An ET struck out the Claimant's claims saying 1) having regard to the Claimant's admission that his wrong doing amounted to misconduct the conclusion was that the Claimant's complaint of unfair dismissal had no reasonable prospect of success; and 2) it was clear that the Claimant was dismissed for a matter of misconduct, to an extent admitted by the Claimant (and which admission, of itself, was sufficient for the First Respondent to conclude that dismissal was an appropriate sanction to impose) and that disability was not a relevant factor such that the conclusion was that a complaint of unlawful disability discrimination dismissal had no reasonable prospect of success. The Claimant appealed.

The EAT allowed the appeal. The Employment Judge erred in law in striking out the Claimant's claims of unfair dismissal and disability discrimination in respect of dismissal. He ought to have applied Tayside Public Transport Co Ltd t/a Travel Dundee v Reilly. There was a crucial core of disputed fact which the Employment Tribunal would have to resolve in order to determine the claims; there was no exceptional feature such as a clear admission of gross misconduct or incontrovertible documentary proof.

______________

Appeal No. UKEAT/0196/15/BA

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 3 June 2016

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

SAJID (APPELLANT)

**

**

BOND ADAMS LLP SOLICITORS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR MARTIN BROOMHEAD (Non-practising Solicitor)
Employment Rights Advice
26 Mode Hill Lane
Whitefield
Manchester
M45 8JE

For the Respondent
MR JOHN SMALL (of Counsel)
Instructed by:
Messrs Bond Adams LLP
Richmond House
94 London Road
Leicester
LE2 0QS

PRACTICE AND PROCEDURE - Striking-out/dismissal

The Employment Judge erred in law in striking out the Claimant's claims of unfair dismissal and disability discrimination in respect of dismissal. He ought to have applied [Tayside Public Transport Co Ltd t/a Travel Dundee v Reilly]() [2012] IRLR 755 CS at paragraph 30. There was a crucial core of disputed fact which the Employment Tribunal would have to resolve in order to determine the claims; there was no exceptional feature such as a clear admission of gross misconduct or incontrovertible documentary proof. The question whether there should be a deposit Order was remitted.

1. By a Judgment dated 18 March 2015 Employment Judge Caborn sitting in Leicester struck out and dismissed claims of unfair dismissal and "disability related unfair dismissal" contained within proceedings which Mr Sajid ("the Claimant") brought against Bond Adams LLP and Mr Patel; hereafter, respectively, "the firm" and "Mr Patel". The Claimant appeals against that Judgment. At a Preliminary Hearing on 26 January 2016 two grounds of appeal were sent through to this Full Hearing.

1. The firm carries on business in Leicester. Mr Patel is its Senior Partner. Indeed, he is described as its sole Equity Partner. The Claimant was employed by the firm from 5 September 2011 as assistant to Mr Patel. He had undertaken the legal practice course but had not secured a training contract and was working effectively as a paralegal. He was suspended on 28 June 2014 on the grounds of gross misconduct. The investigation into his conduct was carried out in-house not by Mr Patel but a member of the bar, Mr Fullerton, who was instructed and paid to carry out the disciplinary hearing.

1. After adjournment due to the Claimant's state of health and Mr Fullerton's commitments the disciplinary hearing took place on 18 September 2014. Mr Fullerton was provided with extensive statements on both sides. He heard and questioned the Claimant. He dismissed some of the charges brought against the Claimant but found most charges proved and concluded that summary dismissal was appropriate. By letter dated 30 September 2014 Mr Patel dismissed the Claimant in reliance on Mr Fullerton's findings. The subsequent appeal, also heard by an external person, was dismissed.

1. The Claimant brought proceedings alleging disability discrimination - the disability being alleged was a speech impediment - and unfair dismissal. A Preliminary Hearing was ordered to determine whether the claim should be struck out or a deposit ordered. The Employment Judge made a distinction between the claims of disability discrimination during employment on the one hand and the claims of unfair dismissal and disability discrimination by dismissal on the other. The former claims were not struck out; the latter were.

