United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0109/16/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 7 July 2016

 

 

 

Before

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

(SITTING ALONE)

 

 

 

 

 

 

MR S DALY                                                                                                             APPELLANT

 

 

 

 

 

NORTHUMBERLAND TYNE AND WEAR NHS FOUNDATION TRUST  RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR PAUL LIVINGSTON (of Counsel) Bar Pro Bono Scheme
For the Respondent	MR ANDREW WEBSTER (of Counsel) Instructed by: DAC Beachcroft LLP Wellbar Central 36 Gallowgate Newcastle Upon Tyne Tyne and Wear NE1 4TD

 

 

SUMMARY

PRACTICE AND PROCEDURE - Striking-out/dismissal

 

The Employment Tribunal erred in law in striking out claims pursued by the Claimant on the basis that they had no reasonable prospect of success and/or because the Claimant’s conduct of the proceedings was unreasonable.

 

There was a dispute of fact at the heart of the claim that was not capable of fair resolution without a hearing.  Moreover, the finding that the Claimant’s unreasonable conduct justified striking out of his claim was not sustainable where the Employment Tribunal had no basis for concluding that a fair trial was no longer possible.

 

The case was remitted to the same Employment Tribunal for consideration of whether a deposit order should be made.

 

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

 

1.                  This is an appeal against a decision of Employment Judge Garnon promulgated on 4 September 2015.  The Judge struck out all aspects of a claim pursued by Mr Daly in a claim form received by the Newcastle Employment Tribunal on 7 October 2014, save for a claim of unfair dismissal, which was permitted to proceed but which was conceded by the Respondent.  The appeal seeks to challenge the strike out decision.  I refer to the parties as they were before the Tribunal.  Mr Paul Livingston of counsel appears for the Claimant.  Mr Webster of counsel appears for the Respondent.  Mr Webster appeared below, but Mr Livingston did not.

 

2.                  In brief, the Claimant was a registered nurse employed by the Respondent from 14 August 2006 until his constructive dismissal with effect from 9 June 2014, his resignation having been on 9 May 2014.  Before his resignation, by a claim form dated 29 April 2013, the first claim, he brought claims of unlawful disability discrimination and harassment on that ground.  The claims were heard over a nine day period in December 2013.  A Tribunal comprised of Employment Judge Garnon and members found in a Judgment promulgated on 9 January 2014 that the Claimant had both physical and mental health disabilities within the meaning of the Equality Act 2010 (“EqA”) and was subjected to repeated unlawful disability discrimination in the form of failures to make reasonable adjustments, discrimination because of something arising in consequence of disability and unlawful harassment.  The Claimant gave notice of resignation on 9 May 2014.  There was a Remedy Hearing on his first claim, and he was awarded compensation.  The Remedy Hearing took place over two days: first, on 12 May; and secondly, on 23 July.

 

3.                  The Claimant’s second claim alleged unfair dismissal and detriments short of dismissal and dismissal based on protected disclosures made in the course of the grievances he raised during his employment from about 2011 to 2012.  So far as the claim of unfair dismissal is concerned, as I have indicated, that claim was permitted and conceded, and Employment Judge Garnon awarded compensation of £3,150 by way of basic award in relation to that claim in the Judgment under appeal.

 

4.                  The remaining claims, save for three, were struck out on the basis that they were either not separable from the dismissal itself, were either res judicata or an abuse under the Henderson v Henderson [1843] 3 Hare 100 principle or because they were out of time.  That decision appears at paragraph 19 of the Judge’s Reasons, as follows:

“19. I ordered the claimant to send to the respondent and the Tribunal by 16^th April a list of detriments short of dismissal upon which he relied and fixed a one day public preliminary for 1^st May 2015.  He sent in a schedule with 29 points.  All but one, alleging failure to agree a reference, appeared to be one or more of (a) not separable from dismissal, (b) res judicata or caught by Henderson … (c) out of time.  Instead of taking the step which any claimant acting reasonably would have, of abandoning hopeless points to focus on what might be arguable, he expanded his allegations.  I had to postpone the hearing and gave him until 8^th May to provide a revised list.  He sent a second document which was no better.  Employment Judge Wade ordered the public hearing to be listed after 6^th July so I could do it on return from leave.  On 12^th June the respondent filed a revised response.  I listed another telephone hearing for 23^rd June.  The claimant instructed Mr Owen shortly before.  I highlighted the “reference” issue as the one to focus upon.  Not until we started today was Mr Owen instructed to abandon anything.”

