Mr Ashok Ahir v British Airways Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice McFarlane |
| Judgment Date | 18 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1392 |
| Docket Number | Case No: A2-2016-1846 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2017 |
[2017] EWCA Civ 1392
IN THE COURT OF APPEAL
CIVIL DIVISION
Courtroom No. 73
Room E311
The Royal Courts of Justice
Strand
London
WC2A 2LL
The Right Honourable Lord Justice McFarlane
The Right Honourable Lord Justice Underhill
Case No: A2-2016-1846
Mr A Allen (instructed through the Bar Pro Bono Unit) appeared on behalf of the Appellant
Mr A Burns QC (instructed by Harrison Clark Rickerbys Limited) appeared on behalf of the Respondent
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This is an appeal from a decision of the Employment Appeal Tribunal (HH Judge Eady QC sitting alone) dated 15 April 2016 dismissing an appeal from a decision of Employment Judge Gumbiti-Zimuto. That decision was to strike out various claims brought by the appellant against the respondent.
The essential factual background is helpfully summarised at paragraphs 4–7 of the decision of the EAT as follows:
'4. The Claimant had been employed by the Respondent as part of its ground staff on a series of fixed-term contracts. In 2013, he brought an ET claim against the Respondent, under the 2002 Regulations and of victimisation for having raised a grievance in respect of those complaints. The ET dismissed those complaints, and made an order for costs against him.
'5. From 8 October 2013, the Claimant was employed by the Respondent on a fixed-term contract to work airside as a ramp agent. In December 2013, he unsuccessfully applied to be made permanent. Unhappy with that outcome, on 15 January 2014, the Claimant raised a grievance, alleging he was not given permanent employment because of his earlier ET claim.
'6. On 18 January, an incident occurred involving the Claimant, as a result of which another employee made a complaint about him. At a meeting the next day, the Claimant made a complaint about the other employee, saying she had made comments amounting to racial harassment. He contended he was told the matter would be investigated but the Respondent said the Claimant withdrew the allegation and it was agreed no further action would be taken.
'7. On 28 January, the Claimant was suspended pending a disciplinary process and hearing, which ultimately resulted in his dismissal on 28 April 2014. The Respondent's explanation for the suspension was that, on 23 January, it had received an anonymous letter referring to the circumstances of the Claimant's departure from an earlier employer, Continental Tyres. The Claimant had submitted a CV to the Respondent stating he had been made redundant by Continental Tyres, but that was untrue; he had been dismissed for gross misconduct. On investigation, the Respondent found there were other discrepancies in the Claimant's CVs and concluded he had given false information in an attempt to gain employment. That went to trust and confidence and was, the Respondent said, the reason for the Claimant's dismissal. If so, that was likely — as the ET found — to amount to a proper ground for dismissal'.
The reference to "the 2002 Regulations" is to the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
The appellant brought proceedings in the Employment Tribunal on 24 July 2014. His statutory claims were summarised at paragraph 17 of the employment judge's judgment under eight heads enumerated as (a) to (h). There was also a claim for wrongful dismissal. The claims that were struck out were those under heads (d), (e) and (f) – that may seem like three claims, though analytically it is probably four – which related to the disciplinary proceedings and the consequent dismissal. They were described in the employment judge's reasons as follows:
d. That on 28 January 2014 the claimant was suspended from his job. This a complaint of victimisation (section 27 Equality Act 2010) and detriment as result of raising a complaint under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
e. That on 25 March 2014 the respondent started disciplinary action against the claimant. This a complaint of victimisation (section 27 Equality Act 2010) and detriment as result of raising a complaint under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
f. That on the 28 April 2014 the claimant was dismissed by the respondent. This a complaint of unfair dismissal (Regulation 6 (1) Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, victimisation (section 27 Equality Act 2010) and detriment as result of raising a complaint under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
The claim for wrongful dismissal was also struck out. The strike-out was on the basis that the claims had no reasonable prospect of success: see rule 37(1)(a) of the Employment Tribunal Rules.
It is convenient to say now that the remaining claims proceeded to a full hearing but were dismissed. It was unnecessary for us to see the Employment Tribunal's judgment and reasons on that part of the case, and we were not shown them.
I will have to consider elements of the employment judge's reasoning in more detail later, but at this stage I will simply adopt Judge Eady's helpful summary at paragraph 10 of her judgment, which was as follows:
'The ET reminded itself that, as a general principle, discrimination cases should not be struck out, save in the very clearest circumstances. It concluded, however, that there was no prospect of the Claimant's case succeeding in respect of his dismissal because (I summarise) it was dependent upon assertions rather than facts and his contention that the Respondent was already aware of the false information in his CVs would not detract from the fact that it was false information and would establish cause for dismissal: on any case there were clear grounds for his dismissal and the facts on which the decision was taken were not contested. The Claimant's case rested substantially upon his unlikely assertion that the Respondent sent itself the anonymous letter to trigger an investigation that would reveal true information, of which it was already aware, as a justification for dismissal. That unlikely case could not be proved by the Claimant, and no evidence was identified that might put in doubt the Respondent's case. The dismissal claims had no reasonable prospects of succeeding and would be struck out'.
On the appeal to the EAT the appellant's then counsel, Ms Barbara Zeitler (appearing pro bono), made various criticisms of the employment judge's reasoning which Judge Eady considered and rejected. It is not, however, necessary that I set out the details of Judge Eady's reasoning because inevitably the focus of the issues before us is on the reasoning of the employment judge. I will refer to some particular points as I go along. I should, however, set out her conclusion. Picking it up part way through paragraph 31, she said:
'31. … The Claimant was contending that the anonymous letter was a concoction, but it was not in dispute that its content was then considered by a further five managers, who each separately took the view that it warranted disciplinary action, ultimately resulting in the decision that the Claimant should be dismissed. For the Claimant's case to have any prospect of success, therefore, an ET would have to find that six separate managers had each permitted the background issues of the Claimant's protected acts to taint their decision making, although there was no evidential basis for stating that each of those managers was aware of those issues (those protected acts) and albeit that the Claimant had admitted that he had indeed falsified information on his CVs.
'32. Seeing the case in that way — and Ms Zeitler has not demonstrated that there is another way of seeing it — the Claimant's claims are, in my judgment, correctly to be described as fanciful. The Employment Judge put it slightly more politely as a claim founded upon unlikely and baseless assertion, but the conclusion reached — that this was a case that had no reasonable prospect of success, and here I stress the word "reasonable" — was one that I consider was (exceptionally) entirely permissible. This was a rare case that warranted a striking out at the preliminary stage, and I duly dismiss the appeal'.
It is convenient to mention at this stage one point about how matters proceeded in the EAT. Mr Andrew Burns QC, who has appeared before us for the respondent, as he did at both stages below, produced to the Appeal Tribunal a copy of the judgment of the Employment Tribunal in the remaining parts of the claim, which had by then been decided. The appellant believed that that judgment was immaterial to any of the issues and sought a review under rule 33 of the Employment Appeal Tribunal Rules 1993 (as amended). Judge Eady refused a review, making it clear that she had not taken the judgment into account for the purpose of deciding the appeal and would have taken it into account only if it had become relevant to disposal had the appeal been allowed. Although this episode is complained of in the grounds of appeal, Mr Andrew Allen of counsel, who...
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