Appeal No. UKEAT/0251/12/SM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 28 February 2013

Before
HIS HONOUR JUDGE SHANKS
(SITTING ALONE)

MR M ROGERS	APPELLANT

DEPARTMENT FOR BUSINESS, INDUSTRY & SKILLS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR SAMI RAHMAN
(of Counsel)
Instructed by:
Follett Stock
6th Floor
25 Marsh Street
Bristol
BS1 4AQ
	
For the Respondent	MR DAVID MITCHELL
(of Counsel)
Instructed by:
Treasury Solicitor’s Department
One Kemble Street
London
WC2B 4TS

SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal

The Employment Judge found that Claimant’s discrimination claim had been automatically struck out for failure to comply with an unless order and struck out his unfair dismissal claim on the basis that it had no reasonable prospects of success.

The unless order did not specify sufficiently clearly the consequences of failure to comply with the unless order.

The EJ ought not to have acceded to the application to strike out the unfair dismissal claim because the onus was on the Respondent to show the reason for dismissal and the facts were in dispute.

HIS HONOUR JUDGE SHANKS 

1.	This is an appeal by the Claimant against decisions made on a pre-hearing review at the London Central Employment Tribunal on 11 January 2012.  Various grounds of appeal were allowed to proceed on 13 August 2012 by HHJ David Richardson.  

2.	The Claimant today is represented by Mr Rahman, although he was previously acting in person.  The Respondents are represented by Mr David Mitchell who has appeared for them throughout the proceedings in the Employment Tribunal. 

3.	The Employment Judge decided at the pre-hearing review first that complaints of race, age and sex discrimination had automatically been struck out on 2 November 2011 by virtue of an unless order made on 12 October 2011 which she decided the Claimant had not complied with and, secondly that a complaint of unfair dismissal should be struck out as having no reasonable prospects of success.  She also decided that any complaints of discrimination were effectively out of time and therefore would have been struck out on jurisdictional grounds in any event.

4.	The background is as follows.  The Claimant is a black male of African origin born in 1946.  He worked for the Department of Business from 1 April 2004 until 30 July 2010 when he was dismissed for poor performance.  In May 2009 it had been suggested by his line manager, Mrs Elaine Morgan, that he should start on a PIP, which is a Personal Improvement Plan, and in October 2009 he was indeed put on such a plan but he did not co-operate with it at any stage because he said that there was nothing wrong with his performance and therefore no reason for him to participate in a PIP. 

5.	On 29 October 2010 he submitted an ET1 form to start a claim, that date being at the very end of the three-month period after the effective date of termination of his employment.  The ET1 document, which is in my bundle at pages 21 to 27, is extremely vague and unsatisfactory.  In section 5 the following boxes are ticked: the one that says, “I was unfairly dismissed”, the one that says, “I was discriminated against on grounds of race” and, “age” but the box headed “sex” was not ticked.  Under paragraph 5.2, which is where one is supposed to put details of the claim, there is some text which is confusing and somewhat discursive, but there are two sentences in the paragraph 5.2 box which Mr Rahman has drawn to my attention and which he says makes the position reasonably clear.  Those two sentences are:

“First of all I have been treated unfairly and less favourably because of being a black male African.  The performance improvement plan was a discriminatory and unlawful order.”

6.	The Respondent Department served an ET3, which is at page 23 to 40.  In those pages there are detailed, comprehensive and, I am bound to say, compelling details of the Claimant’s employment history and the background to his dismissal.  It is clear from those particulars that the PIP which was imposed in October 2009 was what led in due course to the referral by Elaine Morgan, who I have already mentioned, to a Mr Mark Smith who was a senior civil servant who was the person that made the decision to dismiss the Claimant on 30 July 2010.  So the causative link between the PIP and the dismissal, even if it does not appear very clearly from the ET1, is reasonably clear when that document is read with the ET3 and Mr Rahman says today that looking at the claim in the round it is clear that what the Claimant is saying is that dismissal on 30 July 2010 was unfair and that against the background a PIP which had been imposed in a discriminatory way, the dismissal is also discriminatory, and he relies on all three heads of discrimination, namely age, race and sex.

