Ezsias v North Glamorgan NHS Trust

An employment tribunal must not strike out a claim for having no reasonable prospect of success where the outcome depends upon a substantial and central dispute of fact which requires evidence to be heard and evaluated. The test is whether the claim has a realistic rather than merely fanciful prospect of success. Strike-out despite disputed facts will be exceptional.

A tribunal member who expresses a concluded view before a properly notified strike-out hearing may create apparent bias. Later characterisation of that view as preliminary will not cure the appearance of a closed mind if the original language was unequivocally final. Similar caution generally applies to fact-sensitive whistleblowing claims.

The claimant, an oral and maxillofacial surgeon, was summarily dismissed by the Trust. He brought claims for automatic unfair dismissal based on protected disclosures under Employment Rights Act 1996, Section 103(a), and for ordinary unfair dismissal under Section 98.

At a pre-hearing review, the Employment Tribunal chair expressed the view that the claims had no reasonable prospect of success. At a later hearing she struck out the whole claim under Rule 18(7) of the Employment Tribunal Rules of Procedure 2004. The Employment Appeal Tribunal allowed the claimant’s appeal, holding that the decision was affected by apparent bias and that strike-out was inappropriate. The Trust appealed.

The central issues were whether the chair’s earlier language created apparent bias and whether the claims could properly be struck out notwithstanding the parties’ conflicting accounts of the reason for dismissal.

1. Appeal dismissed. The Employment Appeal Tribunal was right to set aside the strike-out. Lord Justice Maurice Kay gave the reasons, with Lord Justice Ward and Lord Justice Moore-Bick agreeing.

2. The applicable apparent-bias test was that in Porter v MacGill [2001] UKHL 67: whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The chair’s document of 20 July 2005 was expressed in emphatically concluded terms. It said that the claims had no reasonable prospect of success and were bound to fail, although the strike-out application had not yet been properly notified, argued or determined.

3. Jimenez v London Borough of Southwark [2003] IRLR 477 did not assist the Trust. A strongly expressed view can remain provisional where the tribunal expressly identifies it as such and leaves the party free to persuade it otherwise. Here the chair did not describe her view as provisional when she expressed it. Her later explanation was capable of negating actual pre-determination, but could not dispel the appearance that she had a concluded view or closed mind. The subsequent strike-out was therefore vitiated by apparent bias.

4. Under Rule 18(7), the question is whether the claim has a realistic, rather than merely fanciful, prospect of success. A claim involving disputed facts may exceptionally be struck out. But it will only rarely be appropriate where the central facts are disputed. The tribunal had impermissibly resolved the parties’ opposing accounts of the reason for dismissal by relying on a letter from nine colleagues, despite the claimant’s challenge to its date and evidential significance and his allegation that its signatories had been affected by his protected disclosures.

5. The essential factual conflict could only be resolved after hearing and evaluating evidence. The same cautious approach generally applies to whistleblowing claims as to discrimination claims, because both commonly require an inquiry into the employer’s reasons and are highly fact-sensitive. The Trust could renew any deposit application under Rule 20 before a differently constituted tribunal. The court expressed no view on the ultimate merits.

• Court of Appeal (Civil Division): dismissed the Trust’s appeal and upheld the Employment Appeal Tribunal’s decision: [2007] EWCA Civ 330.
• Employment Appeal Tribunal: allowed the claimant’s appeal, holding that the Employment Tribunal’s strike-out was vitiated by apparent bias and was, in any event, an inappropriate use of Rule 18(7).
• Employment Tribunal: struck out the claimant’s claims on the ground that they had no reasonable prospect of success.