Appeal Nos.  UKEAT/0408/09/LA
UKEATPA/1284/09/LA
UKEATPA/1285/09/LA
UKEATPA/1391/09/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 November 2009

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR D NORMAN
MR S YEBOAH

MR P DANDPAT	APPELLANT

(1)  THE UNIVERSITY OF BATH	
(2)  TUV PRODUCT SERVICES LIMITED	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - APPELLANT ONLY
RULE 3(10) APPLICATION - APPELLANT ONLY

	APPEARANCES

For the Appellant	MR JAMES LADDIE
(Appearing under the Employment Law Appeal Advice Scheme)	

SUMMARY

VICTIMISATION DISCRIMINATION – Interim relief

Explanation of meaning of “likely” given in Taplin v C Shippam Ltd [1978] IRLR 450 held not to have been invalidated by SCA Packaging Ltd v Boyle [2009] IRLR 746 and to represent the correct approach in applications under section 128 of Employment Rights Act 1996

Observations on nature of evidence required in interim relief applications 

NOTE:  This decision, having been made at a preliminary hearing, was not at first put on the Tribunal’s website – But it has been thought right to do so now, since the Appellant has been refused permission to appeal to the Court of Appeal (in fact, refused twice because of an unusual procedural history), but the decisions in question are not on BAILII ([2010] EWCA Civ 305 and 785) and may be overlooked.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
Introduction

1.	What is listed before the Tribunal is one preliminary hearing, in UKEAT/0408/09, and three hearings under Rule 3 (10) of the Employment Appeal Tribunal Rules 1993 (as amended): those are UKEATPA/1284, 1285 and 1391.  All the appeals arise out of a series of complaints, five in all, brought by the Claimant against the University of Bath and other Respondents.  For the purpose of the preliminary hearing we are constituted as a full tribunal, but for the purpose of the rule 3 (10) applications the decisions fall to be made by me alone.  Mr Laddie, who appears for the Claimant under the ELAAS scheme, told us that he preferred that we should sit as a full panel throughout so that he did not have to compartmentalise his submissions.  We have taken that course, but as regards the actual decisions we have respected the formal division of responsibility.

2.	It is unnecessary that we should say much about the underlying proceedings.  The Claimant has brought, within the five complaints to which we have referred, a very large number of claims under a number of different jurisdictions including, but not limited to, racial discrimination, discrimination on the grounds of religion and belief, disability discrimination, “whistle-blower detriment” and unfair dismissal.  As regards unfair dismissal, the Claimant in fact resigned, but it is his case that he did so in circumstances entitling him to claim constructive dismissal.  

3.	There has been a dispute about whether the Claimant was employed by the University of Bath alone, or by them and others of the Respondents; but that has now been resolved and his only employer has been held to be the University.  

4.	The case is proceeding in the Southampton Employment Tribunal.  It has been very carefully case-managed by Employment Judge Peters.  There have already been three pre-hearing reviews, two of which have produced substantive decisions and each of which has produced full and detailed orders.  Two more pre-hearing reviews are planned, one of which is listed to take place tomorrow - a point to which we will have to return.  The elaborateness of the case management and the plethora of hearings devoted to particular issues have been a matter of some criticism by Mr Laddie; and we will, again, return to one aspect of that.  But we think that we should say that we have been impressed by the thoughtful and energetic way in which the Judge has sought to reduce to manageability a somewhat sprawling set of claims (we use that term not pejoratively but merely descriptively).  There are of course risks in such a hands-on approach, and it is clear that the Claimant has felt somewhat bruised by some of the procedural management: we are sure that the Judge will do his best to combine efficiency with sensitivity.

5.	Since applications under rule 3 (10) are ex parte in character, and the preliminary hearing ordered was also one to be attended by the Claimant only, there has been no representation by any of the Respondents.  Two observers have appeared for, respectively, the First and Third Respondents, one of whom, Mrs Richardson, the in-house legal adviser for the University, has helpfully provided us with some information over the lunch adjournment.  We have already mentioned that Mr Laddie has represented the Claimant.  Our thanks for his assistance are more than conventional: he has put the Claimant’s case with great clarity and persuasiveness.  

