England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Langstaff, Mr D. Evans CBE and Mr J. Mallender
UKEAT/0065/10/JOJ, BAILII: [2010] UKEAT 0065_10_0712

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2011

Lord Justice Rimer :

1. This is a renewed application for an extension of time for appealing and for permission to appeal. Mummery LJ refused permission on the papers on 12 April 2011. He was of the view that the proposed appeal raised no reasonably arguable questions of law and that there was 'no point in a third repeat of failed arguments.' The order under challenge is that of the Employment Appeal Tribunal ('the EAT') made on 7 December 2010 dismissing the applicant's appeal against paragraphs 1 and 2 of a judgment of the Ashford Employment Tribunal ('the ET'), a judgment that was sent, with written reasons, to the parties on 16 November 2009. The two paragraphs were those by which the ET held that the applicant had not made a protected disclosure on 11 May 2007 and so had not been constructively dismissed, nor suffered a detriment, as a result of having made such a disclosure. The ET panel comprised Employment Judge Wallis, sitting with Mrs S.C. Dengate and Mr W. Walsh. The EAT panel comprised Langstaff J, sitting with Mr D. Evans CBE and Mr J. Mallender.
2. The applicant is Miss Jennifer Meares, claimant in the proceedings, who was represented before both tribunals below by counsel (Mr Sparks before the ET, Mr Kirby before the EAT). She now appears in person, although she has been assisted in the presentation of her application by her partner, Mr Stewart Spinrad and at her request I permitted him to address me on her behalf. The respondent is the Medway Primary Care Trust.
3. The applicant, a state registered nurse, was employed by the respondent between April 1997 and 9 March 2008, when she resigned. Her claim that she was unfairly constructively dismissed and for breach of contract succeeded, and she was awarded compensation of £4,888.72. Her appeal to the EAT was confined to the ET's rejection of her protected disclosure claim.
4. The EAT's order was made on 7 December 2010 and provided, as usual, that the time for appealing to the Court of Appeal was 21 days from its seal date, which was 14 December. The time for appealing therefore expired on 4 January 2011. The EAT's order followed its oral judgment of 7 December. The applicant made a prompt request for a transcript of the judgment, which the EAT acknowledged on 14 December, explaining that, if she wished to appeal to the Court of Appeal, 'your application should be lodged directly with the Court of Appeal and in accordance with the required timescales' (my emphasis) and providing a contact telephone number for the Court of Appeal. That could not have made the position clearer but the applicant still did not file her appellant's notice in the Court of Appeal until 14 February 2011, 41 days late. Having taken almost three times the permitted time for filing it, she now seeks an extension of time for doing so.
5. Her explanation for the delay is, in section 8 of the appellant's notice, that it was not 'reasonably practicable' to submit her notice within the 21 day period. That was, first, because a 'meaningful' appeal could not be made without a transcript of the EAT's judgment, which she only received on 13 January. She explains that, having received it, she completed drafting the grounds of appeal and skeleton argument on 25 January. She was by then 21 days out of time, but still did not file the notice promptly. That was because, as she was in receipt of Pension Guarantee Credit, she was entitled to a fee exemption in respect of her appellant's notice. She wrote in section 9 that on some unstated date she was told by the Court Service that a letter of 19 November 2010 from The Pension Service was insufficient to justify her exemption claim and that it took her from 12 January until 11 February to ask for, and receive, the required proof of her entitlement. At the hearing, I asked Mr Spinrad when that explanation from the court was given to the applicant. His response was that there had in fact been no contact with the court about the matter. All that happened was that the applicant sought and obtained the proof of her entitlement to a fee exemption and then used it for the purposes of claiming the exemption when, on 14 February, she filed her appellant's notice.
6. The 'reasonably practicable' test upon which the applicant relies is derived from section 111(2) of the Employment Rights Act 1996, where it applies in relation to the three month time limit for presenting unfair dismissal claims to an ET. It does not apply to compliance with the time limit for appeals to the Court of Appeal, as to which the provisions are in CPR Part 52.4(2). In any event, the applicant's excuse that it was not reasonably practicable to file her notice, or a 'meaningful' such notice, within the prescribed 21 day period because of the lack of a transcript of the EAT's judgment is no excuse. She was present at the hearing on 7 December, she heard Langstaff J's oral judgment and knew perfectly well the nature of the two arguments that counsel had advanced unsuccessfully on her behalf and which she wished to re-argue in the Court of Appeal. She therefore knew all that she needed to know in order to draft and file a sufficient appellant's notice and did not need a transcript of the judgment to do so. I accept that she could reasonably have taken the view that the preparation of her skeleton argument in support of her appeal required a sight of the transcript. But she could, when filing her appellant's notice, have sought an extension of time for that as well as for filing a transcript of the EAT's judgment, as is usually done by appellants awaiting the production of a transcript.
7. I therefore regard the first ground for an extension of time as insufficient to justify one. It is sought against the making by the applicant of an unjustified decision to award herself additional time in which to file her notice. As the EAT had expressly told her by its letter of 14 December of the need to respect the required timescales, that decision was particularly imprudent. To extend time in these circumstances would send quite the wrong message to proposing appellants. The time limits apply to those who act for themselves just as much as to those represented by lawyers and there was here no good reason for the applicant's failure to comply with them. The fee exemption point does not help her. It appears merely to have added to her default and, in the light of Mr Spinrad's explanation about the matter, there is no convincing justification for the yet further delay beyond 25 January.
8. The process by which the applicant progressed the filing of her appellant's notice to the Court of Appeal was therefore, overall, in the nature of a leisurely stroll; and I find it difficult to identify any good reason why time for appealing should be extended. I consider, however, that I ought not to rule finally on the time extension point without first considering the merits of her proposed appeal. If I were to be persuaded that the merits were very strong and that a great injustice might be done if she did not have the chance of pursuing an appeal, that might tip the balance on the time extension point in her favour. So far as the merits are concerned, the relevant points are relatively short, although the applicant has explained them in a skeleton argument occupying 104 paragraphs.
9. The relevant background was that in October 2005 the applicant went on long-term sick leave until March 2007. Her line manager was Mrs Cable, with whom she did not get on. She wrote a letter to Mrs Cable on 21 March 2007 that the ET described as 'vehement' to a very large degree, said that it amounted to a 'tirade' and found that 'it was an unreasonable letter to send to a line manager and that [the applicant] had over-reacted to the situation'. The judgment of the EAT, delivered by Langstaff J, said that what the ET had said of that letter:

'… reflected a view of [the applicant], which plainly pervades the judgment as a whole, that she was someone who expressed her views trenchantly, who did not suffer fools gladly (as she herself said) and who was certainly no shrinking violet.'

10. The subject of particular contention was the consequence of Mrs Cable's letter to the applicant of 4 May 2007 to the effect that various people she had been shadowing on her return to work programme had reported that she was having difficulty in arriving on time and was regularly arriving late. Whilst the ET found it was reasonable for Mrs Cable to write to the applicant about those matters, it found that it was unreasonable of her not to have spoken informally to her first about the reports to see whether they were accurate. That omission incensed the applicant, who responded with a letter of 11 May 2007 the tone of which the ET found to be 'extremely abrupt, to the point of rudeness, aggressive and quite extraordinary given that it was written to her line manager.' Whilst the ET found that it was reasonable for the applicant to ask Mrs Cable for details of the reports of lateness so that she could explain them, if possible, it found unreasonable the way in which the letter addressed Mrs Cable. The letter occupied approximately one and a half single spaced pages, and was copied to three others, including Mrs Roots, the claimant's manager in respect of clinical matters. I quote from the ET's summary of it:

'30. … The letter demanded details of "every fact relating to every incident, who made these accusations and exactly what was said. What you have done is serious and I have a right to defend myself. As you have lumped everything together so as to exaggerate and dramatise everything, I want to know who are the practice nurse advisers (in the plural), who are the course organisers (in the plural) …." and so on. [The applicant] went on to complain about Ms Rawson "talking down" to her in front of a patient and said "now if it's about mud-slinging then let me do some for a change" and then embarked upon other complaints.

31. She then wrote "I am so angry, hurt and upset about all of this that I am taking out a grievance against you. I will not be bullied and harassed by you, or anyone else, for your or their self-aggrandisement. I am, in case you have forgotten, an experienced senior professional and I am not going to be treated in such a manner."

32. She went on to say "I think that there is much more to this than meets the eye, by your insinuations, arrogance and just plain nastiness you and other staff have managed to make most of the old MEDDOC nurses leave the PCT (I know because we still talk to each other). The couple of them that are left are easily bullied, manipulated or whatever you want to call it. I AM NOT ONE OF THEM and I have absolutely no intention of becoming a victim like the others." The letter ended "You will be hearing from me in the very near future" and [the applicant] said that she would not be attending the appraisal, which had been rearranged for 15 May 2007'.

