Ahir v British Airways Plc [2017] EWCA Civ 1392

Appeal against an EAT decision which upheld the judgment of the ET dismissing the various claims of the Claimant. Appeal dismissed.

The Claimant was dismissed after an anonymous letter was sent to the Respondent which indicated that there were discrepancies in the Claimant's CV. The Claimant claimed that his dismissal had been an act of victimisation contrary to section 27 Equality Act 2010 (in respect of previous complaints against the Respondent and a more recent complaint of racial harassment) and/or was unfair pursuant to Regulation 6(1) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the Claimant having complained about the Respondent's rejection of his application for permanent employment) and/or constituted a wrongful dismissal. The Claimant's case appeared to rest substantially on the assertion that the Respondent sent itself the anonymous letter to trigger an investigation which would reveal true information of which the Respondent was already aware as a justification for dismissing. This "unlikely assertion" could not be proved by the Claimant or evidence identified which might put in doubt the Respondent's case and the ET struck out the claims as having no reasonable prospect of success. The EAT upheld the ET's decision (read the EAT decision here, saying that this was a rare case that warranted a striking out at the preliminary stage. The Claimant appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal. The EJ found unsurprisingly that there was no reasonable prospect of an Employment Tribunal accepting the basis on which the Claimant's case was being advanced. That was partly because of its inherent implausibility, which was no doubt what he had in mind by the reference to likelihood, and partly because the Claimant could point to no material which might support it. In a case of this kind, where there was on the face of it a straightforward and well-documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation was not the true explanation without the Claimant being able to advance some basis, even if not yet provable, for that being so.


Published: 05/10/2017 10:31

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