Ahir v British Airways Plc

An Employment Tribunal may strike out a claim only where it has no reasonable prospect of success. This is an exceptional and draconian step, particularly where the central facts, discriminatory motivation, or the reason for dismissal are disputed. Such claims will ordinarily require evidence to be tested at a hearing.

Exceptionally, however, strike-out is permissible where the claimant's positive case is inherently implausible and rests on baseless assertion. A genuine factual dispute does not require a trial where the uncontested material makes the claim properly describable as fanciful. An admitted ground capable of justifying summary dismissal defeats wrongful dismissal, although it does not necessarily answer a victimisation or statutory detriment claim without considering the employer's actual reason.

The claimant, an airside ground worker employed on fixed-term contracts, was dismissed after the respondent investigated admitted false statements in CVs submitted in support of applications for permanent employment.

He alleged that an anonymous letter which prompted the investigation was fabricated to punish him for previous proceedings, a grievance about permanent employment, and a racial-harassment complaint. He brought claims for victimisation under section 27 of the Equality Act 2010, unfair dismissal under Regulation 6(1) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, and wrongful dismissal.

The Reading Employment Tribunal struck out those dismissal claims. The appeal concerned whether it had erred by resolving a disputed reason for dismissal without hearing the respondent's decision-makers.

1. Appeal dismissed. The Employment Tribunal was entitled, exceptionally, to strike out the dismissal claims under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

2. Strike-out summarily determines merits without testing evidence. It is a draconian measure and should ordinarily be avoided where the central facts are disputed, especially in discrimination claims or where the true reason for dismissal is in issue. The governing question is whether there is no reasonable prospect of success, not whether a claim is likely to fail. Authorities including [2007] ICR 1126, [2011] IRLR 217 and [2012] IRLR 755 supported that approach.

3. The admitted falsification of CVs supplied a proper basis for summary dismissal and therefore answered the wrongful-dismissal claim. It did not, by itself, necessarily dispose of the victimisation and Regulation 6 claims: the Tribunal would ordinarily need to assess whether the asserted reason was the real reason and whether prohibited considerations tainted the decision.

4. On the uncontested narrative, however, the anonymous letter was considered by five further managers, each of whom separately considered disciplinary action appropriate, culminating in dismissal. There was no evidential basis to suggest that all six relevant managers knew of, or were influenced by, the claimant's protected acts. The proposition that the letter was a sham and that every decision-maker acted from a prohibited motive was inherently implausible. The claims were thus fanciful and had no reasonable prospect of success.

• Employment Appeal Tribunal: dismissed the claimant's appeal against the strike-out decision.
• Reading Employment Tribunal: on 8 October 2014, struck out the victimisation, Regulation 6 and wrongful-dismissal claims. Other claims proceeded to a merits hearing.