Mark Shulman, Consultant Solicitor at Keystone Law

**DISCRIMINATION

Striking out
*In last month's case round up, we reported the case of [Kwele-Siakam v The Co-operative Group Ltd]() UKEAT/0039/17/LA dealing with when claims can be struck out in discrimination cases. This month we look at the recent Court of Appeal decision in [Ahir v British Airways Plc ]()*[2017] EWCA Civ 1392 on the same topic.

Background
The Claimant was suspended pending a disciplinary process and hearing which ultimately resulted in his dismissal. This arose following BA stating that it had received an anonymous letter referring to the circumstances of the Claimant's departure from a previous employer, Continental Tyres. The Claimant had submitted a CV to BA stating he had been made redundant by Continental Tyres, but that was untrue - he had been dismissed for gross misconduct. On investigation, BA found there were other discrepancies in the Claimant's CVs and concluded he had given false information in an attempt to gain employment.

Claims struck out
The Claimant claimed (amongst other allegations) that his dismissal was an act of victimisation contrary to section 27 of the EqA (in respect of previous complaints against BA and a more recent complaint of racial harassment). Several claims were struck out (although some (not relevant to the appeal) proceeded to a full hearing but were dismissed). The EJ stated that as a general principle, discrimination cases should not be struck out "except in the very clearest circumstances". He agreed that the Claimant's case was one of those rare cases where the circumstances justified such an order being made. This was upheld by the EAT.

At the Claimant's appeal to the Court of Appeal, BA made the point that despite the high threshold for striking out discrimination claims, Lord Hope in Anyanwu v South Bank Student Union [2001] UKHL 14 had stated that the "claim should be struck out if… it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to [sic] taken up by having to hear evidence in cases that are bound to fail".

The Court of Appeal agreed that ETs should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is "no reasonable prospect of the facts necessary to liability being established". In a case of this kind, where there was an ostensibly innocent sequence of events leading to the act complained of, there was some burden on the Claimant to say why things were not what they seemed and to identify what they believed was, or at least may have been, the real story, albeit that they are not in a position to prove it.

The Claimant had picked up that gauntlet and it was his case that a BA employee in the legal department was already aware of the circumstances of his departure from Continental Tyres and had a copy of the ET judgments; that that employee in question had in that knowledge sent the anonymous letter to the HR department; and that he was motivated by one or more of the protected acts. There was, as he put it, "a well laid plan" to get rid of him as a troublemaker.

The Court considered that such a "theory" was not only speculative, but "highly implausible". There was a series of self-evidently genuine internal documents showing how the HR department had followed up the allegations made in the anonymous letter, principally by taking copies of the judgments of the EAT and the ET, which established the circumstances of the Claimant's departure from Continental Tyres and then by proceeding with an investigatory and disciplinary process. That involved various different employees from the legal department in making the necessary enquiries and culminated in the disciplinary hearing which was before a BA manager who had no previous involvement, followed by an appeal involving two further BA employees with no previous involvement. On the face of it, this was a case of dismissal for the dishonesty involved in the Claimant having submitted a CV which gave a false account of the circumstances of his departure from Continental Tyres. The EJ had found himself "unable to conclude that there is any prospect of success. There were clear grounds for dismissal of the Claimant".

The Court agreed – the EJ could not be criticised for deciding to strike out various claims on the basis of the case being advanced by the Claimant and his appeal was dismissed.

Jurisdiction
A recent Supreme Court case involving claims under the Equality Act 2010 ("EqA") has implications for all qualification bodies (i.e. an authority or body which can confer a relevant qualification). The Claimant brought a claim in the ET against the GMC, its Chief Executive and one of its investigation officers, alleging discrimination. Did the availability of judicial review proceedings exclude the jurisdiction of the ET by virtue of section 120(7) of the EqA (which ousts the ET's jurisdiction where "the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal")? No, said the Supreme Court in [Michalak v General Medical Council and others ]()[2017] UKSC 71.