 

5.                  In relation to the three detriment claims not dealt with at paragraph 19, these were struck out on the grounds that they had no reasonable prospect of success and/or because the manner in which the proceedings had been conducted by the Claimant was found to have been unreasonable. 

 

6.                  The Claimant argues, so far as the four detriment claims are concerned, that the Tribunal made various errors of law in striking these claims out at a Preliminary Hearing.  The detriments are as follows:

(1)          Detriment 1 is that the Claimant was failed by the Respondent’s equality and diversity officer despite the fact that he had offered other disabled people support;

(2)          Detriment 2 is that the Respondent engaged in harassing behaviour by insisting on dealing with the Claimant through the sickness management procedure after the outcome of his Tribunal hearing in January 2014 despite knowing that he would not be returning to work;

(3)          Detriment 3 is that the Respondent was un-cooperative in agreeing a helpful reference;

(4)          Detriment 4 is that in relation to two specific reference requests from two potential employers, Gateshead Health NHS Foundation Trust and Newcastle Upon Tyne Hospitals NHS Foundation Trust, the Respondent was lethargic and un-cooperative in relation to reference requests.

 

The Legal Principles

7.                  Before turning to the particular errors identified in the reformulated grounds of appeal and skeleton argument, it is helpful to summarise the applicable legal principles.  These are not in dispute.  Rather it is their application to the facts of this particular case that gives rise to controversy.  The Tribunal dealt with the applicable principles at paragraphs 22 to 26, and neither side has challenged the correctness of the Tribunal’s self direction on this appeal.

 

8.                  Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 gives tribunals power to strike out a claim as having no reasonable prospects of success or because the manner in which the proceedings have been conducted by or on behalf of a party has been unreasonable.  The threshold for establishing no reasonable prospects of success is high, as has been emphasised repeatedly, and it is an unusual discrimination case where it is appropriate to strike out such a claim without hearing the evidence.  Courts at all levels have stressed the draconian power represented by such an order.  Whistleblowing cases have much in common with discrimination cases and rely on an investigation as to why an employer took a particular action or decision.  Accordingly, as the Court of Appeal in Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 made clear (at paragraphs 30 to 32) claimants in such cases run up against similar sorts of difficulties as those facing discrimination claimants under the EqA, and in part for that reason courts have expressed a reluctance to strike out fact sensitive claims of unlawful discrimination to avoid injustice.  The same principle applies to whistleblowing cases.  It is only in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospects of success when the central facts are in dispute.

 

9.                  However, there are cases, as the Court of Appeal in Ezsias recognised, where, even taking the central facts at their highest, it is clear that the claim cannot succeed on the legal basis on which it is advanced.  Equally in a case where the facts sought to be established by a claimant are totally and inexplicably inconsistent with the undisputed contemporaneous documents it is open to a tribunal to strike out such a case.  Otherwise, where there is a dispute of fact courts have expressed a marked reluctance to strike out such claims without first resolving the questions of fact that they give rise to.

 

10.              Where a tribunal is considering striking out proceedings on the basis of unreasonable conduct or behaviour, it is important to recognise that even if the threshold for such an order is established a decision to strike out does not follow automatically.  Before concluding that a strike out is justified in the particular case, a tribunal should consider alternatives to striking out, including the possibility of ordering specific particulars or at least the possibility of some alternative measure that is proportionate in the circumstances, short of striking out the claim and depriving a claimant of a hearing on the merits of his case.  As emphasised in Bolch v Chipman [2004] IRLR 140 EAT, where a fair trial remains possible careful consideration must be given to whether a strike out order is a proportionate sanction to apply.  In most cases it is unlikely to be so.  Even in a case where a tribunal concludes that a fair trial is not possible, it is still necessary for the question of proportionality of this sanction to be considered.

 

The Appeal

11.              The Tribunal proceeded on the basis that since the Claimant had done protected acts in relation to his claims under the EqA when he lodged grievances during 2011 and 2012 it was likely that he had also made protected disclosures in the course of his grievances.  The Tribunal was prepared to proceed on this assumed basis and correctly accepted that post-employment detriments done on the ground of protected disclosures are actionable.