6.	Four decisions by the Employment Tribunal were originally challenged in the appeals before this Tribunal; but in relation to two, being the subject of two of the rule 3 (10) applications, Mr Laddie has told us that they are no longer pursued - they are PA/1284/09 and PA/1391/09.  Having done my pre-reading of the Notices of Appeal in relation to those decisions, I am sure that the Claimant’s decision to instruct Mr Laddie not to pursue those appeals was wise.  We are left, therefore, with the preliminary hearing and one of the rule 3 (10) applications.  We will deal with them in turn.  

The Preliminary Hearing
7.	The Claimant claims, among other things, that the principal reason for the conduct on the part of the University which entitled him to resign is that he had made protected disclosures, so that his (constructive) dismissal was automatically unfair pursuant to section 103A of the Employment Rights Act 1996.  By Section 128 of the Act a claimant making such a claim may apply to the Employment Tribunal for interim relief pending its determination.  Relief will be granted:
 “… where, on hearing [the application] it appears to the tribunal that it is likely that on determining [the substantive complaint] the tribunal will find that the reason (or, if more than one, the principal reason) for his dismissal is one of those specified in [a group of sections including section 103A]”

- see section 129 (1).  

8.	The Claimant made an application, within the prescribed time limits, under section 128.  That was heard by a full Tribunal, chaired by Employment Judge Peters, on 21 July 2009.  The application was refused.  The Judgment embodying the refusal, with Reasons set out at Schedule A to the Judgment, was sent to the parties on 27 July.  

9.	The Claimant appealed.  His appeal was dismissed on the sift by Judge McMullen QC, but at a hearing under rule 3 (10) before Judge Pugsley on 30 September it was permitted to proceed to a preliminary hearing on the basis of amended grounds of appeal drafted by Counsel then appearing for the Claimant under the ELAAS scheme, Mr Burger.  We will take those grounds in turn.  

10.	The first ground of appeal is headed “Not Hear Evidence”, but some of the paragraphs under that heading go beyond the subject-matter indicated by it.  We will take those paragraphs in turn.  

11.	The first paragraph is indeed concerned with the question of whether the Tribunal heard evidence.  The Tribunal itself in its Reasons stated, at paragraph A(7):
“The Tribunal did not take evidence when considering the interim relief application but received submissions from both the Claimant and the first Respondent.” 

That means, therefore, that it did not hear oral evidence.  Nor, it seems, did it receive written evidence in formal witness statement format.  However, the submissions submitted by the Claimant were, as the Tribunal put it at paragraph A8, “written and lengthy”.  We were shown, though not taken through, the bundle containing those submissions.  It consisted of over 100 pages, of which the first seven comprised submissions and the remainder were documents on which the Claimant relied in support of those submissions.  The bundle in question was lodged seven days in advance of the hearing.  The Tribunal says in terms, at paragraph A11, that the members read that submission carefully, and that it read the Claimant’s resignation letter and other pieces of relevant correspondence to which it was referred.  We are told by Mr Laddie, on instructions, that in addition the Claimant sought to refer the Tribunal to a witness statement which he had prepared some time previously, at a time when it was thought that the pre-hearing review would be considering a number of matters which included, but were not limited to, the application for interim relief.  He says that the Tribunal refused to read it.  We have the witness statement in question in the bundle before us.  The part of it concerning the application for interim relief is extremely short and is essentially in the nature of submissions rather than evidence.  That being so, we can see nothing wrong in the Tribunal not wishing to be referred to it, if that is indeed what occurred.  

12.	The question therefore is whether it was appropriate for the Tribunal to decide the question of interim relief only on the basis of the materials which were before it, as we have described.  We can see no error in that regard.  Of its nature an interim relief application is summary in character.  Mr Laddie sensibly conceded that there could be no obligation on the Tribunal to hear oral evidence; but nor can we see any reason why importance should be attached to whether the materials before it were formally presented in the form of a witness statement or whether, as is common enough in all forms of interim applications in an Employment Tribunal, they took the form of a mixture of submissions and contemporary documents.  We see no arguable point of law here.  (We should say for completeness that the amended grounds refer to the decision of the Court of Appeal in ALM Medical Services Ltd v Bladon [2002] IRLR 807, but, as Mr Laddie acknowledged, that did not really advance matters: it was a case about the refusal of an Employment Tribunal to admit evidence which the employer wished to adduce on the hearing of a substantive whistle-blowing claim.)  

