Ahir v British Airways Plc

This is an appeal from a decision of the Employment Appeal Tribunal (HH Judge Eady QC sitting alone) dated 15 April 2016 dismissing an appeal from a decision of Employment Judge Gumbiti-Zimuto. That decision was to strike out various claims brought by the appellant against the respondent.

The essential factual background is helpfully summarised at paragraphs 4-7 of the decision of the EAT as follows:

The appellant brought proceedings in the Employment Tribunal on 24 July 2014. His statutory claims were summarised at paragraph 17 of the employment judge’s judgment under eight heads enumerated as (a) to (h). There was also a claim for wrongful dismissal. The claims that were struck out were those under heads (d), (e) and (f) – that may seem like three claims, though analytically it is probably four – which related to the disciplinary proceedings and the consequent dismissal. They were described in the employment judge’s reasons as follows:

It is convenient to say now that the remaining claims proceeded to a full hearing but were dismissed. It was unnecessary for us to see the Employment Tribunal’s judgment and reasons on that part of the case, and we were not shown them.

I will have to consider elements of the employment judge’s reasoning in more detail later, but at this stage I will simply adopt Judge Eady’s helpful summary at paragraph 10 of her judgment, which was as follows:

On the appeal to the EAT the appellant’s then counsel, Ms Barbara Zeitler (appearing pro bono), made various criticisms of the employment judge’s reasoning which Judge Eady considered and rejected. It is not, however, necessary that I set out the details of Judge Eady’s reasoning because inevitably the focus of the issues before us is on the reasoning of the employment judge. I will refer to some particular points as I go along. I should, however, set out her conclusion. Picking it up part way through paragraph 31, she said:

It is convenient to mention at this stage one point about how matters proceeded in the EAT. Mr Andrew Burns QC, who has appeared before us for the respondent, as he did at both stages below, produced to the Appeal Tribunal a copy of the judgment of the Employment Tribunal in the remaining parts of the claim, which had by then been decided. The appellant believed that that judgment was immaterial to any of the issues and sought a review under rule 33 of the Employment Appeal Tribunal Rules 1993 (as amended). Judge Eady refused a review, making it clear that she had not taken the judgment into account for the purpose of deciding the appeal and would have taken it into account only if it had become relevant to disposal had the appeal been allowed. Although this episode is complained of in the grounds of appeal, Mr Andrew Allen of counsel, who appears for the appellant (again acting pro bono), made it clear that no point was now taken on it since it was common ground between him and Mr Burns that the appeal must be decided by reference only to the materials that were before the Employment Tribunal. We proceed on that basis.

Permission to appeal was given by Lewison LJ, though only by what he described as ‘a very narrow margin’.

The appellant’s grounds of appeal are not signed by a lawyer, though it looks as though a lawyer may have been involved. They are somewhat discursive. A skeleton argument was drafted subsequently by Mr Carlo Breen of counsel. This too was a little discursive and identifies no fewer than 17 grounds of appeal. There is, however, a good deal of overlap between them, and they are essentially different aspects of a much smaller number of substantive points. Mr Allen acknowledged this, and I will focus on the case as developed in his excellent oral submissions.

I start with the law. This was addressed by the employment judge at paragraphs 19 to 20 of his reasons where he said:

Mr Allen said that that was inadequate. He referred to us to the well-known decisions of the House of Lords in Anyanwu v South Bank Student Union [2001] UKHL 14, [2001] ICR 391, and of this court in Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330, [2007] ICR 1126. In Anyanwu he referred us to the speech of Lord Steyn at paragraph 24, where he said:

Mr Allen also referred us to the decision of the Inner House in Tayside Public Transport Company Ltd. v Reilly [2012] CSIH 46, [2012] IRLR 755. At paragraph 30 of his judgment the Lord Justice Clerk said this: ‘Counsel are agreed that the power conferred by rule 18(7)(b)’ – I interpose to say that that is the predecessor of the current striking-out rule – ‘may be exercised only in rare circumstances’. He then referred to the decision of the EAT in Balls v Downham Market High School and College [2010] UKEAT 0343/10, [2011] IRLR 217. He continued:

Mr Allen said that the employment judge should have referred specifically to those authorities, or at least to Anyanwu and Ezsias, and that his summary of the relevant law did not reflect the height of the threshold that it is necessary to cross in this kind of case. For example, the judge did not use the phrase ‘the most exceptional circumstances’ which appears in Tayside, nor did he identify the fact that this was a case where the ‘central facts’ were in dispute and the particular caution to be exercised in such a case which in Ezsias Maurice Kay LJ said was necessary.

I do not accept that submission. It is common ground that the employment judge was referred to both Anyanwu and Ezsias. Paragraphs 19 and 20 of his reasons show that he had their essential principles well in mind. It is no error of law not to refer to them by name, nor was it necessary for him to repeat particular phrases from them. The only essential phrase is that in rule 37(1)(a) of the Employment Tribunal Rules.

Mr Burns made a further point in this regard. He submitted that, although the threshold set by cases like Anyanwu and Ezsias is indeed high, it is not quite as high as Mr Allen contended. He pointed out that in Anyanwu Lord Hope, having struck the cautionary note to which I have already referred at paragraph 37 of his speech, nevertheless went on at paragraph 39 to say:

There is force in Mr Burns’s point. Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between ‘exceptional’ and ‘most exceptional’ circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success’.