1. It is necessary to describe in a little detail the principal allegations of gross misconduct made by the firm against the Claimant.

1. One allegation related to a letter written by the Claimant on behalf of Mr FK to the Border Agency on 4 June 2014. It was, according to Mr Patel the receipt of a reply to this letter which alerted him to the Claimant's conduct and caused the Claimant's suspension. His case was that the letter was written without his knowledge or authority and that the Claimant, as a paralegal, had no business to be writing such a letter.

1. In his statement for the investigation the Claimant accepted that he had written the letter. He said he had been told by Mr Patel to bring in fresh work. He had written an initial letter without charge to bring the client in. He anticipated that the reply to the letter would generate work. He, therefore, admitted sending the letter. He did not admit that it amounted to misconduct, still less gross misconduct. He said there was no need for authority since Mr Patel said he needed to bring in clients. He said there was nothing dishonest in what he did; the letter sent by email was in his "sent" mail box and the reply came to the firm.

1. Another allegation related to a letter before action which he wrote on behalf of a client, an SPP, to another firm of solicitors alleging professional negligence. According to Mr Patel this letter was wholly unauthorised. The client, for whom it was written, was subject to a production order and he had said no further work should be done for the client. There were other emails relating to that client emanating from the Claimant about which he knew nothing.

1. In his statement for the investigation the Claimant accepted that he had written the letter. He said he had been given express authority by Mr Patel to deal with the matter, including contacting the client and others concerned. He said that Mr Patel told him they would be continuing with the case despite the production order. So, while the Claimant admitted sending the letter he did not admit misconduct.

1. Another allegation related to an email confirming £1,500 for fees to a third party, apparently a liquidator, relating to this matter. Mr Patel said he knew nothing about it. The fee would undoubtedly be levied against the firm but the Claimant never brought it to his attention. In his statement the Claimant accepted sending the email. He said that the fee had been agreed with the client who was to pay it. The fee was for assistance from a liquidator in relation to the professional negligence matter which he said he was expressly authorised by Mr Patel to undertake. So he admitted sending the letter but he did not admit misconduct.

1. Further allegations related to the finding on an investigation of the Claimant's computer that the Claimant accessed pornographic material on the computer. This allegation the Claimant vehemently denied. It was also said that the Claimant had communicated with people during working time on Facebook. The Claimant said he had done this but it was common to do so and other employees would have a more significant history of doing so than he did. There was, he said, no policy prohibiting it and the firm had its own Facebook profile. So, he was not admitting misconduct.

1. It is plain from a consideration of the statements of Mr Patel and the Claimant that there was a wholesale dispute of fact between them. The Claimant was saying that Mr Patel took against him when he said he wished to take legal advice upon a new contract. The Claimant also alleged in his ET1 claim form that Mr Patel may have taken against him because of his speech impediment, which, on his account, Mr Patel regarded as an embarrassment.

1. Mr Fullerton's conclusions show that he appreciated that he was called on to resolve fundamental factual disputes. This he did, finding on issue after issue that Mr Patel's evidence was to be preferred to that of the Claimant. In particular Mr Fullerton found that the work which the Claimant admitted he carried out had not been authorised by Mr Patel as the Claimant alleged.

1. Rule 37 of the Employment Tribunal Rules 2013 provides, so far as material:

"37. Striking out

(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds -

(a) that it …. has no reasonable prospect of success;

…"

1. The Employment Judge cited Rule 37 of the Employment Tribunal Rules. He did not, however, cite any of the authorities on the application of the Rule and his Reasons contain no statement of the effect of those authorities. The Employment Judge set out within paragraphs 5 to 14 of his Reasons a summary of the background. He then set out in paragraph 15 a summary of submissions made by Mr Broomhead, the Claimant's solicitor, as to why the claim should not be struck out. It was said, for example, that Mr Patel was the last person who should have investigated the matter given the nature and seriousness of the allegations; that Mr Fullerton was not truly independent; that there should have been a more detailed investigation; and that the Claimant should not have been dismissed, in other words that the sanction was too severe.

