The claimant applied for a post covering a maternity leave with the respondent but the job offer was withdrawn when the respondent found that a replacement was no longer necessary. The claimant claimed that the post was withdrawn because the respondent found out that he was pursuing race discrimination claims against his current employer at the time. The EJ accepted the respondent's version as to why the offer had been withdrawn and struck out the case as having no reasonable prospect of success. The claimant appealed.

The EAT upheld the appeal on the basis that were factual matters, material to the determination of the critical issue of why the job offer was withdrawn, that the claimant should not be denied the opportunity of investigating. It could not be said that the claimant's claim had no reasonable prospects of success.

Appeal No. UKEAT/0387/11/RN

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 17 November 2011

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE (SITTING ALONE)

MR P McKERROW (APPELLANT)

THE PRINCESS ALEXANDRA HOSPITAL NHS TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR NIKHIL ARORA (Representative)

Free Representation Unit
6th Floor, 289-293 High Holborn
London
WC1V 7HZ

For the Respondent
MS NAOMI CUNNINGHAM (of Counsel)

Instructed by:
DAC Beachcroft LLP Solicitors
1 Portwall Place
Portwall Lane
Bristol
BS99 7UD

RACE DISCRIMINATION – Prospective employees

Strike out of claim of race discrimination by way of victimisation when Respondent withdrew job offer on basis, Appellant believes, that they became aware of existing race discrimination complaints by Appellant against then employer. Respondent says job offer withdrawn because replacement no longer necessary. Factual matters, material to the determination of the critical question of why job offer withdrawn, that Appellant should not be denied opportunity of investigating. Judgment of Employment Judge set aside, in so far as it relates to victimisation. Case remitted to Employment Tribunal for determination.

1. The Appellant complained of race discrimination by way of victimisation, in that he alleged that the Respondent withdrew its offer to him of a six-month maternity locum position as head of IT, because it became aware of his existing race discrimination complaints against his then-employer, the London Borough of Croydon.

1. On 4 April 2011, Employment Judge Pritchard, sitting alone at the East London Hearing Centre, struck out the Appellant's claim under rule 18(7)(b) of the Employment Tribunal Rules of Procedure 2004, on the basis that it had no reasonable prospects of success. The Appellant appeals that decision.

1. The general principles in relation to strike out are well known. Strike out is often correctly referred to as a draconian power. In Anyanwu v South Bank Student Union and Others [2001] IRLR 217, Lord Steyn, at paragraph 24, said:

"24. For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process, except in the most obvious and plainest cases."

1. In Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330, Maurice Kay LJ observed, in the context of a discrimination case, that:

"It would only be in an exceptional case that an application to an Employment Tribunal would be struck out as having no reasonable prospect of success when the central facts are in dispute."

1. Mr Arora, for the Appellant, identifies the primary issue in the Appellant's claim as being whether or not the Respondent had knowledge of the Appellant's Employment Tribunal claims against the London Borough of Croydon, and if the job offer was withdrawn as a result. The sequence of events with which we are concerned is set out at paragraphs 7 to 17 of the Tribunal Judgment and Reasons. The critical question is why the job offer was withdrawn.

1. A telephone conversation took place on 27 April 2009, between Ms Debbie Chandler of the Respondent's human resources department, who was conducting the recruitment process, and Mr Asante, interim head of financial systems resources and customer services at Croydon, who provided a reference for the Appellant on 20 April.

1. The Respondent's case is that the reason for the telephone call by Ms Chandler related to a discrepancy in the number of days of sickness absence stated by Mr Asante, from the number stated in an earlier reference given by Mr James, Mr Asante's predecessor at Croydon. What is suggested by the Appellant is that it was during this telephone conversation that Ms Chandler was told about the existence of the Tribunal proceedings, and she then passed on the information to the Respondent, furnishing them with a reason to withdraw the job offer.

1. The job offer was withdrawn very shortly after the phone call between Ms Chandler and Mr Asante. Employment Judge Pritchard accepted the Respondent's version as to why this was done, namely that they essentially found that a replacement was no longer necessary. Ms Cunningham for the Respondent submits that this is not a case where the central facts are in dispute. Almost all the facts, she submits, are agreed. She says the only material point of divergence is in the question of the reason why the Trust withdrew the job offer. However, the reason why they did so is critical to the determination of the claim.

1. Mr Arora submits that the Appellant has been deprived of the opportunity to cross-examine the Respondent's witnesses on the conclusion that they reached. The Respondent claims that the telephone call was innocuous, and no mention was made of the protected acts. The Appellant believed the offer being withdrawn so soon after the telephone call, that his claim for race discrimination against Croydon Council was mentioned.

1. The Employment Judge took the view that the Respondent's case was so obviously credible that a full hearing was not warranted. In my view, there are factual matters, material to the determination of the critical issue of why the job offer was withdrawn, that the Claimant should not be denied the opportunity of investigating. In my judgement, applying the relevant principles to the facts of this case, it could not be said that the Appellant's claim had no reasonable prospects of success.

1. Accordingly, the appeal is allowed. The Judgment of Judge Pritchard is set aside insofar as it relates to victimisation and the case will be remitted to an Employment Tribunal for determination.