13.	Paragraph 3 of the amended grounds refers to the long line of cases, summarised in Harvey on Industrial Relations and Employment Law at paragraph T737, relating to the undesirability of preliminary issues of law being considered in circumstances where there are disputes or potential disputes as to the factual evidence.  That has no materiality in the present case.  

14.	Paragraphs 4 and 5 go even further from the general description in the heading.  In order to explain the point being made we need to say a little more about the reasons given by the Tribunal for its decision.  These do not take the form of full reasons of the kind that would be expected on a final determination.  The Tribunal sets out the submissions of the two parties in summary; draws attention in particular to the very slight prominence, as it saw it, given in the Claimant’s resignation letter to the alleged protected disclosures; and then states its conclusion, namely that:
“After very careful consideration the tribunal unanimously concluded the unfair dismissal claim based on section 103A Employment Rights Act 1996 did not stand a ‘pretty good chance of success’.  The Tribunal members were of the opinion that a tribunal panel was unlikely to find that the Claimant’s reason for resigning was connected with his having made any disclosure, or the consequences of having done so.”  

The reference to a “pretty good chance of success” is to the gloss on the term “likely” offered by this Tribunal, Slynn J presiding, in Taplin v C Shippam Ltd [1978] IRLR 450, which was concerned with the provisions of the Employment Protection Act 1975 relating to interim relief where trade union officials are dismissed: the terms of the relevant provision are substantially equivalent to section 129 (1).

15.	It is clear, taking that conclusion with the summary of the Respondents’ submissions and the observation made by the Tribunal about the contents of the resignation letter, that the perceived difficulty in the Claimant’s case which led the Tribunal to its conclusion was what it saw as the weakness of the case that he resigned in response to conduct for which the principal reason was the alleged protected disclosure.

16.	The amended grounds of appeal set out five issues which it is said that the Tribunal failed to consider in coming to its conclusion.  They are: whether the Claimant was employed under a two-year fixed term contract; whether he made protected disclosures; whether he was removed from a particular contract as a result of those disclosures; whether he made further protected disclosures at a later date; and whether following such further protected disclosures he was subjected to further detriment that culminated in his constructive dismissal.  The grounds then go on to say that the Tribunal erred by only referring to the Claimant’s resignation letter in its factual assessment.  Mr Laddie made essentially similar points in his oral submissions to us, though his analysis of what he said were the determinative issues was perhaps rather more focused.

17.	If this had been the hearing of the full section 103A claim, the Tribunal’s analysis would indeed have been inadequate.  But it was not.  An application for interim relief is, as we have said, necessarily summary in character.  It was in our view enough for the Tribunal to indicate the essential gist of its reasoning.  That was, as we have said, that on its reading of the resignation letter it was unlikely that the Claimant would be able to show that he had resigned in response to conduct the principal reason for which was a protected disclosure.  That conclusion may be right or it may be wrong; but it was a proper basis for its decision, and if it was right it rendered consideration of the other issues unnecessary.  It was sufficient for the Tribunal to go to the weakest link in the chain as it saw it.

18.	Ground 2 is headed “Error in Considering the Type of Protected Disclosure”.  We need not set this out in detail.  It is essentially a point of the same character as that we have already referred in relation to paragraphs 4 and 5 under the previous ground, and our answer to it is the same.

19.	Ground 3 is headed “Procedural Irregularities”.  On its face this has nothing to do with the issues on the interim relief application.  As we understand it, however, it is the Claimant’s case that he was not given a proper opportunity to put a full witness statement, or evidence, before the Tribunal; and on that basis, as Mr Laddie accepted, it really takes matters no further than the first point under Ground 1, which we have already considered.

