Ms R Fordyce v Church of Scotland Central Services Committee: 4106811/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4106811/2024
Between
Ms Rashell FordyceClaimantChurch of ScotlandRespondent
Before
Employment Judge S MacLeanMr F Marshall for claimantCitizen’s Advice Service for claimantDate 21 March 2025
JUDGMENT
The Judgment of the Employment Tribunal is that the respondents’ applications for strike out or a deposit order are refused.
REASONS
[1]At a case management preliminary hearing on 15 January 2025, it was agreed that at this preliminary hearing an Employment Judge will determine the respondent’s application for strike out the unfair dismissal complaint under rule 38(1)(a) of the Employment Tribunal Procedure Rules 2024 (the rules of procedure), or alternatively whether the claimant should be ordered to pay a deposit as the condition of proceeding with the claim in terms of rule 40 of the rules of procedure.[2]On 5 February 2025, after the claimant complied with an order for further specification of the protected act relied upon in the victimisation complaint (section 27 of the Equality Act 2010 (EqA)), the respondent applied for strike out of that complaint under section 38(1)(a) of the rules of procedure. The application was opposed. An Employment Judge directed that that application also be considered at this preliminary hearing.[3]A final hearing is fixed for 28 April to 2 May 2025. In addition to the unfair dismissal and the victimisation complaints, the claimant also brings claims of pregnancy/maternity discrimination under section 18 of the EqA and a claim of unauthorised deduction from wages under section 13 of the Employment Rights Act 1996 (ERA). The preliminary hearing[4]The preliminary hearing was conducted by cloud video platform. Mr Wilson addressed me on the respondent’s applications to which Mr Marshall replied. I was referred to a joint set of documents.[5]I set out below the law, and my deliberations in which I deal with the representatives’ submissions. The law on strike out and deposit orders[6]Strike out of the claim is addressed in rule 38 of the rules of procedure. Rule 38(1)(a) provides that at any stage of the proceedings, either on its own initiative or in the application of a party, a Tribunal may strike out all or part of the claim or response on the grounds that it is scandalous or vexatious or has no reasonable prospect of success.[7]The striking out process requires a two stage test. This first is to establish whether grounds set out in rule 38 have been established, and then having identified any established ground to decide whether to exercise my discretion.[8]The relevant provision on deposit orders is contained within rule 40 of the rules of procedure. This provides that where the Tribunal considers that any specific allegation or argument in the claim has little reasonable prospect of success, it may make an order requiring the claimant to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.[9]Rules 38 and 40 require to be exercised having regard to the overriding objective in rule 3. This is to deal with cases justly and fairly which includes so far as practicable ensuring that the parties are on equal footing; dealing with the cases in ways which are proportionate to the complexity and importance of the issues; avoiding unnecessary formality and seeking flexibility in the proceedings; avoiding delay, so far as compatible with proper consideration of the issues; and saving expense.[10]Special considerations arise where a Tribunal is asked to strike out a claim of discrimination. In Anyanwu v South Bank Students Union [2001] IRLR 305, the House of Lords highlighted that discrimination cases as a general rule should be decided after hearing the evidence. It is important not to strike out discrimination claims except in the most obvious cases as they are generally fact sensitive and require full examination to make a proper determination. 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.[11]It is competent to strike out a discrimination. In Ahir v British Airways plc [2017] ECWA Civ 1392 the Court of Appeal said that Tribunals should not be deterred from striking out claims, including discrimination claims, which involve disputes of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to find liability being established 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.[12]In Mechkarov v City Bank NA [2016] ICR 1121, the EAT summarised the law as follows:a. only in the clearest cases should a discrimination claim be struck out;b. where there are core issues of fact that turn on oral evidence, they should not be decided without hearing oral evidence;c. the claimant’s case must ordinarily be taken at its highest;d. if the claimant’s case was “conclusively disproved by” or was “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it could be struck out;e. a Tribunal should not conduct an impromptu minitrial of oral evidence to resolve core disputed facts.[13]The EAT in Kaul v Ministry of Justice & others [2023] UKEAT held that the need for caution when considering a strike out application does not prohibit realistic assessment where the circumstances of the case permit. It was observed in this case that even if the claims were taken as true at face value, they would still inevitably fail at final hearing.[14]There are discrimination cases where the EAT upheld decisions to strike out the claims as having no reasonable prospects of success before any evidence. In Croke v Leeds City Council UKEAT/0512/07 after requiring the litigant in person to provide full particulars of his victimisation claim, the judge held there was no material from which the necessary causal link between the protected act and the council’s alleged conduct could be identified. The judge therefore struck out the claims as having no reasonable prospect of success. The EAT upheld this decision and held that where on the available material, the judge considered that the case was “not in any ordinary sense of the term fact sensitive it could be struck out without evidence being formally heard.”