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||Neutral Citation Number:  EWCA Civ 1392
||Case No: A2-2016-1846
IN THE COURT OF APPEAL
||Courtroom No. 73
The Royal Courts of Justice
||18th July 2017
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE McFARLANE
THE RIGHT HONOURABLE LORD JUSTICE UNDERHILL
||MR ASHOK AHIR
||BRITISH AIRWAYS PLC
Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
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MR A ALLEN (instructed through the Bar Pro Bono Unit) appeared on behalf of the Appellant
MR A BURNS QC (instructed by Harrison Clark Rickerbys Limited) appeared on behalf of the Respondent
HTML VERSION OF JUDGMENT
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LORD JUSTICE UNDERHILL:
- This is an appeal from a decision of the Employment Appeal Tribunal (HH Judge Eady QC sitting alone) dated 15 April 2016 dismissing an appeal from a decision of Employment Judge Gumbiti-Zimuto. That decision was to strike out various claims brought by the appellant against the respondent.
- The essential factual background is helpfully summarised at paragraphs 4-7 of the decision of the EAT as follows:
'4. The Claimant had been employed by the Respondent as part of its ground staff on a series of fixed-term contracts. In 2013, he brought an ET claim against the Respondent, under the 2002 Regulations and of victimisation for having raised a grievance in respect of those complaints. The ET dismissed those complaints, and made an order for costs against him.
'5. From 8 October 2013, the Claimant was employed by the Respondent on a fixed-term contract to work airside as a ramp agent. In December 2013, he unsuccessfully applied to be made permanent. Unhappy with that outcome, on 15 January 2014, the Claimant raised a grievance, alleging he was not given permanent employment because of his earlier ET claim.
'6. On 18 January, an incident occurred involving the Claimant, as a result of which another employee made a complaint about him. At a meeting the next day, the Claimant made a complaint about the other employee, saying she had made comments amounting to racial harassment. He contended he was told the matter would be investigated but the Respondent said the Claimant withdrew the allegation and it was agreed no further action would be taken.
'7. On 28 January, the Claimant was suspended pending a disciplinary process and hearing, which ultimately resulted in his dismissal on 28 April 2014. The Respondent's explanation for the suspension was that, on 23 January, it had received an anonymous letter referring to the circumstances of the Claimant's departure from an earlier employer, Continental Tyres. The Claimant had submitted a CV to the Respondent stating he had been made redundant by Continental Tyres, but that was untrue; he had been dismissed for gross misconduct. On investigation, the Respondent found there were other discrepancies in the Claimant's CVs and concluded he had given false information in an attempt to gain employment. That went to trust and confidence and was, the Respondent said, the reason for the Claimant's dismissal. If so, that was likely - as the ET found - to amount to a proper ground for dismissal'.
The reference to "the 2002 Regulations" is to the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
- The appellant brought proceedings in the Employment Tribunal on 24 July 2014. His statutory claims were summarised at paragraph 17 of the employment judge's judgment under eight heads enumerated as (a) to (h). There was also a claim for wrongful dismissal. The claims that were struck out were those under heads (d), (e) and (f) – that may seem like three claims, though analytically it is probably four – which related to the disciplinary proceedings and the consequent dismissal. They were described in the employment judge's reasons as follows:
d. That on 28 January 2014 the claimant was suspended from his job. This a complaint of victimisation (section 27 Equality Act 2010) and detriment as result of raising a complaint under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
e. That on 25 March 2014 the respondent started disciplinary action against the claimant. This a complaint of victimisation (section 27 Equality Act 2010) and detriment as result of raising a complaint under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
f. That on the 28 April 2014 the claimant was dismissed by the respondent. This a complaint of unfair dismissal (Regulation 6 (1) Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, victimisation (section 27 Equality Act 2010) and detriment as result of raising a complaint under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
The claim for wrongful dismissal was also struck out. The strike-out was on the basis that the claims had no reasonable prospect of success: see rule 37(1)(a) of the Employment Tribunal Rules.
- It is convenient to say now that the remaining claims proceeded to a full hearing but were dismissed. It was unnecessary for us to see the Employment Tribunal's judgment and reasons on that part of the case, and we were not shown them.
