A v 1) B 2) C [2009] UKEAT 0450_08_1305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0450_08_1305Case No Appeal No. UKEAT/0450/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
AAPPELLANT1) B 2) CRESPONDENT
Before
His Honour Judge HandDate 13 May 2009
[1]APPEARANCES For the Appellant MR E MORGAN (of Counsel) Instructed by: Messrs Knights LLP Solicitors The Brampton Newcastle under Lyme ST5 OQW For the Respondent Mr J BOWERS (One of Her Majesty's Counsel) Instructed by: Messrs Wilkin Chapman Solicitors Po Box 16 New Oxford House Town Hall Square Grimsby NE Lincolnshire DN31 1HE SUMMARY PRACTICE AND PROCEDURE: Striking-out/dismissal. Unless the Claimant's contentions can be rejected without any evidence being heard, it is an error of law to strike out a case as having no reasonable prospects of success on the basis that it is unarguable. In the instant case, whilst it might be difficult for the Claimant to persuade a full tribunal that she had not been guilty of academic fraud and thus not committed acts of gross misconduct and that her dismissal owed nothing to her allegations of sexual harassment made against a male superior, the employment judge had erred in concluding that giving evidence in support of her allegations could not make the case arguable. Nor was the case sufficiently exceptional to justify the dismissal of allegations of sex discrimination without factual investigation. HIS HONOUR JUDGE HAND QC This is an appeal from an Employment Judge, Judge Forrest, sitting alone in Hull on 11 July 2008, on a pre-hearing review conducted under the auspices of rule 18 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 .[2]The judgment was sent to the parties on 25 July 2008. By that judgment Judge Forrest dismissed the claim made by the Claimant that she had been unfairly dismissed on 27 November 2007, and also dismissed claims that she made of sex discrimination and victimisation relating to the institution of disciplinary proceedings and the dismissal on 27 November 2007, as having no reasonable prospect of success. That is a combination by me of paragraphs 1 and 3 of the judgment, which one finds at page 1. The Judge also dismissed claims of sex discrimination, harassment and victimisation relating to earlier periods in the five years of her employment by the First Respondent, and which she said resulted from the Second Respondent's conduct towards her, because he concluded that they were out of time and it was not just and equitable in all the circumstances to allow them to proceed. The dismissal of the claims identified at paragraphs 1-3 of the judgment was supported by his reasoning at paragraphs 4 – 6, he having set out the factual matrix at paragraphs 2 and 3, and his judgment on the time point covers paragraphs 7-9 of the judgment.[3]As a result of an order made by HHJ Clark in this Tribunal on 5 January 2009 there is a restriction on the reporting of the proceedings, and the parties are known so far as the Appellant is concerned as "A" and so far as the First and Second Respondents are concerned as "B" and "C". I may refer to them in such terms but I am more likely to refer to them as the Claimant and the First and Second Respondents.[4]At the Employment Tribunal the Claimant was represented by her then solicitor, Mr Maidment. In this Tribunal she has been represented by Mr E P Morgan of counsel. The First and Second Respondents have been represented at the Tribunal by their solicitor, Mr Buckle, who has represented them throughout, and before me by leading counsel, Mr John Bowers QC.[5]I will deal with the facts in more detail in a moment but at this stage it is sufficient for me to say that the First Respondent is a higher educational institution. The Claimant was not employed in an academic capacity in that institution but was employed latterly as Director for Community Development & Partnership Development. Her employment commenced on 25 March 2002 and ended, as I have indicated, on 27 November 2007. The Second Respondent can be described as the Principal of the institution. It was assumed by the Employment Judge that for the purposes of his consideration of the application under rule 18 that the Second Respondent had very considerable influence on all significant decisions within the College; that is set out at paragraph 4. He has been accused by the Claimant of having sexually harassed her.[6]The Form ET1 is dated 25 February 2008. It commences at p. 12 of the bundle but the pertinent part runs from pp. 20-23 where the grounds of complaint are set out. In paragraph 2 the Claimant makes what might be described as a general allegation that throughout her employment by the First Respondent she had been "subjected to unwanted conduct and attention of a sexual nature by the" Second Respondent. At paragraph 3 she alleged that a pattern developed "whereby following the rejection of a sexual advance the Claimant was treated adversely by being ignored for a period by the Second Respondent or more significantly with alterations made to her role". Paragraph 4 alleges a specific incident, in effect of indecent assault, on 18 September 2006. Paragraph 5 details a move from one post on one campus to another campus that follows a few days after that. Paragraph 6 refers to a specific allegation of, in effect, studied rudeness in a conference in October 2006. And paragraph 7 alleges that, starting in July 2007, it was suggested that the Claimant was at risk of redundancy; she being the only person, she alleged, to then be made redundant. There was a meeting on 13 July 2007, which is dealt with at paragraph 8 and which she suggests, at least by implication, was not well prepared and resulted in a certain amount of ad hoc calculations as to her redundancy entitlement. According to paragraph 8, it seemed to the Claimant to be the final word. Her state of mind is described at paragraph 9 as being that of failing to understand the rationale for the redundancy and the fact that there appeared not to have been, as she puts it, any "genuine attempt to retain her within the organisation". The only conclusion that she could reach was that this was related to the allegations that I have described raised in the preceding paragraphs; and she made the point that the Second Respondent managed the organisation "very closely and effectively" and made "all key decisions".