MR COLIN WHITE v PLYMOUTH CITY COUNCIL [2012] UKEAT 0174_12_1810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2012] UKEAT 0174_12_1810Case No Appeal No. UKEAT/0174/12
Between
MR COLIN WHITEAPPELLANTPLYMOUTH CITY COUNCILRESPONDENT
Before
Mr Justice LangstaffDate 18 October 2012
[1]SUMMARY STRIKE-0UT WITHOUT HEARING EVIDENCE An employer dismissed an employee from his job as a family support worker after learning that a District Judge hearing a case relating to contact with children had found that during a contact session the claimant had assaulted the child's father following an altercation between them. This did not occur in the course of the Claimant's employment, but when he was acting in a private capacity. The Respondent asserted this as a reason for dismissal (though on a fair reading of the ET3, it may rather have been that it thought the Claimant to have a propensity for violence). The EJ struck out the claim as having no reasonable prospect of success, on the basis that it was entitled without more to rely on the findings of the District Judge. He heard no evidence before ruling. To do so was held an error of law, given the approach to strike out which relevant authority demands (none of which was referred to by the Judge), and given that there were issues as to background facts and whether the employer had reached its decision based on the events of the contact session on its own, or only when taken together with other material which (it was to be suggested) did not on its facts support the decision. THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT) Rule 18 (7) (b) of Schedule 1 to the Employment Tribunal's (Constitution and Rules) Procedure Regulations 2004 entitles an Employment Tribunal to strike out a claim if "it has no reasonable prospect of success". Even if the Tribunal so determines, it retains a discretion not to strike out the claim. In Balls v Downham Market High School and College [2011] IRLR 217 at paragraph 4, Lady Smith emphasised the need for caution in exercising the power:
"to state the obvious, if a Claimant's claim is struck out, that is an end of it. He cannot take it any further forward. From an employee Claimant's perspective, his employer 'won' without there ever having been a hearing on the merits of his claim. The chances of him being left with a distinct feeling of dissatisfaction must be high. If his claim had proceeded to a hearing on the merits, it might have been shown to be well founded and he may feel, whatever the circumstances, that he has been deprived of a fair chance to achieve that. It is for such reasons that 'strike-out' is often referred to as a draconian power. It is. There are of course, cases where fairness as between parties and the proper regulation of access to Employment Tribunals justify the use of this important weapon in an Employment Judge's available armoury but its application must be very carefully considered and the facts of the particular case properly analysed and understood before any decision is reached."
[2]At paragraph 6, she examined the 'no reasonable prospect of success' test:
"I stress the word 'no' because it shows that the test is not whether the Claimant's claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short a high test. There must be no reasonable prospects."
[3]Even greater restraint was urged by the Inner House of the Court of Session by

the Lord Justice Clerk in Tayside Public Transport v Reilly [2012] IRLR 755, paragraph 30:

"In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts ( ED & F Mann Liquid Products Ltd v Patel (2003) CP Rep 51 , Potter LJ at para 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example where the alleged facts are conclusively disproved by the productions ( ED and F Mann v Liquid Products Ltd; Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 ). But in the normal case where there is a 'crucial core of disputed facts' it is an error of law for the Tribunal to pre-empt the determination of a full hearing by striking out ( Ezsias , per Maurice Kay LJ at para 29). "
[4]In that case the decision of an Employment Tribunal Judge to proceed to a strike out was described by the Inner House as a 'serious error'. In Ezsias , Elias J as President of the EAT said:
"…where the facts themselves are at 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 the disputed facts would inevitably, or almost inevitably be resolved against the Claimant . "
[5]When an Appeal came to the Court of Appeal, Maurice Kay LJ affirmed what Elias J had said, considering that he had not put an unwarranted gloss on the words 'reasonable prospect of success and adding (paragraph 29):
"It would only be in an exceptional case that an application to an Employment Tribunal would be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts are thought to be established by the Claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level."
