A v B & Anor [2010] EWCA Civ 1378

Case No A2 2009/1613[2010] EWCA Civ 1378
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE HAND Q.C.UKEAT/0450/08/JOJ
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 December 2010
Before
LORD JUSTICE PILLLORD JUSTICE LONGMORELORD JUSTICE LLOYD
Between
AAppellant(1) B and (2) CRespondentA Claimant Respondent- and -(1) B and (2) C Respondents (below) Appellants
John Bowers Q.C.(instructed by Wilkin Chapman) for AppellantsEdward Morgan (instructed by Knights) for RespondentHearing Hearing date: 12 November 2010
Judgment

Introduction

[1]This appeal is brought from an order of the Employment Appeal Tribunal dated 13 May 2009, Judge Hand Q.C. sitting alone, on an appeal from an order of the Employment Tribunal sitting at Hull made on 11 July 2008, Employment Judge Mr Forrest sitting alone on a pre hearing review. The Employment Tribunal struck out the claim but the Employment Appeal Tribunal reinstated it. Sir Richard Buxton granted permission to appeal.[2]The Employment Tribunal made a restricted reporting order as regards the names of the parties under rule 50 of the Employment Tribunals Rules of Procedure, which was continued in the EAT under rule 23(3) of the Employment Appeal Tribunal Rules 1993. This has been continued in the meantime, and will be continued following the determination of this appeal. Consistently with this, I will refer to the parties, and also to certain other persons, either generically or by initials. A is the claimant, a female, B is the first respondent by whom A was employed, which is a further and higher education institution, and C is the second respondent, the principal of B, who is male.[3]A was employed by B from March 2002 until 27 November 2007 when her employment was terminated summarily. By her ET1 form she complained of both unfair dismissal and discrimination on the grounds of sex. She alleged a history of inappropriate conduct towards her on the part of C, including unwanted sexual approaches and one incident of a sexual assault. She lodged a grievance on the grounds of this behaviour in July 2007. This was considered in accordance with B’s internal procedures, and was not upheld. While this internal process was under way, an issue arose concerning the academic qualifications which A claimed to hold. On the face of it, A’s dismissal was on the grounds of gross misconduct in this respect. A challenges whether B could properly reach the conclusion that she was guilty of gross misconduct, and she also alleges that B’s processes in this respect were tainted by the history of the conduct of C towards her and her complaining of it by way of the grievance procedure. In effect she argues that the real reason for her dismissal was the previous history rather than the issue as to her academic qualifications.[4]The Employment Judge considered that there was no prospect of A showing that B’s conduct in respect of the dismissal was unfair, and he held that her complaints about sexual discrimination were out of time. Judge Hand took the view that it was not possible to be sufficiently sure of the first of those points on a pre-hearing review and that A might be able to show a continuing course of conduct, and accordingly remitted the case for determination on the merits.[5]We had the benefit of clear and helpful submissions from Mr Bowers Q.C. for both Appellants and from Mr Morgan for the Respondent; both of them had appeared in the Employment Appeal Tribunal but neither in the Employment Tribunal. Despite Mr Bowers’ powerful advocacy, I have come to the conclusion that Judge Hand was right. The result is that the case must proceed to a determination, unless the parties are able to resolve it by agreement. It is unfortunate that, as a result, the case will now proceed on its way at the beginning of 2011 rather than in the middle of 2008.

The test on a striking out application

[6]The power of an Employment Tribunal to strike out a claim is found in rule 18(7)(b) of the Employment Tribunals Rules of Procedure 2004. Relevantly, a tribunal may strike out all or part of a claim on the grounds that it has no reasonable prospect of success. Both Counsel referred us to Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 in which the Court of Appeal upheld a decision of the EAT (Elias J, sitting alone) which had allowed a claimant’s appeal against an order of an Employment Tribunal striking out his unfair dismissal claim.[7]In that case the claimant alleged that his dismissal was unfair both on conventional grounds and also because the reason was that he had been a whistle-blower, having made “protected disclosures”: see section 103A of the Employment Rights Act 1996 (ERA). The employer said that the reason for the dismissal was that he was responsible for a breakdown in relationships in his department and in the NHS Trust, such that the employment relationship could not continue and it had been fairly terminated. The claimant had made complaints about his colleagues and about the way in which the department was being run, and had alleged fraud on the part of two colleagues, as well as serious breaches of duty in the nature of incompetence or dereliction of duty on the part of others. At the centre of the case for the NHS Trust was a letter signed by nine of the claimant’s colleagues addressed to the chief executive asserting that the claimant had caused a complete breakdown of trust between the claimant and the rest of the department. This was signed by all the other consultants in the department, and therefore by the two whom he had accused of fraud and others against whom he had made other allegations of breach of duty. The Employment Tribunal concluded that the terms of the letter were such that any reasonable tribunal would decide that the dismissal was on the ground of the breakdown, not of the protected disclosures.[8]Elias J and in turn the Court of Appeal considered that at the heart of the case there was a dispute of fact, namely as to what was the true reason for the dismissal. Maurice Kay LJ said 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. It was an error of law for the Employment Tribunal to decide otherwise. In essence that is what Elias J held. I do not consider that he put an unwarranted gloss on the words “no reasonable prospect of success”
. 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.”[9]He also drew an analogy between whistle-blowing cases and discrimination cases, in both of which an investigation is necessary as to what was the reason for the dismissal.[10]Mr Morgan prays those observations in aid. Mr Bowers sought to distinguish the case on the basis that in the present case there is no relevant dispute as to the relevant facts.

