The claimant was employed as a project manager in the Clinical Management Department. The job description made specific reference to duties concerning a type of document known as a CRF, but it did not specifically say the job holder was to design them. At his appraisals, the claimant was found to be deficient in the design of these documents and his probationary period was extended. The claimant then made a public interest disclosure, namely that because he was being told to perform a task he had not been trained for, the respondent was in breach of provisions which required them to ensure that certain tasks were only performed by people who were qualified to do them. A few days later the claimant was suspended on the basis of poor performance and misconduct and was dismissed. The claimant claimed that he had been dismissed because he had made a protected disclosure. The Tribunal struck out his claim as having no reasonable prospect of success, making 2 important points. Firstly, the Judge said that the claimant's continued employment was under serious threat before he made any alleged disclosure. Secondly, there was a contradiction in that either the claimant reasonably believed that he was not competent to do the job in which case the respondent was entitled to dismiss him, or he was capable of doing the job and therefore would have had no reasonable belief that the respondent was in breach of its legal obligations. The claimant appealed.

The EAT upheld the appeal. The matter was fact-sensitive and if the Employment Judge had acknowledged and applied the Ezsias principles, which said that strike out decisions ought to be reached "only in the most extreme case"; "very exceptionally"; or where "the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation", he should not have struck out the claim. The claimant's claim was not strong but it also did not contain the kind of logical inconsistency which the Employment Judge thought it contained.

______________________

Appeal No. UKEAT/0182/11/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 September 2011

Before

HIS HONOUR JUDGE RICHARDSON (SITTING ALONE)

PILLAY (APPELLANT)

INC RESEARCH UK LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR J DAVIES (of Counsel)

Bar Pro Bono Unit

For the Respondent
MR J COHEN (of Counsel)

Instructed by:
DLA Solicitors
Princes Exchange
Princes Square
Leeds
LS1 4BY

PRACTICE AND PROCEDURE – Striking-out/dismissal

The Employment Judge ought not to have struck out the Claimant's claim for unfair dismissal under section 103A of the Employment Rights Act 1996. Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 applied.

1. This is an appeal by Mr Pillay ("the Claimant") against a judgment of Employment Judge Kurrein sitting alone in the Employment Tribunal at Ashford dated 16 June 2010. By this judgment the Employment Tribunal struck out the Claimant's claims on the grounds that they had no reasonable prospect of success.

1. The Claimant was employed by INC Research UK Limited ("the Respondent") as a Project Manager from 13 August 2009 until he was dismissed on 19 January 2010. He did not have the requisite year of service for an ordinary unfair dismissal claim under Part X of the Employment Rights Act 1996. He brought a claim alleging that he was unfairly dismissed contrary to section 103A of the Employment Rights Act 1996 – a claim that he was dismissed for "whistleblowing", in respect of which no minimum period of service is required. He applied for interim relief: this claim was dismissed by an order dated 10 February 2010 made by Employment Judge Kurrein.

1. The proceedings were then listed to determine whether they should be struck out as having no prospect of success, or whether a deposit should be ordered on the basis that they had little prospect of success. The striking out order which is the subject of this appeal was made following a hearing on 1 June 2010 which the Claimant did not attend but for which he put in written submissions.

1. The Respondent's business includes the carrying out of clinical trials. The Claimant was employed as a project manager within the Clinical Data Management Department. His contract was contained a probationary period of 3 months. He was recruited in response to a job description which made specific reference to duties concerning a type of document known as a Case Report Form ("CRF"). This is a type of document used for capturing data in the course of clinical trials. The job description did not specifically say that the job holder was to design CRFs: it said that the job holder was to manage, review and approve various parts of the CRF process. His own CV said that he had experience in contributing to CRF design.

1. At his 30 day appraisal (which was in fact completed on 13 October after 2 months) he was found to meet all the assessed skills and abilities except one relating to his quality of work. At his 60 day appraisal shortly afterwards he was identified as needing improvement in five areas including quality of work and job knowledge. The Claimant signed both these appraisals.

1. On 13 November the Claimant's 90 day appraisal took place. He was identified as needing improvement in all areas of endeavour save those relating to commitment and respect. His quality of work was described as "poor". As to job knowledge, it was said that he required a high level of support.

