Ms K Moreton and Mr R O’Connor v Chief Constable of Warwickshire Police: 1309600/2022 and 1309601/2022
EMPLOYMENT TRIBUNALS
Case No 1309600/2022, 1309601/2022
Between
Ms K Moreton and Mr R O’ConnorClaimantChief Constable of Warwickshire PoliceRespondent
Before
Employment Judge BatyMr M Jackson (instructed by counsel) for claimantMr J Feeny (instructed by counsel) for respondentDate 12 December 2024
JUDGMENT
[1]The respondent’s application to strike out the claims is refused.[2]The respondent’s application for deposit orders is also refused.
REASONS
[1]The claimants each brought complaints of unfair dismissal only, under section 98 of the Employment Rights Act 1996 (“ERA”).[2]By letter of 18 March 2024, the respondent made an application that the claims should be struck out on the basis that they had no reasonable prospect of success (under rule 37(1)(a) of the Employment Tribunal Rules 2013 (“the Rules”)) or, in the alternative, that the tribunal should order a deposit be paid as a condition to continuing the claims (rule 39).[3]It is common ground that the claimants were employed by the respondent in civilian intelligence roles. They were required to hold management vetting (“MV”) as a condition of their employment in these roles. Furthermore, all individuals employed by the respondent in any capacity are required to hold at least recruitment vetting (“RV”).[4]Following receipt of intelligence, the claimants were subject to an investigation under the respondent’s misconduct procedure, with notices being served on them in January 2022. However, following a review of the position, the respondent took the decision in May 2022 that the claimant’s vetting should be permanently revoked. For the avoidance of doubt, all levels of vetting were revoked. It is, therefore, also common ground that, because of the revocation of vetting, the claimants could not be redeployed into any other roles at the respondent.[5]The respondent subsequently dismissed the claimants in July 2022.[6]The decision to revoke the claimant’s vetting and the decision to dismiss the claimants were therefore taken by the same entity, in other words the respondent. However, it is the respondent’s position, and this is accepted by the claimants, that the individual who took the decision to dismiss the claimants did not know the reasons why the claimant’s vetting was revoked. Pleadings and list of issues[7]In its responses to the claims, the respondent originally pleaded that the reason for the claimants’ dismissals was for “some other substantial reason or that the Claimant could not continue to work in the position which the Claimant held without contravention (either on his part or on that of the Respondent) of a duty or restriction imposed by or under an enactment. Further and in the alternative, the reason for the dismissal was the claimant’s conduct.” (paragraph 24 of the grounds of resistance (“GOR”)).[8]The responses were then subsequently amended to add the following (paragraph 25 of the GOR): “Further and in the alternative, the Respondent will say that the (unfair) dismissal was taken for the purpose of safeguarding national security and accordingly the Tribunal must dismiss the complaint pursuant to section 10(1) of the Employment Tribunals Act 1996.”[9]A list of issues of the claims was subsequently agreed between the parties (“the LOI”). As to the alleged reason for dismissal, that LOI states at paragraph 1: “The Respondent principally relies on the potentially fair reason that the dismissal was a substantial reason capable of justifying dismissal, namely the removal of both of the Claimants’ vetting, management and recruitment level vetting, without there being any indication of if and when their vetting could be reviewed and/or ever reinstated. As there is a requirement for all staff to have a minimum of recruitment level vetting to work for the Respondent, and as all levels of vetting had been revoked, both claimants were unable to perform the duties under their contract of employment or fulfil any role with the Respondent.”[10]However, further on in the LOI, at paragraph 5, it states: “Was the dismissal taken for the purpose of safeguarding national security and if so should the Tribunal dismiss the complaint pursuant to section 10(1) of the Employment Tribunals Act 1996.”[11]In terms of whether there was any procedural unfairness in the dismissals, eight separate allegations of unfairness are set out at paragraph 4 of the LOI. The respondent maintains that all of these relate to the vetting process as opposed to the subsequent decision to dismiss the claimants. Without going into the details, it is certainly the case that many of them do relate to the vetting process and the fairness of it and to alleged unfair conduct by the respondent in connection with the vetting status been revoked.[12]Finally, paragraph 6 LOI states: “Was the failure to permit the Claimants to meaningfully challenge the removal of their recruitment vetting status an unlawful interference with their ECHR Article 6 right to a fair hearing such as to render their dismissal unfair?”.