A’s claim and the facts alleged in support of it

[11]Since the facts relied on by A in support of her claim must be taken to be provable for the purposes of a striking out application, unless the opposite can be shown by clear evidence which is not seriously disputable, it is appropriate to start with A’s grounds of complaint incorporated in her ET1 form. This is not to be subjected to the same exacting requirements of precision as would be appropriate for a statement of case in ordinary civil proceedings.[12]A alleged that throughout her employment with B she had been subjected to unwanted conduct and attention of a sexual nature by C, including inappropriate comments but also touching and in some cases a clear sexual assault. She said that a pattern developed whereby, following her rejection of these advances, she was treated adversely, either by being ignored by C or by alterations being made to her role.[13]She alleged one specific and serious incident, involving a sexual assault, in September 2006. After this, she said, she was told that she would be moved to a different role on a different campus. This did not happen at the time. However in July 2007, she alleged, she was told that she was potentially at risk of being made redundant on the setting up of a new structure within the institution. She was told on 13 July that it was intended that she should leave in a week’s time. She was unable to gather any objective reason why she should be treated as redundant and concluded that the threat was related to the history of sexual harassment of her on the part of C, who, she said, managed B’s affairs very closely and, effectively, made all key decisions.[14]On 16 July 2007 she lodged a grievance in respect of the sexual harassment. Immediately afterwards the threat of redundancy was withdrawn.[15]Her grievance was discussed between herself and D, a senior employee of B with personnel responsibilities, on 9 August 2007. She says that he pressed her to withdraw the grievance. The grievance summary in the appeal bundle is dated 10 August 2007. It is not clear whether this is a modified version or is just the original with a new date, but nothing turns on that for present purposes. In any event, she did not withdraw the grievance. The grievance document contains a good deal more detail of the complaints of sexual harassment against C, but does not allege any other specific incident occurring after September 2006.[16]It seems that D wrote to A on 11 September 2007 rejecting her grievance. On 20 September she replied, giving notice that she exercised her right of appeal. This led to a hearing on 23 October 2007 before three members of the Governing Body of B. D attended the meeting after it had been under way for about an hour. The appeal bundle does not contain any later papers relating to the grievance. I take it that the appeal was rejected.[17]The issue about academic qualifications emerged while the grievance procedure was under way. Late in August 2007 a Vice-Principal of B sent an email to A, as to all other staff of B with any higher degree qualification, asking for details of the title of the degree, the university or awarding body, the year of completion and the topic of the final year dissertation. A was not one of the teaching staff of B, but she had said in her job application in 2001 that she had higher qualifications, and she had styled herself “Dr” in the application, as she did in signing her emails.[18]The form prescribed for the job application in 2001 had a heading “education and qualifications”, in relation to which candidates were asked to “give details of all school examinations, certificates, diplomas, degrees and membership of professional bodies”. In response A had listed a number of qualifications, of which three are relevant for present purposes:(1) PH.D. in philosophy of psychology, 1991 to 1996, part-time;(2) Bachelor of Science (Hons) (USA) 1979-1981 part time, and(3) Bachelor of Education 1976-1979 full time. The form also stated that the candidate would be asked to provide evidence of these if the application were successful. In signing the form she confirmed that the information on the form was correct and complete.[19]A and one other member of staff (E) were slow to respond to the request made by the email in August 2007. After a chasing email, A replied on 7 September listing five qualifications. Two of these are not in issue. A third was “B Ed” at Hull University, a fourth “B Sc Trinity College” and a fifth “PH D Trinity College”. In a further email on 17 September, she gave these details of her doctorate: title of degree: Doctor of Philosophy in Psychology; awarding body: Trinity College University of Delaware; year of completion: 1996; topic of final year dissertation: the nature of the person, culture, health and alternative therapies; particular area of research interest: cognitive psychology. On 20 September D wrote to her to confirm that she was suspended from work with immediate effect pending an investigation into an allegation of gross misconduct by way of academic fraud, namely that she had purchased academic qualifications and in so doing brought B into disrepute.[20]Earlier in September an article had been published in the Times Higher Education about an allegation of academic fraud of this kind. B had had some advance notice of the article.[21]On 28 September a disciplinary investigatory interview took place between D and A, in the course of which D asked A a number of questions about her qualifications and their nature and source. He had two relevant certificates from her, one being a postgraduate certificate in Higher Education Teaching, from Hull University dated 1999 (as to which no issue arises). The other stated that “the Trinity College and university, the education division of the ULC incorporated in Delaware USA” had conferred on A “the degree rank and academic status of Doctor of Philosophy in Psychology”, in 1996. In the meantime D had found information about “The Trinity College” on the internet from which it was clear that, in 2007, it was possible to purchase a degree qualification from that body, such as that for which A had a certificate, without doing any work for it. A denied having bought her doctorate, but it is clear from the record of the interview that her answers to the questions were far from satisfactory. She said that she had the equivalent of a B Ed from Hull University but could not produce a certificate to prove it. She was evasive and unclear about the work she said she had done for her BSc and her doctorate.[22]At the end of the interview she said that when she was invited to interview for the job application she had a letter stating that her qualifications would be verified prior to appointment. She suggested that she would not have been offered the job if there had been any problem with her qualifications, and that they had therefore presumably been checked at the time. She also asserted that the disciplinary action was being taken against her in the light of the ongoing grievance that she had raised about the conduct of C.