United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2011/0449_10_2007.html
Cite as: [2011] UKEAT 0449_10_2007, [2011] UKEAT 449_10_2007

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Appeal No. UKEAT/0449/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 June 2011

Judgment handed down on 20 July 2011

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

MR H SOOD APPELLANT

THE GOVERNING BODY OF CHRIST THE KING SCHOOL & ORS RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

MR D MASSARELLA

(of Counsel)

Instructed by:

Messrs Nelsons Solicitors

Sterne House

Lodge Lane

Derby

DE1 3WD

For the Respondents

MR S O’BRIEN

(of Counsel)

Instructed by:

Nottinghamshire County Council

Centenary House

1 Wilford Lane

West Bridgford

Nottingham

NG2 7QZ

SUMMARY

PRACTICE AND PROCEDURE

Striking-out/dismissal

Imposition of deposit

Exercise of strike-out powers under ET Rule 18(7) at PHR. Principles considered. Strike-out orders set aside; additional scope of deposit order determined on appeal.

HIS HONOUR JUDGE PETER CLARK

1. The parties before the Nottingham Employment Tribunal were originally Mr Sood, Claimant and The Governing Body of Christ the King School (the school) and five named individual members of the school staff, including the Head Teacher Kieran Kelly, Respondents.

2. This is an appeal by the Claimant against so much of the Judgment of Employment Judge Lancaster, following a three day pre-hearing review, as struck out part of his claim against the Respondents. That Judgment, with Reasons, was promulgated on 8 June 2010.

Background

3. The Claimant is of Asian origin, born in England. He adheres to both the Hindu & Sikh religions, his family originating in the Punjab. He is epileptic rendering him, it is common ground, disabled within the meaning of the Disability Discrimination Act 1995.

4. He commenced work at the school on the Graduate Teacher Training Programme on 1 September 2006. He was dismissed, on the school’s case, by reason of redundancy in August 2008.

5. There are two combined claims before the Employment Tribunal. The first Form ET1 was presented on 17 October 2008, the second on 18 December 2008. All claims are resisted. These claims include direct racial discrimination, harassment and victimisation contrary to the Race Relations Act 1976: protected disclosure detriment under s47B and automatically unfair dismissal under s103A Employment Rights Act 1996; ordinary unfair dismissal under s98 ERA; breach of the Religion or Beliefs Regulations 2003 and disability discrimination. The factual complaints run to 174 separate allegations, although the Claimant has now withdrawn more than 53 of those allegations. In the latest schedule, attached to the amended grounds of appeal, all 174 allegations are set out, those now withdrawn being struck through. There are three columns on the schedule; the first sets out the Claimant’s complaint; the second, the Respondents’ response and the third identifies the Claimant’s cause or causes of action by reference to the legislative protection in relation to each complaint.

The PHR Judgment

6. All claims against the 3-6 named Respondents were dismissed as being time barred, leaving only the Governing Body (R1) and Mr Kelly (R2) as Respondents. Pre-dismissal DDA claims were similarly dismissed. Further, the Claimant was ordered to pay a deposit of £500 in relation to the s47B protected disclosure claims listed at para. 7 of the Judgment. Those rulings are not challenged by the Claimant on appeal. Instead, the appeal focuses on paras. 3, 5 and 6 of the PHR Judgment.

7. At para. 3 the Employment Judge ruled that allegation 95, that on 3 April 2008 Mr Kelly told the Claimant that he was not being kept on at the school because he was not Catholic, a remark denied by Mr Kelly, was presented out of time and that it was not just and equitable to extend time. At para. 5 the Employment Judge struck out a number of claims there identified on the grounds that they had no reasonable prospect of success (ET R18(7)(b)). At para. 6 the Employment Judge struck out 9 numbered claims on the basis that they were pursued unreasonably (ET Rule 18(7)(c)). I shall return to those individual complaints and the Employment Judge’s reasoning in making those strike out orders when considering the Claimant’s grounds of appeal.

