Employment Appeal Tribunal grants permission to appeal in race discrimination claims against a trade union

Arfan Khan is instructed for the Appellant and did not appear below.

The trade union represented by King’s Counsel opposes the appeal. 

HHJ Auerbach, sitting in the Employment Appeal Tribunal, granted permission to appeal against a decision of the Employment Tribunal which struck out the Appellant’s race discrimination claims against a trade union so that they did not proceed to a full hearing.

The underlying claim arises out of allegations concerning the withdrawal of trade union facility time and the subsequent handling of the Appellant’s grievance. The Employment Tribunal struck out the claims on the basis that they had no reasonable prospect of success.

HHJ Auerbach granted permission on the basis that the appeal is arguable. The appeal concerns the application of established principles governing strike-out of discrimination claims, in particular whether the Employment Tribunal was entitled, at a strike-out stage, to conclude that there were no material disputes of fact requiring determination at trial.

The EAT identified arguable issues including: (i) the treatment of the comparator relied upon by the Appellant; (ii) whether the documentary evidence sufficiently established the reasons for the delay in determining the grievance; and (iii) whether the withdrawal of facility time and the subsequent grievance delay were capable of forming part of a continuing course of conduct. 

The EAT also granted permission on a related limitation ground, concerning the Tribunal’s alternative finding that the facility time claim would in any event have been out of time and that it was not just and equitable to extend time. The Appellant contends that this was incorrect in light of his case that the matters formed part of a continuing act. The EAT considered that the Tribunal’s reasoning was sufficiently unclear to permit the ground to proceed.

The EAT has not determined the merits of the appeal, which will now proceed to a full hearing. 

8th Jun 2026

Arfan Khan

Call 2001