[23]A formal disciplinary meeting was held on 12 October, chaired by F, a Vice-Principal of B (not the same as had sent the email referred to above at paragraph [17]), the case being presented by D. The essence of that case was that she had not obtained her BSc or doctorate by doing any academic work, but had bought the degrees, and that, taken with her use of the style Dr A, this amounted to academic fraud, misrepresenting herself as having academic qualifications which in truth she did not have. In response she denied that she had purchased any qualification, and said that she would give access to her own bank account and that of her husband to show that she had not bought the degrees. The information she gave about the nature of the work done for the degrees remained very general and unclear, but she said she had found two people who could verify her work, whom she named, and she was attempting to track down two tutors who had been involved in the courses. F pointed out that there was no evidence of any research or study for the degrees, and that to have some evidence would be helpful. The meeting concluded with A being invited to provide any further evidence that she could produce, and to give the details of either or both of the people who she had said could verify the work done, or a statement of their recollection.[24]On 1 November F had a meeting with one of the two potential supporting witnesses, G. G confirmed that she had done some typing work for A. Some of this related to a commercial operation in which A was involved in the late 1980’s or early 1990’s. She said she had also typed a long document that A told her was a PH D thesis, the subject being aromatherapy and the effects of oils. She said that, if she still had any examples of the work which she had typed for A, they would be stored in her house in a place to which she could not have access then or for the next 3 or 4 weeks because of current renovation works. She said she would provide any further information if she found anything relevant.[25]On 22 November the disciplinary hearing was resumed. No further information had become available from A, from G or from anyone else, to verify A’s work done for the “Trinity College” degrees. Moreover, enquiry of Hull University showed no trace of A having been awarded a Bachelor of Education. D produced some material which A had written in connection with her commercial activity, concerned with aromatherapy. Another member of staff (H) who had examined this assessed its standard as being level 3 which, we were told, is equivalent to A level. It does not seem that this was disputed by A. A’s response to the case presented against her was to complain of the process, to rely on the proposition that her qualifications were checked at the time she was recruited, to repeat that she had not purchased her “Trinity College” degrees, and to query why Hull University could not find any trace of her B Ed. In an email sent after the meeting she reiterated these points, and again asserted that the disciplinary action had been taken because of the grievance she had raised about C.[26]On 27 November F wrote to her to inform her of the conclusions of the disciplinary process, in summary as follows. She did not have a B Ed from Hull University as she had claimed, and she had acquired the two Trinity College degrees without undertaking the standard processes of academic study and assessment. In so doing she had misrepresented her academic qualifications as being from a legitimate university. B’s reputation was damaged by the news and publicity that her qualification had been gained from a spurious organisation purporting to be an academic one and in a manner which did not correspond to standard academic processes. She had acted without integrity and academic credibility. On that basis she was dismissed from B’s employment for gross misconduct for academic fraud by claiming to hold a B Ed from Hull University and by acquiring academic qualifications from Trinity College without undertaking the standard processes of academic study and achievement of an established and reputable university. She had misrepresented herself to staff and external clients as possessing those qualifications and in so doing had brought B into disrepute. The dismissal was summary and immediate.[27]A complained of both unfair dismissal and of discrimination on grounds of her sex. The nature of the allegation of sex discrimination is clear, being based on the harassment on the part of C and his adverse treatment of her in response to her rejection of his advances. The last identified event of harassment occurred in September 2006. While there may well have been other earlier occasions not specified in the grounds of complaint, no later events have been mentioned by A, and it is reasonable to assume that there were none.[28]However, it was her case that the sequence of events as regards a threatened redundancy to which I have referred above was part of C’s getting back at her because of the previous history. Moreover, she also contended that what happened thereafter, including the disciplinary process relating to academic qualifications, was a response to her having raised a formal grievance on 16 July, and therefore also part of the continuing sequence of events.[29]B relied on the fact that another employee, E, a male lecturer, was also the subject of disciplinary investigation at the same time and on the same grounds, namely false claims to academic qualifications, the disciplinary process being brought to an end in his case only by his resignation. Accordingly, it was said, it should be plain that the disciplinary process in relation to A was not in any way discriminatory or influenced by the previous history alleged by A to constitute sex discrimination. However, it was part of A’s case that C managed B’s organisation very closely and made all key decisions, and she relied on this to show that he must have been involved in taking the decision to dismiss her. Accordingly, the claim is that, even if the disciplinary process appeared to have been conducted independently of the process relating to the grievance, and without C’s intervention, in fact he was involved in all decisions, including the disciplinary process and decision, and the latter were therefore tainted by his wish to punish A for her rejection of his advances. On that basis, not only was the true reason for her dismissal that she had suffered and rejected, and complained about, C’s conduct, but also the disciplinary process and the dismissal were part of a continuing sequence of events with the earlier acts of sexual harassment, so that the complaint about the earlier events was not out of time, because time ran from the last event in the course of the sequence of events.

