Tribunal Error: Sex and Age Discrimination Claim Strike-Out Overturned
The Employment Appeal Tribunal overturned a decision to strike out sex and age discrimination claims, finding the original tribunal erred in its assessment of the claimant's case.
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Employment Appeal Tribunal Overturns Discrimination Claim Strike-Out
The Employment Appeal Tribunal (EAT) has allowed an appeal by Ms A Kostrova against McDermott International Inc and CB&I UK Ltd, overturning a previous decision to strike out her claims of sex and age discrimination. The original Employment Tribunal had ruled that her claims had no reasonable prospect of success.
Lord Fairley, presiding over the EAT, found that the original tribunal had made several critical errors. These included failing to fully recognise the scope of Ms Kostrova's pleaded case, wrongly concluding that the material facts of her discrimination complaints were undisputed, and failing to consider her complaints at their highest possible level.
Key Findings of the Appeal
The EAT highlighted that the initial tribunal did not accurately reflect the contents of Ms Kostrova's ET1 form (the claim form submitted to the Employment Tribunal). The EAT stated that it was clear from the ET1 that Ms Kostrova was complaining about a discriminatory dismissal based on her sex and/or age, alongside a discriminatory difference in pay due to her age.
The Tribunal's decision to strike out the claim was partly based on it's decision that the 'main facts of the case were not in dispute'. The EAT disagreed with this, finding that there was a genuine dispute about the reason for the dismissal and that the Employment Tribunal, therefore, could not strike out the claim.
The Case Remitted
As a result of these errors, the EAT allowed the appeal and has remitted the case to a different Employment Tribunal to hear the discrimination complaints on their merits. This means that Ms Kostrova will now have the opportunity to present her case fully before a new tribunal.
The EAT noted that Ms Kostrova previously withdrew her claim under the equality clause. Given the terms of section 70 of the Equality Act, she will not be able to argue that any difference in pay between her and NV was on the ground of sex. However, she can still argue that her age played a part in any difference in pay.
The case highlights the principle that discrimination claims should not be struck out except in the clearest of circumstances.
Read the entire judgement here: Ms A Kostrova v McDermott International Inc & CBI UK Ltd [2025] EAT 35
