Appeal No. UKEAT/0374/14/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	At the Tribunal
	On 5 June 2015

Before
The Honourable Mr Justice Lewis
(SITTING ALONE) 

MR S BULLCOCK	APPELLANT

NHS BLOOD AND TRANSPORT TRUST 	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR KEVIN McNERNEY
(of Counsel)
Instructed by:
Raleys Solicitors
Permanent Building
Regent Street
Barnsley
South Yorkshire
S70 2AF

For the Respondent	MR ANDREW SUGARMAN
(of Counsel)
DAC Beachcroft LLP
Employment & Pensions Group
7 Park Square East
Leeds
LS1 2LW

SUMMARY
VICTIMISATION DISCRIMINATION - Whistleblowing

The Employment Tribunal erred in striking out a claim alleging that two detriments (being placed in a different job and being placed on a redeployment register) as the complaint was brought within three months of the acts complained of.  The Employment Tribunal also erred in striking out a claim at a Preliminary Hearing without hearing oral evidence that the events complained of amount to a termination of the original contract of employment.

THE HONOURABLE MR JUSTICE LEWIS

Introduction
1.	This is an appeal against a Decision of Employment Judge Pitt, striking out certain claims brought by the Appellant, Mr S Bullcock, on 24 December 2013. 

The Background
2.	The background can be stated briefly.  The Appellant was employed as a Transport and Logistics Manager with the Respondent.  He was dismissed by the Respondent on 14 May 2013 following a disciplinary hearing.  On 21 July 2013 he lodged his first Employment Tribunal claim.  Subsequently an internal appeal was allowed and he was told he was to be reinstated with a final written warning, which would remain on file for 18 months.  

3.	The first claim to the Employment Tribunal was the subject of an application to strike out and also an application by the Appellant to amend.  In relation to that claim the Employment Judge said there were two issues: (1) whether the Claimant would be permitted to amend; and (2) whether the Claimant’s claim for unfair dismissal is misconceived and should be struck out.  The amendment was refused.  The claim was struck out.  It was said the situation was essentially the same as that in Roberts v West Coast Trains Ltd [2005] ICR 254.  The decision to reinstate him with a final written warning meant that the contract had not been terminated and there was no dismissal.  Simler J held that there were no arguable grounds of appeal in relation to those decisions at a Preliminary Hearing and they were not allowed to go forward.  This appeal concerns subsequent events and a second Employment Tribunal claim.  

The Appellant’s Case
4.	The Appellant contends, in essence, that certain factual matters occurred following his return to work after the successful disciplinary appeal.  First, it is said that he was not in fact allowed to return to his former post as Logistics Manager.  Rather, he was instructed to undertake a different temporary role.  Secondly, he was placed on a redeployment register.  The Respondent would seek to find a permanent alternative job with the company and, if that was not possible to find within three months, the matter would be reviewed.  There was also an instruction not to speak to other staff and not to enter a particular building.  

5.	Those factual allegations all formed part of his claim form.  Section 8.2 of the claim form says the following: 
“Please set out the background and details of your claim in the space below.
The details of your claim should include the date(s) when the event(s) you are complaining about happened.  Please use the blank sheet at the end of the form if needed.”

About halfway down the page the Appellant says:
“… On October 1st 2013 I attended a meeting with [and two people are named] [and they] informed [me] that I would not be returning to my former role and that I was also to be placed on a redeployment register to look for work … [and that this was to] cover until 31st December 2013 …”

There is then another document headed “Details of claim”, and that lists some of the detriments but does not refer to those two.  The third claim that the Appellant wished to make was that, in effect, changing his job and his role together with all the other factors meant that there was a dismissal on 1 October (that is, the termination of his original contract) and he relies on Hogg v Dover College [1990] ICR 39.  

6.	All the events complained about occurred on or after 1 October 2013, and the Employment Tribunal claim was presented on 24 December 2013: that is, within three months of the events complained about. 

The Employment Tribunal Decision
7.	In relation to the second Employment Tribunal hearing, the Judge identified the issue as whether the second claim may be seen as brought within the relevant limitation periods or whether any part of it should be struck out.  Reading that as it stands, it appeared that, so far as the three matters that are referred to in the second claim are concerned, the only issue was limitation periods.  However, it is said that, as one goes through the Decision, the Employment Judge also considered whether the claim that there had been a dismissal on 1 October 2013 should go ahead on the basis as to whether it had any reasonable prospect of success.  There is a reference to that in the conclusion, and there is discussion in the “Dismissal” section of the Judgment about those matters.  I will return to that in due course. 

Conclusions
8.	So far as the first two matters are concerned, the alleged detriments relating to the removal from the previous job and placing in a temporary job and on the redeployment register, the Employment Tribunal, in my judgment, erred in ruling that they should be struck out on the ground that they were brought outside the relevant time limit.  The acts to which the claim related occurred on or after 1 October 2013.  They are set out in the claim form.  They are not, as was suggested, narrative.  They are a description of the claim.  I accept that the Appellant has not, in many ways, helped himself by often straying from a description of the factual events that he says are the detriment and by insisting on attaching to them the label that this was disciplinary or that this was a three-month contract.  But in my judgment the Tribunal erred in law and was perverse in striking out the two claims in relation to the fact that he did not take up his previous post when he returned on 1 October 2013 and that he was placed on a redeployment register with a view to seeing if a permanent alternative job was available within three months.  I will therefore allow the appeal in respect of those two matters.  

