Appeal No. UKEAT/0483/12/SM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
8 April 2013
Before
HIS
HONOUR JUDGE DAVID RICHARDSON
(SITTING ALONE)
MRS
D DOSSEN APPELLANT
(1)
HEADCOUNT RESOURCES LTD (IN LIQUIDATION)
(2) NEW IDEA
(3) NEW ID STUDIOS
(4) NEW CID COSMETICS
(5) BURLINGTONS
(6) CLIVE COLMAN
(7) KELLY COLMAN RESPONDENTS
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
Striking out of two (of eight) allegations of sex and associative
race discrimination not in accordance with Anyanwu and Eszias
and in any event served no useful purpose – the allegations formed part of an
alleged course of conduct which was disputed and which in the interests of
justice all ought to be heard together.
HIS HONOUR JUDGE DAVID RICHARDSON
Introduction
1.
This is an appeal by Mrs Deborah Dossen against one relatively small
aspect of an order dated 15 March 2012 made by
Employment Judge Gumbiti‑Zimuto in the Reading Employment
Tribunal – paragraph 5 of that order – whereby he struck out two
paragraphs of her claim of sex and race discrimination.
The procedural background
2.
Mrs Dossen was employed by Headcount Resources Ltd (hereafter
“Headcount”) as a human resources manager for a short period in 2011 between
24 May and 25 August. She is white British; her husband is black
African of Liberian nationality. Mr Clive Colman was in day‑to‑day
overall control of Headcount.
3.
Following the termination of her employment Mrs Dossen instructed
solicitors; they brought a claim to the ET alleging unfair dismissal, detriment
and automatic unfair dismissal for whistleblowing, and sex and associative race
discrimination. The claim was brought against no fewer than seven
Respondents. A response was lodged on behalf of them all. This response, in addition
to disputing the merits, took a variety of jurisdictional, procedural and time
points and asserted that the claim had no reasonable prospects of success.
4.
In order to deal with these preliminary points, a Pre‑Hearing
Review was convened for 9 March 2012. Mrs Dossen did not
attend. She applied, unsuccessfully at the last minute, for an adjournment on
the grounds that she had to travel to Paris on business. Although counsel
attended the hearing on her behalf to renew the application for an adjournment,
he left when it was refused, having no instructions to deal with the
substantive points.
5.
The Employment Judge made orders the effect of which was to strike out
several Respondents altogether and to strike out certain causes of action. An
order for costs was made against Mrs Dossen. Although these matters were
originally the subject of appeal to the EAT, they have been disposed of at a
hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993.
Only the partial strike‑out is left to be dealt with; a final hearing has
been listed in June in anticipation of this appeal being resolved today.
The partial strike‑out
6.
The two paragraphs that the Employment Judge struck out were
paragraphs 13(b) and (h) of the Particulars of Claim. These read as
follows:
“(b) The Claimant received at least 30 to 40 calls a day from
the Sixth Defendant who would shout, swear and be rude to her. The Sixth
Defendant at times would demand that the Claimant dismiss members of staff and
when the Claiamnt would explain the law, the Sixth Defendant would tell the
Claimant that he did not care as it was his Company. The Sixth Defendant would
call the Claimant at all hours, including during the weekend. The Claimant
considers she would not have been treated this way if she had been a male
employee. She considers this treatment is a breach of s.13(1) Equality Act 2010,
s.26(1) Equality Act 2010, s.39(2)(d) Equality Act 2010 and
s.40(1) Equality Act 2010. […]
(h) After the Awards ceremony, the Sixth Defendant called the
Claimant and informed her that he had a surprise for her; that he had some
clothes for the Claimant’s daughters. The Sixth Defendant explained that the
Seventh Defendant will be bringing the clothes to the office the following day
and that the Claimant needed to take them off her in the car park as the Sixth
Defendant did not want anyone seeing them giving the Claimant anything. The
next day the Claimant was handed a black bag full of clothes by the Seventh
Defendant which she took home and that is when she realised she was given used
old clothes. The Claimant’s daughter’s [sic] have never used the clothes and
they remain in the same black bag as the Claimant wished to return them but was
too scared to do so. The Claimant considers she would not have been treated
this way if she had been a male employee or married to a white man. She
considers this treatment is a breach of s.13(1) Equality Act 2010,
s.26(1) Equality Act 2010, s.39(2)(d) Equality Act 2010 and
s.40(1) Equality Act 2010.”