Maurice Kay LJ drew upon the words of Lord Steyn in Anyanwu v Southbank Student Union (Commision of Racial Equality Intervening) [2001] ICR 391 at paragraph 24, where he noted that claims involving discrimination should not be struck out except in the most obvious and plainest cases because the bias in favour of the claim being examined on the merits or demerits of particular facts was a matter of high public interest.[6]The present case, in which the Claimant appeals from a decision of Employment Judge Parker sitting at Liskeard, on 5 th December 2011, reasons for which were delivered on 13 th December 2011, is one in which the Judge struck out the claim that Mr White had been unfairly dismissed without making reference to any of the case law I have set out, or indeed recognising any of the need for caution and restraint which every appellate case in this field emphasises. His decision struck out not only a claim for breach of contract, and for unlawful sex discrimination (appeals against which decisions were dismissed by the Employment Appeal Tribunal at an earlier stage and against which there is no continued appeal) but, of relevance for the present hearing, in respect of unfair dismissal. The Underlying Facts[7]The Claimant was a family support worker. He was employed part time by Plymouth City Council (the Council) in that capacity. But he also operated an independent business. Whilst working on his own account as a family support worker, when supervising court-ordered contact between a father and his children (in the context of disputes between the father and mother in respect of contact with their children) an altercation occurred between the father and the Claimant. In the course of it, the Claimant struck the father. The father claimed that Mr White was the aggressor. Mr White said he acted in self-defence. Both made allegations against the other.[8]It was necessary for the District Judge at the local County Court to determine, in respect of the proceedings relating to contact with their children, whether the father was the aggressor. He concluded that he was not, but that the Claimant was. Although there is a copy of the judgment in my papers, it is common ground that the Employment Judge did not have it before him when he exercised his discretion. The detail of the judgment could not therefore have formed any part of the basis of his decision. Nonetheless, it was accepted before the Employment Judge that the District Judge had found that the Claimant was the aggressor, that he lost his temper and threw the first punch. However, the Claimant did not accept that the finding was correct.[9]The Employment Judge heard no evidence, and based his decision entirely upon written and oral submissions (in the case of the Claimant, made by him in person, since he was unrepresented) and the ET1 and ET3. There was accordingly no evidence before the Employment Judge capable of satisfying the statutory question which arises in cases of unfair dismissal, namely, what was the reason for the dismissal – a matter which the employer has to prove. That said, the Claimant's originating application did not contend that the dismissal was unfair because the purported reason for dismissal was not conduct: rather, he contended (paragraph 5.2) that the procedure adopted during the disciplinary and dismissal process, in which there were (he argued) failures to comply with the Respondent's disciplinary policy and procedures rendered the decision unfair. Later in his application he amplified that by complaining there had been a lack of fairness and objectivity in the investigation. This was linked to the claimant having previously raised a grievance against his employer in which he had complained about his team manager and contact coordinator and the management style to which he had been subject, and of an approach which was selectively disadvantageous to him. Thus the Claimant was raising issues of fact, likely to be disputed.[10]The Employment Judge recorded the Respondent's written submissions as being that it was unable to substantiate the exact events of the incident of 23 rd September 2010 in their entirety, but contended that it was entitled to rely upon the findings of the District Judge, and on that basis to have found "… that the Claimant showed a propensity for physical aggression."

The Judge continued:

"26. The claimant's case is that the respondent failed to carry out such investigation as was reasonable in the circumstances and that, any fact, the respondent should have investigated this incident afresh and should not have relied upon the finding of the District Judge. Although the Claimant makes various procedural criticisms of the respondent the nub of his case is as I have set it out. I find without hesitation that the respondent in these circumstances was entitled to rely upon facts found by District Judge ( sic ) who reached his conclusion as a result of a proper judicial fact finding exercise. 27. I see no reason why the respondent should have carried out his own investigation. The respondent conducted a disciplinary hearing. There is no suggestion the respondent ( sic ) was not enabled to say whatever he wished by way of mitigation. The claimant argued that notwithstanding the judicial finding in the County Court the respondent should nevertheless have carried out its own investigation in order to satisfy the requirements of the test in British Home Stores v Burchell. It was quite clear that what the respondent ( sic ) meant by this was that the respondent should have re-visited the facts of the matter and formed its own view whether or not the District Judge's finding was justified. I disagree. In my view the respondent was entitled to rely upon what seems to have been a fairly full finding of fact by the District Judge and did indeed carry out such investigation as was reasonable in the circumstances. 28. The facts as found by the District Judge undoubtedly entitled a reasonable employer to conclude that the claimant had been guilty of gross misconduct. The circumstances in which the claimant was employed by the respondent was such that a tribunal would be highly likely to conclude that dismissal for gross misconduct fell within the band of responses available to a reasonable employer. 29. Accordingly with very little hesitation, I have concluded that the claim of unfair dismissal stands no reasonable prospect of success."
