United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROGER WALKER (Representative) The United and Independent Union The Hedgerows 39 Holdenby Road Spratton Northamptonshire NN6 8JD
For the Respondents	MR JIM TINDAL (of Counsel) Instructed by: Birmingham City Council Ingleby House 11-14 Cannon Street Birmingham B2 5EN


 


SUMMARY

PRACTICE AND PROCEDURE – Striking-out/dismissal; deposit

Misdirection as to power to strike out under ET rule 18(7)(b). Appeal allowed and strike-out order set aside; however, deposit ordered and case remitted to ET for full hearing.

HIS HONOUR JUDGE PETER CLARK

1. The issue in this appeal is whether the Employment Tribunal fell into error in striking out the claims of the Claimant, Mrs Short, for ordinary unfair dismissal, automatically unfair dismissal under section 103A of the Employment Rights Act 1996 (ERA) and detrimental treatment under section 47B ERA brought against (1) Birmingham City Council and (2) Perry Beeches Academy, the successor to the Perry Beeches School at which the Claimant was employed until her dismissal, confirmed by a letter dated 1 May 2012. At a Pre-Hearing Review held in the Birmingham Employment Tribunal Employment Judge Coaster struck out her claims under Employment Tribunals (Constitution and Rules of Procedure) Regulations rule 18(7)(b) for the Reasons given with a Judgment dated 25 September. Against that Judgment this appeal by the Claimant now comes on for full hearing before me with the permission of Langstaff P on the paper sift.
2. Appeals to the EAT are on a question of law only. The Claimant is represented by Mr Walker, of the United and Independent Union. I say at once neither the grounds of appeal that he prepared nor his skeleton argument seem to me to focus on the potential misdirections in this case. However, the appeal has been allowed to proceed by the President, and in his skeleton argument Mr Tindall acknowledged (paragraph 40) that in so ordering the President may have been "troubled by a couple of arguable misdirections of law". He there refers specifically to the Judge's reasoning at paragraph 7.9 and 7.13 of the Reasons. If that be the case, he nevertheless submits that the decision to strike out the claims was plainly and unarguably correct (see Dobie v Burns International [1984] ICR 812).
3. In the circumstances, Mr Tindall volunteered, without objection by Mr Walker, to address me first; a course that I readily adopted. It is almost mandatory to observe, as did the Employment Judge at paragraph 7 of her Reasons, that to strike out a claim or claims without a full evidential hearing is a draconian step. As a result, particularly in discrimination cases, including the form of victimisation under the whistleblowing protection both against dismissal and detrimental treatment, the higher courts have cautioned against Tribunals striking out cases on the rule 18(7)(b) ground – that is, no reasonable prospect of success – where there is a public interest in such cases being fully ventilated at a full-merits hearing (see Anyanwu v South Bank Students Union [2001] IRLR 305, applied by the Court of Appeal in North Glamorgan NHS Trust v Ezsias [2007] IRLR 603 and by the Court of Session in Tayside v Reilly [2012] IRLR 755). As Lady Smith observed in this Tribunal, "no reasonable prospect of success" means that the claim has no reasonable prospect; nothing less will do (see Balls v Downham Market High School [2011] IRLR 217, paragraph 6).
4. In the present case the principal issue between the parties is whether the Claimant was dismissed by the relevant panel of governors and subjected to detriment by (1) the headteacher instructing enquiry agents to investigate an allegation that she was working and earning money by giving hypnotherapy treatment from home at a time when she was on paid sick leave from the school and (2) as a result instituting disciplinary proceedings against her, leading ultimately to her dismissal by reason of or on the grounds of what were accepted for the purposes of the PHR were protected disclosures directed against the headteacher, or whether the treatment complained of and her eventual dismissal were related to her alleged misconduct in working in her hypnotherapy calling whilst off sick.
5. I am bound to say that in directing herself at paragraph 7.7 that the question on a strike-out was whether on the balance of probabilities the Claimant would not succeed in her section 103A allegation and at paragraph 7.9 whether the Claimant is unlikely to succeed on causation in the detriment claim, and that that claim had no reasonable prospect of success on the balance of probabilities (paragraph 7.11) the Judge misdirected herself in law. Mr Tindall does not seek to argue otherwise; instead, he contends, as I observed earlier, that notwithstanding those misdirections the decision to strike out all claims brought by the Claimant, including that of ordinary unfair dismissal, which depends not only on the Respondent showing a potentially fair reason for dismissal – here, conduct – but further that the Tribunal find the dismissal for that reason to be fair under section 98(4) was plainly and unarguably correct, applying the principle in Dobie.
6. Having considered that submission and the material before the Employment Judge, I am unable to agree. I was struck by the approach of the Court of Appeal in A v B [2011] ICR 9, to which I referred the parties. Applying that approach contained in the summary of the Judgment of Lloyd LJ, I am satisfied that a strike-out cannot be justified in this case. In my judgment, it cannot properly be said that these claims have no reasonable prospect of success. Consequently, I shall allow this appeal and set aside the strike-out order. The matter will now proceed to a full-merits hearing before an Employment Tribunal (not the Judge who conducted the PHR).
7. That is not quite an end to the matter. The PHR below was held to determine (1) the strike-out question and (2) in the alternative whether a deposit should be ordered under ET rule 20. That second issue was not determined because it did not arise following the strike-out order. However, Mr Tindall renews that application for a deposit order before me, and I am satisfied that I can deal with it in disposing of the appeal under section 35(1) of the Employment Tribunals Act 1996. Here I am with Mr Tindall. For the reasons given by the Employment Judge, I am satisfied that these claims have little reasonable prospect of success, a lower test for the Respondent than the strike-out test under rule 18(7)(b). I am told by Mr Walker that the Claimant is able to pay a deposit up to the applicable maximum of £500, and I shall duly order such a deposit to be paid by her within 21 days of the seal date of my order.