Ahir v British Airways Plc

An employment tribunal may strike out a discrimination or victimisation claim under Employment Tribunal Rules rule 37(1)(a) despite disputed facts, but the hurdle remains high. The question is whether there is no reasonable prospect that the facts necessary for liability will be established.

Where the employer has an apparently innocent, documented explanation, a claimant must identify some basis, although not yet proof, for alleging that it is a pretext. A bare and implausible assertion of hidden discriminatory motivation will not justify a full hearing.

The appellant, a fixed-term ramp agent, brought Employment Tribunal claims after his suspension, disciplinary proceedings and dismissal. He alleged victimisation and detriment for protected acts, including earlier proceedings and grievances. The respondent said that it dismissed him after discovering that his CV falsely stated that his previous employment had ended through redundancy rather than dismissal for gross misconduct.

Employment Judge Gumbiti-Zimuto struck out the claims concerning the disciplinary process, dismissal and wrongful dismissal under Employment Tribunal Rules rule 37(1)(a). The Employment Appeal Tribunal, HH Judge Eady QC, dismissed his appeal. The central issue was whether the Employment Judge had erred in finding that the struck-out claims had no reasonable prospect of success.

1. Appeal dismissed. Underhill LJ, with whom McFarlane LJ agreed, held that the Employment Judge and the Employment Appeal Tribunal were entitled to conclude that the claims had no reasonable prospect of success.

2. Claims involving discrimination or victimisation are usually fact-sensitive and call for particular caution before strike-out. The authorities, including Anyanwu v South Bank Student Union [2001] UKHL 14 and Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330, show that the hurdle is high. They do not, however, prevent strike-out where the tribunal is satisfied that the facts necessary for liability have no reasonable prospect of being proved. The governing words are those of rule 37(1)(a); the tribunal should not substitute verbal glosses for that test. The threshold remains higher than that for a deposit order.

3. Here there was a coherent and documented innocent explanation for the dismissal: the appellant had supplied false information in his CV and several managers acted in the ensuing investigation, disciplinary process and appeal. The appellant was not required at the preliminary stage to prove a contrary case. But he had to identify a reason for supposing that the stated explanation concealed retaliation for protected acts.

4. His theory that a legal-department employee had sent an anonymous letter to trigger the investigation was speculative and inherently implausible. The timing of the letter and the speed of the response supplied no cogent foundation for it. The appellant could not avoid that deficiency by advancing a general assertion that the decision-makers may have been motivated by protected acts. Unlike A v B & C [2010] EWCA Civ 1378, there was no shared involvement by relevant actors in both the protected acts and the impugned decisions to provide a real basis for suspected contamination.

5. The Employment Judge's use of the word “unlikely”, read in context, amounted to a permissible conclusion that there was no reasonable prospect of the appellant establishing his case. No further order was stated.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal from the Employment Appeal Tribunal.

• Employment Appeal Tribunal: HH Judge Eady QC dismissed the appellant’s appeal on 15 April 2016.

• Employment Tribunal: Employment Judge Gumbiti-Zimuto struck out the claims relating to suspension, disciplinary proceedings, dismissal and wrongful dismissal under Employment Tribunal Rules rule 37(1)(a). The remaining claims later proceeded to a full hearing and were dismissed.