Williams v Real Care Agency Ltd (Practice and Procedure : Striking-out or dismissal) [2012] UKEAT 0051_11_1303

EAT
Williams v Real Care Agency Ltd (Practice and Procedure : Striking-out or dismissal)
[2012] UKEAT 0051_11_1303 · 2012-03-13
[1]This is an appeal against a Judgment of an Employment Tribunal at Glasgow, Reasons for which were delivered on 17 August 2011. The Tribunal rejected the Claimant’s claim that she had been unfairly dismissed on 28 April 2010. The case has an unusual and possibly unique procedural history. Hearing of the evidence as to the fairness of the dismissal began on 24 January 2011. The issue, so far as the Respondent was concerned, was in proving that the dismissal was for her misconduct. Halfway through the continued hearing, on the third day, 26 January, matters arose that led the Respondent’s representative, for his part, to apply to strike out the claim and to seek a wasted costs order against the representative for the Claimant. The Claimant’s representative, in turn, applied for a wasted costs order against the Respondent. In the light of these stances adopted by the parties’ representatives, the hearing was adjourned until February, part heard, but on 24 February the Respondent applied for Further and Better Particulars of the Claimant’s claim and to strike out the claim. Two grounds were given for that application: one was that there was no reasonable prospect of success; the second was that the manner in which the claim had been dealt with had been unreasonable. Three separate and distinct matters were asserted in support of each of those contentions. It is unnecessary for us to deal with the second, which was rejected by the Tribunal; no appeal issue arises in respect of that decision. The first arose out of the facts, and we shall describe the facts as an aid to understanding the basis for the application. The facts[2]The facts that the Claimant set out to prove were described in paragraph 5 of her ET1 in these material terms: that the Claimant had signed timesheets as a care worker on behalf of those for whom she provided care. She had signed those timesheets in her own name but with the consent of the service user; that is, the signature was not that of the service user as it had purported to be. She said she had the consent of the employer to do that and that it was a common practice, and she intended to call witnesses to support her contention. Secondly, she noted that it was a common practice for the full period of work to be entered into a timesheet even if the full period of work had not been carried out. It was standard, she asserted, to round up a period of time to the next complete hour if work had stopped short of the full hour. She asserted that her employer knew of such practices and “took advantage of said practices for its own benefit, such as bringing in higher fees. Again, the Claimant intends to call witnesses in this regard”. She then went on to describe how certain practices of the Respondent rendered it inevitable that there would be claims for time worked that was not in fact worked, and that she had become a scapegoat for the company.[3]The Tribunal, as is apparent from our recitation, had by February 2011 not heard the full evidence in the case. It had heard the Respondent’s evidence so far as it went; however, the Respondent’s counsel had indicated that he might wish to recall some of the witnesses who had already completed their evidence. The Claimant had given her evidence‑in‑chief. She had been cross‑examined in part; that had not finished, nor had she called any witnesses yet, despite her indication in her ET1 that she intended to do so. We are told, though the precise facts are not recited by the Tribunal, that what caused the adjournment from January to February was an alteration in the evidence of the Claimant during her cross‑examination in the witness box. The background[4]The background was that an allegation was made to Mr Gill, he being the Claimant’s manager, in April 2010 that the Claimant had claimed payment for hours she had not worked and for work she had not performed. He looked at the timesheets that she had supplied in respect of the particular client referred to for a period spanning five weeks from 1 February to 7 March. He noticed that the claims were not accurate. The timesheets showed the Claimant claiming to have performed work in two different places, dealing with two different clients, at one and the same time. When he checked with the sister of the client in respect of whose care hours the complaint had first been raised, Mr Gill said that he discovered that the signature on the timesheets was not that of Mrs Sunter, the sister concerned, as it purported to be.[5]The Claimant said in cross‑examination that she had adopted a practice of charging the full amount for the full hours of the shift even if she had not worked them, and thus had rounded up any shortfall in hours to the full shift. Mr Gill, on that basis, believed that the Respondent had overcharged the client concerned because it had adopted the timesheets put forward by the Claimant as the basis for charging. He met her to establish the facts on 19 April 2010, a disciplinary hearing followed on 27 April, and she was dismissed, he said, by reason of her conduct with immediate effect.[6]The Tribunal set out such facts as it had found, despite not yet having heard all of the evidence, in its background findings of fact. Significantly, between paragraphs 54 and 60 the Tribunal concluded that the employer was aware of the practice adopted by the Claimant of claiming on her timesheets that she had spent time with an end user when she had not done so. It noted that she had benefited financially because she was paid for many more hours per month than she had actually worked, but so did the Respondent, because it had billed the end user on the basis of the Claimant’s timesheets, and the sum it charged the end user was markedly higher than that portion of it that was paid to the Claimant. It said in terms:
“57. The end users, the Respondent’s clients, were being cheated out of care time to which they were entitled and in respect of which they or third party fund providers were making payment to the Respondent. Those end users, the Respondent’s clients, or in some cases third party fund providers such as the relevant local authority, were being cheated, were being charged for work that had not been carried out by the Claimant on the Respondent’s behalf. 58. Both the Claimant and the Respondent were knowingly party to overcharging service‑users, the Claimant by submitting timesheets showing hours worked that had not been worked and the Respondent by billing it’s [sic] clients in accordance with the hours claimed by it’s [sic] employee, the Claimant. 59. The Respondent knew what the Claimant was doing and encouraged her to do it. 60. The Claimant knew that the Respondent billed its end users as if she, the Claimant, had actually worked the hours which, on her time sheets, she claimed that she had worked.”
[7]The Tribunal grew concerned, so it appears, that the contract might be tainted with illegality. The power to strike out a claim comes within the specific powers granted to a Tribunal by the Employment Tribunals (Constitution and Rules of Procedure) Regulations , in particular by rule 18(7). Rule 18(7) comes in a section of the rules that is headed “Pre‑Hearing Reviews”. It is only after that heading, and intermediate rules, that the rules dealing with the conduct of the hearing are described in the rules. Rule 18 itself is headed “Conduct of Pre‑Hearing Reviews”. It is plain to us that the draughtsman of the rules intended that the principal use of the powers conveyed in rule 18 was at a stage before the hearing had actually commenced. Rule 18(7) permits certain orders to be made, but only after a procedure set out in sub‑rule (6) has been undergone. That sub‑rule reads:
“Before a judgment or order listed in paragraph (7) is made, notice must be given in accordance with rule 19. The judgments or order listed in paragraph (7) must be made at a pre‑hearing review or a Hearing if one of the parties has so requested. If no such request has been made such Judgments or orders may be made in the absence of the parties.”
[8]It is thus plain that although principally the focus of the draughtsman is at a pre‑hearing stage and requires notice, it is possible for the power to be exercised at a hearing. Sub‑rule (7) provides, so far as material, that a Tribunal may make an[9]There are other powers to strike out that rely on the manner in which the claim has been conducted either in the manner of its pursuit or the inactivity constituted by its non‑pursuit, or in circumstances in which it is no longer possible to have a fair hearing. None of those powers is relevant here save to note that the power to strike out on the basis that the claim has no reasonable prospect of success is one of a bundle of grounds upon which there may be a strike‑out, some of which may be more appropriate to be adopted during a hearing than are others.[10]The Respondent applied to strike out the claim on three distinct bases. The first was that there had been here such illegality as to render it inevitable that the Tribunal would conclude that the contract as performed had been performed illegally. The Tribunal directed itself by reference to the case of Soteriou v Ultrachem Ltd and Ors UKEAT/0250/01, determined by the Employment Appeal Tribunal, HHJ Peter Clark presiding. The principles are, however, clearly and authoritatively stated, as much authority recognises, in the case of Hall v Woolston Hall Leisure Ltd [2001] ICR 99 . In that case the Court of Appeal began with the advantage of the consideration of the general scope of the defence of illegality that had been conducted in the case of Tinsley v Milligan [1994] 1 AC 340 by the House of Lords. If one traces the doctrine of illegality in contract back in time, the basic principle is that which was stated in important terms by Mansfield LJ, then Chief Justice, in Holman v Johnson [1775] 1 COWP 341 at 343, a passage that was cited and adopted by Lord Goff of Chieveley in Tinsley . The passage deserves repetition, so far as material:
“The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of contrary to the real justice as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. […]”
[11]As Lord Goff went on to say in the following paragraph at page 355 of Tinsley , it was important to observe that, as Mansfield CJ made clear, the principle is not a principle of justice; it is a principle of policy. In Hall the Court of Appeal recognised (see in particular the Judgment of Peter Gibson LJ) that there were three situations in which the doctrine of illegality would defeat a claim. They were: first, where a contract of employment was entered into for an illegal purpose; secondly, where the contract was prohibited by statute; and thirdly, the position alleged to be the case here, the illegal performance of a contract could be a ground of illegality. At paragraph 38 in Hall Peter Gibson LJ said this:
“In cases where the contract of employment is neither entered into for an illegal purpose nor prohibited by statute, the illegal performance of a contract will not render the contract unenforceable unless in addition to knowledge of the facts which make the performance illegal the employee actively participates in the illegal performance.”
