A v B & C

The Court of Appeal dismissed the employers' appeal against the Employment Appeal Tribunal's order reinstating the claimant's complaints. The principal legal questions concerned the test for striking out under rule 18(7)(b) of the Employment Tribunals Rules of Procedure 2004 (whether a claim has no reasonable prospect of success), the proper approach to an unfair dismissal complaint where the employer alleges gross misconduct (applying the Burchell principle and ERA section 98), and the effect of the reverse burden in discrimination claims under section 63A of the Sex Discrimination Act 1975. The court held that where central facts are in dispute and there is a realistic prospect that an employer may fail to discharge any reverse burden, striking out is inappropriate: Ezsias v North Glamorgan NHS Trust was followed. The court also held that the claimant’s discrimination complaint could proceed on a continuing course of conduct so that time ran from the last act in the series.

Background and parties. A (the claimant) was employed by B (a further and higher education institution) and alleged unwanted sexual conduct by C (the principal). A was dismissed summarily on 27 November 2007 for alleged academic fraud concerning qualifications. She brought ET1 claims for unfair dismissal and sex discrimination.

Procedural history. The Employment Tribunal (pre-hearing review) struck out A's complaint as out of time and having no reasonable prospect of success. The Employment Appeal Tribunal (Judge Hand Q.C.) allowed A's appeal and reinstated her claims. Permission to appeal to the Court of Appeal was granted; the Court of Appeal heard the appeal.

Issues framed.

• Whether the Employment Tribunal was entitled to strike out the claims under rule 18(7)(b) given disputed central facts.
• Whether the dismissal for alleged academic fraud could be impugned as unfair or tainted by earlier sexual harassment or the grievance process.
• Whether the sex discrimination claim was out of time or whether it formed part of a continuing series of acts so as to be timely.
• Whether the employer conducted a reasonable investigation and honestly believed the allegation of gross misconduct (the Burchell test; ERA section 98(4)).

Court’s reasoning. The court reiterated the high threshold for striking out where the central facts are disputed and where resolving them requires hearing and evaluating evidence. It treated the claimant’s pleaded facts as, for striking out purposes, potentially provable unless clearly contradicted by indisputable evidence. The court considered the evidence about the disputed academic qualifications and the disciplinary process, and the employer's legitimate interest in academic integrity and reputation. The appellants’ submissions that the factual case against A was overwhelming were considered but the court concluded that there remained realistic issues of fact: in particular whether the disciplinary process was contaminated by prior sexual harassment or the grievance process and whether the employer could discharge any reverse burden of proof in discrimination proceedings. On time limits, the court accepted that A’s allegation of a continuing course of conduct meant the discrimination claim was not necessarily out of time. The restricted reporting order was continued pending determination of liability and remedy.

The Court of Appeal dismissed the appeal. It held that the Employment Appeal Tribunal was correct to conclude that the claimant's complaints could not be struck out because there remained real issues of fact which required full hearing; in particular there was a realistic prospect that the employer might fail to discharge any reverse burden in the discrimination claim, and the complaint could form part of a continuing course making it timely. The claim was therefore remitted for determination on the merits.

Employment Tribunal (pre-hearing review, Hull; Employment Judge Mr Forrest) struck out the claim (11 July 2008). Employment Appeal Tribunal (Judge Hand Q.C.) allowed the claimant's appeal and reinstated the claim (13 May 2009; UKEAT/0450/08/JOJ). Permission to appeal to the Court of Appeal was granted; appeal dismissed by Court of Appeal [2010] EWCA Civ 1378 (8 December 2010).