At the Employment Tribunal the Claimant was represented by her then solicitor, Mr Maidment. In this Tribunal she has been represented by Mr E P Morgan of counsel. The First and Second Respondents have been represented at the Tribunal by their solicitor, Mr Buckle, who has represented them throughout, and before me by leading counsel, Mr John Bowers QC.
I will deal with the facts in more detail in a moment but at this stage it is sufficient for me to say that the First Respondent is a higher educational institution. The Claimant was not employed in an academic capacity in that institution but was employed latterly as Director for Community Development & Partnership Development. Her employment commenced on 25 March 2002 and ended, as I have indicated, on 27 November 2007. The Second Respondent can be described as the Principal of the institution. It was assumed by the Employment Judge that for the purposes of his consideration of the application under rule 18 that the Second Respondent had very considerable influence on all significant decisions within the College; that is set out at paragraph 4. He has been accused by the Claimant of having sexually harassed her.
The Form ET1 is dated 25 February 2008. It commences at p. 12 of the bundle but the pertinent part runs from pp. 20-23 where the grounds of complaint are set out. In paragraph 2 the Claimant makes what might be described as a general allegation that throughout her employment by the First Respondent she had been "subjected to unwanted conduct and attention of a sexual nature by the" Second Respondent. At paragraph 3 she alleged that a pattern developed "whereby following the rejection of a sexual advance the Claimant was treated adversely by being ignored for a period by the Second Respondent or more significantly with alterations made to her role". Paragraph 4 alleges a specific incident, in effect of indecent assault, on 18 September 2006. Paragraph 5 details a move from one post on one campus to another campus that follows a few days after that. Paragraph 6 refers to a specific allegation of, in effect, studied rudeness in a conference in October 2006. And paragraph 7 alleges that, starting in July 2007, it was suggested that the Claimant was at risk of redundancy; she being the only person, she alleged, to then be made redundant. There was a meeting on 13 July 2007, which is dealt with at paragraph 8 and which she suggests, at least by implication, was not well prepared and resulted in a certain amount of ad hoc calculations as to her redundancy entitlement. According to paragraph 8, it seemed to the Claimant to be the final word. Her state of mind is described at paragraph 9 as being that of failing to understand the rationale for the redundancy and the fact that there appeared not to have been, as she puts it, any "genuine attempt to retain her within the organisation". The only conclusion that she could reach was that this was related to the allegations that I have described raised in the preceding paragraphs; and she made the point that the Second Respondent managed the organisation "very closely and effectively" and made "all key decisions".
She had not before then disclosed any allegations against the Second Respondent to her employer, the First Respondent, but on 16 July she lodged a written grievance in respect of sexual harassment. That written grievance is to be found at p. 40 of the bundle. In this hearing, paragraph 16 has been referred to. It reads:
The paragraph opened with the words "Since then"; that was a reference to the staff conference in October 2006. It is said that is an indication the situation, albeit at a lower level, was still continuing with the Second Respondent ignoring the Claimant.
The redundancy situation appears to have progressed to the point of there being a Compromise Agreement. But then the situation was reversed: the Claimant received a letter on 17 July indicating that she had not in fact been made redundant, and so she continued in employment. There was a meeting on 9 August 2007 with Mr D, who was employed by the First Respondent. At that meeting her grievance issues were discussed, and at paragraph 13 the Claimant says this:
There then occurred an event that the Claimant herself described as coming "out of the blue". By 24 August the First Respondent had become aware that an article was likely to be published in the Times Higher Educational Supplement. That article, the First Respondent was aware, was likely to be critical of the conduct of one employee whose qualifications were being questioned by a fellow academic. Accordingly, the First Respondent asked all staff to confirm, in effect, the information relating to their higher degrees. At p. 45 of the bundle there appears an email thread the gist of which was that on 24 August staff were asked to provide in relation to higher degrees, "the title of the degree, the university or awarding body, the year of completion, the topic of your final year dissertation and any particular area of research interest that you may have". By 6 September only two people had not responded, one was the Claimant in this case, the other person was a man called E. On 7 September 2007 the Times Higher Educational Supplement published an article by Melanie Newman entitled "PhD questions spark legal row" (p. 46 of the bundle). The article reported there had been an exchange between somebody in New Zealand and E as to the PhD which Mr E had been awarded or acquired. This exchange had started apparently in June and Dr or Mr E had been increasingly irritated by the persistent enquiries by the academic in New Zealand, to the point, accordingly to the article, where he had threatened legal action. It seems that Dr E resigned shortly afterwards. The circumstances of his case are not completely clear but it seems at least likely that he did not have a bona fide qualification or the right to style himself as "Doctor".