1. The Employment Judge rejected these submissions in paragraphs 16 to 20 concluding that the Claimant had not identified anything which would result in a Tribunal concluding that the Claimant's dismissal was unfair. The Employment Judge summarised the law of unfair dismissal in paragraph 21 of his Reasons. As I have said, he did not summarise the law relating to Rule 37.

1. He concluded as follows:

"22. Accordingly in relation to unfair dismissal (ordinary), whilst the Claimants [sic] submissions have been noted, for the reasons referred to herein including having regard to the Claimants [sic] admission that his wrong doing amounted to misconduct the conclusion is that the Claimant's complaint of unfair dismissal has no reasonable prospect of success and therefore is struck out pursuant to Rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013 (the 2013 Rules).

23. In relation to an alleged disability discrimination unfair dismissal, the Respondent's submission that given the Claimants [sic] admitted misconduct a complaint of indirect discrimination and /or a complaint of a failure to make reasonable adjustments, cannot succeed, is accepted. Furthermore there is nothing the Claimant's witness statement that refers to disability and to his speech impediment as being a reason for his dismissal. It has to be remembered that the Tribunal is not considering the case as it is today (ie the date of this hearing) but by reference to the situation in September 2014. When taking account of all the relevant factors it is clear the Claimant was dismissed for a matter of misconduct, to an extent admitted by the Claimant (and which admission, of itself, was sufficient for the First Respondent to conclude that dismissal was an appropriate sanction to impose) and that disability was not a relevant factor such that the conclusion is that a complaint of unlawful disability discrimination dismissal has no reasonable prospect of success and therefore that claim is also struck out pursuant to the provisions of Rule 37(1)(a) of the 2013 Rules. Further, by reason and in consequence of the matters aforesaid, paragraph 17 of the Claimants [sic] statement of claim is struck out."

1. On behalf of the Claimant Mr Broomhead, with the assistance of a skeleton argument prepared by Ms Keira Gore, submits that the Employment Judge did not apply the correct test when acceding to the application to strike out the claims. There was in this case a "crucial core of disputed facts"; evaluation of the evidence of Mr Patel and the Claimant was indispensable and striking out was impermissible. He has taken me to the leading cases - especially in the context of unfair dismissal, Tayside Public Transport Co Ltd t/a Travel Dundee v Reilly [2012] IRLR 755 CS. He submits that there were key disputes which the Employment Tribunal had to resolve. There was also a dispute as to the sufficiency of the investigation and on the question whether the dismissing officer took the written witness statement into account. He also submits that the Employment Judge should have directed himself that striking out was a last resort and should have considered a less onerous option, such as the ordering of particulars or a deposit.

1. On behalf of the Respondents Mr John Small submits that the Employment Judge did not err in law. He points to the making of significant admissions by the Claimant, relating, for example, to the UKBA letter and the instruction of the liquidator for a fee of £1,500. He accepts that there were very great differences between the evidence of the Claimant and Mr Patel but says that the weight in favour of Mr Patel's account was overwhelming such that the Employment Judge was entitled to strike the claim out. He submits that Mr Fullerton was the decision maker. As to disability discrimination he submits that indirect and reasonable adjustment claims could not possibly succeed, a point with which Mr Broomhead agreed in reply, but he submits also that in reality claims for direct discrimination and discrimination arising from disability could not succeed. He points out that the Claimant's principal case appears to have been that Mr Patel was motivated by a dispute between himself and a client or by an issue over the contract of employment.

1. The principles which govern the striking out of a claim of unfair dismissal were summarised in Tayside Public Transport Co Ltd t/a Travel Dundee v Reilly [2012] IRLR 755 CS at paragraph 30:

"30. Counsel are agreed that the power conferred by rule 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College [2011] IRLR 217, at paragraph 4 (EAT)). In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the tribunal to conduct an impromptu trial of the facts (ED & F Man Liquid Products Ltd v Patel [2003] 24 LS Gaz R 37, Potter LJ at paragraph 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions (ED & F Man Liquid Products Ltd v Patel, supra; Ezsias v North Glamorgan NHS Trust [[2007] IRLR 603 CA]). But in the normal case where there is a 'crucial core of disputed facts', it is an error of law for the tribunal to pre-empt the determination of a full hearing by striking out (Ezsias v North Glamorgan NHS Trust, supra, Maurice Kay LJ, at paragraph 29)."