 

12.              The first detriment, failings by the equality officer, is not explicitly or separately addressed by the Tribunal.  Mr Webster argued for the first time today that as a matter of fact this detriment was abandoned by the Claimant in the course of the hearing before Employment Judge Garnon.  He relies in particular on paragraphs 28 and 29 of the Tribunal’s Reasons, which, though inelegantly expressed, nevertheless identify only three detriments that were separable from dismissal and were pursued by the Claimant.  He also refers to paragraphs 19 and 20, which suggest that on the day of the hearing Mr Owen was instructed to abandon at least some of the claims being pursued by the Claimant; and paragraph 20 where the Tribunal referred to the three detriments upon which “he now” relies.  Mr Webster argues that this indicates something was abandoned and that the first detriment was abandoned.

 

13.              There may be something in the point made by Mr Webster.  However, at paragraph 19 the Employment Judge indicated that he was dealing with all but one of the 29 points identified in the Schedule provided by the Claimant pursuant to the Tribunal’s 16 April Order (the exception being the allegations relating to failure to agree a reference).  Further, it is common ground that the detriment relating to the equality officer appears at point 22 of that Schedule.  In these circumstances I feel bound to proceed on the basis that this detriment was dealt with by the Tribunal alongside the 28 points identified in the Schedule and dealt with at paragraph 19.

 

14.              The Claimant challenges the Tribunal’s approach to this detriment on the basis that it did constitute a claim that was separable from the dismissal and was neither caught by the rule in Henderson nor was the Tribunal entitled to deal with it on the basis of time having failed to address the possibility of extending time.

 

15.              The detriment is pleaded at paragraph 6 of the second set of Particulars provided by the Claimant and at point 22 of the Schedule he had previously provided.  At paragraph 6 the Claimant says :

“6. The Respondent’s Equality and Diversity officer failed to support the Claimant, despite him previously offering other disabled employees support and it being relatively early on in the Claimant’s issues, when approached at the suggestion of his colleague … on 29 September 2011.

This failure to provide support was aimed at preventing the raising of valid concerns about managers, their treatment of a disabled nurse and the harm they caused by neglect and thereby constitutes one of the PIDA matters raised. …”

 

As pleaded, this relates to a failure to act on 29 September 2011.  At paragraph 11 of the same Particulars document it is described as a reason among others compelling the Claimant to resign.  It is on this basis that the Respondent submits that this was a point that could and should have been raised in the first claim.  The Claimant argued before the Tribunal that he only became aware during the course of the hearing in December 2013 of the absence of support provided to him by the equality officer.  Although he says now that he discovered other information to the effect that the equality officer had offered support to others only after that hearing, it seems to me that he knew the facts on which he wished to rely by the date of the December 2013 hearing and was in a position if he chose to do so to apply to amend his claim to add an additional label to those complaints against the equality officer, Mr Romans, who was a central feature of the first claim.  An application to amend can of course be made at any time, even after judgment.  The Claimant was professionally represented by solicitors and counsel from at least December 2013 until the Remedy Hearing that concluded on 23 July 2014.  There is nothing that has been identified that prevented the Claimant from making an application to amend his existing claim even though judgment had been given and in advance of the Remedy Hearing.  That is precisely what is required by the principle in Henderson and what the Employment Judge must have had in mind.  The requirement is for a party to bring forward all of his claims in one claim.  In those circumstances the Tribunal was entitled to conclude that the principle in Henderson applied to this complaint. 

 

16.       In any event, even if I am wrong about that, this claim related to a failure to act on 29 September 2011.  The hearing at which facts emerged to support this claim took place in December 2013, but the claim was not lodged until October 2014.  It is conceded on the Claimant’s behalf that the complaint was out of time and that the Claimant would have to establish that it was not reasonably practicable to lodge his claim within the requisite three month period if an extension of time was to be granted so as to bring this claim within the Tribunal’s jurisdiction.  The Claimant did not advance any argument before the Employment Tribunal to the effect that it was not reasonably practicable for him to lodge his claim in time, and nor self evidently did he produce any evidence to support such an argument.  It is accordingly unsurprising that the Tribunal did not address the question of this extension, and I reject as unsustainable Mr Livingston’s argument that it was incumbent on the Tribunal to address his point even though it was not advanced or substantiated by the Claimant.