[7]She had not before then disclosed any allegations against the Second Respondent to her employer, the First Respondent, but on 16 July she lodged a written grievance in respect of sexual harassment. That written grievance is to be found at p. 40 of the bundle. In this hearing, paragraph 16 has been referred to. It reads: "Since then, "C" has virtually ignored me. He has not tried to touch me physically but he has subjected me to tremendous mental anguish. At this year's AGM C's behaviour was very strange towards me. He either totally ignored me, or else he would just stare at me, looking me and [sic] up and down. This made me feel extremely uncomfortable and ill at ease." The paragraph opened with the words "Since then"; that was a reference to the staff conference in October 2006. It is said that is an indication the situation, albeit at a lower level, was still continuing with the Second Respondent ignoring the Claimant.[8]The redundancy situation appears to have progressed to the point of there being a Compromise Agreement. But then the situation was reversed: the Claimant received a letter on 17 July indicating that she had not in fact been made redundant, and so she continued in employment. There was a meeting on 9 August 2007 with Mr D, who was employed by the First Respondent. At that meeting her grievance issues were discussed, and at paragraph 13 the Claimant says this:
"Mr D pressurised the Claimant to withdraw her grievance against the Second Respondent referring to possible alternative positions and to an option of the Claimant leaving the First Respondent's employment subject to a Compromise Agreement. The Claimant rejected such proposals."
[9]There then occurred an event that the Claimant herself described as coming "out of the blue". By 24 August the First Respondent had become aware that an article was likely to be published in the Times Higher Educational Supplement. That article, the First Respondent was aware, was likely to be critical of the conduct of one employee whose qualifications were being questioned by a fellow academic. Accordingly, the First Respondent asked all staff to confirm, in effect, the information relating to their higher degrees. At p. 45 of the bundle there appears an email thread the gist of which was that on 24 August staff were asked to provide in relation to higher degrees, "the title of the degree, the university or awarding body, the year of completion, the topic of your final year dissertation and any particular area of research interest that you may have". By 6 September only two people had not responded, one was the Claimant in this case, the other person was a man called E. On 7 September 2007 the Times Higher Educational Supplement published an article by Melanie Newman entitled "PhD questions spark legal row" (p. 46 of the bundle). The article reported there had been an exchange between somebody in New Zealand and E as to the PhD which Mr E had been awarded or acquired. This exchange had started apparently in June and Dr or Mr E had been increasingly irritated by the persistent enquiries by the academic in New Zealand, to the point, accordingly to the article, where he had threatened legal action. It seems that Dr E resigned shortly afterwards. The circumstances of his case are not completely clear but it seems at least likely that he did not have a bona fide qualification or the right to style himself as "Doctor".[10]The grounds of complaint continue at paragraph 15 by the Claimant indicating that she had listed her qualifications at the time of having been headhunted from another College and had provided copies of all the relevant certificates to the First Respondent at that time.[11]Paragraph 16 is significant it reads as follows:
"In one respect, the Claimant inaccurately stated that she had a "
B ed." gained from the University of Hull whereas she had obtained a slightly different qualification after a similar three [year] length period of study which involved a teaching certificate with a diploma in Youth Service work. This qualification reflected the Claimant's then current areas of activity and, as would a B ed., gained her a teacher reference number allowing her to practice as a teacher." The Claimant makes the point in her grounds of complaint that she was not employed in a teaching role and that she had presented the certificates then in 2002 and that had never been questioned.[12]She describes the allegation in respect of the University of Hull qualification as being one raised towards the end of the disciplinary process subsequently pursued against her; and, by paragraph 19 of the complaint, she regards the primary allegation, as she puts it, as being that she had had bought a qualification from the University of Delaware and brought the Respondent into disrepute. This was not something that had been the subject of any great publicity, and so her case was she had not brought the institution into disrepute by possessing the qualification and that she had only used her title of Doctor in limited circumstances. By paragraph 21 she said that the University of Delaware had only recently been discredited by selling qualifications but when she gained her qualification from that institution in 1995 she had been unaware as to whether or not such a practice existed and she had provided a research paper of acceptable standard in order to gain a Ph.D qualification. She had not, she said in the grounds of complaint, purchased the qualification.[13]Complaint was made by the Claimant that throughout the disciplinary process she had not been afforded proper disclosure of information. She herself had offered to disclose all her financial information in order to demonstrate that she had not purchased the degree. She says at paragraph 22 that:
"22. She had not been given a full opportunity to respond to the allegations being made against her or even to fully understand what those were. By the end of the process the Claimant was worn down by the treatment she had received from the First Respondent and was prepared for the inevitable termination of her employment which she believed would occur regardless of any argument advanced by her."
