Appeal No. UKEAT/0192/15/RN
UKEAT/0193/15/RN

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

	At the Tribunal
	On 13 November 2015

Before
THE HONOURABLE MR JUSTICE KERR
(SITTING ALONE)

MR D W DAMBAGOLLA	APPELLANT

AUTOMOBILE ASSOCIATION LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR ANDREW HOLMES
(of Counsel)
Instructed by:
Fadiga & Co Solicitors
257-259 Balham High Road
London
SW17 7BD

For the Respondent	MS REHANA AZIB
(of Counsel)
Instructed by:
Dechert LLP Solicitors
160 Queen Victoria Street
London
EC4V 4QQ

SUMMARY
DISABILITY DISCRIMINATION
PRACTICE AND PROCEDURE - Striking-out/dismissal

The Employment Judge erred in law by striking out the Appellant’s disability discrimination claims; there was clear triable issues of fact, including as to the treatment of the Appellant, as compared with that of his five comparators, which were not addressed in the Judgment.

THE HONOURABLE MR JUSTICE KERR 

1.	This is an appeal by leave of HHJ Peter Clark against a decision of Employment Judge James sitting in the Employment Tribunal at Huntingdon in June 2014, when he decided to strike out certain disability discrimination claims including victimisation and harassment, but to allow the unfair dismissal claim of the Claimant to proceed.  The latter claim is stayed to await the outcome of this appeal and is pending.

2.	The Claimant’s case was summarised to me in the following way by Mr Holmes, who appeared for the Claimant (today the Appellant), in a manner that is not accepted by the Respondent.  The Claimant’s case is as follows.  Prior to 2006, having been employed as an AA patrolman since about 1988, he had a disability which was a back problem, and that was recognised by the Respondent, the AA.  Adjustments were made, but in October 2006 when there was a change of management, a new system called VRS (which stands for Vehicle Recovery System) was introduced.  It required more and heavier manual lifting than previously, together with smaller vehicles; and it exacerbated the Claimant’s back problems.  He complained about that and was subjected to performance management.  

3.	The Claimant says that there was an ongoing issue over the following six years, in that he was seeking an adjustment so as not to have to use the VRS and he was asking for changes to the shift patterns; but those adjustments were not made.  The Claimant says that from 2008 onwards a particular management team comprising Mr Garbacz, Mr Manser the regional manager, and a lady called Keri Ace in Human Resourceswere all involved in addressing those issues; and that in the late part of 2009 the Respondent obtained a spinal surgeon’s report which recommended changes to the Claimant’s shift pattern; but those changes were not made and he was not given a copy of the report.

4.	This prolonged contest came to a head in early 2012 when the Claimant raised a grievance about being subjected to performance management of his work and ultimately, that led to the temporary removal of his obligation to use the VRS system, which he considered detrimental to his back.  His shift patterns were changed and the Claimant’s case - which is disputed by the Respondent - is that these managers decided to remove him from the Respondent’s employment.

5.	It is a matter of record that he was dismissed, allegedly for gross misconduct, on 5 November 2012 and that within three months of that date he brought his claims for unfair dismissal and for all five types of disability discrimination, that is to say direct discrimination, discrimination arising from a disability, indirect discrimination, victimisation and harassment.

6.	Ms Azib argued before me today that the manner in which the Claimant put his case before Employment Judge James when the strike out application was heard, was completely different from what I have just summarised; but I do not accept that because it seems to me that the above summary, derived from Mr Holmes’ oral presentation to me today, is consistent with the ET1 grounds and with the passages in the Claimant’s witness statement, to which Mr Holmes took me.  It is also, importantly, consistent with the formulation of the issues by Employment Judge Bloom, to which I am coming in a moment; and is not inconsistent with the agreed chronology of events, which sets out matters of record and undisputed fact.  What interpretation one places on those facts is, of course, a very different matter.  

7.	Employment Judge Bloom, on 23 May 2013 at a case management discussion, set out what he called “The Issues” and, after reciting the disability of the Claimant and the fact that wrongful and unfair dismissal claims were also brought, he set out in summary form his formulation of the Claimant’s case under each of the five separate heads of disability discrimination.  On that occasion the Claimant appeared in person.  He has, in these proceedings, been intermittently in receipt of legal assistance but not all the time.  Having set out the five causes of action, he added at paragraph 11:
“11. In support of many of these allegations the Claimant shall raise the issue that he believes five other patrolmen/servicemen employed by the Respondent were not dismissed notwithstanding the fact that they had committed a similar act which led to the Claimant’s own dismissal.”

