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Keywords striking out
Appeal against a decision by the ET not to strike out the claimant’s claims on the basis that they were scandalous, vexatious or had no reasonable prospect of success. Appeal dismissed.
The claimant brought claims of unfair dismissal and discrimination and victimisation on the grounds of race, sex and age against the respondent. The respondent was dissatisfied with the pleading in the ET1 and applied for further particulars. An order was made for the claimant to provide specific details of all matters upon which he relied in support of his allegations. Again the respondent was dissatisfied and applied to have the claims struck out. The EJ refused the application, saying
'In the circumstances I cannot see that it would be appropriate to strike out any of his claims at this stage as I cannot say that there have no prospects of success without making decisions on the veracity of witnesses from whom I have not heard.
I have also considered whether the fact that the claimant has brought earlier claims against other respondents, and failed, makes this claim vexatious or frivolous. I do not see that as the case – each case must stand or fall on its own merits.'
The respondent appealed.
The EAT dismissed the appeal, Applications to strike out on the basis that there is no reasonable prospect of success should only be made in the most obvious and plain cases in which there is no factual dispute and which the applicant can clearly cross the high threshold of showing that there are no reasonable prospects of success. In cases where there are real factual disputes, such as this, the parties should prepare for a full hearing rather than dissipate their energy and resources on deceptively attractive shortcuts.
Appeal No. UKEAT/0495/11/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
On 12 April 2012
HIS HONOUR JUDGE SEROTA QC (SITTING ALONE)
QDOS CONSULTING LTD & OTHERS (APPELLANTS)
MR S SWANSON (RESPONDENT)
Transcript of Proceedings
For the Appellants
MR G PRICE ROWLANDS (of Counsel)
Qdos Consulting Ltd
For the Respondent
MR S SWANSON (The Respondent in Person)
PRACTICE AND PROCEDURE
Imposition of deposit
Applications to strike out on the basis that there is no reasonable prospect of success should only be made in the most obvious and plain cases in which there is no factual dispute and which the applicant can clearly cross the high threshold of showing that there are no reasonable prospects of success. Applications that involve prolonged or extensive study of documents and the assessment of disputed evidence that may depend on the credibility of the witnesses should not be brought under rule 18(7)(b) but must be determined at a full hearing. Applications under rule 18(7)(b) that involve issues of discrimination must be approached with particular caution. In cases where there are real factual disputes the parties should prepare for a full hearing rather than dissipate their energy and resources, and those, of Employment Tribunals, on deceptively attractive shortcuts. Such applications should rarely, if ever, involve oral evidence and should be measured in hours rather than days. The Respondent failed to establish that the instant claims had neither a reasonable prospect of success nor little reasonable prospect of success.
HIS HONOUR JUDGE SEROTA QC
1. This is the appeal of the Respondents from a decision at a Pre Hearing Review on 8 April of last year at the Employment Tribunal in Birmingham presided over by Employment Judge Warren, who sat alone. Her Reasons were given orally at the hearing. Unfortunately, the recording has gone missing, so although the Employment Judge produced a further Judgment, she did so from Reasons reconstructed from her notes. This Judgment was promulgated on 29 June 2011. Mr Price-Rowlands, who has appeared on behalf of the Respondents, has suggested that other matters were raised on 8 April that do not appear in the Judgment of 29 June, but this is a case in which Murphy's law appears to apply, and the attendance notes taken by the Respondents' solicitors have also gone missing, and there are no other cotemporaneous notes available.
2. The Employment Judge had before her an application on the part of the Respondents to strike out the Claimant's case on the basis that it was scandalous, vexatious or had no reasonable prospect of success pursuant to Employment Tribunal rule 18(7)(b). The Employment Judge declined to strike out the claim as having little prospect of success and also refused to direct that the Claimant pay a deposit under rule 20. The Respondents' appeal came on the "sift" before HHJ Pugsley on 19 August of last year, and he directed that it should be disposed of under rule 3(7). The Claimant asked for a hearing pursuant to rule 3(10), which came before Lady Smith on 22 September 2011. She referred the appeal to the hearing that I have heard.
3. For the sake of completeness, I believe that there is other litigation between the parties and other Notices of Appeal, including one going to the question as to whether the Respondents' application to review the Employment Tribunal's decision was out of time and for a refusal to enlarge time for a claim that was out of time. There is also, apparently, an outstanding appeal in relation to an application to strike out another claim by Mr Swanson under the Disability Discrimination Act for want of particularisation and also on the basis that the Claimant had conducted those proceedings vexatiously, unreasonably or had no prospect of success. The Notices of Appeal in both cases were disposed of under rule 3(10) by HHJ McMullen QC on 23 February. There has also been an application to submit fresh evidence by the Respondents. This application came before Employment Judge Warren during the course of her review Judgment promulgated on 20 October 2011. Employment Judge Warren declined to review her earlier Judgment or to receive fresh evidence. I shall, of course, come on to her Judgments in more detail later in this Judgment.
