SUMMARY
PRACTICE AND PROCEDURE
Striking-out/dismissal
Imposition of deposit
Applications to strike out on the basis that there is no
reasonable prospect of success should only be made in the most obvious and
plain cases in which there is no factual dispute and which the applicant can
clearly cross the high threshold of showing that there are no reasonable
prospects of success. Applications that involve prolonged or extensive study
of documents and the assessment of disputed evidence that may depend on the
credibility of the witnesses should not be brought under rule 18(7)(b) but
must be determined at a full hearing. Applications under rule 18(7)(b)
that involve issues of discrimination must be approached with particular
caution. In cases where there are real factual disputes the parties should
prepare for a full hearing rather than dissipate their energy and resources,
and those, of Employment Tribunals, on deceptively attractive shortcuts. Such
applications should rarely, if ever, involve oral evidence and should be
measured in hours rather than days. The Respondent failed to establish that the
instant claims had neither a reasonable prospect of success nor little reasonable
prospect of success.
HIS HONOUR JUDGE SEROTA
QC
Introduction
1.
This is the appeal of the Respondents from a decision at a Pre‑Hearing
Review on 8 April of last year at the Employment Tribunal in Birmingham presided over by Employment Judge Warren, who sat alone. Her Reasons were
given orally at the hearing. Unfortunately, the recording has gone missing, so
although the Employment Judge produced a further Judgment, she did so from
Reasons reconstructed from her notes. This Judgment was promulgated on
29 June 2011. Mr Price-Rowlands, who has appeared on behalf of
the Respondents, has suggested that other matters were raised on 8 April
that do not appear in the Judgment of 29 June, but this is a case in which
Murphy’s law appears to apply, and the attendance notes taken by the Respondents’
solicitors have also gone missing, and there are no other cotemporaneous notes
available.
2.
The Employment Judge had before her an application on the part of the
Respondents to strike out the Claimant’s case on the basis that it was
scandalous, vexatious or had no reasonable prospect of success pursuant to
Employment Tribunal rule 18(7)(b). The Employment Judge declined to
strike out the claim as having little prospect of success and also refused to
direct that the Claimant pay a deposit under rule 20. The Respondents’
appeal came on the “sift” before HHJ Pugsley on 19 August of last
year, and he directed that it should be disposed of under rule 3(7). The
Claimant asked for a hearing pursuant to rule 3(10), which came before
Lady Smith on 22 September 2011. She referred the appeal to the
hearing that I have heard.
3.
For the sake of completeness, I believe that there is other litigation
between the parties and other Notices of Appeal, including one going to the
question as to whether the Respondents’ application to review the Employment
Tribunal’s decision was out of time and for a refusal to enlarge time for a
claim that was out of time. There is also, apparently, an outstanding appeal
in relation to an application to strike out another claim by Mr Swanson
under the Disability Discrimination Act for want of
particularisation and also on the basis that the Claimant had conducted those
proceedings vexatiously, unreasonably or had no prospect of success. The
Notices of Appeal in both cases were disposed of under rule 3(10) by
HHJ McMullen QC on 23 February. There has also been an application
to submit fresh evidence by the Respondents. This application came before
Employment Judge Warren during the course of her review Judgment
promulgated on 20 October 2011. Employment Judge Warren
declined to review her earlier Judgment or to receive fresh evidence. I shall,
of course, come on to her Judgments in more detail later in this Judgment.
Factual background
4.
I start by turning to the factual background. The Claimant is male. He
is of Afro‑Caribbean origin. He is disabled, as is accepted by the
Respondents, suffering from bronchiectasis. The Claimant tells me he is 57
years of age. I propose to deal with the issues in the proceedings briefly and
neutrally because there has been no hearing as yet on the merits. The First
Respondent, as I shall call Qdos Consulting, provides legal consultancy
services, especially in employment law. The Claimant was employed by the
Respondent as a senior litigation consultant from 29 July 2009. His
employment terminated on 29 September 2010; the Claimant has
maintained that he was constructively dismissed. The First Respondent
maintained that he had committed gross misconduct and that was the reason for
the termination of his contract.
5.
The First Respondent maintains that from in or about July 2010,
after a number of complaints from its clients, the First Respondent’s managers
met the Claimant to discuss issues arising from these complaints. These
complaints, it is said, included failing to deal with issues on his files in an
efficient and timely manner, not communicating with clients, and other matters
concerning his conduct of litigation. The Respondents’ investigations led them
to conclude that the complaints were justified. The Claimant maintains that
from the initial meeting he was subjected to unjustified and discriminatory
bullying, and later victimisation also. The principal perpetrators, he
maintained, were the Second Respondent, Ms Nicola Harris, and also
two other Respondents involved to a lesser extent, Mr Ivan Spibey,
who was the Third Respondent and was a human relations officer, and
Mr Steve Greenwell, the Fourth Respondent, a director. The Respondents
maintain, on the other hand, that the Claimant was not at all co‑operative
or helpful in relation to its investigations or discussions as to the
Claimant’s management of cases. The Respondents maintain that the problems
that had been encountered continued in similar fashion.
