United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A EZSIAS (The Appellant in Person)
For the Respondent	MR TIMOTHY PITT-PAYNE (of Counsel) Instructed by: Messrs Eversheds LLP Solicitors 1 Callaghan Square Cardiff CF10 5BT


 


SUMMARY

Employment Tribunal struck out unfair dismissal claims stating they were bound to fail. The employers had made two applications, one for a deposit to be ordered pursuant to rule 20 of the Employment Tribunal rules, and the second for a strike-out pursuant to rule 18(7)(b) on the grounds that the appeal had no reasonable prospect of success. At the first hearing only the rule 20 application was formally before the Tribunal because no notice had by then been given in relation to the rule 18 matter. In fact the Tribunal concluded that the claim was bound to fail, but fixed a second hearing to consider the question of strike-out and also the means of the claimant. Means had to be considered before any deposit was ordered. At the second hearing an order to strike-out all the claims was granted. The claimant alleged that the Chairman had come to the second hearing have prejudged the issue, given her trenchant comments at the first hearing, and that in any event there were fundamental factual disputes which made the strike-out wholly inappropriate. The EAT upheld the appeal on both grounds.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. These two appeals come before me for a full hearing with the permission of Mr Justice Rimer granted at a hearing held on 14 December 2005. The parties are Mr Ezsias, the claimant before the Cardiff Employment Tribunal, who appeared in person, and his former employer, the North Glamorgan NHS Trust, who were represented by Mr Pitt-Payne.

Background

2. The Appellant is a consultant oral and maxillo-facial surgeon. He was first employed by the Trust on 1^st July 1998. An apparent breakdown in relations between himself and certain colleagues was investigated and a report was produced in 2001.
3. In September 2002 a disciplinary hearing took place at which charges of bullying and harassment were raised against him, but they were dismissed.
4. In October 2002 he reported a colleague, Keith Smart, to the Police, alleging fraud in connection with Mr Smart's fees for preparing medical reports for the CICA. During an investigation carried out by the Trust by Carole Benson, an external computer fraud specialist, the Appellant raised further allegations of fraud against another colleague, Eric Nash.
5. In addition, he says that he made various other complaints to a number of bodies, including his employer and the Police, about a wide variety of matters. These include allegations of dereliction of duties affecting patient care; of gross and serious inadequacies with the histopathological service, thereby endangering again safety and treatment for the patients; and some concerns about competency issues of certain colleagues.
6. In February 2003 a number of colleagues wrote to the Trust's Chief Executive, complaining of a breakdown of their relationship with the Appellant. He was suspended in April 2003, and on 1 February 2005 was summarily dismissed, with pay in lieu of notice. The reason given by the Trust for the dismissal was this breakdown in relationships. He contends that the real reason was very different, and was essentially because he had made the various disclosures to which we have referred.

Procedural history

7. The Appellant presented a complaint of unfair dismissal to the Employment Tribunal on 8 February 2005, that is, very shortly after his dismissal. He put his case in two ways. First, he submitted that he had been automatically dismissed under Section 103A of the Employment Rights Act, the dismissal having been by reason of his having made protected disclosures. Alternatively, and in any event, he claimed that he had been unfairly dismissed in the ordinary way under Section 98 of the Employment Rights Act.
8. The claim was resisted by the Trust. They asked that the case be listed for a pre-hearing review, with a view to striking out the claim or, alternatively, ordering the Appellant to pay a deposit.
9. The matter first came on for the pre-hearing review before the Chairman, Dr Rachael Davis, sitting alone on 7 July 2005. At that hearing the only issue before the Chairman - that is the only matter about which the Appellant had been given notice - was whether or not a deposit should be ordered against him pursuant to Rule 20 of the Employment Tribunal Rules of Procedure 2004. It seems that the reason why the strike-out was not formally before the Chairman at that hearing was because notice had not been issued.
10. Rule 20 is as follows:

"At a pre-hearing review if a chairman considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have little reasonable prospect of success the chairman may make an order against the party, requiring the party to pay a deposit of an amount not exceeding £500.00 as a condition of being permitted to continue to take part in the proceedings relating to that matter."