9.	The existing amended grounds of appeal will need to be reworded to reflect that.  At present they refer to being subject to a disciplinary process that ended with the resumption of work on 1 October 2013 and being placed on a three-month fixed-term contract.  The first part of that does not focus on what is really said to be the detriment in the claim form: that is, that he did not return to his original job but was put on a different job.  The second one is the conclusion as to the nature of the event that occurred, but the event that is said to be the detriment is being placed on the redeployment register with a view to seeing if a permanent position was available within three months.  I will therefore allow the appeal in relation to the two detriments, but I will require the Appellant to amend paragraphs 4.1 and 4.2 of the amended claim form.  

10.	Dealing next with the claim on the events relating to the change in the job, that is said to be a dismissal and it is alleged it was done because the Claimant had disclosed information which constituted a protected disclosure under the Employment Rights Act 1996.  Reading the Decision as a whole, the starting point is that it looks as if the issue in relation to this claim was limitation.  If that were the case, the Employment Judge would have erred in law again because the events occurred on 1 October 2013 or afterwards and clearly are within a period of three months before the claim was presented.  

11.	I turn, therefore, to the suggestion that in fact what the Judge really did was decide that this was not a situation like that in Hogg v Dover College where there was a dismissal but was rather a situation such as Roberts v West Coast Trains Ltd [2005] ICR 254.  What the Respondent says happened is that the Appellant was reinstated.  Under the contract there was a provision for redeployment.  That is what happened.  Therefore there cannot have been a dismissal or termination of the contract.  There was simply an exercise of a power under the contract to redeploy.  

12.	I see the force of what Mr Sugarman has advanced.  In my judgment, however, reading the Decision as a whole, the Tribunal did go wrong in law in striking out the claim that the events that occurred amounted to a dismissal and that any other argument was misconceived.  

13.	Firstly, I note that the Tribunal Chairman does not in fact say that the transfer or redeployment was actually done in the exercise of a power to transfer.  She does conclude that there are provisions incorporated into the contract that would allow that but she stops short of saying expressly that that is what happened.  Secondly, one bears in mind that this was an application to strike out.  There was documentary evidence provided but there was not oral evidence, and it would be, in my judgment, perverse to reach conclusions on matters that really would involve difficult questions of fact such as what power was being exercised and why it was being exercised on the basis of that material.  Thirdly, there does seem to be a tension in the Judgment as a whole, which appeared to regard limitation as the issue for the second claim and then seeks to deal, in a way that is not entirely clear and where the reasons are not satisfactory, with the question of what happened on 1 October 2013 and how is that to be characterised in terms of whether it is a Hogg v Dover case or a Roberts v West Coast Trains case.  
14.	In all those circumstances, therefore, I am satisfied that the Tribunal went wrong in law or reached a perverse conclusion in striking out the alleged unfair dismissal claim so far as it concerns the events of October 2013.  I will therefore allow that appeal.  I would stress that I am simply deciding whether or not the claims should go forward.  All I am deciding is that they should go forward and the Employment Tribunal has jurisdiction to hear the claims.  I am not deciding whether any of the claims will or will not succeed.  But, for the reasons that I have given, and subject to the amendments of paragraphs 4.1 and 4.2 of the amended grounds of appeal, this appeal is allowed. 

Costs
15.	There is an application by the Appellant for the costs of a fee paid by him to bring this appeal.  The cost of the fee is £1,600.  There is power under Rule 34A of the Employment Appeal Tribunal Rules 1993 to make an order for costs in a sum no greater than the fee paid where an Appeal Tribunal allows an appeal in full or in part.  There is guidance in paragraph 4.6 of the Practice Direction 2013, and Mr Sugarman on behalf of the Respondent has reminded me of the recent decision of HHJ Eady QC in Horizon Security Services Ltd v Ndeze and The PCS Group UKEAT/0071/14/JOJ.

16.	There is essentially a wide discretion.  There is an expectation of an award of costs on the part of a successful Appellant but there may well be cases where they will not be awarded including, in particular, partial success.  In the present case it is important to bear in mind, firstly, that the appeal involved two separate claim forms, the first involving unfair dismissal and an application to amend, and the Appellant was unsuccessful in that appeal.  The appeal in which he was successful related to a different and somewhat narrower set of issues.  Secondly, in relation to the second claim form, in part the difficulties and the need for an appeal, in my judgment, arose because there was a lack of clarity on the Appellant’s part as to what were the acts that were said to be a detriment in respect of which he was complaining.  

17.	In all the circumstances, therefore, it is appropriate to make an award of some part of the fee to the Appellant as he has been successful in his second appeal and indeed in relation to the last part of that appeal, whether there was arguably an unfair dismissal or not, he was successful.  However, there should be a substantial discount to reflect the fact that he lost the first appeal and also to a certain extent to reflect the fact that part of the second appeal was the result of his own lack of clarity.  

18.	In the circumstances, therefore, the fair, just and proportionate order would be that the Respondent pay £400 to the Appellant, that being part of the fee that he incurred in bringing the appeal.