6.
It is also said that the Claimant was aggressive to Ms Harris. The
Claimant maintained he was being bullied, and he presented a grievance in
relation to Ms Harris. He maintains that thereafter he was subjected to
unwanted discriminatory conduct and his dismissal. The Claimant asserted that
while he was in the First Respondent’s employment his work was criticised and
more closely monitored by his line manager than his peers. He maintains he was
subjected to different treatment. He also was given a higher workload, and the
Respondent reneged on an agreement to permit him to work at home, which he
regarded as a reasonable adjustment. He lodged his grievance, to which I have
referred, against Ms Harris in August, and a further grievance in
September, in which he expressed dissatisfaction as to how he had been treated
and the disciplinary action that had been taken against him. He maintained
that his dismissal was discriminatory, and he was dissatisfied with the way in
which the grievances were dealt with.
7.
The First Respondent says that during the course of its disciplinary
investigations it learnt that the Claimant had worked for another firm of local
solicitors, Brindley Twist Tafft & James, which I shall refer to
as Brindley Twist, and had been dismissed for failing to carry out work on his
files. At the time of the Claimant’s dismissal a decision of the Employment
Tribunal in the Brindley Twist case was available to the Respondents. It is
fair to say that the Employment Tribunal was critical of a CV that he had
provided to Brindley Twist, and this led the Respondent to conclude that
misrepresentations had been made to Brindley Twist and similar
misrepresentations to them. The Respondents’ case was that there was no
discrimination, and that the Claimant was dismissed for gross misconduct,
failing performance and obtaining employment as a result of a false CV in which
he had omitted any reference to employment by Messrs Brindley Twist. As I have
said, the Claimant denied any wrongdoing and maintained that the investigation
and dismissal were discriminatory and constituted victimisation. There are
clearly major factual issues between the parties.
The Claimant’s pleadings
8.
With that very brief background in mind, I turn to the Claimant’s
pleadings in the case. At page A47 I have the Claimant’s ET1. The claim
is for discrimination and victimisation on the grounds of race, sex, disability
and age. The Claimant maintains he suffered harassment and bullying on these
grounds; also, he suffered detriment as a result of a public-interest disclosure,
and that his dismissal was unfair. The ET1 contains a narrative list of
complaints. There is nothing specific to suggest, save possibly in the case of
disability discrimination, any specific discriminatory intent, whether by
virtue of race, sex or age, but I draw attention to certain portions of his
ET1. At paragraph 21 of his ET1 rider the Claimant maintains that a
Mr Mohammed Farooq, an external consultant, was dealt with in a
different way from three other consultants who were white males, and maintains
that there appeared to be a clear element of differential treatment by the
company as to how it accommodated Mr Farooq and how it accommodated the
other males. I draw attention to page A64 of the bundle and paragraph
35.17, where the Claimant asserts that after a meeting on 28 July with
Ms Harris she maliciously engaged in a kind of witch‑hunt on the
cases he was handling. She engaged in excessive monitoring of his files in
what he could only regard as “further bullying, harassment and victimisation
following my complaining about the manner in which she dealt with issues on 28th July 2010”.
9.
I mention that the allegation at least of victimisation appears to be
set out fairly clearly; at page A65 at paragraph 35.19 the Claimant
says that:
“During Nicola Harris’ tenure as head of the department,
the staffing had gone from a good mix of ages and ethnic composition as it [had
been previously] […] to one where the staff makeup [was] younger and I
represent the only ethnic minority in the team.”
10.
I have no knowledge as to what the gender make‑up of the team
was. I draw attention as well to paragraph 64 on A69, in which it is said
that a further act of discrimination, bullying, harassment and victimisation
following a meeting on 10 September 2010 took place; on his refusal
to compromise his employment he was sent a letter from Mr Spibey on
21 September in which a further allegation was made against him. At
paragraph 81 on page A73 the Claimant asserts that he lodged an
appeal against his dismissal for gross misconduct. He had requested
information so he could properly respond to the allegations against him, but
this was not provided, and he then asserts:
“[…] the disciplinary action was taken against me as a direct
result of my raising a legitimate grievance against Nicola Harris and
asserting my employment rights, as I am entitled to do; that the disciplinary
action amounts to unlawful treatment on several grounds, including differential
treatment and victimization contrary to the Race Relations Act 1976;
the dismissal is an act of less favourable treatment, discrimination, and
victimization following my raising a legitimate grievance; the dismissal is not
only in breach of Qdos’ own policies and procedures and the ACAS Code of
Practice; it is also in breach of the Race Relations Act 1976, the Sex
Discrimination Act 1975, the Disability Discrimination Act 1995; Public
Interest Disclosure Act 1988; and the European Commission’s Code of Practice
Protecting the Dignity of Men and Women at Work […].”
11.
Now, it may be said that it is difficult to discern discrimination on
grounds of age, race or sex, but the victimisation claim under the public‑interest
disclosure provisions now, I believe, set out in the Employment Rights Act
seems tolerably clear. This formulation is repeated at paragraph 86, and
at paragraph 88 there is a further assertion of victimisation. At
paragraph 89 there is an assertion that the treatment to which the
Claimant had been subjected was motivated by race or sex:
“I do not consider that either a white member of staff would be
treated the way I have been, or that a female member of staff would be treated
in this way.”