8.	The Claimant’s dismissal for alleged gross misconduct had followed an incident in which it was said that he had changed the tyre on a particular AA member’s car and that the tyre had then fallen off; and that the claim made by the Claimant was that five other able-bodied comparators had done something not materially different and escaped any rebuke or dismissal for having done so.  That is, as I understand it, the basis on which the claims are advanced and from which the Claimant invites the Tribunal to draw the inference that the dismissal was discriminatory and that the disciplinary proceedings leading to it formed a part of a discriminatory course of conduct.

9.	There was another case management discussion in December 2013 before Employment Judge Ord, which did not lead to any changes in the formulation of the issues.  Then in February 2014 the Respondent made an application to strike out, at least, the discrimination claims, on various bases which did not include the contention that the claims lacked any reasonable prospect of success.  Instead they focused on alleged non-compliance with various procedural orders, the detail of which does not concern us.
10.	The matter came before Employment Judge Moore, sitting with lay members, on 28 April 2014 and on that date the Full Hearing was postponed, the case being considered not ready for trial.  There were apparent problems with the bundle and Employment Judge Moore and his colleagues declined to hear the full case that day.  He directed, following a request for clarification from the Respondent as recorded in a letter of 3 June 2014, that the listing of an application by the Respondent to strike out the claims or alternatively for a deposit order, should take place and that those should be heard. 

11.	The application to strike out or, in the alternative, for a deposit order, were now brought on the basis that the claim had either no reasonable prospect of success or little reasonable prospect of success, respectively.  hose matters came before Judge James on 5 June 2014.  There was preliminary discussion about the state of the documentation and the Employment Judge was aware that the Claimant was saying he wanted further documents put in the bundle, but he dealt with that issue explicitly at paragraph 8 of his decision and it does not seem to me that anything in this appeal turns on the documentary position as at 5 June when the matter first came before Employment Judge James.

12.	He considered that he had all the necessary materials before him and he pointed out that the documents, with one exception, that the Claimant said were lacking, were in the bundle.  One would expect that all the material needed to determine the application was present.  In any case, it seems to me that it was for the Employment Judge to determine on the documents he had whether the Respondent was able to discharge the burden on it, and he set about doing so.

13.	His first decision, adverse to the Claimant, was sent to the parties on 21 August 2014.  He had heard the matter, as I said, on 5 June and no oral evidence was heard on that day.  Both counsel referred me, for the purpose of this appeal, not to that decision but to a subsequent reconsideration decision which included the material in the first decision and some additions. It is, therefore, possible to deal with the matter today by reference the reconsideration decision.

14.	The reconsideration occurred because, after receiving the first decision, the Claimant obtained help from solicitors who made an application for reconsideration in letters sent in early September 2014.  Firstly, said the solicitors, the Claimant wanted to adduce two further witness statements.  Secondly, he wanted to “amend” the Claimant’s witness statement to include certain matters put forward in the application for reconsideration of the Judgment.  The Employment Judge allowed the former request but not the latter.

15.	In the course of applying for reconsideration, the solicitors said this about the victimisation claim:
“We accept that Victimization has not been properly put forward in the Claimant’s statement.  However from the Notes of CMD dated 23/05/13 it is clear that the acts of Victimization have been identified … as -
(1) Being put through disciplinary process
(2) Dismissal on 01/11/12”.

16.	Pausing there, it seems to me rather odd that an application needs to be made to amend a witness statement since the witness is free to alter the evidence that he gives at the Full Hearing but I do not think anything of substance turns on that point.  It is clear that the un-amended witness statement included passages to which Mr Holmes referred me, which plainly made the case that the five comparators received more favourable treatment than did the Claimant while in a similar situation.