- I will have to consider elements of the employment judge's reasoning in more detail later, but at this stage I will simply adopt Judge Eady's helpful summary at paragraph 10 of her judgment, which was as follows:
'The ET reminded itself that, as a general principle, discrimination cases should not be struck out, save in the very clearest circumstances. It concluded, however, that there was no prospect of the Claimant's case succeeding in respect of his dismissal because (I summarise) it was dependent upon assertions rather than facts and his contention that the Respondent was already aware of the false information in his CVs would not detract from the fact that it was false information and would establish cause for dismissal: on any case there were clear grounds for his dismissal and the facts on which the decision was taken were not contested. The Claimant's case rested substantially upon his unlikely assertion that the Respondent sent itself the anonymous letter to trigger an investigation that would reveal true information, of which it was already aware, as a justification for dismissal. That unlikely case could not be proved by the Claimant, and no evidence was identified that might put in doubt the Respondent's case. The dismissal claims had no reasonable prospects of succeeding and would be struck out'.
- On the appeal to the EAT the appellant's then counsel, Ms Barbara Zeitler (appearing pro bono), made various criticisms of the employment judge's reasoning which Judge Eady considered and rejected. It is not, however, necessary that I set out the details of Judge Eady's reasoning because inevitably the focus of the issues before us is on the reasoning of the employment judge. I will refer to some particular points as I go along. I should, however, set out her conclusion. Picking it up part way through paragraph 31, she said:
'31. … The Claimant was contending that the anonymous letter was a concoction, but it was not in dispute that its content was then considered by a further five managers, who each separately took the view that it warranted disciplinary action, ultimately resulting in the decision that the Claimant should be dismissed. For the Claimant's case to have any prospect of success, therefore, an ET would have to find that six separate managers had each permitted the background issues of the Claimant's protected acts to taint their decision making, although there was no evidential basis for stating that each of those managers was aware of those issues (those protected acts) and albeit that the Claimant had admitted that he had indeed falsified information on his CVs.
'32. Seeing the case in that way - and Ms Zeitler has not demonstrated that there is another way of seeing it - the Claimant's claims are, in my judgment, correctly to be described as fanciful. The Employment Judge put it slightly more politely as a claim founded upon unlikely and baseless assertion, but the conclusion reached - that this was a case that had no reasonable prospect of success, and here I stress the word "reasonable" - was one that I consider was (exceptionally) entirely permissible. This was a rare case that warranted a striking out at the preliminary stage, and I duly dismiss the appeal'.
- It is convenient to mention at this stage one point about how matters proceeded in the EAT. Mr Andrew Burns QC, who has appeared before us for the respondent, as he did at both stages below, produced to the Appeal Tribunal a copy of the judgment of the Employment Tribunal in the remaining parts of the claim, which had by then been decided. The appellant believed that that judgment was immaterial to any of the issues and sought a review under rule 33 of the Employment Appeal Tribunal Rules 1993 (as amended). Judge Eady refused a review, making it clear that she had not taken the judgment into account for the purpose of deciding the appeal and would have taken it into account only if it had become relevant to disposal had the appeal been allowed. Although this episode is complained of in the grounds of appeal, Mr Andrew Allen of counsel, who appears for the appellant (again acting pro bono), made it clear that no point was now taken on it since it was common ground between him and Mr Burns that the appeal must be decided by reference only to the materials that were before the Employment Tribunal. We proceed on that basis.
- Permission to appeal was given by Lewison LJ, though only by what he described as 'a very narrow margin'.
- The appellant's grounds of appeal are not signed by a lawyer, though it looks as though a lawyer may have been involved. They are somewhat discursive. A skeleton argument was drafted subsequently by Mr Carlo Breen of counsel. This too was a little discursive and identifies no fewer than 17 grounds of appeal. There is, however, a good deal of overlap between them, and they are essentially different aspects of a much smaller number of substantive points. Mr Allen acknowledged this, and I will focus on the case as developed in his excellent oral submissions.
- I start with the law. This was addressed by the employment judge at paragraphs 19 to 20 of his reasons where he said:
'19. I am reminded that as a general principle, discrimination cases should not be struck out except in the very clearest circumstances. The respondent contends that this case is one of those rare cases where the circumstances justify such an order being made.
20. The claimant has produced written submissions which I have taken into account. The claimant has also stated that it is not appropriate in this case to strike out the dismissal claims as they involve allegations of discrimination which are fact sensitive and not appropriate for strike out order.'
- Mr Allen said that that was inadequate. He referred to us to the well-known decisions of the House of Lords in Anyanwu v South Bank Student Union  UKHL 14,  ICR 391, and of this court in Ezsias v North Glamorgan NHS Trust  EWCA Civ 330,  ICR 1126. In Anyanwu he referred us to the speech of Lord Steyn at paragraph 24, where he said:
'For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.'
He also referred us to the speech of Lord Hope, who said, at paragraph 37:
'I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence.'
In Ezsias he referred us to paragraphs 29 and 32 of the judgment of Maurice Kay LJ, in which he adopted the observations of Anyanwu in the whistleblower context and said, at paragraph 29:
'It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level'.