7.
These were two paragraphs out of eight alleging what was in reality said
to be a course of conduct by Mr Colman of a racist and sexist nature over
a substantial period of Mrs Dossen’s short employment. I make it clear
that the allegations are entirely denied by him and will be the subject of the
hearing in June.
8.
As regards paragraph 13(b), there were produced by the Respondents
at the hearing what were said to be Mr Colman’s telephone records. No
statement was produced from Mr Colman confirming that these records recorded
the only calls that he made to Mrs Dossen; but, on the face of it, the
telephone records contradicted the assertion that there were “30 or 40
telephone calls per day” and that many were to her home. As regards
paragraph 13(h), there was produced a contemporaneous email from
Mrs Dossen thanking Mrs Colman for the clothes and stating that one
of her children was actually wearing an item of the clothing.
9.
On this question the Employment Judge said:
“20. In paragraph 13(b) and 13(h) of the
Claimant’s particulars of complaint, complaints are made by the Claimant that
the Respondent was responsible for conduct which amounted to making an
excessive number of telephone calls to the Claimant in the period specified. I
have been shown a bundle of documents which contains made pages of itemised
telephone bills which have come from the sixth Respondent. These telephone
bills I am informed show the level and extent of calls which were made by
Mr Colman to the Claimant during the relevant period. It is also stated
on behalf of Mr Colman that a large number of these calls were of
extremely short duration, indicating that there was no conversation between the
Claimant and Mr Colman. In any event it is said that Mr Colman will state,
notwithstanding the Claimant’s allegations, the number of calls is not
excessive and it is clearly not as alleged in the particulars of complaint at
13(b) and 13(h). It is said that it would have been entirely appropriate for
Mr Colman to be contacting the Claimant during the currency of her
employment when all these calls were made.
21. Having considered the pleaded case, taking note of the
response and having considered the further documentation and submission that
have been made to me, I am satisfied that in respect of the complaints made
against the Respondent in paragraphs 13(b) and 13(h) that there is no
reasonable prospect of success and the complaints identified in those
paragraphs are therefore struck out. I bear in mind that complaints of
discrimination are fact‑sensitive but I note here that the Claimant will
not be able to establish the conduct upon which she bases her allegation of
discrimination.”
Submissions
10.
On behalf of Mrs Dossen, Mr Neville argues that the Employment Judge’s
order was contrary to principle. He relies on well-known passages in Anyanwu
v South Bank Students Union [2001] ICR 391 and in Eszias v North Glamorgan NHS Trust [2007] IRLR 603. He has taken me to more recent
authority restating the same principle, including Tayside Public Transport
Co Ltd t/a Travel Dundee v Reilly [2012] CSIH 46, paragraph 30.
He submits that the evidence that Headcount put forward came nowhere near the
required level; there was nothing exceptional about the case, and, as a matter
of common sense and discretion, the Employment Judge should in any event not
have “cherry‑picked” two allegations out of the Particulars that in
reality had to be considered together.
11.
On behalf of Mr Colman, Ms Harris submitted that the
authorities made it plain that in an appropriate case a claim for
discrimination can and should be struck out. Here, she submitted, the two
allegations that the Employment Judge struck out fell squarely into that
category. They were demonstrated to be untrue by reference to contemporaneous
evidence: telephone calls and an email of Mrs Dossen herself. The
Employment Judge, she submitted, was plainly alive to the principles derived
from Anyanwu and Eszias; he referred in his Reasons
to the fact that complaints of discrimination are generally “fact‑sensitive”.
