To proceed or not to proceed? - Case Round-Up: October 2017

In this month's round-up, Mark Shulman, consultant solicitor with Keystone Law, looks at recent cases on whether an ET should allow claims to proceed.

Mark Shulman*, Consultant Solicitor at Keystone Law

Time limits – unfair dismissal

The case of [Ministry of Defence v Dixon ]()UKEAT/0050/17/DM was described by the EAT as "…a salutary lesson in the need to pay attention to what an unrepresented party is trying to say, rather than making assumptions on their behalf". It provides some practical lessons.

*The Claimant was employed under a series of fixed term contracts over a period of 4 years, ending on 31 August 2016. In March 2016 the Ministry of Defence ("MOD") wrote to the Claimant giving her "notice that your FTA contract…is due to come to an end on 31.08.16". The Claimant was invited to an "end of contract meeting" in May, following which she had a letter confirming that her employment would end with the expiry of her fixed term contract in August.

She lodged a claim with the ET (as a litigant in person) before the termination of her employment with the Respondent. That claim ("the first ET1") complained that the MOD was not willing to treat her as a permanent worker after 4 years of successive fixed term contracts (as provided for under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002). The Claimant also ticked a box on her Form ET1 seeking a remedy for unfair dismissal "in anticipation" of her likely subsequent dismissal by the time of any ET hearing.

By the time of an initial Preliminary Hearing, the Claimant had been dismissed. She sought to amend her claim to include a complaint of unfair dismissal. The MOD's solicitor provided a draft list of issues for consideration by the ET in which the unfair dismissal claim was addressed, but the Respondent did not raise any issue as to whether the original ET1 had been presented prematurely. The Claimant was treated by both parties and the ET on the basis that she had a valid claim of unfair dismissal to be considered.

Subsequently, the Claimant decided to lodge another ET1 ("the second ET1") as a "belt and braces" measure as she "was anxious to ensure that everything relevant was submitted with an ET1, given that the original submission was only for a declaration of permanent status". That second claim was in time but no ET fee was paid; nor was any fresh ACAS EC number obtained. The ET did not treat this as a new and separate claim for unfair dismissal because the Claimant confirmed that it was not intended to be; it was by way of clarification of her earlier claim given her subsequent dismissal.

After expiry of the primary unfair dismissal time limit, the MOD then took the point that the original unfair dismissal claim had been presented prematurely and so the ET did not have jurisdiction to decide it.

*Notice or end of fixed term contract?
*The first issue for the ET was to consider whether 111(3) ERA applied. That section provides that:

"(3) Where a dismissal is with notice, an employment tribunal shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination".

The question was whether the letter sent to the Claimant in March 2016 actually gave notice of termination, or whether it merely reminded her of the date of the expiry of her limited-term contract.

The ET's decision was that the March letter constituted notice and so the first claim was in time and not premature. In the alternative the ET considered that even if the first ET1 was premature, the procedural history meant it had not been reasonably practicable for the Claimant to present her complaint of unfair dismissal in time. The ET indicated that the Claimant could still present a claim for unfair dismissal in the light of the ET's decision (in which case the ET would extend time for the Claimant to present a valid claim).

*Prematurity point not taken
*At the MOD's appeal, the EAT thought that the problem was that the MOD had initially failed to identify the "prematurity" point, but instead accepted that the proceedings already included a claim for unfair dismissal. Therefore, there was no engagement with the Claimant's application to amend her original claim. For final certainty the Claimant also lodged her second ET1 (still within time), making sure she ticked the box claiming unfair dismissal, but otherwise adding nothing to what she had already said. She did not regard this as a fresh claim, but was trying to make sure she complied with any procedural technicality. In the event, neither the ET nor the Respondent saw this as anything other than an unnecessary reiteration of the original claim that had already been made.

And therein was the difficulty. It was only after time expired for the lodging of an unfair dismissal claim that the MOD had taken the "prematurity" point in respect of the first ET1. But there had been no formal adjudication upon the Claimant's application to amend the first ET1 because the Respondent had simply accepted there was a claim of unfair dismissal before the ET.