4. I start by turning to the factual background. The Claimant is male. He is of Afro Caribbean origin. He is disabled, as is accepted by the Respondents, suffering from bronchiectasis. The Claimant tells me he is 57 years of age. I propose to deal with the issues in the proceedings briefly and neutrally because there has been no hearing as yet on the merits. The First Respondent, as I shall call Qdos Consulting, provides legal consultancy services, especially in employment law. The Claimant was employed by the Respondent as a senior litigation consultant from 29 July 2009. His employment terminated on 29 September 2010; the Claimant has maintained that he was constructively dismissed. The First Respondent maintained that he had committed gross misconduct and that was the reason for the termination of his contract.
5. The First Respondent maintains that from in or about July 2010, after a number of complaints from its clients, the First Respondent's managers met the Claimant to discuss issues arising from these complaints. These complaints, it is said, included failing to deal with issues on his files in an efficient and timely manner, not communicating with clients, and other matters concerning his conduct of litigation. The Respondents' investigations led them to conclude that the complaints were justified. The Claimant maintains that from the initial meeting he was subjected to unjustified and discriminatory bullying, and later victimisation also. The principal perpetrators, he maintained, were the Second Respondent, Ms Nicola Harris, and also two other Respondents involved to a lesser extent, Mr Ivan Spibey, who was the Third Respondent and was a human relations officer, and Mr Steve Greenwell, the Fourth Respondent, a director. The Respondents maintain, on the other hand, that the Claimant was not at all co operative or helpful in relation to its investigations or discussions as to the Claimant's management of cases. The Respondents maintain that the problems that had been encountered continued in similar fashion.
6. It is also said that the Claimant was aggressive to Ms Harris. The Claimant maintained he was being bullied, and he presented a grievance in relation to Ms Harris. He maintains that thereafter he was subjected to unwanted discriminatory conduct and his dismissal. The Claimant asserted that while he was in the First Respondent's employment his work was criticised and more closely monitored by his line manager than his peers. He maintains he was subjected to different treatment. He also was given a higher workload, and the Respondent reneged on an agreement to permit him to work at home, which he regarded as a reasonable adjustment. He lodged his grievance, to which I have referred, against Ms Harris in August, and a further grievance in September, in which he expressed dissatisfaction as to how he had been treated and the disciplinary action that had been taken against him. He maintained that his dismissal was discriminatory, and he was dissatisfied with the way in which the grievances were dealt with.
7. The First Respondent says that during the course of its disciplinary investigations it learnt that the Claimant had worked for another firm of local solicitors, Brindley Twist Tafft & James, which I shall refer to as Brindley Twist, and had been dismissed for failing to carry out work on his files. At the time of the Claimant's dismissal a decision of the Employment Tribunal in the Brindley Twist case was available to the Respondents. It is fair to say that the Employment Tribunal was critical of a CV that he had provided to Brindley Twist, and this led the Respondent to conclude that misrepresentations had been made to Brindley Twist and similar misrepresentations to them. The Respondents' case was that there was no discrimination, and that the Claimant was dismissed for gross misconduct, failing performance and obtaining employment as a result of a false CV in which he had omitted any reference to employment by Messrs Brindley Twist. As I have said, the Claimant denied any wrongdoing and maintained that the investigation and dismissal were discriminatory and constituted victimisation. There are clearly major factual issues between the parties.
The Claimant's pleadings
8. With that very brief background in mind, I turn to the Claimant's pleadings in the case. At page A47 I have the Claimant's ET1. The claim is for discrimination and victimisation on the grounds of race, sex, disability and age. The Claimant maintains he suffered harassment and bullying on these grounds; also, he suffered detriment as a result of a public-interest disclosure, and that his dismissal was unfair. The ET1 contains a narrative list of complaints. There is nothing specific to suggest, save possibly in the case of disability discrimination, any specific discriminatory intent, whether by virtue of race, sex or age, but I draw attention to certain portions of his ET1. At paragraph 21 of his ET1 rider the Claimant maintains that a Mr Mohammed Farooq, an external consultant, was dealt with in a different way from three other consultants who were white males, and maintains that there appeared to be a clear element of differential treatment by the company as to how it accommodated Mr Farooq and how it accommodated the other males. I draw attention to page A64 of the bundle and paragraph 35.17, where the Claimant asserts that after a meeting on 28 July with Ms Harris she maliciously engaged in a kind of witch hunt on the cases he was handling. She engaged in excessive monitoring of his files in what he could only regard as "further bullying, harassment and victimisation following my complaining about the manner in which she dealt with issues on 28th July 2010".
9. I mention that the allegation at least of victimisation appears to be set out fairly clearly; at page A65 at paragraph 35.19 the Claimant says that:
"During Nicola Harris' tenure as head of the department, the staffing had gone from a good mix of ages and ethnic composition as it [had been previously] […] to one where the staff makeup [was] younger and I represent the only ethnic minority in the team."