The grounds of complaint continue at paragraph 15 by the Claimant indicating that she had listed her qualifications at the time of having been headhunted from another College and had provided copies of all the relevant certificates to the First Respondent at that time.
Paragraph 16 is significant it reads as follows:
The Claimant makes the point in her grounds of complaint that she was not employed in a teaching role and that she had presented the certificates then in 2002 and that had never been questioned.
She describes the allegation in respect of the University of Hull qualification as being one raised towards the end of the disciplinary process subsequently pursued against her; and, by paragraph 19 of the complaint, she regards the primary allegation, as she puts it, as being that she had had bought a qualification from the University of Delaware and brought the Respondent into disrepute. This was not something that had been the subject of any great publicity, and so her case was she had not brought the institution into disrepute by possessing the qualification and that she had only used her title of Doctor in limited circumstances. By paragraph 21 she said that the University of Delaware had only recently been discredited by selling qualifications but when she gained her qualification from that institution in 1995 she had been unaware as to whether or not such a practice existed and she had provided a research paper of acceptable standard in order to gain a Ph.D qualification. She had not, she said in the grounds of complaint, purchased the qualification.
Complaint was made by the Claimant that throughout the disciplinary process she had not been afforded proper disclosure of information. She herself had offered to disclose all her financial information in order to demonstrate that she had not purchased the degree. She says at paragraph 22 that:
She goes on to say in paragraph 23:
She continues at paragraphs 24 on:
I have taken the time to identify the Claimant's case because it seems to me that is the point of departure so far as a consideration of whether this is a case that has no reasonable prospect of success.
The case against her is based on documentary material, some of which, namely notes of disciplinary and grievance hearings, but in particular disciplinary hearings, consist of what she herself has said. The starting point in the documentation is at p. 36 of the bundle, the Application for Employment form, which dates from December 2001 or at least the closing date was December 2001 (the form appears also at p. 39 to have been dated 1 December 2001). The form's preamble reads as follows:
The Respondents to this appeal draw attention to the fact, which they say is not without significance, that under personal details the Claimant described herself as "Dr.". At p. 38 a table of Education & Qualifications appears. That has been filled in by the Claimant. The first entry is Hull University Postgraduate Certificate in Higher Education; that is said to have been between the dates of 1997 and 1999, and there is no question but that she was awarded such a qualification - I understand the certificate to be at p. 53 in the bundle. The next entry is the subject of controversy. She describes herself as having obtained a "PH.D in Philosophy of Psychology". The dates are said to be between 1991 and 1996. At p. 55 a photocopy of a certificate can be seen. The institution at the head of the certificate is said to be "The Trinity College" that is in large type. In much smaller type below the following appears:
It goes on in the body of the document to indicate that there has been conferred upon the Claimant the degree, rank and academic status of Doctor of Philosophy in Psychology, and it is dated 1 July 1996.
The next entry in the Entry & Qualifications table at p. 38 is a Masters Degree in Educational Studies. That is said to have been awarded between or as a result of study between 1988 and 1991. I understand it to be not in dispute that such a qualification was awarded and the certificate appears at p. 54 of the bundle.
The next entry is Batchelor of Science (Hons) U.S.A., said to be between 1979 and 1981. Then there appears Batchelor of Education. In my copy of p. 38 the years 1976 to 1979 have been crossed out and below that there is Youth & Community Diploma and the years 1976 and 1979 appear opposite that, and one reading of that may be that those are different aspects of the same thing. That I understand to be the Batchelor of Education at the University of Hull, which the Claimant accepted in paragraph 16 of her grounds of complaint at p. 22 had been, as she put it, "inaccurately stated". This was "a slightly different qualification after a similar three (year) length period of study".
