriminated against on the grounds of his age, it does not help him to argue race and sex in the alternative. In fact, it makes it look like he has no idea why he was dismissed. He also makes more work for himself which will inevitably mean that he will have less time to concentrate on the stronger parts of his case. Even though there is a chance that evidence of discrimination will emerge as the case progresses, this chance is small and is greatly outweighed by the benefits of taking a much more streamlined approach.

None of this justifies a strike-out but it does suggest an alternative solution. If claimants were given access to free legal advice in the early stages of a case, they are more likely to voluntarily withdraw weaker claims, which distract from stronger ones and which ultimately cause frustration for everybody. Litigants in person cannot be expected to know when following up a hunch has a genuine chance of yielding results and when it does not. This is a skill which can only be developed with experience and it would save the tribunal system a fortune if the benefits of this experience were made available to them, regardless of means.

In the meantime, Mr. Methuen would stand a pretty good chance if he were to appeal the decision in his case to the Court of Appeal. On the other hand, he would probably be better off both financially and psychologically if he did not.