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The appellant employees (G) appealed against a decision striking out their claims for direct disability discrimination by the respondent employer (F).
G were both long-serving employees of F. Each was disabled within the meaning of the Disability Discrimination Act 1995 s.1. Each lodged claims for disability discrimination and their particulars of complaint described a detriment in terms of reduced pay as a result of their being moved from a double day shift pattern to a day shift pattern in common with each other and other restricted workers, some of whom were disabled and some whom were not. At a case management conference the nature of G's claims were identified to be complaints of direct discrimination to be brought under s.3A(5) of the Act. F then applied for an order to strike out G's claims on the ground that they had no reasonable prospect of success. The employment judge concluded that it was accepted by G that the group of restricted workers included those who were not disabled or suffered from different disabilities, and thus G could not establish less favourable treatment under s.3(A)5. G's claims were therefore struck out. On F's application for costs, the employment judge concluded that G's claims were wholly misconceived, that G’s representative had failed to properly consider the relevant legal provisions and she therefore ordered G to pay a proportion of F's costs, which she assessed having taken into account G's means.
HELD: (1) The employment judge correctly approached the striking out application by considering whether on the face of G's pleaded case there was no reasonable prospect of success. G had no prospect in pursuing a claim for direct discrimination in light of their acceptance in their claim forms that the detriment complained of was visited on all members of the relevant group of restricted workers, some of whom were disabled within the meaning of the Act and some who were not. It was absolutely clear that the treatment afforded by F was afforded indiscriminately to G and their potential comparators. (2) It was clear that the employment judge had considered whether or not to exercise her discretion to order costs and in doing so took into account the conduct of proceedings. It was clear that G's claims were misconceived, that the claims were conducted unreasonably by G's representative and in those circumstances the discretion to order costs was triggered. The employment judge also took into account, although not strictly mandated to, G's means and reached a conclusion that could not be impugned.