20.	Ground 4 is headed “Meaning of ‘Likely’”.  As we have already indicated, the Tribunal in applying the test under section 129 (1) took its guidance on the meaning of the term “likely” from the decision of this Tribunal in Taplin.  The amended grounds refer to the recent decision of the House of Lords in SCA Packaging Ltd v Boyle [2009] IRLR 746, in which the House construed the term “likely” in paragraph 6 (1) of Schedule 1 to the Disability Discrimination Act 1995 in a way which set a much lower hurdle than the test explained in Taplin and applied by the Tribunal in the present case.  It is suggested that this undermines the authority of Taplin.  The difficulty about that submission is that in more than one of their Lordships’ speeches the point was made very clearly that the word “likely” is one which has different shades of meaning in different contexts - see for example paragraph 36 in the speech of Lord Hope, quoting the speech of Lord Nicholls in Cream Holdings Ltd v Bannerjee [2005] 1 AC 253.  The correct meaning of the term in one statute cannot therefore be taken as a guide, without more, to its meaning in another statute.  Mr Laddie acknowledged that point but relied on SCA Packaging for a wider proposition, namely that the trend of cases in the last 30 years on the meaning of “likely” had tended to show an increasingly less rigorous approach, and that the experience of the interim relief provisions, both in relation to trade union officials and in relation to the whistle-blower provisions, was that they were rarely invoked, and even more rarely successfully invoked, because, he suggested, of the unrealistically high hurdle posed by the construction of the term “likely” promulgated in Taplin.  He therefore invited us to take this opportunity, by allowing the case to go to a full appeal, to revisit the guidance given in Taplin and bring it into line with the general trend.  We do not accede to that invitation.  Taplin has been recognised as good law for 30 years.  We see nothing in the experience of the intervening period to suggest that it should be reconsidered.  On ordinary principles, we should be guided by it unless we are satisfied that it is plainly wrong.  That is very far from being the case.  We do in fact see good reasons of policy for setting the test comparatively high, in the way in which this Tribunal did, in the case of applications for interim relief.  If relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of proceedings: that is not consequence that should be imposed lightly.

21.	We do not, therefore, believe that any of the amended grounds of appeal is well-founded and we dismiss this appeal.

The Rule 3 (10) Application
22.	The challenge here is to a decision of the Employment Judge on 24 September to direct a pre-hearing review to consider a purported issue as to the Tribunal’s jurisdiction to entertain most of the Claimant’s claims, having regard to section 32 (2) of the Employment Act 2002.  That hearing is in fact fixed to be heard in the Employment Tribunal tomorrow.  The Notice of Appeal is drafted by the Claimant personally.  It is, with respect to him, far from clear, and Mr Laddie tacitly accepts that none of the points in it is arguable.  He does, however, wish to advance two so far unpleaded points, though one at least of them, he says, has been raised in correspondence before.  To do so would of course require permission to amend; but it is convenient, before considering whether that should be granted, to review the substance of the grounds in question.  

23.	The first point is that no issue as to the Tribunal’s jurisdiction properly arises.  Mr Laddie refers us to the provisions of sub-section (6) of section 32, which read as follows:
“An Employment Tribunal shall be prevented from considering a complaint presented in breach of subsections (2) to (4), but only if - (a) the breach is apparent to the Tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings, or (b) the Tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under section 7 of the Employment Tribunals Act 1996.”

In DMC Business Machines PLC v Plummer (unreported, UKEAT/0381/06), a decision of this Tribunal presided over by myself, those provisions were paraphrased as follows (at paragraph 25):
“Section 32(6) only prevents the bringing of proceedings where - to paraphrase - either (a) the Tribunal itself takes the point that there has been non-compliance, on the basis that that appears from the employee’s own ET1 or (b) the employer has taken the point in his ET3.”

Mr Laddie’s short point is that neither requirement (a) nor requirement (b) has been satisfied in this case.  Although he did not in fact take us to the Claimant’s ET1s, it seems highly likely, and I am willing to accept, that they stated, as the form prescribes, that he had raised grievances relevant to the complaints raised in the proceedings.  In the ET3s, the first three of which at least Mr Laddie did take us to, the Respondents in their answers to question 2.5 on the standard form acknowledged that the substance of the claims had been raised in writing under a grievance procedure: that was entirely explicit in two cases and clearly implicit in the third.  Thus far, therefore, it looks as though no section 32 point arose, by either route.  But what seems to have happened - although I have only had one side of the story - is that the Respondents had second thoughts about whether a section 32 point could be taken: I am told, and I am happy to accept for present purposes, that those second thoughts were the result of some prompting from the Employment Judge.  In any event, from the first PHR onwards, which was in April, a section 32(2) point was recognised as being on the procedural agenda.  Mr Laddie submits that section 32 is simply not in play unless and until there is formal leave to amend the ET3: he relies on the requirement that the issue shall have been raised by the employer “in accordance with regulations under section 7 of the 1996 Act”, which he says must mean, as indeed we glossed it in DMC Business Machines, that the point must have been raised in the ET3.  He acknowledges that that might be done by way of amendment, provided permission to amend was properly sought and properly granted; but on his instructions that has never happened, and certainly I can see no sign of it in the Judge’s orders, which are admirably full and clear.  It may be that the answer to those submissions is that formal amendment is not required.  That appears to have been the view of HHJ Peter Clark in this Tribunal in Holc‑Gale v Makers UK Ltd [2006] IRLR 178 - see in particular paragraph 18 - although it is not clear whether the point actually arose for decision.  But I am certainly prepared for present purposes to regard the point raised by Mr Laddie as arguable.  