The legal principles

8. This case highlights, once again, the potential clash between robust case management and a Claimant’s right to have his case fully heard. Mr O’Brien draws attention to the overriding objective contained in regulation 3 of the Employment Tribunal Procedure Regulations 2004. I do not find it helpful to consider separately the overriding objective in CPR 1.1 in light of the Court of Appeal’s approach in Neary v Governing Body of St Albans Girls School [2010] IRLR 124. Cases must be dealt with justly and that includes ensuring that the parties are on an equal footing, dealing with cases proportionately, ensuring that they are dealt with expeditiously and fairly and saving expense.

9. How do those broad principles translate in practice? The power to strike out claims without a full hearing under ET R18(7) is considerably restricted as a result of judicial interpretation by the higher courts. The House of Lords has said that discrimination claims (including ‘whistleblowing’ claims; see Ezsias v N Glamorgan NHS Trust [2007] ICR 1126) should be not struck out as having no reasonable prospect of success, save in the most plain and obvious case. Such cases are fact-sensitive and their proper determination is vital: Anyanwu v South Bank Students Union [2001] IRLR 305. Normally, fact issues should be resolved at trial after the witnesses have been heard (Ezsias). A recent example, at EAT level, of a strike out order being reversed is to be found in Balls v Downham Market High School [2011] IRLR 217 (Lady Smith presiding).

10. There is a further consideration, applying the overriding objective; will a strike out order save time and expense? Generally, historical allegations of discriminatory acts are admissible as ‘background’ evidence of timeous alleged discrimination. Some limitation on the admissibility of prima facie relevant evidence was postulated by Underhill P in HSBC Asia Holdings BV v Gillespie [2011] IRLR 209; but in the present case the Employment Judge has ruled (Reasons, para. 8) that the question as to whether the allegations of racial discrimination, dating back to 26 February 2007 (Schedule, Item 29) amounted to a ‘continuing act’ for purposes of limitation ought to be determined at the full merits hearing. Consequently evidence relating to the period 26 February 2007 until termination will have to be heard. It is in any event material to the, in time, complaint of dismissal on discriminatory grounds. Thus no benefit in the overall management of the trial is to be derived from the strike out orders made by the Judge.

11. In hearing the evidence the Tribunal at trial will have to rule on individual factual disputes and then stand back to look at the overall picture presented by its primary findings of fact: Qureshi v Victoria University of Manchester [2001] ICR 863 (Mummery P); approved by the Court of Appeal in Anya v University of Oxford [2001] ICR 847.

12. There is no cross appeal by the Respondents against the Employment Judge’s ruling that the continuing act question must be determined at the full hearing. That is a sensible position for the Respondents to adopt in light of the approach of Mummery LJ in Metropolitan Police v Hendricks [2003] ICR 530, paras, 48-52; as emphasised in Ma v Merck Sharpe & Dohme Ltd [2008] EWCA Civ 1426.

13. ET R18(7)(c) provides a separate ground for strike out; in the context of this case, where the case has been conducted unreasonably. Generally the power may be exercised where the conduct in question takes the form of a deliberate and persistent disregard of required procedural steps or where a fair trial is no longer possible (see Blockbuster v James [2006] IRLR 630); or where the conduct of the proceedings by one party has been intimidatory (see Force One Utilities Ltd v Hatfield [2009] IRLR 45; cf. Bolch v Chipman [2004] IRLR 140.

14. The power to order a deposit as a condition of pursuing part or all of the claim, with its consequent costs implications (ET R20(3)), involves a lower test than that applicable to strike out orders under R18(7). It is enough that, in the opinion of the Employment Judge, the claim or part of it has little reasonable prospect of success (R20(1)).

15. Finally, it was suggested by the Employment Judge here (Reasons, para. 10.2) that it was open to him, in the alternative to making a strike out order, to exclude specified allegations of discrimination under his case management powers (see R10(2)). I cannot accept that proposition. Either an allegation is struck out under R18(7) or it proceeds. I rely on the scheme of the rules identified at R17(2); orders under R18(7) may not be made at a case management discussion (but only at a PHR). In my judgment case management orders cannot circumvent the strike out powers, as explained by the higher courts, to be found in R18(7).