 

17.       In any event, it seems to me that the Claimant would have had a difficult if not impossible task to establish that it was not reasonably practicable to make this claim earlier than he did and certainly within three months from December 2013.  He had professional representation.  He had presented a claim in which time points were expressly considered, as the Tribunal well knew.  Any suggestion that he could not present a claim earlier than October 2014 flies in the face of the fact that he attended the Tribunal on 12 May and 23 July, participating in the preparation of and giving instructions for the Remedy Hearings that took place on those dates and attending and participating in those hearings.  Mr Livingston accepts that if one of the grounds on which the Tribunal relied to make its strike out decision in relation to this detriment is upheld the appeal in relation to this ground must fail.  On any view, the Tribunal was entitled to reach the conclusion that it did in relation to the fact that detriment 1 was out of time, and accordingly this ground of appeal fails.

 

18.       Detriment 2, harassment as a result of the Respondent’s insistence that the Claimant go through the sickness management procedure, appears at paragraph 11 of the second set of Particulars, where the Claimant refers to the fact that having informed the Respondent that he could no longer face working there, he was harassed by officers of the Respondent who ignored him by pursuing the sickness management process.  The Tribunal dealt with this alleged detriment claim at paragraph 31:

“31. After we announced the liability decision and encouraged the claimant to try to return to work, every reasonable employer would try to ensure he was afforded help to do so.  This act is no detriment at all.  The claimant is saying that in February 2014 Mr Gee did not accept his wish to give up on rebuilding relationships.  If the respondent had done less, Mr Menon could, quite rightly, have said at the remedy hearing aggravated damages should be awarded because it had taken no heed of our suggestion it should try to rebuild the employment relationship.  If this could be viewed as a detriment, the claim is out of time and could have been raised at the remedy hearing.  For all those reasons, it has no reasonable prospect of success.”

 

19.       Whatever other criticisms there might be in relation to the Tribunal’s conclusion in this paragraph about this detriment, it seems to me that the Tribunal was entitled to conclude that this claim too was out of time.  The Claimant concedes that to be the case, and, since no argument to the effect that it was not reasonably practicable to present this claim in time was advanced to the Tribunal, for that reason alone the challenge to the Tribunal’s finding in relation to this detriment claim must also fail.

 

20.       Detriments 3 and 4, relating to the way in which the Respondent dealt with references and requests from potential employers, are addressed at paragraph 4 of the second set of Particulars and concern two distinct complaints, albeit interlinked.  First, the Claimant alleges that the Respondent was un-cooperative in agreeing a helpful reference.  Secondly, the Claimant alleges that the Respondent was lethargic and un-cooperative with reference requests from specific employers.  The Claimant said that this resulted in distress for him and that it impacted on his ability to secure new employment both in his presentation at interview and also because there was suspicion from future employers about the circumstances that led him to seek employment in a different and lower graded role.

 

21.       The claim relating to detriments 3 and 4 was addressed by the Employment Judge at paragraphs 33 to 38:

“33. The reference point does not have a time bar or Henderson … problem.  Mr Owen says the Tribunal must hear the evidence and decide as fact what happened and why as regards agreement of terms and allegedly tardy provision.  I believe there also has to be some reasonable prospect of the claimant doing enough to raise a real possibility it was on the ground of his protected disclosures that his suggested terms were not agreed and/or provision of the reference was delayed, to require the respondent to show otherwise.  After the liability and remedy judgments, the respondent would have been careful not to tender a vindictive reference.  To this day, the claimant has not said what was wrong with the one it offered.  On 28^th July 2014 the respondent said it had tendered its final offer.  It says the claimant agreed the draft.  He says he never agreed anything.

34. I asked Mr Owen when, after that date, it was alleged the respondent had been tardy in supplying references.  The claimant had not given him adequate instruction so I adjourned to allow him to do so.  Mr Owen then said on 22^nd June the claimant had consented to Gateshead NHS Trust being supplied with a reference.  He did not know when Gateshead requested one.  On 8^th August Gateshead offered him a job subject to references.  On 22^nd August an officer of the respondent e-mailed that the claimant no longer agreed the 28^th July draft.  This is not disputed fact in that he says he never agreed it.  On 2^nd September Gail Kay told HR to send the 28^th July draft.  The claimant has not started to formulate a case on “tardiness”.

