North Glamorgan NHS Trust v Eszias

The Court of Appeal dismissed the Trust's appeal against the Employment Appeal Tribunal. The central legal principles concern the Employment Tribunal's use of its strike-out powers under the Employment Tribunal Rules of Procedure 2004 (in particular rule 18(7) and rule 20) and the test for apparent bias by reason of pre-determination. The claimant alleged automatic unfair dismissal for making protected disclosures under section 103(a) of the Employment Rights Act 1996 and, in the alternative, ordinary unfair dismissal under section 98 of the same Act.

The court held that the Employment Tribunal chair's written expression of a concluded view in the document dated 20 July 2005 created a real possibility of apparent bias because it conveyed a closed mind or pre-determination. Separately, the chair was wrong in law to strike out the claim as having no reasonable prospect of success where there was a core of seriously disputed contemporaneous facts (notably the date and evidential significance of a letter signed by nine colleagues and the motives of its signatories). The strike-out was therefore legally unsustainable and the Employment Appeal Tribunal was correct to allow the claimant's appeal.

Background and parties:

• The claimant, an oral and maxillofacial surgeon, was employed by the Trust from 1998 until summary dismissal on 1 February 2005. Three days later he issued tribunal proceedings claiming automatic unfair dismissal for making protected disclosures (whistleblowing) under section 103(a) of the Employment Rights Act 1996 and, alternatively, ordinary unfair dismissal under section 98.
• The Trust relied on an asserted breakdown of relationships within the department and a contemporaneous letter (dated February 2003) signed by nine colleagues as the principal reason for dismissal.

Procedural history:

• At a pre-hearing review the chair produced a document dated 20 July 2005 stating that the claimant's contentions had "no reasonable prospect of success". The matter was re-listed; on 9 September 2005 the chair struck out the claimant's entire application as having no reasonable prospect of success and signed a certificate of correction under rule 37(1) to remove the word "judgment" from the earlier document.
• The claimant appealed to the Employment Appeal Tribunal where Elias J allowed the appeal on 25 July 2006, holding that the decision below was vitiated by apparent bias and that it was not an appropriate case for strike-out under rule 18(7).
• The Trust obtained permission to bring a further appeal to the Court of Appeal, which is the decision reported here.

Issues before the Court of Appeal:

1. Whether the Employment Tribunal chair's conduct and the 20 July document gave rise to apparent bias by reason of pre-determination.
2. Whether the Employment Tribunal was entitled to strike out the claimant's case as having "no reasonable prospect of success" under the tribunal rules where core facts were disputed.

Court's reasoning and conclusions:

• On apparent bias the court applied the fair-minded and informed observer test (Porter v Magill) and concluded that the chair's unequivocal language on 20 July 2005 conveyed a concluded view rather than a provisional one. Subsequent statements by the chair that the earlier document was a preliminary opinion did not dispel the impression of a real possibility of pre-determination.
• On the strike-out issue the court noted that the statutory/tribunal test of "no reasonable prospect of success" requires caution where central facts are in dispute. Given the head-on factual conflict — the claimant's allegation that adverse treatment derived from whistleblowing and the employer's case of irretrievable breakdown supported by contemporaneous documentation — it was legally perverse to conclude that the claimant's case had no reasonable prospect of success without a full hearing and assessment of evidence (including the contested significance of the February 2003 letter and its signatories).
• The court therefore dismissed the Trust's appeal and left open the possibility of a renewed application for a deposit under rule 20 before a differently constituted tribunal; it declined to express any view on the ultimate merits of the substantive dismissal complaint.

Context and implications:

• The judgment emphasises that strike-out on "no reasonable prospect" grounds will only be appropriate in exceptional cases where disputed factual issues cannot sensibly be resolved without a trial. It draws analogy with discrimination jurisprudence and the public interest in resolving fact-sensitive employment claims on their merits.
• The court also observed that the availability of a second appeal in interlocutory matters on the relatively low test of a "real prospect of success" may generate disproportionate litigation costs.

Appeal dismissed. The Court of Appeal agreed with the Employment Appeal Tribunal that (1) the Employment Tribunal chair's 20 July 2005 document expressed a concluded view that gave rise to a real possibility of apparent bias by reason of pre-determination, and (2) it was a legal error to strike out the claimant's case as having no reasonable prospect of success where there were central disputed facts that required hearing and evaluation of evidence.

Employment Tribunal: pre-hearing review 7 July 2005 and document of 20 July 2005; matter re-listed and strike-out made on 9 September 2005. Employment Appeal Tribunal: Elias J allowed the claimant's appeal on 25 July 2006. Court of Appeal: appeal by the Trust dismissed [2007] EWCA Civ 330.