Appeal No. UKEAT/0347/09/RN

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4 March 2010

Before

HIS HONOUR JUDGE PETER CLARK

MR D NORMAN

MR M WORTHINGTON

MISS C CLIFTON (APPELLANT)

LLOYDS TSB BANK PLC (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR JAMES DAWKINS (Representative)

For the Respondent
MR JONATHAN GIDNEY (of Counsel)

Instructed by:
Lloyds TSB Bank Plc
HR Legal Dept
PO Box 112
Canons House
Canons Way
Bristol
BS99 7LB

PRACTICE AND PROCEDURE

Striking Out/Dismissal

Strike out order upheld in part claim of unfair dismissal under both s103A and s98 Employment Rights Act – remitted for merits hearing before Employment Tribunal.

1. The parties in this matter before the Southampton Employment Tribunal were Miss Clifton, Claimant, and Lloyds TSB Bank Plc, Respondent. We shall so describe them. We have before us for full hearing parts of an appeal (EAT/0347/09) brought by the Claimant against a judgment of a full Employment Tribunal chaired by Employment Judge Simpson sitting on a PHR on 15 May 2009. That judgment with reasons was promulgated on 4 June. The appeal was considered at a preliminary hearing before a division presided over by Wilkie J on 16 December 2009. On that occasion, an appeal against a subsequent review decision by Employment Judge Simpson dated 29 June 2009 (EAT/0348/09) was dismissed. In relation to the substantive appeal, Wilkie J's division directed (order dated 18 December 2009 paragraph 1) that the appeal be set down for a full hearing solely in respect of unfair dismissal, victimisation and protected disclosures, the remaining grounds of appeal being dismissed.

1. The PHR was held to consider three principal questions: (1) whether the Claimant was disabled within the meaning of the Disability Discrimination Act 1995 (DDA); (2) whether she should be ordered to pay a deposit on the grounds that her claims had little prospect of success; (3) whether the whole or part of her claim should be struck out on the grounds that it had no reasonable prospect of success (ET rule 18(7)(b)).

1. The Tribunal found that the Claimant was not disabled. The appeal against that part of the Tribunal's PHR judgment was dismissed at the preliminary hearing, and consequently the Claimant's claims of failure to make reasonable adjustments and harassment contrary to the DDA and any disability-related or direct discrimination claims necessarily also failed. However, separate consideration must be given to her claim of victimisation contrary to section 55 DDA, that claim not being dependant upon her being disabled within the meaning of the Act.

1. With that in mind, we turn to the heads of claim that fall to be considered at this full hearing, summarised, as we have said, in Wilkie J's order at the preliminary hearing as unfair dismissal, victimisation and protected disclosures. Since those claims were also struck out at the PHR with no evidence being heard, and in the absence of the Claimant, who with her partner and representative, Mr Dawkins, failed to attend that hearing, it is necessary to analyse how the claims were put in the Claimant's form ET1.

1. She was employed by the Respondent from 27 April 1982 until her dismissal, the Respondent says, on ill-health capability grounds on 11 June 2008. Her case on unfair dismissal was that: (a) the Respondent had failed to comply with the statutory dismissal and disciplinary procedure (DDP) so that the dismissal was automatically unfair under section 98A(1) of the Employment Rights Act 1996 (ERA); (b) that she had made protected disclosures, which formed the reason or principal reason for her dismissal, contrary to section 103A ERA; and/or (c) that, if the dismissal was by reason of ill-health capability, then it was "ordinarily" unfair under section 98(4).

1. Her case on victimisation was that she had raised complaints on 28 August 2007 regarding the conduct of a meeting on 22 August, which was supposed to assist her health problems with a view to her returning to work. She had been off sick continuously from 12 July 2007. Then a further grievance on 10 December 2007, and later on 7 March and 7 April 2008. But for these complaints, she contends, she would not have been dismissed nor less favourably treated during her sick absence.

1. The agreed bundle of authorities lodged in advance of this hearing omitted the Court of Appeal decision in Ezsias v North Glamorgan NHS Trust [2007] IRLR 603. We drew it to the parties' attention and invited submissions on its effect. Ezsias raised two issues. One was the question of apparent bias, with which we are not concerned. The other concerns an order striking out Mr Ezsias' claim of section 103A unfair dismissal, which resonates with the present case. In short, Mr Ezsias, a surgeon employed by the Trust, contended that the reason for his dismissal by the Trust was that he had made protected disclosures. It was the Trust's case that its reason for dismissal was that he was responsible for a breakdown in relationships with colleagues in his department, some other substantial reason for dismissal, and that dismissal for that reason was fair under section 98(4) ERA.

1. The Employment Judge, then Chairman, took the view that the claim had no reasonable prospect of success because an Employment Tribunal would find that the principal reason for dismissal was not that the Claimant had made protected disclosures but the reason advanced by the Respondent. She, therefore, struck out the claim under rule 18(7)(b).

1. On appeal, Elias J, President, set aside the strikeout order. The Court of Appeal agreed when dismissing the Trust's appeal. At paragraph 29, Maurice Kay LJ said this:

"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. In essence that is what Elias J held. I do not consider that he put an unwarranted gloss on the words 'no reasonable prospect of success'. 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 when the central facts are in dispute. An example might be where the facts sought to be established by the applicant [Claimant] were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level."

1. His Lordship went on to opine, in paragraphs 30 – 32, that whistle-blowing cases, as with discrimination cases generally, were fact sensitive, and ought generally to be decided only after hearing evidence, drawing on the speeches of Lords Steyn and Hope of Craighead in Anyanwu v South Bank Student Union [2001] **IRLR 305 (HL).