17.	The statement of the solicitors which I have just quoted, was not inconsistent with and seems to me to tally with and mirror the case as put in the ET1 grounds and as formulated by Judge Bloom at the CMD.  Employment Judge James agreed to reconsider his decision.  He made a second decision in reconsidered form and it was sent to the parties on 29 October 2014.  In paragraphs 20 through to 26 the Judge said this about the discrimination claims:
“20. The next claim brought by the Claimant is an assertion that he was subjected to a fifth attempt to dismiss him which was also a second incident of victimisation.  Again the allegation is made out by notes without explanation or commentary.  The whole of the evidence referred to by the Claimant show how his appeal was resolved and how he had a meeting to explain his new productivity targets.  There is nothing to show any attempt to dismiss the Claimant or to demonstrate any basis for a claim of victimisation.  The Tribunal notes that the last incident relied upon in relation to all of the above claims was a meeting with Mr Garbacz on 2nd August 2012.
21. The final claim brought by the Claimant is that his dismissal on 5th November 2012 was unfair.  While the Respondent’s [sic] have not relinquished their application to strike this claim out, they have not pursued it with any significant vigour.  In his statement the Claimant has provided over 30 pages of commentary in relation to his dismissal but he does not make any significant allegation that his dismissal was an act of discrimination.  The Claimant makes a reference to the Respondent using the disciplinary process as an opportunity to dismiss him due to issues related to his disability.  He makes reference to several dismissal plans he alleges were brought by Mr Garbacz in previous years and that it was wrong for him to have been the investigating officer.  He refers to a long history of seeking to dismiss him over 6 years based upon his disability.  Finally he makes a general allegation that his dismissal was an act of continued discrimination.  The notes of the disciplinary process and the appeal do not reveal any reference to any concern regarding Mr Garbacz being appointed as the investigating officer.  The notes of the disciplinary hearing, which have been annotated by the Claimant, make no reference to any suggestion by the Claimant that he was being dismissed for any reason connected with his disability save for a reference to having been suspended on three occasions and subjected to four disciplinary actions in relation to which the Claimant asserted that nothing had been proved.  When the hearing officer sought to pursue these matters he was informed that they were not relevant.  The Claimant set out his grounds of appeal in two letters dated 13 November 2012 and 23 November 2012.  Neither make any reference to Mr Garbacz or make any suggestion that the dismissal was for any reason connected with his disability.  The notes of the appeal hearing, again annotated by the Claimant, make no reference to any suggestion that the dismissal was for any reason connected to the Claimant’s disability.
Decision
22. In relation to all the claims other than the claim of unfair dismissal, the Respondent has made two principal submissions.  First in relation to all the discrimination claims other than that associated with the dismissal they assert that the Tribunal has no jurisdiction to hear those claims they having been filed outside the limitation period specified in s. 113 Equality Act 2010.  In support of this submission they also assert that the acts complained of do not form part of a continuing state of affairs and that it would not be just and equitable to extend the time limited for bringing these claims.  The Tribunal heard submissions from the Claimant but despite reminding the Claimant on more than one occasion that he needed to address the points raised by the Respondent, the Claimant failed to make any cogent submissions that the facts and matters he relied upon formed part of a continuing state of affairs either in the period up to 2nd August 2012 or up to and including his dismissal on 5th November 2012.  Further, the Claimant made no cogent submissions from which it could be found that it would be just and equitable to extend the time limit.
23. The Tribunal accepts the first submission of the Respondent and agrees that the Tribunal does not have jurisdiction to hear the claims relating to discrimination.  The latest event that the Claimant appears to rely upon was on 2nd August 2012.  In accordance with s.133 Equality Act any claim in relation to that incident should have been filed no later than 1st November 2012.  The claims were eventually filed nearly three months later on 31st January 2013.  The Tribunal has reviewed the facts and matters relied upon by the Claimant and while they occasionally overlap in time, they do not form a continuing state of affairs.  The Tribunal finds that it would not be just and equitable to extend the time limit.  The Tribunal concludes that it has no jurisdiction to hear the claims.
24. The second submission made by the Respondent relating to all the claims of discrimination is that there is insufficient substance to the facts and matters relied upon by the Claimant to give rise to any reasonable prospect of success.  In making submissions the Claimant spent considerable time addressing that factual background to his claims without specifically addressing the question of whether they had any reasonable prospect of success.  The Tribunal has reviewed the Claimant’s statement and has sought to establish to facts and matters relied upon by the Claimant.  The lack of commentary or explanation from the Claimant has made this process particularly difficult.  The Tribunal has not been assisted by the [Claimant’s] failure to provide a copy of his statement with proper references to the bundle of documents.
25. The Tribunal accepts the second submission of the Respondent.  The incidents relied upon by the Claimant show a regular implementation of internal procedures to maintain standards; the proper implementation of disciplinary procedures or the proper use of the internal grievance procedures to obtain acceptable outcomes for the Claimant.  As a general comment, if the Respondent was seeking to remove the Claimant because of his injury it seems to have taken a great deal of time and trouble to provide the Claimant with support so that he could retain his job over a period of 20 years.  In addition to not having any jurisdiction in relation to the claims referred to in paragraph 22, the Tribunal concludes that there is no reasonable prospect of succeeding with any of the claims relating to discrimination and they are dismissed.
26. In relation to the claim that the dismissal of the Claimant represents a final act of discrimination because of his disability it is appropriate to make some further comment.  While the Claimant now seeks to assert that the real reason he was dismissed was the fact that he had a disability and that the dismissal represents the end of a campaign of discrimination lasting several years, it is noted that apart from a passing remark the Claimant appears to have made no such arguments during the disciplinary and appeal process.  There was an opportunity to raise these matters during the disciplinary meeting which was not taken up and was dismissed as being not relevant.  Regardless of whether the dismissal was unfair either substantively or procedurally, it would be remarkable if the Respondent had not take [sic] investigatory action once it was aware of the complaint raised by a customer against the Claimant.  It is clear that the reason for commencing an investigation was not merely justified but necessary in order to make a proper response to the customer.  The actions of the Respondent again appear to be the regular exercise of normal investigatory and disciplinary processes.  The Tribunal is satisfied that the Claimant has failed to demonstrate any reasonable prospect of succeeding in his claim that the dismissal was an act of disability discrimination and accordingly that claim is dismissed.”

