England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE COLLINGS)

		Royal Courts of Justice Strand London WC2 Tuesday, 10th July 2001

1. LORD JUSTICE MUMMERY: There is an application before the Court for permission to appeal. The application is in the name of a company ALM Medical Services Limited. On the application a director, Dr Matta, has appeared. He also asks for an extension of time and for permission to bring additional evidence on the appeal.
2. The background to the appeal is this. ALM Medical Services Limited operate nursing homes. The respondent to the appeal, Mr Brian Bladon, worked for a short period between June and September 1999 as a charge nurse. He was dismissed on 16th September 1999. He presented to the Employment Tribunal on 20th September 1999 an application complaining of unfair dismissal (protected disclosure). His case was that, while he was working at the Lowther View Nursing Home in Lytham as a charge nurse, he observed incidents and written records which caused him increasing concern. He expressed these concerns. The upshot was that he received a letter from Dr Matta on 16th September 1999 giving him formal notice that his contract of employment was terminated with immediate effect. Mr Bladon claimed that the reason for his dismissal was a protected disclosure underlined in the provisions of the Public Interest Disclosure Act 1998.
3. The case was resisted and there was a hearing in the Employment Tribunal at Manchester. A decision was given and extended reasons sent to the parties on 25th April 2000. The tribunal unanimously decided that Mr Bladon had been subjected to a detriment within the meaning of section 47B(i) of the Employment Rights Act 1996 and he was given a written warning by the respondent company on 10th September 1999, that he was unfairly dismissed for having made a protected disclosure within the meaning of section 103A of the Employment Rights Act 1996, and the matter was adjourned for determination of the remedy.
4. By the time the matter came on appeal by ALM Medical Services to the Employment Appeal Tribunal on 19th January 2001, a remedies hearing had been held at which Mr Bladon was awarded £10,000 as compensation for the detriment (that is the written warning that I have referred to) and £13,075.06 compensation for unfair dismissal. There was no appeal against the amount of the compensatory award, but there was an appeal against the award of £10,000 compensation for injured feelings.
5. At the preliminary hearing in the Employment Appeal Tribunal judgment was given on behalf of the tribunal by His Honour Judge Collins CBE. Having reviewed the matter in detail, the conclusion of the tribunal was that there was no arguable point of law in relation to the tribunal's decision that Mr Bladon was subjected to a detriment and was unfairly dismissed for having blown the whistle. However, as regards the award for injured feelings, the Appeal Tribunal said that this was a comparatively new jurisdiction, the amount was arguably too high and the appeal on that point ought to be considered by a full hearing of the tribunal. So that was directed to go forward. I am told today that ALM Medical Services are still waiting for a date of that appeal to be fixed.
6. What then happened is that ALM Medical Services Limited applied to the Appeal Tribunal for a review of its decision. According to the appellant's notice, that was the reason for not pursuing the appeal at that stage. The appellant's notice, which was not received in the Civil Appeals Office until 10th May 2001, said this:

"At this stage we are seeking an extension of time to apply for leave to appeal. This is because the EAT are presently considering our application for a 'review' of their decision. If the review is successful, an appeal to the Court of Appeal may not be necessary. An extension is required until seven days after notification of the Employment Appeal Tribunal's decision on the review application. It is stated that it is considered to be a waste of time for the application for leave to appeal to proceed while the review before the appeal tribunal may succeed."

7. According to a skeleton argument delivered to the Court this morning, the Appeal Tribunal have now considered the request for a review and has refused it by order dated 8th June 2001, without giving detailed reasons for the refusal, save to say that the application is refused on the grounds that the application has no reasonable prospect of success.
8. The skeleton argument and the appellant's notice state the grounds on which it is sought to appeal against the Appeal Tribunal's refusal at the preliminary hearing to allow the appeal on questions of detriment and unfair dismissal to proceed. The appellant's notice complains that there was no full or fair hearing, that the tribunal refused to allow the company to call crucial witnesses, and that the chairman of the tribunal did not conduct the hearing in a fair and balanced way giving the impression of the point against the company. The complaint was that he was rude and aggressive towards their representative and refused to allow fully questions to test Mr Bladon's case. More relevantly, it is said, that the chairman misdirected himself on the law relating to unfair dismissal and the provisions of the Public Interest Disclosure Act 1998.
9. I have considered those points. It seems to me that those points and the additional points made in the skeleton argument are sufficient reason for having an appeal and I would grant permission. I make it clear that the main reason I do so relates to the ground of appeal concerning the interpretation and application of the unfair dismissal provisions and the Public Interest Disclosure Act provisions. In my view, there is no real prospect of the appeal succeeding in relation to the complaints about the conduct of the chairman at the hearing before the Employment Tribunal.
10. As I indicated to Dr Matta during the course of the hearing, my concern is that this is a comparatively new jurisdiction, which is conferred on the employment tribunals and, as far as I know, no case under these provisions has yet reached the Court of Appeal. This seems to be an appropriate case in which to consider the questions of how these provisions should be interpreted and applied.
11. I have also pointed out to Dr Matta the risks that his company is taking in pursuing this appeal, should it fail. A grant of permission is no guarantee that the appeal will succeed, and I express no view in its likelihood of succeeding. But if it fails, the usual order made for costs in this Court, unlike costs in the Employment Appeal Tribunal, is that the loser, as well as having to bear his own costs, has to pay the costs incurred by the respondent in successfully resisting the appeal. Dr Matta states that he appreciates the point but emphasised the importance to him and his company of the points which are raised by this appeal appeal. For those reasons I grant permission to appeal.
(Permission to appeal granted)