11. On an application under Rule 20, if the Chairman forms the opinion that the case does have little reasonable prospect of success then she can order a deposit of up to £500.00 as a condition of a claimant being permitted to continue to take part in the proceedings.
12. However, before ordering a deposit, Rule 20(2) requires the Chairman to ascertain the means of the paying party to ensure that he has the ability to pay the sum ordered. Failure to pay in accordance with an order within the time specified will result in the claim being struck out: see Rule 20(4).
13. Of course, the deposit limited to a maximum of £500.00 does not of itself protect the opposing party against the actual costs likely to be incurred in a case of this kind which was due to run for many days, but that is not necessarily its real significance. The fact that the paying party has continued with the proceedings, notwithstanding a Rule 20, order may be taken into account by an Employment Tribunal when finally considering whether a costs' application should be made in favour of the opposing party: see Rule 47. It therefore gives a party against whom such an order is made pause for thought before pursuing the case to a conclusion.
14. As I have said, the Trust also sought a striking-out order. The material provision in the Rules is Rule 18(7)(b) which provides that a chairman may make a judgment or order "striking out or amending all or part of any claim or response on the grounds that it is scandalous or vexatious or has no reasonable prospect of success". Before such an order can be considered notice must be sent to the opposing party: see Rule 19.
15. Although it is not clear from the first decision itself, it was the failure to serve this notice which prevented the matter being determined by the Tribunal at that first hearing. Logically, of course, it would have been desirable to have had the strike-out heard first. If a strike-out application is granted then the question of a Rule 20 deposit simply does not arise.
16. In fact Rule 19 also provides that a notice need not be sent to a party if they have been given the opportunity to give reasons orally to the Chairman why the order, in this case a strike-out order, should not be made. However, that proviso was not applied in this case.
17. Accordingly, the issue before the Chairman was simply whether the Rule 20 application should be granted and a deposit ordered or not.
18. On 20 July, following the hearing on 7 July, the Chairman promulgated what is described in the document as a "judgment" with reasons given. Under the heading 'pre-hearing review' these words appear:

"In my opinion the contentions put forward have no reasonable prospect of success. The case will be re-listed to consider the question of means and/or the respondent's application for a striking out order made in box 6 of their response".

In fact, therefore, at that stage no order as such had been made. There were simply certain conclusions as to the strength of the case.

19. In summarising her reasons, the Chairman said this:

"(1) A reasonable tribunal would be unlikely to find that the alleged disclosures, other than those of fraud, amounted to qualifying disclosures within the meaning of the relevant legislation.

(2) Insofar as the fraud allegation made to the Police about Mr Smart was a qualifying disclosure, it was not made to another responsible person other than his employer, within the meaning of section 43(c).

(3) A reasonable tribunal would find that the fraud disclosures relating to Mr Smart and Mr Nash were not, in any event, made in good faith.

(4) In any event, the whistle-blowing claim had no reasonable prospect of success because the Employment Tribunal concluded that the principle reason for dismissal was not the making of a protected disclosure, as asserted by the Appellant, but the reason put forward by the Trust, namely the irretrievable breakdown in the relationship in the Trust of confidence."

20. Indeed, the Chairman went on to say, not merely that the case had no reasonable prospect of success but she added, in the final paragraph, of her reasons:

"I would go further and say that it is bound to fail."