The academic qualifications issue: the facts

[30]Because of the importance attached by B and the Employment Judge to the facts as regards the academic qualifications asserted by A, it is convenient to summarise the relevant facts at this stage.[31]I have referred at paragraph [18] above to what qualifications A said she had when applying for employment with B, describing herself on the application form as Doctor. The three qualifications so asserted that are in issue are Ph.D. in Philosophy of Psychology, the course lasting from 1991 to 1996 on a part time basis, Bachelor of Science (Hons) (USA), the course lasting from 1997 to 1981, part-time, and Bachelor of Education, the course for which was said to have lasted from 1976 to 1979 full time.[32]In the course of the disciplinary process A was able to produce a certificate for the Doctorate, but not for the degrees of Bachelor of Science or Bachelor of Education. There does not seem to be any reason to assume that she had been able to produce the latter two certificates when she applied for employment with B in 2001 either.[33]As regards the B.Ed., in her grounds of complaint she admitted that this statement was inaccurate but that she “had obtained a slightly different qualification after a similar three length period of study which involved a teaching certificate with a diploma in youth service work” and that this had gained her a teacher reference number (as a B.Ed. would have done) allowing her to practice as a teacher. Information from Hull University suggested that she had achieved a teacher certificate of education studied for between 1976 and 1979 at Hull College of Higher Education. She cannot have been able to produce a B.Ed certificate when she was recruited. Evidently B did not take any point at that time on her not having done so, and it may be reasonable to assume that it did not check the position in that respect in any other way. It is not suggested that B thereby waived any point about this asserted qualification. This point arose rather late in the disciplinary process, and may have carried less weight than the issues about the Trinity College degrees, but it was put to A at the second disciplinary hearing, and it was part of what B relied on for dismissing her.[34]In her job application she said nothing about the nature or source of the B.Sc. except that it was an honours degree and was from the USA. In her first substantive email on 7 September 2007 she said it was granted by Trinity College, but she said nothing more then or later about this degree. There is no evidence that she even had a piece of paper to warrant her assertion of having this qualification. She was notably vague in the disciplinary investigation meeting on 28 September 2007 about this degree, as also at the first of the disciplinary hearings. Then and thereafter more attention was given to the doctorate. Again, it seems highly probable that no B.Sc. certificate was produced to B in 2001, and that B did not ask any questions about that at that time.[35]The Ph.D. claim was given much more attention, understandably both because it is a higher degree and because A used it, in the sense that it was the only justification for her describing herself, both to B on her job application form, and to others when signing her emails, as Doctor.[36]The certificate is dated 1 July 1996. I have described it at paragraph [21] above. A referred to it at first as being from the University of Delaware, and as having been obtained by study which involved communication with teachers in the USA. As I have mentioned, those responsible within B for the disciplinary process had discovered information about the college on the internet which showed clearly that it granted degrees for cash without any work having to be done:
“there is no formal course or examination as the award is based on your previous experience”
. It is a fair comment, as A said, that in 1996 it would not have been operating through the internet, and that to show what it did in 2007 does not prove that it did the same in the 1990’s. It is also fair to say that, though she was accused of having bought the degree, whether she paid any money for it is not the real point. The real issue is whether she did any work for it. It could have been granted free and still not have been worth the paper it was written on.[37]Rightly, therefore, the disciplinary investigation and hearings centred on seeking to ascertain from A what work she had done to justify the award of this degree.