The final entry at page 38 is I think not pertinent to this case.
On page 39, it is pointed out that the terms of the declaration are that the applicant for the job understands that:
and then on the last line above the signature the applicant for the job states the following:
As will be appreciated from the recitation above relating to the grounds of complaint in this case, the Claimant's position is that she had produced the material. She never produced the Batchelor of Science certificate nor the Batchelor of Education Certificate from Hull because she did not have them, but she had produced the other material, and that had never been challenged.
In the e-mail traffic on 7 September the Claimant answered questions as to what her qualifications were. The point is made that before doing that she had, it might be thought prevaricated, by saying that the data base held her qualifications, and when that proved not to be a satisfactory answer, she said the following in an e-mail on 7 September 2007 at 10.33:
I ought to add that this is a further iteration of her signing herself as "Dr."
She was asked fairly shortly afterwards by an email in reply the following:
The Claimant replied on the same day, 17 September, shortly afterwards. Her reply was as follows:
Shortly afterwards on 20 September 2007 the Claimant was suspended by a letter written by the Registrar, Mr D. The first sentence reads as follows:
The Claimant's grievance had been rejected on 11 September and an appeal was heard on 23 October. In the meantime on 28 September there was a disciplinary investigatory interview held between Mr D and the Claimant. During the course of that the Claimant was asked a number of questions by Mr D. In the third paragraph at p. 52A Mr D was asking about the Batchelor of Education. The Claimant accepted that it was from the University of Hull. She was asked to confirm the level of the qualification and she replied that it was accepted as a B.Ed. degree. She said it was not an honours degree but an ordinary degree.
She was then asked about the Trinity College and University certificate, which I have indicated is at page 55. She was asked where she did the study, and she indicated that it was a correspondence course. She was asked whether this was the B.Sc and not the doctorate, and she replied:
Mr D asked her about paperwork, and the reply appears to have been somewhat of a non sequitur because the Claimant said that there was no financial arrangement. Mr D persisted in relation to the paperwork. The Claimant said that she was trying to find the evidence.
At page 52B she indicated that the qualifications from America were not by examination. She was asked about the PhD again later in the meeting and at page 52C she said:
She was asked questions about how the Doctorate had arrived (again that is to be found at p. 52C) and she could not remember. She was asked where she sent her work for marking and eventually she said:
She also said later in that interview, making the point that she reiterated in her originating application, that she had had a letter confirming her employment. She said
As part of the investigation the First Respondent obtained material from the Internet relating to the Trinity College and University. This material is to be found between pp. 56 – 69. It is quite clear from that material that in 2007, and the material was obtained on 5 October 2007, this institution firstly appears to have had its office in Spain, in Fuengirola near Malaga; and, secondly, it is clear from the material that the institution was prepared to sell qualifications, albeit it suggested that there had to be some sort of experience before the qualifications would be provided (at least in some instances).
On 12 October there was a disciplinary meeting with the Claimant. Present then was F, who in effect chaired the meeting. Mr D was now in effect presenting the case against the Claimant. He reiterated a good deal of what had been said earlier. What he said at p. 71 is of considerable importance to this case. In the third paragraph on p. 71 the following appears:
And he then goes on to say immediately afterwards:
The Claimant in that meeting said as follows:
Then she goes on to say that she has worked hard and she proffers the name of two people who she says can provide support for her contention that she had produced material upon which she was assessed and upon which or in respect of which the PhD and the BSc were awarded.
There was then a meeting between F and G, who was one of the people put forward by the Claimant; that was on 1 November 2007. G said this:
After that the disciplinary hearing was reconvened on 22 November 2007. It is clear that the First Respondent had had the material, namely the booklet, assessed. It was said by somebody who had looked at it to be "no higher than level 3". Mr Bowers QC told me that means that it was at best A level standard. The Claimant said that it was probably level 2 to 3 standard work.