No notice
The EAT decided that the Respondent's March letter gave "notice" only in the sense of the anticipated end date of the Claimant's fixed-term contract by effluxion of time. Any decision on the possible renewal of that contract was to be taken only after the "end of contract" meeting in May. The letter could not be notice of dismissal for a permanent employee because on any view, the Claimant could not have become a permanent employee until the following August (after 4 years of service).

The EAT agreed with the MOD on the "notice" issue – the ET had been wrong to decide that the March letter had given notice in the sense required by section 111(3) ERA: it had only given notice of the anticipated end date of the Claimant's fixed-term contract.

No valid second claim
As to the second ET1, the Claimant had intended it only to provide further particulars of her existing claim and not to constitute a free-standing claim in its own right (as she herself had confirmed). Therefore, the MOD had sought to challenge on appeal a decision that in fact had not been made by the ET (as it had not actually made any ruling to extend time for the second ET1). All it had done is to decide that the Claimant could present a claim for unfair dismissal. But the Claimant had never presented a second claim, although she had sought to amend her first unfair dismissal claim via the ET's case management pro forma.

Whilst the EAT could not uphold the ET's decision, that did not mean the end of the unfair dismissal claim. Whilst the EAT would "find it hard" to see any outcome other than for the Claimant's amendment to the original ET1 to be permitted, the parties had not agreed to the EAT determining the amendment application. The correct course was therefore to remit that issue to the ET. It would then have to consider whether to permit an amendment to add a cause of action - to be determined on the usual principles in Selkent Bus Company Ltd v Moore [1996] IRLR 661 EAT.

Striking out

Rule 37(1)(a) of the ET Rules states provides that a claim may be struck out on the ground that it has no reasonable prospect of success. Was an EJ right to strike out claims of direct race discrimination and victimisation as having no reasonable prospects of success, following a "more than a mini-trial into the main issue in the case"? No, said the EAT in the case [Kwele-Siakam v The Co-operative Group Ltd ]()UKEAT/0039/17/LA.

*Pre-Hearing Review
*After a Pre-Hearing Review lasting 2 days, the EJ did not agree with the Claimant that his was a case containing a crucial core of disputed facts. The EJ thought there was "a wealth of documentation to support what happened. The dispute is about why they happened". The EJ went on to conclude that "…in relation to the evidence I heard and the documents produced, I find that the claims of the claimant have no reasonable prospect of success. They are lacking in any substance and there is no evidence that a tribunal could find that any of them could have been due to race discrimination …".

Mini trial
On appeal, the Claimant argued that the EJ had erred in determining the strike out application in a way that was effectively a trial of the full hearing when there was case law which cautioned against such an approach (see Ezsias v North Glamorgan NHS Trust [2007] IRLR 603 in which the Court of Appeal had stated that strike out applications in discrimination cases had to be approached with care where, as in that case, there was "…a crucial core of disputed facts…that is not susceptible to determination otherwise than by hearing and evaluating the evidence").

Draconian measure
The EAT held that striking out a claim is "a draconian measure" which should only be taken in "the clearest cases". There is no rule of law that discrimination cases cannot be struck out. But where the basis of the application to strike out is not one of jurisdiction, limitation or other clear point of law, "extreme hesitation" should be exercised in doing so. In the present case the EJ had wrongly been proceeding on the basis that the facts of the case before him were largely not disputed. What was at the heart of the claims (and in dispute) was the reason for the Respondent's actions – a matter which would require findings of fact by the ET.

Procedure unsuited to strike out hearing
In any event, the procedure adopted by the EJ was unsuited to this type of strike out application. Case management directions had been given making Orders for witness statements and evidence. That approach, whilst appropriate for the hearing of a discrete preliminary issue such as whether the claim is in time, was entirely inappropriate where the main issue in the claim was to be determined on the striking out application. To have oral evidence and bundles of documents submitted on a strike out application would be replicating in anticipation of what would occur at a full hearing. And the procedure under which the Claimant was subjected to lengthy cross-examination on a strike out was also not appropriate and led to a risk of injustice.

