England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MRS JUSTICE PAUFFLEY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th October 2011

Lord Justice Moses:

1. This is a very sad case, where a 52-old solicitor lost his job too quickly with the Community Law Clinic Solicitors Limited so that he cannot bring a claim for unfair dismissal. He says that their allegations that he was dismissed because he was not getting in enough work at the Family Department are wrong and false. But in the absence of being able to bring a claim for unfair dismissal, he brought claims for race, gender and age discrimination. The Employment Tribunal judge, Employment Judge Hodgson, refused to strike out the claims for discrimination of the three types, and the solicitors appealed to Bean J in an interlocutory appeal under the Employment Appeal Tribunal.
2. The terms in which the appeal was partially successful are important. The judge, having reviewed the relevant authorities, described the gender and race discrimination case in these terms:

"It cannot be the law that where an employee is dismissed for whatever reason, whether health, capability or conduct, and is replaced by someone whose protected characteristics are not exactly the same the claimant can get a discrimination case to trial simply by asserting that the replacement employee is different. It is therefore not sufficient, in my judgment, for Mr Methuen to say, 'I am a man of Asian ethnic origin. At the time of my dismissal I was 54 years old. Therefore, unless I am replaced by a man of Asian ethnic origin who is 54 years old or very close to it indeed there is a prima facie case of discrimination and the burden shifts to the employer to rebut it'. On that basis no discrimination case could ever be struck out."

That, in my view, is unarguably a correct stance to take since all this respondent, the claimant, could rely upon was that when he had lost his job the firm had taken into their employment a much younger lady of different ethnic origin to work in the Immigration Department with a view to doing some work in the Family Law Department.

3. But the judge went on to say that after some hesitation he took a different view in relation to age discrimination. He said that the basis upon which the Employment Judge had allowed that claim to go forward was, as Bean J put it, very close to the line but just on the right side of the line. He then quotes a passage in the Employment Judge's conclusion which says:

"I cannot simply accept at this stage that the Respondent is bound to be able to establish that the Claimant's performance was inadequate … There must be at least some mileage in the Claimant's general assertion that there was good work in progress and, by implication, the department was building."

He therefore concluded that the matter depended on findings of fact.

4. The respondent, it is true, had said that the claimant, Mr Methuen, had not been getting in enough work, there had not been enough referrals and the claimant had responded by saying that was an inaccurate and unfair view of the figures and had not taken into account the good work he was doing, demonstrated in the work in progress. But the logically prior question was: was there anything on the basis of which the inference could be drawn that there had been age discrimination? If it was right to focus upon the respondent's response then it was equally right to do so in relation to race and gender. And yet, as Bean J had concluded, there was nothing in those claims and they were bound to fail.
5. In my view, and I have read these papers with great care including the helpful response from Leigh Day on behalf of Mr Methuen, I can find no basis rationally to distinguish between the three different claims. All that this claimant has been able to do is to refer to the employment of someone with far lower qualifications and a lower salary who has the possibility of doing some work in the Family Department although has been retained to work in the Immigration Department.
6. In those circumstances, in my view the appellants have a real prospect, to put it at its lowest, of succeeding in this appeal. Sir Richard Buxton suggested that this was a second appeal although Mr Paulin on behalf of the applicant says that it is not; I need not finally conclude that point because it seems to me that there is a point of principle and a compelling reason why this appeal should go ahead. All the judges who have looked at this hitherto have noted, as the claimant's own counsel said, that this is a weak case. But the question for the Employment Appeal Tribunal is whether there is any reasonable prospect of success, or whether on the contrary the claim is bound to fail. If a claim is bound to fail, none of the urge and compulsion to take care to which the House of Lords referred in Anyanwu [2001] ICR 391 can displace the necessary conclusion from that view of the facts; and indeed as the Community Law Clinic Solicitors point out, there is now authority from Mummery LJ as to the importance of exercising this interlocutory jurisdiction lest the tribunals be flooded with hopeless claims of discrimination by disappointed claimants who the law does not permit to bring cases of unfair dismissal (that is Madarassy v Nomura International PLC Plc [2007] ICR 867. It would be quite wrong as a matter of principle, it seems to me, that claimants should be allowed to pursue hopeless cases merely because there are many discrimination cases which are sensitive to the facts, and the whole area requires sensitivity, delicacy and therefore caution before access is deprived to the tribunals on an interlocutory basis.
7. In those circumstances, I regard that as a compelling reason for giving permission to appeal and I shall give permission to appeal.
8. There then remains the very grave problem that Mr Methuen has as to how he is going to be able to afford to respond to this appeal. I have been invited in helpful written submissions by Leigh Day to make an order that the costs should be borne by this firm of legal aid solicitors because he may well not be able to afford representation. I am prepared to accept that it will be very difficult but not impossible for him to pay for representation in what will be a short appeal, but I do not regard that as a compelling reason for making the successful appellants pay the costs in any event. In those circumstances I shall make no other order.
9. I wish to finish by saying this. This is now the third judge that has remarked upon the weakness of Mr Methuen's case. I have every sympathy with him; he is in a very difficult position, and it must be galling to hear everybody say what they do say without a full hearing. But I do urge him to think very, very carefully about whether he wants to go on. He is having difficulties in his present employment, through no fault of his own, because of a difficulty of getting paid on time and a decent take for the work that he does, and to have his life made even more difficult by running a case that, so far as one can reasonably foresee, will fail seems to me to be a recipe for disaster. That, of course, must be a matter for him.
10. I grant permission to appeal. So far as constitution is concerned, one of the judges may be a High Court Judge. So far as time estimate is concerned, two and-a-half hours including judgment.

Order: Application granted.