The Claimant, who is black, was subject to a Performance Improvement Programme (PIP) which was never completed as the Claimant resigned. She brought claims of disability discrimination, direct race discrimination, harassment and victimisation, mentioning an incident where her manager used the words bounty bar and coconut (meaning a black person with white behaviour) towards her a few months earlier. The manager calling the Claimant a coconut was not relied upon by her as an act of race discrimination but as evidence of the reason why she put the Claimant on a PIP, which was the subject of the race discrimination claim. However, the ET said that reading the particulars of claim as a whole the allusion to race discrimination was very light. The ET struck out her claims as having no reasonable prospect of success because "there was no white comparator and it was not easy to see how this could be race discrimination". The Claimant appealed.

The EAT allowed the appeal in respect of the race discrimination claim. The EJ erred in not considering that it was arguable that an ET should consider how a hypothetical white comparator would be treated in the circumstances and that on the basis of allegations in the ET1 it could not be said that the claim of race discrimination should be struck out as having no reasonable prospect of success. The victimisation decision was upheld.