Some employers worry about taking action to address capability issues, for fear that the staff member will claim that the treatment was discriminatory because of a ‘protected characteristic’ under the Equality Act 2010 (though we all share at least some of those protected characteristics).
However the recent decision in Community Law Clinic Solicitors Ltd v Methuen in the Employment Appeal Tribunal will be of some consolation. In that case, Mr Methuen (a 53 year old Asian lawyer) was dismissed for not meeting billing targets. His replacement was a much younger female solicitor of Afro-Caribbean origin. Mr Methuen claimed discrimination on the grounds of race, sex and age, but set out no real basis in fact for the claim other than the differences in age, race and sex between him and his replacement.
CLC applied to have the claim struck out on the basis that there was no reasonable prospect of success, and the EAT agreed (although an admittedly flimsy age claim was allowed to continue). It was wrong for Mr Methuen to effectively argue 'unless I am replaced by a man of Asian ethnic origin who is 54 years old or very close to it indeed there is a prima facie case of discrimination and the burden of proof shifts to the employer to rebut it'.
In this case CLC were saved the majority of the expense and disruption of defending the claim at a full hearing, but still had to take the matter to the EAT. The fact is though that many Tribunal Judges will be reluctant to strike out a claim before a full hearing, and this decision, though welcome, may not have wide application.
James Carmody
RECULVER SOLICITORS
Tel: 0207 324 6271
Fax: 0207 477 2276
info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ*
www.reculversolicitors.co.uk
www.kent-employment-solicitors.co.uk
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