The response to A’s claim

[38]In its ET3 form, B sought to justify the dismissal of A as having been made on the grounds on which it was expressed to have been made, and on that footing as having been entirely reasonable on the part of an employer in the further and higher education sector such as B. It contended that, absent a discriminatory motive for A’s dismissal, there was no jurisdiction over her discrimination complaint because the matters relied on occurred more than 6 months before the claim was presented. It also sought to meet the discrimination claim on the merits. For his part, in his separate ET3 form C denied the allegations made against him in their entirety.

The ET hearing and decision

[39]B and C applied to the ET to have A’s claim struck out on the basis that the dismissal and the allegations of discrimination were not connected, that the discrimination claim was out of time, and that the unfair dismissal claim had no reasonable chance of succeeding. The Employment Judge heard no oral evidence, but he saw a bundle of documents which is likely to have included all those immediately relevant to the issues.[40]The Employment Judge considered that the dismissal was very clearly justified on the basis on which it was expressed to have been made. He also relied on the timing, the issue as to qualifications having arisen well after the last occasion of alleged sexual harassment or discrimination. On this basis he held that there was no prospect of A being able to persuade a Tribunal at a substantive hearing of any connection between the disciplinary proceedings and the incidents of sexual harassment, or the lodging of the grievance. On that footing, the dismissal was not unfair, not being tainted by the previous acts alleged of discrimination, and the complaint about the latter was out of time. He took a clear and strong view as to the merits of the challenge to the dismissal. In the course of his paragraph 4 he said:
“Accepting that [C] was fully aware of the disciplinary process against her and of her subsequent dismissal and, if he had chosen to exercise it, he had the potential to influence that dismissal, I still cannot see any prospect of success in persuading a Tribunal, in the face of the very clear evidence of [A]’s false claim to possess academic qualifications, that her dismissal has any link whatsoever to the earlier events. The documentary evidence presented is not just clear; it is overwhelming. The Claimant claimed to have higher degrees which she could not in good faith have thought she was entitled to claim.”

The EAT decision

[41]Judge Hand disagreed. He accepted that A might have a good deal to explain in evidential terms as regards her claim to be entitled to various academic qualifications. However, he referred to the fact that she claimed to have been acting honestly, and to the question whether her state of mind had any relevance to her grounds of complaint. He read these as amounting to saying (among other things) that B was so determined to get rid of her that it seized on the issue of academic qualifications and characterised what she had done as gross misconduct, without being prepared to take seriously her explanation and her profession of honesty. On that basis he summarized that aspect of her case at paragraph 51 as being that they were determined to dismiss her, that determination itself being derived from the allegations of sexual harassment. Later, in paragraph 55, he said this: “This is a case where the subjective state of mind and honesty of the claimant is at issue and it seems to me that if the Tribunal came to the conclusion that she had an honest belief then it would need to ask why the employer had framed the charge on terms of gross misconduct”.[42]On a point of detail as regards this passage, it might be easy to understand why B had framed the charge which A had to answer in terms of gross misconduct, since it could properly have taken the view that this was the case that she needed to meet. However, Judge Hand’s comment might be to much the same effect if it focussed on how B expressed its decision letter of 27 November 2007, from which I have quoted the relevant passage, speaking of gross misconduct, rather than on how B formulated the original charge.