[14]She goes on to say in paragraph 23:
"The Claimant contends that the First Respondent has unfairly dismissed her. She maintains that the First Respondent did not have any genuine belief after reasonable investigation that she had committed an act of gross misconduct. Nor had in fact the Claimant committed such an act of gross misconduct or any act or failing such as to justify the termination of her employment. She contends also that the dismissal was procedurally unfair."
[15]She continues at paragraphs 24 on:
"24. The Claimant contends that the dismissal was in fact a reaction to her having raised allegations of sexual discrimination and in particular sexual harassment against the Second Respondent. The Claimant alleges that she has been treated to her detriment for having raised such allegations in that the First Respondent has then sought to pursue all means to disadvantage her and remove her from the First Respondent's employment." 25. Indeed, the First Respondent is guilty of discriminating against the Claimant on the grounds of her sex in seeking to terminate her employment on the earlier occasion by reason of redundancy as a consequence of her rejection of the Second Respondent's sexual advances. 26. The Claimant further claims that she has been sexually harassed by the Second Respondent over a period and in a number of instances particularised herein and in her statement of grievance dated 10 August 2007 and submitted to the First Respondent."
[16]I have taken the time to identify the Claimant's case because it seems to me that is the point of departure so far as a consideration of whether this is a case that has no reasonable prospect of success.[17]The case against her is based on documentary material, some of which, namely notes of disciplinary and grievance hearings, but in particular disciplinary hearings, consist of what she herself has said. The starting point in the documentation is at p. 36 of the bundle, the Application for Employment form, which dates from December 2001 or at least the closing date was December 2001 (the form appears also at p. 39 to have been dated 1 December 2001). The form's preamble reads as follows:
"…We are interested to know why you have applied for this post, why you want to work at XX College, what skills you can offer and any special interests you have. The decision to invite you to interview will be based on the information you provide."
[18]The Respondents to this appeal draw attention to the fact, which they say is not without significance, that under personal details the Claimant described herself as "Dr.". At p. 38 a table of Education & Qualifications appears. That has been filled in by the Claimant. The first entry is Hull University Postgraduate Certificate in Higher Education; that is said to have been between the dates of 1997 and 1999, and there is no question but that she was awarded such a qualification - I understand the certificate to be at p. 53 in the bundle. The next entry is the subject of controversy. She describes herself as having obtained a "PH.D in Philosophy of Psychology". The dates are said to be between 1991 and 1996. At p. 55 a photocopy of a certificate can be seen. The institution at the head of the certificate is said to be "The Trinity College" that is in large type. In much smaller type below the following appears:
"AND UNIVERSITY THE EDUCATION DIVISION OF THE U.L.C. INCORPORATED IN DELAWARE, U.S.A."
It goes on in the body of the document to indicate that there has been conferred upon the Claimant the degree, rank and academic status of Doctor of Philosophy in Psychology, and it is dated 1 July 1996.[19]The next entry in the Entry & Qualifications table at p. 38 is a Masters Degree in Educational Studies. That is said to have been awarded between or as a result of study between 1988 and 1991. I understand it to be not in dispute that such a qualification was awarded and the certificate appears at p. 54 of the bundle.[20]The next entry is Batchelor of Science (Hons) U.S.A., said to be between 1979 and 1981. Then there appears Batchelor of Education. In my copy of p. 38 the years 1976 to 1979 have been crossed out and below that there is Youth & Community Diploma and the years 1976 and 1979 appear opposite that, and one reading of that may be that those are different aspects of the same thing. That I understand to be the Batchelor of Education at the University of Hull, which the Claimant accepted in paragraph 16 of her grounds of complaint at p. 22 had been, as she put it, "inaccurately stated". This was "a slightly different qualification after a similar three (year) length period of study".[21]The final entry at page 38 is I think not pertinent to this case.[22]On page 39, it is pointed out that the terms of the declaration are that the applicant for the job understands that:
"any offer of employment will be subject to documentary evidence being produced to substantiate the details given on this application form" and then on the last line above the signature the applicant for the job states the following: "
The information on this form is correct and complete to the best of my knowledge and belief."[23]As will be appreciated from the recitation above relating to the grounds of complaint in this case, the Claimant's position is that she had produced the material. She never produced the Batchelor of Science certificate nor the Batchelor of Education Certificate from Hull because she did not have them, but she had produced the other material, and that had never been challenged.[24]In the e-mail traffic on 7 September the Claimant answered questions as to what her qualifications were. The point is made that before doing that she had, it might be thought prevaricated, by saying that the data base held her qualifications, and when that proved not to be a satisfactory answer, she said the following in an e-mail on 7 September 2007 at 10.33:
"These are the higher ones I have missed of the other, do you need those as well." "
B.ED Hull University Bsc Trinity College MA in Education Hull University Higher Education teaching certificate (M.ED) Hull University PH.D Trinity College "(let me know if that is enough detail ... I am moving offices at the moment … " I ought to add that this is a further iteration of her signing herself as "Dr."[25]She was asked fairly shortly afterwards by an email in reply the following:
"Hope your move has gone well. I only need the higher ones thanks. I'm sorry to keep asking you for further information but I really do need all of the questions answering for each: 1. Title of the Degree: 2. University: 3. Year of completion: 4. Topic of final Dissertation: 5. Research Interest: I've also noticed that there are quite a few Trinity Colleges, could you confirm for me which one you studied at (Ireland, London, Cambridge)?"