7.	On 16 August 2011 there was a case management discussion in front of Mr Sigsworth, one of the Employment Judges at London Central.  He ordered that the Claimant should serve some further and better particulars of his claim by 30 August 2011 and that he should identify each incident of bullying, harassment and humiliation relied on giving the date or approximate date, who was involved and the gist of what was said or done or not done, and that comparators should be identified.  He directed that the Claimant should focus on the most recent and most serious allegations and that the particulars should not exceed two pages of A4 and that he should not raise new allegations not referred to in the claim form.  It is fair to say that the claim form, from which I have only read two sentences, is full of vague allegations and that it might have been difficult to identify whether something was a particular of something that had already been raised or a new allegation.

8.	It seems that the Claimant did supply some particulars which were regarded as unsatisfactory and there was a pre-hearing review/case management discussion held in front of a different Judge, Mrs Isaacson this time, on 12 October 2011.  She made various orders, which I will come to in a moment, but she also said that a hearing of the case should take place at the Regional Office at Victory House on 13 February 2012 with a time estimate of five days.  It is regrettable in a way that that hearing did not just take place and then everything might have been resolved many, many months ago.  But it did not and, as I say, she made other orders.

9.	First in schedule A at my page 42, she said that the issues at the pre-hearing review that she was dealing with were, first, whether the claims or any of them are brought out of time and if so whether the Tribunal has jurisdiction to hear them.  And in relation to that issue she recorded that as the dismissal itself was within time and as it is still not clear what are the acts of discrimination complained of by the Claimant, the issue of whether the other claims are out of time should be a matter to be decided by a full Tribunal having heard all the evidence.  The second issue identified was whether the claims or any of them have no reasonable prospect of success and whether they should be struck out and so far as that was concerned she said that the Respondent should have liberty to apply for a further pre-hearing review on whether the claim should indeed be struck out on the basis they did not have any reasonable prospects of success or whether a deposit order should be made on the basis that they had little prospect of success.  

10.	She also made an unless order which is the subject of today’s appeal which is at page 45 in my bundle:

“Unless the Claimant provides the following further and better particulars of his claims for unfair dismissal, race, sex and age discrimination on or before the 2nd November 2011 the whole or part of his claims will be struck out.  A copy of the further and better particulars must be sent to the Tribunal and a copy to the Respondent’s representative.”

There follow details as to what the discrimination particulars should comprise, which I need not read in this stage, and then there is something about unfair dismissal which says:

“In relation to the claim for unfair dismissal; the Claimant needs to set out in separate numbered paragraphs why he says the decision of Mr Smith was unfair and any other reasons he alleges that his dismissal was procedurally unfair or generally felt it was unfair.”

There is then provision for the Respondent to serve an amended Response.  And then there were a number of other directions with a view to the hearing which had been scheduled, as I say, for 13 February 2012.

11.	On 2 November 2011 the Claimant served a document which is at pages 49 to 61 in my bundle which was clearly designed to comply with the unless order.  Pages 49 to 58 appear to deal with the discrimination claims and they have been criticised by the Employment Judge who struck out the claims on 11 January, Judge Grewal, at her paragraph 9.  She criticised them in particular for the lack of dates but also for a number of other reasons, and as far as I can see those criticisms appear to be justified.  At page 59 was a document headed, “Claim for Unfair Dismissal” which had an introduction along the these lines:

“I was surprised and deeply shocked that when Elaine Morgan presented the two options for dismissal or downgrading, Mr Mark Smith chose to dismiss me without any personal investigations on the validity of information presented to him.  There was information that he should have been looking for which was missing but he chose to act on irrelevant information.  There is imperfect understanding of performance for most people.  BIS, however, identifies performance to have two criteria - achievement against objectives and personal effectiveness to consider.  Also I believed Mark should have investigated into the causes and effects of the proposed poor performance.  Mark Smith’s decision was unfair because he could not have genuinely and reasonably believed that I was a poor performer when for example, he saw me working behind him in the section up to 8.30 pm every night while others in the Law Clerk Section were long gone home.  Also equally no proper investigations were made even though I had taken grievance procedures against the Personal Improvement Plan instigated by no one in my Line of Command.  Therefore, it cannot pass the reasonableness test: ERA 1996 s98(4).  Mark Smith would have had to consider BERR/BIS staff guidance on what is poor performance.  In addition to this I am considering: the Nolan Report, Hampel Report and COSO’s Enterprise Risk Management Framework among others.”