1. Applying those principles to the present case, Mr Dawkins submits first that the Tribunal's judgment was very thin and unstructured. In employment lawyer's terms, it was not Meek compliant. We see the force in that submission. Having found that the Claimant was not disabled, the Tribunal dealt with the Claimant's unfair dismissal claim by summarising her arguments, omitting reference to the protected disclosure reason alleged, and those of the Respondent, and simply stated their conclusion that the unfair dismissal claim had no reasonable prospect of success. Under the heading "Whistle-blowing: Harassment and Victimisation claims", they said this at paragraphs 20 and 21:

"20. The Claimant's whistle-blowing, harassment and victimisation claims appear to be dependant upon and largely coextensive with her disability discrimination and unfair dismissal claims relating to the Respondent's treatment of her arising from the way it managed her contended health condition and termination procedures.

21. The Tribunal considered the submissions advanced by Mr Gidney in his skeleton argument, as expanded orally, and the papers containing the Claimant's case. It concludes these claims are inextricably linked with the disability discrimination and unfair dismissal claims and on the evidence before it raises no new freestanding claims with the result there is no reasonable prospect of any of these claims being successful and they are therefore struck out."

1. However, more substantively, Mr Dawkins submits that there are factual issues and inferences, which may or may not be drawn by an Employment Tribunal that hears the evidence and sees the witnesses, bearing on the whistle-blowing and victimisation complaints, which require a witness hearing, applying the Court of Appeal approach in Ezsias.

1. Mr Gidney, in response, has taken us to the individual heads of claim still in play following the preliminary hearing at the EAT. Each requires careful analysis. Having considered both parties' submissions, our conclusions are as follows.

Victimisation

1. Under section 55 DDA, for a complaint of victimisation to succeed, the Claimant must first show a "protected act" as defined in subsection (2). The protected acts alleged at paragraph 75 of the Particulars of Claim attached to the Claimant's form ET1 relied on are letters from the Claimant to the Respondent dated 28 August and 10 December 2007. Copies of those letters have been produced to us this morning. We accept Mr Gidney's submission that they do not invoke the DDA whether by name or arising from the matters there set out. The explanation may be that provided by Mr Dawkins. On 28 August, the Claimant had been off sick for only six weeks. Further, the letter of 10 December was, he tells us, drafted with advice from a union representative. If the DDA had then been invoked, we would expect express or at least implicit reference to the protection that that Act affords. There is none. In these circumstances absent any protected act, the victimisation claim is bound to fail. Accordingly, we dismiss the appeal against the victimisation strikeout order.

Unfair dismissal

1. This complaint, as we have said, is put in three ways. We shall consider each in turn.

(1.) Section 98A(1) ERA

1. Two breaches of the statutory DDP are relied on at paragraph 68 of the Particulars of Claim: (a) unreasonable delay in taking each step in the procedure; that point may have been arguable until the Court of Appeal overruled an earlier line of EAT authority in Selvarajan v Wilmot [2008] IRLR 824. It is now no longer arguable. (b) The Respondent's failure to provide the Claimant with the option of being represented by a work colleague. That proposition fails on the undisputed facts of the letters inviting the Claimant to the dismissal meeting dated 7 May 2008 and the dismissal letter dated 18 June stating her right to appeal and be represented by a colleague or trade union official. The issue as to whether Mr Dawkins as her partner was excluded from the appeal hearing has no bearing on this point.

1. In these circumstances, as with the victimisation claim, we have concluded that this part of the claim is wholly unarguable and, consequently, we shall not interfere with this part of the Tribunal's strikeout order.

(2.) Section 103A

1. Mr Gidney fairly accepts that, on the face of it, the Claimant raises protected disclosures at paragraph 69 of the Particulars of Claim. Since the question as to the reason or principal reason for dismissal raises a question of inference under section 103A, applying Ezsias we are not persuaded that it can properly be said, without a trial involving oral evidence, that the Claimant has no reasonable prospect of displacing the reason advanced by the Respondent, that of capability, the onus being on the Respondent to do so.

(3.) Section 98(4)

1. Even if the Respondent establishes its stated reason for dismissal, the general question of fairness under section 98(4) seems to us to be arguable. Mr Gidney has sought to persuade us that the history of the matter, including the Claimant's gradual disengagement from the internal process particularly in not signing the Respondent's medical disclosure form, points inevitably to a finding of fair dismissal. Against that, we take into account the points made at paragraph 67 of the Particulars of Claim. This question again requires a witness hearing, in our judgment. A strikeout was impermissible, applying the principle in Ezsias.

1. It follows that we shall allow this appeal to the extent only that the unfair dismissal claim brought under sections 98 and 103A ERA will proceed to a full hearing before the Employment Tribunal. The strikeout order is set aside to that extent. For the avoidance of doubt, the section 98A(1) ERA claim and section 55 DDA claim stand struck out.

1. Finally, we are told that a CMD has been fixed at the Employment Tribunal for 4 May 2010. That hearing will proceed in order that directions may be given for the future conduct of the unfair dismissal claim. That leaves outstanding the question of whether a deposit should be ordered in respect of that remaining claim. It was unnecessary for Employment Judge Simpson's Tribunal to consider that matter in light of their complete strikeout order. We think that this matter should first be dealt with at the ET. We therefore direct that the 4 May hearing shall be constituted as both a CMD and PHR before an Employment Judge sitting alone. The question of deposit can only be considered at a PHR (see ET rule 20(1)).