12.
He then goes on to assert that his treatment was in breach of the Disability Discrimination Act.
At paragraph 95 Mr Swanson contends that it is clear from the action
taken against him that the First Respondent’s management has one law for a
white female member of staff and another law for a black male member of staff,
and that the company shows favourable treatment to a white female member of
staff and discriminatory treatment to a black male member of staff who raises a
legitimate complaint in relation to the unlawful conduct against him by a white
female member of staff. I would have thought this is a fairly clearly understood
allegation of discrimination on the grounds of gender. I say nothing as to
whether the Claimant will make out such an allegation; that is not a matter
that falls for decision by me.
13.
Then, at paragraph 97 in relation to the dismissal, it is firstly
asserted it is less favourable treatment, discrimination and victimisation
following his raising a legitimate grievance, the Claimant repeating again it
is in breach of the First Respondent’s policies, the ACAS Code of Practice and
various statutes to which I have already referred, and in particular he again
claims the protection afforded to what are sometimes referred to as
whistleblowers as the action was taken, he maintains, as a direct reaction to
his raising complaints about the conduct of Ms Harris. He also goes on at
paragraph 98 to assert that the Respondents’ unlawful treatment has been
“intentional, malicious, high‑handed and oppressive”. He goes on to
claim that he was unfairly dismissed (see paragraph 102) and contends that
he had been subjected to victimisation as a result of making complaints against
the First Respondent’s management.
14.
The Respondents were dissatisfied with the pleading and applied for further
particulars. On 21 January 2011 an order was made by
Employment Judge Warren on a case management discussion. She
directed that:
“The claimant should send to the respondents and to the tribunal
by 11 February 2011 specific details of all matters upon which the claimant
relies in support of the allegation that the claimant has been discriminated
against on the grounds of sex, race, disability and age, including all
particular incidents relied on and, so far as possible, providing the dates of
those incidents, the persons involved and all matters done or said about which
he complains. The claimant is reminded to include every incident on which he
seeks to rely, and to keep the document succinct.”
15.
The Respondent was then directed to serve an amended response within 21
days. Mr Price-Rowlands submitted that the Employment Judge must have
considered that the particularisation in the original pleading in the ET1 was
inadequate, otherwise she would not have made the order. The Claimant’s
response was to serve further and better particulars on
11 February 2011; I have these at page A99. These particulars
are again to some extent narrative in chronological order, and they contain a
fairly constant refrain in relation to specific allegations. I take, for
example, paragraph 6, where he complains that at a meeting on 28 July
Ms Harris accepted that Mr Swanson had a higher caseload than others
in the department, and then there follows this sentence: “It is contended that
this act was an act of discrimination, bullying and harassment motivated on the
grounds of my race and/or sex and/or age”. One finds similar suggestions
throughout the further and better particulars, with no attempt to distinguish
between discrimination on race, sex or age grounds. One finds this, for
example, repeated – and I do not propose to go through them all – at paragraphs 21‑23, 25, 26, 29, 31,
and 33‑35; and I could go on, but will not do so. There is also use
of another phrase on a number of occasions: that the Respondent, “behaved in a
high handed, malicious and discriminatory way”.
16.
The Respondent was dissatisfied with these particulars and made an
application for further particulars, and an order was made to that effect on
8 April 2011. I do not think it necessary for me to go through the
details of that order, but I note that the Employment Judge said this:
“The respondent continues to express concern at the broad brush
approach, and lack of specifics in the claimant’s case despite the orders made
on the last occasion. I have some sympathy with the respondent in this regard,
and have made it clear to the claimant that he needs to comply with this
order. The claimant’s case on disability discrimination is, it is accepted by
the respondent at least comprehensible – not so his claims on the grounds of
race, sex and age. There is no real attempt by him to define his comparators
or to explain why particular acts are particular types of discrimination. The
claimant is an experienced representative before this tribunal, as well as
having brought other claims in his own right. He agreed that he understood the
orders. He confirmed that the race claim is on the basis of his racial origin
as defined in the last case management discussion Order.”
17.
She therefore directed that the Claimant should provide further particulars
by 22 April 2011 with:
“[…] a schedule of all matters upon which he relied in support
of his allegations he had been discriminated against on the grounds of race sex
age or disability, the incidents, the persons involved and all matters done or
said about which he complains. The schedule is specifically to explain the
alleged nature of the discrimination, and why the claimant considers it to be
so, as well as naming any real comparator, or fully describing any hypothetical
comparator. If the claimant considers any incident to be discrimination of more
than one type, he is to say so, and to separately carry out the same analysis
for each type of discrimination.”
18.
Mr Price-Rowlands submitted again that it must be the case, and this is
perhaps borne out by the passage that I have read out, that the Employment
Judge accepted that the existing pleadings were insufficiently particularised.
19.
Mr Swanson then provided a schedule, which I have at page A114.