10. I have no knowledge as to what the gender make up of the team was. I draw attention as well to paragraph 64 on A69, in which it is said that a further act of discrimination, bullying, harassment and victimisation following a meeting on 10 September 2010 took place; on his refusal to compromise his employment he was sent a letter from Mr Spibey on 21 September in which a further allegation was made against him. At paragraph 81 on page A73 the Claimant asserts that he lodged an appeal against his dismissal for gross misconduct. He had requested information so he could properly respond to the allegations against him, but this was not provided, and he then asserts:
"[…] the disciplinary action was taken against me as a direct result of my raising a legitimate grievance against Nicola Harris and asserting my employment rights, as I am entitled to do; that the disciplinary action amounts to unlawful treatment on several grounds, including differential treatment and victimization contrary to the Race Relations Act 1976; the dismissal is an act of less favourable treatment, discrimination, and victimization following my raising a legitimate grievance; the dismissal is not only in breach of Qdos' own policies and procedures and the ACAS Code of Practice; it is also in breach of the Race Relations Act 1976, the Sex Discrimination Act 1975, the Disability Discrimination Act 1995; Public Interest Disclosure Act 1988; and the European Commission's Code of Practice Protecting the Dignity of Men and Women at Work […]."
11. Now, it may be said that it is difficult to discern discrimination on grounds of age, race or sex, but the victimisation claim under the public interest disclosure provisions now, I believe, set out in the Employment Rights Act seems tolerably clear. This formulation is repeated at paragraph 86, and at paragraph 88 there is a further assertion of victimisation. At paragraph 89 there is an assertion that the treatment to which the Claimant had been subjected was motivated by race or sex:
"I do not consider that either a white member of staff would be treated the way I have been, or that a female member of staff would be treated in this way."
12. He then goes on to assert that his treatment was in breach of the Disability Discrimination Act. At paragraph 95 Mr Swanson contends that it is clear from the action taken against him that the First Respondent's management has one law for a white female member of staff and another law for a black male member of staff, and that the company shows favourable treatment to a white female member of staff and discriminatory treatment to a black male member of staff who raises a legitimate complaint in relation to the unlawful conduct against him by a white female member of staff. I would have thought this is a fairly clearly understood allegation of discrimination on the grounds of gender. I say nothing as to whether the Claimant will make out such an allegation; that is not a matter that falls for decision by me.
13. Then, at paragraph 97 in relation to the dismissal, it is firstly asserted it is less favourable treatment, discrimination and victimisation following his raising a legitimate grievance, the Claimant repeating again it is in breach of the First Respondent's policies, the ACAS Code of Practice and various statutes to which I have already referred, and in particular he again claims the protection afforded to what are sometimes referred to as whistleblowers as the action was taken, he maintains, as a direct reaction to his raising complaints about the conduct of Ms Harris. He also goes on at paragraph 98 to assert that the Respondents' unlawful treatment has been "intentional, malicious, high handed and oppressive". He goes on to claim that he was unfairly dismissed (see paragraph 102) and contends that he had been subjected to victimisation as a result of making complaints against the First Respondent's management.
14. The Respondents were dissatisfied with the pleading and applied for further particulars. On 21 January 2011 an order was made by Employment Judge Warren on a case management discussion. She directed that:
"The claimant should send to the respondents and to the tribunal by 11 February 2011 specific details of all matters upon which the claimant relies in support of the allegation that the claimant has been discriminated against on the grounds of sex, race, disability and age, including all particular incidents relied on and, so far as possible, providing the dates of those incidents, the persons involved and all matters done or said about which he complains. The claimant is reminded to include every incident on which he seeks to rely, and to keep the document succinct."
15. The Respondent was then directed to serve an amended response within 21 days. Mr Price-Rowlands submitted that the Employment Judge must have considered that the particularisation in the original pleading in the ET1 was inadequate, otherwise she would not have made the order. The Claimant's response was to serve further and better particulars on 11 February 2011; I have these at page A99. These particulars are again to some extent narrative in chronological order, and they contain a fairly constant refrain in relation to specific allegations. I take, for example, paragraph 6, where he complains that at a meeting on 28 July Ms Harris accepted that Mr Swanson had a higher caseload than others in the department, and then there follows this sentence: "It is contended that this act was an act of discrimination, bullying and harassment motivated on the grounds of my race and/or sex and/or age". One finds similar suggestions throughout the further and better particulars, with no attempt to distinguish between discrimination on race, sex or age grounds. One finds this, for example, repeated – and I do not propose to go through them all – at paragraphs 21 23, 25, 26, 29, 31, and 33 35; and I could go on, but will not do so. There is also use of another phrase on a number of occasions: that the Respondent, "behaved in a high handed, malicious and discriminatory way".
16. The Respondent was dissatisfied with these particulars and made an application for further particulars, and an order was made to that effect on 8 April 2011. I do not think it necessary for me to go through the details of that order, but I note that the Employment Judge said this:
"The respondent continues to express concern at the broad brush approach, and lack of specifics in the claimant's case despite the orders made on the last occasion. I have some sympathy with the respondent in this regard, and have made it clear to the claimant that he needs to comply with this order. The claimant's case on disability discrimination is, it is accepted by the respondent at least comprehensible – not so his claims on the grounds of race, sex and age. There is no real attempt by him to define his comparators or to explain why particular acts are particular types of discrimination. The claimant is an experienced representative before this tribunal, as well as having brought other claims in his own right. He agreed that he understood the orders. He confirmed that the race claim is on the basis of his racial origin as defined in the last case management discussion Order."
