Ahir v British Airways Plc (Practice and Procedure: Striking-out/dismissal) [2016] UKEAT 0014_16_1504

EAT
Ahir v British Airways Plc (Practice and Procedure: Striking-out/dismissal)
[2016] UKEAT 0014_16_1504 · 2016-04-15
[1]I refer to the parties as the Claimant and Respondent, as below. This is the Claimant’s appeal, against a Judgment of the Reading Employment Tribunal (Employment Judge Gumbiti-Zimuto, sitting alone on 8 October 2014; “the ET”), sent out on 14 October 2014. By that Judgment, the ET (relevantly) struck out the Claimant’s claims of dismissal tainted by victimisation, contrary to section 27 of the Equality Act 2010 ; of unfair dismissal, pursuant to Regulation 6(1) of the Fixed-Term Employees (prevention of Less Favourable Treatment) Regulations 2002 (“the 2002 Regulations”); and of wrongful dismissal. Other complaints were permitted to proceed to a Full Merits Hearing, which took place over five days in February 2015; all subsequently being rejected by a fully constituted ET presided over by a different Employment Judge. For completeness, I record that the Claimant’s appeal against the Full Merits Judgment was rejected after a Rule 3(10) Hearing before Langstaff J but I am told he is now pursuing that matter further by way of appeal to the Court of Appeal.[2]Before EJ Gumbiti-Zimuto, at the hearing with which I am concerned, the Claimant was represented by a consultant; he now has the benefit of representation by Ms Zeitler of counsel, appearing pro bono. The Respondent has been represented by Mr Burns QC throughout.[3]The Claimant’s appeal was initially considered on the papers, by HHJ Richardson, to disclose no reasonable basis to proceed to a Full Hearing. After a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 , to which I have already referred (at which the Claimant was represented by counsel appearing under ELAAS), the appeal was permitted to proceed on the question whether the ET erred in striking out the claims, having focused on the alleged discovery of the Claimant’s dishonesty and failing to allow that the question for determination required scrutiny of the Respondent’s evidence, not least given the close temporal connection between the suspension that led to the dismissal and the Claimant’s protected act and/or relevant action for the purpose of the 2002 Regulations . The Background Facts, the Issue for the ET and its Conclusions[4]The Claimant had been employed by the Respondent as part of its ground staff on a series of fixed-term contracts. In 2013, he brought an ET claim against the Respondent, under the 2002 Regulations and of victimisation for having raised a grievance in respect of those complaints. The ET dismissed those complaints, and made an order for costs against him.[5]From 8 October 2013, the Claimant was employed by the Respondent on a fixed-term contract to work airside as a ramp agent. In December 2013, he unsuccessfully applied to be made permanent. Unhappy with that outcome, on 15 January 2014, the Claimant raised a grievance, alleging he was not given permanent employment because of his earlier ET claim.[6]On 18 January, an incident occurred involving the Claimant, as a result of which another employee made a complaint about him. At a meeting the next day, the Claimant made a complaint about the other employee, saying she had made comments amounting to racial harassment. He contended he was told the matter would be investigated but the Respondent said the Claimant withdrew the allegation and it was agreed no further action would be taken.[7]On 28 January, the Claimant was suspended pending a disciplinary process and hearing, which ultimately resulted in his dismissal on 28 April 2014. The Respondent’s explanation for the suspension was that, on 23 January, it had received an anonymous letter referring to the circumstances of the Claimant’s departure from an earlier employer, Continental Tyres. The Claimant had submitted a CV to the Respondent stating he had been made redundant by Continental Tyres, but that was untrue; he had been dismissed for gross misconduct. On investigation, the Respondent found there were other discrepancies in the Claimant’s CVs and concluded he had given false information in an attempt to gain employment. That went to trust and confidence and was, the Respondent said, the reason for the Claimant’s dismissal. If so, that was likely - as the ET found - to amount to a proper ground for dismissal.[8]The Claimant argued, however, that the information contained in the anonymous letter had already been in the Respondent’s possession, it had not been sent anonymously at all; the timing of his suspension showed a close connection with his issuing of a grievance in respect of the rejection of his application for permanent employment and his allegation of racial harassment. These matters were part of the reason for his suspension and ultimate dismissal.[9]The Respondent argued that the Claimant’s complaint had no reasonable prospect of success and should be struck out; alternatively, it should be the subject of a deposit order.