Ezsias v North Glamorgan National Health Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Ward,Lord Justice Moore-Bick |
| Judgment Date | 07 March 2007 |
| Neutral Citation | [2007] EWCA Civ 330 |
| Docket Number | Case No: A2/2006/1785 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2007 |
[2007] EWCA Civ 330
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Maurice Kay and
Lord Justice Moore-Bick
Case No: A2/2006/1785
MR PITT-PAYNE (instructed by Messrs Eversheds) appeared on behalf of the Appellant.
THE RESPONDENT APPEARED IN PERSON.
Mr Ezsias is an oral and maxillofacial surgeon. He was employed by North Glamorgan NHS Trust (“the Trust”) from 1 July 1998 until he was summarily dismissed on 1 February 2005. Three days later he commenced proceedings in the Employment Tribunal. He claimed that his dismissal was automatically unfair pursuant to Section 103(a) of the Employment Rights Act 1996 because the reason for it was that he had made protected disclosures; in other words, because he was in common parlance “a whistleblower”. Moreover he claimed that it was unfair on conventional grounds pursuant to Section 98 of the 1996 Act. The case for the Trust is that the true reason for the dismissal was that Mr Ezsias was responsible for a breakdown of relationships in his department and within the Trust such that the employment relationship could not continue and that it had been fairly terminated.
From the outset the Trust contended that the proceedings in the Employment Tribunal were totally without merit and it sought the procedural protections available to a respondent employer in such circumstances. The protections available under the Employment Tribunal Rules of Procedure 2004 are:
1. In a case which a chairman at a pre-hearing review considers to have “little prospect of success”, an order that the applicant pays a deposit not exceeding £500 as a condition of being permitted to continue to take part in the proceedings—rule 20.
Or more seriously:
2. The striking out of all or any part of the claim on the grounds that it is scandalous or vexatious or has no reasonable prospect of success—rule 18(7).
Although I have described these protections in terms availing a respondent's employer, in principle they may also avail an applicant if he can show that the respondent's case has little or no reasonable prospect of success. Experience shows that cases such as the one brought by Mr Ezsias in the Employment Tribunal can make substantial demands on management time and resources with only a limited prospect of recovering litigation costs from an unsuccessful applicant after trial. The limitation is that the Employment Tribunal can only award costs against an applicant or respondent who has brought or conducted the proceedings vexatiously, abusively, disruptively or otherwise unreasonably, or where the bringing or conducting of the proceedings has been misconceived—rules 40 and 44. In these circumstances it is not surprising that employers in particular frequently seek the protections available under rules 18 and 20.
The present case brings into focus the difficulties and tensions which can accompany their applications for summary justice. To state the obvious, an Employment Tribunal should be alert to provide protection in the face of an application that has little or no reasonable prospect of success but it must also exercise appropriate caution before making an order that will prevent an employee from proceeding to trial in a case which on the face of the papers involves serious and sensitive issues.
On 7 July 2005 there was a pre-hearing review before the chair of the Employment Tribunal sitting alone. It had been sought by the Trust. The sole issue of which Mr Ezsias had been given notice related to an application for a deposit under rule 20. Before such an order can be made the Employment Tribunal must be satisfied that the person against whom it is sought has the ability to pay the sum in question—rule 20(2). Failure to pay the ordered sum within the specified time will result in the claim being struck out—rule 20(4). The outcome of the hearing on 7 July 2005 was the promulgation of a document dated 20 July 2005. Under the heading, “Judgment of the Employment Tribunal” it stated:
“In my opinion the contentions put forward by the claimant have no reasonable prospect of success. The case will be re-listed to consider the question of means and/or the respondent's application for a striking out order.”
