Claimant v UK Direct Business Solutions Ltd
Outcome
Individual claims
The claimant confirmed at the preliminary hearing on 10 May 2024 that he was no longer pursuing this complaint. Employment Judge Eeley dismissed it because the claimant did not have the 2 years' service required.
LFT3 (requiring ID for data subject access request) was struck out for having no reasonable prospect of success as there was no evidence linking the Data Protection Officer's decision to sexual orientation. LFT1, 2, 4, and 5 were not struck out because the claimant asserted he would produce evidence of discriminatory behaviour in team meetings by decision-making managers, which if established could pass the burden of proof.
The tribunal found that commission payments were discretionary under the contract of employment and Commission Plan. The claimant had not yet met the caveats to trigger entitlement to legacy commission. Clause 9 of the Commission Plan provided that on termination of employment, there was no right to receive commission payments unless the respondent exercised its absolute discretion, which it had not done. The complaint had no reasonable prospect of success.
The respondent did not apply to strike out the wrongful dismissal complaint. It remains to be determined at a final hearing.
Facts
The claimant, who identifies as gay, was dismissed for gross misconduct relating to the NWL contract. He claimed he was treated differently from comparators (Ben Murphy and Michael Birch) because of his sexual orientation in being suspended, dismissed, required to provide ID for a data subject access request, sent a letter before action regarding restrictive covenants, and having commission clawed back. He also claimed unpaid legacy commission of approximately £15,000 withheld from August 2022, which he said would be payable if certain KPIs/caveats were met.
Decision
The tribunal struck out the complaint relating to requiring ID for the data subject access request (LFT3) because there was no evidence connecting the Data Protection Officer's decision to sexual orientation. It also struck out the unauthorised deduction of wages complaint because commission payments were discretionary under the contract and Commission Plan, and the claimant had not met the conditions to trigger entitlement. The remaining discrimination complaints (LFT1, 2, 4, 5) were not struck out because the claimant asserted he would provide evidence of discriminatory behaviour in team meetings.
Practical note
In discrimination strike-out applications, asserting facts about discriminatory behaviour by decision-makers (even if not yet evidenced) can be enough to resist strike-out, but a claimant cannot rely solely on being in a different protected characteristic group from comparators without 'something more'.
Legal authorities cited
Statutes
Case details
- Case number
- 2501699/2023
- Decision date
- 22 May 2025
- Hearing type
- strike out
- Hearing days
- 1
- Classification
- procedural
Respondent
- Sector
- energy
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Business Development Executive
- Service
- 2 years
Claimant representation
- Represented
- No