England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London WC2 Tuesday, 30th April 2002

1. LORD JUSTICE PILL: This is an application by Mr Howard Godfrey Horsley for permission to appeal against a decision of the Employment Appeal Tribunal dated 24th January 2002 following a preliminary hearing of an appeal from an Employment Tribunal which made its decision on 20th September 2000.
2. The applicant for a time worked for the proposed respondent, the Secretary of State for International Development, on a two year contract. He started work on 6th May 1999 as an Education Field Office Manager in Ghana. His employment was terminated by his being given three months' notice on 6th January 2000. Unfortunately, in the meantime he had been diagnosed in early November while in Ghana as suffering from Typhoid Fever and returned to the United Kingdom for some time. He was due to and did return to Ghana after his three months' notice was given to him. He returned on 8th January 2000.
3. The applicant brought a series of complaints against the respondents. He alleged unfair dismissal, wrongful dismissal and disability discrimination.
4. The present application arises out of the manner in which the unfair dismissal claim was sought to be amended by him beyond the usual time limit for making a complaint to an Employment Tribunal under that head.
5. The Employment Tribunal refused the application by Mr Horsley to include in his claim a claim under section 103 of the Employment Protection Act 1996. That provides at 103A:

"An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."

6. This concept was introduced into the 1996 Act by the Public Interest Disclosure Act 1998, section 5. Section 43A of the Act provides that:

"In this Act a 'protected disclosure' means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H."

7. Section 43B provides, insofar as is material:

"(1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following -

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject...

(d) that the health or safety of any individual has been, is being or is likely to be endangered."

8. A feature of the remedy provided by those sections is that the minimum length of service required before a claim of unfair dismissal can be brought does not apply.
9. The applicant sought to bring a claim under that head by letter of 20th August 2000, headed "Exchange of list of documents". The applicant stated:

"When eventually obliged to initiate a claim through the Tribunal it had still been my initial intention, as far as possible, to avoid reference to sensitive items of evidence. Some of these might in the opinion of the respondent be subject to the Official Secrets Act and the respondent has specifically warned me against infringing that Act."

10. [I put in parenthesis that part of the applicant's evidence is that following his letter of dismissal such a warning was orally made to him].

"I therefore sought to base my case on the lack of validity and credibility of the reasons given for my dismissal and the lack of validity of the procedures employed."

11. Then later:

"I have been advised that the complaint may not necessarily make sufficiently clear my contention that the reasons for my dismissal were, in fact, quite different from those alleged by the respondent. If the Tribunal feels that the complaint ought to be more specific in that regard I would like to seek consent to clarify the complaint.

I am aware that the respondent may wish to claim that some of the documentation listed is subject to the provisions of the Official Secrets Act. I therefore wish to seek procedural guidance on this issue from the Tribunal."

12. One of the points on which assistance and guidance was sought was "Does the Tribunal consider that there is a need to clarify the contention that my dismissal was, in fact, on grounds other than those alleged by the respondent?".
13. Before the hearing the applicant disclosed a written statement in which, in heavy type, he included the following allegations:

"I believe that an expression of serious concern about financial matters, to Dr Swift, constituted a qualifying disclosure under the provisions of the Public Interest Disclosure Act 1998. My dismissal was unfair if it resulted from that disclosure. I claim moreover that Dr Swift's subsequent conduct can be shown to substantiate its status as a qualifying disclosure and that this was indeed a major cause of my dismissal."

14. Second:

"A secondary qualifying disclosure under the provisions of the Public Interest Disclosure Act 1998 relates to the conduct of the Development Section of the British High Commission in Ghana. Reports, both written and verbal, which I produced, detailed serious concerns about my treatment when suffering from Typhoid Fever."

15. The Tribunal refused the applicant permission to amend his claim out of time to rely on section 103A. At paragraph 19 of their decision:

"We concluded that the application in respect of a protected disclosure was a material change from the original application in respect of unfair dismissal, and was in effect a new claim. The consent of the Tribunal was needed to make the amendment and we applied the same principles as would have been applicable if the original application had been lodged with the Tribunal out of time. We decided that on the Applicant's own evidence it was reasonably practicable for him to have made the application within the three-month time limit. There was nothing in practice which had prevented him from so doing. He had taken legal advice. We therefore decided that the claim in respect of unfair dismissal on the grounds of having allegedly made a protected disclosure could not proceed. We are not making any findings about the allegations by the Applicant that he made disclosures that were protected ones within the meaning of the Employment Rights Act 1996, nor whether the termination of his employment was in any way related to any that there may have been."

