Monfared v Chartered Society of Physiotherapy

In employment discrimination proceedings, a claim may be struck out before trial where the evidence gives it no reasonable prospect of success. The tribunal must assess why the claimant was treated adversely; race or religion alone does not establish discrimination, and a credible non-discriminatory explanation may prevent any prima facie case from arising. A claimant has no right under article 6 to take a hopeless claim to trial. On appeal, the task is to identify an arguable error of law, not to reopen factual evaluation, introduce new material, or challenge an unappealed case-management order.

The claimant, a physiotherapist and member of the Chartered Society of Physiotherapy, brought claims alleging race and religious discrimination and other complaints concerning the union’s support in employment disputes. Following a pre-hearing review, Employment Judge Wade struck out the claim under rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. The Employment Appeal Tribunal rejected the appeal on paper and later dismissed the claimant’s oral application for a full hearing. On a renewed application, the Court of Appeal considered whether there was any arguable error of law, procedural unfairness or breach of article 6.

Permission to appeal was refused. Lord Justice Rimer held that the claimant had identified no arguable error of law in the decisions below.

1. The Court of Appeal was concerned with whether the Employment Appeal Tribunal had arguably erred in law. The appellate process was not an opportunity to redevelop the factual case, introduce material that could have been placed before the employment tribunal, or challenge an unappealed case-management order.
2. Rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 gave the tribunal jurisdiction to strike out a claim having no reasonable prospect of success. Although strike-out is a draconian step, Judge Wade was entitled to conclude that the discrimination allegations were manifestly implausible and did not establish a prima facie case capable of shifting the burden to the respondent.
3. The critical question in a discrimination case is why the claimant was treated adversely. The claimant’s race or religion did not provide an automatic discriminatory explanation. The tribunal was entitled to consider the evidence, comparator evidence and the credible non-discriminatory explanation that the union’s conduct resulted from the claimant’s behaviour. The contention that the domestic burden-of-proof law was inconsistent with the relevant EU Directive disclosed no arguable error.
4. It was not legitimate to keep an apparently hopeless case alive in the hope that something might emerge during cross-examination. The approach reflected the guidance in ABN Amro Management Services Ltd v Mr G. Hogben (UKEAT/0266/09), which formed part of the reasons upheld by the Court.
5. Article 6 did not guarantee a claimant a right to take every claim to trial. A pre-hearing review could decide whether the claimant’s own written evidence crossed the low threshold for a prima facie case without oral evidence or cross-examination where that threshold was not met.

1. Court of Appeal (Civil Division) — On the renewed oral application, Rimer LJ refused permission to appeal: [2014] EWCA Civ 828.
2. Employment Appeal Tribunal — Underhill J rejected the appeal on the paper sift. At the subsequent oral hearing, His Honour Judge Clark dismissed the rule 3(10) application and therefore the appeal.
3. Employment Tribunal — Employment Judge Wade struck out the claim at a pre-hearing review under rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004; reasons were sent to the parties on 3 August 2012.