The claimant, a bus driver, was dismissed following an incident in which he crashed the bus into a bridge. He claimed that he had been unfairly dismissed pointing to i) not having had access to evidence that his employers had gathered; ii) their failure to follow up matters raised in the disciplinary process; iii) his belief that he was not wholly to blame for the accident because he had not adequately been advised of a change of route; iv) his belief that the respondent's decision to dismiss was based on the value of the damage caused, and v) that there was inconsistency of treatment as between him and other drivers  who had had accidents and/or committed other breaches of driving safety without being dismissed for misconduct. At a pre-hearing review, only documents were considered: no oral evidence was led. It was accepted on behalf of the claimant that minutes of disciplinary and appeal hearings were accurate, but there were also two documents which contained evidence that could have assisted the claimant both as regards the fairness of the disciplinary process and the criticism of the sanction imposed. The EJ discounted these latter two documents because the claimant did not refer to them at the disciplinary or appeal hearing. On the basis of various 'facts' he went on to determine that dismissal was within the range of reasonable responses and as such, the claim had no reasonable prospects of success. The claim was struck out.

The EAT ruled that the EJ had gone too far. The EJ required to be very careful in considering an application for strike-out at the pre-hearing review. His convention obligations required him to have regard to Article 6 and the employee's right to a fair hearing. The pre-hearing review was manifestly not a hearing to determine the issue the claimant sought to raise. The EJ did not have all the evidence before him that would have been led about the relevant events at a full hearing. The EJ had also not given adequate reasons for discounting the evidence that might have assisted the claimant.

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Appeal No. UKEATS/0065/10/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH EH3 7HF

At the Tribunal

On 27 May 2011

Before

THE HONOURABLE LADY SMITH (SITTING ALONE)

MR JAMES REILLY (APPELLANT)

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TAYSIDE PUBLIC TRANSPORT COMPANY LTD T/A TRAVEL DUNDEE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR ROBERT F HUNTER (Solicitor Advocate)

Muir Myles Laverty Solicitors
Meadowplace Building
Bell Street
Dundee
DD1 1EJ

For the Respondent
MR EDWARD NUTTMAN (Solicitor Advocate)

Ford & Warren Solicitors
Westgate Point
Westgate
Leeds
West Yorkshire
LS1 2AX

PRACTICE AND PROCEDURE – Striking-out/dismissal

1. This is an appeal from the judgment of an Employment Tribunal sitting at Dundee (Employment Judge Mr J Hendry) registered on 2 September 2010, in which the Claimant's claim was dismissed as having no reasonable prospects of success. That claim is a complaint by the Claimant that he was unfairly dismissed from his employment as a bus driver following an accident in which he was involved on 21 November 2009.

1. As is set out in the paper apart to his form ET1, there are five different respects in which the Claimant asserts that his dismissal was unfair. He does not dispute that he was driving a bus that collided with a pedestrian bridge but, put broadly, his complaints are that the disciplinary procedure was unfair, and in all the circumstances to impose the sanction of dismissal upon him following the accident was also unfair. He points to, in particular, not having had access to evidence that his employers had gathered, their failure to follow up matters raised in the disciplinary process, his belief that he was not wholly to blame for the accident because he had not adequately been advised of a change of route, his belief that the Respondent's decision to dismiss was based on the value of the damage caused, and also that there was inconsistency of treatment as between him and other drivers who have had accidents and/or committed other breaches of driving safety without being dismissed for misconduct. That, then, is the case presented by the Claimant which he offers to prove at a Tribunal.

1. The Respondent sought strike out under and in terms of rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, and Employment Judge McFatridge was persuaded to fix a pre hearing review for that purpose. At the pre hearing review before Employment Judge Hendry only documents were considered; no oral evidence was led. It was accepted on behalf of the Claimant that minutes of disciplinary and appeal hearings were accurate; that, however, was as far as any agreement on the evidence went. Amongst the documents were two precognitions from a Mr Brown and a Mr Branning. Both of them apparently had evidence to give which could have assisted the Claimant both as regards his criticism of the fairness of the disciplinary process (both men say they spoke to Lesley McCulloch in terms that would have been relevant to the issue of his culpability) and as regards his criticism of the sanction imposed (both are critical of the Respondent's procedures for advising drivers of the route diversions at the relevant time).

1. The Employment Tribunal's Judgment has a lengthy section headed "Facts." These are however matters that are all drawn from the documents and it is important to remember that, at this pre hearing review, there was no basis on which any firm findings in fact could properly be made beyond the admission in relation to the minutes of the disciplinary and appeal hearings.

1. At paragraph 52 of his Judgment, the Employment Judge observes that Mr Brown's evidence, "would have been relevant to the issue of culpability," but he then goes on and discounts it because the Claimant did not refer to it at the disciplinary hearing or on appeal. He does so, however, in circumstances where it is not apparent on the face of the documents that the Claimant knew what they had said to Lesley McCulloch or when. Then, on the basis of the various "facts" recorded by the Employment Judge, he goes on and determines that dismissal was within the range of reasonable responses and, therefore, the claim had no reasonable prospects of success.

