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Fighting facts: Disputed evidence at a PHR

In Eastman v Tesco Stores Limited [2012] UKEAT0143/12/SM, the EAT (HHJ Peter Clark) was asked to consider the Tribunal’s exercise of its power under rule 18 (7) (b) of the ET Rules to strike out a claim which, the ET had found, enjoyed no reasonable prospect of success.

The key issue was that the ET struck out the claim having determined a crucial dispute of fact against the claimant at a PHR. Was that a proper approach in the circumstances?

The claimant, Ms Eastman, desired a career break from her role as a part-time customer assistant at Tesco, because she was experiencing difficulties in her personal life. This career break was granted and taken in 2007, for 4 years. The claimant contended that she had been given a guarantee that she could return to her role at the end of that period, which Tesco denied. If no guaranteed return was offered, there was no basis for Ms Eastman’s claim. It was a crucial issue of fact about which the claimant and respondent fundamentally differed in their accounts.

The ET received documentary evidence, heard cross-examination of relevant witnesses, and received the benefit of skeletons and oral argument from Counsel. In light of all of this, the judge found against Ms Eastman, holding that there was no oral agreement or guarantee of a return to work offered to her.

Ms Eastman appealed that the key fact in dispute was of the sort contemplated by Maurice Kay LJ in North Glamorgan NHS Trust v Ezsias [2007] ICR 1126 CA, where he said that there was “a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence.”

She also referred to the judgment of Lady Smith in Balls v Downham Market High School [2011] IRLR 217 EAT, which emphasised that the power to strike out under rule 18(7) must be used sparingly, and that the ET should be satisfied that there are no reasonable prospects of the impugned case – or one party’s version of its contested constituent facts – being established.

However, the EAT was unmoved. Fundamentally, the ET has the power at a PHR to hear evidence and decide issues in light of that material. That being so, it must be able to decide factual disputes, even crucial or central points upon which a whole case can turn. HHJ Peter Clark distinguished Ezsias and the outcome in Balls on the basis that no evidence had been called at those first instance hearings. Here, findings were made on evidence.

HHJ Peter Clark said this at para 13:

“Whereas historically strike-out claims in the civil courts in my experience and recollection invariably proceeded on the basis that no evidence was called and that the Claimant’s case was taken at its highest, that is not the position under the rules in PHRs before Employment Tribunals, including PHRs convened to consider an application...for the claim to be struck out under rule 18 (7) (b).”

What are the implications of this decision? Accrued thinking might previously have been that core disputes of fact were not the most suitable issues for preliminary determination. However, in some respects, it has always been clear that precisely such determinative disputes are desirable fodder for early resolution – because they can save the need for an expensive trial. What Eastman confirms is that not only can it be desirable to resolve determinative disputes of fact at the PHR stage, it is wholly appropriate to do so on the basis of evidence.

Litigants on either side of an ET claim should therefore not be shy about using a PHR to determine a key factual issue. Parties and their representatives need to be alert at CMDs, and in correspondence with the Tribunal, that if a PHR is to be listed for this purpose, then adequate time should be allowed for the evidence, and appropriate directions given towards getting the PHR up and running. The ET has a habit of listing PHRs for quite limited time allocations. It may well be in the longer term interest to ask for a more substantial listing, even if it means waiting for a hearing that bit longer – because the savings in the long to the party seeking a strike out could be substantial.