21. Any reasonable tribunal would find that the protected disclosures were not the principal reason or one of the principal reasons for the dismissal. The Chairman went on to express the view that a reasonable tribunal, having concluded that the reason was the breakdown in relationships leading to a breakdown in trust and confidence, would also inevitably reach the conclusion that the procedures adopted by the Employers were fair. Therefore, the general unfair dismissal claim was bound to fail also.
22. The Appellant lodged an appeal against that ruling, which as I have said was identified at that stage as a judgment. The first appeal was entered on 15 August. On the same day the parties were given notice by the Employment Tribunal of the date fixed for the restored PHR on 9 September.
23. On 5 September the Appellant by fax, rather late in the day, applied for that hearing to be vacated pending the hearing of the appeal. That application was refused on paper and it was renewed at the outset of the hearing on 9 September, as indeed the Appellant had been invited to do.
24. The renewed application was also dismissed by the Chairman for reasons which were sent to the Appellant on 15 September. The Chairman took the view, subject to the opinion of the EAT on appeal, that what had been sent out to the parties on 20 July was merely an opinion and was not in fact the judgment at all. It was an opinion reached after a full and careful analysis, but there was nothing which could properly be the subject of an appeal. It had gone out under the heading of judgment apparently due to a clerical error. The Chairman corrected that error by a Certificate of Correction dated 14 September. By that Certificate, she deleted the words "judgment of the Employment Tribunal" from her earlier Decision.
25. Having refused the postponement she then heard further submissions and went on to promulgate an Order dated 12 September striking out the whole of the claim under Rule 18(7)(b) on the ground that it had no reasonable prospect of success. She gave certain brief reasons for that in a letter dated 29 September in which she reiterated her view that in the light of the letter from the nine colleagues "any reasonable tribunal would take the view that the principal reason for dismissal was not the protected disclosure but the irretrievable breakdown in relationships" and she added that that could lead to the prospect of the Department disappearing altogether. Similarly she concluded that any reasonable tribunal would say that dismissal was within the band of reasonable responses.
26. She then referred back to the original reasons given in relation to the deposit application. Mr Pitt-Payne submits, and I accept, that this letter emphasises the fundamental reason why she reached the decision which she did.
27. The Appellant then lodged a second appeal against the strike-out order.
28. The first appeal was sifted by His Honour Judge Serota QC. He held that it disclosed no reasonable grounds for bringing the appeal and that therefore, pursuant to Rule 3(7) of the EAT Rules, no further action would be taken with respect to it. He commented, however, in relation to the strike-out claim, that if in due course such an order were to be made "it may be appropriate for the Chairman to go into greater detail and the EAT to look more closely at the underlying allegations".
29. The second notice of appeal was sifted by the then President, Mr Justice Burton. He ordered a preliminary hearing to be heard together with a Rule 3(10) oral application made in relation to the first appeal, the Appellant having by then indicated that he wished to make oral representations under that Rule in relation to the first appeal.

30. The two matters came before Mr Justice Rimer, who ordered that both should go to a full hearing, whilst expressing the view that it was very doubtful whether there was any relevant order, decision or judgment made in July which could properly be the subject of an appeal. He also expressed certain observations, perhaps in rather stronger terms than is usually found in a preliminary hearing, that the Chairman's approach was "questionable" and that it was not usual to determine disputes of fact simply by assessing the opposing contentions of the parties as set out on paper.

30. As he pointed out, the real complaint is directed at the strike-out order made in September. I agree: I also agree with his provisional view that, in fact, the rulings made in July could not be the subject of any proper appeal at that stage. No final determination of any kind had been made and therefore any appeal was premature. However, the July and September rulings must be considered together, since on the latter occasion the Chairman referred back to her earlier rulings and made the order substantially for the reasons given at that time.

The Grounds of Appeal

31. There is an extensive Notice of Appeal, but the essential grounds, it seems to me, are as follows.
32. First, it is submitted that it was never appropriate to make a strike-out order because there were disputes of fact which had not been resolved and could only be resolved after hearing evidence.
33. Second, it is said that by expressing such ambiguous views at the close of the first hearing, that is the Chairman stating "I have no doubt that the claim is bound to fail", there was an effective pre-judging which meant that the Chair could not approach the second hearing with an unprejudiced mind.
34. Third, and independently of that, it was alleged that the Chairman had displayed bias and had misconducted herself during the course of the hearings.
35. Fourth, in relation to the ordinary unfair dismissal claim, it was submitted again that no proper conclusion could be made without determining the facts but also that there was an argument that there had been a failure to comply properly with procedures which ought not to have been dismissed summarily.
36. The matter came before HH Judge Clark but he observed that the allegations of bias and misconduct had not been dealt with in the appropriate way. It was necessary for various steps to be complied with pursuant to paragraph 11 of the EAT Practice Directions. He therefore made an order on 7 April 2006 requiring that these steps be taken. The Appellant was ordered to swear an affidavit setting out details of the alleged bias and the Chairman and the Respondent were invited to give their responses.

