An ET concluded that the Claimant's claims had no reasonable prospect of success. She also held that some were time-barred, although the EJ's overarching finding was that the claims lacked the necessary prospects of success. The claims were struck out and the Claimant appealed.

The EAT allowed the appeal in part. It dismissed the appeal in respect of the pre-termination claims saying that the Employment Judge was entitled to reject the continuing act argument advanced by the Claimant. The Claimant was off work on sick leave from 29 March 2013 until her dismissal on 4 June 2014. No basis for extending time under either the just and equitable nor reasonably practicable provisos was advanced. However, the dismissal appeal was allowed. The Employment Judge fell into error in applying the test of little merit whilst citing the no reasonable prospects test. Applying the approach in Ezsias the dismissal claims could not properly be struck out.

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Appeal No. UKEAT/0077/15/RN

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 15 October 2015 & 26 May 2016

Judgment handed down on 6 July 2016

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

GHUMRA (APPELLANT)

THE HOME OFFICE (SECRETARY OF STATE FOR THE HOME DEPARTMENT) (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR BENJIMIN BURGHER (of Counsel)
Instructed by:
Bindmans LLP
236 Grays Inn Road
London
WC1X 8HN

For the Respondent
MR MICHAEL PAULIN (of Counsel)
Instructed by:
Government Legal Department
One Kemble Street
London
WC2B 4TS

PRACTICE AND PROCEDURE - Striking-out/dismissal

PRACTICE AND PROCEDURE - Imposition of deposit

Strike-out. Pre-dismissal claims permissibly struck out on limitation grounds. Dismissal claims ought to proceed to a full Employment Tribunal hearing, subject to deposit orders being made.

The Claimant's appeal allowed in part.

1. This is an appeal by Ms Ghumra, the Claimant before the Watford Employment Tribunal, against the Reserved Judgment of Employment Judge Manley, promulgated with Reasons on 17 December 2014, striking out her various claims brought against her former employer, the Respondent Home Office.

1. This was a Preliminary Hearing and the Employment Judge stated that she made her findings of fact on the basis of undisputed facts or those which were relatively straightforward to decide with limited evidence (Written Reasons paragraph 2.1).

1. The Claimant began her employment in Government service at the Department for Work and Pensions on 1 June 1990. She transferred to the Home Office on 12 August 2002. She was employed as an Executive Officer in the Watchlist and Information Control Unit ("WICU") at Heathrow Airport.

1. In December 2012 a person working for a contractor, Fujitsu, a Mr Jones, made a complaint about certain text messages sent by the Claimant to the contractor's duty mobile phone, which was shared with other contractors. He asked that the matter be dealt with informally and for the Claimant not to contact him at all.

1. The matter was passed on to the Claimant's line manager, Ms Coutts. She spoke to the Claimant on 18 December. The Claimant apologised and Ms Coutts regarded the matter as closed. It was not.

1. On 25 December the Claimant raised a grievance in writing concerning the Jones matter. The Employment Judge found that this was not a protected disclosure (see paragraph 2.6).

1. The Claimant went off sick on 4 January 2013. She remained off work until 19 February, suffering from work related stress and depression (I take this from her particulars of claim attached to her form ET1, paragraph 15). On 29 March 2013 she commenced a further period of sick absence which continued until her dismissal with pay in lieu of notice on 23 May 2014. The reason given for dismissal in a letter dated 4 June 2013 was medical inefficiency, a capability reason. A subsequent appeal was dismissed.

1. Meanwhile, on 9 April 2013 the Claimant raised a formal grievance stemming from the Jones matter. Neither grievance was upheld. The Employment Judge found that this second grievance also did not constitute a protected disclosure.

1. By her form ET1 presented on 28 August 2014 the Claimant raised the following claims:

(1) ordinary unfair dismissal and section 103A automatic unfair dismissal and dismissal on grounds of disability;

(2) direct race discrimination;

(3) disability discrimination short of dismissal;

(4) notice pay;

(5) whistle blowing detrimental treatment short of dismissal;

(6) victimisation (race);

(7) harassment;

(8) breach of contract.

1. In addition to defending the claims on their merits the Respondent took limitation points.

1. The Employment Judge concluded that these claims have no reasonable prospect of success (see paragraph 4.2). She also held that some were time-barred, although her overarching finding was that the claims lacked the necessary prospects of success. She then dealt with the claims under the following headings.