Submissions[12]Arguments of high quality were delivered by Counsel for both parties: Christopher Knight acting pro bono for the Claimant, and Alison Frazer for the Respondent.[13]Mr Knight drew attention to the disciplinary charges which had been found proved: that the Claimant had engaged in conduct outside his work which impacted on his suitability to continue in post (this was by reference to the incident of 23 rd September); that he had breached the General Social Care Council Professional Code Practice; and had brought the Council into serious disrepute. In finding a disciplinary case to answer, and as justifying in part the dismissal, the Respondent relied upon what it said it had discovered at a meeting on 15 th October 2010 (some 3 weeks after the September altercation). It said (in the ET3) that it had:
"discovered the Claimant's previous violent behaviour towards his own family and others which led to police involvement. It also became apparent that the Claimant had personal issues historically relating to a contact dispute with his ex-wife, which impacted seriously on the safety and well-being of his children."
He pointed out that those matters which apparently were relied on as part of the justification for dismissal were not referred to by the Employment Judge.[14]He raised four points: first, that the Tribunal failed to acknowledge the draconian nature of the power to strike out the claim at a pre-hearing review, and by adopting the test of what was "highly likely" in paragraph 28 applied too low a standard. The test (per Lady Smith in Balls ) was not whether the Claimant's claim was likely to fail; nor was it a test which could be satisfied by considering what was put forward in the ET3 or in submissions – it was as she put it "in short a high test: there must be no reasonable prospects".[15]Secondly the Tribunal erred in law in finding that the Respondent was entitled to rely wholly on the Judgment of the District Judge. That judgment was, he conceded, relevant material for the employer to consider: but could not provide the whole answer. In P v Nottinghamshire County Council [1992] ICR 706 the Court of Appeal considered the case of an assistant groundsman who had pleaded guilty to an offence of indecent assault against a child at the school. A finding by the majority of a Tribunal that he had been unfairly dismissed because there had been insufficient investigation of the circumstances of the offence to enable the employer to assess the risk in retaining him was overturned on appeal, but was remitted by the Appeal Tribunal. On further upward appeal, the Court of Appeal felt able to determine the issue for itself. Balcombe LJ at 712 observed:
"As (Counsel for the applicant) very properly accepted, when an employee has pleaded guilty to a offence, or has been found guilty by a decision of a Court of the verdict of a jury, it is reasonable for an employer to believe that the offence has been committed by the employee. Any other conclusion would be ridiculous. All the considerable learning on this point… is directed to the case where there has been no plea of guilty or a finding of guilt by a competent court of law."