This led Mr Ezsias to lodge an appeal with the Employment Appeal Tribunal although at that time such an appeal would have been premature because the Employment Tribunal had not made a final order for a deposit and had made no order on the strike out application save that it be re-listed. On 15 August 2005 the Employment Tribunal gave notice of a hearing to take place on 9 September for consideration of Mr Ezsias's means and the Trust's strike out application. At the hearing on 9 September the chair, who knew by then of Mr Ezsias's proposed appeal to the Employment Appeal Tribunal in relation to the earlier hearing referred to the document of 20 July as containing a “clerical error” in that it should not have been described on its face as a judgment. She went on to say:
“It is clear from the opinion and reasons that there was no finding of fact, no decision on a point of law, no order and no judgment.”
On 14 September she signed a certificate of correction under rule 37(1) deleting the word “judgment” from the document of 20 July. Also, having heard counsel for the Trust and Mr Ezsias in person on 9 September she struck out Mr Ezsias's entire application on the basis that it had no reasonable prospect of success. As a result the application for a deposit fell away. In due course Mr Ezsias brought a proper appeal before the Employment Appeal Tribunal. On 25 July 2006 the president, Elias J, sitting alone allowed Mr Ezsias's appeal and held that:
“1. The decision of the Employment Tribunal at the hearing on 9 September 2005 was vitiated by apparent but not actual bias on the part of the chair; and
2. In any event this was not an appropriate case for the use of the strike out power under rule 18(7).”
There is now before this court an appeal by the Trust brought with the permission of Sir Henry Brooke which seeks to challenge both parts of the judgment and order of Elias J. Before I turn to the two issues it is necessary to say a little more about the factual cases which the parties seek to advance. Mr Ezsias's case is that between 1999 and 2002 he made a number of complaints about his colleagues and about shortcomings in the way in which the department was run. He alleged fraud on the part of two colleagues and dereliction of duties affecting patient care, incompetence, and inadequacy on the part of the same and other colleagues. He claimed that the safety and treatment of patients was being jeopardised. The case for the Trust is that over a period of time relations between Mr Ezsias and certain colleagues had broken down and that it was this rather than any whistleblowing by Mr Ezsias that had resulted in his suspension in April 2003 and eventual dismissal after full inquiry in February 2005.
At the heart of the Trust's case is a document dated February 2003. It is in the form of a letter addressed to the chief executive of the Trust and it is in these terms:
“All the senior members of the maxillofacial department within the three district general hospitals wish to register their grave concerns in regard to the lack of progress that has been made in resolving a large number of outstanding issues concerning Mr Ezsias. There is a complete lack of confidence in and a total breakdown of the relationships between this consultant and the senior staff within the department. This has significant effects on the service provision and the quality of care provided to patients within the hospitals. We all seek urgent confirmation that immediate progress will be made to redress these issues before a complete breakdown of the services results.”
Nine people signed the document. They included the two colleagues in respect of whom Mr Ezsias had previously made allegations of fraud, and others who were affected by his other allegations. Although the document is dated February 2003, Mr Ezsias asserts that it was not brought to his attention until after he was suspended two months later. He disputes the date of the document and challenges the good faith of some or all of the signatories.
I now return to the decision of the Employment Tribunal. The first document promulgated by the chair and dated 20 July 2005 requires more detailed citation. Following the initial summary which I have already set out, under the heading of “Public Interest Disclosure” the chair stated:
“I am of the opinion that the claim not merely has 'little prospect of success' but that it has no reasonable prospect of success for the following reasons.”
She then set out a number of reasons. Some of them raise points of law which, as I shall later state, fell away as matters for consideration on this appeal. Later, addressing the merits overall, she said:
“The whistleblowing claim would have no reasonable prospect of success in my view in that the tribunal would go on to find that the principal reason for dismissal was not that the claimant had made a protected disclosure but that he was dismissed for 'some other substantial reason' within the meaning of Section 98 of the 1996 Act, namely irretrievable breakdown of the relationship of trust and confidence. In the light of the letter from all the claimant's nine colleagues asserting irretrievable breakdown of trust and confidence, together with...
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