[15]In Sivanandan v Independent Police Complaints Commission & others UKEAT/0436/14, the EAT upheld a tribunal’s decision to strike out part of the indirect discrimination claims on the basis even on the claims as pled as their highest, there was no reasonable prospect of establishing discrimination had occurred.[16]The EAT commented on the purpose of deposit orders in Tree v Southeast Coastal Services Ambulance NHS Trust UKEAT/0047/17. Where a case has deficiencies in the pleadings it is important that Tribunals do not use deposit orders as a substitute for more appropriate case management orders aimed at clarifying the facts and issues or for ensuring compliance with case management orders.[17]In Hempdan v Ishmael [2017] ICR 486 the EAT observed that the purpose of the deposit order was to identify at an early stage claims with little prospect of success and to discourage pursuit of the claims by requiring a sum to be paid and creating a risk of costs (expenses) if the claim failed. An order to pay a deposit had to be one capable of being complied with. A party without the means or the ability to pay should not be ordered to pay a sum that he or she are unlikely to be able to raise. The unfair dismissal claim[18]The requirements for an unfair dismissal complaint are that an employee can show that she was employed under a contract of employment and she was dismissed. The definition of dismissal in the context of unfair dismissal is defined in section 95 of the ERA. It includes termination of the employment contract by the employer (express dismissal) and where an employee resigns, terminating the contract, with or without notice in circumstances such that she would be entitled to resign with or without notice because of the employer’s repudiatory breach (constructive unfair dismissal).[19]Since May 2024, the claimant has been represented by Dumfries and Galloway Citizen’s Advice Bureau who presented her claim form on 2 October 2024. In the claim form, the claimant says that in a letter dated 15 July 2024, the respondent terminated her employment on 26 July 2024. She denies resigning. However, the further and better particulars of claim at paragraphs 19 to 24 the claimant alleges actions by the respondent during her employment to “try and push her out”, the working relationship having “broken down”, and being pushed out without having to be made redundant or dismissed.[20]Mr Wilson referred to documents that had been produced including:a. An email sent from the claimant on 11 June 2024 referring to her reevaluating her personal circumstances. Taking advice about “the various ways in which my role has been reduced, issues have remained unresolved and opportunities have been denied me” and asking the respondent to “consider whether I could be released from my employment and all associated commitments”.b. A response sent on 17 June 2024 referring to consideration of “a release from your contractual terms in regard to enhanced maternity pay request and being open to entering those discussions.c. An email sent from Mr Dunn, generalist adviser, on 17 June 2024, advising that he had been asked by the claimant to act on her behalf “in arranging the release from her contract”.d. A note of telephone conversation on 27 June 2024, recording that the respondent was willing to agree to the claimant not being required to repay the occupational maternity pay “if she resigned now without coming back to work”. This would be on the basis that no payment would be made for accrued and untaken holidays. The two sums would be offset against each other. As this was a statutory obligation to pay accrued holiday pay the respondent would be asking the claimant to enter into a settlement agreement. Mr Dunn was taking instructions as he did not have the required accreditation for putting a settlement agreement in place.e. An email sent from Mr Dunn on 27 June 2024 advising that he has discussed with the claimant the settlement proposed by the respondent and “she is happy to accept on those terms”. Mr Dunn asked for confirmation that the respondent would pay for a legal opinion on the settlement agreement as is normal practice and if that was acceptable to send the agreement so that it could be reviewed. The respondent advised that it was not agreeable to paying the legal costs.f. On 4 July 2024, the respondent’s solicitor emailed HR to advise that there was no agreed termination date, and she has asked Mr Dunn when the claimant wanted her employment to end.g. On 5 July 2024, Mr Dunn advised that he had had an opportunity to discuss the respondent’s position on paying legal costs and she considered the refusal was unreasonable and she needed to consider her options. Meantime the claimant consulted her GP who has provided a fit note.h. A letter to the claimant from the respondent dated 15 July 2024, headed, “Notice of Resignation”, referring to the discussions, the claimant’s decision not to return to work following maternity leave and noting that “agreement was reached on 27 June 2024 with your CAB adviser that your employment will terminate and that the sum of £5,934.42 of contractual maternity pay which you are due to repay the Church will be set against the accrued holiday pay due to your and the balance remaining due to the Church will be waived”. The four week notice period will run from the date of the agreement and the claimant employment will terminate on 26 July 2024.[21]In summary, Mr Wilson argued that, viewed objectively, by late June 2024, the parties had agreed the essential terms of the termination of the claimant’s employment. She was resigning and the payment due to each party by the other were being offset. There was a binding agreement even though a formal agreement was to be entered into. The subsequent failure to do so was irrelevant. The discussions related to payment the legal costs for a settlement agreement (see Glasgow City Council v Smith [2015] CSOH 143 at para 21).[22]Mr Wilson said that the claimant gave notice of resignation. This had to be interpreted objectively and in accordance with the ordinary principles contract law and once given could not be unilaterally withdrawn (see Willoughby v CF Capital plc [2011] EWCA Civ 1115). There was no ambiguity in what was being said and it was not done in the heat of the moment.