[26]The Claimant replied on the same day, 17 September, shortly afterwards. Her reply was as follows:
"Master of Arts In Education University of Hull 1990 Expanding the role of women and girls experiencing sexism in the Youth Service Human Diversity Doctor of Philosophy in Psychology Trinity College University of Delaware 1996 The nature of the person, culture, health and alternative therapies Cognitive Psychology Postgraduate certificate Higher Education Teaching Certificate University of Hull 1999 Collaboration between Higher Education and Further Education. Delivering Higher Education in an F>E setting."
[27]Shortly afterwards on 20 September 2007 the Claimant was suspended by a letter written by the Registrar, Mr D. The first sentence reads as follows:
"I am writing to confirm that you have been suspended from work with immediate effect pending an investigation into the allegation of gross misconduct that you have committed academic fraud through purchasing academic qualifications and in so doing have brought the Institute into disrepute."
[28]The Claimant's grievance had been rejected on 11 September and an appeal was heard on 23 October. In the meantime on 28 September there was a disciplinary investigatory interview held between Mr D and the Claimant. During the course of that the Claimant was asked a number of questions by Mr D. In the third paragraph at p. 52A Mr D was asking about the Batchelor of Education. The Claimant accepted that it was from the University of Hull. She was asked to confirm the level of the qualification and she replied that it was accepted as a B.Ed. degree. She said it was not an honours degree but an ordinary degree.[29]She was then asked about the Trinity College and University certificate, which I have indicated is at page 55. She was asked where she did the study, and she indicated that it was a correspondence course. She was asked whether this was the B.Sc and not the doctorate, and she replied:
"it was all part of a long process and relationship with Trinity College."
Mr D asked her about paperwork, and the reply appears to have been somewhat of a non sequitur because the Claimant said that there was no financial arrangement. Mr D persisted in relation to the paperwork. The Claimant said that she was trying to find the evidence.[30]At page 52B she indicated that the qualifications from America were not by examination. She was asked about the PhD again later in the meeting and at page 52C she said:
"her research was very similar for all of them, it was part of the process, she was helping them setting up training courses, she said she knew that. He asked how she got to know that. She said through friends and colleagues at Hull University."
She was asked questions about how the Doctorate had arrived (again that is to be found at p. 52C) and she could not remember. She was asked where she sent her work for marking and eventually she said:
"Her main tutor was in Spain, she sent to Spain."
[31]She also said later in that interview, making the point that she reiterated in her originating application, that she had had a letter confirming her employment. She said "therefore they had already seen her qualification at that time and it was not a problem then. She said she didn't lie about it. She said it was a totally false allegation that she purchased a qualification when she had not. She said she made no financial arrangement whatsoever. She said that she had never at any time lied about where she had got her qualifications from and this had been accepted when she was employed. She said she believed this was a clear action in the light of the ongoing grievance she had raised against "C". She said this had happened after she had logged her grievance and she saw this clearly as another attempt to discriminate and intimidate her. She said she also believed a message was being given to other female staff and students about what would happen if they came forward. She said she believed this action was being taken because of the grievance she had raised."[32]As part of the investigation the First Respondent obtained material from the Internet relating to the Trinity College and University. This material is to be found between pp. 56 – 69. It is quite clear from that material that in 2007, and the material was obtained on 5 October 2007, this institution firstly appears to have had its office in Spain, in Fuengirola near Malaga; and, secondly, it is clear from the material that the institution was prepared to sell qualifications, albeit it suggested that there had to be some sort of experience before the qualifications would be provided (at least in some instances).[33]On 12 October there was a disciplinary meeting with the Claimant. Present then was F, who in effect chaired the meeting. Mr D was now in effect presenting the case against the Claimant. He reiterated a good deal of what had been said earlier. What he said at p. 71 is of considerable importance to this case. In the third paragraph on p. 71 the following appears:
"I can say for the record that the approach for the claimant is the same approach as E and we would do this for any member of staff. The reason for this is that as an organisation we exist to put on programmes of education of learning and training for people and particularly for individuals in I [a unitary authority]. This is close to the claimant's role as this is getting people into education from backgrounds where they have disassociated themselves from this process. We expect these people to come in and study for qualifications and gain them. If we have someone who is leading that programme and they themselves have a qualification that they have not secured through that academic rigorous process it cuts to the core of the credibility of the Institute."
And he then goes on to say immediately afterwards:
"The allegation is one of academic fraud and misrepresenting themselves to people with qualifications."
[34]The Claimant in that meeting said as follows:
"I would like to state that at no time has this college been misled by my qualifications. I totally refute the allegation that I have purchased any qualification and I will give you access to both my bank account and my husband's bank account should you wish so that you can have a look at those."