35. Newcastle NHS Trust made a verbal offer to the claimant subject to references on 3^rd September 2014.  On 23^rd September the respondent received a request for a reference and on 24^th Mr Gee was told to send the agreed one.  On 7^th October the claimant received a written offer subject to clearances and maybe references.  On 6^th November Newcastle e-mailed for a reference again and on 11^th November one was sent.  The claimant started work for Newcastle Trust on 2^nd March 2015.  [The] reference cannot have been so unfavourable as to prevent him getting the job.  Again the claimant has not started to formulate a case on “tardiness”.

36. In short, the claimant has had months to put together an arguable case.  Mr Owen has done sterling work today but the claimant has no reasonable prospect of showing tardiness or unreasonable failure to agree a helpful reference in the foreseeable future.  Mr Owen says possible factual dispute means I must let the case go on [ET’s emphasis].  It is an important point, but not the only one.  Mr Webster says loss is de minimis and maybe covered already by the awards made.  I believe “reasonable prospect of success” does not mean success in the amount of compensation so would not strike out on that point.  The far better point is that there are still no specifics for the respondent to answer and, if specifics came at this late stage, the respondent’s witnesses would probably not recall why any apparent delays occurred.

37. I return to Lady Smith’s words in Balls v Downham Market High School [& College [2011] IRLR 217 EAT]

[“]There are, of course, cases where fairness as between parties and the proper regulation of access to Employment Tribunals justify the use of this important weapon in an Employment Judge’s available armoury but its application must be very carefully considered and the facts of the particular case properly analysed and understood before any decision is reached.”

38. Having regard to the overriding objective I believe a combination of no reasonable prospect of success and the unreasonable conduct of the proceedings by the claimant justify strike out [ET’s emphasis].  I use the word “unreasonable” not in the sense of culpably vexatious, but rather obsessively raising hopeless points and not preparing a cogent argument on the one point which may have some hope.  The result is that it is no longer possible to have a hearing fair to both parties within a reasonable time.  The respondent should not have to trawl through e-mails with no clue from the claimant of when he said references were requested and by whom.”

 

22.       There were, accordingly, two grounds on which these two detriments were struck out.  First, the Judge concluded that they had no reasonable prospect of success.  Secondly, the Judge concluded that there was unreasonable conduct on the part of the Claimant such as to justify a strike out in this case.  Although Mr Webster contended that these detriments were not pleaded until at the earliest 16 April 2015 in relation to detriment 3 and May 2015 in relation to detriment 4, that does not seem to have been the basis on which these matters were defended, and there is no Respondent’s Notice seeking to uphold the Tribunal’s decision on different grounds from those relied on by the Tribunal itself.  I proceed, therefore, on the basis that they were pleaded within time and that the strike out was limited to the two bases relied upon by the Tribunal.

 

23.       The Respondent contends that it is necessary to have regard to the context in which these allegations were being considered by the Tribunal when looking at this decision.  The Claimant initially made a broad allegation in his second claim form at paragraph 10 about detriments as a consequence of protected disclosures he had previously made.  He was then required by an Order dated 16 April 2015 to particularise his complaints, and he produced the Schedule I have referred to identifying 29 matters, many of which were not included in his original claim form.  Thereafter and in respect to that Schedule, Employment Judge Garnon adjourned the hearing that had been listed for 1 May in order expressly to give the Claimant a further opportunity to provide a list of the detriments short of dismissal on which he sought to rely.  In response to that Order the Claimant produced the 12 paragraph detriment document that starts at page 61 of the appeal bundle.  The Claimant accordingly had three opportunities to particularise his claim and a further opportunity in the course of the Preliminary Hearing itself when the Judge adjourned to allow his counsel to take instructions from him.  The Respondent contends that there must come a time when an Employment Judge can say enough is enough.  In any event, taking the facts at their highest, the Respondent submits that this Tribunal was entitled in relation to these two detriments to say that they had no reasonable prospects of success.