Protected Disclosure

1. The Employment Judge found that the two grievances did not constitute protected disclosures, as I have earlier observed. Even if they were, there was no reasonable prospect of showing that those grievances, dealt with in 2013, operated on the mind of the dismissing officer, Ms Wilmot, who was not involved in the earlier grievance process.

Direct Race Discrimination and Victimisation

1. I need not say anything about the strike out of these claims. Those rulings are not appealed.

Harassment

1. Here, the Employment Judge found (paragraph 4.8) that on the material before her, far from showing unwanted acts falling within the harassment definition, the Respondent was attempting to engage with the Claimant. The harassment complaint did not pass first base.

Dismissal

1. The Employment Judge concluded that the Respondent would establish their reason for dismissal, capability, rather than an Employment Tribunal finding at a Full Hearing that the reason or principal reason was her earlier grievances (whether or not they amounted to protected disclosures); see paragraph 4.5.

1. She rejected the disability discrimination dismissal claim on the basis that there were no adjustments to be made that could have facilitated the Claimant's return to work (paragraph 4.10).

1. As to ordinary unfair dismissal, dismissal on capability grounds was reasonable on the basis that the Claimant had been off sick for 14 months; the Respondent had followed its proper procedures and there was no indication, on the medical evidence following references to Occupational Health, when she might return within the next six months. Indeed she remained unfit for work at the time of the Preliminary Hearing on 3 December 2014.

Limitation

1. Unless the Claimant succeeded in showing a continuing act up to dismissal the claims were presented outside the primary limitation period. She could not do so, on the Employment Judge's rulings.

1. This case engages with a number of relevant legal concepts. I direct myself as to the law as follows, bearing in mind, as Mr Paulin reminds me, that I can only interfere with the Employment Judge's Judgment if I detect one or more material errors of law. In the present context see Medallion Holidays Ltd v Birch [1985] ICR 578 (Waite J); cf British Library v Palyza [1984] ICR 504 (Nolan J). The approach of Waite J in Birch was, I would add, approved by the Court of Appeal in Ashmore v British Coal Corporation [1990] IRLR 283 (a strike out case), followed by Wood P in Adams & Raynor v West Sussex County Council [1990] IRLR 215 as applied by the Court of Appeal in Noorani v Merseyside TEC Ltd [1999] IRLR 184.

Strike-out/Deposit

1. The test for striking out a claim, or part of a claim, differs from the Employment Tribunals' power to order a deposit.

1. A strike out order, routinely described as draconian (or in the case of Sedley LJ, draconic; see Blockbuster Entertainment Ltd v James , invokes the memory of that ancient law giver because it brings to an end a claim without a full trial. It is therefore a power to be used sparingly and strictly in accordance with the statutory test. Rule 37(1) of the 2013 Employment Tribunal Rules (the successor to Rule 18(7) of the 2004 Rules) provides, so far as is material, under Rule 37(1)(a) that an Employment Tribunal may strike out all or part of a claim on the ground that it has no reasonable prospect of success.

1. As Lady Smith observed in [Balls v Downham Market High School & College ]()[2011] IRLR 217, paragraph 6, the test is not whether the claim is likely to fail, or might possibly fail or that the Respondent's defence is likely to be established as fact. It is a high test. There must be no reasonable prospects.

1. That is particularly so in cases of discrimination, including whistle blowing claims; see the House of Lords approach in Anyanwu v South Bank Students' Union [2001] IRLR 305 and the whistle blowing case of North Glamorgan NHS Trust v Ezsias [2007] IRLR 603 CA per Maurice Kay LJ.

1. For an analysis of the principles laid down in those cases (and their application) see the recent judgment of Simler P in [Morgan v Royal Mencap Society ]()[2016] IRLR 428, paragraphs 13 to 14. In short, it will only be in an exceptional case that such a claim will be struck out under Rule 37(1)(a) where the central facts are in dispute, for example, where the Claimant's account is wholly inconsistent with contemporaneous documents (Ezsias, paragraph 29).

1. The test for ordering a deposit, thereby placing the Claimant at a higher risk of costs if the claim fails (see Rule 39(5)), is a lower one. Here the question for the ET is whether any specific allegation or argument in a claim has "little reasonable prospect of success" (Rule 39(1)). That is qualitatively different from no reasonable prospect of success under Rule 37(1)(a). Further, the Employment Tribunal must ("shall") make reasonable enquiries into the paying party's ability to pay when deciding the amount of the deposit (up to £1,000 per relevant claim); see Rule 29(2).

