A v B & Anor

On an application to strike out an employment claim, the tribunal must ask whether the claim has no reasonable prospect of success. Where the claimant alleges that a dismissal was discriminatory or connected with earlier discriminatory conduct, the central issue may require evidence about the employer’s true reason and the relationship between separate processes. Such a claim should be struck out only in an exceptional case, particularly where material facts remain disputed. A strong apparent case that dismissal was justified on disciplinary grounds does not, by itself, eliminate a more than fanciful prospect that the dismissal was influenced by discrimination. A discrimination claim based on a continuing course of conduct is not out of time if the alleged later acts form part of that course.

A was employed by B, a further and higher education institution. C was B’s principal. B summarily dismissed A for alleged academic fraud concerning claimed qualifications. A brought claims for unfair dismissal and sex discrimination, alleging that the disciplinary process was influenced by C’s earlier unwanted sexual conduct and by A’s grievance about it.

The Employment Tribunal struck out the claims at a pre-hearing review. The Employment Appeal Tribunal, Judge Hand QC sitting alone, reinstated them and remitted them for determination on the merits: UKEAT/0450/08/JOJ. B and C appealed to the Court of Appeal. The central questions were whether A’s claims had no reasonable prospect of success and whether the discrimination allegations were out of time.

1. Appeal dismissed. The Employment Appeal Tribunal was right to hold that A’s claims could not be shown, at this stage, to have no reasonable prospect of success, although the Court of Appeal did not adopt all of Judge Hand’s reasoning.
2. Under rule 18(7)(b) of the Employment Tribunals Rules of Procedure 2004, striking out for lack of reasonable prospects is an exceptional course where the central facts are disputed. The claimant’s pleaded facts are generally to be taken as provable unless the contrary is established by clear, undisputed evidence. The claim need not be pleaded with the precision required in ordinary civil proceedings.
3. The apparent strength of the qualification case did not determine the issue. B was reasonably entitled to treat a false claim to higher academic qualifications as potentially serious misconduct in an educational institution. The investigation had addressed the substance of the claimed doctorate and A’s state of mind. However, the Court of Appeal was not deciding that the investigation was adequate or that the dismissal was fair.
4. The pleaded case that the disciplinary process was used or influenced to punish A for rejecting C’s advances and complaining about them raised factual issues concerning C’s influence, the involvement of persons in both procedures, and the true reason for dismissal. In view of the reverse burden under section 63A of the Sex Discrimination Act 1975, there remained a prospect greater than fanciful that B might fail to show that the dismissal was not unlawfully discriminatory.
5. Although the earlier identified harassment was out of time if treated alone, A also alleged a continuing course of conduct extending through the grievance process. If the claim could not be struck out on its merits, it followed on Judge Hand’s reasoning that it could not be struck out as out of time.
6. The restricted reporting order was continued in the Court of Appeal. The Court had power to make the order under rule 50(8)(b) of the Employment Tribunals Rules of Procedure 2004, read with rule 23(3) of the Employment Appeal Tribunal Rules 1993 and CPR rule 52.10(1).

• Court of Appeal (Civil Division): appeal from the Employment Appeal Tribunal dismissed; the claims were allowed to proceed and the restricted reporting order was continued.
• Employment Appeal Tribunal: Judge Hand QC, on appeal from the Employment Tribunal, reinstated A’s claims and remitted them for determination on the merits: UKEAT/0450/08/JOJ.
• Employment Tribunal: at a pre-hearing review, the claim was struck out.