The EJ struck out the Claimant's claims of race discrimination at a preliminary hearing on the basis that in relation to the evidence he had heard and the documents produced, he found that the claims of the Claimant had no reasonable prospect of success. They were lacking in any substance and there was no evidence that a tribunal could find that any of them could have been due to race discrimination. The Claimant appealed, contending that the Employment Judge erred in determining the strike out application in a way that was a trial of the Full Hearing. It was more than a mini-trial as the Claimant gave evidence and was cross-examined over two days. The EJ reached his conclusion without hearing evidence from the Respondents or enabling the Claimant to test it. In effect, it was said that the EJ conducted a mini-trial without the balance which would be expected of a Full Hearing.

The EAT allowed the appeal. The EJ erred in proceeding on the basis that the facts of the case before him were largely not disputed. What was at the heart of the claims was the reason for the Respondent's actions.