Flexible working dispute: some discrimination claims survive strike-out

What this case shows

This case illustrates the hurdles employees face when bringing multiple claims after a short period of employment. The former employee, who worked for Marks and Spencer for less than two years, saw several of his claims struck out at a preliminary hearing because they had no reasonable prospect of success. The tribunal focused on whether his flexible working requests were linked to his dismissal and whether discrimination played a role.

What could have been done differently

The tribunal found that the claims for unfair dismissal and breach of contract relating to flexible working were unlikely to succeed. For the unfair dismissal claims, the employee's short service (under two years) meant he could not claim ordinary unfair dismissal, and the automatic unfair dismissal claim failed because there was no evidence that the flexible working request was the reason for dismissal. The breach of contract claim regarding flexible working was also weak because the contract did not guarantee a particular working pattern.

However, the discrimination and victimisation claims survived, albeit with deposit orders. The tribunal noted that the employee's allegations of race and religion discrimination, harassment, and victimisation had some basis, but many individual allegations had little reasonable prospect of success. The deposits required are small (£12.50 to £25 per allegation), but they serve as a filter to discourage weak claims.

Why this matters

This case is a reminder that tribunals will rigorously test claims at an early stage. Employees should focus on their strongest claims and ensure they have evidence to support each allegation. For employers, the case shows that even when many claims are struck out, discrimination allegations can still proceed if there is a factual basis. The decision also highlights the importance of clear documentation, as the absence of an employment contract hindered both parties.