[13]Finally, at paragraph 24 of his submissions for this hearing, Mr Feeny states that: “The Respondent relies on two potentially fair reasons: (1) for the purpose of safeguarding national security (s. 10(1) ETA) and/or (b) some other substantial reason (“SOSR”, s. 98(2) ERA)”. The respondent’s application[14]In its 18 March 2024 application, the respondent submits that all allegedly unfair aspects of the claimants’ dismissals, including any consideration of the section 98(4) ERA elements of the test, were taken for the purposes of safeguarding national security. It submits that the claimants have no reasonable prospect of persuading the tribunal in the light of evidence to be provided through the CLOSED procedure that the respondent’s actions were taken for any other reason; that its defence pursuant to section 10(1) of the Employment Tribunals Act 1996 (“ETA”) must succeed in the circumstances and that, accordingly, the claimant’s claims of unfair dismissal have no reasonable prospect of success.[15]The respondent submits in the alternative that the tribunal can strike out any “part of the claim” that has no reasonable prospect of success; and that the tribunal could strike out each of the eight allegations of unfairness at paragraph 4 of the LOI and paragraph 6 of the LOI and that, if all of those parts were struck out, the net result would be that the entire claim should be struck out. Recent developments[16]The claimants have recently been provided with a “gist” of what the respondent says was the reason for the removal of their vetting. It is not necessary for me to repeat it here; the parties know what it contains.[17]In addition, certain documentation and written witness evidence, which relates in part to the vetting process/decision and which had previously been provided only in CLOSED, has now been provided to the claimants in OPEN, so they know its contents. Today’s hearing[18]This hearing had originally been listed for 23 May 2024 but had had to be postponed for reasons which it is not necessary to repeat here.[19]Mr Jackson at this hearing relied upon the skeleton argument which he had prepared for that hearing and a supplemental skeleton argument prepared for this hearing. Mr Feeny relied on a skeleton argument which he prepared for this hearing. I read all of these documents in advance of the hearing.[20]A bundle of documents had also been provided for this hearing.[21]Both representatives made oral submissions in relation to the application.[22]My decision was reserved. The Law Strike out (reasonable prospects)
The Law
[23]The power to strike out a claim is contained in Rule 37 of the Rules which provides: “37. At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds …. (a) that it is scandalous or vexatious or has no reasonable prospect of success...”[24]There is a great deal of authority on the issue of when it is permissible to exercise the power to strike out on the basis of lack of reasonable prospects. Mr Feeny set out many of the applicable relevant authorities in his written submissions, which I repeat here below.[25]Guidance was given by the EAT on the test for strike out in Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] SLT 1191, 1194 §30: “Counsel are agreed that the power conferred by r.18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College at [2011] I.R.L.R., p.219, para.4). 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 Mann Liquid Products Ltd v Patel, Potter LJ at para.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 Mann Liquid Products Ltd v Patel; Ezsias v North Glamorgan NHS Trust). 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 (Ezsias v North Glamorgan NHS Trust, Maurice Kay LJ, at [2007] I.C.R., p.1134, para.29).[26]Additional guidance was given in Eszias v North Glamorgan NHS Trust [2007] ICR 1126, CA, 1134 (§27): “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: see ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, [10], per Potter LJ - a commercial rather than an employment case. However, what is important is the particular nature and scope of the factual dispute in question.”[27]The Court of Appeal subsequently restated that strike out can be permissible in certain circumstances, Ahir v British Airways plc [2017] EWCA Civ 1392, §16: “[…] 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’.”[28]The EAT in Malik v Birmingham City Council & another UKEAT/0027/19 (unreported) provided a useful summary of the law at §§30-33: “[30] It is well-established that striking out a claim of discrimination is considered to be a Draconian step which is only to be taken in the clearest of cases: see Anyanwu & Another v South Bank University and South Bank Student Union [2001] ICR 391. The applicable principles were summarised more recently by the Court of Appeal in the case of Mechkarov v Citibank N.A [2016] ICR 1121, which is referred to in one of the cases before me, HMRC v Mabaso UKEAT/0143/17. [31] In Mechkarov, it was said that the proper approach to be taken in a strike out application in a discrimination case is that:(1) only in the clearest case should a discrimination claim be struck out;(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;(3) the Claimant's case must ordinarily be taken at its highest;(4) if the Claimant's case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.” [32] Of course, that is not to say that these cases mean that there is an absolute bar on the striking out of such claims. In Community Law Clinics Solicitors Ltd & Ors v Methuen UKEAT/0024/11, it was stated that in appropriate cases, claims should be struck out and that “the time and resources of the ET's ought not be taken up by having to hear evidence in cases that are bound to fail.” [33] A similar point was made in the case of ABN Amro Management Services Ltd & Anor v Hogben UKEAT/0266/09, where it was stated that, “If a case has indeed no reasonable prospect of success, it ought to be struck out.” It should not be necessary to add that any decision to strike out needs to be compliant with the principles in Meek v City of Birmingham District Council [1987] IRLR 250 CA and should adequately explain to the affected party why their claims were or were not struck out.” Deposit orders[29]The power to order the paying a deposit is at Rule 39 of the Rules which provides: “1. Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order against that party requiring a party (“the paying party”) to pay a deposit of an amount not exceeding £1,000 as a condition of continuing to advance that allegation or argument. 2. The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”[30]Again, Mr Feeny has referred me to various authorities regarding deposit orders, which I repeat below:[31]Guidance was given on the application of this test by Simler J, (then) President of the EAT in Hemdan v Ishmail and another [2017] IRLR 228, 230: “[12] The approach to making a deposit order is also not in dispute on this appeal save in some small respects. The test for ordering payment of a deposit order by a party is that the party has little reasonable prospect of success in relation to a specific allegation, argument or response, in contrast to the test for a strike out which requires a tribunal to be satisfied that there is no reasonable prospect of success. The test, therefore, is less rigorous in that sense, but nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or the defence. The fact that a tribunal is required to give reasons for reaching such a conclusion serves to emphasise the fact that there must be such a proper basis. [13] The assessment of the likelihood of a party being able to establish facts essential to his or her case is a summary assessment intended to avoid cost and delay. Having regard to the purpose of a deposit order, namely to avoid the opposing party incurring cost, time and anxiety in dealing with a point on its merits that has little reasonable prospect of success, a minitrial of the facts is to be avoided, just as it is to be avoided on a strike out application, because it defeats the object of the exercise. where, for example as in this case, the preliminary hearing to consider whether deposit orders should be made was listed for three days, we question how consistent that is with the overriding objective. If there is a core factual conflict it should properly be resolved at a full merits hearing where evidence is heard and tested. […] [15] Once a tribunal concludes that a claim or allegation has little reasonable prospect of success, the making of a deposit order is a matter of discretion and does not follow automatically. It is a power to be exercised in accordance with the overriding objective, having regard to all of the circumstances of the particular case. That means that regard should be had for example, to the need for case management and for parties to focus on the real issues in the case. The extent to which costs are likely to be saved, and the case is likely to be allocated a fair share of limited tribunal resources, are also relevant factors. It may also be relevant in a particular case to consider the importance of the case in the context of the wider public interest.”[32]The EAT (Williams J) in Garcia v The Leadership Factor Ltd [2022] EAT 19 gave further guidance on how to approach the test when a respondent is asking the tribunal to take a view on the likelihood of its defence being made out: “[41] Elias P’s approach [in Eszias] was followed by HHJ Eady QC (as she then was) in relation to the ET Rules 2013 in Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14/JOJ (“Wright”). At paragraph 33 she observed that a tribunal must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim. She confirmed this approach in Tree v South East Coastal Ambulance Service NHS Foundation Trust UKEAT/0043/17/LA at paragraph 23. In the latter case she referred to the well-known appellate guidance in the Anyanwu v South Bank Students’ Union [2001] IRLR 305 HL line of authorities concerning the caution to be applied to striking-out discrimination claims, noting that this was potentially relevant to the making of deposit orders as well, albeit the potential risk of a deposit order resulting in the summary disposal of a claim should be mitigated by the express requirement on the tribunal to make reasonable enquiries into the paying party’s means (paragraphs 20 – 21). [42] We observe that the assessment of factual matters may extend, as in the present case, to the prospects of the other party making out a defence; the approach we have just discussed is not confined to doubting that the paying party will be able to make out facts essential to the case it advances, but again there must be a proper basis identified to support the tribunal’s evaluation.”