Then she goes on to say that she has worked hard and she proffers the name of two people who she says can provide support for her contention that she had produced material upon which she was assessed and upon which or in respect of which the PhD and the BSc were awarded.[35]There was then a meeting between F and G, who was one of the people put forward by the Claimant; that was on 1 November 2007. G said this:
"At this point she was working (may have started before but was definitely doing work for the claimant at this time and this continued for several years, up to the birth of the claimant's second child in about 1995. During this period G had constant typing tasks related to the business e.g. reports and studies e.g. essays. All the documents were handwritten by the claimant for G to type up. G remembered a 2 week period when the claimant and her husband went on holiday. She was house sitting when the claimant lived on Laceby Acres and did a lot of typing for the PhD / thesis document during that period. F asked if G remembered the size of the document she was working on. G explained the document was thousands of words and estimated it to be approximately 100 / 200 pages. G added that she was not very good at estimating. F asked how G knew this was a document for a PhD. G recalled that the claimant said it was for her PhD and she took this as the truth. F asked what the document was about. G explained it was about aromatherapy and the effects of the oils and that she didn't understand the information as it was not a subject she knew about. There was then shown to G a booklet from the company the claimant had been running at that time and G accepted that she had typed that booklet."
[36]After that the disciplinary hearing was reconvened on 22 November 2007. It is clear that the First Respondent had had the material, namely the booklet, assessed. It was said by somebody who had looked at it to be "no higher than level 3". Mr Bowers QC told me that means that it was at best A level standard. The Claimant said that it was probably level 2 to 3 standard work.[37]There was then discussion of the Hull University qualification. There was no B.Ed to be found in any of the names by which the Claimant had been known in the records of Hull University. And in the course of that, Mr D who was in attendance, reminded the Claimant:
"that bringing the Institute into disrepute was classed under the Institute's Disciplinary Procedure as being something we would consider as gross misconduct."
[38]The Claimant's position was that she found the whole process very intimidating. She said "At no time had the College been misled about her qualifications." She also said the "original claim that she had purchased her qualifications" had yet to be shown. She said "she certainly did not purchase her qualifications on the internet; she said it was not even around at the time she studied for her PhD." She reiterated that she had not misled the College. She refuted the allegations, and then she said the following:
"she believed they were in breach of their own policies and procedures and it was a malicious action due to her grievance of sexual harassment against the second respondent so she did not believe there was a further case for her to answer."
[39]She was asked about the brochure that was the only evidence of work that had been provided. She said that she believed that that was "pioneering and groundbreaking" at the time. It was the best work that she could find. The point was made to her that she had had more than three weeks to find material and that was all that had emerged. The point was made forcefully that Trinity College and University was an organisation that "offered higher degrees within weeks and anyone in possession of one was in danger of academic fraud". The Claimant's reply was that was not so when she had got her qualifications, and what she said later was this (said in the context that someone who she wanted to be present had not been able to be present for at least part of the meeting but it is not entirely clear):
"this was not the way to treat somebody. She said at no time had she been offered support, and this was another example of [the] way she was being treated. She said she was not trying to be intimidating; that was not the case."
[40]As a result of that meeting a decision was made by the First Respondent which was communicated to the Claimant in a letter dated 27 November 2007 by F, who was the Vice-Principal of the First Respondent. The decision is as follows:
"In relation to the allegations presented, I found no evidence that you had acquired a B.Ed from Hull University as you asserted. You did not produce any documentation to substantiate your holding of this qualification and chose at the re-convened hearing not to challenge this allegation. I noted the evidence of Dr Amanda Wilcox. I also found that you had acquired both a BSc and a PhD from Trinity College and University. The Educational Division of the ULC incorporated in Delaware USA from which organisation anyone can purchase academic qualifications (degrees, masters, doctorates) without undertaking the standard processes of academic study and assessment. In so doing you have misrepresented your academic qualifications as being from a legitimate university. The dates on which you now claimed to have completed your BSc. do not match the dates given by you on your application form to join the Institute in 2002. The certificate of your PhD which you produced matches the certificate shown on the website of Trinity and University College which is recognised as a 'degree mill'. The wording of the PhD on your application form when you joined the Institute in 2002 does not match that on this PhD certificate nor the words on the letter you sent D after the hearing on 12th October 2007. The information about your work at Cei Concepts which you sent me was described by you as "research material and relationship given in 'good faith' with knowledge that was available at the time (which may now seem less pioneering and ground breaking - ; this was 11 years ago)"
. This information was assessed by H - and subsequently acknowledged by you - as being at best at level 3. The process of acquiring a BSc and then a PhD from Trinity College and University in the way in which you have described does not bear any resemblance to the normal route followed by individuals undertaking higher level academic study." There was then reference to the advertisement of that institution on the web and the letter continues: "The Institute is proud of its academic processes and achievements, in particular in relation to the growth of its higher education students in recent years. That reputation is damaged by the news and publicity that your 'qualification' has been gained from a spurious organisation purporting to be an academic one and in a manner which does not correspond to standard academic processes. You have acted without integrity and academic credibility. I am therefore dismissing you from the Institute's employment for gross misconduct for academic fraud by claiming to hold a BEd from Hull University and by acquiring academic qualifications (BSc and PhD) from Trinity College and University without undertaking the standard processes of academic study and achievement of an established and reputable university. You have misrepresented yourself to staff and external clients as possessing those qualifications and in so doing have brought the Institute into disrepute. This dismissal is a summary dismissal … and takes immediate effect.[41]It is not possible to know how much of that material was poured over by the Judge in the course of the hearing at Hull on 11 July 2008. That hearing had been requested by the Respondents in a letter dated 30 April 2008. It seems that no objection was taken to that course and the matter was argued on the basis of the material or some of the material that I have just recited in detail. The Employment Judge, Judge Forrest, in para. 3 of the judgment, at p. 2 of the bundle, referred to the article in the Times Higher Educational Supplement and the case of E. That is really as much of the factual matrix of this case as appears in the judgment of the Employment Judge. He moves from that to paragraph 4 which reads as follows:
"4. Given that agreed sequence of events I cannot see that there is any reasonable prospect of success at persuading a Tribunal that the disciplinary proceedings which led to dismissal has any connection whatsoever with the earlier incidents of sexual harassment, or the complaint of sexual harassment in July 2007. For this purpose I am prepared to accept, as the Claimant asserts, that the second Respondent in the matter has very considerable influence on all significant decisions within the College. He is the person she accused of sexual harassment in July 2007. Accepting that he 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 face of the very clear evidence of the claimant'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. Indeed, in relation to the Bachelor of Education from Hull University she accepts that she was never awarded that degree."
