To strike out or not to strike out?

In the recent case of Arriva London North Ltd v Maseya, the Employment Appeal Tribunal (EAT) held that a party’s case should only be struck out in exceptional circumstances.

Mr Maseya has monocular vision and was found to be disabled within the meaning of the Equality Act.  When he applied for the role of a PSV fitter with Arriva, the recruitment agency refused to forward his application on as he did not hold a PCV licence (or the potential to obtain one once employed).

Mr Maseya alleged that the requirement to hold a PCV licence amounted to a PCP that indirectly discriminated against him as it put him (and others with his disability) at a substantial disadvantage because they were prevented from applying for the role.  He subsequently brought claims against Arriva for failure to make reasonable adjustments and indirect disability discrimination.

In responding to the claim, Arriva argued that the requirement to hold a PCV licence was an essential part of the role and that Mr Maseya was treated in the same way as other non-disabled people.  However, when asked by the tribunal, it was not able to confirm whether all engineers held a PCV licence and in fact accepted that some did not.  It also transpired that Arriva had failed to disclose a document listing engineers without PCV licenses.

Arriva’s attempt to amend its defence failed and the tribunal struck out its case after finding that it had pursued a “false defence” and failed to comply with its duty to disclose.  Mr Maseya was awarded compensation of just over £11,000 together with costs of £12,000.

The decision was set aside on appeal and the case was sent back to be heard by a fresh tribunal.  The EAT held that the tribunal’s conclusion that a fair trial was no longer possible was based on the fundamental misunderstanding of the case.  It also found that there was no basis for a conclusion that there had been a deliberate non-disclosure of relevant documents and there was no reason why disclosure could not be dealt with at the hearing.  The case reinforces the high threshold that should be applied when considering strike out  and that tribunals need to assess whether any lesser, more proportionate sanction, is appropriate.

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