It consists of a large number of allegations of conduct of which he complained,
going up to his dismissal. There is again a great deal of repetition. The
matter complained of is firstly set out, the persons involved are identified,
the matters relied upon set out, and then one finds:
“It is contended this was an act of discrimination, bullying,
harassment and victimisation motivated on the grounds of my race and/or sex
and/or age and/or disability.”
20.
This is repeated throughout the schedule. In another row in the table “Nature
of Discrimination and Why”, the Claimant asserts:
“Race: A comparator of a different race in the same
circumstances would not have been treated as I have been treated.
Sex: A comparator of a different sex in the same circumstances
would not have been treated as I have been treated. […]”
21.
He then goes on to assert that the Second Respondent’s sexual
orientation was lesbian, and it is specifically contended she would not have
treated a female member of staff in this way. I have to say that I cannot for
the life of me see the relevance of Ms Harris’ sexual orientation. Then:
“Age: A comparator of a different age in the same circumstances
would not have been treated as I have been treated.
Disability: A comparator without my disability of
bronchiecstacis in the same circumstances would not have been treated as I was
treated.”
22.
The comparators are then identified:
“Nicola Harris, Alastair Haggerty,
Heather Maitland and Nicky Cockerill.
Hypothetical Comparator: A hypothetical comparator in the same
circumstances would not have been treated as I was treated on the grounds of my
race and/or sex and/or age and/or disability.”
23.
One finds a similar pattern throughout. I have not counted the number
of incidents relied upon, but there must be approaching 75, and they all follow
a similar pattern. The matter complained of is set out, the persons involved
are identified, and then it is asserted that comparators of different race, sex
or age would have been treated differently, comparators are identified in each
case – they are not always the same – and then that the hypothetical comparator
would not have been treated in the same way. I do not think there is anything
to be gained by going through these in any greater detail, because it will be
apparent to anyone considering my Judgment what the allegations are.
24.
The Respondents were dissatisfied and applied to strike out the claim
under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations,
to which I shall turn, or seeking a deposit under rule 20. At the hearing
that took place on 8 April the Respondents were able to produce materials
from previous proceedings in which the Claimant had been involved. He had been
involved in litigation against his former employers, Sandwell Borough Council.
It was alleged by Sandwell Borough Council that the Claimant’s work was
unsatisfactory in the same manner as the Respondents went on to allege. It was
said that once his managers began to complain the Claimant responded by making
allegations of discrimination against his managers. There was also a claim for
breach of contract, which was dismissed. The Employment Tribunal accepted the respondent’s
case save in one respect, where it found that the Claimant had been
victimised. That finding, however, was reversed by the Employment Appeal
Tribunal.
25.
There were then the proceedings involving Brindley Twist. Brindley
Twist’s case was again that the Claimant’s work was unsatisfactory in the same
respects as in fact had been alleged by Sandwell and is now alleged by the
Respondent. After his managers began raising these matters with him, it is
said that he raised complaints of discrimination on the grounds of race and
sex, and victimisation. This led to a compromise agreement, but the compromise
agreement was itself the subject of further dispute and a further allegation of
discrimination by the Claimant. There never was any adjudication upon the
matters that were compromised by the compromise agreement; that is, the
allegations that justified, so it was said, the Respondent’s dismissal of the
Claimant and the allegations made by the Claimant against the Respondent of
discrimination. The disputes after the compromise agreement were in fact
dismissed by the Employment Tribunal; the claims were struck out, as the
Employment Tribunal considered it had no jurisdiction and there was no
reasonable chance of them succeeding. The Claimant was directed to pay £2,500
towards the Respondent’s costs in that case.
26.
Pausing there for one minute, it has to be accepted that the only
previous findings relating to the Claimant’s performance as a legal
consultant and of his allegations of discrimination and victimisation against
his employers was that involving Sandwell in 2000‑2001. The allegations
in the Brindley Twist case remain just that, as, for present purposes, the
allegations in the current case are.
The Employment Tribunal decisions
27.
I now turn to consider the decision of Employment Judge Warren
promulgated on 27 June 2011. On that occasion the Claimant appeared
in person and Mr Price-Rowlands, who has appeared before me, appeared on behalf
of the Respondents. Among other matters the Employment Tribunal had to deal
with the Respondents’ application under rule 18(7)(b). It was asserted
before the Judge that the Claimant’s case against the Respondent followed a
similar pattern to other cases; he was disciplined, and responded by issuing
proceedings with broad and unparticularised allegations of discrimination,
insufficiently particularised to enable the Respondent to respond to them.
Mr Swanson evidently argued that it was inappropriate for his claim to be
struck out; it was fact‑sensitive, and the other cases in which he had
been involved had been dealt with on their own facts. The Employment Judge
considered the law, and in particular the case of Anyanwu v South Bank Students Union
[2001] ICR 391; she referred to rule 18(7)(b); and she also considered the
meaning of the term “scandalous” and that no “reasonable prospect of success”
meant something that was bound to fail, and that an Employment Judge was
entitled to conclude a claim has no prospect of success when the Judge could
not find a causative link between the protected act and the treatment
complained of. Also, a strike‑out could be ordered where there was
little dispute on the key facts, where the only facts disputed were peripheral
or insignificant, or where there was no factual dispute.
