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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Javed v. Blackpool Teaching Hospitals NHS Foundation Trust [2017] UKEAT 0135_17_0112 (1 December 2017) URL: https://www.bailii.org/uk/cases/UKEAT/2018/0135_17_0112.html Cite as: [2017] UKEAT 0135_17_0112, [2017] UKEAT 135_17_112 |
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At the Tribunal | |
Before
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR EMMANUEL SHEPPARD (of Counsel) Bar Pro Bono Scheme |
For the Respondent | MR SIMON GORTON (One of Her Majesty's Counsel) Instructed by: Weightmans LLP 100 Old Hall Street Liverpool L3 9QJ |
SUMMARY
RACE DISCRIMINATION
PRACTICE AND PROCEDURE - Striking-out/dismissal
The Employment Appeal Tribunal ("the EAT") allowed the appeal of the Appellant, who was the Claimant before the Employment Tribunal ("the ET"). The ET had struck out, or ordered the Claimant to pay deposits in relation to, his allegations that the Respondent had discriminated against him because of his race. The EAT held, for the reasons given in its Judgment, that the ET had erred in law in five principal respects in making the strike-out and Deposit Orders.
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
"Factual Background
13. The claimant describes himself as a British person of Pakistani origin. He was employed as the Directorate Manager of General Surgery by the respondent Trust from 7 October 2013 until his dismissal with effect from 29 May 2015. He had been in NHS employment elsewhere since July 2009. Performance concerns were raised by his line manager, Mr Kent, in February 2014 which the claimant regarded as not genuine. He pursued a grievance about this matter in February 2014 and went off sick with stress on 11 March. He had not returned to work by the time of his dismissal. In the course of the grievance process he raised allegations of race discrimination. His grievance was rejected at the end of October 2014 and an appeal against that decision was rejected in February 2015. The respondent then followed its capability procedure which resulted in the dismissal of the claimant.
14. The claimant brought proceedings in the Employment Tribunal and in due course set out further particulars of his direct race discrimination claims in a schedule. The respondent's additional response responded to the claimant's 47 particularised allegations."
The Law
"5. …
'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.'
…
19. 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.
20. 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.
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."
"25. Maurice Kay LJ gave as an example a case where the facts as asserted by the applicant were totally inconsistent with the undisputed contemporaneous documentation. It is also to be noted that in that case the Employment Tribunal had, prior to making the strike out order, indicated that subject to the question of means, the case would be an appropriate one for a deposit to be made. No such order was in the event made because the strike out order disposed of the case altogether. However, the Court of Appeal noted that the possibility of a deposit under rule 20 remained open and they made it plain that that would have to be considered afresh by a tribunal, but that they were not "indicating any view of the ultimate merits of this case one way or the other". The Court was clearly acting on the assumption that the power to order a deposit could in principle be exercised where the Tribunal had doubts about the inherent likelihood of the claim succeeding.
26. Ezsias then demonstrates that disputes over matters of fact, including a provisional assessment of credibility, can in an exceptional case be taken into consideration even when a strike out is considered pursuant to rule 18(7). It would be very surprising if the power of the Tribunal to order the very much more limited sanction of a small deposit did not allow for a similar assessment, particularly since in each case the tribunal is assessing the prospects of success, albeit to different standards.
27. Moreover, the test of little prospect of success in rule 20(1) is plainly not as rigorous as the test that the claim has no reasonable prospect of success found in rule 18(7). It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response."
"4. The Chairman found that the various claims had little prospect of success and ordered a deposit of £100 as a condition of the Appellant being permitted to continue to take part in the proceedings. That was an order made on 15 June 2006. When giving reasons, the Chairman noted that the Appellant was working part time as a psychotherapist. She also indicated that she had had regard to the submissions of the Council which were as follows:
"The Respondent submitted that the claims are weak and unclear. The Claimant demonstrated her difficulty in articulating them at the hearing. The equal pay claims were hopeless and her allegations of sex and race discrimination were not made during the course of her employment. The Claimant is seeking re-engagement which undermines her claim of constructive dismissal. The Claimant herself put forward the first Respondent for a diversity award on the ground that it was a leader in this field."
The ET's Decision
The Respondent's Case
The Claims which the Employment Judge Struck Out
"172. … In my judgment the claimant has, some considerable time after submitting the grievances, taken the view that he was not treated in the same way as, or less favourably than, his white colleagues and so his treatment amounted to discrimination because of race. There does not appear to me to be anything to connect the matters complained of with the protected characteristic of race."
The Claims in Relation to which the Claimant was Ordered to pay a Deposit
"178. … seems to be complaining generally of the way in which he was treated by the respondent without reference to race. Looking at the complaints and the responses they seem to be allegations where the claimant believes he was treated differently from others but with nothing to suggest that the treatment was because of the protected characteristic of race. …"
The EJ held that allegations 26, 33, 39, 40, and 42 to 47 had "little reasonable prospect of success". He decided that the Claimant should pay a deposit as a condition of pursuing them.
Discussion
(i) Previous ETs had dismissed the Claimant's claims. The Claimant's evidence had been found to be unsatisfactory, he had exaggerated, and his claims had been found to have no reasonable prospect of success. The ET should consider his credibility and that material assisted in that assessment.
(ii) Second, the fact that the Claimant had not, at the time when his complaints arose or at the time when he first made his complaints, described them as complaints of discrimination was significant if not decisive. It meant that the contemporaneous documents "showed otherwise" (see paragraph 71).
(iii) An allegation of discrimination should be raised as such at the time (paragraph 146).
(i) First, the ET recorded in paragraphs 23, 33, 95, 98, and 183 that the Claimant disputed the accuracy of the Respondent's notes of meetings. It determined that aspect of the dispute by accepting the account in the Respondent's notes, for example, in relation to allegation 34, even though at that stage it had not heard evidence from anyone.
(ii) Second, it decided that some claims had no or little reasonable prospect of success by accepting the Respondent's explanations for its actions as set out in its documents without having tested those explanations in any way.
(iii) Third, it repeatedly said that the documents did not seem to show that the treatment given to the Claimant was connected with his race or that there was nothing to relate it to his race. For the reasons that I have already explained, the cases in which documents will suggest or show that treatment is based on race will be very rare indeed.
(iv) Fourth, all that the contemporaneous documents could show without a hearing was that (1) the Claimant had not with, I think, two exceptions described his complaints as complaints of race discrimination when he first made them to the Respondent, and (2) the Respondent had put forward apparently plausible explanations on paper for the treatment which was the subject-matter of the Claimant's complaints of race discrimination.
"192. … In the view of Mr Williams this was the second allegation that related to race in the 47. It seems to me that as the allegation is related to race and in the absence of the complaint from the bundle I have no basis upon which to reach any conclusion other than to allow the allegation to proceed to a final hearing."
Conclusions
Disposal