Employment Judge A KempMr I Wells (instructed by Solicitor) for claimantMr R Davies (instructed by Solicitor) for respondentDate 25 May 2021
JUDGMENT
The respondent’s applications for strike out of the claims under sections 43B and 103A of the Employment Rights Act 1996 are refused.
REASONS
[1]This was a Preliminary Hearing to consider applications made by the respondent to strike out claims in relation to protected disclosures. Written submissions were provided by both parties.[2]Mr Davies candidly confirmed that the applications were made following comments made at the last Preliminary Hearing. He accepted that fair notice of the claims being made had been provided by the claimant, but his argument was that there had not been any basis pled that would permit a Tribunal to conclude that the reason for the detriments argued for taking place were the disclosures that the claimant alleges she made.[3]Mr Wells explained that he was not instructed earlier and not at the last Preliminary Hearing. He is seeking to conclude a new Witness Statement and to found on additional documents, some of which he seeks by order. He argued that he was entitled to do so in light of the terms of previous Orders for case management, although Mr Davies is to oppose him doing so.
Law
[4]A Tribunal is required to have regard to the overriding objective, which is found in the Rules at Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 which states as follows: “2 Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” (i) Strike out[5]Rule 37 provides as follows: “37 Striking out (1) 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; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; …… (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).”[6]The EAT held that the striking out process requires a two-stage test in HM Prison Service v Dolby [2003] IRLR 694, and in Hassan v Tesco Stores Ltd UKEAT/0098/16. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim. In Hassan Lady Wise stated that the second stage is important as it is “a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit” (paragraph 19).[7]As a general principle, discrimination cases should not be struck out except in the very clearest circumstances. In Anyanwu v South Bank Students' Union [2001] IRLR 305, a race discrimination case heard in the House of Lords, Lord Steyn stated at paragraph 24: “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.”[8]Lord Hope of Craighead stated at paragraph 37: “ … 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.”[9]Those comments have been held to apply equally to other similar claims, such as to public interest disclosure claims in Ezsias v North Glamorgan NHS Trust [2007] IRLR 603. The Court of Appeal there considered that such cases ought not, other than in exceptional circumstances, to be struck out on the ground that they have no reasonable prospect of success without hearing evidence and considering them on their merits. The following remarks were made at paragraph 29: “It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence.”[10]In Tayside Public Transport Co Ltd (trading as Travel Dundee) v Reilly [2012] IRLR 755, the following summary was given at paragraph 30: “Counsel are agreed that the power conferred by rule 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College [2011] IRLR 217, para 4 (EAT)). 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 [2003] CP Rep 51, 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 Man … ; Ezsias …). 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 … Maurice Kay LJ, at para 29).”[11]In Ukegheson v Haringey London Borough Council [2015] ICR 1285, it was clarified that there are no formal categories where striking out is not permitted at all. It is therefore competent to strike out a case such as the present, although in that case the Tribunal’s striking out of discrimination claims was reversed on appeal.[12]That it is competent to strike out a discrimination claim was made clear also in Ahir v British Airways plc [2017] EWCA Civ 1392, in which Lord Justice Elias stated that “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.”[13]In Mechkarov v Citi Bank NA [2016] ICR 1121 the EAT summarised the law as follows: “(a) only in the clearest case should a discrimination claim be struck out; (b) where there were core issues of fact that turned 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 mini-trial of oral evidence to resolve core disputed facts.”
Discussion
[14]The test for strike out is a high one. It is competent to do so, but that is permissible in only the clearest cases where the claim is one related to protected disclosures, as the present one is. Mr Davies did not, to his credit, forcefully argue the point.[15]The claimant argues that she made protected disclosures, and that they were the reasons for detriments, which led to what she claims was a dismissal constructively. Her pleadings on the issue of causation are not clear on the issue of the reason for the causal link between making disclosures and detriments. The fact of making a disclosure is not of itself sufficient. She may however be able to point to facts and circumstances from which an inference as to a causal link may properly be drawn, particularly if she is permitted to rely on an amended Witness Statement. As that issue is disputed and not yet determined I consider that it is better to say nothing more about it.[16]I consider however that the high test that the respondent requires to meet in order to secure the strike out of claims such as these has not been met, and the applications are therefore refused.