18.	So the decision remained adverse to the Claimant in relation to his discrimination claims.  He appealed to this Appeal Tribunal and after an initially unfavourable sift decision, the matter came before Judge Peter Clark, who ordered that certain of the grounds should go to a Full Hearing, and they are these.

19.	The first ground is that the Judge failed to identify in his decision the relevant law.  It is common ground that for this purpose the “decision” in question can be taken to be the decision on reconsideration.

20.	Mr Holmes submitted that the Tribunal’s identification of the relevant law was more than concise.  It was economic to the point of being inadequate and erroneous.  It appears at paragraph 2, but there are references elsewhere in the decision to what the law requires.  Paragraph 2 is little more than a list of section numbers of statutes, but it does refer back to the “foregoing paragraph” - paragraph 1 - which refers to the rules on strike out and on deposit orders.

21.	Mr Holmes complains that the Judge did not set out the test for striking out (no reasonable prospects of success); did not state that claims ought only to be struck out in plain and obvious cases; made no reference to the types of discrimination broken down into the five separate causes of action other than by listing the section numbers corresponding to them; and Mr Holmes complained that there was no mention of which party bore the burden is satisfying the Tribunal to the relevant standard and that this mattered because, as we shall see in relation to the second ground, he submits that the Tribunal got that burden the wrong way round.

22.	Ms Azib, for the Respondents, submitted that it was clear from the decision that the Judge had the correct statutory provisions in mind and that when he came to ask himself the questions that the law requires him to ask to determine an application of this kind, he did so correctly; and that he was clearly well aware of the high threshold for a strike out application of this kind.

23.	She submitted, in short, that so far as the law was concerned, the decision was “Meek-compliant” and that it was more important that he applied the right tests than whether he set them out at great length or in short form.  She added that the Respondents’ skeleton argument had made specific reference to case law, in particular on the cases about “conduct extending over a period” (see section 126 of the Equality Act 2010).

24.	In my judgment, the Employment Judge did not do as much as he should have done to identify the relevant law, but whether that mattered is another question.  I agree with Mr Holmes that it is not sufficient to list section numbers in statutes or rules, since that is to identify the source of the law rather than its content.

25.	I think he should have identified and set out what the test is when deciding whether to accede to a Respondent’s application to strike out a claim on the ground that it has no reasonable prospect of success, particularly where the Claimant is unrepresented; and it would have been better if he had added that it was for the Respondent to satisfy him on that score and not for the Claimant to satisfy him of the contrary.

26.	Whether it was incumbent on him to go further and add that striking out should only occur in plain and obvious places is, perhaps, to put his obligation too high although it would not have done any harm to say that.  It is not the law that there is a different test in discrimination cases than other types of claims that come before Employment Tribunals.  I do not immediately see why, if there was an obligation in discrimination cases to state that they should only be struck out in plain and obvious cases, that would not apply equally to all other types of claim brought before the Employment Tribunals.