Case Management

1. In [Gayle v Sandwell & West Birmingham Hospitals NHS Trust ]()[2011] IRLR 810 the issue at a Full Merits Hearing before the ET was whether the Claimant's treatment, she received a final written warning and ultimate dismissal by her employer, the Respondent NHS Trust, was due to her trade union activities, as she contended, or due to a loss of trust and confidence connected with her conduct and sickness absence, as the employer asserted. The Employment Tribunal came down in favour of the employer and dismissed her claims. That decision was upheld both by the Employment Appeal Tribunal and Court of Appeal.

1. In the course of giving the leading judgment in the Court of Appeal, with which Leveson and Rimer LJJ agreed, Mummery LJ made certain observations under the heading "Procedural efficiency and justice" (paragraphs 9 to 22), picking up on Slade J's comment in the Employment Appeal Tribunal (see paragraph 9) that:

"It is a matter of great regret that so much public money and time has been spent on this matter."

1. In the course of his homily Mummery LJ said this (paragraph 12):

"12. One area of debate is about cases of little or no merit, but considerable nuisance value. All are agreed that they should be cleared out of the system as soon as possible. They should not be allowed to take up a disproportionate amount of time in the ET or cause the other party to incur irrecoverable legal costs and loss of valuable working time."

1. Mummery LJ then went on to make eight separate points, directed to improving the efficiency of the Employment Tribunal process with particular reference to the need for the parties to focus their efforts on the real issues in the case as well as efficient case management by the Employment Tribunal.

1. I shall return to the significance of those remarks in the context of the present case later in this Judgment.

Protected Disclosure

1. Whistle blowing claims throw up a number of intricate and interlocking legal concepts. For there to be a protected disclosure for the purposes of section 47B Employment Rights Act 1996 (detrimental treatment short of dismissal) or whistle blowing automatically unfair dismissal under section 103A Employment Rights Act there must first be a disclosure as defined. Secondly, the disclosure must be a qualifying disclosure under section 43B(1) Employment Rights Act. Pausing there, I note that the latest disclosure relied on in this case was 9 April 2013. Accordingly the amendment requiring the disclosure to be in the public interest does not arise here since it predates the coming into force of the Enterprise and Regulatory Reform Act 2013; see the transitional provisions, section 24(6). Thus the real question is whether the disclosure, if it be so, was reasonably believed by the Claimant to amount to a failure to comply with a legal obligation. Thirdly and here there is no dispute, the disclosure was made to the Respondent employer (see section 43C Employment Rights Act). Fourthly, did the Claimant suffer a detriment on the grounds that she had made a protected disclosure (section 47B) and/or was the protected disclosure the reason or principal reason for dismissal (section 103A); for a discussion as to the distinction between those tests of causation see [Fecitt v NHS Manchester ]()[2012] IRLR 64 CA, per Elias LJ.

1. Dealing with the first question, what is a relevant disclosure, Employment Judge Manley understandably directed herself as to the apparent distinction drawn by Slade J between information and an allegation in Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38; see Reasons paragraph 3.4. That distinction appears to have informed her conclusion (paragraph 4.3) that the Claimant did not disclose "information" in her grievance of 9 April 2013.

1. The position may, however, be rather more nuanced. In [Kilraine v London Borough of Wandsworth]() [2016] IRLR 422 (Langstaff J, 26 January 2016), paragraph 30, the former President cautioned Tribunals to exercise some care in the application of the Cavendish Munro principle, pointing out that information and allegation may be intertwined and no such distinction is drawn in the legislation.

Limitation

1. The dismissal claims were lodged in time, as the Employment Judge acknowledged at paragraph 4.9 of her Reasons. As to the pre-termination detriment claims the question for the Employment Judge was whether the Claimant could show a continuing act, as explained by the Court of Appeal in Hendricks v Commissioner of Police of the Metropolis [2003] ICR 530.

1. I have now been shown a copy of the further written submissions put before the Employment Judge by Ms Maistry, the solicitor then appearing for the Claimant. Those submissions fairly set out the law and the Employment Judge had due regard to those submissions (see Reasons, paragraphs 3 to 5).

