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Tribunal could strike out disability discrimination claim where no evidence employer knew of disability

The EAT has upheld an employment tribunal's decision to strike out a claim of direct disability discrimination where there was nothing to indicate that those who interviewed the claimant had any knowledge, or could be imputed with knowledge, of his disability.

Although discrimination claims are fact-sensitive and strike-out is a "draconian step" that should only be taken in exceptional cases, the EAT upheld the strike-out on the basis that the claim had no reasonable prospect of success. The mere fact that there are unresolved factual issues does not automatically mean a case should proceed. 

Taking the case at its "reasonable highest", the EAT held it could not succeed, even though it was theoretically possible that one of the respondent's witnesses might admit to discrimination under skilful cross-examination. It would be wrong in principle to allow an apparently hopeless case to proceed purely in the hope that "something may turn up" during cross-examination. (Patel v Lloyds Pharmacy Ltd UKEAT/0418/12.)

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