17. She therefore directed that the Claimant should provide further particulars by 22 April 2011 with:
"[…] a schedule of all matters upon which he relied in support of his allegations he had been discriminated against on the grounds of race sex age or disability, the incidents, the persons involved and all matters done or said about which he complains. The schedule is specifically to explain the alleged nature of the discrimination, and why the claimant considers it to be so, as well as naming any real comparator, or fully describing any hypothetical comparator. If the claimant considers any incident to be discrimination of more than one type, he is to say so, and to separately carry out the same analysis for each type of discrimination."
18. Mr Price-Rowlands submitted again that it must be the case, and this is perhaps borne out by the passage that I have read out, that the Employment Judge accepted that the existing pleadings were insufficiently particularised.
19. Mr Swanson then provided a schedule, which I have at page A114. It consists of a large number of allegations of conduct of which he complained, going up to his dismissal. There is again a great deal of repetition. The matter complained of is firstly set out, the persons involved are identified, the matters relied upon set out, and then one finds:
"It is contended this was an act of discrimination, bullying, harassment and victimisation motivated on the grounds of my race and/or sex and/or age and/or disability."
20. This is repeated throughout the schedule. In another row in the table "Nature of Discrimination and Why", the Claimant asserts:
"Race: A comparator of a different race in the same circumstances would not have been treated as I have been treated.
Sex: A comparator of a different sex in the same circumstances would not have been treated as I have been treated. […]"
21. He then goes on to assert that the Second Respondent's sexual orientation was lesbian, and it is specifically contended she would not have treated a female member of staff in this way. I have to say that I cannot for the life of me see the relevance of Ms Harris' sexual orientation. Then:
"Age: A comparator of a different age in the same circumstances would not have been treated as I have been treated.
Disability: A comparator without my disability of bronchiecstacis in the same circumstances would not have been treated as I was treated."
22. The comparators are then identified:
"Nicola Harris, Alastair Haggerty, Heather Maitland and Nicky Cockerill.
Hypothetical Comparator: A hypothetical comparator in the same circumstances would not have been treated as I was treated on the grounds of my race and/or sex and/or age and/or disability."
23. One finds a similar pattern throughout. I have not counted the number of incidents relied upon, but there must be approaching 75, and they all follow a similar pattern. The matter complained of is set out, the persons involved are identified, and then it is asserted that comparators of different race, sex or age would have been treated differently, comparators are identified in each case – they are not always the same – and then that the hypothetical comparator would not have been treated in the same way. I do not think there is anything to be gained by going through these in any greater detail, because it will be apparent to anyone considering my Judgment what the allegations are.
24. The Respondents were dissatisfied and applied to strike out the claim under rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations, to which I shall turn, or seeking a deposit under rule 20. At the hearing that took place on 8 April the Respondents were able to produce materials from previous proceedings in which the Claimant had been involved. He had been involved in litigation against his former employers, Sandwell Borough Council. It was alleged by Sandwell Borough Council that the Claimant's work was unsatisfactory in the same manner as the Respondents went on to allege. It was said that once his managers began to complain the Claimant responded by making allegations of discrimination against his managers. There was also a claim for breach of contract, which was dismissed. The Employment Tribunal accepted the respondent's case save in one respect, where it found that the Claimant had been victimised. That finding, however, was reversed by the Employment Appeal Tribunal.
25. There were then the proceedings involving Brindley Twist. Brindley Twist's case was again that the Claimant's work was unsatisfactory in the same respects as in fact had been alleged by Sandwell and is now alleged by the Respondent. After his managers began raising these matters with him, it is said that he raised complaints of discrimination on the grounds of race and sex, and victimisation. This led to a compromise agreement, but the compromise agreement was itself the subject of further dispute and a further allegation of discrimination by the Claimant. There never was any adjudication upon the matters that were compromised by the compromise agreement; that is, the allegations that justified, so it was said, the Respondent's dismissal of the Claimant and the allegations made by the Claimant against the Respondent of discrimination. The disputes after the compromise agreement were in fact dismissed by the Employment Tribunal; the claims were struck out, as the Employment Tribunal considered it had no jurisdiction and there was no reasonable chance of them succeeding. The Claimant was directed to pay £2,500 towards the Respondent's costs in that case.
26. Pausing there for one minute, it has to be accepted that the only previous findings relating to the Claimant's performance as a legal consultant and of his allegations of discrimination and victimisation against his employers was that involving Sandwell in 2000 2001. The allegations in the Brindley Twist case remain just that, as, for present purposes, the allegations in the current case are.