28.
The Employment Judge said she had considered the pleadings and the
parties’ arguments. The Claimant, she said, had brought and lost other claims
against earlier employers and had also achieved a settlement in one case, the
terms of which were unknown to her. Although his claim was widely drafted and
extensive in nature, she said:
“5.3. […] it is sufficiently specific for me to identify heads
of claim, and to some degree, both named and hypothetical comparators and
incidents alleged to be discriminatory. There are clear issues of fact to be
decided in relation to all of his claims, with disputed issues between the
named comparators and witnesses.
5.4. In the circumstances I cannot see that it would be
appropriate to strike out any of his claims at this stage as I cannot say that
there have no prospects of success without making decisions on the veracity of
witnesses from whom I have not heard.
5.5. I have also considered whether the fact that the claimant
has brought earlier claims against other respondents, and failed, makes this
claim vexatious or frivolous. I do not see that as the case – each case must
stand or fall on its own merits.”
29.
She then went on to say that she had not seen the pleadings in those
other cases, nor was she party to the decisions in them, and was unaware of the
quality of the evidence put forward:
“5.5. […] The mere fact that the claimant, after his dismissal
from this respondents’ [sic] employ, brings these claims, is insufficient for
me to assume vexation or frivolity on his part.”
30.
She went on then to consider the application for a deposit order, which
she noted she could make if the Claimant’s case had “little” as opposed to “no”
prospect of success. She considered that she could not really take the
Claimant’s previous claim history on the basis of its outcomes because she
would be making an assumption without foundation to say that this case had
little prospect of success based on those facts alone. She factored in the
material she had in relation to the Claimant’s current case, which was highly
fact‑sensitive:
“5.7. […] His account may or may not be preferred by the
tribunal when he has given evidence. If his account is preferred then there
would be facts from which all of the various heads of claim may potentially
succeed.”
31.
She said that she had studied the claim and schedules and could see
assertions based on each head of claim. She asked whether he was likely to be
believed over the Respondents and their witnesses, and without having heard
those witnesses she would be speculating to say one way or the other; she
concluded she could not say that the case had little prospect of success and
therefore did not order a deposit to be paid.
32.
I now turn to the review Judgment, which was promulgated on
20 October 2011. Employment Judge Warren had before her on
that occasion new evidence that the Respondent wished to adduce. Mr Price-Rowlands
again appeared on behalf of the Respondent, with Mr Swanson in person. It
was suggested by Mr Price-Rowlands that the Employment Judge had appeared
at the previous hearing to accept that the Claimant’s case was
incomprehensible, insufficiently pleaded, riddled with irrelevance, unduly
lengthy and confusing, and did not disclose a prima facie case. That certainly
was Mr Price-Rowlands’ case, but I think there must have been a
misunderstanding so far as the Employment Judge was concerned, and I am not
sure that Mr Price Rowlands suggested that that in fact was the view of
the Employment Judge, but it matters not; Mr Price-Rowlands accepted that
that is not what the Employment Judge had said.
33.
The Employment Judge also refers to having been advised by Mr Price-Rowlands
that the Employment Appeal Tribunal accepted it was arguable in law that the
schedule of further and better particulars does not constitute a prima facie
case and remains insufficiently particularised. I think that must be a
reference to the decision of Lady Smith to which I shall refer; again, I
think there must have been a misunderstanding, because the Employment Judge
says:
“The Employment Tribunal has asked, I am advised, that I should
consider this fully and precisely. I have not received any direct
communication to that effect from the Employment Appeal Tribunal.”
34.
Again, I think there must be some misunderstanding there, because
clearly all that had happened at the Employment Appeal Tribunal was that it was
considered at a preliminary hearing that there were matters that should be
investigated at a full hearing of the appeal.
35.
The application for review was dismissed on a number of grounds, in
particular that it had been made out of time. However, I think it helpful to
note that in relation to the so‑called “new” evidence, which was designed
to show that Mr Swanson was a vexatious litigant – not in the technical
sense, but a litigant who made vexatious claims – the Judge concluded that the
evidence could have been obtained with reasonable diligence for the earlier
hearing. It consisted largely of the documents she said she had not seen:
pleadings, witness statements, and suchlike. She considered it was not
appropriate to extend the time to apply for a review, and she considered the
impact of such evidence likely to be minimal. She went on to say that were she
wrong about declining to extend time she would refer to her Judgment:
“The pleadings remain as they were then. I have heard no
argument which persuades me that anything has changed. I considered the
quality of the pleadings and concluded there was sufficient detail for the
respondent to understand the case they faced and to respond to it. This case
is highly fact‑sensitive, with the claimant alleging in particular his
line manager treated him differently to others in the team who were white,
female and younger than him. He gives specific details of actions he describes
as being treated differently. The respondent argues justification for some of
those actions and denies others occurred as described. The only way to resolve
such a conflict is to hear the evidence. Further, the claimant makes specific
reference to requests for adjustments to be made for his disability, which were
denied, and instances of direct and indirect discrimination on the start times
of work, which related, he said, to his disability, again which the Respondent
denies. I have extended these reasons beyond the immediate issue in the light
of my findings to assist the parties by attempting to answer some of the later
questions I was asked to consider.”