24.	The second ground which Mr Laddie wishes to advance is that it was inappropriate for the Tribunal to direct that the section 32 point be dealt with as a preliminary point at a pre-hearing review - the fourth pre-hearing review in the proceedings, as Mr Laddie points out.  Mr Laddie reminded me of the many observations in the case law - most recently, as it happens in SCA Packaging, to which I have already referred - to the effect that preliminary points of law in the Employment Tribunal are often short-cuts that lead to long delays and should only be used sparingly.  Those observations are well-known and need always to be borne in mind, but the authorities do not say that preliminary points of law, and certainly not preliminary points going to jurisdiction, should never be permitted.  What is right in any given case depends on an assessment of different considerations in the interests of efficient case management; and this Tribunal is always very reluctant to intervene in case management decisions of this character taken by an Employment Judge.  I can see no arguable case that Judge Peters exceeded the very broad discretion granted to him in deciding to deal with the section 32 point in the context of a pre-hearing review.  

25.	That, however, leaves the first point, which I have held to be arguable.  The question is whether I should give permission to amend to allow that point to be taken.  If I do, which will therefore necessarily mean directing a further either full or preliminary hearing, the likelihood must be that tomorrow’s hearing in the Employment Tribunal will be adjourned.  I do not believe that I have any power so to direct the Tribunal, but it must be likely that the Tribunal itself would grant such a postponement on the basis that if the appeal were in due course to succeed the hearing would be wasted.  I should, however, point out that if I do not give permission and the hearing thus goes ahead that does not mean that the point is dead: it can be taken by the Claimant at tomorrow’s hearing, and even if it is unsuccessful at that point, if the Tribunal were thereafter to hold that it had no jurisdiction in relation to any of the claims the point could then be raised as a ground of appeal against that decision.

26.	On balance, I do not believe that I should give permission to amend.  This is for six reasons. 

27.	First, the point is taken very late.  The Claimant was apparently aware of it because we have been shown it being referred to in his correspondence; but he did not include it in the Notice of Appeal.  The consequence of that is that the Respondents, who are not formally present at this hearing, have had no opportunity to oppose the granting of permission.  It is not enough to say that they could, as they undoubtedly could, apply to have it set aside, because before they have the opportunity to do so the application would probably have had irrevocable consequences in the form of the postponement of tomorrow’s hearing. 

28.	Secondly, although I have said that I am prepared to treat the point as arguable, it may well be important to know in more detail exactly what happened procedurally between when the pleadings were closed and when the point came onto the agenda.  That is particularly so if the decision in Holc‑Gale is correct.

29.	Thirdly, Mr Laddie was only in a position to show me the pleadings in the first three cases, not in the fourth and fifth.

30.	Fourthly, if I refuse permission, as I have already said, the point is not lost.  At the risk of repeating myself, it can be raised tomorrow before the Tribunal and again thereafter, if necessary, on appeal.  In fact, the way in which it has come before this Tribunal by way of anticipation - that is, as an appeal against the decision to order the hearing - is itself rather unusual.  

31.	Fifthly, if I were to grant permission and the appeal were ultimately to fail, the likely adjournment of tomorrow’s hearing would give rise to a serious waste of time and resources and cause unnecessary delay.  I accept of course that there could equally be a waste if the hearing tomorrow goes ahead and at a subsequent appeal it is held that the section 32 point should never have been allowed to be taken in the first place; but the parties are geared up for tomorrow’s hearing and the waste and disruption would accordingly be less.

32.	Lastly, it may be that in the end Mr Laddie’s point will never arise because the Claimant may be able to show at tomorrow’s hearing that he did indeed satisfy the requirements of section 32 in relation to all his claims.

33.	Taking all those considerations together, I refuse permission to amend.  The result, therefore, is that the application under rule 3 (10) is also refused: the decision made under rule 3 (7) that this appeal will not be permitted to proceed stands, and the appeal is formally dismissed.