1. Tayside built upon earlier decisions, in particular Eszias v North Glamorgan NHS Trust [2007] IRLR 603 CA and Anyanwu v South Bank Students' Union [2001] IRLR 305 HL. Other authorities to which I have been referred are really illustrative of the propositions in Tayside.

1. The Employment Judge did not direct himself in accordance with these principles and, if he had done so, I consider that he would have been bound to conclude that there was a crucial core of disputed fact at the heart of the case. For the purposes of unfair dismissal it was for the firm to establish the reason for dismissal. On this question there was a wholesale dispute of facts between the Claimant and Mr Patel. On the Claimant's case he had done nothing to justify dismissal. His dismissal followed upon an issue relating to a new contract and may have been influenced by a dispute between Mr Patel and a client or by Mr Patel's attitude to his speech impediment. On his case the reason for dismissal was not genuine. On Mr Patel's evidence, however, the Claimant had committed gross misconduct and this was the genuine reason for dismissal. It is true that Mr Fullerton had been deputed to investigate the matter and had preferred Mr Patel's evidence to that of the Claimant. Nevertheless, Mr Patel was responsible for instituting the investigation and taking the actual decision to dismiss. If his evidence was untrue then the firm would not establish that the principle reason for dismissal was misconduct for the purposes of section 98 of the Employment Rights Act 1996. So resolving that dispute was essential.

1. To my mind this was not a dispute which could be resolved simply by looking at documents. It depended on an assessment of credibility - just as Mr Fullerton had found when taking the disciplinary proceedings. If the Employment Judge had approached the matter correctly in law he would have appreciated that it was not a case for striking out.

1. I should particularly mention the Employment Judge's reference in paragraph 22 of his Reasons to "the Claimants [sic] admission that his wrong doing amounted to misconduct". I do not see an admission by the Claimant that his wrong doing amounted to misconduct - certainly not to gross misconduct. The best way of describing his witness statement is that he confesses and avoids. He makes admissions as to the sending of certain emails and letters but says that he did so effectively with authority. I, therefore, do not think that the Employment Judge's statement that there was "admission that his wrong doing amounted to misconduct" is sufficient justification for striking out in this case.

1. Mr Small has argued with some force that the case for the Respondent is a strong one. I agree. Mr Fullerton's conclusions are impressive. But the test for striking out is not whether one party's case is or is not strong. If there is a crucial core of disputed fact then something quite exceptional is required before a claim can be struck out. A clear admission of gross misconduct might well be sufficient; but there was no such admission in this case. So might incontrovertible documentary proof - but there was no incontrovertible documentary proof which plainly concluded the dispute of fact between the Claimant and Mr Patel. Accordingly this was not a case for striking out. It may well have been a case for a deposit and the matter will be remitted for consideration of the question of a deposit.

1. I turn to the question of disability discrimination. I note Mr Broomhead's concession that so far as dismissal is concerned the case is not and could not be put on the basis of indirect discrimination or breach of the duty to make reasonable adjustments. But direct disability discrimination and discrimination arising from disability are live issues. If the Claimant were proved to be correct in his evidence it would follow that Mr Patel had dismissed him with no justification. He would not establish either direct discrimination or discrimination arising from disability merely by virtue of dismissal and the existence of the disability. But it is also his case that Mr Patel had expressed embarrassment about his speech impediment to the extent that he had barred him from meeting clients, attending court and the like. If that were true it would be material upon which the Employment Tribunal might infer that the dismissal was wholly or in part for a prescribed reason or it might invite application of the burden of proof provisions. So the crucial core of disputed fact matters for the purpose of the disability discrimination claim as well as the unfair dismissal claim.