1. It is plain from the papers that one area of concern was the Claimant's performance in respect of CRFs. He was criticised for his performance in designing these forms. He said, in summary, that he expected the actual design to be done by people with specific expertise in it; that there was software in use much better than the software which the Respondent wished him to use; and that he did not have and would need training to do that part of the job.

1. The Claimant did not sign for or agree with his 90-day appraisal. On 20 November the Respondent wrote to the Claimant to say that they were giving him one last chance to prove his abilities by extending his probationary period for up to 30 days from 16 November 2009.

1. On 22 November the Claimant made what he asserted to be a public interest disclosure – namely that because he was told to perform a task he had not been trained for the Respondent was in breach of provisions which had the force of law and which required the Respondent to ensure that certain tasks were only performed by individuals qualified by education, training and experience to undertake them.

1. As the Claimant confirmed in written submissions to the Employment Judge, this complaint which he alleged to amount to a public interest disclosure concerned the CRFs which were for use in clinical trials. He said that he was required to carry out their design when he was not qualified to do so.

1. This was said by the Claimant to be a qualifying disclosure under section 43B(1)(b) by reason of a European Directive implemented by statutory requirements in the Medicines for Human Use (Clinical Trials) Regulations 2004. The Employment Judge accepted that the Respondent was legally obliged to comply with these regulations, and did not question in his judgment that the Claimant's disclosure was a protected disclosure. I have heard no argument from either side on this point; the Respondent's notice relating to the appeal does not call it into question; and I express no view about it.

1. On 3 December – within the probationary period - the Claimant was suspended on the basis of a number of charges amounting to poor performance and misconduct. He was not dismissed simply for his inability to design CRFs. The disciplinary hearing took place on 19 January 2010 (the delay not being the fault of the Respondent). The Claimant was dismissed with pay in lieu of notice. The outcome was announced on that day and confirmed to him by a letter dated 25 January 2010.

1. The Employment Judge, having earlier determined an application for interim relief, was acquainted with the case prior to the hearing on 1 June 2010. The Respondent attended with counsel. The Claimant informed the Tribunal that he did not intend to attend the hearing, but rather to rely on written submissions. The Claimant's submissions included the following:

"The final point to highlight is that I find it strange that a decision was made to suspend me on the 03/12/09 the day after a grievance meeting took place to hear grievances relating to the making of a protected disclosure. By suspending me the Respondent removed any possibility of me completing my extended probationary period. In sum only by dismantling the allegations made and used as reasons for terminating my contract, will it become clear that the real causal factor for terminating my contract was because I had made a protected disclosure against the respondent, a protected disclosure equivalent to saying that the Respondent was in breach of the law. Given the seriousness of the allegation and what was at stake for the employer, its not surprising that the respondent took the action it did to terminate my contract."

1. The Employment Judge referred to his earlier reasons for the background to the hearing. He summarised the contentions of both parties. He then continued as follows:

"7. At the trial of this action the Claimant will have the onus of establishing some evidence from which a tribunal could infer that his dismissal was on the grounds of a public interest disclosure. Unlike allegations relating to detriment, in which s48(2) Employment Rights Act 1996 applies, there is no reverse burden of proof in a case under s103A Employment Rights Act 1996. The Respondent will not bear on onus of proving a potentially fair reason for the dismissal.

8. I accept that a claimant may be able to discharge that burden by pointing to the proximity in time between a disclosure being made and a dismissal following shortly thereafter. It appears to me that in this case that is all that the Claimant does have to rely on. His alleged disclosure was made on 22 November 2009 and he was suspended and invited to a disciplinary hearing on 4 December 2009.

9. In this case, however, there are a number of factors that in my view make it highly unlikely that the Claimant would be able to persuade a tribunal to draw such an inference. The most important of those are as follows:-

9.1 Firstly, the fact that the Claimant's continued employment was under serious threat before he made any alleged disclosure.

9.2 Secondly, the contradiction inherent in the case he brings relating to his alleged disclosure:

9.2.1 If he reasonably believed that he was not competent to carry out the work, thus placing the Respondent in breach of its legal obligations, the Respondent was equally entitled to dismiss him for that lack of competence for a potentially fair reason pursuant to s98(2)(d) ERA 1996; or

9.2.2 He was competent to do the job, and therefore had no reasonable belief that the Respondent was in breach of its legal obligations.