This is significant because it means that professionals who wish to proceed with claims under the EqA against their qualification bodies will need to proceed through the ET unless there is a separate and specific statutory appeal process. This wider scope is reflected by the fact that the Solicitors Regulation Authority, the General Pharmaceutical Council and Equality and Human Rights Commission were all interveners in the Supreme Court hearing.

*Background
*Dr Michalak was a doctor with the Mid-Yorkshire Hospitals NHS Trust until she was dismissed. Following her dismissal, Dr Michalak brought an unfair dismissal claim against the Trust in the ET. The ET found that her dismissal had been unfair and contaminated by sex and race discrimination and victimisation. Dr Michalak received a compensation award and a public apology from the Trust.

Before the ET had issued its determination, the Trust reported Dr Michalak to the General Medical Council ("GMC") who then began fitness to practise proceedings against her. Dr Michalak claimed that the GMC discriminated against her in the way in which it pursued those proceedings. She also alleged that the discrimination extended to the GMC's failure to investigate complaints that she had made against other doctors employed by the Trust.

When Dr Michalak presented a claim under the EqA to the ET in relation to these complaints, the GMC applied to have them struck out on the basis that it did not have jurisdiction because of section 120(7) of the EqA. The ET decided that it did have jurisdiction.

The GMC appealed, arguing that section 120(7) precluded jurisdiction, since judicial review afforded an appeal for the acts complained of. The EAT agreed and allowed the appeal. An appeal against that decision was successful in the Court of Appeal which held that the ET did have jurisdiction to deal with Dr Michalak's complaints and remitted the case to the ET for further case management. On further appeal to the Supreme Court there was a single issue: i.e. whether the availability of judicial review proceedings in respect of decisions or actions of the GMC excluded the jurisdiction of the ET by virtue of section 120(7) of the EqA.

Section 120(7) EqA
Section 120(7) of the EqA provides that complaints of discrimination against "a qualifications body" does not apply so far as "the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal". It was accepted that the GMC was a qualifications body. The question was whether a judicial review of its allegedly discriminatory decisions would fall within the scope of section 120(7)?

No, said the Supreme Court. Parliament had provided for discrimination claims in the work, employment and occupation contexts to be dealt with by ETs as a specialist forum with a comprehensive range of remedies which could be deployed to meet the variety of difficulties that might be encountered in the employment setting.

However, where Parliament has provided for an alternative route of challenge to a decision (either by appeal or through an appeal-like procedure), it made sense for the appeal procedure to be confined to that statutory route. That avoided the risk of expensive and time-consuming satellite proceedings and provided convenience for both parties. But that could only apply where the alternative route of appeal or review was capable of providing an equivalent means of redress.

"A proceeding in the nature of the appeal"
An "appeal" (unless qualified by any words of restriction) is a procedure which entails a review of an original decision in all its aspects. An appeal body or court can examine the basis on which the original decision was made, assess the merits of the conclusions and if it disagrees with those conclusions, substitute its own decision. By contrast, judicial review proceedings could review the legality of or the procedure by which a decision was reached, but it was not in the nature of an appeal. On a successful judicial review, the High Court cannot substitute its own decision for that of the decision-maker – the court declares the decision to be unlawful or quashes it. It would be anomalous for an appeal or proceedings in the nature of an appeal to operate under such constraints, and so in that sense a claim for judicial review would not allow the decision of the GMC to be reversed.

"By virtue of an enactment"
In any event, judicial review proceedings were not "by virtue of" any statutory source as its origins were in the common law. Although Section 31 of the Senior Courts Act referred to "a procedure to be known as an application for judicial review", that provision did not establish judicial review as a procedure, but only regulated it by requiring that applications for a judicial review were to be brought by way of a procedure under the rules of court.

Therefore, judicial review in the present case would neither be in the nature of an appeal nor a remedy provided by reason of an enactment. Accordingly, the appeal by the GMC was dismissed and the ET did have jurisdiction to hear the discrimination claims.

The effect of this Supreme Court judgment means that the judicial route for Claimants who wish to complain of unlawful discrimination by a qualification body (such as the General Medical Council, the Solicitors Regulation Authority or the General Pharmaceutical Council) is via the ET, unless there is a specific alternative right of appeal against the matter about which a complaint is made.