Paragraph 5 goes on "5. That provides an extremely strong reason for any academic institution to dismiss her, regardless of whether the institution had relied on the possession of such degrees in offering her the job, and regardless of whether her job involved teaching or not. Any academic institution must take the integrity of the academic purpose, the assessment and awarding of academic qualifications, seriously. If any member of the staff of such an institution claims to possess qualifications which they knew they did not have, or were not entitled to claim to hold in good faith, such as the title of Doctor, used on occasion by the Claimant in this case, dismissal is overwhelmingly indicated. 6. It follows from those findings that I also dismiss her claim for unfair dismissal on the grounds that it has no reasonable prospect of success."[42]So the Employment Judge advanced this analysis. Firstly, that the case against the Claimant in relation to the BSc and PhD was a false claim supported by clear evidence, indeed supported by what he said was overwhelming documentary evidence. He concluded that she could not in good faith have thought that she was entitled to say that she had been awarded a Doctorate and in respect of the Batchelor of Education she accepted that she had never been awarded the degree. The second stage of his analysis appears to be that being so there could be no argument but that she had been fairly dismissed. The third stage of his analysis was that since all this had been triggered, almost one might say deus ex machina by Mr E, Mr E's probity being called into question in the Times Education Supplement, that must be clearly and arguably a break in the alleged continuity or chain of connection between the earlier allegations of earlier incidents of sexual impropriety and sexual harassment, on the one hand and the grievance procedure and the way in which the grievance procedure had been conducted, on the other.[43]Mr Morgan, on behalf of the Claimant, submits that analysis involves an error of law on the part of the Employment Judge, because in arriving at those conclusions he has in effect assumed that there can be no factual debate and no possibility of a contradiction or controverting of the case put forward by the Respondents.[44]Mr Bowers QC, on behalf of the Respondents, submits that the evidence is so overwhelming that this was a perfectly proper conclusion for the Judge to have come to; one that is in effect a decision of fact and that no error of law arises. That, if I indulge Mr Morgan by accepting his submissions, I will simply be coming to a different conclusion on the facts and that is certainly not the function of this Tribunal.[45]There has been considerable discussion during the submissions of the case of North Glamorgan NHS Trust v Eszias [2007] EWCA Civ 330 also reported [2007] IRLR 603 , a case of an oral and maxillofacial surgeon, who was summarily dismissed, he claimed, because he was a whistleblower; also he said his dismissal was plainly unfair because of conventional grounds under s.98. The reason put forward by the Trust for his dismissal was that he had been responsible for a breakdown of relationships in his department. The relationship of trust and confidence had been destroyed and his employment simply could not continue, and that, therefore, he had been fairly dismissed. The Trust sought and obtained from the Employment Tribunal a hearing under rule 18, and as a result the Employment Tribunal struck out the claim pursuant to rule 18(7). Rule 18(7) in its pertinent part reads:
"a tribunal may make a judgment or order - (b) striking out all or part of any claim … that has no reasonable prospect of success."
