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United Kingdom Employment Appeal Tribunal
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Reilly v Tayside Public Transport Company Ltd & Anor (Practice and Procedure : Striking-out or dismissal) [2011] UKEAT 0065_10_2705 (27 May 2011)
URL: http://www.bailii.org/uk/cases/UKEAT/2011/0065_10_2705.html
Cite as:
[2011] UKEAT 65_10_2705,
[2011] UKEAT 0065_10_2705
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Appeal No. UKEATS/0065/10/BI
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF
At
the Tribunal
On
27 May 2011
Before
THE
HONOURABLE LADY SMITH
(SITTING ALONE)
MR
JAMES REILLY APPELLANT
TAYSIDE
PUBLIC TRANSPORT COMPANY LTD
T/A TRAVEL DUNDEE RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
For the Appellant
|
MR
ROBERT F HUNTER
(Solicitor Advocate)
Muir Myles Laverty
Solicitors
Meadowplace Building
Bell Street
Dundee
DD1 1EJ
|
For the Respondent
|
MR EDWARD NUTTMAN
(Solicitor Advocate)
Ford & Warren
Solicitors
Westgate Point
Westgate
Leeds
West Yorkshire
LS1 2AX
|
SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
THE HONOURABLE LADY
SMITH
Introduction
1.
This is an appeal from the judgment of an Employment Tribunal sitting at
Dundee (Employment Judge Mr J Hendry) registered on
2 September 2010, in which the Claimant’s claim was dismissed as
having no reasonable prospects of success. That claim is a complaint by the
Claimant that he was unfairly dismissed from his employment as a bus driver
following an accident in which he was involved on 21 November 2009.
2.
As is set out in the paper apart to his form ET1, there are five
different respects in which the Claimant asserts that his dismissal was
unfair. He does not dispute that he was driving a bus that collided with a
pedestrian bridge but, put broadly, his complaints are that the disciplinary
procedure was unfair, and in all the circumstances to impose the sanction of
dismissal upon him following the accident was also unfair. He points to, in
particular, not having had access to evidence that his employers had gathered,
their failure to follow up matters raised in the disciplinary process, his
belief that he was not wholly to blame for the accident because he had not
adequately been advised of a change of route, his belief that the Respondent’s
decision to dismiss was based on the value of the damage caused, and also that
there was inconsistency of treatment as between him and other drivers who have
had accidents and/or committed other breaches of driving safety without being
dismissed for misconduct. That, then, is the case presented by the Claimant
which he offers to prove at a Tribunal.
The Pre Hearing Review
3.
The Respondent sought strike‑out under and in terms of rule 18(7)(b)
of the Employment Tribunals (Constitution and Rules of Procedure)
Regulations 2004, and Employment Judge McFatridge was persuaded
to fix a pre‑hearing review for that purpose. At the pre‑hearing review
before Employment Judge Hendry only documents were considered; no
oral evidence was led. It was accepted on behalf of the Claimant that minutes
of disciplinary and appeal hearings were accurate; that, however, was as far as
any agreement on the evidence went. Amongst the documents were two
precognitions from a Mr Brown and a Mr Branning. Both of them
apparently had evidence to give which could have assisted the Claimant both as
regards his criticism of the fairness of the disciplinary process (both men say
they spoke to Lesley McCulloch in terms that would have been relevant to
the issue of his culpability) and as regards his criticism of the sanction
imposed (both are critical of the Respondent’s procedures for advising drivers
of the route diversions at the relevant time).
The Judgment of the Employment Tribunal
4.
The Employment Tribunal’s Judgment has a lengthy section headed
“Facts.” These are however matters that are all drawn from the documents and
it is important to remember that, at this pre‑hearing review, there was
no basis on which any firm findings in fact could properly be made beyond the
admission in relation to the minutes of the disciplinary and appeal hearings.
5.
At paragraph 52 of his Judgment, the Employment Judge observes that
Mr Brown’s evidence, “would have been relevant to the issue of
culpability,” but he then goes on and discounts it because the Claimant did not
refer to it at the disciplinary hearing or on appeal. He does so, however, in
circumstances where it is not apparent on the face of the documents that the
Claimant knew what they had said to Lesley McCulloch or when. Then, on
the basis of the various “facts” recorded by the Employment Judge, he goes on
and determines that dismissal was within the range of reasonable responses and,
therefore, the claim had no reasonable prospects of success.
The Appellant’s case
6.
Before me today Mr Hunter has made the following submissions.
First, that the Employment Judge failed to have proper regard to the fact that
the power to strike out provided under rule 18(7) is a draconian power
with devastating effects; it should therefore be used sparingly and with
restraint. Secondly, there were less draconian sanctions available such as the
imposition of a deposit order (under rule 20(1) of the Employment Tribunal
Rules), which was the Respondent’s fall‑back position - strike‑out
should, he submitted, only have been resorted to if the deposit order was not
sufficient to deal with whatever were the Employment Judge’s concerns.