36.
HHJ McMullen QC, as I have said, dealt with this matter under rule 3(10).
Judge McMullen considered that the review Judgment was a discretionary Judgment
well within the limits of the Employment Judge’s discretion, and he drew
attention to the relevant authorities overturning the exercise of the
discretion, and in particular that case management decisions give a Judge a
very broad judicial discretion and such decisions should be treated with
deference by the superior courts (see CIBC v Beck
[2009] EWCA Civ 619).
37.
I mentioned at the outset of this Judgment that the Notice of Appeal
came before Lady Smith after it had been initially disposed of by
Judge Pugsley under rule 3(7). Lady Smith indicated that in her
opinion it was fairly arguable that Employment Judge Warren had failed to
give sufficient weight to the nature and extent of the Claimant’s previous
claims with similarities to the instant claims, and it was arguable that there
were reasonable grounds, given what she described as the rambling nature of the
ET1, noting that he, although a litigant in person, had been employed to give
advice on employment law as a senior litigation consultant, and that an adverse
view of him had been taken by the Employment Judge at a costs hearing in the
Brindley Twist case in relation to his CV. She also considered that the
Employment Judge should have considered making a deposit order.
38.
So far as fresh evidence is concerned, during the course of submissions
I indicated to Mr Price-Rowlands that I had read the new material and did
not consider that it added anything to the damaging material that was already
before the Employment Tribunal (the decisions of the Employment Tribunals). I
shall therefore say nothing more about it.
The Notice of Appeal and submissions
39.
I now turn to the Notice of Appeal and Mr Price-Rowlands’
submissions in support. Mr Price-Rowlands put his case on the cumulative
effect of the insufficient particularity of the pleadings, he took me through
the pleadings, and the other matter that I should take account of was the
similarity with the other proceedings. The Claimant, he said, was a vexatious
litigant in the non‑technical sense of the term. The decision in Anyanwu,
to which I shall come, was not authority for the proposition that one could
never apply to strike out a discrimination claim on the basis that there was no
reasonable chance of success. He also submitted that since the introduction of
the reversed burden of proof into discrimination legislation the standard of
the prima facie case required by the Claimant was higher than it had been in
the law as previously understood as a result of the decision of the Court of
Appeal in King v Great Britain‑China Centre
[1992] ICR 516. Mr Price-Rowlands also took me to the 2010 edition of Tolley’s,
then edited by Slade J, at pages 322‑333, as authority for that
proposition. With great respect to Mr Price-Rowlands, I believe he has
misread the passage in Tolley’s. The burden is in fact higher not on
the Claimant but on the Respondent, because unless the Respondent was in a
position to prove that he had no discriminatory intent if a prima facie case of
discrimination is raised from which an inference can be drawn, he has to prove
that the discriminatory intent played no part in the treatment meted out to the
Claimant, and in those circumstances the Employment Tribunal was required to,
as opposed to having a discretion whether to, find that there was a
discriminatory intent.
40.
Mr Price-Rowlands drew my attention to the well‑known cases
of Igen v Wong [2005] IRLR 258 and Madarassy v Namura International
[2007] ICR 867. He submitted that the Claimant had failed to even raise a
prima facie case. I think I can encapsulate his criticisms of the Claimant’s further
and better particulars by saying that they were neither further nor better. He
said that on two occasions the Employment Judge had decided that the further
and better particulars were inadequate, and there had been no change;
therefore, there should have been a strike‑out. It was necessary for the
Claimant to identify what the discrimination was, and he had not done so; there
was no comparator. I again do not consider that that is strictly correct,
because I have already referred to the certain specific references to
Ms Harris and also to the manner in which the schedule is constructed.
The law
41.
I want to say something now about the law. An Employment Judge or
Tribunal has power at any stage of the proceedings to strike out a claim or
response on any of five specified grounds. Thus it may make an order, so far
as is relevant to this case, under rule 18(7)(b):
“[…] striking out or amending all or part of any claim or
response on the grounds it is scandalous or vexatious or has no reasonable
prospect of success.”
42.
I regard the passages in the textbook in Harvey on Industrial Relations
and Employment Law as being of assistance, and I need not go
beyond them. In Balls v Downham Market High School & College [2011] IRLR 217 Lady Smith explained the
nature of the test to be applied when considering whether to strike out a claim
on the ground of no reasonable prospect of success at paragraph 6:
“[…] the tribunal must first consider whether on a careful
consideration of all the available material it can properly conclude that the
claim has no reasonable prospect of success. I stress the word ‘no’
because it shows that the test is not, whether the claimant’s claim is likely
to fail nor is the matter of asking whether it is possible that his claim will
fail. Nor is it a test which can be satisfied by considering what is put
forward by the respondent either in the ET3 or in submissions and deciding
whether their written or oral assertions regarding disputed matters are likely
to be established as facts. It is, in short, a high test. There must be no
reasonable prospects.”