[46]The strike out was appealed to this Tribunal where the then President, Elias J, allowed the appeal on the basis, pertinent to this case, that it was not an appropriate case for striking out. At paragraph 4 of the judgment of the Court , given by Maurice Kay LJ, the balancing exercise that needs to be considered as a background to an application under rule 18 is referred to. It was submitted in that case by Mr Pitt-Payne, who appeared on behalf of the appellants, as has been submitted in this case today by Mr Bowers QC, that the whole purpose of altering rule 18(7) so as to include the rubric "no reasonable prospect of success" is so as to prevent cases which are truly hopeless from occupying the time of tribunals and the parties having to expend costs on such hopeless litigation. At paragraph 4, Maurice Kay LJ says this "To state the obvious, an Employment Tribunal should be alert to provide protection in the face of an application that has little or no reasonable prospect of success but it must also exercise appropriate caution before making an order that will prevent an employee from proceeding to trial in a case which on the face of the papers involves serious and sensitive issues."[47]At paragraph 8 there is a synopsis of the competing cases in Ezsias . The surgeon's case was that he had made a number of complaints about his colleagues and about the way the department was run and the shortcomings with which it was run, in the course of which he was alleging fraud on the part of colleagues and dereliction of duty relating to patients and so on. He claimed that the safety of patients was being jeopardised. The Trust's case was that the relationship between him and his colleagues had broken down, and that it was that rather than his disclosure of what he saw as the shortcomings of the Trust that had led to his dismissal. The Trust's case was supported by a letter from nine of the respondent's colleagues, who had all expressed great concerns about his practice and indicated that there was a total breakdown in relationships. The Tribunal judge had expressed herself in trenchant terms set out at para. 12. She had said:
"The whistleblowing claim would have no reasonable prospect of success in my view in that the tribunal would go on to find that the principal reason for dismissal was not that the claimant had made a protected disclosure but that he was dismissed for 'some other substantial reason' within the meaning of s.98 of the 1996 Act, namely irretrievable breakdown of the relationship of trust and confidence."
[48]The issue was of course was whether there was an error of law committed by the Tribunal in relation to that analysis. At para. 26 Mr Pitt-Payne had made a submission which was accepted by the Court. His submission was:
"That what is now in issue is whether an application has a realistic as opposed to a merely fanciful prospect of success."
The Employment Appeal Tribunal had proceeded on that basis, and what had been submitted to the Court of Appeal by Mr Pitt-Payne was that Elias J had in effect glossed the statutory formula "no reasonable prospect of success". Mr Pitt-Payne justified that by the following quotation from the judgment:
"However where the facts themselves are in issue in my judgment it can only be in the most extreme case that the chairman [now employment judge] can say that without any evidence being tested in cross-examination that the disputed facts would inevitably or almost inevitably be resolved against the claimant."
And a little later there is a further quotation:
"Mr Pitt-Payne submits that it must in principle be possible for a tribunal in a clear case to make a finding that a claimant has no chance of establishing the facts alleged. I would not discount the possibility that very exceptionally it might be. But it seems to me that at the very least if such a step is going to be taken then the primary factual basis on which a tribunal infers that the dismissal must have been for the reason advanced by the employer and not the counter varying reason advanced by the employee must itself be undisputed."
[49]The Court of Appeal's reaction to that as express by Maurice Kay LJ is to be found at para. 27 where he says:
"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 [and he quotes a commercial case]. However, what is important is the particular nature and scope of the factual dispute in question. In the present case it is stark. Mr Ezsias is contending that others turned on him because he was a whistleblower. The Trust says that he ws impossible to work with and that he unreasonably jeopardised the proper functioning of the hospital. What was it that caused the chair of the employment tribunal to consider that that head-on conflict of fact could be resolved without a trial to the point of a conclusion that Mr Ezsias's case has no reasonable prospect of success? Although in the document of 20 July 2005 she purported to identify some legal points, these effectively fell away in the September reasoning and Mr Pitt-Payne does not seek to rely upon them. In the September reasoning she based her decision on 'the letter from all your nine colleagues and the statements they made' concluding that 'any reasonable tribunal' would on that basis decide that Mr Ezsias was dismissed not because he had made protective disclosures but because of an irretrievable breakdown of relationships for which he was responsible. 28. The question for this court is whether that reasoning on the part of the employment tribunal contains an error of law, I have no doubt that it does. Given the extent of the factual dispute, it was legally perverse to conclude as the employment tribunal did. In addition to the diametrically opposed cases on the reason for the dismissal, Mr Ezsias had put in issue the evidential significance of the letter of February 2003 by contending that (1) he does not accept its date because it was not shown to him until after he had been suspended in April; and perhaps more importantly (2) its signatories include the two colleagues in respect of whom he had previously made allegations of fraud and others whom he had criticised as regards their competence and professional standards. 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 was 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 resent case does not approach that level. 30. There is another aspect of this type of case that calls for comment. Whistleblowing cases have much in common with discrimination cases, involving as they do an investigation into why an employer took a particular step, in this case dismissal 31. The applicant will often run up against the same or similar difficulties to those facing a discrimination applicant. There is a similar but not the same public interest consideration."