[12]He added, in words that have a particular significance for this appeal:
“It is a question of fact in each case whether there has been a sufficient degree of participation by the employee.”
[13]The Tribunal thus had three distinct reasons put to it by Mr Rozier, for the Respondent, for it exercising the power of strike‑out. The first was that, applying the doctrine that we have just set out, it was inevitable that the Tribunal must find that the performance of the contract of employment between the Claimant and the Respondent was tainted by illegality, since the claim for unfair dismissal is based upon there being a contract of employment; if that contract of employment was illegally performed, no claim for unfair dismissal could succeed to any extent. Secondly, it was argued that the Claimant’s credibility had been so damaged in the course of her evidence by her performing, in the words of the Respondent’s counsel, a movement “from A to Z and back again to A”, that the Tribunal would not be able to rely on anything that she said, and therefore because they could place no weight at all upon her evidence that was a separate and distinct ground for dismissing her appeal at that stage. Thirdly, it was argued to the Tribunal that, putting illegality and credibility to one side, the reaction of an employer could only be judged by the material that was in front of the employer at the time of the dismissal, and upon that basis there could be here no reasonable prospect of the Claimant achieving any award of compensation. Compensation, argued Mr Rozier, had to be such as under section 123 of the Employment Rights Act 1996 it was just and equitable to award. On a rough, back‑of‑the‑envelope calculation, as he described it, his contention was that the Claimant had accepted that she must have profited to the extent of over £6,000 in a year in respect of hours that she had claimed but had not worked. Thus, given that unlawful and excessive profit, it would arguably be right to recognise that she could not receive any form of compensatory award whatsoever, and a Tribunal would inevitably so rule. Grounds of appeal[14]The Tribunal decided to accede to each of those three separate grounds as a reason for striking out the claim there and then, having first determined that it was appropriate to hear the strike‑out application at all.[15]The grounds of appeal are essentially procedural. Mr Hutcheson, who appears before us, as he did below, argues that the Tribunal should not have acceded to the invitation to strike out the claim; it was premature to do so. It meant that a Tribunal engaged in hearing a case only heard part of it. It made conclusions as to the credibility of the Claimant that it could not properly do without hearing the whole of the evidence. He argued that the witnesses who were yet to be called had material to contribute, and he volunteered to us what they might have said. He anticipated that they would have said that which the Claimant herself had indicated they would in her ET1, which we have quoted. Moreover, the Tribunal had not heard the Claimant herself out. True it was that she had given her evidence‑in‑chief, but she had not been re‑examined in the light of the cross‑examination.[16]He argued that the decision as to illegality was not an inevitable one. He emphasised that the cases stressed active participation in illegality, and he took us in particular to Pickard v Lynn Hughes t/a The Tanning and Beauty Kabin UKEAT/0185/10, a decision on 28 January 2011, made by the former President, Underhill J, in which at paragraphs 13‑14 in particular he had emphasised the need for an employee not only to know that her employer might be engaged in a misrepresentation to others that was potentially fraudulent, but had participated actively in it. That, he concluded, was a matter of fact.[17]Before us the battle lines have been drawn very much, we suspect, as they may have been before the Tribunal, Mr Rozier, for his part, defending the conclusion that the Tribunal reached upon each of the three bases upon which he suggested it should, and dismissing the charge of prematurity. Discussion[18]The first matter for us to consider is whether there was an error of law by the Tribunal in determining to proceed to a strike‑out whilst in the middle of hearing evidence. The Tribunal accepted the argument put to it that the strike‑out power could be exercised at any time. It does not seem to have recognised that, as in the case of any power or discretion to be exercised by a Tribunal, such a power must be exercised in accordance with reason, relevance, principle and justice. As Mr Hutcheson emphasised through reference to Balls v Downham Market High School and College UKEAT/0343/10 and Reilly v Tayside Public Transport Co Ltd t/a Travel Dundee UKEATS/0065/10, both decisions of a Tribunal presided over by Lady Smith, the exercise of the power to strike out is a draconian one; there is no way back from it. It precludes any further hearing of the evidence. It means that a Tribunal cannot make a decision upon all the evidence that might be available, because by definition it has not heard matters out that far.