The Employment Tribunal decisions
27. I now turn to consider the decision of Employment Judge Warren promulgated on 27 June 2011. On that occasion the Claimant appeared in person and Mr Price-Rowlands, who has appeared before me, appeared on behalf of the Respondents. Among other matters the Employment Tribunal had to deal with the Respondents' application under rule 18(7)(b). It was asserted before the Judge that the Claimant's case against the Respondent followed a similar pattern to other cases; he was disciplined, and responded by issuing proceedings with broad and unparticularised allegations of discrimination, insufficiently particularised to enable the Respondent to respond to them. Mr Swanson evidently argued that it was inappropriate for his claim to be struck out; it was fact sensitive, and the other cases in which he had been involved had been dealt with on their own facts. The Employment Judge considered the law, and in particular the case of Anyanwu v South Bank Students Union  ICR 391; she referred to rule 18(7)(b); and she also considered the meaning of the term "scandalous" and that no "reasonable prospect of success" meant something that was bound to fail, and that an Employment Judge was entitled to conclude a claim has no prospect of success when the Judge could not find a causative link between the protected act and the treatment complained of. Also, a strike out could be ordered where there was little dispute on the key facts, where the only facts disputed were peripheral or insignificant, or where there was no factual dispute.
28. The Employment Judge said she had considered the pleadings and the parties' arguments. The Claimant, she said, had brought and lost other claims against earlier employers and had also achieved a settlement in one case, the terms of which were unknown to her. Although his claim was widely drafted and extensive in nature, she said:
"5.3. […] it is sufficiently specific for me to identify heads of claim, and to some degree, both named and hypothetical comparators and incidents alleged to be discriminatory. There are clear issues of fact to be decided in relation to all of his claims, with disputed issues between the named comparators and witnesses.
5.4. In the circumstances I cannot see that it would be appropriate to strike out any of his claims at this stage as I cannot say that there have no prospects of success without making decisions on the veracity of witnesses from whom I have not heard.
5.5. I have also considered whether the fact that the claimant has brought earlier claims against other respondents, and failed, makes this claim vexatious or frivolous. I do not see that as the case – each case must stand or fall on its own merits."
29. She then went on to say that she had not seen the pleadings in those other cases, nor was she party to the decisions in them, and was unaware of the quality of the evidence put forward:
"5.5. […] The mere fact that the claimant, after his dismissal from this respondents' [sic] employ, brings these claims, is insufficient for me to assume vexation or frivolity on his part."
30. She went on then to consider the application for a deposit order, which she noted she could make if the Claimant's case had "little" as opposed to "no" prospect of success. She considered that she could not really take the Claimant's previous claim history on the basis of its outcomes because she would be making an assumption without foundation to say that this case had little prospect of success based on those facts alone. She factored in the material she had in relation to the Claimant's current case, which was highly fact sensitive:
"5.7. […] His account may or may not be preferred by the tribunal when he has given evidence. If his account is preferred then there would be facts from which all of the various heads of claim may potentially succeed."
31. She said that she had studied the claim and schedules and could see assertions based on each head of claim. She asked whether he was likely to be believed over the Respondents and their witnesses, and without having heard those witnesses she would be speculating to say one way or the other; she concluded she could not say that the case had little prospect of success and therefore did not order a deposit to be paid.
32. I now turn to the review Judgment, which was promulgated on 20 October 2011. Employment Judge Warren had before her on that occasion new evidence that the Respondent wished to adduce. Mr Price-Rowlands again appeared on behalf of the Respondent, with Mr Swanson in person. It was suggested by Mr Price-Rowlands that the Employment Judge had appeared at the previous hearing to accept that the Claimant's case was incomprehensible, insufficiently pleaded, riddled with irrelevance, unduly lengthy and confusing, and did not disclose a prima facie case. That certainly was Mr Price-Rowlands' case, but I think there must have been a misunderstanding so far as the Employment Judge was concerned, and I am not sure that Mr Price Rowlands suggested that that in fact was the view of the Employment Judge, but it matters not; Mr Price-Rowlands accepted that that is not what the Employment Judge had said.
33. The Employment Judge also refers to having been advised by Mr Price-Rowlands that the Employment Appeal Tribunal accepted it was arguable in law that the schedule of further and better particulars does not constitute a prima facie case and remains insufficiently particularised. I think that must be a reference to the decision of Lady Smith to which I shall refer; again, I think there must have been a misunderstanding, because the Employment Judge says:
"The Employment Tribunal has asked, I am advised, that I should consider this fully and precisely. I have not received any direct communication to that effect from the Employment Appeal Tribunal."
34. Again, I think there must be some misunderstanding there, because clearly all that had happened at the Employment Appeal Tribunal was that it was considered at a preliminary hearing that there were matters that should be investigated at a full hearing of the appeal.