And he goes on to quote Lord Steyn in Anyanwu v South Bank Students' Union in paragraph 31.[50]Mr Bowers submits that this case, the case of Claimant A, is to be distinguished from Ezsias as being a case where there is not, as Maurice Kay LJ put it, "a crucial core of disputed facts". In this case, Mr Bowers submits, there is so much that is admitted or is incontrovertible that the Employment Judge was quite right to express himself in the terms that he did in paragraphs 4,5 and 6 of his reasons. Mr Bowers was at pains to indicate that it would be, as he put it several times, a "parallel universe" if the Tribunal was to accept that the Claimant could be anything other than aware that she was not entitled to either describe herself as the recipient of a Batchelor of Education degree from the University of Hull, when, at best, she knew she was only the recipient of an equivalent, and to describe herself as holding a BSc or a PhD in respect of work done, putting her case in its best light, on aromatherapy by some form of dissertation over a period of time in the 1990s. She must have appreciated that work was not subject to the necessary academic rigour to justify the awarding of such qualifications.[51]It seems to me that Mr Bowers QC's argument ignores the grounds of complaint in the present case, and, I am sorry to say, I have reached the conclusion, so did the Employment Judge. The terms of complaint in the present case, which in my judgment are largely consistent with what the Claimant was saying in the course of the disciplinary hearings, are that she had not acted dishonestly, that she believed herself entitled to style herself as Doctor, that she had no reservations about the award of the Doctorate or the BSc and that she was not acting dishonestly when she indicated that she had a Batchelor of Education from the University of Hull because she was simply describing the qualification in terms of its equivalence. I think Mr Bowers QC may be right when he submits that the Claimant may have a great deal to explain in evidential terms. The issue, however, is whether her explanation as to her state of mind is of no relevance whatsoever to the issues raised by the grounds of complaint. The issues raised by the grounds of complaint are that the Claimant had been subjected to sexual harassment over a period of time, that she had, as she saw it, been singled out for redundancy as a result of that, that she raised a grievance relating to that, that attempts had been made to deflect her from that grievance, that in fact the redundancy had been rescinded and that, then, advantage had been taken by the Respondents of an investigation into the standard of qualification, which had been characterised by the Respondents as gross misconduct, when, if they had been prepared to listen to her explanations, was not to be regarded as gross misconduct. The only explanation as to that was that the First Respondent and Second Respondent were determined to dismiss her and such determination originated in the allegations of sexual harassment, which she had made.[52]It may be that this case differs from Ezsias in the sense that there is not a complete dispute about all matters and there will certainly be an issue as to the Claimant's probity and honesty, which in my judgment may fit into the question as to whether the disciplinary proceedings are completely separate from and dislocated from preceding events.[53]But it seems to me that the fact there may be a strong case of dislocation is not enough. What one must be able to say in a case of this kind is that the case is truly exceptional in the sense that the prospects of the Claimant establishing a connection between her dismissal and earlier events is utterly fanciful; in other words, this is such an extreme case that it falls within the exception that it should be struck out as having no reasonable prospects of success.[54]In my judgment then, the error made be the Employment Judge was that he focussed completely on the fact that he felt it was impossible for the Claimant to explain two things. Firstly, why she had put down that she had a Batchelor of Education from Hull, and secondly, why she had styled herself as Doctor, when, looking at the matter in the round, she must have realised that she was not entitled to do so. To my mind that is simply applying a totally objective standard to the Claimant's position. That is not what the Tribunal needs to do in this case. It may be that when the evidence has been heard the conclusion will be the same. But cases like this should not be struck out unless they do fall into the exceptional category of being merely fanciful.[55]There are aspects of this case that seem to me so far as the sequence of events are concerned, to warrant a factual investigation by the Tribunal. That is so not least because this is a discrimination case as well as an unfair dismissal case. Of course, cases that are hopeless should not proceed. And hopeless discrimination cases should not proceed. But there is a public interest in having allegations of discrimination properly investigated and in my judgment it arises in this case. That has been overlooked by the Employment Judge, and I think that was an error of law on his part. It may be a difficult case. It is desirable that some cases should not proceed but it is in the public interest, where allegations of this kind are made, unless there is absolutely no realistic prospect of a connection being made between the way the disciplinary proceedings were dealt with and the earlier matters, it seems to me that the case should proceed and the Employment Judge should not have focussed so much on an objective evaluation. 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 in terms of gross misconduct.[56]I want to make one thing clear, Mr Morgan advanced, as part of his argument, that there was evidence or material that suggested that the Second Respondent must have seen the certificates or been aware of them. He was at times almost advancing an argument as to waiver, based on that contention. I can see no evidence of that in the material before me and that does not form any part of the judgment that I have made.[57]Turning to the third point in this case, namely the limitation point, it seems to me that point does not arise if, as I have found, there was an error of law on the part of the Employment Judge. If I am wrong as to that, I reject Mr Morgan's submissions that the Tribunal did not take into account all that it should have done in relation to a s.76 analysis as to whether it was, in all the circumstances, just and equitable. It is not I think necessary to consider this in terms of Mr Bowers QC's submission that the point was never raised. In my judgment, one can see in paragraphs 8 and 9 that the Employment Judge was taking account of it and, even if I were to think differently, that would be substituting my discretion for that of the Employment Judge. Accordingly on that point the Claimant fails.[58]On the point as to striking out the cases of unfair dismissal and sex discrimination the Claimant succeeds, and it follows from that the other claims relating to earlier times may be part of a continuing sequence of events and are therefore in time on that basis. Accordingly I would allow this appeal and reverse the decision of the Employment Judge.[59]I order that the Appeal is allowed. This case will be remitted to the Employment Tribunal to continue. The Restriction Order is to remain in place and written submissions as to permission to appeal to be lodged by the 22 May 2009.