Where, therefore, there was a finding of guilt to a criminal standard, Mr Knight contended there an employer would not normally need to undertake further investigations into the issue of guilt. But, he submitted, it was different where the misconduct had not been admitted (as in P) but denied, and where the judicial decision applied the civil standard, rather than the criminal standard of proof, in an action between third parties in respect of which the Claimant (not himself being a party) would have no right of appeal. He contended that where serious allegations of criminal behaviour were disputed they:
"…must always be the subject of the most careful investigation…..a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges...". as Elias J said in AvB [2003] IRLR 405 , EAT, at para 60. Even where misconduct was admitted, the Court of Appeal decision in Whitbread plc v Hall [2001] ICR 699 , in which Hale LJ (with whom Dame Elizabeth Butler-Sloss P and Mantell LJ agreed) considered an employer's submission that where the conduct complained of by the employer had been admitted by the employee the only question for a Tribunal on an allegation of unfair dismissal was whether dismissal fell within the band of reasonable responses to the conduct, and that the Tribunal should not therefore have been concerned with the reasonableness of the process by which the employer reached that decision. Hale LJ, at paragraph 16 rejected that submission: "
For my part, I find it impossible to read into these cases the proposition that the employer is free from any requirement to act in a reasonable fashion once the alleged misconduct is admitted. Section 98 (4) of the 1996 Act requires the Tribunal to determine whether the employer 'acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee' and further to determine this in accordance with 'equity and the substantial merits of the case'. This suggests that there are both substantive and procedural elements to the decision to both of which the 'band of reasonable responses' test should be applied" She supported that view by reference to Polkey v AE Dayton Services Ltd [1998] ICR 142, HL, a decision of the highest authority.[16]I note, however, that Hale LJ went on to say, at paragraph 21:
"It is, of course, important not to place too heavy a procedural burden on employers. The Employment Tribunal is required to take into account the size and administrative resources of the employer's undertaking in deciding what falls within the bound of reasonable procedural responses in each case. There are some cases of misconduct so heinous that even a large employer well versed in the best employment practices would be justified in taking the view that no explanation or mitigation would make any difference. But this was not such a case…"
Mr Knight observed that these principles were applicable to admitted misconduct: here, although the misconduct complained of was on balance of probabilities found to have happened by a District Judge in proceedings to which neither the employer nor the employee was party, the underlying alleged propensity to violence was not admitted, and the facts themselves said not to have occurred. It was too sweeping a proposition to hold that the findings of the District Judge in that case absolved the Respondent from carrying out a sufficient investigation.[17]His third ground was that the Tribunal had wrongly pre-empted a full hearing: the circumstances in which a claim should be struck out as having no reasonable prospect of success where no witness evidence has been heard should be rare. He relied upon the guidance at paragraph 29 in Ezsias , referred to at paragraph 5 above. In his skeleton argument at paragraph 29 he identified some 8 matters which he said were matters of fact which required to be evaluated, in respect of which there were differences of view between the Claimant and his employer.[18]Finally, he submitted that the Tribunal had erred in failing to give any consideration to whether the Respondent had acted unfairly by failing to consider alternative employment for the Claimant: he relied in particular on the view of Balcombe LJ (with which Sir John Megaw and Lord Donaldson of Lymington MR agreed) in P v Nottinghamshire at 713 f-g:
"…I am satisfied that, in an appropriate case and where the size of the administrative resources of the employer's undertaking permit, it may be unfair to dismiss an employee without the employer first considering whether the employee can be offered some other job, notwithstanding it may be clear that it cannot be allowed to continue in his original job."
[19]Ms Frazer argued that there was no dispute of facts warranting determination by way of a full hearing; and that the fact that the District Judge's finding arose from proceedings between different parties was irrelevant to the reliability of that finding for the purposes of the disciplinary hearing. Just as it was thought ridiculous by Balcombe LJ in P for it to be other than reasonable for an employer to believe that an offence had been committed by the employee if there had been a verdict of a criminal court to that effect, so too would this be the case following a civil trial. The employer need only show that it had a belief based upon reasonable grounds. Leach v The Office of Communications [2012] EWCA Civ 959 demonstrated that a Tribunal could hold that an employer had acted fairly when the police had disclosed to it credible but untested allegations that the employee had committed child sex offences.