Those are the two cases at House of Lords or Court of Appeal level in which the issue is addressed as one of principle, though we were also referred to the decision of this court in A v B & C  EWCA Civ 1378 in which Ezsias in particular was followed and applied. There are numerous decisions of the EAT to which I need not refer.
- Mr Allen also referred us to the decision of the Inner House in Tayside Public Transport Company Ltd. v Reilly  CSIH 46,  IRLR 755. At paragraph 30 of his judgment the Lord Justice Clerk said this: 'Counsel are agreed that the power conferred by rule 18(7)(b)' – I interpose to say that that is the predecessor of the current striking-out rule – 'may be exercised only in rare circumstances'. He then referred to the decision of the EAT in Balls v Downham Market High School and College  UKEAT 0343/10,  IRLR 217. He continued:
'In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts (ED & F Man Liquid Products Ltd. v Patel  24 LS Gaz R 37, per Potter LJ at paragraph 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions (ED & F Man Liquid Products Ltd. v Patel, supra; Ezsias v North Glamorgan NHS Trust, supra). But in the normal case where there is a "crucial core of disputed facts", it is an error of law for the Tribunal to pre-empt the determination of a full hearing by striking out.'
- Mr Allen said that the employment judge should have referred specifically to those authorities, or at least to Anyanwu and Ezsias, and that his summary of the relevant law did not reflect the height of the threshold that it is necessary to cross in this kind of case. For example, the judge did not use the phrase 'the most exceptional circumstances' which appears in Tayside, nor did he identify the fact that this was a case where the 'central facts' were in dispute and the particular caution to be exercised in such a case which in Ezsias Maurice Kay LJ said was necessary.
- I do not accept that submission. It is common ground that the employment judge was referred to both Anyanwu and Ezsias. Paragraphs 19 and 20 of his reasons show that he had their essential principles well in mind. It is no error of law not to refer to them by name, nor was it necessary for him to repeat particular phrases from them. The only essential phrase is that in rule 37(1)(a) of the Employment Tribunal Rules.
- Mr Burns made a further point in this regard. He submitted that, although the threshold set by cases like Anyanwu and Ezsias is indeed high, it is not quite as high as Mr Allen contended. He pointed out that in Anyanwu Lord Hope, having struck the cautionary note to which I have already referred at paragraph 37 of his speech, nevertheless went on at paragraph 39 to say:
'Nevertheless, I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to [sic] taken up by having to hear evidence in cases that are bound to fail'.
Mr Burns emphasised the important point of policy reflected in that second sentence. Likewise, in Ezsias Maurice Kay LJ had begun his consideration of this issue at paragraph 25 of his judgment by pointing out that the test of 'no reasonable prospect of success' was lower than the test in the previous versions of the rule of whether a claim was 'frivolous' or had 'no prospect of success'. He also at paragraph 27 said this: 'I too accept that there may be cases which embrace disputed facts but which nevertheless may justify striking out on the basis of their having no reasonable prospect of success.' Mr Burns also referred to the ED & F Man case which was cited by the Lord Justice Clerk in Tayside.
- There is force in Mr Burns's point. Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be 'little reasonable prospect of success'.
- I turn therefore to the application of those principles in the particular circumstances of this case. I have already quoted Judge Eady's summary of the reasoning of the employment judge, but I should put a little more flesh on those bones. It was common ground that the anonymous letter which, on the face of it, led to the investigation and ultimately the appellant's dismissal was addressed to the BA HR department and received on 23 January 2014. There is then a series of self-evidently genuine internal documents showing how the HR department followed up the allegations made in that letter, principally by taking copies of the judgments of the EAT and the Employment Tribunal, which established the circumstances of the appellant's departure from Continental Tyres, and then by activating the investigatory and disciplinary process. That involved various different employees from the legal department in making the necessary enquiries, including a Mr Deol to whom I will come back, and culminated in the disciplinary hearing which was before a BA manager who had no previous involvement, and an eventual appeal, also involving two further BA employees with no previous involvement.
- For present purposes – though if the case proceeded this might give rise to an interesting point of law – Mr Burns accepted that it was enough if the appellant could prove that any one of the individuals involved in the process was motivated to a significant extent by his having done any one of the three protected acts on which he relied – that is to say, bringing the 2013 proceedings, the grievance of 15 January or the complaint of 19 January arising out of the incident on the previous day. On the face of it, none of the relevant individuals had any knowledge of those matters, let alone was motivated by them. On the face of it, this was a case of dismissal for the dishonesty involved in the appellant having submitted a CV which gave a false account of the circumstances of his departure from Continental Tyres.
