Thread by @JasonBraier

🧵 Kaul v MoJ: A useful example of the EAT upholding a merits strike out - here of EqA claims brought by a circuit judge in respect of the conduct of grievance procedures. It also contains important clarification re objectivity of detriments.
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#ukemplaw

2/ K is a circuit judge. She raised 2 grievances, 1 against 3 fellow Judges, a 2nd against 3 members of HMCTS staff. The judicial grievance was dismissed by #ukemplaw legend Sir Patrick Elias. The staff complaint was dismissed as out of time under policy by 2 senior HMCTS execs.

3/ C's ET claims focused on the way her grievances were handled, & the HMCTS grievance conclusion that it was out of time. The bases of the ET complaints are set out below, but basically she asserts that procedural matters & decisions were EqA breaches on various grounds.

4/ The Rs applied to strike out K's claims. They substantially succeeded, with the EJ striking out all save the 4th basis of claim, namelyHMCTS subjected her to victimisation, indirect discrim, FTMRA & discrim arising from disability by not considering her grievance on the merits

5/ The EAT dealt with the struck out claims issue by issue. 1st was K's complaint re the time the grievance took. The EJ found the length of time not a detriment. K argued it's possible for a claimant to reasonably consider it a detriment when a grievance took 8 months.

6/ Swift J disagreed, noting from Shamoon that what amounts to a detriment for a victimisation claim is a wholly objective exercise, & that to the extent that the EAT decision in Warburton v Northants Police suggests otherwise it cannot stand.

7/ When K raised the possibility on appeal of unlawful motivation in the delay in the grievance process, Swift J noted it formed no part of K's pleaded case, & that in taking K's case at its highest, an EJ need not speculate on a case K might have advanced but hadn't.

8/ In general terms, the EAT noted a merits strike out isn't limited to claims that can't succeed as a matter of law, but also on the facts. Whilst there should be caution, it's sometimes clear already that there's no substance to factual assertions or inferences.

9/ Applying those tests, the EAT held EJ Snelson entitled to assess the facts on timing of the grievance (on which the parties were not in dispute) and to reach conclusions on whether the prospects threshold was met.

10/ The weakness of K's claims is exemplified by her assertion it was victimisation, indirect discrim, discrim arising & FTMRA to write to K pointing out her grievance might be out of time under HMCTS policy & asking her to justify why it shouldn't be treated as such.

11/ It will come as little surprise that EJ Snelson held this unsustainable & unmeritorious claims reliant on a perfectly normal and understandable letter. The EAT took the same view, & could find nothing detrimental in it, nor any prematurity in the EJ's findings about it.