 

24.       I have found this a difficult decision but ultimately have concluded that the Judge was not entitled to strike out these two detriment claims on the basis that they had no reasonable prospects of success.  It is clear, as Mr Livingston has submitted, that the Claimant was relying in relation to these detriments both on the delay itself and on the alleged lack of cooperation.  Having regard to the dates identified by the Tribunal and the documents in the supplemental bundle, it seems to me that there was at least arguably a period of at least six or seven weeks’ delay in relation both to the Gateshead and the Newcastle references.  That is a long time in the context of an individual seeking to obtain alternative employment, and by itself, it seems to me, it was sufficient to raise a disputed issue about the Respondent’s conduct.  The delay would of course have to be considered in light of all the facts, but it raised disputed questions of fact as to what was happening and why and on what grounds the Respondent acted as it did.

 

25.       The Tribunal appears to have concluded that there was no real possibility of the Claimant establishing that the refusal to cooperate in relation to a reference was done on the grounds of his protected disclosure, because, after the Liability and Remedy Judgments, “the respondent would have been careful not to tender a vindictive reference” (paragraph 33).  Further, the Tribunal criticised the Claimant’s failure to identify what was wrong with the reference offered by the Respondent.  It seems to me however, that whether or not the Claimant established his case in this regard would depend upon whether as a matter of fact the Respondent had been careful not to tender a vindictive reference, whether as a matter of fact the Respondent did fail to agree a reference with the Claimant, whether or not the Respondent had delayed agreeing a helpful reference and why it did these acts if it did.  The question whether the protected disclosures were the reason for the Respondent’s behaviour or not or whether they influenced the Respondent’s behaviour would be matters of fact for a contested hearing.  The mere fact that Ms Kay behaved properly before the Liability Judgment does not necessarily mean that she acted in the same way afterwards, although that may ultimately be the case.  It seems to me that in circumstances where an individual has been found to have been unlawfully discriminated against and is seeking to obtain alternative employment, for an employer to delay even for six or seven weeks is a considerable period and gives rise to questions that at least arguably require an answer.  In ant event, those are all disputed issues of fact that will depend on the evidence and are not capable of being resolved without a hearing.  In my judgment, accordingly, the decision that the claims based on detriments 3 and 4 had no reasonable prospects of success was in error of law and not one to which the Tribunal was entitled to come, having regard to the principles to which I have already referred.

 

26.       The Tribunal had an alternative basis for reaching the same conclusion, namely unreasonable conduct.  I have already referred to the context for the Tribunal’s consideration on this question in terms of the number of occasions on which the Claimant had been afforded an opportunity to particularise these claims.  Although initially it seemed to me that the Tribunal relied on the pursuit of claims with no reasonable prospects of success as a basis for its conclusion that there was unreasonable conduct, I accept Mr Webster’s submission that the Tribunal in fact made two broad criticisms of the Claimant’s conduct that together amounted to unreasonable conduct.  These two broad criticisms appear at paragraphs 36 to 39.  First, the Tribunal found that the Claimant obsessively raised hopeless points; and secondly, that he had not prepared a cogent argument in respect of the one complaint that had some hope.

 

27.       So far as the first criticism is concerned, this appears to have been eminently justified in relation to all but detriments 3 and 4.  All of the complaints bar the small number dealt with outside paragraph 19 of the Tribunal’s Reasons were struck out on one basis or another having been pursued by the Claimant despite the fact that they could not succeed.  So far, however, as detriments 3 and 4 are concerned, once it is recognised that these were not claims that had no reasonable prospect of success and had some hope, the only basis for the conclusion that there was unreasonable conduct is the second criticism that the Tribunal had, namely that the Claimant had had sufficient opportunities to particularise those claims and had failed to do so.