The contentions of the parties

[43]For B and C, Mr Bowers submitted that this reasoning on the part of Judge Hand disclosed a fundamental misdirection. On a complaint of unfair dismissal it is not for the tribunal to decide whether the employer was in fact justified in taking the view that the employee had been guilty of (here) gross misconduct. Rather, the question is whether, after proper and reasonable investigation, the employer honestly and genuinely believed that the employee had been guilty of the conduct alleged: British Home Stores v Burchell [1978] IRLR 379 and ERA section 98. Accordingly, he argued, it would not be for the tribunal to consider what A’s state of mind was, honest or otherwise. Instead it would have to assess whether B came to an honest and genuine conclusion, after proper and reasonable investigation, as to A’s conduct.[44]Without formally accepting this argument, Mr Morgan sought to meet it by contending that there would be real and live issues as to the adequacy of the investigation by B. For example, in paragraph 21 of the grounds of complaint A stated that she had offered to provide disclosure of all financial statements to demonstrate that she had never paid for the qualification from Trinity College, but B “was not interested in pursuing this avenue of investigation”. The record of the first disciplinary meeting shows that she offered to provide her own and her husband’s bank statements for this purpose. At paragraph 23 of the grounds of complaint she alleged that B “did not have any genuine belief after reasonable investigation that she had committed an act of gross misconduct”, as well as asserting that she had not in fact committed any such act.[45]In addition, it is clear from the records of the disciplinary process that she relied on the facts that she had been asked about her qualifications on recruitment, that she had provided her certificates to B at that time, and that no further questions were asked of her on that topic at that time, so that B must then have been satisfied as to the position. On that basis A contended that B had at no time been misled by her qualifications.[46]Mr Morgan’s submission was that the employer is obliged to carry out a proper investigation of the allegations having regard to the information available and provided to it, and to any lines of enquiry which might exculpate the employee. Accordingly, he argued, B should have looked into the history of what had happened at the time of her recruitment, and should also have taken up A’s offer to disclose relevant financial documents. Furthermore, he said, the scope of the proper investigation would include A’s state of mind, so that, even if a misrepresentation was found to have been made which could be regarded as misconduct, B could form a view on the basis of proper and full information as to whether it had been gross misconduct such as to justify summary dismissal.[47]Mr Morgan relied on ERA section 98(4) as showing that whether the employee’s conduct was intentional or not was relevant to a reasonable employer’s view of the conduct as justifying dismissal or not. “(4) In any other case where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[48]He also relied on the reverse burden of proof which applies in cases of discrimination under section 63A of the Sex Discrimination Act 1975. If A could prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that B had committed an act of unlawful discrimination, or was to be treated as having done so, then the complaint is to be upheld unless B proves that it did not commit, or is not to be treated as having committed, such an act. In turn that would bring in the question of the adequacy of B’s investigation of the facts and circumstances during the disciplinary process.[49]Thus, the Employment Judge had taken the view that the case justifying A’s dismissal as regards her false claim to academic qualifications was so strong in itself that there was no reasonable prospect of her being able to show (on the relevant sequence of events) that it was unfair, either in its own terms or as being tainted by the previous history. Judge Hand accepted that the grounds for dismissal might appear to be strong but concluded that a finding that it was tainted by the previous history was a possible outcome of which there was a reasonable prospect. Mr Morgan sought to support this conclusion by reference to the unexplored avenues of investigation and to the reverse burden of proof.[50]For his part Mr Bowers emphasised the reasonableness of an employer which is an academic institution of regarding the genuineness of academic qualifications claimed by its staff as being of critical importance in maintaining its own integrity and reputation. He contended that the disciplinary process had given A every reasonable opportunity of showing that she had the qualifications that she professed to have and also that each qualification represented real academic work and achievement. On both these points B was reasonably entitled to conclude that she had failed. Although reference was made during the disciplinary process to A having bought the Trinity College degrees, the essential point was not whether she had paid any money to obtain the degree, but whether she had done any real academic work as the basis for the award of the degree. Even for a genuine degree the student might be expected to have to pay some fee to the institution, so the issue whether she had made any payment to the institution could not be decisive. She was unable to satisfy the disciplinary panel that the Trinity College degrees were awarded on the basis of her having done any academic work.