He then makes various other points which I need not read.  

12.	On 17 November 2011 the Respondents wrote to the Employment Tribunal saying that the Claimant had not complied with the unless order and seeking confirmation that that was so and that his claim or claims were therefore struck out.  Clearly on the face of it whether or not he had complied with the order was a matter for debate.  As I have already said the criticisms made by the Employment Judge of the particulars of the discrimination claims were almost certainly justified but some analysis and some debate were nevertheless required as to whether he had or had not complied with the order; given that the document served was a substantial one this could not just be deduced from the face of the document.

13.	In response to the Respondent’s letter, which had obviously come to his attention, the Claimant served another lot of particulars which are at page 62 in the bundle and which represent a slight improvement at least insofar as they have some dates attached to various matters.  In any event, a pre-hearing review was arranged for 11 January 2012, which is the hearing that has led to this appeal.  The notice of that hearing is at page 73 in my bundle and it informs the parties that the matters to be clarified and, if appropriate, decided at the PHR are, 1) whether the Tribunal has jurisdiction to hear the claims that are significantly out of time; 2) whether the claims have no reasonable prospect of success and; 3) whether in the alternative the Claimant should be required to pay a deposit to continue with these proceedings.  It is notable that there is no mention of strike out or unless orders.

14.	At the hearing on 11 January 2012 the Respondent argued that the unless order had not been complied with in relation to the discrimination claims and the Judge agreed with that and struck out those claims.  The Claimant pointed out that this argument was not mentioned in the notice that I have just referred to but the Employment Judge said that since the effect of an unless order being breached was automatic and that all she was being asked to do was to confirm something that had already happened, she would proceed to consider the issue of whether the unless order had or had not been complied with.  She did so, came to view that it had not been complied with at paragraph 18 of her Reasons and therefore recorded that the discrimination claims had been struck on 2 November 2011.

15.	She then proceeded to consider the other matters: she said at paragraph 19 that the discrimination claims were out of time in any event because the latest act complained was, she said, in May 2009 when there was a decision was made that the Claimant should be put on a PIP; and she found at paragraph 20 that the unfair dismissal claim had no reasonable prospects of success.  I deal first with the unless order, then with the discrimination claims and time, and then with the unfair dismissal claim and no reasonable prospects.

16.	So far as the unless order is concerned it seems to me that the Employment Judge’s decision really cannot be supported for two reason.  First, the order, which I have already read out, is just not clear as to the consequences of a failure to comply.  I was referred to rule 13(2) of the Tribunal Rules which provides:

“An order may also provide that unless the order is complied with the claim, or as the case may be the response, shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under Rule 19 or hold a pre-hearing review or Hearing.”

The order in question in this case does not say that the claim shall be struck out, it says the whole or part of his claims will be struck out.  It seems to me that that leaves things hopelessly ambiguous as to what is to happen.  It is also notable, although perhaps not fatal, that the order does not say in terms, “… on the date of non-compliance and without further consideration of the proceedings or the need to give notice” as rule 13(2) contemplates.  It seems to me that an unless order, having draconian consequences, must record exactly what is going to happen if it is not complied with and this one unfortunately was ambiguous although one can speculate and probably guess accurately what it was the Employment Judge was trying to achieve.  The order on its face just is not clear enough, so I am afraid it was wrong to conclude that any claim had automatically been struck out as a consequence of any failure to comply with the unless order.  

17.	The second reason I do not think the decision can be supported is that the Claimant was not given proper notice that the hearing that he was about to attend was to concern itself with this issue, although he may have had an idea from the correspondence.  This is because either the hearing was one at which a discretionary strike out was going to be considered, and if that was the case the rule 18(6) expressly states that notice is to be given.  Or, if the hearing was not to consider a discretionary strike out, it is clear that it was nevertheless necessary to resolve at a hearing the issue of whether or not the Claimant had complied with the unless order in substance or whether he partly complied and what the consequences of that might be, and if there was to be a hearing to consider that it seems to me he ought to have been given some kind of notice that that was the purpose of the hearing.  As I have already mentioned, a submission was made by the Claimant along these lines which is recorded at paragraph 16 of the Judgment on page 9 of my bundle where the Judge says:

“The Claimant argued that I could not deal with the issue of compliance with the “unless order” as it was not a matter listed for determination in the notice sent out for the pre-hearing review.  I explained to the Claimant that it was not up to the Tribunal to determine whether to strike for failure to comply with an “unless order”.  The effect of non-compliance was that the claim was automatically struck out on the date of non-compliance.  All that the Respondent was asking me to do was to confirm that the discrimination claims had been struck out on 2 November because the Claimant had not given all the particulars that he had been ordered to give.  The Claimant submitted that he had complied with the “unless order”, I indicated to the parties that as there was a dispute between them I would have to determine firstly whether there had been a failure to comply with the “unless order”.