[10]The ET reminded itself that, as a general principle, discrimination cases should not be struck out, save in the very clearest circumstances. It concluded, however, that there was no prospect of the Claimant’s case succeeding in respect of his dismissal because (I summarise) it was dependent upon assertions rather than facts and his contention that the Respondent was already aware of the false information in his CVs would not detract from the fact that it was false information and would establish cause for dismissal: on any case there were clear grounds for his dismissal and the facts on which the decision was taken were not contested. The Claimant’s case rested substantially upon his unlikely assertion that the Respondent sent itself the anonymous letter to trigger an investigation that would reveal true information, of which it was already aware, as a justification for dismissal. That unlikely case could not be proved by the Claimant, and no evidence was identified that might put in doubt the Respondent’s case. The dismissal claims had no reasonable prospects of succeeding and would be struck out. Submissions The Claimant’s Case[11]On behalf of the Claimant it was first noted that the ET had not expressly referred to the draconian nature of a strike out decision or to the principle that it was inappropriate in circumstances where there is a dispute of fact. More substantively, it erred in dismissing out of hand the Claimant’s assertions as to the reason for the dismissal as not being based on any facts: where there was a dispute as to the reason for the dismissal, it was an error of law to dismiss a claim without hearing evidence from the decision maker(s). Related to this, the ET erred in focusing exclusively on his positive case for the dismissal, when the focus should have been on testing the Respondent’s reason. Although the ET concluded the Respondent undoubtedly had a good reason for the Claimant’s dismissal - his admitted dishonesty - that could not (save as regards the claim of wrongful dismissal) provide a complete answer to the case. The ET still needed to hear the Respondent’s evidence and determine whether the reason it relied on in the ET proceedings had in fact been the reason it had in mind at the relevant time or whether its decision making had been tainted by prohibited considerations.[12]As for whether it was right to characterise his case as based on assertions, the Claimant contended it was not. The close temporal connection between his complaints on 15 and 19 January 2014 and his suspension was sufficient to mean his case was based upon more than mere assertion. Findings of fact were needed to determine whether the Claimant was really dismissed entirely because of his dishonesty or whether his dismissal was motivated, at least in part, by the fact he had raised a grievance or complaint. Even if the matters relied on by the Respondent had been the subject of separate investigation and consideration by a number of different managers, as here, that did not mean that they were not all tainted by annoyance at the Claimant’s earlier grievance and complaint and that these prohibited matters had not influenced and informed their decisions. Although the ET at the subsequent Full Merits Hearing rejected the Claimant’s other claims - overlapping to some degree with the issues raised on the dismissal complaints - and made very strong findings adverse to the Claimant in terms of his credibility, that was of little relevance to the question whether the Gumbiti-Zimuto ET had erred in striking out the dismissal complaints. Ultimately, that ET had erred in reducing the dispute between the parties to a paper exercise. The evidence needed to be heard. The Respondent’s Case[13]Where an ET has correctly identified the test, has not got any of the facts wrong or confused, has taken into account all relevant factors and has correctly applied the legal principles, the EAT should not interfere. Whilst the ET had not fully set out the case law and had not expressly referenced the importance of testing a Respondent’s evidence as to the reason for the action in question, it could be taken to have had those points in mind. The Claimant had conceded he had lied on a CV with a view to gaining permanent employment. That, of itself, justified the dismissal of somebody employed to work airside by the Respondent. His case was that the Respondent did not dismiss him for that dishonesty but engaged in an elaborate fabrication, having sent itself the anonymous letter. The Claimant was unable to say how the Respondent already knew the information it said it subsequently obtained from Continental Tyres but asserted that the Respondent’s head of employment law somehow knew about his history - including the lie on his CV - but, rather than just reporting this, instead forged an anonymous letter. Notwithstanding that improbability, the Claimant’s case had to go further, because - as the ET recorded at paragraphs 11 to 15 - the matters raised in the anonymous letter were investigated by a number of separate managers; each individually forming the view that these matters warranted disciplinary action and/or should result in the Claimant’s dismissal.