35. The application for review was dismissed on a number of grounds, in particular that it had been made out of time. However, I think it helpful to note that in relation to the so called "new" evidence, which was designed to show that Mr Swanson was a vexatious litigant – not in the technical sense, but a litigant who made vexatious claims – the Judge concluded that the evidence could have been obtained with reasonable diligence for the earlier hearing. It consisted largely of the documents she said she had not seen: pleadings, witness statements, and suchlike. She considered it was not appropriate to extend the time to apply for a review, and she considered the impact of such evidence likely to be minimal. She went on to say that were she wrong about declining to extend time she would refer to her Judgment:
"The pleadings remain as they were then. I have heard no argument which persuades me that anything has changed. I considered the quality of the pleadings and concluded there was sufficient detail for the respondent to understand the case they faced and to respond to it. This case is highly fact sensitive, with the claimant alleging in particular his line manager treated him differently to others in the team who were white, female and younger than him. He gives specific details of actions he describes as being treated differently. The respondent argues justification for some of those actions and denies others occurred as described. The only way to resolve such a conflict is to hear the evidence. Further, the claimant makes specific reference to requests for adjustments to be made for his disability, which were denied, and instances of direct and indirect discrimination on the start times of work, which related, he said, to his disability, again which the Respondent denies. I have extended these reasons beyond the immediate issue in the light of my findings to assist the parties by attempting to answer some of the later questions I was asked to consider."
36. HHJ McMullen QC, as I have said, dealt with this matter under rule 3(10). Judge McMullen considered that the review Judgment was a discretionary Judgment well within the limits of the Employment Judge's discretion, and he drew attention to the relevant authorities overturning the exercise of the discretion, and in particular that case management decisions give a Judge a very broad judicial discretion and such decisions should be treated with deference by the superior courts (see CIBC v Beck  EWCA Civ 619).
37. I mentioned at the outset of this Judgment that the Notice of Appeal came before Lady Smith after it had been initially disposed of by Judge Pugsley under rule 3(7). Lady Smith indicated that in her opinion it was fairly arguable that Employment Judge Warren had failed to give sufficient weight to the nature and extent of the Claimant's previous claims with similarities to the instant claims, and it was arguable that there were reasonable grounds, given what she described as the rambling nature of the ET1, noting that he, although a litigant in person, had been employed to give advice on employment law as a senior litigation consultant, and that an adverse view of him had been taken by the Employment Judge at a costs hearing in the Brindley Twist case in relation to his CV. She also considered that the Employment Judge should have considered making a deposit order.
38. So far as fresh evidence is concerned, during the course of submissions I indicated to Mr Price-Rowlands that I had read the new material and did not consider that it added anything to the damaging material that was already before the Employment Tribunal (the decisions of the Employment Tribunals). I shall therefore say nothing more about it.
The Notice of Appeal and submissions
39. I now turn to the Notice of Appeal and Mr Price-Rowlands' submissions in support. Mr Price-Rowlands put his case on the cumulative effect of the insufficient particularity of the pleadings, he took me through the pleadings, and the other matter that I should take account of was the similarity with the other proceedings. The Claimant, he said, was a vexatious litigant in the non technical sense of the term. The decision in Anyanwu, to which I shall come, was not authority for the proposition that one could never apply to strike out a discrimination claim on the basis that there was no reasonable chance of success. He also submitted that since the introduction of the reversed burden of proof into discrimination legislation the standard of the prima facie case required by the Claimant was higher than it had been in the law as previously understood as a result of the decision of the Court of Appeal in King v Great Britain China Centre  ICR 516. Mr Price-Rowlands also took me to the 2010 edition of Tolley's, then edited by Slade J, at pages 322 333, as authority for that proposition. With great respect to Mr Price-Rowlands, I believe he has misread the passage in Tolley's. The burden is in fact higher not on the Claimant but on the Respondent, because unless the Respondent was in a position to prove that he had no discriminatory intent if a prima facie case of discrimination is raised from which an inference can be drawn, he has to prove that the discriminatory intent played no part in the treatment meted out to the Claimant, and in those circumstances the Employment Tribunal was required to, as opposed to having a discretion whether to, find that there was a discriminatory intent.
40. Mr Price-Rowlands drew my attention to the well known cases of Igen v Wong  IRLR 258 and Madarassy v Namura International  ICR 867. He submitted that the Claimant had failed to even raise a prima facie case. I think I can encapsulate his criticisms of the Claimant's further and better particulars by saying that they were neither further nor better. He said that on two occasions the Employment Judge had decided that the further and better particulars were inadequate, and there had been no change; therefore, there should have been a strike out. It was necessary for the Claimant to identify what the discrimination was, and he had not done so; there was no comparator. I again do not consider that that is strictly correct, because I have already referred to the certain specific references to Ms Harris and also to the manner in which the schedule is constructed.
41. I want to say something now about the law. An Employment Judge or Tribunal has power at any stage of the proceedings to strike out a claim or response on any of five specified grounds. Thus it may make an order, so far as is relevant to this case, under rule 18(7)(b):
"[…] striking out or amending all or part of any claim or response on the grounds it is scandalous or vexatious or has no reasonable prospect of success."