10. Taking all the circumstances put before me into account I concluded that there was no evidence from which a tribunal could infer any causal connection between the Claimant's alleged disclosure and the fact of his dismissal. In those circumstances the Claimant's claim has no reasonable prospect of success and must be struck out."

1. At a hearing pursuant to rule 3(10) the Claimant was permitted to amend his Notice of Appeal. Today Mr Jake Davies has appeared on his behalf and argued those amended grounds.

1. Mr Davies' submissions may be summarised as follows.

1. Firstly, he submits that the Employment Judge did not have regard to or apply the guidance in Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 in relation to the striking out of "whistleblowing" cases. In particular, the Employment Judge did not have regard to the importance, in cases alleging discrimination and whistleblowing, of making secure findings of fact on the basis of evidence. In this case two employees, Mr Garg and Ms Moore, were involved in the dismissal; both knew of the protected disclosure prior to the dismissal; there was no evidence at all from Mr Garg and no satisfactory evidence from Ms Moore; and no reason to assume, prior to hearing them give evidence, that they were telling the truth about the motivation for dismissal.

1. Secondly, he submits that the Employment Judge erred in relying upon Ms Moore's witness statement, which was not signed, and which dealt purely with the issue of interim relief. He says that, while it is true that the Claimant was not present to cross-examine her, it would not in any event be within the remit of a striking out hearing to make findings of fact from witness statements.

1. Thirdly, he submits that the Employment Judge placed impermissible weight on the relevance of prior performance issues. He points out that the probationary period was extended; that the Respondent did not begin disciplinary proceedings until after the protected disclosure; and that the prior performance issues cannot therefore have been decisive on the question of dismissal. He further submits that the Employment Judge misunderstood the Claimant's case concerning CRFs. His case was that he was not employed to carry out the role of CRF designer, but rather to carry out a role specifying such forms, reviewing and approving them.

1. On behalf of the Respondent Mr Jonathan Cohen firstly submits that the Employment Judge identified and applied the correct test – whether there were reasonable, as opposed to fanciful, prospects of success at a hearing. It was not an error of law for the Tribunal to omit reference to Ezsias, the facts of which were very different to the present case; he applied the correct legal test, derived from the Employment Tribunal Rules. Mr Cohen further submits that the guidance of the Court of Appeal in Ezsias has no application to a case such as this, where the employee lacks qualifying service and must prove the reason for dismissal.

1. He secondly submits that Ms Moore, the decision-maker, specifically asserted that she was not aware of the Claimant's disclosure when he was suspended; that there was no legal impediment to reliance by the Employment Judge on Ms Moore's statement; that the strict rules of evidence do not apply to Employment Tribunals; and that Ms Moore was present at the hearing, willing and able to confirm her statement. His submissions go a step further. He submits that the Claimant never put the statement of Ms Moore in issue in any way; that in reality there were no factual issues in dispute; that it was for the Claimant to produce some positive evidence to show that Ms Moore's statement was wrong; and that he did not do so.

1. Finally, he submits that the Employment Judge did not misunderstand the case on the question of capability, and that his conclusion was plainly correct.

1. The Employment Judge's power to strike out the claim derived from rule 18(7)(b) of the Employment Tribunal Rules 2004, which empowers an Employment Judge at a pre-hearing review to strike out all or part of a claim on the grounds that it has no reasonable prospect of success. The power was first added to employment tribunal rules in 2001.

1. The exercise of this power was considered by the Court of Appeal in Ezsias v North Glamorgan NHS Trust. **The facts of that case are indeed very different to those of the present case, as Mr Cohen submits. But the Court of Appeal gave important guidance as to the exercise of the power.

1. Firstly, the Court of Appeal approved the judgment of Elias J, who said:

"However where the facts themselves are in issue in my judgment it can only be in the most extreme case that the chairman can say that without any evidence being tested in cross-examination that the disputed facts would inevitably or almost inevitably be resolved against the claimant."

And

"Mr Pitt-Payne submits that it must in principle be possible for a tribunal in a clear case to make a finding that a claimant has no chance of establishing the facts alleged. I would not discount the possibility that very exceptionally it might be. But it seems to me that at the very least if such a step is going to be taken then the primary factual basis on which a tribunal infers that the dismissal must have been for the reason advanced by the employer and not the counter varying reason advanced by the employee must itself be undisputed."

