United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	MR B DANIEL (Solicitor) Messrs Ford & Warren Solicitors Westgate Point Westgate Leeds West Yorkshire LS1 2AX


 


SUMMARY

Practice and Procedure – Striking out

The Chairman struck out the Claimant's claims of victimisation without formally hearing evidence. He was entitled to do so on the facts.


 


HIS HONOUR JUDGE REID QC

1. This is an appeal against a decision of Mr Grazin, sitting as a chairman alone, in an Employment Tribunal held at Leeds on 13 August 2007. The Respondent Council had made an application to determine whether the Claimant was entitled to bring the proceedings. These were proceedings in which the Claimant alleged discrimination against the Council on the basis that the Council had victimised him contrary to s.2 of the Race Relations Act 1976, s.4 of the Sex Discrimination Act 1975 and s. 55 of the Disability Discrimination Act 1995.
2. The Council asserted that the proceedings should be struck out on two separate grounds. The first was that the Claimant was estopped from bringing the proceedings on the basis of res judicata, issue estoppel or under the doctrine in Henderson v Henderson. The second was that the claim had no reasonable prospect of success. The Chairman rejected the first of those grounds, but accepted the second.
3. The Claimant sought to appeal against the decision on numerous grounds, including bias. The allegation of bias was dismissed on paper at the sift stage by the President and that decision affirmed by Judge Birtles following an oral hearing under Rule 3 of the EAT Rules. All of the other grounds were dismissed by Judge Birtles sitting with two members at an inter partes preliminary hearing, save that permission was given to amend the notice of appeal and a single new ground was added by way of amendment. That ground was directed to go to a full hearing. The ground was that the Employment Tribunal was not entitled to dismiss the claim at a prehearing review without allowing evidence to be heard.
4. The Claimant chose neither to attend the hearing of the appeal nor to be represented. He further chose not to put in any skeleton argument or written submissions. The Council was represented by a solicitor.
5. The background to the case is as follows. The Claimant was employed by the Council as a customer service officer. His employment commenced on 19 May 2003. His employment ended with his summary dismissal on 28 January 2005. In the latter part of 2004 the Claimant made the Council aware that he was considering bringing proceedings against it for discrimination. Following his dismissal he launched his first set of proceedings against the Council in the Employment Tribunal and also appealed against the dismissal under the Council's internal appeals procedure. An appeal process was undertaken by the Council, which lasted for over a year. It is not material for present purposes why the process took so long. The Claimant was unsuccessful in this appeal.
6. In his first set of Tribunal proceedings the Claimant claimed unfair dismissal and also asserted discrimination on the basis of race, sex and disability. His discrimination claims were struck out. The claim for unfair dismissal still remains to be determined. Following the appeal process the Claimant launched his second set of proceedings on 9 October 2006 claiming discrimination, again on the basis of race, sex and disability. His second ET1 was in extremely bald terms, but made express reference to the "failure to conduct an appeal under fair procedure as provided by my contract of employment."
7. The Council made an application to determine whether the Claimant was entitled to bring this second set of proceedings. On 21 February 2007 Mr Grazin adjourned that application and required the Claimant to file and deliver full particulars of "all such facts and matters as alleged by him to amount to acts of discrimination, including details of the type of alleged unlawful discrimination alleged in respect of each such act in relation to the appeal process, which is referred to in paragraph 5 of the claim form."
8. The Claimant provided particulars running to 10 pages headed "Discrimination in the Internal Appeal". This is for practical purposes a witness statement setting out the Claimant's account of the matters of which he complained. Those particulars dealt in detail with the manner in which his appeal process had been conducted. He asserted that he was white, Irish, disabled (he suffers from asthma) and male. He sought to refer to a comparator, who apparently had also been subject to disciplinary action, who was black, English, not disabled and female. In summary his case appears to have been there were considerable irregularities in the appeal process as applied to him whereas the appeal process as applied to his comparator had been correctly conducted.
9. When the Council's adjourned application came before Mr Grazin again on 13 August 2007 Mr Grazin sought to establish the basis of the Claimant's second claim. The Claimant identified his claim as being a claim for victimisation, the protected act on which he relied as being the Council's knowledge that "I would make a complaint of racial discrimination", and that "actions are taken in the knowledge or well-placed suspicion by the Respondent that I would make a claim of discrimination." He confirmed to the Chairman that this was the basis of his claim. It followed from this that the Claimant had to show that the Council had treated him less favourably than in the circumstances it treated other persons and had done so by reason that the Council knew he intended to do a protected act: see, for example, s.4(1) of the Sex Discrimination Act 1975.
10. The Chairman then sought to establish the basis on which the Claimant asserted that the less favourable treatment which he alleged he suffered "by reason that" he had done a protected act. In his judgment at para 12 the Chairman referred to the submissions on behalf of the Council to the effect that the Claimant had made no credible attempt to establish why he believed any of the matters complained of had come about by reason of his sex, race or disability and had merely asserted his male gender, Irish citizenship and disability. He recorded in his decision at para 13: "As the Claimant continued to argue each separate alleged act of discrimination, it became clear to me that the Claimant believed that all he had to do was to assert there had been less favourable treatment and that that accordingly amounted to victimisation, because he had made persons aware of his intention to bring the various claims of discrimination in 2004. The Claimant entirely failed to volunteer any material upon which the Tribunal could properly conclude that the conduct of which he now complains was 'by reason that' one or more of the protected acts he had committed."
11. The Chairman tried to obtain from the Claimant some material from which a Tribunal could come to the conclusion that the Council had committed an unlawful act of discrimination. When it became apparent that the Claimant was unable to provide any suggestion of a causal link the Chairman formed the view that he had no option but to strike out the claim.
12. The Chairman heard no evidence in coming to this conclusion. It is the correctness of this course of action (and this point alone) which is at issue before me. There has been no appeal against the refusal to allow any of the other points taken in the notice of appeal to go forward to a full hearing.
13. The Chairman appreciated that he had not in a strict sense heard any evidence. He said as much at paragraph 11 of his judgment:

"11. I am conscious, of course, that I am considering an application to strike out on the ground, principally, that the claim has no reasonable prospect of success, so that somewhat different considerations apply from those set out in Madarassy [v Nomura International plc [2007] IRLR 246]. The new point in Madarassy was that the Tribunal could, at the first stage, consider evidence emanating from the Respondent as well as evidence emanating from the Claimant. I have not, strictly, heard any evidence. Nonetheless, in a case such as this, which is not, in any ordinary sense of the term, fact-sensitive, there is no reason in my view why the Tribunal should not properly consider whether a Strike-Out Order is appropriate. I have determined the case is not fact sensitive, on the basis that although the Claimant alleges that certain conduct on the part of the Council and its various officers amounts to less favourable treatment, there is no substantial dispute that that conduct occurred. Since the allegation in respect of the comparator is that the Council did follow its procedures, the only issue of fact which a Tribunal considering this claim on a full Hearing would have to consider is whether the actions of the Council's officers, in so far as they are material, constitute a failure to follow the procedures. I have used the phrase "in so far as they are material" because, if there were no other factors, I might well have concluded that determination of whether there was less favourable treatment could only be made by the Tribunal after hearing all of the evidence. However, for reasons set out in the next paragraph, that issue does not here arise."

14. The Chairman was not asked to hear any evidence at the adjourned hearing, nor did he ask the Claimant or anyone else to give evidence. There was, however, a lengthy debate between the Chairman and the Claimant in which the Chairman sought to extract from the Claimant any material which could assist his case and deal, in particular, with the "by reason that" problem. The Claimant was acting in person and was able to put before the Chairman all the material he wished to. He did not suggest there was any other material he would have wished to put before the Tribunal to deal with the "by reason that" point. The reality of the situation was therefore that the only possible error, if error it was, was that (rather than the Claimant being required formally to give evidence) he was permitted to put the material he wished, in particular his document "Discrimination in the Internal Appeal", before the Chairman by way of submission.
15. In my view there was no error. The Chairman was fully entitled to conduct the hearing in this way, having regard to the provisions of rule 14(2) of the Tribunal's rules: "So far as it appears appropriate to do so, the chairman or tribunal shall seek to avoid formality in his or its proceedings…."
16. In Anyanwu and anor v South Bank Students Union and anor [2001] UKHL 14 at para 24 Lord Steyn said:

"For my part the vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. 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."

17. At para 39 Lord Hope observed that he would have held that the claim should be struck out if he had been persuaded that it had no reasonable prospect of succeeding at trial. "The time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail."
18. In Jaffrey v Dept of Environment Transport and regions [2001] IRLR 305 Mr Recorder Langstaff QC (as he then was) pointed out:

"Although the power to strike out a claim is one which should be exercised sparingly, and although full regard must be paid to the words of Lord Steyn in Anyanwu v South Bank Students' Union [2001] UKHL 14, at paragraph 24, that there is a high public interest which should bias a tribunal in favour of a claim being examined on the merits or demerits of its particular facts, if a tribunal reached a tenable view that the case cannot succeed, then it had a discretion to strike out a claim under what was then Rule 13 of the Employment Tribunal Rules."

19. In the present case the Chairman was entitled to conduct the hearing with the degree of informality which he regarded as appropriate. He was aware that he had "not, strictly, heard any evidence". He did not make any findings of fact against the Claimant. What he did was to take the view that on the material put before him the claim could not succeed. This led to his observation that the case was "not, in any ordinary sense of the term, fact-sensitive" and to his conclusion that because in his view it could not succeed, it should be struck out.
20. In my judgment the Chairman was fully entitled to take the course he did. He was plainly well aware of the "bias in favour of" the claim being examined at a full hearing, but he was entitled not only to conduct the pre-hearing review before him in the comparatively informal manner in which he did but also (having obtained all the relevant information which the Claimant sought to lay before him in the way in which he did) to form the view that the case was one which had no reasonable prospect of success, to use the words of rule 18(7)(b), and should be struck out.
21. The appeal will be dismissed.