27.	If the Judge’s treatment of the relevant law were the only defect in his decision, I would not have regarded it as material and I would not have been prepared to set aside the decision on that ground only.

28.	The second ground is this.  Mr Holmes complained that the Judge got the burden the wrong way round and imposed it on the Claimant; that is to say, he had required the Claimant to satisfy the Tribunal that his claims had a reasonable prospect of success rather than, as the law requires, requiring the Respondent to satisfy him that they had no reasonable prospect of success.

29.	Mr Holmes pointed to the use of the words in paragraph 26:
“26. … The Tribunal is satisfied that the Claimant has failed to demonstrate any reasonable prospect of succeeding in his claim that the dismissal was an act of disability discrimination and accordingly that claim is dismissed.”

30.	He pointed to less stark passages in paragraphs 22 and 23, which I have quoted in full already, which he said were an indication that such was the Judge’s erroneous approach.  He added that the language used by the Employment Judge throughout the passages I have quoted, was the language of making findings on the merits rather than applying a summary judgment test.

31.	For the Respondent, Ms Azib disputed the proposition that there was any fault in the Judge’s treatment of the burden, which she accepts lay on her to satisfy the Judge that the claims had no reasonable prospect of success, and not the other way round.  She submitted that the problem lay in the Claimant’s inability at the hearing to meet her submissions, by which she successfully discharged the burden on her.
32.	She submitted that the Judge’s comments relied on by the Claimant needed to be read in the context of the operative paragraphs as a whole and that, on a fair reading of paragraphs 22 to 25, the Employment Judge was alive to where the burden lay and did not wrongly place it on the Claimant.  She said the words “fails to demonstrate” in paragraph 26 referred to the Claimant’s inadequate response at the hearing to the submissions made by her, which successfully enabled her clients to discharge their burden.

33.	I accept Ms Azib’s point that on a strike out application, it is open to a Judge to say that the Respondent has satisfied the Judge the claim has no reasonable prospect of success because the case advanced by the Claimant does not raise facts from which an inference of disability discrimination could be drawn and that if the Respondent makes that submission, and it is accepted, then it is the Respondent who is shouldering the burden and not the Claimant, even though the Claimant is faced with an evidential counter-burden to show some arguable facts that might enable the claim to have, after all, a reasonable prospect of success.

34.	The problem for the Respondent is that that is not, in my judgment, what happened here.  The Judge had before him, on reconsideration of his initial decision, not just the issues formulated by Employment Judge Bloom, which the Respondent accepted were consistent with the Claimant’s case, but also the solicitor’s letter from which I have quoted, which made it clear that the victimisation claim relied on the Claimant being put through the disciplinary process and subsequently dismissed.

35.	It was clear both at the first hearing and at the stage of reconsidering the Judgment that the Claimant’s case included reliance on the five comparators who are not mentioned at all in the decision, either in the first decision, or in the reconsideration decision; nor in any of the notes of the hearing that have been shown to me.  The Employment Judge clearly had before him a case from the Claimant which asked the Tribunal to draw an inference of discrimination from the differential treatment which he said was received by those five able-bodied comparators.

36.	Read in the light of that background, the Employment Judge’s formulation of the burden insofar as it emerges from paragraphs 20 to 26 of the reconsidered decision, is troubling.  Whether the formulation and treatment of the burden in those paragraphs amounts to a material error of law, is in my judgment a finally balanced question and I will return to it.  I think it is necessary to consider the remaining two grounds of the appeal in order to discern whether the decision as a whole is merely flawed immaterially or whether such flaws as are identified are sufficiently grave that it cannot stand.

37.	So I will go on to consider the next ground, which is called ground 4.  Mr Holmes submits that in his decision, the Employment Judge failed to consider and deal with all the allegations of the Claimant as formulated by Employment Judge Bloom in writing following the case management discussion.  He submitted that while all the five causes of action receive mention in the decision, and there is reference to them in the course of setting out some of the antecedent history, the Judge’s treatment of those issues is so cursory as to amount to a failure to deal with them and, thus, a failure to perform the “reasons” obligation in Rule 62 of the Rules of Procedure.