[19]The power, as we have already indicated, is one which by the design of the rules is intended to have its principal use at a pre‑hearing stage. It is easy to understand why that is. The power, properly used, is an aid, as we see it, to justice. It permits a Tribunal to look at the particular factual allegations made in an ET1; having done so, it may see that the facts could not on any view give rise to an entitlement to the relief claim. In such a case it would not be inappropriate to give notice that the claim might be struck out. Such a process permits the Claimant to say that there are further facts, if that be the case, that might cast a different light upon matters, but otherwise it saves time, it saves the resources of the Tribunal, it saves costs, and it deals with matters in a manner proportionate to the importance to the parties, for the case to be struck out there and then without, on this scenario, going to the unnecessary, expensive, and, for a Respondent, if it be the claim that be struck out, disturbing, process of appearing before a Tribunal.[20]None of that reasoning is likely to apply when an application is made in the middle of a hearing; quite the reverse is likely to occur. Time will be taken not by hearing the evidence, which is what the Tribunal’s principal function is, but in hearing an application that it is unnecessary to hear any more evidence. That application will inevitably be contested. A Tribunal is invited to determine a case not on all the evidence but on part of the evidence. It is invited to have sufficient certainty of the correctness of its own view as to decide that it needs to hear no more, despite universal forensic experience that matters that seem very plain at one stage in a hearing might have a very different complexion at the end. The purpose of a strike‑out may nonetheless be appropriate if, for instance, one of the other grounds for striking out is appropriate. Thus if, for instance, one party by its conduct during the course of a hearing makes it very difficult or impossible for the hearing to continue, then the exercise of the power to strike out that party from pursuing or defending the claim is obvious, but the same does not, in our view, apply where what is in issue is not any part of the conduct of the case, the conduct of the parties before the Tribunal, or anything that might in other courts give rise to a contempt application or an abuse application, but is solely related to the force of the evidence and whether, on the evidence, it is possible for the Claimant or, as it may be, the Respondent to succeed.[21]In this case the Claimant was part way through giving her answers in cross‑examination. Although ultimately it is for a Tribunal to judge, we see no reason why in a case of this nature the simpler and undoubtedly better course would not have been simply to allow the cross‑examination to proceed and the Claimant then to call what witnesses she wished so that the Tribunal had the full picture. Just as it is emphasised that some claims are generally not appropriate to strike out, such as those claims that raise serious issues of discrimination even at an initial stage, so it must be recognised that it would be very exceptional indeed, to the point of the instances of it being vanishingly small, that a claim could ever legitimately be struck out mid‑hearing on the grounds of evidential insubstantiability. Not to allow the appeal here might be seen as indicating a view that it is open to a Tribunal to strike out a claim at any stage of the proceedings mid‑hearing upon the ground that there is no reasonable prospect of success. Only to posit that possibility is to envisage a scenario in which litigants may forever be looking for an opportunity to indicate that their case is so exceptional that the power should in this case be used. It runs a real risk that Tribunals will have their attention diverted from deciding the facts as they are to having to determine the facts as they might be. It runs counter to the overriding objective that it is the purpose of rule 18(7) to serve, because it is likely to cost time, cost money, cost resources and cause inconvenience to the parties that simply getting on and hearing the case avoids, and, perhaps most importantly, it risks the sense that litigants might have that they have been wrongly shut out from telling their story in a public forum because the court at some stage mid‑hearing refuses to hear any more. It is no part of justice, blind as it must be, also to be deaf to a selective part of the evidence.[22]The dangers are demonstrated here when one looks at the specific grounds that have been identified and upon which the strike‑out was sought to be exercised. The second and third of those grounds are plainly unsustainable. The third was credibility. What the Tribunal said was this:
“99. […] The Respondent’s representative suggested in his submissions that within her own partly given evidence the Claimant’s position ‘has moved from A to Z and back again to A’ and that her credibility has been so denuded that the Tribunal cannot rely on anything that the Claimant says in contradiction of the Respondent’s evidence. The Tribunal believes that the Claimant’s evidence has indeed been such that it, the Tribunal, cannot trust what she has said to the Tribunal in apparent contradiction of evidence given by the Respondent’s witnesses. In many ways the evidence given by the Claimant was remarkably, but selectively, candid but in the view of the Tribunal that selective candour does not detract from the Tribunal’s firm impression that, putting it at its best, the Claimant is an unreliable witness. 100. The Tribunal has considered whether the hearing of the remainder of the Claimant’s evidence – (under cross examination and then in re‑examination) – or the hearing of evidence from any other witnesses whom the Claimant might wish to call to give evidence on her behalf would go any way towards reversing the Tribunal’s view as to the Claimant’s truthfulness but, having undertaken those deliberations, the Tribunal is of the view that nothing by way of evidence still to be led could change its views both as to the lack of credibility of the evidence so far given by the Claimant and, generally, as to her veracity.”
[23]There is nothing to prevent a Tribunal beginning to form views of any witness as and when they give evidence. There is nothing wrong in those views being strong. There is, in our view, an error if a Tribunal reaches a conclusion expressed in absolute terms, as this Tribunal so expressed it, that nothing could change the view it had even though it had not yet finally heard all the evidence; but be that as it may, the Tribunal correctly put credibility in its place in paragraph 99. What is in issue was not what the Claimant was saying broadly, in so far as she accepted that she had made claims for hours she had not actually worked or, on one version that she had put forward, had not made excessive claims, merely had not claimed for hours she had worked whilst claiming for hours she had not. What was in issue was the Respondent’s evidence. Set against the Respondent’s evidence, the Claimant’s evidence might ultimately prove to be of little value, but we cannot see any logical basis upon which it could be said that the witnesses yet to be called by the Claimant might not have had an impact upon the view the Tribunal had of the Respondent’s evidence, because they might have given such compelling evidence in a manner that satisfied the Tribunal that the Respondent’s evidence was not in some crucial respects to be accepted. Issues of credibility require a focus on whose evidence it is necessary to assess: here, having identified that it was the Respondent’s evidence, the Tribunal, going on in paragraph 100 as it did, missed the point by concentrating entirely upon the value of the Claimant’s evidence as if set against the Respondent’s evidence in isolation.[24]Nor can we accept the ground that there was here no possibility, illegality being put to one side, that there might be compensation. We can see that the argument that the employer would make would be attractive and that compensation would be limited given the nature of the case if, in truth, it concluded that dismissal was unfair. However, if the conclusion had been that dismissal was unfair, it could only here have been upon the basis that the employer knew very well that the Claimant was behaving as she did and knew that others did too, and had treated the Claimant in a way that was different from the way it treated others; that is, it singled out the Claimant for disadvantageous treatment in a manner that showed an inconsistency of approach. We are far from persuaded that, if that were made out, the Claimant would not receive significant compensation.[25]That, however, leaves what is to us the most troubling of the three grounds: that of illegality. The Tribunal here blew somewhat hot and cold upon its findings. It appeared from its findings between paragraphs 54 and 60 to be finding that both the Claimant and her employers were knowingly party to overcharging service users. It described those users as being cheated out of funds. As Mr Rozier frankly and realistically recognised, that is fraud in all but name, yet at paragraph 94 the Tribunal said that it had stopped short:
“[…] of making and recording any finding that there was a conspiracy between the Respondent and the Claimant to defraud end users or the relevant local authority out of care funds […].”