42. I regard the passages in the textbook in Harvey on Industrial Relations and Employment Law as being of assistance, and I need not go beyond them. In Balls v Downham Market High School & College  IRLR 217 Lady Smith explained the nature of the test to be applied when considering whether to strike out a claim on the ground of no reasonable prospect of success at paragraph 6:
"[…] the tribunal must first consider whether on a careful consideration of all the available material it can properly conclude that the claim has no reasonable prospect of success. I stress the word 'no' because it shows that the test is not, whether the claimant's claim is likely to fail nor is the matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects."
43. Harvey continues:
"As a general principle, discrimination cases should not be struck out except in the very clearest circumstances. In [Anyanwu], a race discrimination case in which preliminary question of law raised through the cadre of statutory constructions occupied the tribunals and courts on four occasions, Steyn LJ put forward the proposition against striking out in terms almost amounting to public policy when he stated at paragraph 24:
'For my part, such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact sensitive, and their proper determination is always vital in our pluralistic society. In this field, perhaps more than any other, the bias in favour of the claim being examined on the merits or demerits of its particular facts is a matter of high public interest.'
Lord Hope of Craighead stated at paragraph 37:
'Discrimination issues of the kind that have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact sensitive. The risk of injustice is minimised if the answers to these questions are deferred until the facts are set out. The Tribunal can then base its decision on its findings of fact rather than on assumptions as to what the Claimant may be able to establish if given the opportunity to lead evidence.'"
44. I also have in mind the Employment Appeal Tribunal rule 3.7
"(7) Where it appears to a judge or the Registrar that a notice of appeal or a document provided under paragraph (5) or (6)–
(a) discloses no reasonable grounds for bringing the appeal; or
(b) is an abuse of the Appeal Tribunal's process or is otherwise likely to obstruct the just disposal of proceedings,
he shall notify the Appellant or special advocate accordingly informing him of the reasons for his opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the notice of appeal or document provided under paragraph (5) or (6)."
I am not aware of any reported judicial consideration of this rule.
45. It may be instructive to compare the position of striking out under the Employment Tribunal Rules with striking out as provided for in the Civil Procedure Rules. I note that there is a close affinity between striking out under CPR 34.2(a), which enables the court to strike out the whole or part of a statement of case that discloses no reasonable grounds for bringing or defending a claim overlaps with part 24, on summary Judgment. Rule 24(2) entitles a court to give summary Judgment against a Claimant or defendant on a claim or issue where there is no real prospect of succeeding on the claim or issue, or successfully defending the issue. The notes to CPR 24 in the White Book make this clear:
"In order to defeat the application for summary Judgment, it is sufficient for the Respondent to show some prospect; i.e. some chance of success. That prospect must be real; i.e. the court will disregard prospects that are false, fanciful or imaginary. The inclusion of the word "real" means the Respondent has to have a case which is better than merely arguable. The Respondent is not required to show their case will probably succeed at trial; a case may be held to have a real prospect of success even if it is improbable. However, in such a case the court is likely to make a conditional order."
46. As I mentioned during the course of submissions, I was struck with some dicta of Bingham LJ in relation to the old rules relating to summary Judgment under the rules of the Supreme Court, order 14:
"The high cost of litigation and the premium on holding cash when interest rates are high greatly increase the attractiveness to commercial plaintiffs of procedural shortcuts such as are provided by order 14 and order 29 Rule 12. A technical knockout in the first round is much more advantageous than a win on points after 15, so plaintiffs are understandably tempted to seek summary Judgment or interim payment in cases for which these procedures were never intended. This is a tendency that the courts have found it necessary to discourage (Home & Overseas Insurance Co v Mentor Insurance [[1990 1 WLR 153], British & Commonwealth Holdings v Quadrex  QB 842]). These cases emphasise that order 14 is for clear cases; that is, cases in which there is no serious material factual dispute of a legal issue. They are no more than the crisp legal question as well decided summarily as otherwise. Order 29 Rule 12 enables the court to order payment to a plaintiff to the extent that a claim, although not actually admitted, can scarcely be effectively be denied. The procedure is entirely inappropriate where the plaintiff's entitlement to recover any sum is the subject of any serious dispute whether of law or fact. That is not to say in either case that a defendant with no or no more than a partial defence can cheat a plaintiff of his just deserts by producing hefty affidavits and voluminous exhibits to create an illusion of complexity where none exists. Where the point of issue is at heart a short one, the court will recognise the fact and act accordingly no matter how bulky its outer garments; but it does mean that where there are substantial issues of genuine complexity the parties should prepare for trial, perhaps, as here, with trial of preliminary issues, rather than dissipate their energy and resources on deceptively attractive shortcuts."
