Clifton v Lloyds TSB Bank Plc

A claim should be struck out for having no reasonable prospect of success only in exceptional circumstances where central facts are disputed. Whistle-blowing and discrimination-related claims are generally fact-sensitive and ordinarily require oral evidence. An inference-based claim under section 103A of the Employment Rights Act 1996 should not be struck out merely because the employer advances a different reason for dismissal. A claim under section 98(4) may likewise require evidence concerning the fairness of the dismissal. A victimisation claim requires a protected act under section 55 of the Disability Discrimination Act 1995.

Miss Clifton appealed against a full Employment Tribunal’s preliminary hearing judgment, which struck out claims arising from her dismissal by Lloyds TSB Bank Plc. The claims included unfair dismissal under sections 98A(1), 103A and 98(4) of the Employment Rights Act 1996, and victimisation under section 55 of the Disability Discrimination Act 1995.

The Employment Tribunal had also found that Miss Clifton was not disabled. That issue, and the disability discrimination claims dependent upon it, were no longer before the Appeal Tribunal. The central questions were whether the remaining claims had no reasonable prospect of success and whether they should proceed to a merits hearing.

1. Victimisation. A complaint under section 55 of the Disability Discrimination Act 1995 requires a protected act within subsection (2). The letters relied upon did not invoke the Act, expressly or implicitly. In the absence of a protected act, the victimisation claim was bound to fail and its strike-out was upheld.
2. Section 98A(1). The allegation that the statutory dismissal and disciplinary procedure was breached by unreasonable delay was no longer arguable following the Court of Appeal’s decision in Selvarajan v Wilmot. The alleged failure to offer representation by a work colleague was contradicted by the dismissal correspondence. This part of the claim was wholly unarguable and remained struck out.
3. Section 103A. The pleaded case raised protected disclosures. Whether they were the reason or principal reason for dismissal involved an inference about the employer’s reason. Applying Ezsias v North Glamorgan NHS Trust, it could not properly be concluded without oral evidence that the claim had no reasonable prospect of success. The employer bore the onus of displacing the alleged protected-disclosure reason.
4. Section 98(4). Even if capability was established as the reason for dismissal, the general fairness question remained arguable. The history of the internal process and the Claimant’s conduct required evidence and assessment at a witness hearing. Strike-out was therefore impermissible.
5. The appeal was allowed only in relation to the claims under sections 98 and 103A. Those claims were remitted for a full hearing. The section 98A(1) and section 55 claims remained struck out. The Employment Tribunal was directed to consider any deposit application at a hearing constituted as both a case management discussion and a preliminary hearing under rule 20(1).

• Employment Tribunal: At a preliminary hearing, struck out the relevant unfair dismissal and victimisation claims and found that the Claimant was not disabled.
• Employment Appeal Tribunal: The disability-related appeal had been dismissed at a preliminary hearing. On the substantive appeal, the strike-out was set aside for the claims under sections 98 and 103A, while the section 98A(1) and section 55 claims remained struck out.