1. Maurice Kay LJ said (paragraph 29):

"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 were totally and inexplicably inconsistent with the undisputed contemporaneous documentation."

1. Secondly, the Court of Appeal drew a parallel between whistleblowing claims and discrimination claims.

1. In Anyanwu v South Bank Students Union [2001] ICR 391 Lord Steyn said:

"For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of process except in the most obvious and plainest cases. Discrimination cases are generally fact sensitive and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of the claim being examined on the merits or de-merits of its particular facts is a matter of high public interest."

1. Lord Hope said:

"I would have been reluctant to strike out these claims on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to leave evidence."

1. Anyanwu had been concerned with an older version of the employment tribunal rules, which did not contain the "reasonable prospects of success" test. But Maurice Kay LJ in Ezsias said that the same or a similar approach should be applied under the new version of the rule to whistleblowing cases: see paragraphs 30-32. It is instructive to note the reason he gave:

"Whistleblowing cases have much in common with discrimination cases, involving as they do an investigation into why an employer took a particular step, in this case dismissal…. The applicant will often run up against the same difficulties to those facing a discrimination applicant."

1. As Mr Cohen submits, the test which the Employment Judge had to apply was the "reasonable prospects of success" test. But Anyanwu and Ezsias provide important guidance as to the application of the test where the Tribunal is being asked, in effect, to take a view about the prospects of making good an allegation on the facts. It may be said that the guidance is quite restrictive, and that discrimination and whistleblowing cases which appear to have little merit on the facts may not be susceptible to an application to strike them out. However Anyanwu and Ezsias represent the law and reflect not only the sensitivity and public importance of discrimination and whistleblowing claims but also the limits of a pre-hearing review, which is not an appropriate forum for carrying out a mini-trial of the issues.

1. I do not think that an exception to the Ezsias principles can be carved out for cases where the employee has no qualifying period. The claim will still involve an investigation as to why an employer took a particular step, usually dismissal. The reasoning of Maurice Kay LJ remains applicable.

1. It is therefore always helpful, and an aid to good decision-making, if employment judges who are asked to strike out such claims because there are no reasonable prospects of establishing relevant facts keep Anyanwu and Ezsias in mind and if they consider it appropriate to strike out the claim say how why they consider the claim to fall within the type of case where a strike out is appropriate.

1. Against that background I turn to the Employment Judge's reasons.

1. I will deal firstly with the statement of Ms Carole Moore. I will assume, and would if necessary find, that the statement was never signed. But I do not think the Employment Judge fell into error in respect of her statement.

1. Firstly, I do not think he considered the statement in any way determinative of the case. Nothing in his reasoning in connection with the striking out application suggests that he fell into this error. The Employment Judge's approach was rather to accept that there was an issue as to the principal reason for dismissal and to assess the prospects that the Claimant would establish the principal reason. Whether this was a correct approach I will consider in due course; but at this point it is sufficient to say that the Employment Judge did not decide the case on the basis of acceptance of her statement.

1. Secondly, contrary to the submission of Mr Davies, I consider that the Employment Judge was entitled to consider the statement of Ms Moore. It helped him to know what the issues were in the case, and what her evidence was likely to be. So long as he used it for this limited purpose I see no inherent reason why he should not have regard to it. Rule 18(2)(d) says that an Employment Judge may carry out a preliminary consideration of the proceedings and may consider "any oral or written representations or evidence". Even if the unsigned statement of Ms Moore was not evidence, it could be considered as a written representation. Very different considerations would apply if the Employment Judge was finding facts; but for the purpose of considering a striking out application I do not think it was an error of law to take the statement, even if it was a draft prepared on instructions, into account.

1. I do not, however, accept the submissions of Mr Cohen for the Respondent regarding Ms Moore's statement to the effect that there was no dispute about its contents. It is to my mind plain that the Claimant did not accept Ms Moore's statement as to the reasons for the Respondent's actions. This is a case where the facts were in issue. The Claimant's submissions, which I have quoted, demonstrate that this was the case.