43.
Harvey continues:
“As a general principle, discrimination cases should not be
struck out except in the very clearest circumstances. In [Anyanwu], a
race discrimination case in which preliminary question of law raised through
the cadre of statutory constructions occupied the tribunals and courts on four
occasions, Steyn LJ put forward the proposition against striking out in
terms almost amounting to public policy when he stated at paragraph 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. 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 demerits of its
particular facts is a matter of high public interest.’
Lord Hope of Craighead
stated at paragraph 37:
‘Discrimination issues of the kind that 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 the facts are set 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 the opportunity to lead evidence.’”
44.
I also have in mind the Employment
Appeal Tribunal rule 3.7
“(7) Where it appears to a judge or the Registrar that a notice
of appeal or a document provided under paragraph (5) or (6)–
(a)
discloses no reasonable grounds for bringing the appeal; or
(b) is an
abuse of the Appeal Tribunal’s process or is otherwise likely to obstruct the
just disposal of proceedings,
he shall notify the Appellant or
special advocate accordingly informing him of the reasons for his opinion and,
subject to paragraphs (8) and (10), no further action shall be taken on the
notice of appeal or document provided under paragraph (5) or (6).”
I am not aware of any reported
judicial consideration of this rule.
45.
It may be instructive to compare the position of striking out under the
Employment Tribunal Rules with striking out as provided for in the Civil
Procedure Rules. I note that there is a close affinity between striking out
under CPR 34.2(a), which enables the court to strike out the whole or part of a
statement of case that discloses no reasonable grounds for bringing or
defending a claim overlaps with part 24, on summary Judgment.
Rule 24(2) entitles a court to give summary Judgment against a Claimant or
defendant on a claim or issue where there is no real prospect of succeeding on
the claim or issue, or successfully defending the issue. The notes to
CPR 24 in the White Book make this clear:
“In order to defeat the application for summary Judgment, it is sufficient
for the Respondent to show some prospect; i.e. some chance of success. That
prospect must be real; i.e. the court will disregard prospects that are false,
fanciful or imaginary. The inclusion of the word “real” means the Respondent
has to have a case which is better than merely arguable. The Respondent is not
required to show their case will probably succeed at trial; a case may be held
to have a real prospect of success even if it is improbable. However, in such
a case the court is likely to make a conditional order.”
46.
As I mentioned during the course of submissions, I was struck with some
dicta of Bingham LJ in relation to the old rules relating to summary
Judgment under the rules of the Supreme Court, order 14:
“The high cost of litigation and the premium on holding cash
when interest rates are high greatly increase the attractiveness to commercial
plaintiffs of procedural shortcuts such as are provided by order 14 and
order 29 Rule 12. A technical knockout in the first round is much
more advantageous than a win on points after 15, so plaintiffs are
understandably tempted to seek summary Judgment or interim payment in cases for
which these procedures were never intended. This is a tendency that the courts
have found it necessary to discourage (Home & Overseas Insurance Co v
Mentor Insurance [[1990 1 WLR 153], British & Commonwealth Holdings
v Quadrex [1989] QB 842]). These cases emphasise that order 14 is for clear
cases; that is, cases in which there is no serious material factual dispute of
a legal issue. They are no more than the crisp legal question as well decided
summarily as otherwise. Order 29 Rule 12 enables the court to order
payment to a plaintiff to the extent that a claim, although not actually
admitted, can scarcely be effectively be denied. The procedure is entirely
inappropriate where the plaintiff’s entitlement to recover any sum is the
subject of any serious dispute whether of law or fact. That is not to say in
either case that a defendant with no or no more than a partial defence can
cheat a plaintiff of his just deserts by producing hefty affidavits and
voluminous exhibits to create an illusion of complexity where none exists.
Where the point of issue is at heart a short one, the court will recognise the
fact and act accordingly no matter how bulky its outer garments; but it does
mean that where there are substantial issues of genuine complexity the parties
should prepare for trial, perhaps, as here, with trial of preliminary issues,
rather than dissipate their energy and resources on deceptively attractive
shortcuts.”
47.
In considering this matter I have found it helpful to remind myself of
what a claimant needs to prove in order to succeed in the claim that he has
suffered discrimination or victimisation – which is, I think a form of
discrimination – and this will inform me when I come to consider whether the
Respondents can establish that the Claimant’s case as disclosed in his
pleadings has no reasonable prospect of success. I need go no further than the
Judgment of Elias J, as he then was, in Law Society and Ors v Bahl
[2003] IRLR 640. The following principles can be derived: the onus lies on the
Claimant to establish discrimination in accordance with the normal standard of
proof; there is generally no direct evidence of discrimination, so it is
necessary to draw inferences. You cannot draw an inference of discriminatory
conduct simply from the fact that a Claimant has been subjected to unreasonable
treatment – that is, the Glasgow City Council
v Zafar [1998] IRLR 36 trap – nor can one draw an inference simply
from a difference in colour or ethnicity, or that the victim of unreasonable
treatment has a protected characteristic. The absence of explanation for
unreasonable conduct, on the other hand, may entitle the Tribunal to draw an
inference of discrimination, but it is not then the mere fact of unreasonable
behaviour that entitles the Tribunal to infer discrimination. It is not
unreasonable conduct without more, but rather the fact that there is no reason
advanced for that conduct. It is possible to infer that there may be
discrimination both on grounds of race and sex after considering the evidence
in respect of each, but if the evidence does not satisfy the Tribunal that
there is discrimination on grounds of race or on ground of sex considered
independently, it is not open to a Tribunal to find either claim satisfied on
the basis that there is nonetheless discrimination on grounds of race and sex
when both are taken together.