Bias

37. I will deal first with the allegations of pre-judgment, bias and misconduct. Logically, they should be considered first because if they are successful then, of course, the strike-out cannot stand.
38. I should say at once that I reject most of the matters that are raised in the affidavit which are directed to alleged misconduct and which seem to me to be either trivial or misconceived. For example, the Appellant is wrong to say that the Chairman was barred from hearing this case pursuant to Rule 18(9) of the Tribunal Rules. That Rule prevents somebody who has considered at a pre-hearing review an application that a deposit should be paid under Rule 20 from sitting in the subsequent proceedings. This plainly was not such a case: it was an adjourned hearing of the same matter.
39. Again the Appellant is critical of the fact that the Chairman amended her original document headed 'Judgment' and suggests that this was improper. It plainly was not: if the Chairman thought, and in my view rightly thought, that the original hearing in July had not, in fact, led to any formal judgment or order then I see every reason why she should make that clear. It does not begin to demonstrate any misconduct or improper behaviour.
40. There are also contentions that the Appellant's arguments were brushed aside or treated peremptorily, but that is frequently a complaint of a disappointed litigant. The Appellant also had the impression that the chairman was irritated and flustered. She denies that but at any rate it does not disclose bias.
41. However, there is one area of far greater substance. It is the allegation that the Chairman had expressed herself at the first hearing in terms which suggested that when she came to consider the strike-out application in September, she did so having pre-judged the issue.
42. The strike-out application was not properly before her in July, as I have indicated. She had no jurisdiction to make an order at that stage and indeed she recognised that fact and did not do so, but she did, without hearing any argument specifically on that point from the Appellant, express views as to certain features of the strike-out application. Moreover, she did it, as I have said, in wholly unambiguous terms, saying that the claims had absolutely no prospect of success. There was no statement by her that her ruling was merely provisional or preliminary; indeed, it plainly was not so far as the application under Rule 20 was concerned. Subject to means, it is clear that at the very least a deposit order would be made. Moreover, the heading "judgment", albeit inappropriate, would have fortified the impression that it was a fixed determination.
43. The Chairman in fact dealt with the position in her observations on the Appellant's affidavit. She says that at the beginning of the second hearing there was a discussion about the nature of the first hearing. At that stage she told the Appellant that her conclusions were only provisional (although I do not think she meant that this was so with respect to the Rule 20 issue, save with respect to means). That was, however, in the context of indicating to him why there was nothing to appeal and therefore why a postponement would be refused. She said that her preliminary views were then fortified following argument, when she focused more on the reason for the dismissal than the partial disclosure. She also said that the purpose of expressing her opinion in the way she had at the first hearing was so that the Appellant would appreciate that he had to persuade her that his case had at least some prospect of success. She did not, however, say that to him at the time. There was further argument at the second hearing in relation to the strike-out application, and the Chairman is adamant that in fact she did keep an open mind and gave proper consideration to all the arguments.
44. I have considered the case of Jiminez v London Borough of Southwark [2003] IRLR 477. In that case, the Employment Tribunal heard evidence in a case of unfair dismissal and disability discrimination over 13 days. At the end of the evidence, and on the tenth day, the Tribunal expressed very forceful views, stated in terms to be preliminary, as to the behaviour of the employers, and they encouraged the parties to settle. The employers alleged that this demonstrated apparent bias in that it showed that the Tribunal had concluded a view hostile to the employers before final submissions had been heard. Although the Tribunal stated that its views were merely preliminary, they were in such strong terms that they could not fairly be treated as anything but a fixed and strongly adverse view of the Council's conduct unlikely to be shifted by further argument.
45. The EAT upheld this appeal and the case went to the Court of Appeal. They restored the decision of the Employment Tribunal. One reason was that the EAT had reached its conclusion without obtaining the observations of the Chairman of the Tribunal. But the Court of Appeal also held that there was no reason why in that case the statement by the Tribunal that their views were preliminary should not be accepted at face value. Lord Justice Peter Gibson, with whose judgment Lord Justice Clark and Mr Justice Richards agreed, set out how questions of pre-judgment of this kind should be assessed as follows:

"25. Discussion

It is common ground that (1) a judicial decision may be vitiated by the appearance of bias no less than actual bias and that the test for such apparent bias is whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased (see Porter v Magill [2002] 2 AC 357 at p.494H per Lord Hope); and (2) that the premature expression of a concluded view or the manifesting of a closed mind by the tribunal may amount to the appearance of bias.

26. On the first point it is important to stress that the test to be applied is an objective one. The fact that the tribunal were amazed at the allegation of bias or that Southwark and its legal advisers were surprised at what was said or regarded the comments as displaying bias cannot be determinative for the appellate tribunal which must conduct an objective appraisal of all the material facts. It is no less important to emphasise the qualities of the observer through whose eyes the appraisal is conducted, viz of being fair-minded and informed. The observer in the present case must be assumed to have been present throughout the hearing and to be aware that on 12 March 1999 the evidence was very largely completed but with submissions yet to be heard. The observer must also be taken to have informed himself of the procedure and practice of tribunals in this jurisdiction."

46. Then at paragraph 38 he made the following observations:

"I have some difficulty in understanding why a strongly expressed view cannot be a provisional view, leaving it open to the party criticised to persuade the tribunal as to why that view was wrong and why the party's conduct was justified. Of course, the more trenchant the view, the more the attachment of the label 'preliminary' may need scrutiny to see whether the view was truly preliminary and not a concluded view, but it is in my judgment unduly cynical to reject the repeated assertions that these were preliminary thoughts or views, particularly when the Tribunal have gone to the trouble of pointing out the various matters which need to be addressed in the submissions, directions for which were given".

47. In this case, unlike Jiminez, the Chairman had not heard oral evidence before expressing her ruling, although she did have documentary evidence. More specifically, the evidence relevant to the strike-out claim under Rule 18(7)(b) and the deposit claim under Rule 20 was essentially the same, so I accept that the Chairman was in principle in a position to take a provisional view about the strike-out claim. However, she did not at that stage suggest that her view was merely provisional or preliminary, nor did she leave any room for doubt as to what her impression of the strength of the case was. She expressed these views prior to any submissions having been made by the Appellant or his representative on this matter. Indeed, at the second hearing the Appellant appeared in person and had to deal with the strike-out claim himself.
48. We were also referred to Chris Project v Hutt UKEATS/0065/05 (Lady Smith presiding), a decision of the EAT sitting in Scotland, where certain comments by the chairman directed to a nervous litigant in person and telling him that he faced real difficulties with his claim were held by the EAT, in the particular circumstances of that case, to give an impression of pre-judging. As Mr Pitt-Payne points out, however, in that case these observations had been made before any evidence had even been heard. In this case, although oral evidence was not heard, the tribunal did reach this view after considering the documentary evidence and hearing submissions on the deposit issue, albeit that the submissions were not specifically directed to strike-out at all.
49. Mr Pitt-Payne accepts that the ruling in July, taken on its own, would have raised concerns about the independence of the Chairman. But all these were laid to rest, he says, by the conduct of the chairman at the September hearing itself. She then made clear the fact that the ruling was provisional, and acted on that by hearing further evidence. Any reasonable and well informed observer would have realised that there were no concerns about her independence.

.