11. The issue before the ET was whether the letter constituted a protected disclosure within the meaning of section 43A of the Employment Rights Act 1996. The ET considered this at paragraphs 33 to 35. It considered whether, insofar as it raised an assertion of bullying and harassing, it constituted a disclosure that, in the applicant's 'reasonable belief', tended to show one or more of the ingredients in sub-sections 43B(1)(a), (b) and (d) of the Act (the commission of a criminal offence, the failure by the respondent to comply with a legal obligation to which it was subject, or the endangering of anyone's health or safety). The ET had doubts about whether the applicant held any such 'reasonable belief' but found, in paragraph 33, that her letter 'could fall within the definition of a qualifying disclosure.'
12. The ET then directed itself that, as the disclosure was made under section 43C to the applicant's employer, it was also necessary that it should have been made 'in good faith'. Directing itself by reference to the Court of Appeal's decision in Street v. Derbyshire Unemployed Workers Centre [2004] EWCA Civ 964; [2004] IRLR 687, it held in paragraph 34 that the disclosure was not made in good faith because, so it found as a fact, 'the disclosure … was, as in the case of Street, motivated by [the applicant's] personal antagonism towards Mrs Cable.' It followed that the letter was not a protected disclosure and so the applicant's complaints based on its being such a disclosure were dismissed.
13. The applicant advanced three grounds of appeal to the EAT, but the only one presently relevant is ground 1, occupying paragraphs 4 to 8. The thrust of it was that good faith had not been advertised as an issue for the ET and was not addressed during the hearing. The applicant was not, it was said, questioned on her motives, no evidence on this was provided to the ET and no mention of her motive was raised during the hearing. The point made was, therefore, that as good faith was not in issue, it was wrong for the ET to make the adverse finding as to the applicant's good faith that it did in paragraph 34.
14. The 'good faith' argument on the applicant's behalf to the EAT appears in the event to have been advanced by her counsel, Mr Kirby (who did not appear for her before the ET) on two discrete grounds, the first of which does not appear to have featured in ground 1 as drafted. It was, however, considered and decided by the EAT. It proceeded on the footing that 'good faith' was in issue at the ET but was to the effect that the application of the Court of Appeal's decision in Street required the ET to approach the facts by asking whether the predominant or dominant motive for writing the relevant letter was personal antagonism towards Mrs Cable, its primary recipient (paragraph 22 of the EAT's judgment).
15. The EAT recorded in paragraph 25 Mr Kirby's submission that the applicant's motives must have been very mixed; that the ET had recognised that she had a genuine belief that she had been treated badly by Mr Cable; and that it was only to be expected that she would respond to the letter of 4 May in robust terms. The further submission was that the ET had neither asked itself what the predominant motive was, nor examined the relative strength of the relative motivations. Therefore, it was said, it had not put itself in a position in which it could properly address the 'good faith' issue.
16. The EAT rejected the submission that, in approaching the 'good faith' issue, it was incumbent on an ET to reflect in its judgment what the predominant motive was. The question the statute poses is whether the disclosure was made in good faith. It does not ask for a description and evaluation of other motives there may have been. The ET in Street had not apparently engaged in any such exercise in finding a lack of good faith and its decision was upheld: it had investigated the motive, found it was antagonism and had concluded that it did not meet the statutory requirement of good faith. The EAT summarised its rejection of the first ground of appeal as follows:

'32. If the only motivation which the Tribunal describes is personal antagonism, as here, it seems plain in the context of its judgment as a whole that that is what it was regarding as the predominant motivation if indeed it regarded motivation as mixed. If it were the sole motivation (and it must be noted it is the only motivation the Tribunal identifies) then that too must necessarily meet the statutory test because the sole motive is plainly greater than the predominant motive, and any test which seeks the identification of a predominant motive must necessarily be satisfied by the identification of the sole motive.'

33. Accordingly, we do not think that there is any force in the submissions made to us by Mr Kirby that the Tribunal should have analysed to a greater extent than they did whether and to what extent personal antagonism was a dominant or predominant motive.

34. We cannot pass from this part of the argument without noting that there was no sustained challenge to the entitlement of the Tribunal to conclude on the facts that they found that there was personal antagonism between the Claimant and Mrs Cable and that personal antagonism might have motivated the writing of the letter upon which reliance was placed.'