Discussion

[51]It would be difficult to disagree with the proposition that an institution such as B, in the further and higher education field, is reasonably entitled to take the view that, if one of its employees (whether or not among its academic staff) makes a false claim to hold a higher degree, its integrity and reputation would risk being compromised, and that this could be a proper ground for disciplinary action and potentially for dismissal.[52]I am not greatly impressed by Mr Morgan’s submission that B failed to make adequate investigations in any relevant respect as regards the issue of the genuineness of the degrees claimed by A. There was no reasonable prospect that anything would be gained by poring over A’s bank statements. Whether any payment was made to “Trinity College” was not the real issue; rather the question was whether she had done serious academic work on the basis of which the degree was awarded. That issue was addressed extensively during the disciplinary process, it was put to A at the initial meeting, and she had reasonable opportunities to meet it, both through her own evidence and by way of supporting evidence (such as that of G) over the period from before 10 October 2007 (the first meeting) to 23 November 2007 (the email after the final hearing).[53]I am not convinced by the submission that B should have investigated what happened when A was recruited. What she stated on her application form is known. It is reasonably clear that she did not produce to B at that time certificates for all the qualifications that she claimed to have, in particular neither the B.Ed. nor the B.Sc., since she admits that she did not have the first, and she was never able to produce a certificate for the second. I will assume that she may have produced the Ph.D. certificate. I proceed on the basis that B did not then query either the absence of the missing certificates or the status or worth of the Ph.D. That may raise a question as to whether B’s recruitment processes were all that they should have been at that time. It would be quite another matter for A to argue on that basis that B was in fact aware of the true position at that time, and that therefore, by employing her, B had waived any point about the discrepancy between her claimed and her true qualifications, or as to the substance or otherwise of the “Trinity College” degrees. For this point to be valid, A would have to show that B was aware that the “Trinity College” Ph.D. was not awarded on the basis of any academic work done for the purpose, and that it accepted the appropriateness of employing a person who held and used such a degree. It might be difficult to persuade an Employment Tribunal of that.[54]The third point on which Mr Morgan submitted that B’s investigation had been inadequate was as to A’s state of mind in respect of the qualifications, and in particular as to whether it was dishonest so that her behaviour deserved to be castigated as gross misconduct. As it seems to me, this was part of the investigation that B carried out through the disciplinary meeting and hearings involving A. The charge was put to her both in the letter dated 20 September 2007 by which she was told of her suspension, and then in more detail at the first hearing. A can be taken to have understood not only the seriousness of the charge but also that, in order to meet it, she needed to show that she had the relevant degrees, and had done real academic work to gain them, or if she did not (as with the B.Ed.) why she had claimed to have it. The record of the first meeting and the hearings suggests to me that her response was of a kind which B could reasonably regard as inadequate to prove that the Trinity College doctorate was granted on the basis of any real academic work. Since she described herself to B as Dr A when applying for the job, and to others as such in her emails, it seems to me well arguable that B could reasonably take the view that, in that respect alone, regardless of anything else, her conduct was unacceptable on the part of an employee of such an institution, such as to amount to gross misconduct.[55]For those reasons, Mr Morgan’s arguments do not seem to me persuasive so far as they relate to the issue of the qualifications by itself. However, he argued that it was wrong to take this by itself, and that the employment judge’s error was to treat this misconduct as so significant in itself that it cannot have been infected by the previous history.[56]Mr Morgan pointed to A’s allegation that the disciplinary process was used to get rid of A, regardless of the true merits on that issue itself, because of the previous history and in particular A’s having raised a grievance because of that history. As he put it in his skeleton argument:
“the inquiry into academic qualifications as applied to A, together with the manner in which B investigated and resolved those issues, were tainted by a settled intention to terminate her employment, regardless of the evidence presented by her and/or the factual issues raised by her in the investigatory process, which were never taken up.”
[57]In his oral submissions Mr Morgan drew attention to the fact that, although B contended that the disciplinary process and the grievance process were entirely separate, in fact D was involved in both processes, as I have described. He dealt with the grievance in the first instance and, it was alleged, tried to put pressure on A to withdraw it. He held the investigatory meeting with A about the disciplinary process and presented B’s case at the later meetings. On this basis Mr Morgan submitted that there was real scope for a finding that there was contamination of the disciplinary process by reference to the previous history and the grievance process. The involvement of D may have been justifiable on the basis of restricting to a small number of people the knowledge of the allegations made both by and against A. Moreover, given the nature of A’s response to the disciplinary process, the existence of the grievance procedure could not be ignored by those involved in the disciplinary process. It seems to me that this point is less powerful than A’s contention that C was involved in all decisions on the part of B, including, she would say, those following from both the grievance procedure and the disciplinary process.[58]Relying on the reverse burden of proof under section 63A, Mr Morgan sought to rely on A’s allegation of a pattern of behaviour, and on the response to the grievance having been to press A to withdraw it and when that was unsuccessful, for D to investigate and reject it. He invited us to consider what inference might be drawn by an Employment Tribunal from the suggestion in July 2007 that she was to be made redundant, rapidly withdrawn after she raised her grievance. A alleged that the proposed redundancy would have been no more than a way of getting rid of her, the motivation of B (because of the influence of C) being the previous history. The withdrawal of the redundancy proposal was alleged to have been a response to the lodging of the grievance. In essence A’s case is that the issue of academic qualifications was taken up, or at any rate used, as an excuse to get rid of her, because of her previous history, not for its own sake. Mr Bowers characterised that argument as amounting to saying that the disciplinary process was a sham.[59]I can understand why the employment judge came to the conclusion that he did on this point. I also accept, as I have said above, some of Mr Bowers’ criticisms of Judge Hand’s reasons for his decision. Nevertheless, having heard what may well have been fuller argument on the point than was presented at either level below, I have come to the conclusion that there are relevant issues of fact to be determined, as to which the outcome cannot properly be foreseen at this stage, on the reasonable prospects of success test.[60]Because of section 63A of the 1975 Act, the burden may well be on B to prove that the dismissal was not on grounds which would constitute unlawful discrimination. It may be that, when an Employment Tribunal has heard the evidence adduced by B, it will be satisfied that the dismissal was indeed on the grounds on which it was expressed to have been made, in the letter dated 27 November 2007. In that case it may also be that the Employment Tribunal would accept that B had undertaken all reasonable and proper investigations on relevant matters, and had come to a conclusion which a reasonable employer could properly reach, so that the dismissal was not unfair. I should make it clear that my earlier comments about the issue of the adequacy of the investigations undertaken by B do not constitute a decision that B did discharge its duty in that respect. That decision is for the Employment Tribunal to reach once it has heard all the relevant evidence.[61]But it seems to me that at this stage there remains a prospect which is more than fanciful that B might not succeed in discharging the reverse burden of proof, and that it might be held that the dismissal was influenced by C and was in truth a reaction to A having rejected C’s advances and having complained about them by way of her grievance. In coming to this view I have borne in mind in particular the comments of Maurice Kay LJ in Ezsias to which I have referred above at paragraphs [8] and [9] above.

