Appeal No. UKEAT/0302/07/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 January 2008

Before
THE HONOURABLE MR JUSTICE WILKIE
MR P GAMMON MBE
MR D WELCH

MS H IYA-NYA	APPELLANT

BRITISH AIRWAYS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS H IYA-NYA
(The Appellant in Person)	
For the Respondent	MR B CARR
(of Counsel)
Instructed by:
Messrs Addleshaw Goddard Solicitors
Sovereign House
Sovereign Street
Leeds
LS1 1HQ	

SUMMARY

Practice and Procedure:  Striking-out/dismissal
It is only in a very rare case that a strike out application where there is a relevant dispute of facts should proceed to a decision without the Employment Tribunal taking evidence on the issues and making relevant findings of fact.

THE HONOURABLE MR JUSTICE WILKIE

1.	This is an appeal by Ms Iya-Nya against a decision of an Employment Tribunal sitting at Watford on 17 January 2007 and 6 February 2007 at which on a Pre-Hearing Review her claims against British Airways PLC and a Ms Liz Gardiner were struck out as having no reasonable prospect of success.  

2.	Ms Iya-Nya launched an appeal against that decision on a number of grounds and in due course it came before Beatson J for a preliminary hearing as to whether and if so which grounds of appeal should be advanced to a full hearing.  Beatson J determined that the grounds against the hearing in respect of British Airways could proceed to a full hearing but he dismissed the appeal insofar as it was an appeal against Ms Liz Gardiner.  For reasons which will become obvious, our Decision and the reasons for it will be kept very brief.

3.	The claim was brought against British Airways pursuant to section 44 of the Employment Rights Act 1996 and in particular pursuant to section 44(1)(c)(ii) in respect of certain complaints and in respect of certain other complaints under section 44(1)(d) and/or (e).  The Employment Tribunal, in conducting the hearing of the application by British Airways that these claims should be struck out, did so without having heard any oral evidence.  In a careful and well reasoned set of reasons they analysed the requirements of the respective sections closely and came to a number of conclusions.  

4.	They concerned the question whether the Claimant, at the time of taking the actions which she said were the protected actions, reasonably believed that the matters brought to the attention of British Airways were harmful or potentially harmful to her health and safety in respect of the complaints she made in 1990 and 1991, and in respect of the complaints made in relation to matters in 2000 and 2001 the question whether, on the evidence revealed by the documentation, she reasonably believed the circumstances of danger to be serious and imminent, as a result of which she either refused to return to her place of work or took appropriate steps to protect herself.  

5.	In addition to that, and in respect of the complaints in 1990 and 1991, an issue also arose whether it was reasonably practicable for the Claimant to raise the matters complained of before a health and safety committee. 

6.	It has become apparent to us in the course of hearing oral submissions from Ms Iya-Nya that in respect of these various issues there were potential issues of fact which were in dispute. 

7.	The Employment Tribunal proceeded to hear the application without hearing evidence on the basis that it did not believe that the facts were really in dispute so far as was relevant for their then present purposes and/or that they assumed in favour of Ms Iya-Nya that certain primary facts were as she had contended in her ET1 and supplemental pleading documents.

8.	We have had our attention drawn to a number of authorities, in particular decisions of the Court of Appeal in Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 and Arthur v London Eastern Railway Ltd [2006] EWCA Civ 1358, in each of which it is made clear that in dealing with such a preliminary application an Employment Tribunal ought, if there are facts in issue which are necessary to be determined for the outcome of the application, to hear evidence and to reach findings of fact.  That was not done here and in our judgment the Employment Tribunal erred in its approach to the preliminary applications.

9.	In addition, one of the main planks of the Respondent’s case was that these complaints brought under the health and safety provisions of the legislation were not brought in good faith but were opportunistically brought by reason of the fact that there was an otherwise comprehensive compromise agreement which precluded that the Claimant bring any other type of claim, other than the ones which she brought.  In our judgment, the Employment Tribunal disabled itself from forming a proper view as to the bona fides or otherwise of the claims brought by not requiring Ms Iya-Nya to give evidence on oath and to be subject to cross-examination in order that the Tribunal might form a view as to her bona fides or otherwise.  

10.	It is also to be observed that in the course of taking their decision the Tribunal decided that events which occurred after the dismissal, which occurred in April 2006, could not constitute acts or failures to act by way of detriment for the purposes of these statutory claims.  It is accepted by the Respondent that this was an error of law.  The Respondent sought to argue that those matters did not impact upon the main thrust of the decision.  That may or may not have been the case had there been no other reasons to question the correctness of the ET’s decision.  However, as we have indicated, there was an error of approach in respect of a number of the issues which the Tribunal had to determine and therefore the error in respect of post-termination acts simply is grist to the mill.

11.	It therefore follows that we uphold the appeal against the Employment Tribunal’s finding in favour of the Respondent on its application.  We have considered what order we ought to make and we are indebted to the Appellant and to Mr Carr representing the Respondent for their helpful submissions.  It seems to us that the application to strike out was one which was not by any means bound to fail.  The reason that we have overturned the decision of the Employment Tribunal concerns the procedural approach which they took rather than the conclusions to which they came.  In our judgment, therefore, it would be unjust simply to allow the appeal and leave the Appellant free to proceed to a full blown Merits Hearing.  In our judgment the Respondent, having made the application to strike out, is entitled to the benefit of a decision of an Employment Tribunal which is correct in law.  

12.	It is inevitable that the same tribunal which has previously decided this issue should not be tasked with addressing the matter afresh and therefore the order which we make is that the hearing of the Respondent’s application that the claim be struck out should be remitted to a differently constituted tribunal for them to determine the matter, no doubt having regard to the terms of our judgment, and hearing evidence which is relevant to the issues which they have to determine.  That is the order which we make.

13.	In addition, Mr Carr invites us, and we agree with him, that it would be sensible to make further directions for the claim to proceed in the event that the Employment Tribunal upon remission were to decide that the matter should proceed.  It seems to us sensible that if this matter does proceed beyond the strike out application the hearing of it should be divided so that there be a preliminary hearing at which an Employment Tribunal shall determine the question whether the Claimant did do any protected acts pursuant to section 44(1)(c)(ii), 44(1)(d), 44(1)(e) so as potentially to give rise to a claim.  

14.	If that were determined in her favour then there would be a further hearing at which the question of detriment and causation would be determined but if the Employment Tribunal were to decide that no such protected act was done by her then that would be an end of the claim and both sides would be spared the no doubt not inconsiderable expense and trouble of a hearing involving what on the face of it appear to be quite extensive issues concerning detriment and causation.  Therefore, to that extent the Appeal is allowed and an order will be drawn up accordingly.
15.	The order will be that the same Tribunal, at the same hearing, will consider the preliminary issue and the strike out application.