[23]The summary of Mr Marshall’s response was to refer me to referred to section 203 of the ERA. Mr Dunn was not qualified to advise the claimant on the settlement agreement. My understanding of the claimant’s position was that that she was happy with the essential terms but that a formal agreement was to be enter into. She had not said that she would resign or when that would take effect.[24]To strike out the unfair dismissal claim requires me to form a view on the merits of the case and only where I am satisfied that the claim has no reasonable prospect of succeeding can I strike out the claim.[25]I appreciated the points raised by Mr Wilson, however I considered that the claimant’s email sent on 11 June 2024, referred to her having taken advice and being of the view that the employment relationship had broken down following actions by the respondent. If the claimant resigned, then there may still be a dismissal depending on the reason for that resignation. While it is not explicit in the claim form and further particulars that an alternative claim of constructive unfair dismissal claim is being pursued, I was mindful that the claimant is represented by the Citizen’s Advice Bureau and amendment may be required.[26]The core facts may or may not be established, that is dependent on the evidence heard. However, I concluded that the test for strike out was not met in relation to the unfair dismissal claim. The victimisation claim[27]The requirements for a victimisation claim as set out in in section 27 of the EqA. There is a requirement for the claimant to have done or for the respondent to believe that she has or would do a protected act which is also defined in the section.[28]In summary Mr Wilson argued that the claimant had been given an opportunity to set out the protected act relied upon. This had now been provided: the complaint raised in December 2022. Mr Wilson said that this was not a protected act and therefore the victimisation claim had no reasonable prospects of success.[29]Mr Marshall referred to the written complaint. While it did not specify the EqA, it did refer to comments made by the respondent which about the claimant and a male paralegal which she found “discriminatory”.[30]I require to act cautiously when striking out a discrimination claim and that I should take the claimant’s case at its highest. The test for strike out is a very high one as I set out above. I consider that the claimant has provided sufficient detail, just, to meet it. In my view there is a core disputed fact as to the reason why the claimant was treated in the way that she was. The core facts may or may not be held established and that is dependent on the evidence heard. The claimant does have the burden of proof but that in turn depends on whether or not she can establish a prima facie case. She has some arguments on that from the material submitted. I do not consider that it is appropriate to spell these out at this stage as that will depend not only on submissions to me at this stage but also on the evidence heard and the full submissions then made about that evidence. It is possible that the evidence is not the same as the submission before me and that the reliance is not placed on all the factors that I consider are sufficient to require me to refuse the application for strike out. I do not consider that the test for strike out in this regard is met and it is refused.[31]The matter will therefore proceed to the final hearing for determination of these claims.[32]For the avoidance of doubt, this judgment should not be taken as an indication that the claims do have reasonable prospects of success. Whether they succeed or fail will depend on the evidence led. The applications for deposit order[33]Mr Wilson argued in brief that if I did not agree that the claimant’s unfair dismissal and victimisation claims had no reasonable prospects of success for the same reasons, these claims have little prospects of success. He had not previously intimated an application under rule 40 in respect of the victimisation claim. Mr Wilson said that in respect of each allegation a deposit of £1,000 should be made.[34]Mr Marshall said that the claims had prospects of success for the reasons previously canvassed. The claimant was not working, she had a young child and is in receipt of benefits.[35]The test of little reasonable prospects of success is less rigorous than no reasonable prospect of success. I have a broad discretion and greater leeway when considering a deposit order application. However, I must still have a proper basis for doubting the likelihood of the claimant being able to establish the essential facts to the claim. There is little guidance in the authorities as to what is meant by little reasonable prospect of success.[36]I am not restricted to considering purely legal questions. I am entitled to have regard to the likelihood of the claimant being able to establish the facts essential to her case. Given that it is an exercise of judicial discretion, an appeal against such an order will need to demonstrate that the order was one which no reasonable employment judge could make or that it had failed to take into account relative matters or take into account irrelevant matters.[37]In relation to the unfair dismissal claim, while the claim has not been pled as clearly as it might have been, that does not follow that there are little reasonable prospects of success. The victimisation claim was finely balanced as appeared to me to be at the lower end of the range of prospects of success of establishing a protected act.[38]There is a public interest in having discrimination claims heard and determined on the evidence. The claimant’s financial circumstances are limited. I did not consider that it was in accordance with the overriding objective to order a nominal figure.[39]I therefore refused the application. For the avoidance of doubt I do not say that the claims have reasonable prospects of success but the terms of rule 40 read with rule 3 lead me to conclude that no deposit is appropriate. Any application for expenses at any subsequent hearing will be a matter for the Tribunal and this decision should not be taken as forming a view should such an application be made.