Ahir v British Airways Plc: EAT 15 Apr 2016

EAT Practice and Procedure: Striking-Out/Dismissal – The Claimant – employed by the Respondent on a fixed-term basis in an airside ground staff capacity – had complained that his dismissal had been an act of victimisation contrary to section 27 Equality Act 2010 (in respect of previous complaints against the Respondent and a more recent complaint of racial harassment) and/or was unfair pursuant to Regulation 6(1) of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the Claimant having complained about the Respondent’s rejection of his application for permanent employment) and/or constituted a wrongful dismissal. For its part, the Respondent contended that the dismissal was due to admitted falsehoods on the Claimant’s CVs used to seek permanent employment, something that had been drawn to the Respondent’s attention by an anonymous letter. Accepting he had, indeed, lied on his CVs and this could provide a good reason for his dismissal, the Claimant nonetheless contended the Respondent had concocted the ‘anonymous’ letter and this was all a sham to punish him for his various complaints.
At a Preliminary Hearing to consider the Respondent’s application to strike out, the ET took the view that the Claimant’s case in this regard was founded upon baseless and unlikely assertions and had no reasonable prospect of success. Accordingly it struck out the dismissal claims, albeit that other (related) matters proceeded to a Full Merits Hearing. The Claimant appealed against the strike out decision.
Held: dismissing the appeal
The striking out of a claim was a draconian action and constituted a power to be used exceptionally, in particular where there was a factual dispute, as would usually be the case in discrimination cases and, more generally, where the reason for a dismissal was in issue (applying Anyanwu v South Bank Student Union [2001] ICR 391 HL; Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 CA; Balls v Downham Market High School and College [2011] IRLR 217 EAT; Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755 CS; and Romanowska v Aspiration Care Ltd UKEAT/0015/14/SM). In the present case, however, the ET had been entitled to conclude that the Claimant’s positive case – that the anonymous letter had been a sham – was inherently implausible and had no reasonable prospect of success. The real question raised by the appeal was whether the ET had proper regard to the need to test the Respondent’s case or whether it had lost sight of the need to hear evidence from the decision taker(s) as to the reason for a dismissal.
Having regard to the reasoning as a whole, it was apparent that the ET had carefully recorded the narrative history, which was not in dispute and which made clear that some six separate managers had considered the content of the letter and had individually determined it was something that required further investigation and, ultimately, disciplinary penalty. The Claimant’s case did not challenge that history. For his complaint to succeed would require an ET to find that considerations of the Claimant’s protected acts had tainted the thought processes of six separate managers, although there was no evidence that each had been aware of those acts and it was accepted that the Claimant had lied on his CV and that this provided a proper basis for his dismissal. That concession inevitably meant that the wrongful dismissal was bound to fail. The uncontested facts also meant, however, that the Claimant’s claims were indeed founded on unlikely assertion. Where a case is properly to be described as fanciful, an ET could permissibly take the view that it had no reasonable prospect of success; that was this case. The ET had been entitled to strike out the claim and the appeal would be dismissed.

Eady QC HHJ
[2016] UKEAT 0014 – 16 – 1504
Bailii
Equality Act 2010 27
England and Wales

Employment, Discrimination

Updated: 17 January 2022; Ref: scu.565115