Alternatively, the Employment Judge could have issued an order for fuller and
better particulars. Where a strike‑out order is issued, it must, he
submitted, be proportionate. Finally, in a state‑funded application,
special care required, he said, to be given, because the Scottish Legal Aid
Board will, prior thereto, have had to consider whether it is appropriate to
fund the case. That last submission was not taken any further forward, and it
has, in my view, to be disregarded; the test applied by the Scottish Legal Aid
Board is not the same as the test that has to be applied on a strike-out
application and no Employment Judge is obliged to refuse an application under
18(7) simply because the Scottish Legal Aid Board has been prepared to provide
funding for the case.
7.
Mr Hunter referred to the factual background, in so far as it was
accepted. Here, he referred to what had occurred at the PHR. He submitted
that the Claimant had been denied a fair hearing in respect that he was not
allowed, on his written case, to go forward to a full hearing where evidence
would have been led. The credibility and reliability of witnesses had not been
allowed to be tested. There had been concentration solely on the Respondent’s
documents but , as was evident from the precognitions from Mr Brown and
Mr Branning, the Claimant was saying that the documents did not tell the
whole story; there was more that he sought to put before a Tribunal at a full hearing.
Secondly, the Tribunal erred in failing to consider whether a less draconian
measure such as a deposit order would be appropriate. This was a case that
required to go to proof at a full hearing, and it was not appropriate to have
granted the application for strike‑out.
The Respondent’s case
8.
For the Respondent, Mr Nuttman sought to resist the appeal. He submitted
that nothing in either Mr Brown’s or Mr Branning’s “evidence”, as he
referred to it, could affect the question of whether or not the Claimant was
aware of the diversion; therefore, there was no need to proceed to a full hearing.
He embarked on a detailed examination of their precognitions on more than one
occasion during the submissions made and resisted the suggestion that there was
a need to hear oral evidence in this case. On more than one occasion he
submitted that the Claimant could have led evidence at the pre‑hearing review
but he chose not to do so; that meant that the Claimant was the author of his
own misfortunes so far as the resultant strike‑out was concerned.
Regarding the matter of a deposit order, Mr Nuttman submitted that the Tribunal
required to consider strike‑out first because it was the more serious
matter and, only if not granting it, turn to the question of whether a deposit
order should have been imposed.
Conclusion
9.
I am readily satisfied that the Employment Judge went too far, too fast
here in concluding that this claim had no reasonable prospects of success. In
a case such as this an Employment Judge requires to be very careful in
considering an application for strike‑out at the pre‑hearing review.
His convention obligations require him to have regard to Article 6 and the
employee’s right to a fair hearing where the nature and extent of his rights
can be determined, a right of which he should not lightly be deprived. The pre‑hearing
review was manifestly not a hearing to determine the issue the Claimant sought
to raise namely, that of whether or not he had been fairly dismissed. At this pre‑hearing
review it is plain that the Employment Judge was being encouraged to assess the
evidence. It is worrying that he has determined a series of what he entitles
“Facts” in circumstances where he did not have all the evidence before him that
would have been led about the relevant events at a full hearing. That was also
in circumstances where, as I have already indicated, he recognised that
Mr Brown might have evidence to give that could have been of assistance to
the Claimant but then discounted it for the reasons to which I have referred which,
to my mind, were not adequate reasons for discounting it at all.
10.
The Employment Judge required to have regard to the draconian impact of
an order for strike‑out. Such an order is, put shortly, the end of
matters; the Claimant is denied access to the Tribunal where his case can be
considered on the basis of evidence given on oath and, if so advised, tested by
parties or their representatives. But the Employment Judge has, in my view,
paid no more than lip service to the principle that strike –out is a draconian
measure and the hurdle to be overcome by an employer is a high one. There were
here, plainly, issues between the parties that could not be resolved simply by
looking at the documents. It is not an answer to say, as Mr Nuttman
repeatedly did, that the Claimant could have led oral evidence; the onus was on
the Respondent, and the Employment Judge required to recognise that. He required
to approach matters by assuming, for the purposes of the PHR, that the Claimant
would prove everything that he was putting forward in his ET1. That involved
all those matters which he asserts show that his dismissal was not a fair one.
No judgment on whether or not this was an unfair dismissal could possibly be
reached without hearing the relevant evidence in this case.
11.
It seems to me that strike‑out was being used here as an effort to
circumvent a full hearing and it is a matter of some concern that it was
thought that that was an appropriate use of the strike‑out motion in this
case. I am going to allow this appeal and I will pronounce an order remitting
the case to a freshly constituted Employment Tribunal for a full hearing on the
Claimant’s claim.
12.
I should add, as I mentioned in the course of the discussions this
morning, I have a further concern. It is that although it was competent for the
Employment Judge to do as he did, it would not have been competent for an
Employment Judge sitting alone to reach a view on whether dismissal was within
the range of reasonable responses; that is a matter which requires to be judged
by an Employment Judge sitting with two lay members. In an individual case it
could be that the view of the two lay members is at odds with that of the
Employment Judge and, if so, it will be productive of the decision in the case,
since they will form the majority. The Employment Judge here has failed to
have regard to that, and apparently failed to think about whether it really was
appropriate for him to state boldly, as he does, that dismissal in this case
was within the range of reasonable responses. That was, plainly, in all the
circumstances, a matter that required to go to a Tribunal of three and not a
matter on which he could properly adjudicate by himself. The issue of whether
or not the Claimant was fairly dismissed will now be determined by such a
Tribunal.