Sharma v New College Nottingham

When considering a deposit order, an Employment Tribunal should adopt the same approach as when considering striking out a claim. Where the central facts are disputed, the claim should ordinarily proceed to a hearing so that evidence can be tested and witnesses cross-examined. Contemporaneous correspondence which appears polite and proper is not, by itself, sufficient to establish that a discrimination claim has little or no reasonable prospect of success where the claimant alleges conduct behind that documentary façade. Only an exceptional case, such as one in which the alleged facts are totally and inexplicably inconsistent with undisputed contemporaneous documents, will justify determining the issue without hearing evidence.

The claimant, an employee of the respondent, brought proceedings alleging racial discrimination, victimisation, whistleblowing detriment, harassment and bullying connected with his conduct of a grievance investigation. Following case-management directions, he provided a Scott Schedule containing 23 allegations.

At a Pre-Hearing Review, the Employment Tribunal declined to strike out the claim but ordered the claimant to pay a deposit because the claim had little reasonable prospect of success. The Employment Judge relied substantially on contemporaneous correspondence which appeared inconsistent with the claimant’s allegations. The central issue on appeal was whether that approach was permissible where the claimant disputed the factual meaning and context of the documents.

1. Appeal allowed. The order requiring payment of a deposit as a condition of proceeding was quashed.
2. An Employment Judge must adopt the same approach when considering a deposit order as when considering strike-out. Both orders are serious and potentially fatal because they may prevent a claim from proceeding.
3. In discrimination cases, direct evidence is unusual. The Tribunal ordinarily considers what inferences may properly be drawn from the primary facts, assuming that there is no adequate explanation for those facts. This approach is reflected in the annex to Igen v Wong [2005] EWCA Civ 142.
4. Questions of law in discrimination claims are often highly fact-sensitive. As recognised in Anyamu v South Bank Students Union and Others [2001] ICR 391, the risk of injustice is reduced where determination is deferred until the evidence has been heard and factual findings, rather than assumptions, can be made.
5. Under Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330, strike-out where central facts are disputed is exceptional. It may be justified where the alleged facts are totally and inexplicably inconsistent with undisputed contemporaneous documentation. The present case did not approach that level.
6. The claimant alleged that apparently proper correspondence concealed verbal harassment, threats and aggressive bullying. Those allegations created underlying factual disputes requiring evidence and cross-examination. It was therefore inadequate reasoning to rely solely on the polite tone of the documents to conclude that the claim had little reasonable prospect of success.
7. The decision did not determine whether the claim would ultimately succeed. It required the disputed issues to be determined after a full hearing.

1. Employment Appeal Tribunal: Appeal allowed. The Employment Tribunal’s deposit order was quashed.
2. Employment Tribunal: Declined to strike out the claim but ordered the claimant to pay a deposit because it had little reasonable prospect of success.