The learned Judge was right to say that if she decided that the Claimant had failed to comply the claims were (arguably) automatically struck out, but the problem was that there was a real dispute whether or not the Claimant had complied.  That was something arguable which deserved to be argued and in my view therefore there had to be some kind of notice that that was going to be dealt with.

18.	The Appellant Claimant also says in this appeal that he did substantially comply with the unless order.  I am not going to rule on that matter because it seems to me the two points I have already mentioned mean that the strike out cannot be supported.  However, I suspect that the Judge’s decision, which I have already recorded at paragraphs 9 and 18, was made on reasonable grounds and that that ground of appeal, namely that he had substantially complied would have been very unlikely to succeed.  That is the unless order.

19.	Then I turn to the discrimination claims which were struck out for being out of time and a decision was made at paragraph 19 where the learned Judge said (at page 10 of my bundle):

“However, in case I am wrong in reaching that conclusion, I have considered the Respondent’s alternative submission that the Tribunal does not have jurisdiction to hear the complaints of discrimination because they are out of time.  The claim form was presented on 29 October 2010 and the complaints of discrimination could only be in time if there was an act of discrimination on 30 July 2010 or thereafter, or a continuing act that ended on or after that date.  The only act that took place on 30 July 2010 is the Claimant’s dismissal by Mr Smith.  The Claimant has not said in his claim form or the particulars that he provided after the first CMD and on 2 November 2011 that the dismissal by Mr Smith on that date was an act of discrimination.  The date 30 July 2011 does not appear in the particulars provided on 2 November 2011, nor does Mr Smith’s name as an alleged discriminator.  In fact he does not appear to have complained about the conduct of the PIP as being an act of discrimination.  The latest act of which he appears to have complained is the decision to start a PIP in May 2009.  It is my conclusion that the Claimant’s complaints of discrimination, to the extent that they have been particularised, are out of time.”

So far as that is concerned, the first point is the dismissal was on 30 July 2010.  It is arguable that that dismissal, as I have already mentioned, was the culmination of the PIP process and that that PIP process was itself alleged to be the result of discrimination.  I accept that that is giving a fairly generous reading to the claims by the Claimant but that was certainly arguable.  If that was right then there was a claim that the dismissal, which was within time, was itself an act of discrimination.  The second point is that in any event the PIP may have started in May 2009 but on any view it was still going on at the date when the Claimant was dismissed so there was a continuing course of conduct.  The third point in relation to time was that there is nothing to indicate that any consideration was given to an extension on the basis that it would be just and equitable.  The Claimant may not have asked for this and it is probably very likely that he would not have got it if he had but the fact is that given that he was a litigant in person it seems to me it was behoven on the Employment Tribunal at least to raise the point.  

20.	So for those reasons, in my judgment, the decision on time cannot stand either.  However I should say for the future conduct of this case that it seems clear to me that if there any claims which allege specific acts of detriment taking place before July 2010 which have not yet been articulated, they really would have no chance of being considered to be in time and Mr Rahman has indicated today that the only claim that he proposes to pursue on his client’s behalf is one based on a course of conduct based on the PIP culminating in the dismissal.  I am not sure that he has absolutely committed himself to that or if he is in a position to do so, but he has certainly indicated that that is the only basis for claims to be pursued.

21.	Then we come to the unfair dismissal which the learned Judge found to have no reasonable prospects of success; she says at paragraph 20 on my page 10:

“I finally considered whether it could be said that the complaint of unfair dismissal has no reasonable prospect of success.  The Claimant’s case in essence is that there was nothing wrong with his performance and that the PIP was not merited.  In those circumstances, he was entitled not to co-operate with it and, although the documentary evidence before Mr Smith was quite clear, he should have embarked on a long investigation.”  