[20]I did not find Leach helpful: the judgment was reached by the Tribunal after considering all the evidence as to the reason for dismissal, and having made a finding (see paragraph 10 in the judgment of Mummery LJ) that the respondent in that case had not reacted in knee jerk fashion to the disclosures made to it. Moreover, he had emphasised in paragraph 6 the need for an employer to whom a third party discloses information or makes allegations to assess for itself, as far as practicable, the reliability of what it has been told. The present case is not one in which this Tribunal has to ask itself whether the decision of an Employment Tribunal having heard the facts and concluded that dismissal was not unfair had reached a decision open to it: the question is whether a Tribunal is entitled to reach that conclusion merely upon the assertions of the parties, and without hearing and evaluating the evidence.[21]Ms Frazer argued that taking the Claimant's case at its highest, a dismissal based on his version of what took place during the incident of 23 rd September 2010 would still have been within the band of reasonable responses.[22]At the invitation of the Court, the parties researched what help there might be as to the question whether (and to what extent) one court is bound by conclusions reached in another. On reflection, the invitation might have been misplaced. The issue does not arise directly here. The question is that posed by section 98 of the Employment Rights Act 1996, which is directed towards the employer's conduct, and not to whether the decision of a court on which it was based (if and to the extent it was) might be open to collateral attack. Nonetheless, Mr Knight found some comfort for his argument in the judgments in the Court of Appeal in Hollington v Hewthorn [1943] 1 KB 587. Findings in a criminal court were held inadmissible as evidence that the act composing the criminal conduct had in fact been committed by the person convicted, on the date and occasion indicated by the charge and certificate of conviction. Though this position has now been significantly modified by statute, the reasoning at common law might illuminate the present discussion, if it were to indicate that there was legitimate scope for the employer's enquiry against which the adequacy of the investigation it conducted would fall to be assessed.[23]In Hollington Goddard LJ said, at pp 594-595, that the court which had to try the claim for damages knew nothing of the evidence that had been before the criminal court; could not know the arguments addressed to it; or what in particular had influenced the court in arriving at its decision. The verdict was a matter of opinion and therefore irrelevant to a subsequent civil trial. Judgments in civil actions given between the same parties were conclusive, but not against anyone who was not a party. Mr. Knight said similar considerations applied to the present case.[24]It may be sufficient to note section 11 of the Civil Evidence Act 1968 which permits a civil court to rely upon a conviction in the criminal court "unless the contrary is proved". Discussion[25]Whether the decision to strike out was made in error of law must be judged on the material in front of the Employment Judge when he made it. I have been shown the District Judge's reasons. I am told, however, that they were not in front of the Employment Judge. It would appear he relied simply upon the view that the employer was entitled to rely upon the finding of the District Judge. This carries with it the necessary implication that the finding by the District Judge was the reason for dismissal. Whereas this may well be established if evidence is heard, and seems quite likely to have been at least part of the reasoning, the ET3 showed that it was not the whole story. The written submissions of the Respondent were open to the view that the employer's acceptance of the District Judge's findings as to the events of the incident of 23 rd September to the effect that the Claimant was the aggressor was not necessarily the determining factor on their own whole story: the employer had found "…the Claimant showed a propensity for physical aggression." If that was the feature which led the employer to dismiss, it would be open to consideration of evidence tending to show the opposite, and Mr White's case was that that had not properly been considered: he sought to say that, had the employer looked, it would have found examples of how, in situations in which lesser mortals easily might have been provoked to violence he had maintained a pacific calm. This conduct not only balanced but contextualised his actions on 23 rd September. The employer did not seek in its ET3 to attribute its finding of propensity to that incident alone. The ET3 is open to the view that the employer took into account also actions of the Claimant some years before in relation to his domestic affairs. The Claimant says that, properly construed, those actions would not and could not reasonably contextualise his behaviour (whatever it might be regarded as being) on 23 rd September as demonstrating a propensity to violence. If "propensity" is generally to be determined by more than one incident, it would be necessary for this contextualisation to occur, and unreasonable for the employer to do it without proper investigation, which would include taking a balanced view of what had happened years ago, and taking into account those occasions where the Claimant had demonstrated the patience of a saint.[26]It is rightly said that context is all important. An act baldly described as the violent striking of another may take on a very different force if it is appreciated that (for instance) the attack is unprovoked, deliberate, and committed for gain on the one hand from the force which it would have if seen to be conducted in an act of desperate and necessary self-defence, contrary to character, by a person pushed into a position of vulnerability. These are examples, merely to show the extremes between which actions, broadly described in the same way, may fall. Knowing the detail of the circumstances in which it occurred may render "violent striking" either a very insecure, or a very sound, basis for future action. Where the conclusion to be drawn is that one party has a "propensity" for violence it would be possible, but unusual to rely on one incident alone to establish it: the word tends to indicate a course of conduct likely to repeat itself, as to which past performance is the best guide. The employer here may have had in mind, in reaching a decision that the claimant's propensity for violence (to the possibility of which it was alerted by conduct on 23 rd September when, it must be emphasised, the Claimant was not acting within the actual bounds of his employment) was established, by reference to the alleged earlier conduct of the Claimant.