Jurisdiction – unfair dismissal

Could a Claimant rely on the European Parliament and Council Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("the Regulation") in order to give an ET jurisdiction to hear an EqA 2010 claim? No, said the EAT in [Nica v Xian Jiaotong Liverpool University ]()UKEAT/0041/17/JOJ – the Regulation did not confer any substantive rights to bring a claim, but only regulated the forum for claims to be heard. This case is a useful reminder of how the issue of territorial jurisdiction should be approached.

The Claimant was a Romanian national working as lecturer in mathematics. In about 2008, he was granted a blue card, which allowed him to work as a teacher in the UK. In fact, the Claimant only ever worked in the UK from January to June 2009; other than that period he never lived or worked in the UK.

The Claimant's made various claims in the ET and as a preliminary issue the ET considered whether it had territorial jurisdiction to determine the claims. The ET found that the Claimant was employed by the First Respondent (a joint venture involving a Chinese University, based in China) and had worked in China, was paid in Chinese currency and was subject to a contract that was stated to be governed by Chinese law. In considering his claims under the Equality Act 2010, the ET held that it lacked jurisdiction to determine his complaints.

The Claimant contended that the Regulation applied and superseded UK law, thereby giving rise to jurisdiction. The ET disagreed with that contention also.

*Territorial scope
*At the Claimant's appeal (dealing with the territorial scope of the EqA 2010), he suggested that the ET had erred in failing to find that it had jurisdiction to determine his claims under EU law.

The EAT confirmed that the EqA 2010 is silent as to its territorial scope, leaving it to ETs to determine whether it is to apply in any particular case. However, the higher appellate Courts have considered the question of territorial jurisdiction under the EqA and the cases apply a "strength of connection" test.

The Regulation relied on by the Claimant was the recast form of Council Regulation (EC) 44/2001. It concerned the question as to which Courts should hear a claim. As such, it did not affect the substantive English law applicable to the claims themselves (see per Elias J (as he then was) in Bleuse v MBT Transport Ltd and Anor . Looking at the wording of the Regulation, its effect was to facilitate the reciprocal recognition and enforcement of judgments of Courts and Tribunals (i.e. to provide for a common means of determining the international jurisdiction of the Courts and Tribunals of the contracting Member States). There was a distinction to be made between: "(a) the territorial scope of a domestic statute; (b) the applicable law relating to a contract or tort; and (c) the place (forum) where a case is determined". For readers who are interested in a fuller explanation of these concepts, there is an article mentioned in the judgment (Louise Merrett: "The Extra-Territorial Reach of Employment Legislation", Industrial Law Journal 2010 (pp 355 et seq)).

The EAT considered that there was a "basic confusion" at the heart of the Claimant's case as to what is meant by "jurisdiction". He had focussed on the question of jurisdiction addressed by the Regulation (i.e. the question as to which country had the appropriate jurisdiction to determine his claims). But that did not address the separate question as to whether the claims fell within the territorial scope of the applicable domestic legislation.

The EAT considered that the law was clear - the test requires the ET to determine the comparative strength of the Claimant's connection. Only if it found that the strongest territorial connection was with Great Britain could the would-be complainant have a cause of action under the EqA 2010. It had been permissible for the ET to conclude that the Claimant had no rights under the EqA 2010 because:

* his place of work (as a matter both of contract and fact) was China; * he was a Romanian national who had only lived and worked in the UK for a brief period preceding his employment with the First Respondent; * his contract of employment had incorporated Chinese regulations and he was paid in Chinese currency; * the acts of which he complained had all taken place in China.

Therefore, the ET was entitled to conclude that the Claimant had no strong connections with Great Britain or UK employment law at any relevant time. As the Claimant had no enforceable right under the EqA, the Regulation could not confer jurisdiction upon the ET. The difficulty in addressing the Claimant's arguments based on the Regulation was that they confused the identification of a substantive right with the choice of appropriate national jurisdiction in which that right should be determined.

The EAT also commented that the provisions of the Regulation would not have assisted the Claimant because his employer (established and based in China) was not domiciled in any EU Member State (to which the Regulation applied). The ET had made no finding that the employer had any branch, agency or other establishment in a Member State and so in any event the Regulation would not have applied at all.
Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here*.

Published: 16/10/2017 13:12

Sign up for free email alerts

Email address
First name
Last name
Receive daily
Receive weekly
I agree to this site's terms and conditions