[33]I accept therefore, Mr Feeny’s submission on the law that, as per the above, therefore, the assessment of the claimants’ prospects of success can extend to a consideration of the likelihood of the respondent’s defence succeeding (and that there is no reason in principle why this would not also apply to strike out). Reason for dismissal[34]Mr Feeny has also directed me to various authorities on the reason for dismissal.[35]First, he references the well-established principle in Abernethy v Mott, Hay and Anderson [1974] IRLR 213: “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee.”[36]Identifying the legal label for the dismissal pursuant to s. 98 ERA is a question of law: Wilson v Post Office [2000] IRLR 824, CA.[37]Which legal label is used will determine the analysis for fairness including the process followed: Westminster Council v Cabaj [1996] ICR 960. Section 10(1) ETA[38]Section 10(1) ETA provides: 10 National security. (1) If on a complaint under— … (b) section 111 of the Employment Rights Act 1996 (unfair dismissal), … it is shown that the action complained of was taken for the purpose of safeguarding national security, the employment tribunal shall dismiss the complaint.[39]Both advocates accept that there is no definition of “national security” for these purposes.[40]Mr Feeny directed me to the one authority which he identified in relation to section 10(1) ETA: B v BAA plc [2005] ICR 1530. The relevant test is whether the dismissal was “for the purpose of (not had the effect of) safeguarding national security” (BAA para. 37). Article 6 of the ECHR is taken into account by the need to consider s. 98(4) questions as part of the overall considerations of fairness (para. 38). In BAA the case was remitted so that the Tribunal could consider the impact of redeployment on the fairness of the dismissal.[41]As already noted, it is accepted in the present case that the consequence of the removal of the vetting was that the claimants could not work for the respondent in any capacity and therefore that seeking redeployment is not an issue of potential unfairness in this case.[42]I was referred to other authorities during the hearing, but have not referred to them above where they are not necessary to the determinations which I make below or where their applicability falls away as a result of those determinations. Conclusions on the application[43]I make the following conclusions. Considering vetting decisions[44]In addition to the points in the respondent’s original application, Mr Feeny during this hearing appeared to be suggesting both in his written submissions and orally that the tribunal did not have the power to look into or investigate or challenge vetting decisions. In this context, he submitted that the correct route for an individual to challenge a vetting decision made by a police force was a judicial review claim in the High Court. There is no dispute that a separate judicial review process is available to claimants.[45]However, as the hearing went on, Mr Feeny accepted that there were cases where employment tribunals did consider vetting processes in the context of the claims which they were determining and that this had been done, for example, in the context of discrimination claims. I was taken to no statutory authority or piece of case law which established that there was a bar on tribunals considering vetting processes in the context of employment tribunal claims, whether of unfair dismissal, discrimination or otherwise.[46]I do not, therefore, find that there is any bar on the tribunal investigating and considering the vetting process or the reasons why vetting was removed in the context of considering whether a dismissal was unfair (or indeed in the context of considering what the reason for dismissal was). In many of the other cases where employers have dismissed individuals because they no longer have vetting clearance, those vetting clearances have been revoked by a separate third party. In this case, where the entity which revoked the vetting clearance and dismissed the claimants is the same entity, and where, as all parties accept, the removal of vetting inevitably led to the dismissal, it would seem even more incumbent to inquire into the circumstances of and reasons for the revoking of vetting, in terms of both ascertaining what the reason for the dismissal was and considering the fairness of dismissal.[47]What is certainly the case is that I am not in a position to find that there is no reasonable prospect or little reasonable prospect that the claimants would be able to establish that the tribunal could look at these vetting matters when considering both the reason for their dismissals and the fairness of those dismissals for the purposes of section 98(4). I reiterate that, as set out in the LOI paragraph 4, many of the elements of alleged unfairness are connected with the vetting process and the reasons for it. Reason for dismissal[48]The core contention in the respondent’s application is that all allegedly unfair aspects of the claimants’ dismissals, including any consideration of the section 98(4) ERA elements of the test, were taken for the purposes of safeguarding national security and that its defence pursuant to section 10(1) of ETA must succeed.