47. In considering this matter I have found it helpful to remind myself of what a claimant needs to prove in order to succeed in the claim that he has suffered discrimination or victimisation – which is, I think a form of discrimination – and this will inform me when I come to consider whether the Respondents can establish that the Claimant's case as disclosed in his pleadings has no reasonable prospect of success. I need go no further than the Judgment of Elias J, as he then was, in Law Society and Ors v Bahl  IRLR 640. The following principles can be derived: the onus lies on the Claimant to establish discrimination in accordance with the normal standard of proof; there is generally no direct evidence of discrimination, so it is necessary to draw inferences. You cannot draw an inference of discriminatory conduct simply from the fact that a Claimant has been subjected to unreasonable treatment – that is, the Glasgow City Council v Zafar  IRLR 36 trap – nor can one draw an inference simply from a difference in colour or ethnicity, or that the victim of unreasonable treatment has a protected characteristic. The absence of explanation for unreasonable conduct, on the other hand, may entitle the Tribunal to draw an inference of discrimination, but it is not then the mere fact of unreasonable behaviour that entitles the Tribunal to infer discrimination. It is not unreasonable conduct without more, but rather the fact that there is no reason advanced for that conduct. It is possible to infer that there may be discrimination both on grounds of race and sex after considering the evidence in respect of each, but if the evidence does not satisfy the Tribunal that there is discrimination on grounds of race or on ground of sex considered independently, it is not open to a Tribunal to find either claim satisfied on the basis that there is nonetheless discrimination on grounds of race and sex when both are taken together.
Discussion and conclusions
48. It is clear from the rules and authorities that I have referred to that the burden upon an applicant who seeks to strike out a discrimination claim under rule 18(7)(b) is a high one and it is necessary to go further than showing that the case is weak or perhaps unlikely to succeed, but that it has no reasonable prospect of success.
49. I would observe, bearing in mind the high cost to employers of conducting a hearing in the Employment Tribunal not only in terms of its legal costs but the expense of its employees attending lengthy proceedings (for example, I note that the Claimant's claim against Sandwell Borough Council took some 17 days), there is a temptation to take advantage of a procedural shortcut to avoid these expenses. As Bingham LJ put it in the passage that I have cited, "a technical knockout in the first round is much more advantageous than a win on points after 15". However, applications to strike out on the basis that there is no reasonable prospect of success should only be made in the most obvious and plain cases in which there is no factual dispute and which the applicant can clearly cross the high threshold of showing that there are no reasonable prospects of success. Applications that involve prolonged or extensive study of documents and the assessment of disputed evidence that may depend on the credibility of the witnesses should not be brought under rule 18(7)(b) but must be determined at a full hearing. Applications under rule 18(7)(b) that involve issues of discrimination must be approached with particular caution. In cases where there are real factual disputes the parties should prepare for a full hearing rather than dissipate their energy and resources, and those, I would add, of Employment Tribunals, on deceptively attractive shortcuts. Such applications should rarely, if ever, involve oral evidence and should be measured in hours rather than days.
50. It is accepted by the Respondents that the Claimant's case of disability discrimination is sufficiently particularised and will have to go to a hearing. It also seems to me, although this has not been the subject of discussion, that the claim for unfair dismissal will have to go forward to a hearing as the allegations relied upon are sufficiently pleaded. It also seems that the allegations of victimisation are sufficiently clear to go to a full hearing. I have cited the principles extracted from Bahl at some length, because there is a need to ask in relation to discrimination on the basis of age, sex or race whether on the material pleaded the Claimant might raise a sufficient case so as to call for a satisfactory explanation from the Respondent. I am unable to say that it is not arguable that if the Claimant establishes a significant number of incidents of what might be neutrally described as unreasonable or unfair treatment, that he is in a small minority as regards his ethnicity, his sex or his age, and that he has been treated less favourably than comparators, he may be able to raise an inference of discriminatory treatment and, in the absence of a satisfactory explanation, to establish his case. I accept the pleading in relation to age, race and sex discrimination is not perfect, but it is sufficiently clear what the factual allegations are, the nature of the alleged discrimination and the identity of comparators and I am comforted by the fact that the Employment Judge on two occasions has considered that they are sufficiently clear; after all, she may well be trying the case.
51. In my opinion, the effect, cumulatively or on its own, of the other proceedings referred to by Mr Price-Rowlands is set too high. Of the two previous cases where complaints had been made by the Claimant there are said to have been complaints made in relation to the Claimant's work followed by complaints about his management. The Claimant then raised allegations of discrimination. Only one of those cases was fought; the Brindley Twist case was compromised, so I really do not consider that these cases give sufficient assistance in terms of adverse findings as to totally destroy the Claimant's credibility either, as I have said, viewed on their own or when coupled with what I would describe as the pleading point. I am unable to say that there is no reasonable chance of success.
52. I also bear in mind that the decision of the Employment Judge was essentially discretionary; the authorities establish that in terms of case management Employment Judges are given a wide discretion, and courts should be slow to interfere with the exercise of that discretion unless it can be shown that the Employment Judge has acted outside the scope of the generous discretion afforded to him or her.
53. I have considered whether the Respondents have made out a case on the lower threshold for the Employment Judge to order a deposit. It seems to me that that threshold has not been reached either. I wish to point out that I am saying nothing as to the ultimate merits or strength of the Claimant's case; I am merely saying that the Respondents have failed to satisfy me that the Employment Judge was wrong in declining to strike it out on the grounds it had no reasonable prospect of success or order that the Claimant pay a deposit on the grounds there was little prospect of success. It only remains for me to thank Mr Price-Rowlands and Mr Swanson for their assistance.