1. Before me today Mr Hunter has made the following submissions. First, that the Employment Judge failed to have proper regard to the fact that the power to strike out provided under rule 18(7) is a draconian power with devastating effects; it should therefore be used sparingly and with restraint. Secondly, there were less draconian sanctions available such as the imposition of a deposit order (under rule 20(1) of the Employment Tribunal Rules), which was the Respondent's fall back position - strike out should, he submitted, only have been resorted to if the deposit order was not sufficient to deal with whatever were the Employment Judge's concerns. Alternatively, the Employment Judge could have issued an order for fuller and better particulars. Where a strike out order is issued, it must, he submitted, be proportionate. Finally, in a state funded application, special care required, he said, to be given, because the Scottish Legal Aid Board will, prior thereto, have had to consider whether it is appropriate to fund the case. That last submission was not taken any further forward, and it has, in my view, to be disregarded; the test applied by the Scottish Legal Aid Board is not the same as the test that has to be applied on a strike-out application and no Employment Judge is obliged to refuse an application under 18(7) simply because the Scottish Legal Aid Board has been prepared to provide funding for the case.

1. Mr Hunter referred to the factual background, in so far as it was accepted. Here, he referred to what had occurred at the PHR. He submitted that the Claimant had been denied a fair hearing in respect that he was not allowed, on his written case, to go forward to a full hearing where evidence would have been led. The credibility and reliability of witnesses had not been allowed to be tested. There had been concentration solely on the Respondent's documents but , as was evident from the precognitions from Mr Brown and Mr Branning, the Claimant was saying that the documents did not tell the whole story; there was more that he sought to put before a Tribunal at a full hearing. Secondly, the Tribunal erred in failing to consider whether a less draconian measure such as a deposit order would be appropriate. This was a case that required to go to proof at a full hearing, and it was not appropriate to have granted the application for strike out.

1. For the Respondent, Mr Nuttman sought to resist the appeal. He submitted that nothing in either Mr Brown's or Mr Branning's "evidence", as he referred to it, could affect the question of whether or not the Claimant was aware of the diversion; therefore, there was no need to proceed to a full hearing. He embarked on a detailed examination of their precognitions on more than one occasion during the submissions made and resisted the suggestion that there was a need to hear oral evidence in this case. On more than one occasion he submitted that the Claimant could have led evidence at the pre hearing review but he chose not to do so; that meant that the Claimant was the author of his own misfortunes so far as the resultant strike out was concerned. Regarding the matter of a deposit order, Mr Nuttman submitted that the Tribunal required to consider strike out first because it was the more serious matter and, only if not granting it, turn to the question of whether a deposit order should have been imposed.

1. I am readily satisfied that the Employment Judge went too far, too fast here in concluding that this claim had no reasonable prospects of success. In a case such as this an Employment Judge requires to be very careful in considering an application for strike out at the pre hearing review. His convention obligations require him to have regard to Article 6 and the employee's right to a fair hearing where the nature and extent of his rights can be determined, a right of which he should not lightly be deprived. The pre hearing review was manifestly not a hearing to determine the issue the Claimant sought to raise namely, that of whether or not he had been fairly dismissed. At this pre hearing review it is plain that the Employment Judge was being encouraged to assess the evidence. It is worrying that he has determined a series of what he entitles "Facts" in circumstances where he did not have all the evidence before him that would have been led about the relevant events at a full hearing. That was also in circumstances where, as I have already indicated, he recognised that Mr Brown might have evidence to give that could have been of assistance to the Claimant but then discounted it for the reasons to which I have referred which, to my mind, were not adequate reasons for discounting it at all.

1. The Employment Judge required to have regard to the draconian impact of an order for strike out. Such an order is, put shortly, the end of matters; the Claimant is denied access to the Tribunal where his case can be considered on the basis of evidence given on oath and, if so advised, tested by parties or their representatives. But the Employment Judge has, in my view, paid no more than lip service to the principle that strike –out is a draconian measure and the hurdle to be overcome by an employer is a high one. There were here, plainly, issues between the parties that could not be resolved simply by looking at the documents. It is not an answer to say, as Mr Nuttman repeatedly did, that the Claimant could have led oral evidence; the onus was on the Respondent, and the Employment Judge required to recognise that. He required to approach matters by assuming, for the purposes of the PHR, that the Claimant would prove everything that he was putting forward in his ET1. That involved all those matters which he asserts show that his dismissal was not a fair one. No judgment on whether or not this was an unfair dismissal could possibly be reached without hearing the relevant evidence in this case.

1. It seems to me that strike out was being used here as an effort to circumvent a full hearing and it is a matter of some concern that it was thought that that was an appropriate use of the strike out motion in this case. I am going to allow this appeal and I will pronounce an order remitting the case to a freshly constituted Employment Tribunal for a full hearing on the Claimant's claim.

1. I should add, as I mentioned in the course of the discussions this morning, I have a further concern. It is that although it was competent for the Employment Judge to do as he did, it would not have been competent for an Employment Judge sitting alone to reach a view on whether dismissal was within the range of reasonable responses; that is a matter which requires to be judged by an Employment Judge sitting with two lay members. In an individual case it could be that the view of the two lay members is at odds with that of the Employment Judge and, if so, it will be productive of the decision in the case, since they will form the majority. The Employment Judge here has failed to have regard to that, and apparently failed to think about whether it really was appropriate for him to state boldly, as he does, that dismissal in this case was within the range of reasonable responses. That was, plainly, in all the circumstances, a matter that required to go to a Tribunal of three and not a matter on which he could properly adjudicate by himself. The issue of whether or not the Claimant was fairly dismissed will now be determined by such a Tribunal.