There was then discussion of the Hull University qualification. There was no B.Ed to be found in any of the names by which the Claimant had been known in the records of Hull University. And in the course of that, Mr D who was in attendance, reminded the Claimant:
The Claimant's position was that she found the whole process very intimidating. She said "At no time had the College been misled about her qualifications." She also said the "original claim that she had purchased her qualifications" had yet to be shown. She said "she certainly did not purchase her qualifications on the internet; she said it was not even around at the time she studied for her PhD." She reiterated that she had not misled the College. She refuted the allegations, and then she said the following:
She was asked about the brochure that was the only evidence of work that had been provided. She said that she believed that that was "pioneering and groundbreaking" at the time. It was the best work that she could find. The point was made to her that she had had more than three weeks to find material and that was all that had emerged. The point was made forcefully that Trinity College and University was an organisation that "offered higher degrees within weeks and anyone in possession of one was in danger of academic fraud". The Claimant's reply was that was not so when she had got her qualifications, and what she said later was this (said in the context that someone who she wanted to be present had not been able to be present for at least part of the meeting but it is not entirely clear):
As a result of that meeting a decision was made by the First Respondent which was communicated to the Claimant in a letter dated 27 November 2007 by F, who was the Vice-Principal of the First Respondent. The decision is as follows:
There was then reference to the advertisement of that institution on the web and the letter continues:
It is not possible to know how much of that material was poured over by the Judge in the course of the hearing at Hull on 11 July 2008. That hearing had been requested by the Respondents in a letter dated 30 April 2008. It seems that no objection was taken to that course and the matter was argued on the basis of the material or some of the material that I have just recited in detail. The Employment Judge, Judge Forrest, in para. 3 of the judgment, at p. 2 of the bundle, referred to the article in the Times Higher Educational Supplement and the case of E. That is really as much of the factual matrix of this case as appears in the judgment of the Employment Judge. He moves from that to paragraph 4 which reads as follows:
Paragraph 5 goes on
So the Employment Judge advanced this analysis. Firstly, that the case against the Claimant in relation to the BSc and PhD was a false claim supported by clear evidence, indeed supported by what he said was overwhelming documentary evidence. He concluded that she could not in good faith have thought that she was entitled to say that she had been awarded a Doctorate and in respect of the Batchelor of Education she accepted that she had never been awarded the degree. The second stage of his analysis appears to be that being so there could be no argument but that she had been fairly dismissed. The third stage of his analysis was that since all this had been triggered, almost one might say deus ex machina by Mr E, Mr E's probity being called into question in the Times Education Supplement, that must be clearly and arguably a break in the alleged continuity or chain of connection between the earlier allegations of earlier incidents of sexual impropriety and sexual harassment, on the one hand and the grievance procedure and the way in which the grievance procedure had been conducted, on the other.
Mr Morgan, on behalf of the Claimant, submits that analysis involves an error of law on the part of the Employment Judge, because in arriving at those conclusions he has in effect assumed that there can be no factual debate and no possibility of a contradiction or controverting of the case put forward by the Respondents.
Mr Bowers QC, on behalf of the Respondents, submits that the evidence is so overwhelming that this was a perfectly proper conclusion for the Judge to have come to; one that is in effect a decision of fact and that no error of law arises. That, if I indulge Mr Morgan by accepting his submissions, I will simply be coming to a different conclusion on the facts and that is certainly not the function of this Tribunal.