I turn therefore to the application of those principles in the particular circumstances of this case. I have already quoted Judge Eady’s summary of the reasoning of the employment judge, but I should put a little more flesh on those bones. It was common ground that the anonymous letter which, on the face of it, led to the investigation and ultimately the appellant’s dismissal was addressed to the BA HR department and received on 23 January 2014. There is then a series of self-evidently genuine internal documents showing how the HR department followed up the allegations made in that letter, principally by taking copies of the judgments of the EAT and the Employment Tribunal, which established the circumstances of the appellant’s departure from Continental Tyres, and then by activating the investigatory and disciplinary process. That involved various different employees from the legal department in making the necessary enquiries, including a Mr Deol to whom I will come back, and culminated in the disciplinary hearing which was before a BA manager who had no previous involvement, and an eventual appeal, also involving two further BA employees with no previous involvement.

For present purposes – though if the case proceeded this might give rise to an interesting point of law – Mr Burns accepted that it was enough if the appellant could prove that any one of the individuals involved in the process was motivated to a significant extent by his having done any one of the three protected acts on which he relied – that is to say, bringing the 2013 proceedings, the grievance of 15 January or the complaint of 19 January arising out of the incident on the previous day. On the face of it, none of the relevant individuals had any knowledge of those matters, let alone was motivated by them. On the face of it, this was a case of dismissal for the dishonesty involved in the appellant having submitted a CV which gave a false account of the circumstances of his departure from Continental Tyres.

I have, of course, twice used the phrase ‘on the face of it’. That invites the obvious riposte that the whole problem with a strike-out is that the appellant has no chance to explore what may lie beneath the surface, in particular, by obtaining further disclosure and/or by cross-examination of the relevant witnesses. I am very alive to that. However, in a case of this kind, where there is an ostensibly innocent sequence of events leading to the act complained of, there must be some burden on a claimant to say what reason he or she has to suppose that things are not what they seem and to identify what he or she believes was, or at least may have been, the real story, albeit (as I emphasise) that they are not yet in a position to prove it.

The appellant picked up that gauntlet. It was his case, advanced in his particulars of claim and also in correspondence with the Tribunal prior to the strike-out hearing seeking disclosure of documents and telephone records, that a BA employee in the legal department, Mr Navdeep Deol, was already aware of the circumstances of the appellant’s departure from Continental Tyres and had a copy of the Employment Tribunal judgments; that he had in that knowledge sent the anonymous letter to the HR department; and that he was motivated by one or more of the protected acts. There was, as he put it, ‘a well-laid plan’ to get rid of him as a troublemaker. All this was summarised by the employment judge at paragraph 16 of the reasons and to some extent also in paragraph 21.

That “case theory” is not only speculative but highly implausible. The appellant says that it is supported by the coincidence of timing – that is, that the letter was received so soon after the two incidents of January 2014 – and that the speed with which it was responded to was also suspicious. It was ‘as if they were expecting it’. These are not in the least cogent points. It is possible there was indeed some connection between the incident on 18 January and the sending of the letter – that is, it may well have been sent by someone involved in that incident or associated with them – but that is very different from saying that there was reason to believe it was Mr Deol who had sent it. There is nothing in the least surprising in BA treating seriously an allegation that an employee, especially one with airside clearance, has been dishonest in the account given of the circumstances in which they left their previous employment.

After reviewing all that material, the employment judge at paragraph 22 of his reasons said this:

“Having considered the material currently me before and having considered what the claimant accepts was correct and what he puts forward as a challenge to the respondent’s stated case I am unable to conclude that there is any prospect of success. There were clear grounds for dismissal of the claimant. The matters upon which they are based are not contested, i.e. the provision of a CV containing false information as to the reason for the termination of the claimant’s employment with Continental Tyres. The claimant’s case appears to rest substantially on the assertion that the respondent sent itself the anonymous letter to trigger an investigation which would reveal true information of which the respondent was already aware as a justification for dismissing. This unlikely assertion cannot be proved by the claimant or evidence identified which might put in doubt the respondent’s case.”

Mr Allen criticises the use of the word ‘unlikely’ at the end of that passage. He says that ‘unlikely’ is not enough. It might perhaps justify the making of a deposit order, but it is not the same as a finding that the claimant had no reasonable prospect of success. Likewise, it was unfair to rely on the absence of ‘evidence’ at this stage. The stage for evidence had not yet arrived. I do not believe that that is a fair criticism of the paragraph in question. In my view, it is clear, reading it as a whole, that the employment judge did indeed, and wholly unsurprisingly, find that there was no reasonable prospect of an Employment Tribunal accepting the basis on which the appellant’s case was being advanced. That was partly because of its inherent implausibility, which is no doubt what he had in mind by the reference to likelihood, and partly because the appellant could point to no material which might support it, which is all I think that is meant by the phrase ‘evidence identified’.

Mr Allen submitted that in some ways the appellant’s focus on Mr Deol having himself produced the anonymous letter was a ‘distraction’. The ultimate focus should have been not on the appellant’s own beliefs about what happened but on the reasoning of the decision-makers, which might well have been motivated by the protected acts even if the appellant’s particular theory about how that came about was misconceived. I do not accept that. As I already said, in a case of this kind, where there is on the face of it a straightforward and well-documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced.

Mr Allen also placed some reliance on the decision in this court in A & B, to which I have already briefly referred, which involved a factual situation which is superficially not dissimilar. However, each case must turn on its facts. An important distinction between that case and this, as Mr Burns pointed out, was that there one or more of the same actors was involved both in the impugned decision and in the earlier events which gave rise to the protected acts, so that there was a real basis on which contamination of the latter decision might reasonably be suspected: see in particular paragraphs 57 and 58 of the judgment of Lloyd LJ.

For all those reasons, I do not believe that this experienced employment judge was wrong to reach the conclusion that the claims which he struck out had no reasonable prospect of success or therefore that the equally experienced judge in the EAT was wrong to uphold his decision.

I agree. Therefore, for the reasons that My Lord has given, this appeal must be dismissed.