The time limit issue

[62]If A’s claim of discrimination was based on the acts up to September 2006 it is plain that the claim in that respect was out of time. The Employment Tribunal refused to extend time for such a claim to be brought and the EAT refused to interfere with that: see paragraph 57.[63]However, A also alleged a continuing course of conduct, up to and including the proceedings in respect of the grievance. On that basis time ran from the last act in the series, and the application was not out of time. The appeal to the EAT relied on that argument, as well as appealing against the refusal of an extension of time. Judge Hand accepted that contention, despite having rejected the other: see paragraph 58. If the claim cannot be struck out on the merits, it seems to me to follow that no part of it can be struck out as being out of time, for the reasons given shortly by Judge Hand.

Conclusion

[64]I have not found this an easy case to decide. I recognise the strength of the case for B that the dismissal was separate and distinct from, and unaffected by, the issues raised in the grievance process, and was fair on its own terms. But with some hesitation I have come to the conclusion that Judge Hand was right (though not in all respects as regards his reasons) to decide that B had not succeeded in demonstrating that A’s claims have no reasonable prospect of success. (I regret the double negative in that sentence, but it is unavoidable, given the nature of the test posed by the rule.)[65]Also, for the reasons given briefly above, the sex discrimination claim cannot be struck out as being out of time.[66]For those reasons, I would dismiss the appeal.

Restriction on reporting

[67]As I mentioned earlier, a restricted reporting order was made in the Employment Tribunal and again in the EAT. Such an order lasts until both liability and remedy have been determined, unless it is revoked earlier: Employment Tribunal Rules of Procedure rule 50(8)(b) (and compare Employment Appeal Tribunal Rules 1993, rule 23(3) – until promulgation of the decision). The Court of Appeal has all the powers of the court or tribunal from which the appeal is brought: CPR rule 52.10(1). It follows that, if necessary, the Court of Appeal can make such an order in relation to the proceedings. The restriction on reporting was continued on an interim basis pending the hearing of the appeal when permission to appeal was granted by Sir Richard Buxton. That interim protection was plainly appropriate. Since the appeal is to be dismissed and the claim will continue, it is appropriate that the same restriction should apply in relation to the proceedings on the appeal as already apply (and will continue to apply) in respect of the proceedings below as a result of the orders made in the lower tribunals.[68]I agree.[69]I also agree.

Cited in 22 later judgments

and 13 more of the most senior