50. I reject that submission. Here there was a very clear finding at the end of the first hearing – which was not at that stage said to be provisional or preliminary in any way, and plainly was not so far as Rule 20 was concerned - that there was absolutely no prospect of success. The case was "bound to fail." That is more even than a trenchant observation; it suggests in unequivocal terms that the necessary condition for the strike-out had been met, and it appeared that thereafter was really no basis on which the Chairman could exercise her discretion other than to order the strike-out. It is pertinent to note that the day after that hearing, the Respondent's solicitors wrote to the Appellant telling him that they anticipated that his claim would be struck out at the next hearing and that he should withdraw or face substantial costs. The qualifications which the Tribunal made in Jiminez to the effect that the observations were provisional only were wholly absent. I accept the Chairman's evidence that she did in fact keep an open mind, and certainly that she tried to do so - although it has to be said that this would be difficult for anyone given that her first ruling was a carefully considered one and had apparently been reached without hesitation or doubt - but the issue is not whether there was bias but whether there was a perception of it.
51. I have come to the clear view, bearing in mind the observations in Jiminez to which I have made reference, that there was a perception of prejudgment here. The views were expressed in very trenchant terms without even any recognition at the time that they were provisional views only. Moreover, they were plainly not intended to be so far as the strength of the case with respect to the Rule 20 application was concerned. Any fair minded and informed observer would, in my view, have considered that, to put it at its lowest, there was very little prospect that the appellant would be able to shift her from her view. I do not think that her comments at the second hearing would sufficiently have dispelled that impression.
52. Given the forceful way in which her conclusion was expressed, I would have been minded to take the same view even if her ruling in July had been described as provisional at that time. In fact, it was not. I would therefore uphold the appeal on this ground alone.

The merits of the case

53. However, the Appellant submits that independently of this the Chairman ought not to have made the strike-out order for other reasons. If he is right, then it would not be appropriate for this issue to be decided by any other tribunal. So I must deal with this argument.
54. The major contention is that the case raised issues of fact which could not properly be determined at the strike-out stage.
55. Mr Pitt-Payne accepts that the test for striking out is still a very high one. It is true that the power to strike-out was amended in 2001 so as to be less rigorous. It used to be necessary to establish that the claim was frivolous, vexatious or scandalous, whereas now a claim can also be struck out where there is no reasonable prospect of success, but this is still a significant hurdle for the Respondent to cross, as the authorities demonstrate. Mr Pitt-Payne emphasised, and I accept, that the test is not whether there is absolutely no chance of success –that was encompassed within the old test of scandalous proceedings (see Aldous LJ in Care First Partnership Ltd v Roffey [2001]IRLR 85(C.A.) at para 22 )- but whether there is no real or reasonable chance of success. As Ward LJ expressed it in Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] IRLR 289. at para 39, this means that they are not fanciful.
56. The classic example where striking out may occur is where the Tribunal reaches a conclusion that even on the facts advanced by the claimant the case has no prospect of success as a matter of law. In such a case, one would expect a decision to set out the allegations of the claimant, analyse the relevant legal principles and indicate why the claim is bound to fail.
57. 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 without any evidence being tested in cross examination that the disputed facts will inevitably or almost inevitably be resolved against the claimant. Such a finding involves a ruling that the claimant is either dishonest or very fundamentally misguided. The evidence suggesting that may sometimes be strong, but that is a far cry from justifying an inference from such facts as are revealed in the papers alone that the claimant's case has no real merit.
58. In this case the Chairman found that certain of the alleged disclosures were "not likely" to be considered by a reasonable tribunal to amount to qualifying disclosures. That was a conclusion that the facts were not as a matter of law likely to establish any liability. But as Mr Pitt-Payne accepted, that phrase "not likely" would not of itself justify a strike-out of these particular aspects of the claim.
59. The Chairman then accepted that the allegations of fraud would not fall into that category – they were in principle protected disclosures - but concluded that one of such disclosures, namely to the police, was not to the appropriately prescribed person. That, however, demonstrates one of the problems here; the factual premise is in dispute: the claimant submits that he in fact had made an earlier complaint of the same nature to his employer and only went to the police because they did nothing.
60. Then the Chairman says that in relation to another fraud allegation against Mr Smart, it was not made in good faith, that is, it was made for an improper motive. This was on the basis that the appellant failed to disclose the source of certain information he had obtained relevant to that allegation. I have doubts as to whether such an inference is legitimate, or at least that it would be universally drawn by any reasonable tribunal. But in any event, that is a very serious allegation to make and in my view, should never be made without the party alleged to have acted in that way having his evidence heard and tested before the Tribunal.
61. I pause to note that in any event, even if the tribunal were right to find as a matter of law that the fraud allegations could not succeed, the Chairman did not dismiss the other alleged protected disclosures in the same way. These would therefore remain to be argued.
62. If that is right - and Mr Pitt-Payne accepts that it is - then everything turns on the Chairman's conclusion that in any event it was clear that the reason for the dismissal was the breakdown of relationship between senior members of staff and the Appellant, and that it had nothing to do with any protected disclosure. It is clear from the letter of 29 September that the Chairman also perceived this to be the major issue. She also considered that the employers had acted in a procedurally fair and sensible manner, as she thought any tribunal would be bound to find, but Mr Pitt-Payne accepts that this finding could only be sustained if the Chairman was right to conclude that there could be no real doubt as to the reason for dismissal.
63. 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 countervailing reason advanced by the employee, must itself be undisputed. In this case Mr Pitt-Payne pointed to various parts of the documentary evidence which showed that there was overwhelming evidence to suggest that the reason for the dismissal given by the employer was true. The problem is that much of that evidence – indeed the Appellant says all of it - is in dispute. In particular much emphasis was placed on a letter from the nine senior staff members (not medical, according to the Appellant) saying they could not work with him, but he contends that there is strong documentary evidence to suggest that this was manufactured to bolster the case. A trial might prove that to be wholly fanciful, but I do not see how it can be rejected at this stage.
64. Here the employee was putting forward an alternative reason for the dismissal. Even if there was a breakdown of relationships, he fairly asks, why was that? He posits the possibility that this itself was because he made certain protected disclosures to which the staff objected. It seems to me that this possibility can only be discounted after a hearing. In any event, once it is accepted that he might be able to establish that he did make certain protected disclosures then it cannot be unrealistic to say that they could be the reason for the dismissal. The alternative reason advanced by the employers may appear the more likely, but without testing the evidence I do not see how a tribunal could conclude, let alone with the certainty which this tribunal did, that the reason was plainly the breakdown of relationships and not the protected disclosure. Once an employee puts an alternative reason for dismissal into the arena, and has some evidence to support it, the tribunal will have to decide what was the actual reason for the dismissal. For a recent example see ASLEF v Brady [2006] IRLR 576. I do not see how they can resolve this matter without testing the evidence first.
65. I also bear in mind some observations of Lord Steyn in Anyanwu v South Bank Students Union and another [2001]UKHL 14; 2001]IRLR305 at para 24 when he said this:

"Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest."

Admittedly that was in a different context where the claim had been alleged to be res judicata. Mr Pitt-Payne further submits that the public interest in discrimination cases is stronger than in whistleblowing cases. Even if that is so, it nonetheless seems to me that there should be a fair and proper examination on the merits, and that means where they are properly tested.

66. The finding in relation to the reason for the dismissal was central to this case, both the protected disclosure and the ordinary unfair dismissal. For reasons I have given, I do not think that any tribunal could have stuck out these claims on the basis of disputed documentary material without requiring the parties to give evidence.
67. I appreciate that the Chairman was concerned that a potentially long case with in her view very little apparent prospect of success, would take public time and money and indeed that it may be kinder to the Appellant himself to stop the case at an early stage before significant costs were incurred. The sentiment is laudable and understandable. But it is a very serious matter to deny someone the chance to have their case properly tested in court. What may appear a very weak case on paper may take on a very different colour when the evidence is tested, as every litigation lawyer knows. It may be that the Appellant is placing himself at significant risk of costs, and that he may not be able to pay any costs which may ultimately be awarded against him. That is one of the unfortunate consequences of the system. But I have no doubt that his case cannot properly be struck out at this very early stage. The issue of a deposit under Rule 20 is a different matter. That has not been determined and I do not say it would inevitably fail. If the employers wish to pursue it they will have to do so before a different Tribunal, but they may feel that it is wiser now simply to get on with the merits hearing.
68. It follows that this appeal succeeds and the strike-out order can no longer stand.