| INDUSTRIAL RELATIONS — Employment tribunals — Striking out proceedings — Protected disclosures — Whistleblower alleging unfair dismissal — Employer’s pre-trial application for deposit and striking out — Whether apparent bias by tribunal — Whether order properly made before determination of factual disputes — Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861), Sch 1, rr 18, 20
Ezsias v North Glamorgan National Health Trust
CA: Ward, Maurice Kay and Moore-Bick LJJ: 7 March 2007
An employer’s application to strike out an employee’s claim for unfair dismissal at a pre-trial hearing as having no reasonable prospect of success should not be entertained by an employment tribunal if crucial facts were in dispute.
The Court of Appeal so held when dismissing an appeal by the employer, North Glamorgan National Health Trust, from the decision on 25 July 2006 of the Employment Appeal Tribunal (Elias J sitting alone) quashing an order by the Cardiff Employment Tribunal to strike out a claim for unfair dismissal by a former employee, Mr A Ezsias.
The employer applied at pre-trial hearings for a deposit pursuant to r 20 of the Employment Tribunal Rules of Procedure, as scheduled to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, and to strike out the claim on grounds that it had no reasonable prospect of success pursuant to r 18(7) of those Rules. At an initial hearing the tribunal, stating that the claim was bound to fail, nevertheless adjourned the deposit issue. At the second hearing the same tribunal struck out the claim, stating it had no reasonable prospect of success and was bound to fail.
MAURICE KAY LJ said that there were two issues. First, was the tribunal’s decision to strike out vitiated by apparent (not actual) bias? The tribunal at the first “deposit” hearing had plainly and unequivocally reached a concluded view as to the employee’s prospect of success. It had thereby pre-determined or pre-judged the case: see per Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357, at para 103. The second issue concerned the tribunal’s decision to strike out the claim for having no reasonable prospect of success. There might be cases which embraced factual disputes justifying striking out on the basis of no reasonable prospect of success. But what was important was the particular nature and scope of the factual dispute. The employee here contended that others turned on him because he was a whistleblower. The employer’s case was that he was impossible to work with and jeopardised the proper functioning of the hospital. It was legally perverse for the tribunal to conclude as it had. There was a crucial core of disputed fact that was not susceptible to determination otherwise than by hearing and evaluating the evidence. Only in exceptional cases should a strike-out application be granted when the central facts were in dispute. Whistleblowing cases had much in common with discrimination cases, an employee running up similar difficulties to those facing a discrimination applicant. The approach set out by Lord Steyn in Anyanwu v South Bank Student Union [2001] ICR 391, HL, at para 24, was that “the bias in favour of [such] a claim being examined on the merits or demerits of its particular facts is a matter of high public interest”. It was regrettable that on an interlocutory application there should be a right to a second appeal from the Employment Appeal Tribunal to the Court of Appeal. Consideration should be given to introducing the more demanding criterion of whether a second appeal “would raise an important point of principle or practice” within CPR r 52.13(2)(a).
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