Discussion and conclusions
12.
It is not necessary in order to resolve this case to cite at length from
all the authorities concerning striking‑out. In Anyanwu
Lord Steyn said:
“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 the claim being
examined on the merit, or de‑merit, of its particular fact is a matter of
high public interest.”
Lord Hope expressed opinions to similar effect at
paragraph 37.
13. In Eszias
Maurice Kay LJ said:
“It seems to me that on any basis there is a crucial core of
disputed facts in this case that is not susceptible to determination otherwise
than by hearing and evaluating the evidence. It was an error of law for the
Employment Tribunal to decide otherwise. […] It would only be in an
exceptional case that an application to an Employment Tribunal will be struck
out as having no reasonable prospect of success where the central facts are in
dispute. An example might be where the facts sought to be established by the
applicant were totally and inexplicably consistent with the undisputed
contemporaneous documentation. The present case does not approach that level.”
14.
In this case there was without doubt a “crucial core of disputed
facts”. Indeed, there was virtually no common ground between the case for
Mrs Dossen and the case for Mr Colman on the question of sex and
associative race discrimination. The two allegations that were struck out were
part of that crucial core; they were not in any sense peripheral. It would
therefore require an exceptional case before striking‑out would be
appropriate. The Employment Judge was alive to the point that discrimination
cases are fact‑sensitive. He struck these allegations out because he
considered them incapable of proof as a matter of fact in the light of the
documents.
15.
As regards allegation 13(b), the telephone evidence certainly supports
Mr Colman’s case, but it does not dispose of the allegation as a whole,
which includes assertions that he shouted, swore and was rude to
Mrs Dossen on the telephone, required her to dismiss members of staff
irrespective of the law and called her at all hours. Some of the calls are
indeed at unusual times, and there appear to be repeat calls at very short
intervals if the telephone calls are to be taken at face value. Nor was there
any statement from Mr Colman confirming that the telephone records were
evidence of totality of his calls to Mrs Dossen.
16.
Mrs Dossen’s case will certainly be damaged if, at a full hearing,
it is established or accepted that Mr Colman’s full records have been
disclosed; but, with respect to the Employment Judge, I do not think that on a
correct appreciation of the Eszias approach it was open to the
Employment Judge to strike out allegation (b).
17.
As regards allegation (h), the Employment Judge does not appear to have
recognised in his Reasons that it concerned an email; he appears to have
considered it to be another allegation relating to telephone records. The
email is certainly strong support for Mr Colman’s case, but to my mind it
is not the kind of exceptional and conclusive matter that
Maurice Kay LJ had in mind in Eszias.
18.
I would add one further point. I have said that all Mrs Dossen’s allegations
concern Mr Colman and they are very much of a piece. If two allegations
are struck out, they will not be issues at the final hearing; there will be no
findings about them. Mr Colman will not, if his case is true, be
vindicated by a judgment rejecting them; moreover, they are highly relevant to
the balance of the allegations that are made against Mr Colman. If these
two allegations are established at the final hearing to be untrue, they have
obvious relevance to the balance of the allegations. There is therefore an
obvious disadvantage to both sides in selecting them piecemeal and striking
them out in advance. Accordingly, selecting these two issues, part of the
disputed core for consideration at the Pre‑Hearing Review, and striking
them out separately served to my mind little if any useful purpose. They are
so much part of the core of disputed case that they ought to be determined on
the evidence. This is not a case of the kind that sometimes arises at an
Employment Tribunal, where there are peripheral allegations that are
unsustainable in the light of the documents and can usefully be cleared away.
19.
For these reasons, the appeal on this very narrow issue will be
allowed. The allegations will go forward to the full hearing to be considered with
the other six allegations and for findings to be made after evidence has been
heard. In all other respects the Employment Judge’s order stands.