[14]For its part, the Respondent had stated it had taken into account the Claimant’s admission that his CV contained a falsehood, which, the investigation showed, was not an isolated error. The decision taker relevant to the decision to dismiss, said she had concluded the Claimant had intended to mislead. Plainly, such dishonesty would amount to gross misconduct and provided grounds for dismissal. The ET had rightly concluded this was a credible and unremarkable explanation for the dismissal. It did not need to hear live evidence to decide an attack on the genuineness of the reason for the dismissal had no hope of success. The contrary possibility - each of the separate managers involved in the disciplinary investigation and subsequent decision making had been motivated by the Claimant’s grievance relating to his application for permanent employment and his complaint about another colleague - was truly fanciful.[15]The ET had been entitled to take the view that the Claimant’s case had no reasonable prospect of success. At the Rule 3(10) Hearing, Langstaff J, had tentatively suggested a deposit order might have been considered in preference to striking out but the difference between the two courses was a fine line that should be left to the discretion of the ET, which had expertise in hearing cases and assessing the relative strengths and weaknesses of claims.[16]Moreover, ultimately there had been a Full Merits Hearing into the Claimant’s not-unrelated complaints, and that ET found he was a wholly unreliable witness who “repeatedly mistook sequence of causation”. That made good the view formed of the Claimant’s complaints about this dismissal and the decision to strike out. The Relevant Legal Principles[17]The power to strike out an ET claim is provided by Rule 37 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”), which allows that an ET may strike out all or part of a claim on the basis that it has no reasonable prospect of success. This is to be contrasted with an ET’s power to order that an allegation or argument may only be pursued upon the payment of a deposit (see Rule 39 of the ET Rules , which requires that the ET considers that the allegation or argument in question has “little reasonable prospect of success”).[18]In Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 CA Maurice Kay LJ stated:
“29. … 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 claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level.”
[19]Guidance was further provided by the EAT in Balls v Downham Market High School & College [2011] IRLR 217 (paragraph 6): “6. Where strike-out is sought or contemplated on the ground that the claim has no reasonable prospect of success … the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. 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. Is it, in short, a high test. There must be no reasonable prospects.” (Original emphasis)[20]More specifically, in Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755 CS, it was noted that in almost every case the decision in an unfair dismissal claim is fact sensitive, and it was further observed that:
“30. … 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 …”
[21]And further, where there is a dispute as to the reason for the dismissal it has been stated that it would be very rare indeed that the dispute can be resolved without hearing from the party or parties who actually made the decision (per Langstaff J in Romanowska v Aspiration Care Ltd UKEAT/0015/14/SM, at paragraph 15). More generally, it has been recognised that discrimination cases, involving as they do an investigation as to why an employer took a particular step, will generally (albeit always allowing for the exceptional case) dictate that the evidence needs to be heard and no summary decision taken as to the merits (see Anyanwu v South Bank Student Union [2001] ICR 391 HL, cited in Ezsias ). Discussion and Conclusions[22]The striking out of a claim is a summary determination of the merits without hearing the evidence. It denies the complainant the opportunity for the evidence to be heard and for it to be tested at a Full Hearing; it is a draconian measure that should be the exception and not the rule.[23]Where claims appear weak on their face, there can be a temptation to take a shortcut and determine the case summarily. When the claim represents a genuine grievance on the part of the complainant, such a step is unlikely to provide a real shortcut, as the number of appeals against strike out decisions makes clear. That said, an ET should be alert to provide protection in the face of a claim that has little or no reasonable prospect of success ( Ezsias at paragraph 4), and it is given a range of powers to enable it to respond appropriately in such cases. In exercising its power to strike out a claim - as opposed to adopting some other, lesser, form of protection, such as a deposit order - the ET is, however, bringing the case to an end without any proper test of the evidence. Where the complaint made is one of unlawful discrimination, it is recognised that there is a wider public interest in such claims being properly adjudicated at trial. A strike out prevents that being achieved. There is, further, the rather more prosaic point that - as anyone with trial experience will know - the testing of evidence at a Full Hearing can often confound expectations and prove false earlier assumptions as to the merits of a case. That is all the more so in discrimination cases, which are generally fact sensitive and reliant upon the inferences that an ET draws from all of the evidence once that has been adduced at trial.