Ahir v British Airways Plc

The Court of Appeal dismissed the appellant's challenge to the Employment Tribunal's strike-out of certain dismissal-related claims under rule 37(1)(a) of the Employment Tribunal Rules. The court applied the established principle that discrimination and unfair dismissal claims should not be struck out except in very clear cases, citing Anyanwu and Ezsias, but confirmed that strike-out is permissible where there is no reasonable prospect of success. The tribunal and the Employment Appeal Tribunal had both concluded that the appellant's central theory—that an internal employee concocted and sent an anonymous letter to justify dismissal—was implausible and unsupported by any material, and that contemporaneous documentation showed a straightforward explanation (false information on the appellant's CV) that justified dismissal. The Court of Appeal held that, on the facts, the employment judge was entitled to find no reasonable prospect of success and to strike out the claims.

Background and parties: The appellant, Mr Ashok Ahir, a fixed-term ground staff employee of British Airways, brought Employment Tribunal proceedings including complaints under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, victimisation under section 27 of the Equality Act 2010, detriment claims and a wrongful dismissal claim. Following an anonymous letter received by BA alleging misrepresentation of the appellant's earlier employment history, BA investigated and dismissed the appellant for presenting false information on his CV. The Employment Tribunal struck out certain claims related to the disciplinary process and dismissal. The Employment Appeal Tribunal (EAT) (HH Judge Eady QC) dismissed an appeal against that strike-out. The present appeal to the Court of Appeal followed.

Nature of the application: This was an appellate challenge to the strike-out of dismissal-related claims under rule 37(1)(a) (no reasonable prospect of success). The appellant contended the tribunal had applied the wrong or an insufficiently cautious legal test and that his factual case — that an internal BA employee (Mr Deol) had prior knowledge and arranged the anonymous letter to justify dismissal — should not have been struck out without disclosure and a full hearing.

Issues framed:

• Whether the employment judge applied the correct legal test and adequate caution (in the light of authorities such as Anyanwu and Ezsias) before striking out discrimination and unfair dismissal claims.
• Whether the claimant had identified material that made his theory sufficiently arguable to defeat a strike-out for having no reasonable prospect of success.

Court’s reasoning: The Court of Appeal accepted that discrimination and unfair dismissal claims are fact-sensitive and that strike-out should be rare, but held that rule 37(1)(a) requires a judgement about whether there is a reasonable prospect of success. The judge had been referred to the leading authorities and his reasons demonstrated that he had the correct legal principles in mind. The appellant’s central allegation that BA personnel had concocted the anonymous letter was found to be speculative and inherently implausible. The contemporaneous documentary trail showed independent consideration by several managers and clear evidence of falsehoods in the appellant’s CV, which provided an innocent and sufficient explanation for the dismissal. The appellant had failed to identify material that could, even if not yet proved, give realistic support to his theory. Given that evidential position, the employment judge and the EAT were entitled to conclude there was no reasonable prospect of success and to order strike-out.

Procedural posture and other findings: Permission to appeal to the Court of Appeal had been granted narrowly by Lewison LJ. The Court noted the remaining (non-struck-out) claims proceeded to a full hearing and were dismissed, but those reasons were not relied upon for the appeal. The Court reiterated the high threshold for strike-out but observed that tribunals should not be deterred from striking out claims that plainly lack reasonable prospects even where facts are disputed.

Appeal dismissed. The Court of Appeal held that the employment judge had applied the correct legal principles (including the high threshold for striking out discrimination and unfair dismissal claims) and was entitled to conclude, on the material before him, that the appellant's theory that an internal employee had concocted the anonymous letter was implausible and unsupported and that therefore the dismissal-related claims had no reasonable prospect of success under rule 37(1)(a).

Appeal from Employment Tribunal strike-out order (Employment Judge Gumbiti-Zimuto). Appeal to Employment Appeal Tribunal dismissed by HH Judge Eady QC (decision dated 15 April 2016). Permission to appeal to the Court of Appeal granted by Lewison LJ. Court of Appeal judgment: [2017] EWCA Civ 1392 dismissing the appeal.