The appeal

16. Applying the above principles to the particular circumstances of this case my determination of the issues raised in the appeal may be stated as follows:

(1) R 18(7)(b) strike out (Judgment, para. 5)

I agree with Mr Massarella that the individual allegations struck out under this head, for the reasons given at para. 14, raise factual matters (which must be tried in any event at the full hearing in connection with the question of a continuing act) which ought to be determined after the evidence has been heard (ground 1) and further that this fragmentary approach is inconsistent with the Qureshi principle (ground 2).

The basis for striking out certain specified victimisation and detriment claims (Reasons, para. 11) appears to be that, in the opinion of the Employment Judge, where there is a ‘substantive’ claim of direct discrimination the alternative claim of victimisation, based on the same factual allegations ought to be struck out. I am unable to see any warrant in fact or law for that approach. The question as to whether, if the individual factual allegation is proved, the act complained of was on the grounds of prohibited discrimination or by reason of the Claimant having done a protected act seems to me to be quintessentially a matter for the fact-finding tribunal to determine after hearing all the evidence (ground 3).

Similarly, I can see no basis for striking out complaints of disability victimisation (Reasons, para. 13) as an alternative to victimisation under the RRA. The Employment Judge appears to have made a judgment at the PHR stage that the relevant potentially causative protected act was done under the RRA rather than the DDA. He describes those claims as a ‘merely fanciful alternative’. That is a fact judgment to which he was not entitled to come without hearing the evidence (ground 3, paras. 27-29), but see para. 19 below.

(2) R18(7)(c) strike out (Judgment, para. 6)

At para. 15 of the Reasons the Employment Judge has struck out 8 specific allegations on the basis that they ‘add nothing’ to other factual allegations raised by the Claimant. Again, this seems to me to be an unwarranted limitation on the factual allegations which the Claimant is entitled to advance at trial (ground 5).

(3) Allegation 95 (Judgment, para. 3)

The Claimant here alleges that on 3 April 2008 Mr Kelly told him that he was not being kept on at the school because he was not Catholic. Mr Kelly denies making that remark. At para. 10 the Employment Judge held that this allegation was out of time and time would not be extended under the just and equitable provision to be found in the Religion & Belief Regulations 2003. The allegation went to the alleged discriminatory nature of the dismissal. Again, I agree with Mr Massarella (ground 4) that the Judge was wrong to pre-judge the question as to whether this allegation formed part of a continuing act ending with dismissal at the PHR. That question ought to be dealt with at the full hearing.

Disposal

17. It follows that this appeal succeeds. I shall set aside paras. 3, 5 and 6 of the Employment Judge’s Judgment, save that, by agreement, allegations 55, 69, 74, 88, 165 and 172 remain struck out. The allegations, with those exceptions, there referred to will proceed to a hearing on their merits, subject to the question of limitation which will also be determined at that hearing.

Deposit order

18. At paras. 7 and 8 of the judgment the Employment Judge ordered a deposit of £500 to be paid within 21 days in respect of the protected disclosure allegations identified at para. 7. During the course of argument I invited counsel to address me on the question whether, if I formed the view that any of the allegations struck out by the Employment Judge (and now reinstated by my order on appeal) had little reasonable prospect of success it would be appropriate for me, exercising my powers under s35 ETA 1996, to extend the ambit of the deposit order made by the Employment Judge to give effect to my opinion, subject to giving the Claimant an opportunity to consider his position in the light of that opinion. Neither counsel challenged that approach.

19. In these circumstances I should express my opinion that the complaints of disability victimisation, as opposed to victimisation contrary to the Race Relations Act 1976, identified at para. 13 of the Reasons and the fifth paragraph of para. 5 of the Judgment (the numbered allegations there specified between 31 and 174) have little reasonable prospect of success and should be added to those specified at para. 7 of the Judgment. I shall not require the Claimant to pay any further monies by way of deposit in relation to these disability victimisation allegations. The variation to para. 8 of the Judgment to add those allegations will take effect 21 days after the date on which this Judgment is handed down. If, in the meantime, the Claimant wishes to withdraw any or all of those disability victimisation allegations R20(3) will not apply to the withdrawn allegations.