1. In any event her statement would not provide any conclusive answer to the Claimant's case. The statement accepts that Ms Moore knew about the protected disclosure by 18 December, well before the disciplinary hearing and dismissal. The statement in any event does not deal with the knowledge of Mr Garg, who along with Ms Moore chaired the disciplinary hearing and took the decision to dismiss. The Employment Judge did not approach the case on the basis that there was a knock-down argument of this kind in favour of the Respondent: he recorded the submission, but it was not part of his reasoning for granting the application.

1. I turn then to the more difficult question – namely, whether in the light of the reasoning of the Court of Appeal in Ezsias the Employment Judge's decision can stand.

1. The Employment Judge did not strike out the claim because it was untenable for any legal reason. He accepted for the purposes of his decision that the Claimant made a protected disclosure on 22 November. His reasoning relates to the likelihood that the Claimant will be able to establish at trial that the principal reason for dismissal was the making of a protected disclosure. It is therefore essentially a conclusion (adapting the words of Elias P which I have quoted) that the disputed facts would inevitably or almost inevitably be resolved against the Claimant. Such a conclusion, on the authority of Ezsias, ought to be reached "only in the most extreme case"; "very exceptionally"; or where "the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation".

1. In this case the Employment Judge did not refer to Ezsias. He gave two principal reasons for his conclusion. I will take each of them in turn.

1. Firstly, he placed weight on the fact that the Claimant's employment was under serious threat before he made the alleged disclosure. To my mind this is a point of real significance. It must be doubtful whether, in the light of the Respondent's expressed dissatisfaction with the Claimant even before the protected disclosure, the Claimant will establish (as he must) that the principal reason for dismissal was the making of the protected disclosure. But I do not think it is the kind of knock-down point which falls within the Ezsias guidance. At the time of his alleged disclosure the Claimant's probationary period had been extended and he was not subject to disciplinary procedures. These were to follow after the protected disclosure – but before the probationary period expired.

1. Secondly, the Employment Judge placed weight on what he regarded as a contradiction inherent in the Claimant's case. I have already quoted this contradiction but I will repeat it for convenience.

"9.2.1 If he reasonably believed that he was not competent to carry out the work, thus placing the Respondent in breach of its legal obligations, the Respondent was equally entitled to dismiss him for that lack of competence for a potentially fair reason pursuant to s98(2)(d) ERA 1996; or

9.2.2 He was competent to do the job, and therefore had no reasonable belief that the Respondent was in breach of its legal obligations."

1. While I do not think that the Claimant's case is at all straightforward, I do not think this reasoning does justice to it. The Claimant's case is that he was not employed to do the actual design of CRF forms; the job description does not say that he will do the actual design of CRF forms; and that the fact that he was not trained to design CRF forms did not entitle the Respondent to dismiss him. The Respondent ought either to have trained him in the design of CRF forms or obtained assistance from others to do so; confronted with his complaint that it was improper to employ someone unqualified to do this work, he was dismissed; and this was the principal reason for his dismissal.

1. I am far from saying that this is a strong case; but I do not think it contains the inherent contradiction which the Employment Judge thought it contained. On the Claimant's case the Respondent was not entitled to dismiss him because it did not employ him to design the CRFs and knew or ought to have known this fact. So his inability to carry out CRF design did not entitle the Respondent to dismiss him. Moreover this was not (as I read the documents) the main reason for dismissal. The Respondent took into account a number of matters including what was said to be "intimidating and threatening behaviour" and "unacceptable questioning and demanding attitude". While I am not saying it is necessarily the case here, it is not uncommon to see that employees who confront their employers with inconvenient truths are said to be guilty of "unacceptable questioning and demanding attitude". Put shortly, the matter is fact-sensitive.

1. I have reached the conclusion that the Employment Judge, if he had acknowledged and applied Ezsias principles, ought not to have struck the claim out. It is fact-sensitive. The Claimant's case, while not strong, does not contain the kind of logical inconsistency which the Employment Judge thought it contained. The appeal will be allowed.

1. The hearing below was also listed for the Employment Judge to consider making an order for a deposit under rule 20 of the Employment Tribunal Rules. The Employment Judge did not consider this matter. Mr Cohen asks me to consider it today; but the Respondent's Answer does not raise it, Mr Davies is not in a position to deal with it and I do not have the substantial bundle which the Employment Judge had. The matter will be remitted for a different Judge to determine it.