[26]One might have thought that was precisely the effect of the earlier findings, but it is not, given the Tribunal has expressed itself in both ways, entirely clear to us. If the Claimant participated actively in the “cheat”, to use the word that the Tribunal did, which was performed on the individual clients and the local authorities who funded the care, then plainly this contract would have been tainted by illegality in its performance. Mr Rozier went so far as to suggest that we did not have to associate the employer in this process; it was sufficient, if we concluded that the Claimant herself was attempting to defraud her employer, for the contract to be tainted with illegality. We do not need to consider that proposition; if that were the case, then of course a Tribunal so finding would be bound to dismiss her claim anyway and hold that the employer was fully entitled to dismiss her for misconduct, and that may be a reason why, so far as we can see, there is no decided case that is to the effect that a contract is illegal as performed where the performance is that rendered by an employee to her employer, as opposed to performance in respect of a third party, such as HM Revenue and Customs.[27]However, the contention made to us by Mr Hutcheson accepts that the Claimant here, if merely encouraged to fill in time forms by her employer, as the Tribunal had found, was not obliged to do so. If, knowing of their use, she filled in such claim forms, took the advantage and put her employer in the position of itself reaping an advantage by cheating end users, it would be open, and indeed there would be a very powerful case, to suggest that she had actively participated in a fraud, but, he submits, the submission made by the Claimant was that there was a systematic practice instituted by the Respondent prior to her arrival that had subsisted at her employer’s insistence; that is, not merely that the employer encouraged her practice but insisted upon it. In such circumstances he was prepared to argue a Tribunal might find that she was not an active participant in the fraud by which the employer passed on the sheets she had completed to the third party, and that that was a matter for them and not really for her.[28]This seems to us to be something of an optimistic argument, but we recognise that it is an argument that, to be evaluated properly would require to have all the facts determined. We are not so convinced that it must fail that, having identified the error of the Tribunal here, which was in deciding to hear a strike‑out application at all when it did, we could conclude that the decision it reached was on any view plainly and obviously right. In particular, we note that the expressions of principle to which we have been taken emphasise that it is a question of fact in each case whether there has been a sufficient degree of participation by the employee. Likely though it may be that any Tribunal would find that to be the case here, we can reach that conclusion only on part of the evidence, because only part of the evidence was considered by the Tribunal. It is possible – we say nothing about the likelihood of it – that a Tribunal, having heard all of the evidence, might be in a position to take a different view. Conclusions[29]In the end, we have therefore come to this conclusion. The Tribunal here was in error of law in acceding to an application when it did, remarkably, as it seems to us, to hear a strike‑out application when it could have been busy hearing evidence. It did not properly address its discretion, nor the factors that it should bear in mind in doing so. The decision it reached on the grounds of credibility and upon the other ground advanced to it, as to compensation, were decisions that could not be sustained. Next, the decision it came to as to illegality was not plainly and obviously right on any view of the potential evidence. We therefore allow this appeal.[30]We direct that the matter should be remitted to a different Tribunal for re-hearing. We do that because this Tribunal has expressed itself in clear terms in paragraph 100 to the effect that nothing that might be said could change its mind. Any hearing in front of it would then inevitably, and rightly, be one in which it was said there was apparent bias in the Tribunal, no matter how hard it might try to do its professional and proper best.[31]However, we do say this. This is a remarkable case in many ways. It is open, as it seems to us, to the Tribunal that will hear the remitted case to consider at a Pre‑Hearing Review whether it should impose any cost warning or order any deposit in the light of the chances that it sees of success. We would remind any Tribunal hearing the case that if it did come to the conclusion that there had here been a fraud or cheat, which, on one view of its decision, the Tribunal under appeal considered, it should feel free to report the matter to the Procurator Fiscal for further investigation. We say nothing further about that; that is a matter that we are not ourselves able to determine, because it seems to us appropriate that the fact‑finding body in possession of all the facts should be the body that makes any such decision.[32]On that basis, with those observations, and with thanks to the representatives, we allow this appeal.

order

“(b) striking out […] all or part of any claim […] on the grounds that it is scandalous, or vexatious or has no reasonable prospect of success.”