There has been considerable discussion during the submissions of the case of North Glamorgan NHS Trust v Eszias [2007] EWCA Civ 330 also reported [2007] IRLR 603 , a case of an oral and maxillofacial surgeon, who was summarily dismissed, he claimed, because he was a whistleblower; also he said his dismissal was plainly unfair because of conventional grounds under s.98. The reason put forward by the Trust for his dismissal was that he had been responsible for a breakdown of relationships in his department. The relationship of trust and confidence had been destroyed and his employment simply could not continue, and that, therefore, he had been fairly dismissed. The Trust sought and obtained from the Employment Tribunal a hearing under rule 18, and as a result the Employment Tribunal struck out the claim pursuant to rule 18(7). Rule 18(7) in its pertinent part reads:
The strike out was appealed to this Tribunal where the then President, Elias J, allowed the appeal on the basis, pertinent to this case, that it was not an appropriate case for striking out. At paragraph 4 of the judgment of the Court , given by Maurice Kay LJ, the balancing exercise that needs to be considered as a background to an application under rule 18 is referred to. It was submitted in that case by Mr Pitt-Payne, who appeared on behalf of the appellants, as has been submitted in this case today by Mr Bowers QC, that the whole purpose of altering rule 18(7) so as to include the rubric "no reasonable prospect of success" is so as to prevent cases which are truly hopeless from occupying the time of tribunals and the parties having to expend costs on such hopeless litigation. At paragraph 4, Maurice Kay LJ says this
At paragraph 8 there is a synopsis of the competing cases in Ezsias . The surgeon's case was that he had made a number of complaints about his colleagues and about the way the department was run and the shortcomings with which it was run, in the course of which he was alleging fraud on the part of colleagues and dereliction of duty relating to patients and so on. He claimed that the safety of patients was being jeopardised. The Trust's case was that the relationship between him and his colleagues had broken down, and that it was that rather than his disclosure of what he saw as the shortcomings of the Trust that had led to his dismissal. The Trust's case was supported by a letter from nine of the respondent's colleagues, who had all expressed great concerns about his practice and indicated that there was a total breakdown in relationships. The Tribunal judge had expressed herself in trenchant terms set out at para. 12. She had said:
The issue was of course was whether there was an error of law committed by the Tribunal in relation to that analysis. At para. 26 Mr Pitt-Payne had made a submission which was accepted by the Court. His submission was:
The Employment Appeal Tribunal had proceeded on that basis, and what had been submitted to the Court of Appeal by Mr Pitt-Payne was that Elias J had in effect glossed the statutory formula "no reasonable prospect of success".
Mr Pitt-Payne justified that by the following quotation from the judgment:
And a little later there is a further quotation:
The Court of Appeal's reaction to that as express by Maurice Kay LJ is to be found at para. 27 where he says:
And he goes on to quote Lord Steyn in Anyanwu v South Bank Students' Union in paragraph 31.
Mr Bowers submits that this case, the case of Claimant A, is to be distinguished from Ezsias as being a case where there is not, as Maurice Kay LJ put it, "a crucial core of disputed facts". In this case, Mr Bowers submits, there is so much that is admitted or is incontrovertible that the Employment Judge was quite right to express himself in the terms that he did in paragraphs 4,5 and 6 of his reasons. Mr Bowers was at pains to indicate that it would be, as he put it several times, a "parallel universe" if the Tribunal was to accept that the Claimant could be anything other than aware that she was not entitled to either describe herself as the recipient of a Batchelor of Education degree from the University of Hull, when, at best, she knew she was only the recipient of an equivalent, and to describe herself as holding a BSc or a PhD in respect of work done, putting her case in its best light, on aromatherapy by some form of dissertation over a period of time in the 1990s. She must have appreciated that work was not subject to the necessary academic rigour to justify the awarding of such qualifications.
It seems to me that Mr Bowers QC's argument ignores the grounds of complaint in the present case, and, I am sorry to say, I have reached the conclusion, so did the Employment Judge. The terms of complaint in the present case, which in my judgment are largely consistent with what the Claimant was saying in the course of the disciplinary hearings, are that she had not acted dishonestly, that she believed herself entitled to style herself as Doctor, that she had no reservations about the award of the Doctorate or the BSc and that she was not acting dishonestly when she indicated that she had a Batchelor of Education from the University of Hull because she was simply describing the qualification in terms of its equivalence. I think Mr Bowers QC may be right when he submits that the Claimant may have a great deal to explain in evidential terms. The issue, however, is whether her explanation as to her state of mind is of no relevance whatsoever to the issues raised by the grounds of complaint. The issues raised by the grounds of complaint are that the Claimant had been subjected to sexual harassment over a period of time, that she had, as she saw it, been singled out for redundancy as a result of that, that she raised a grievance relating to that, that attempts had been made to deflect her from that grievance, that in fact the redundancy had been rescinded and that, then, advantage had been taken by the Respondents of an investigation into the standard of qualification, which had been characterised by the Respondents as gross misconduct, when, if they had been prepared to listen to her explanations, was not to be regarded as gross misconduct. The only explanation as to that was that the First Respondent and Second Respondent were determined to dismiss her and such determination originated in the allegations of sexual harassment, which she had made.