UNFAIR DISMISSAL

**Detriment and whistleblowing
*Section 47B(2) of ERA 1996 provides that there can be no claim for detriment in relation to whistleblowing where "the detriment in question amounts to dismissal". The Court of Appeal in [Royal Mail Ltd v Jhuti ]()[2017] EWCA Civ 1632 had to consider (amongst other issues) whether a Claimant could nevertheless claim compensation for a detriment pursuant to section 47B of the ERA 1996, where dismissal was a consequence* of the detriment (rather than the detriment itself).

Background
The Claimant was a whistleblower who alleged that there were incentives being offered by sales staff in breach of OFCOM guidance. Superficially, without seeing the context, the relevant performance records compiled by the Claimant's line manager simply looked like managed performance monitoring. A different manager (who took the decision to dismiss) was unaware of the full picture in relation to the Claimant's whistleblowing and made the decision to dismiss in good faith on the basis of what she reasonably understood to be the Claimant's inadequate performance. But that was on the basis of partial and misleading information, most of which derived directly or indirectly from the Claimant's line manager who was motivated by protected disclosures that had been made by the Claimant.

The Claimant brought proceedings in the ET, claiming unlawful detriment contrary to section 47B of ERA 1996 and for "automatic" unfair dismissal contrary to section 103A of ERA. She won her detriment claim. However, she lost her unfair dismissal claim on the basis that the principal reason for the decision to dismiss was not the making of protected disclosures.

Alternative route for compensation
It was accepted by the Court of Appeal for the purpose of determining "the reason for the dismissal", the ET was obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss (although some possible limited exceptions were contemplated as mentioned in the judgment).

In relation to the scope of section 47B(2) of ERA 1996, it provides that there can be no claim for detriment where "the detriment in question amounts to dismissal". However, could the Claimant nevertheless make a claim for loss consequential upon the detriments she had suffered as a result of her line manager's actions, even if one of those consequences was dismissal?

Yes, (at least in theory) said the Court of Appeal. The Claimant could still pursue a claim for compensation notwithstanding that she had not been unfairly dismissed. The reasoning would be that following the Claimant's protected disclosures, her line manager manipulated the dismissing manager by providing a false and misleading impression of the Claimant's performance, leading to the dismissing manager reaching a negative view of the Claimant so that she was then dismissed.

Whilst section 47B (2) ERA 1996 precluded a claim where the cause of action – "amounts to a dismissal", there could still be a claim for detriment where the consequence was dismissal. So, if there was a claim for whistleblowing detriment pursuant to 47B (1A) ERA 1996, that would then attach liability vicariously to Royal Mail under s 47B (1B), subject to any reasonable steps defence under section 47B (1D).

The Court agreed that there was "no obstacle in principle" to the Claimant recovering compensation for dismissal consequent on detriment. The "real issue" would be whether the claim was inconsistent with the terms of section 47B (2) ERA 1996. It was clearly arguable that in the present case the relevant detriment was the prior treatment complained of and that the dismissal was simply a consequence of that detriment. But that distinction might not be as straightforward as it seemed. Whether such a claim could succeed in practice (there would for example be causation issues), or to what extent, would be a matter for the ET.

This approach was consistent with the Court's previous decision in [CLFIS (UK) Ltd v Reynolds ]()[2015] EWCA Civ 439 where it was held that in principle, losses occasioned by a Claimant's dismissal may be recoverable as compensation for an unlawful detriment which caused the dismissal. Although the view in that case was expressed in the context of age discrimination, the Court considered that there was no reason in principle for adopting a different approach in a case of whistleblower discrimination.

Therefore, the Claimant was not precluded from advancing a claim for losses occasioned by her dismissal as compensation for the unlawful detriments found under section 47B. But the ET would need to carefully consider the issues in the light of the Court of Appeal's decision in Melia v Magna Kansei Ltd [2005] EWCA Civ 1547 (an earlier Court of Appeal decision on compensation and detriment under section 47B ERA 1996).

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here*.
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