[24]In this case, the reason for the Claimant’s dismissal was in dispute. The Respondent had put forward a reason that, if established, would counter any suggestion that the decision was for a prohibited reason and would found a basis for summary dismissal. The Claimant was, however, contending this was a sham: the Respondent had known of the falsehoods in his CV before and had done nothing about this; it only took action when he lodged a grievance and made a complaint of race discrimination. If the Claimant’s case is thus characterised, it is not based on mere assertion but essentially on the coincidence of timing: his grievance and complaint of racial harassment occurring on 15 and 19 January, his suspension on 28 January.[25]The Respondent’s answer to the timing point was that it had been moved to act upon receiving an anonymous letter on 23 January. The Claimant says this was a letter that the Respondent’s internal legal advisers had sent, pretending it was an anonymous tip-off when it was, in fact, a device constructed so as to justify taking action against the Claimant, who was considered to be a troublemaker. On the Claimant’s case, it was, “ part of their well laid plans ”.[26]The first question is whether the ET was entitled to reject that case outright; to see it as a baseless assertion. It is fair to say that this aspect of the Claimant’s case was not the main focus of Ms Zeitler’s submissions, and I consider the ET was indeed entitled to take the view that it did. The Claimant was putting forward an essentially implausible case - truly founded upon a baseless assertion - and the ET was entitled to reject that outright.[27]That is, however, not the end of the matter. The Claimant - as the ET recognised - was saying, more generally, that the Respondent wanted to punish him for having brought proceedings against it, making a complaint of racial harassment and for raising a relevant matter under the 2002 Regulations . To the extent his case in those respects is based upon the coincidence of timing, as I have said, the Respondent counters by relying on the timing of its receipt of the anonymous letter. That, however, goes only to part of the dispute.[28]The Respondent’s case was that it chose to go down the disciplinary route given the content of the anonymous letter and to take the decision to dismiss because of the Claimant’s admitted dishonesty. It contends, it was in no way influenced by the Claimant’s relevant acts.[29]As Ms Zeitler accepts, that the Respondent had clear grounds for the dismissal and that those were not in dispute provides an answer to the wrongful dismissal claim. It would not, however, necessarily provide a final answer to the claims under Regulation 6 of the 2002 Regulations and of victimisation. In these respects, I was initially troubled by what might be seen as the ET’s failure to expressly acknowledge this point (in particular, at paragraph 22 of the strike out Judgment). Was that a failure to acknowledge the need to scrutinise the employer’s reason for its decision, regardless of the implausibility of the Claimant’s case?[30]In reflecting on that question, I understand why Mr Burns QC has referred me to the subsequent decision of the later ET at the Full Merits Hearing, in particular as to the Claimant’s credibility. I accept, however, Ms Zeitler’s point that I need to be careful to scrutinise the decision making of the ET at the strike out stage. Was it really entitled to conclude - at that stage - that the Claimant’s case had no reasonable prospect of success?[31]In forming a view on this, I accept I have to look at the ET’s Judgment as a whole. It would be wrong for me to see paragraph 22 in isolation. Undertaking that exercise, I note the ET’s careful recitation of the narrative history at paragraphs 8 to 15. I do not understand there to have been any dispute of fact as to what is there recorded. The Claimant was contending that the anonymous letter was a concoction, but it was not in dispute that its content was then considered by a further five managers, who each separately took the view that it warranted disciplinary action, ultimately resulting in the decision that the Claimant should be dismissed. For the Claimant’s case to have any prospect of success, therefore, an ET would have to find that six separate managers had each permitted the background issues of the Claimant’s protected acts to taint their decision making, although there was no evidential basis for stating that each of those managers was aware of those issues (those protected acts) and albeit that the Claimant had admitted that he had indeed falsified information on his CVs.[32]Seeing the case in that way - and Ms Zeitler has not demonstrated that there is another way of seeing it - the Claimant’s claims are, in my judgment, correctly to be described as fanciful. The Employment Judge put it slightly more politely as a claim founded upon unlikely and baseless assertion, but the conclusion reached - that this was a case that had no reasonable prospect of success, and here I stress the word “reasonable” - was one that I consider was (exceptionally) entirely permissible. This was a rare case that warranted a striking out at the preliminary stage, and I duly dismiss the appeal.