1. This appeal was directed to a Full Hearing by HHJ Eady QC. At the first hearing before me on 15 October 2015 an issue arose between counsel (Mr Paulin appeared below; Mr Burgher did not) as to whether or not the Employment Judge was referred to the Court of Appeal decision in Ezsias. In order to resolve that issue I found it necessary to adjourn the hearing for certain enquiries to be carried out. Those having been completed the matter was relisted for hearing before me on 26 January and 27 March 2016. However, due to illness I was unable to sit on those days. I repeat my personal apology for the delay and inconvenience caused to the parties and their representatives. The hearing was completed on 26 May and I then reserved my Judgment.

1. I shall deal first with the issue of limitation. This formed a secondary finding by the Employment Judge; however, her conclusion was that the pre-dismissal claims were time-barred. Does that finding reveal any error of law?

1. Ground 5 of the Notice of Appeal focuses solely on time limits for the dismissal complaints. However, I repeat, the Employment Judge appears to have accepted that the dismissal complaints were in time as indeed they were.

1. As to the pre-termination complaints the Employment Judge was entitled to reject the continuing act argument advanced by Ms Maistry in her further submissions. I note that the Claimant was off work on sick leave from 29 March 2013 until her dismissal on 4 June 2014. No basis for extending time under either the just and equitable nor reasonably practicable provisos was advanced.

1. It follows, in my view, that the real question is whether the dismissal claims had no reasonable prospect of success.

1. It seems that the case of Ezsias was not referred to in written submissions below; it was mentioned in passing by Mr Paulin during oral submission (see the full note taken by Ms Bloor, instructing Mr Paulin below, at page 6). The Employment Judge did not mention Ezsias in her Reasons and in a letter to the Employment Appeal Tribunal following my directions at the first hearing, dated 9 December 2015, the Employment Judge very fairly states that she cannot say that she had that case in mind when deciding whether or not to strike out the claims.

1. What makes the position more difficult, in my judgment, was the reference to the judgment of Mummery LJ in Gayle v Sandwell. Whilst nobody could gainsay the force of his observations on procedural efficiency in that case I cannot accept that his reference to "cases of little or no merit" was an attempt to rewrite the well-settled principles for striking-out claims. In my judgment the Employment Judge allowed herself to be drawn into asking herself (Reasons paragraph 3.1) "whether this claim or parts of it fall into that category", i.e. a claim of little merit. That is the wrong approach. The first question is whether the claim has no reasonable prospect of success (as explained by Lady Smith in Balls). If so, it may be struck out. If not, the question is whether it has little reasonable prospect of success. In that case, subject to the Claimant's means, a deposit order may be made. That may be sufficient to persuade the Claimant to abandon some or all of her claims, thus clearing those claims out of the system as early as possible, to quote Gayle. However, that is the Claimant's choice.

1. In my judgment, whilst citing the no reasonable prospects test, when considering the dismissal claims, they being "slightly more difficult" (paragraph 4.9), the Employment Judge fell into error in applying the test of little merit to those claims.

1. Applying the approach in Ezsias it seems plain to me that the dismissal claims could not properly be struck out. The question as to the Respondent's reason for dismissal and its fairness if a potentially fair reason is made out ought to be tried. It will be open to the Claimant to contend that the real reason was her making a protected disclosure - the status of the 9 April grievance requires proper investigation in accordance with the principles earlier set out, alternatively her disability. Even if the Respondent establishes ill-health capability as the reason or principal reason for dismissal it will be for the Employment Tribunal at the final hearing to determine whether the dismissal was fair or unfair under section 98(4) Employment Rights Act 1996.

1. That said, I accept Mr Burgher's apparent concession that the dismissal claim has little reasonable prospect of success. The likelihood is that the dismissal claim will fail.

1. In these circumstances I shall allow this appeal to the extent only that the dismissal claims will be remitted to the Employment Tribunal for a Full Merits Hearing. Meanwhile an Employment Tribunal Directions Hearing will be held (a) to manage trial preparation and (b) to determine whether any deposit and if so in what amount should be ordered.

1. Finally, at the first hearing I reserved the costs of the adjournment to myself. I now have cross-applications for costs. I shall make no order as to costs. In my judgment Mr Burgher was entitled to question Mr Paulin's recollection of events below. Although Ezsias was mentioned before Employment Judge Manley it did not receive the prominence recalled by Mr Paulin. That said I am quite satisfied that Mr Paulin provided his best recollection of what had happened just under a year earlier.

1. It is unfortunate when counsel feel compelled to accuse each other of misbehaviour. So far as I am concerned both acted perfectly properly. The adjournment was necessary in the interests of justice - hence, no order.