38.	Ms Azib submitted that the Judge did deal in substance with the claims; that the Claimant’s disagreement is with what the Judge said about them; and that it cannot be said that he did not deal with them at all.  I think that is correct.  If one looks at the decision, one sees that the Judge addresses all the causes of action adequately.  The real complaint made by the Claimant is not that he did not do so but about the way in which he did so.  I do not think that ground 4 of the appeal is well founded.

39.	Ground 5 is a perversity allegation.  It is said by Mr Holmes that the decision to strike out the discrimination claims was one that no reasonable Employment Judge could have reached, because no reasonable Employment Judge could have concluded on the material before him or her that they had no reasonable prospect of success.  He argued that the Claimant’s case was and is as summarised above; that it should be kept in mind that overt discrimination is rare; that cross-examination is normally required to determine issues of fact but did not take place; that the Judge effectively tried the case on its merits on the documents.

40.	Mr Holmes said there were incontestably triable issues of fact which required oral evidence and cross-examination before it could be determined whether the Claimant’s case was good or not - namely that management tired of him and determined to be rid of him because of the adjustments he was seeking in relation to his disability.  That is a short and loose paraphrase of the way in which his case is put.

41.	Also, said Mr Holmes, it was his case that there was a continuing discriminatory state of affairs; that adjustments he had requested were not in place at a time when he was performance managed, offered severance and threatened with dismissal without severance pay, at the same time as other allegedly underperforming patrolmen who did not need such adjustments because they were not disabled.  In short, Mr Holmes submitted that this was a classic case where summary judgment was manifestly inappropriate and the matter needed to proceed to trial.

42.	Ms Azib, for the Respondent, reminded me that the threshold of perversity is high and that an appellate tribunal must hesitate long before interfering on the ground of perversity, even if it entertains grave doubts about the quality of the Judgment.  She submitted that the Judgment here was careful and that it was open to the Judge to conclude that “the dismissal as a discriminatory act” point was not arguable.

43.	This was shown, she submitted, by the failed attempt of the Claimant’s solicitors to improve the evidential position between the first decision and the reconsidered decisions in order to make good the missing causative link between the disability and the dismissal.  She pointed to passages in her notes of the hearing in which the Judge had taxed the Claimant to come up with what he, the Claimant, said would make good that missing link.  She reminded me that just because the last act relied upon occurred less than three months before the claim was presented, does not automatically mean that all the claims are necessarily in time and that the Employment Judge could have decided to strike out some of them and not others.

44.	As to the five comparators, she accepted that they are not mentioned in the hearing notes or in the decision, but said that the Judge was entitled to find the case to be so weak in relation the missing link between the disciplinary process and the Claimant’s disability, that that did not matter.  She submitted that the Claimant had not made any proper case as to the role of the dismissing manager, Mr Lambert, and the manager who heard the appeal, Mr Manser, as distinct from the investigating officer, Mr Garbacz; and that there was no proper basis for concluding that the two decision makers had been improperly influence by Mr Garbacz or anyone else.

45.	It seems to me, after considering and reflecting upon those rival contentions, that the Judge’s decision was flawed in the way he dealt with the Respondent’s strike out application.  I have already said that I am troubled by the way he dealt with the question of which party bore the burden of persuading the Tribunal.  That is one factor.

46.	The Judge also, in my judgment, got into difficulty in the way he dealt with the question of whether the claims were in time or out of time, in two respects.

47.	First, he failed to differentiate properly between a finding that a claim is out of time, where the burden is on the Claimant to show either that the claim is in time or that it is just and equitable that time be extended; and a strike-out application, where it is for the Respondent to satisfy the Tribunal that the claim has no reasonable prospect of success for whatever reason.

48.	In principle, that reason could be that the Respondent satisfies the Tribunal that the Claimant would have no reasonable prospect of success, either at trial or at a Preliminary Hearing, of showing that the claim is in time or achieving an extension of time.  However, here the Judge appeared to make a finding that the claim was out of time because he rejected the suggestion that there could have been conduct extending over a period; and the notes make clear that he tasked the Claimant with showing an arguable case that there was conduct extending over a period.