- I have, of course, twice used the phrase 'on the face of it'. That invites the obvious riposte that the whole problem with a strike-out is that the appellant has no chance to explore what may lie beneath the surface, in particular, by obtaining further disclosure and/or by cross-examination of the relevant witnesses. I am very alive to that. However, in a case of this kind, where there is an ostensibly innocent sequence of events leading to the act complained of, there must be some burden on a claimant to say what reason he or she has to suppose that things are not what they seem and to identify what he or she believes was, or at least may have been, the real story, albeit (as I emphasise) that they are not yet in a position to prove it.
- The appellant picked up that gauntlet. It was his case, advanced in his particulars of claim and also in correspondence with the Tribunal prior to the strike-out hearing seeking disclosure of documents and telephone records, that a BA employee in the legal department, Mr Navdeep Deol, was already aware of the circumstances of the appellant's departure from Continental Tyres and had a copy of the Employment Tribunal judgments; that he had in that knowledge sent the anonymous letter to the HR department; and that he was motivated by one or more of the protected acts. There was, as he put it, 'a well-laid plan' to get rid of him as a troublemaker. All this was summarised by the employment judge at paragraph 16 of the reasons and to some extent also in paragraph 21.
- That "case theory" is not only speculative but highly implausible. The appellant says that it is supported by the coincidence of timing – that is, that the letter was received so soon after the two incidents of January 2014 – and that the speed with which it was responded to was also suspicious. It was 'as if they were expecting it'. These are not in the least cogent points. It is possible there was indeed some connection between the incident on 18 January and the sending of the letter – that is, it may well have been sent by someone involved in that incident or associated with them – but that is very different from saying that there was reason to believe it was Mr Deol who had sent it. There is nothing in the least surprising in BA treating seriously an allegation that an employee, especially one with airside clearance, has been dishonest in the account given of the circumstances in which they left their previous employment.
- After reviewing all that material, the employment judge at paragraph 22 of his reasons said this:
"Having considered the material currently me before and having considered what the claimant accepts was correct and what he puts forward as a challenge to the respondent's stated case I am unable to conclude that there is any prospect of success. There were clear grounds for dismissal of the claimant. The matters upon which they are based are not contested, i.e. the provision of a CV containing false information as to the reason for the termination of the claimant's employment with Continental Tyres. The claimant's case appears to rest substantially on the assertion that the respondent sent itself the anonymous letter to trigger an investigation which would reveal true information of which the respondent was already aware as a justification for dismissing. This unlikely assertion cannot be proved by the claimant or evidence identified which might put in doubt the respondent's case."
- Mr Allen criticises the use of the word 'unlikely' at the end of that passage. He says that 'unlikely' is not enough. It might perhaps justify the making of a deposit order, but it is not the same as a finding that the claimant had no reasonable prospect of success. Likewise, it was unfair to rely on the absence of 'evidence' at this stage. The stage for evidence had not yet arrived. I do not believe that that is a fair criticism of the paragraph in question. In my view, it is clear, reading it as a whole, that the employment judge did indeed, and wholly unsurprisingly, find that there was no reasonable prospect of an Employment Tribunal accepting the basis on which the appellant's case was being advanced. That was partly because of its inherent implausibility, which is no doubt what he had in mind by the reference to likelihood, and partly because the appellant could point to no material which might support it, which is all I think that is meant by the phrase 'evidence identified'.
- Mr Allen submitted that in some ways the appellant's focus on Mr Deol having himself produced the anonymous letter was a 'distraction'. The ultimate focus should have been not on the appellant's own beliefs about what happened but on the reasoning of the decision-makers, which might well have been motivated by the protected acts even if the appellant's particular theory about how that came about was misconceived. I do not accept that. As I already said, in a case of this kind, where there is on the face of it a straightforward and well-documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced.
- Mr Allen also placed some reliance on the decision in this court in A & B, to which I have already briefly referred, which involved a factual situation which is superficially not dissimilar. However, each case must turn on its facts. An important distinction between that case and this, as Mr Burns pointed out, was that there one or more of the same actors was involved both in the impugned decision and in the earlier events which gave rise to the protected acts, so that there was a real basis on which contamination of the latter decision might reasonably be suspected: see in particular paragraphs 57 and 58 of the judgment of Lloyd LJ.
- For all those reasons, I do not believe that this experienced employment judge was wrong to reach the conclusion that the claims which he struck out had no reasonable prospect of success or therefore that the equally experienced judge in the EAT was wrong to uphold his decision.
LORD JUSTICE McFARLANE:
- I agree. Therefore, for the reasons that My Lord has given, this appeal must be dismissed.
End of Judgment
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