16. The Tribunal went on unanimously to hold that:

"The Applicant did not have sufficient length of service within section 108 of the Employment Rights Act 1996 to have acquired the right not to be unfairly dismissed, and the Applicant be not allowed to amend his claim in respect of unfair dismissal to include a claim in respect of a protected disclosure (to which such length of service qualification does not apply), and consequently his claim in respect of unfair dismissal is dismissed."

17. The grounds of appeal, as helpfully redrafted by Miss Patane who has appeared before this court on behalf of the applicant, are, one, the Employment Tribunal was wrong in law to conclude that the appellant's complaint for unfair dismissal based upon a protective disclosure did not fall within the ambit of unfair dismissal pleaded within time by the appellant; and, two, the Employment Tribunal failed to give sufficient weight to the reasons put forward by the appellant and was mistaken as to the time frame of events when considering whether or not it had been reasonably practicable for the appellant to present the complaint of unfair dismissal based on a protected disclosure under the Public Interest Disclosure Act 1998.
18. Miss Patane submits that the Tribunal erred in law, or were plainly wrong, in exercising their discretion as they did. At the end of her submissions, counsel put the applicant's reasons in this way: that he did not know until the time limit had expired the significance of the PIDA claim and that it did not involve a time threshold, and, second, that he knew that relevant documents existed, though they were not in his possession at that time, which would throw light upon the reasons of the employers for dismissing him, and that these factors ought to have resolved the matter in the applicant's favour.
19. At the end of her helpful skeleton argument, Miss Patane puts it in this way by reference to the reasons advanced by the applicant for permission to amend outside the time limit:

"(i) lack of knowledge of PIDA until the end of July/early August;

(ii) fear of breaching his OSA obligations, which stemmed from the Respondent's own warning post-termination...

(iii) initial suspicions that his disclosures may have led to his dismissal did not become concrete for the Appellant until certain documents were not amongst those disclosed in August 2000 by the Respondent."

20. I shall be referring to a document which has been disclosed since that time.
21. Miss Patane has referred to the test set out by Brandon LJ in Wall's Meat Co Ltd v Khan and that spelt out by Mummery J, as President of the EAT, in Selkent Bus Co Ltd v Moore [1996] ICR 836.
22. I say at this stage that if material does emerge which, by reason of late disclosure by the employers, was not known or could not be relied on by an applicant at the time an amendment such as this is sought, and that material subsequently demonstrates a reason for dismissal which is or may arguably come within section 103A, I would be sympathetic to grant the amendment, and hence in a case such as this to remit the matter to the Industrial Tribunal. What does have to be shown, however, in my judgment, for the court to take such a course, is that there is such material. The Employment Tribunal have a broad discretion on matters such as this. The EAT and this court are reluctant to interfere with it, and, in my judgment, the court which is now in possession of the further information is entitled, and indeed should, assess the weight and effect of that material in deciding whether the application for the amendment outside time should be remitted to the Employment Tribunal.
23. It is necessary to refer to the IT1 which the applicant submitted. That spelt out in considerable detail and specifically the complaints he made in relation to his dismissal. This is not a case where an applicant was saying, "well, I simply do not know why I was being dismissed", and, material as to why subsequently emerges. The applicant made quite specific allegations which I do not propose to spell out in detail. It is right to say that he does twice in the document refer to the Official Secrets Act, first to say that the contract was subject to it, and, second, to refer to the fact that, as I have already mentioned, following his dismissal: "When I protested I was reminded of my obligations under the Official Secrets Act."
24. It is not without significance, however, for present purposes, in my judgment, that nothing approaching the allegation subsequently sought to be made was present in the IT1. In my judgment, a mere reference to the Official Secrets Act does not in itself explain the absence of the allegations now sought to be made. In relation to the Typhoid Fever allegation notably, I find it very difficult to understand why that allegation could not have been made at the time, and I find a justification for not doing so being in the Official Secrets Act to be extremely difficult to accept. In his IT1 the applicant did complain about the way he had been treated following his diagnosis with Typhoid fever. It was not suggested in that important document that his complaining was a cause or possible cause of his dismissal.
25. I am not doubting the good faith of the applicant, who, if I may say so, has a work record and a motivation in wanting to go to Ghana which the court can only admire. Moreover, he feels aggrieved about the way he has been treated. But, plainly, as to the cause of the dismissal, I do have that initial difficulty, before considering the post-hearing documents, in considering how there can realistically be a claim under section 103.
26. The document which the applicant relies on to establish that his dismissal was in fact for a section 103A reason is a memorandum prepared by Dr Dibgy Swift on 3rd December 1999. It is plain that difficulties had arisen during their comparatively short time working together in Ghana between the applicant and a colleague, Mr Malcolm Watson. It is right to say that before his return to the United Kingdom, by reason of illness, the applicant had raised concerns with his superiors in London about a possible alleged involvement of Mr Watson in financial impropriety.
27. It is clear that what are described as "the EFO problems" were given very careful consideration by the responsible staff of the proposed respondents, and Dr Digby Swift's conclusions are set out in a document headed "Staff - In Confidence - Action to correct EFO problems". This is the document upon which the applicant essentially relies in support of the case he now wishes to bring that he was dismissed for a section 103 reason. What is particularly relied on is a sentence in the first paragraph:

"Also, Howard is more likely, in the event of a serious dispute between an EFO and DFID London, to bring the system into disrepute."

28. Later in the document it is stated:

"If we dismiss Howard (with or without Malcolm) there is likely to be a political backlash from Howard."

29. It is suggested that those statements in particular, but the document as a whole, supports the case that the dismissal of the applicant within about a month was for of a section 103A reason.
30. In my judgment, that suggestion is not supported by the document read as a whole. It is a detailed and conscientious document in which plainly Dr Digby Swift is agonising about what to do in the light of the unfortunate situation which had arisen. Under the headings "Culpability", "Other less objective indications of culpability", "General risks" and "Suggested action", the whole issue is very thoroughly ventilated. Reference is made to the difficulties between the two men. Detailed reference is made to the applicant's "general lack of teamwork", very full particulars being given.
31. There is no substance, in my judgment, in the suggestion that this document supports a case that the real reason for dismissal was a section 103A reason. In such a soul-searching document I do not find it surprising that there is a reference to the system being brought into disrepute or to "political backlash". The context of the document as a whole does not come close to establishing, in my judgment, even an arguable case that based on this document the reason for dismissal comes under section 103A.
32. Miss Patane accepted, as I believe she had to, that if the dismissal was for a section 103A reason, either this is a dishonest document prepared by Dr Digby Swift or there was a very dramatic change of mind within a very short period afterwards. It is right to say there are no documents in which the dismissal itself are set out, and some reliance can be placed on that, but I do not consider it to be a real possibility, based on the material which has now become available, that it can be argued that the real reason for dismissal, or the principal reason for dismissal within the meaning of the statute, was the "whistle blowing" suggestion.
33. Reference has been made to other contemporaneous documents, including one which referred to the fact that the applicant was told, "In other respects I am satisfied that you are doing a very good job. Things are very positive". I find no material in the further bundle or the further information now disclosed that the real reason, or principal reason, for dismissal came within section 103A.
34. That being so, I do not find it arguable that this court would direct the Employment Tribunal to re-hear the application for an amendment. This is not a case where this court should intervene. The discretion exercised by the Employment Tribunal was justified on the material before it. It is justified in the light of the further material now available, and, notwithstanding the helpful and sustained submissions of Miss Patane, which have been of considerable assistance to the court, I would refuse this application.
35. LORD JUSTICE CHADWICK: I agree.
36. The application to amend to raise a claim for unfair dismissal under section 103A of the Employment Rights Act 1996 was dismissed by the Employment Tribunal in a decision sent to the parties on 23rd October 2000. The applicant sought a review of that decision, and that application was dismissed in a decision sent to the parties on 14th March 2001. The applicant appealed to the Employment Appeal Tribunal against those decisions. That appeal came before the EAT for a preliminary hearing on 26th November 2001. In the meantime, on 24th June 2001, the department had made disclosure to the applicant of documents which included letters and reports generated by him - of which, if he had not kept copies, he must at least have been aware - and an internal staff memorandum dated 3rd December 1999 of which he had not previously been aware.
37. The internal staff memorandum was prepared shortly before the applicant was dismissed from his employment. The applicant relies heavily upon the contents of that document, but, for the reasons given by Pill LJ, on a proper understanding of its contents, they do not support a claim for unfair dismissal based on section 103A of the 1996 Act.
38. Had I been persuaded otherwise, I would, for my part, have been sympathetic to the submission that the decision to refuse permission to amend ought to be reviewed in the light of further material which was relevant and which could have been, but was not, disclosed by the department at an earlier stage. But because the new material is not of that nature, there is no basis on that ground for revisiting the decision to refuse permission to amend.
39. Leaving that new material out of account, there is no other basis upon which this court can interfere with the decision reached by the Employment Tribunal. I too would refuse this application.
Order: Application for permission to appeal refused.