In 2001, the House of Lord held that in Anwanyu that there is a public interest in discrimination claims being fully heard. They should not be struck out. Despite this, it is fashionable for employers to attempt to strike out discrimination claims at a Preliminary Hearing on the grounds that they are doomed to fail. The new procedural rules encourage this as do the Tribunals themselves. Moreover the early knock out blow is a tempting prospect, promising a huge saving in managerial time.  Against this background the judgment of Judge Serota QC in QDOS Consulting v Swanson [2012] represents something of a reality check. Judge Serota points out that where such an application reveals a substantial factual dispute it will almost certainly fail. Likewise where it involves wading through large quantities of documents.  And an alleged need for oral evidence is likely to be self defeating demonstrating only that there is a real dispute which needs a final hearing.

The judge’s conclusion is striking:

Where there are real factual disputes the parties should prepare for a full hearing rather than dissipate their energy and resources and, I would add, of Employment Tribunals,  on deceptively attractive shortcuts.

Indeed Respondents who waste resources in this way may find themselves facing a costs application.