[27]The words of Hale LJ in Whitbread are apposite. On the assumption that the employer was entitled to adopt the finding of the District Judge without further enquiry, it would still be necessary in the present case for the Tribunal to consider the process by which the employer arrived at the decision to dismiss, and whether dismissal in the light of all the information that should have been available fell within the range of reasonable responses.[28]As matters stood before the Employment Judge it might not have appeared likely that the Claimant would be able to point to facts which a reasonable investigation might have established which would have contextualised his actions so they might have been viewed by the employer in a different light thus rendering the process of dismissal unfair. But, as Lady Smith pointed out in paragraph 6 of Balls , likelihood is not the test. It might arguably justify making a deposit order, but not a strike out. Moreover, if part of the fear of the employer was that the Claimant could not be employed in a public facing capacity again, in the course of the social work they employed him to do, the question might, just, arise whether in his case, given his history, the employer acted reasonably or unreasonably in not considering alternative employment in a role which was not public-facing.[29]All that said, was there an error of law by the Employment Judge? Mr Knight is right in drawing attention to the fact that the Judge set out none of the guidance to which I referred at the start of this judgment. Had he done, the test adopted would have been "no reasonable prospect of success" as opposed to "highly likely". However, he had expressly set himself the correct test at paragraph 4, where he recited Rule 18 (7) of the Employment Tribunal Rules. The difference between "highly likely" and "no reasonable prospect" (emphasis added) appears to me semantic, rather than real. I reject the first ground of appeal.[30]However, I accept the broad thrust of the other 3 grounds which Mr Knight has advanced. The statutory question posed by section 98 (4) of the Employment Rights Act requires an answer which is reached "in the circumstances" and is to be determined "in accordance with equity and the substantial merits of the case". This demands a focus upon the whole of the evidential material which is available. It will be a very rare case indeed that it can be determined simply upon the basis of written assertions, which may or may not prove to be true once evidence is given. There is more to a Tribunal's decision of the employer's action under Section 98 than concluding that it has a good and powerful reason for dismissal. The reason may come under the broad category of "conduct", but that may not be enough to determine the question whether it was reasonable – having regard to the reason for dismissal – for the employer to dismiss in reliance upon it. The Judge confined his view of the investigation which should have been conducted into the acts of the 23 rd September 2010 alone. There was more to it than that: he acknowledged the Claimant made procedural criticisms of the Respondent; yet he focussed upon the incident apparently to the exclusion of other matters which may or may not have played a significant part in the employer's decision but which could not be excluded at that stage – in particular the question of propensity. It is for the employer to establish the reason for dismissal. He has to prove it. The reasons why, in fact, the employer regarded behaviour by the Claimant which was committed outside his employment as making his continued employment untenable, might after evidential exploration have a different complexion. The likelihood might not be great: but that the possibility reasonably existed, I have no doubt. This was not a case in which there was no dispute of relevant fact, and all the more so if (as might well have emerged in taking and probing the evidence during a full hearing) the reason for dismissal turned out to have been not the supposed conduct on the 23 rd September but, more broadly, an assessment against all the facts of whether that incident showed that the claimant had a propensity for violence. On paper at least there was cause to think that might have been the employer's thinking in treating its belief as to the conduct of the claimant as a sufficient reason for the dismissal.[31]For the reasons so cogently expressed by Lady Smith in Balls , and by the Inner House in Tayside v Reilly , the circumstances in which a pre-emptive strike-out is appropriate are necessarily very few where the statute requires the establishment and evaluation of all of the relevant facts, so that the assessment of reasonableness both substantial and procedural can be made in that light. There may be cases in which that can be done without hearing evidence. They will be exceptionally rare. In my judgment, this was not one of them. Conclusion[32]For the reasons I have given this appeal will be allowed. The case should proceed before the Tribunal.[33]I should add, however, that there is plainly a powerful case to be made for the employer. There is a significant distinction between the test applicable on a strike-out ("no reasonable prospect of success") and that which must be satisfied before a deposit order may be made ("little reasonable prospect of success"). I should make it clear that the ruling which I have made leaves it open to the Respondent if it wishes to make an application for such an order.