Timbo v Greenwich Council For Racial Equality (Sex Discrimination) [2012] UKEAT 0160_12_0210

EAT
Timbo v Greenwich Council For Racial Equality (Sex Discrimination)
[2012] UKEAT 0160_12_0210 · 2012-10-02
[26]Mr Pitt-Payne seeks to draw comfort from this lowering of the threshold. I accept his submission that what is now in issue is whether an application has a realistic as opposed to a merely fanciful prospect of success. It seems to me that Elias J also proceeded on this basis -- see paragraph 56 of his judgment. Mr Pitt-Payne then submits that when Elias J observed that in the present case the facts are disputed he went on to place an unwarranted gloss on the "no reasonable prospect of success" test. He refers in particular to two passages in which Elias J said this:
‘However where the facts themselves are in issue in my judgment it can only be in the most extreme case that the chairman 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:
‘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.’
[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 -- see ED&F Mann Liquid Products Limited v Patel [2003] EWCA Civ 472 at paragraph 10 per Potter LJ; a commercial rather than an employment 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 was 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 present case does not approach that level.” 37. Maurice Kay LJ stressed the added importance of applying these principles in “whistleblowing” and discrimination cases. In doing so he made express reference to the decision of the House of Lords in Anyanwu . 38. Ezsias was not a case where the application to strike out was made during the course of the hearing. Williams v Real Care Estate Agency was, however, just such a case. The claimant was dismissed for falsely overstating the hours she had worked. She alleged that this was a widespread practice, condoned by the employer. Her case was struck out part-way through her evidence; and one reason the Tribunal gave was the view it had formed of her credibility. The Appeal Tribunal allowed her appeal. 39. In giving the judgment of the Appeal Tribunal Langstaff P said the following: “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 ….”40. Later he continued : “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.”41. On the question of credibility, he said: “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 ..”42. We have cited at some length from Ezsias and Williams because they are directly apposite to the striking-out application which the Respondent made to the Tribunal.43. We think, however, that the position is fundamentally the same even if the application is characterised (as the Tribunal sought to do) as an application that there was no case to answer. Such an application has been said to be appropriate only in exceptional or frivolous cases: see Logan v Customs and Excise Commissioners at paragraphs 18-19, approving and applying a judgment of His Honour Judge Peter Clark in Clark v Watford Borough Council [unrep, 4 May 2000]. As Underhill J said in Wiggan “the difference of label makes no difference to the substantive question” (paragraph 5). Wiggan indeed contains, in paragraph 4 of the judgment, a summary of the main reasons why it is “normally a bad idea” (paragraph 5) to seek to dismiss the case at half time.44. Contrary to the submission which Mr Isaacs has made to us, we do not think that the reasoning in Williams can or should be restricted to unfair dismissal cases. It is of general application.45. Nor do we think that anything in Williams is cast into doubt by the decisions (all unreported) in Dhaliwal , Wlordarzyk and Rodrigues . In particular, we would point out that Wlordarzyk was a case in which the Tribunal heard all the main witnesses for the respondent before reaching conclusions of fact: it did not accede to a submission of no case to answer, still less an application to strike out. Rodrigues was an unusual case where the hearing of a preliminary issue required the Tribunal to hear evidence on both sides and reach conclusions of fact which effectively determined the remainder of the case.46. Against this discussion of the principles, we turn back to the present appeal. In our judgment the Tribunal erred in law in acceding to the application to strike out the claim.47. The Tribunal correctly recognised that to a very significant extent the Claimant’s case depended on her credibility as a witness: it identified some 10 issues which it could not determine except by making a conclusive finding that it could never, in any circumstances, accept anything which she said about them. In our judgment it was inappropriate to make this judgment on a striking out application. Although the Tribunal stated that it was applying the guidance given in Ezsias , it did not do so. There was a crucial core of disputed facts which was not susceptible to determination otherwise than by hearing and evaluating the evidence. This being so, the Tribunal should not have acceded to a striking out application. It should have heard all the evidence and evaluated it.48. It is one thing to reach, at the half time stage, a provisional view that a witness’s evidence is unsatisfactory and that it is unlikely to be accepted if there is evidence to the contrary. It is another thing altogether to reach a concluded view that a witness’s evidence must inevitably be rejected in its entirety even if there is no evidence to contradict it. It is an error of law to reason in this way on a striking out application made before all the evidence has been heard: see paragraph 23 of the judgment of Langstaff J in Williams , already quoted.49. In this case we have no doubt that the Tribunal should have heard the evidence in full and determined the case in the light of all the evidence. We do not think that the Claimant’s case – in essence that she was treated differently by reason of her background (a woman, not Asian, not Ugandan) and sex could be described as inherently frivolous or incredible without hearing the evidence on both sides. The Respondent as an organisation was not beyond potential criticism on grounds relating to equality, as Dr McNaught’s report showed.50. In truth, this was not a particularly unusual case: it was representative of a particular kind of case which tribunals hear. It is the common experience of tribunals that some claimants who perceive – rightly or wrongly – that their employer has been guilty of unlawful discrimination tend to attribute all manner of problems and reversals at work to unlawful discrimination. Once they suspect discrimination – rightly or wrongly – they tend to see it everywhere. When such a claimant gives evidence some of the matters about which they complain appear to bear no relationship to sex or race discrimination: they appear to be innocuous; or justified conduct toward the employee; or even the product of bad management or administration unrelated to any question of sex or race. By half time such an employee’s credibility may be severely dented. It is nevertheless the usual practice of tribunals to hear all the evidence and determine such cases on their merits to see whether there is any underlying truth in the allegations. This is the correct and appropriate course where there is a crucial core of disputed fact which is not susceptible of determination except by hearing and evaluating evidence.51. We have two final observations to make concerning the hearing of an application to strike out during the hearing.52. Mr Isaacs told us that he made the application to strike out at a time when he foresaw that the hearing might not be over in its allotted time. He rightly did not submit that this was a reason for entertaining the application. If anything, it is a reason why respondents should seldom make such an application; and if they do they should not expect to be heard on it at any length. At the time when the application was made there were nearly 2 days to deal with the remainder of the case, and the Tribunal had already read the statements of the Respondent’s witnesses. It would have been much better to time-table the remainder of the hearing and make progress. The Tribunal received a detailed skeleton argument from Mr Isaacs and seems to have heard him at some length in support of his application. We doubt whether it will ever be appropriate to do so. The type of case which is susceptible of an application to strike out during the course of the hearing should be so readily identifiable that the Tribunal will need only brief submissions on it from the party who makes it.53. We would also add that – among the many other risks of entertaining and deciding a striking out application in the midst of the hearing – there is a danger of anticipating evidence which will only be deployed as part of the Respondent’s case. The Tribunal appears to have done this in paragraph 100 of its reasons. Its finding of fact as to the reason for extending the probationary period did not derive from the Claimant’s evidence. It seems to be the reason which Mr Ekinu gave: but the Claimant did not accept that reason, and Mr Ekinu had not given evidence. Before the Tribunal accepted his explanation the Claimant was entitled to question him about (for example) his apparent willingness to sanction the completion of the probationary period to the executive committee and the lack of any relevant material on her file from the persons who had been charged with supervising her.54. We have concluded that the claim should not have been dismissed or struck out; that the appeal must be allowed; and that the matter must be remitted for rehearing before a differently constituted tribunal.