It may be that this case differs from Ezsias in the sense that there is not a complete dispute about all matters and there will certainly be an issue as to the Claimant's probity and honesty, which in my judgment may fit into the question as to whether the disciplinary proceedings are completely separate from and dislocated from preceding events.
But it seems to me that the fact there may be a strong case of dislocation is not enough. What one must be able to say in a case of this kind is that the case is truly exceptional in the sense that the prospects of the Claimant establishing a connection between her dismissal and earlier events is utterly fanciful; in other words, this is such an extreme case that it falls within the exception that it should be struck out as having no reasonable prospects of success.
In my judgment then, the error made be the Employment Judge was that he focussed completely on the fact that he felt it was impossible for the Claimant to explain two things. Firstly, why she had put down that she had a Batchelor of Education from Hull, and secondly, why she had styled herself as Doctor, when, looking at the matter in the round, she must have realised that she was not entitled to do so. To my mind that is simply applying a totally objective standard to the Claimant's position. That is not what the Tribunal needs to do in this case. It may be that when the evidence has been heard the conclusion will be the same. But cases like this should not be struck out unless they do fall into the exceptional category of being merely fanciful.
There are aspects of this case that seem to me so far as the sequence of events are concerned, to warrant a factual investigation by the Tribunal. That is so not least because this is a discrimination case as well as an unfair dismissal case. Of course, cases that are hopeless should not proceed. And hopeless discrimination cases should not proceed. But there is a public interest in having allegations of discrimination properly investigated and in my judgment it arises in this case. That has been overlooked by the Employment Judge, and I think that was an error of law on his part. It may be a difficult case. It is desirable that some cases should not proceed but it is in the public interest, where allegations of this kind are made, unless there is absolutely no realistic prospect of a connection being made between the way the disciplinary proceedings were dealt with and the earlier matters, it seems to me that the case should proceed and the Employment Judge should not have focussed so much on an objective evaluation. This is a case where the subjective state of mind and honesty of the Claimant is at issue and it seems to me that if the Tribunal came to the conclusion that she had an honest belief then it would need to ask why the employer had framed the charge in terms of gross misconduct.
I want to make one thing clear, Mr Morgan advanced, as part of his argument, that there was evidence or material that suggested that the Second Respondent must have seen the certificates or been aware of them. He was at times almost advancing an argument as to waiver, based on that contention. I can see no evidence of that in the material before me and that does not form any part of the judgment that I have made.
Turning to the third point in this case, namely the limitation point, it seems to me that point does not arise if, as I have found, there was an error of law on the part of the Employment Judge. If I am wrong as to that, I reject Mr Morgan's submissions that the Tribunal did not take into account all that it should have done in relation to a s.76 analysis as to whether it was, in all the circumstances, just and equitable. It is not I think necessary to consider this in terms of Mr Bowers QC's submission that the point was never raised. In my judgment, one can see in paragraphs 8 and 9 that the Employment Judge was taking account of it and, even if I were to think differently, that would be substituting my discretion for that of the Employment Judge. Accordingly on that point the Claimant fails.
On the point as to striking out the cases of unfair dismissal and sex discrimination the Claimant succeeds, and it follows from that the other claims relating to earlier times may be part of a continuing sequence of events and are therefore in time on that basis. Accordingly I would allow this appeal and reverse the decision of the Employment Judge.
I order that the Appeal is allowed. This case will be remitted to the Employment Tribunal to continue. The Restriction Order is to remain in place and written submissions as to permission to appeal to be lodged by the 22 May 2009.