Monfared v Chartered Society of Physiotherapy

Key legal principles: The Employment Tribunal may strike out a claim under rule 18(7)(b) of the Employment Tribunal Rules of Procedure where it has no reasonable prospect of success. An appeal to the Employment Appeal Tribunal under rule 3(7) of the EAT Rules will be sifted out where no reasonable grounds of appeal are disclosed; a rule 3(10) oral hearing will not proceed unless an arguable point of law is identified. Article 6 does not guarantee a right to a trial where a claim is fairly assessed as having no real prospect of success.

Material grounds for the decision: Judge Wade struck out the claimant's discrimination claim against his trade union as prima facie implausible and as having no reasonable prospect of success because the material before her did not raise a prima facie case sufficient to shift the burden of proof to the union. The EAT and the Court of Appeal (Rimer LJ) concluded there was no arguable error of law in the tribunals' reasoning and refused permission to appeal.

Subsidiary findings: The tribunal's assessment that the union withdrew support because of the claimant's conduct (a non-discriminatory explanation) was open on the material; the claimant failed to comply with case management directions to exchange witness statements; allegations of procedural unfairness and of denial of cross-examination were not shown on the record.

The appellant, a physiotherapist, brought claims in the Employment Tribunal against his trade union, the Chartered Society of Physiotherapy (CSP), alleging race and religious discrimination and complaining of the union's failure to represent him adequately. The pleaded ET1 also contained a number of allegations directed at his employers and various historic matters. The ET1 asserted discrimination on grounds of race and religion and that unidentified payments were owed, but did not specify detailed remedies.

The Employment Tribunal (Judge Wade) held a pre-hearing review on 16 July 2012 and struck the claimant's claim out under rule 18(7)(b) of the Employment Tribunal Rules of Procedure on the basis that it had no reasonable prospect of success. The judge concluded the claim was prima facie implausible, that the CSP had a non-discriminatory explanation for its conduct (centred on the claimant's behaviour), that comparators relied on were not cogent, and that the claimant's evidence did not cross the low threshold needed to shift the burden of proof.

The claimant’s appeal to the Employment Appeal Tribunal was rejected on paper under rule 3(7) and, after an oral rule 3(10) hearing before His Honour Judge Clark, dismissed for lack of any arguable point of law. Lewison LJ refused permission to appeal to the Court of Appeal on 11 November 2013. On a renewed oral application to the Court of Appeal, Rimer LJ refused permission to appeal on 19 June 2014.

• Nature of the claim / relief sought: discrimination on grounds of race and religion against the claimant’s trade union and unspecified payments/other complaints; precise remedies are not stated in the judgment.
• Issues framed by the court: whether the claim had a reasonable prospect of success so as to justify a full hearing; whether the tribunal applied the correct legal tests for strike out; whether procedural fairness (including Article 6 and cross-examination) had been respected; whether any arguable error of law arose on appeal.
• Court’s reasoning (concise): the tribunal correctly applied the law on strike-out and concluded the pleaded case was implausible and insufficient to establish a prima facie case of unlawful discrimination; there was a plausible non-discriminatory explanation (the claimant’s conduct) for the union’s withdrawal of support; the claimant failed to identify any arguable error of law at the EAT or Court of Appeal and had not complied with case management directions, so permission to appeal was refused.

The court also observed that the remedy of permitting a claim to proceed in the hope that "something may turn up" is not legitimate; there must be reason to believe cross-examination might produce evidence capable of establishing the claimant’s case.

Permission to appeal was refused and the appeal dismissed. Rimer LJ held that Judge Wade had correctly applied the law on strike-out under rule 18(7)(b) and that her factual and evaluative conclusions — that the claimant’s pleaded case was implausible and had no reasonable prospect of success, and that there was a non-discriminatory explanation for the union’s conduct — were open on the material; no arguable error of law was identified by the EAT or the Court of Appeal.

Employment Tribunal (London Central) Pre-Hearing Review before Judge Wade: claim struck out under rule 18(7)(b) (judgment sent 3 August 2012). EAT paper sift by Underhill J (President) under rule 3(7) rejected the claimant's notice of appeal. Oral rule 3(10) application heard by His Honour Judge Clark on 26 June 2013 and dismissed (Appeal No: UKEATPA/1477/12/BA). Permission to appeal to the Court of Appeal was refused by Lewison LJ on 11 November 2013. Renewed oral application for permission to appeal to the Court of Appeal was refused by Rimer LJ on 19 June 2014 ([2014] EWCA Civ 828).