49.	That was a wrong approach.  It led him, in my judgment, into the error of effectively determining on the merits that that the claims were out of time, which is not the same exercise as considering a strike-out application where the burden is on the Respondent to show that, for whatever reason, the claim has no reasonable prospect of success.
50.	The second problem with the Judge’s approach is that in paragraph 23 of the (reconsidered) decision there is a lack of clarity in the way which he expresses the Claimant’s case.  In paragraph 22, towards the end, he said:
“22. … the Claimant failed to make any cogent submissions that the facts and matters he relied upon formed part of a continuing state of affairs either in the period up to 2nd August 2012 or up to and including his dismissal on 5th November 2012. …”

In the next paragraph he said that he accepts the Respondent submission and agrees that:
“23. … the Tribunal does not have jurisdiction to hear the claims relating to discrimination.  The latest event that the Claimant appears to rely upon was on 2nd August 2012. …”

He then concluded that the claim had been brought more than three months after that date.

51.	However, the last detriment relied on by the Claimant was the dismissal in November, not the meeting in August.  The Claimant’s dismissal was said to be an act of victimisation in response to a protected act.  The victimisation claim, at least, is founded on the dismissal being an act of victimisation and that claim, at any rate, cannot be out of time because it was presented less than three months after the dismissal.  The Judge did not deal with that point.

52.	If the Respondent was going to satisfy the Tribunal that any discrimination or victimisation claim founded on the dismissal had no reasonable prospect of success, he would have to do so by some other means than by showing the claims to be out of time, at least in the case of the victimisation claim.

53.	Ms Azib rightly observed, and Mr Holmes did not dispute, that other discrimination claims brought, such as the indirect discrimination claim or the reasonable adjustments claim, could in principle be out of time because any discrimination might have ceased earlier than the dismissal date and more than three months before the claim was presented.

54.	Ms Azib invited me to read the Tribunal decision as having correctly dealt in that way with the way the dismissal was relied upon by the Claimant.  She invited me to read the decision as a decision that the Respondent had satisfied the Tribunal that the discrimination claims, insofar as founded on the dismissal, were either out of time because there was no arguable conduct extending over a period or, in the case of the victimisation claim, because the contended for causative link between the Claimant’s disability and the dismissal was unarguable.

55.	I am, with respect to Ms Azib and the Judge, unable to read the decision in that way.  It is too generous a reading of the decision.  The Judge did not even mention the five able-bodied comparators whose position formed a major plank of the Claimant’s case is, as Judge Bloom’s formulation of the issues makes clear.  There was an invitation to draw an inference of discrimination from the way in which they were treated, by contrast with the treatment of the Claimant.

56.	In my view it was not rational to overlook that part of the Claimant’s case when deciding the strike-out application, and for that main reason, coupled with the other concerns that I have mentioned, I have come to the conclusion that the decision cannot stand.  I am quite satisfied that the strike-out application could not properly have succeeded and, it seems to me, that it falls within limb (b) of Laws LJ’s formulation in Jafri v Lincoln College [2014] ICR 920 at paragraph 21, that is to say it is a case where:
“21. … without the error the result would have been different, but the appeal tribunal is able to conclude what it must have been. …”
57.	In any event, Ms Azib does not seek a remission back in the event that she is, as she has been, unsuccessful in resisting the appeal.  The application to strike-out will, therefore, not be remitted back for redetermination.  Unfortunately, it seems to me, that this was a case in which the Respondent was too successful, and the Employment Judge fell into the error of conducting something close to a mini-trial of the facts on the basis of the documents.

58.	It is regrettable that the attempted short cut has led to substantial delay in the disposal of what is already quite an old case, particularly given that the unfair dismissal claim would always have to be heard in any event and will cover much, if not all, of the same evidential ground.  Parties and tribunals alike should think long and hard before attempting such procedural shortcuts.  Tribunals should be encouraged to deal with them in short order and not at such length as this one was.

59.	It was obvious that there were triable issues on the discrimination claims and that the issues aired at the strike-out hearing were properly ones for trial.  It ought not to have taken long to realise that and to say so.  The deposit order application remains undetermined but I am helpfully told by Ms Azib that it is not going to be pursued and there is, therefore, no need for any remission in any event.  So, I will simply set aside the Judgment and the reconsidered Judgment and allow the appeal.

60.	I will just mention for the record that the learned Judge, when deciding to allow the matter to go forward for a Full Hearing, clearly did not intend (as his Judgment makes clear) ground 2B of the grounds of appeal, as they then stood, to go forward to a Full Hearing.  Mr Holmes helpfully and properly accepted that and pointed it out in his skeleton argument.  I, therefore, have not determined ground 2B and Mr Holmes did not pursue it.