Discussion and conclusions
48.
It is clear from the rules and authorities that I have referred to that
the burden upon an applicant who seeks to strike out a discrimination claim
under rule 18(7)(b) is a high one and it is necessary to go further than
showing that the case is weak or perhaps unlikely to succeed, but that it has no
reasonable prospect of success.
49.
I would observe, bearing in mind the high cost to employers of
conducting a hearing in the Employment Tribunal not only in terms of its legal
costs but the expense of its employees attending lengthy proceedings (for
example, I note that the Claimant’s claim against Sandwell Borough Council took
some 17 days), there is a temptation to take advantage of a procedural shortcut
to avoid these expenses. As Bingham LJ put it in the passage that I have
cited, “a technical knockout in the first round is much more advantageous than
a win on points after 15”. However, applications to strike out on the basis
that there is no reasonable prospect of success should only be made in the most
obvious and plain cases in which there is no factual dispute and which the
applicant can clearly cross the high threshold of showing that there are no
reasonable prospects of success. Applications that involve prolonged or
extensive study of documents and the assessment of disputed evidence that may
depend on the credibility of the witnesses should not be brought under rule 18(7)(b)
but must be determined at a full hearing. Applications under rule 18(7)(b)
that involve issues of discrimination must be approached with particular caution.
In cases where there are real factual disputes the parties should prepare for a
full hearing rather than dissipate their energy and resources, and those, I
would add, of Employment Tribunals, on deceptively attractive shortcuts. Such
applications should rarely, if ever, involve oral evidence and should be
measured in hours rather than days.
50.
It is accepted by the Respondents that the Claimant’s case of disability
discrimination is sufficiently particularised and will have to go to a
hearing. It also seems to me, although this has not been the subject of
discussion, that the claim for unfair dismissal will have to go forward to a
hearing as the allegations relied upon are sufficiently pleaded. It also seems
that the allegations of victimisation are sufficiently clear to go to a full hearing.
I have cited the principles extracted from Bahl at some length,
because there is a need to ask in relation to discrimination on the basis of
age, sex or race whether on the material pleaded the Claimant might raise a
sufficient case so as to call for a satisfactory explanation from the
Respondent. I am unable to say that it is not arguable that if the Claimant
establishes a significant number of incidents of what might be neutrally
described as unreasonable or unfair treatment, that he is in a small minority
as regards his ethnicity, his sex or his age, and that he has been treated less
favourably than comparators, he may be able to raise an inference of
discriminatory treatment and, in the absence of a satisfactory explanation, to
establish his case. I accept the pleading in relation to age, race and sex
discrimination is not perfect, but it is sufficiently clear what the factual
allegations are, the nature of the alleged discrimination and the identity of
comparators and I am comforted by the fact that the Employment Judge on two
occasions has considered that they are sufficiently clear; after all, she may
well be trying the case.
51.
In my opinion, the effect, cumulatively or on its own, of the other
proceedings referred to by Mr Price-Rowlands is set too high. Of the two
previous cases where complaints had been made by the Claimant there are said to
have been complaints made in relation to the Claimant’s work followed by
complaints about his management. The Claimant then raised allegations of
discrimination. Only one of those cases was fought; the Brindley Twist case
was compromised, so I really do not consider that these cases give sufficient
assistance in terms of adverse findings as to totally destroy the Claimant’s
credibility either, as I have said, viewed on their own or when coupled with
what I would describe as the pleading point. I am unable to say that there is
no reasonable chance of success.
52.
I also bear in mind that the decision of the Employment Judge was
essentially discretionary; the authorities establish that in terms of case
management Employment Judges are given a wide discretion, and courts should be
slow to interfere with the exercise of that discretion unless it can be shown
that the Employment Judge has acted outside the scope of the generous
discretion afforded to him or her.
53.
I have considered whether the Respondents have made out a case on the
lower threshold for the Employment Judge to order a deposit. It seems to me
that that threshold has not been reached either. I wish to point out that I am
saying nothing as to the ultimate merits or strength of the Claimant’s case; I
am merely saying that the Respondents have failed to satisfy me that the
Employment Judge was wrong in declining to strike it out on the grounds it had
no reasonable prospect of success or order that the Claimant pay a deposit on
the grounds there was little prospect of success. It only remains for me to
thank Mr Price-Rowlands and Mr Swanson for their assistance.