[49]However, there has been no concession by the claimants that the reason for the dismissal was national security. There does not even appear to be certainty about the reason alleged even from the respondent. When one runs through the pleadings, some other substantial reason was pleaded, together with two other alternative reasons, namely: conduct; and the claimants not being able to continue to work without contravention of a duty or restriction imposed by or under an enactment. It was only after an amendment to the response was allowed that the respondent pleaded that national security was the reason at all and, even then, alongside those other the three reasons. That lack of certainty, where a total of four reasons were pleaded, is an inauspicious start to an application based on an assertion that national security was the indisputable reason for dismissal.[50]By the stage of the agreed list of issues, some other substantial reason and national security are pleaded as reasons for dismissal. Furthermore, at paragraph 24 of his submissions for this hearing, Mr Feeny states in terms that the respondent relies on two potentially fair reasons for the dismissal, namely:(a) national security; and(b) some other substantial reason. The ambivalence continues.[51]More significantly, and as I have noted, it is not in dispute that the individual who made the decision to dismiss the claimants did not know about the reasons for the removal of their vetting. She knew that, without vetting clearance, the claimants could not continue to carry out any role for the respondent; but she did not know why their vetting had been revoked. Under Abernethy, to which Mr Feeny referred me, the “reason for the dismissal of an employee is a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee”. The reason why the claimants’ vetting was revoked is said by the respondent to have been for the purpose of safeguarding national security. However, the dismissing officer did not know this reason; all she knew was that their vetting had been revoked. It is therefore difficult to see how her reason for dismissing the claimants was for the purpose of safeguarding national security; even on the facts of the case as presented by the respondent, it looks as if she dismissed the claimants because, as a result of the revocation of their vetting, they could no longer carry out any role at the respondent.[52]Furthermore, as both representatives agreed, there is no definition of national security. It is certainly the case that there is a distinction between actions which may amount to misconduct or which may even amount to criminal behaviour and those which are a risk to national security; it does not follow that, for example, if the respondent decided to remove the claimants’ vetting because of matters which were misconduct or even criminal behaviour that that necessarily means that they did so because of national security.[53]Mr Jackson has raised various concerns which the claimants have about the reasons for the revocation of their vetting, both in the claim form and as a result of aspects of the gist which has since been provided to them, suggesting that even the reason for the revocation of the vetting may not have been because of national security. These would require evidence to determine and, as indicated in the authorities quoted above, a strike out application is not a mini trial. Without further evidence it is difficult to say whether or not the reason for the revocation of vetting was national security. It is certainly not the case that I can say that there is no or little reasonable prospect of an tribunal finding that it wasn’t national security.[54]It certainly follows that I cannot say that there is no or little reasonable prospect of the reason for dismissal being anything other than national security.[55]The burden of proof is on the respondent to prove what the reason for dismissal was. As there remains uncertainty about what the reason for dismissal was, I cannot say that the unfair dismissal complaints have no or little reasonable prospect of success. That effectively disposes of the application at this point. Section 98(4) ERA[56]The alternative element of the application relates to section 98(4). First, it follows from my findings above that, without clarity as to what the reason for dismissal was, the type of enquiry necessary for the purposes of section 98(4) is similarly not clear (see the principle in Westminster Council v Cabaj set out above).[57]Furthermore, if as I have already found above, there is no prohibition on the tribunal inquiring into the reasons for the vetting revocation, the elements of alleged procedural unfairness alleged by the claimant at issue 4 of the list of issues could and would need to be reviewed by the tribunal in its consideration of section 98(4) ERA). Without hearing evidence of the facts, I cannot say whether there is little or no reasonable prospect of the tribunal finding that any of those elements amounted to unreasonable failures by the respondent which rendered the dismissal unfair.[58]Similarly, I am unable to say whether or not the claimants’ argument at paragraph 6 of the list of issues (regarding Article 6 of the Convention) has no or little reasonable prospect of success.
Conclusion
[59]I cannot therefore conclude that the claims have no or little reasonable prospect of success. It follows, therefore, that the respondent’s applications to strike out the claims and for deposit orders are both refused.