I am not sure that the Claimant would concede that the evidence before Mr Smith was quite clear, although the learned Judge says that in paragraph 20.  She goes on:

“The Claimant raised these points before Mr Smith.  Mr Smith looked at the appraisals and considered carefully what the Claimant had said.  He concluded that the Claimant’s assessment of his competence was flawed and that the assessments by his line managers and the conclusions of his appraisals were justified.  In light of the fact that two different managers and two countersigning officers had expressed the same view about the Claimant’s performance over a period of three years and that the Claimant had not challenged two of the appraisals it is not entirely surprising that Mr Smith came to the conclusion that he did.  In those circumstances I do not see how the Claimant could persuade any tribunal that Mr Smith should have conducted further investigations or that he could not have reached the conclusions that he did.  In light of the clear documented evidence of poor performance over a long period, the number and diversity of individuals involved (in terms of gender and race) and the Claimant’s failure to engage in any way with the PIP and the procedural steps that were followed, I feel that this is one of those rare cases where a Tribunal can say at this stage that the complaint of unfair dismissal has no prospect of success.”

22.	In relation to striking out claims as having no prospect of success I was referred to the case of Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 and a passage from the Judgment of Maurice-Kay LJ which says this:

“29. It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence.  It was an error of law for the Employment Tribunal to decide otherwise.  In essence that is what Elias J held.  I do not consider that he put an unwarranted gloss on the words “no reasonable prospect of success”.  It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute.  An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation.  The present case does not approach that level.”

And I was also referred to a case called Balls decided at this Tribunal on 15 November 2010 by Smith J who in paragraph 6 said:

“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 in 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.”

Mr Rahman also reminds me that in a claim for unfair dismissal the burden is on the Respondent initially to show the reason for the dismissal. 

23.	At the hearing on 11 January 2012 there was no evidence from either side.  Certainly Mr Smith was not there and was not cross-examined.  It may be that there was a bundle of documents: I was told that at some stage a 300 page bundle was prepared and shown to some of the Judges dealing with preliminary matters but I am not clear if that was before the Judge on this occasion.  In any event, it seems to me that most of what is in paragraph 20 comes from the ET3, which, although a compelling document, is a pleading.  In particular, it seems to me very difficult to see how the learned Judge could have concluded that Mr Smith looked at appraisals and considered carefully what the Claimant had said without hearing evidence from Mr Smith.

24.	Looking at the picture in the round and reminding myself of the paragraph from Ezsias and the few sentences from the Balls case, it seems to me that it was not appropriate in this case for the Employment Judge to proceed in the way she did and to strike out the claim as having no reasonable prospect of success.  There were facts in dispute, the onus to show a reason for dismissal was still on the Respondent and it seems to me that it was necessary for a full hearing to take place to resolve the factual issues and decide the case.

25.	In those circumstances, the appeal must succeed and the orders made at page 1 of my bundle by the Employment Tribunal on 11 January 2012 must be set aside and, unfortunately, the matter will have to be referred back to the London Central Employment Tribunal.  I would suggest that initially there should be a hearing, either a case management discussion or a pre-hearing review, so that everything can be put in order.  I hope that Mr Rahman will be instructed and able to attend although, of course, it is entirely up to the Claimant what he does about that.  I would anticipate that at that hearing the parties and the Employment Judge will be able to agree the precise scope of what is being claimed and I hope that that can be set out clearly and confined, as I have already indicated, to the dismissal and the PIP as a continuing process.  As I have already indicated it seems to me very likely that any other claims are out of time and thus outside the jurisdiction of the Tribunal; if the Claimant is still saying there are such claims in play it seems to me he must notify the Tribunal well in advance so that rulings can be made on that.  The second thing can happen at such a hearing is that the Respondent can apply, as they said they were going to do long ago, for a deposit order on the basis that the claims stand little prospect of success.  The third thing that can happen is that the case can be set down for a substantive hearing as had originally been contemplated. 

26.	I should say before leaving this appeal that I have very considerable sympathy with the various Employment Judges who have had to deal with this case.  It has clearly been frustrating and difficult to deal with and it has been unclear what is being claimed and the claims are not obviously meritorious.  However, I think it would have been better if the case had proceeded as originally contemplated to a substantive hearing rather than got “bogged down” in procedural matters, as is often the case.