 

28.       Whilst I accept the context as described by Mr Webster and the fact that the Claimant had a number of opportunities to particularise his claim, it is difficult to understand the Tribunal’s conclusion that it was no longer possible to have a fair hearing for both parties within a reasonable time.  That conclusion is unexplained.  The Claimant had provided sufficient particulars in relation to detriments 3 and 4 to enable the Tribunal to identify the dates when references were requested and the broad timescale in respect of which the assertions made by the Claimant required to be answered.  The fact that the Claimant had not explained what was wrong with the reference provided was not the relevant question.  The question raised by the Claimant in relation to the Respondent’s conduct in relation to references related to the degree of cooperation or obstruction he met within the process and the total period of delay.  There is no doubt there was delay, and that is identified.  The Tribunal does not explain why a fair trial could not take place.  There is no suggestion that a trial date was listed and had become impossible to fulfil.  Nor had disclosure been attempted, still less concluded.  There is nothing to suggest that it would be impossible for the Respondent to produce documents relating to the reference process, nor was the delay between the second claim being lodged in October 2014 and the hearing in September 2015 so long that memories would have faded making it impossible for answers to be obtained in relation to the reference process.  Certainly, no findings to that effect are made by the Tribunal.  The only point made in this regard by the Tribunal is at paragraph 36, to the effect that if particulars were provided at this late stage the Respondent’s witnesses would probably not recall why any apparent delays occurred.  That finding is on its face not based on any evidence from the Respondent but is based on unsupported assumption.  It is clear from the supplemental bundle that there is correspondence by letter and email in relation to references, and it is at least possible that there is a paper trail in relation to references that will jog the memories of the Respondent’s witnesses in relation to why any apparent delays occurred.  These points are simply not explored.  The real point here is that it was not open to the Tribunal to make this unsupported assumption in the absence of evidence.  If there was material that entitled the Tribunal to conclude that a fair trial could not take place, it was incumbent on the Tribunal to identify that material, but in the absence of such material it was not open to the Tribunal to make an assumption that a fair trial would not be possible absent proper foundation for it.

 

29.       There is also no cogent explanation given by the Tribunal as to why the making of a deposit order as an alternative to a strike out was disproportionate here.  As the authorities make clear, in the absence of a conclusion that a fair trial is no longer possible it is unusual to conclude that a proportionate response to a claimant’s failure properly to particularise his claim is to drive him from the judgment seat without any determination of his case on the merits.  There was no hearing date listed for a Full Merits Hearing and nothing to suggest that a hearing date would not be capable of being listed following a direction, if necessary, for the Claimant to provide specified further particulars in relation to detriments 3 and 4.  Moreover, the imposition of a deposit order is a further measure that could have been adopted as a proportionate means of addressing what the Tribunal regarded as unreasonable conduct without adopting the draconian sanction of a strike out in relation to these two, otherwise viable, claims.

 

30.       Accordingly, despite the fact that these are unlikely to be valuable claims even if established and recognising that there are considerable difficulties in the way of the Claimant in establishing them, I have come to the conclusion that the Tribunal did make an error of law when it concluded that it was entitled to strike out the claims based on detriments 3 and 4 based on unreasonable conduct as well.

 

Disposal

31.              In terms of disposal, the Claimant submits that the claims should now proceed on their merits before a different Tribunal, whereas the Respondent submits that the Appeal Tribunal should substitute its own view for that of the Tribunal by ordering a deposit in respect of claims based on detriments 3 and 4.  Mr Webster relies in particular on paragraph 39, where the Tribunal expressly addressed the possibility of a deposit order in the context of this case.  I consider that there is force in the Respondent’s submission that this is a case where a deposit order could and should have been made as an alternative to a strike out order.  I am not prepared, however, to make that assessment, which will involve a consideration of the amount and the Claimant’s means, and also some further assessment may be necessary of the merits of the case in the light of this Judgment.  The proportionate response, applying the criteria set out in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763 EAT, is to remit this matter to Employment Judge Garnon for him to consider the claims based on detriments 3 and 4 and to determine whether or not a deposit order, and if so in what amount, should be made in relation to those claims.

 

32.       Accordingly, the appeal is allowed in relation to the claims based on detriments 3 and 4 only but is dismissed in relation to the other detriments relied on.

 

33.       So far as reimbursement of fees is concerned, the Claimant applies for the lodging fee of £400 and the hearing fee of £1,200 under Rule 34A(2)(a).  The only threshold test in relation to an order under this Rule is the extent to which the Claimant has been successful.  Here, so far as two of the pleaded detriment claims are concerned the Claimant has failed, but he has succeeded as to two them.  In those circumstances, it is just, having regard to the extent of his success, to make an Order for reimbursement of 50 per cent of his fees.  Accordingly, that is the order I make.