17. By her application, the applicant seeks permission to re-open before the Court of Appeal Mr Kirby's failed argument. Like the EAT, and Mummery LJ (a former President of the EAT, with great experience in matters of employment law) when refusing permission on the papers, I regard the argument as lacking merit and substance and consider that an appeal based on it would have no real prospect of success.
18. The heart of the problem faced by the applicant is that the ET's finding in paragraph 34 was a finding of fact, namely as to her motivation when writing the letter. It is a basic principle, which I hope the applicant understands, that it was not open to her to appeal to the EAT (or thence to the Court of Appeal) against the ET's findings of fact: appeals may only be made on a question of law arising from the decision of the ET (see section 21(1) of the Employment Tribunals Act 1996). Of course, if there is no evidence to support a particular finding of fact, its making will be an error of law that can be the subject of an appeal, as will be the making of a finding of fact that is perverse. There is, however, it seems to me, no question of the ET's finding in paragraph 34 having been either unsupported by evidence sufficient to justify it or perverse. Nor does any such argument appear to have been advanced to the EAT. As paragraph 34 shows, it was effectively conceded that the ET was entitled to find that there was personal antagonism between the applicant and Mrs Cable and that such antagonism might have motivated the relevant letter; and a perversity argument was specifically abandoned by Mr Kirby (see paragraph 53 of the EAT's judgment), and so it cannot be advanced to this court.
19. The ET had the benefit of seeing and hearing the applicant give oral evidence, including about the letter, which no doubt played its part in its decision as to the motivation for the letter, although in coming to its conclusion in paragraph 34 it appears to have drawn its finding as to the lack of good faith from the terms of the letter itself. It is said that it was an error of law for the ET to have done so. Yet it is also said (in paragraph 52 of the skeleton argument) that 'the Claimant's primary objective was clearly stated in the disclosure'. The suggestion therefore appears to be that the ET was entitled to derive from the letter a motivation for it that was favourable to the applicant, but not one that was unfavourable to her. This point is, however, nothing other than an impermissible challenge to the ET's finding of fact. It is in my view impossible to conclude other than that it was entitled to make the finding that it did. The letter was a manifestly intemperate and retaliatory one; its hostile and aggressive tone was directed at Mrs Cable; and it justified the ET's finding that the applicant was either solely or predominantly motivated by considerations other than any wish to draw her bullying allegations to the attention of the respondent.
20. Thus in my view there is no viable basis for any renewed challenge in this court to the making by the ET of that finding: the Court of Appeal will not entertain a challenge to the ET's finding of fact. The only way in which the applicant might hope to be able advance her point is by asserting that the finding was insufficiently reasoned by failing to explain the (if any) mixture of motives that might have prompted the letter and, in turn, then to explain that and how it found that either the sole or the predominant motive was the ulterior one of personal antagonism. The justification for advancing such a 'reasons' challenge would have to be that, without such elucidation, the applicant did not know how the ET had arrived at the adverse finding of fact that it had. The applicant's skeleton argument submits that it was indeed an error of law for the ET not to make a detailed analysis of the predominant purpose of the disclosure and further submits that its omission to do so was contrary to the principles developed by Street.
21. In my view, however, there is and would be no substance in a reasons challenge of this nature, and nothing in Street suggests otherwise. The task of the ET was to direct itself as to the meaning of 'good faith' in this context. For that purpose it had to consider the guidance in Street as to the applicable test and then to apply that guidance to the facts of the case before it. That required it to consider and assess the evidence relevant to the motive or motives that might have prompted the letter and to make a finding as to whether or not the disclosure was made in good faith. The ET plainly did consider the decision in Street (see paragraph 33) and its paragraph 34 findings show that it found on the evidence that personal antagonism was either the sole or predominant motive. There was no requirement upon it to explain what other motives might have been in play, or what proportion of the overall motivation they respectively represented, a task which would in practice be an unrealistic one. The suggestion that the ET erroneously followed the factual findings in Street is unwarranted and, with respect, makes no sense. What is that supposed to mean? It is obvious that the 'as in the case of Street' phrase the ET used in paragraph 34 means no more than that the ET was coming to the like conclusion in the instant case as the tribunal had in Street. It is equally obvious that it arrived at that conclusion by applying the principles explained in Street. That is how the law works and it is an injustice to the ET to suggest that it was doing otherwise. There is equally no basis for any suggestion that the applicant does not know why she lost on the 'good faith' point. She lost, as she knows, because the ET found that she was either solely or predominantly motivated in writing her letter by her personal antagonism towards Mrs Cable. I accept that she disagrees with that finding. But it was a finding that the ET was entitled to make on the evidence and a challenge to it is not open to her in the Court of Appeal.
22. In my judgment, there is no merit in the first ground that the applicant wishes to re-open before the Court of Appeal. I would, in company with Mummery LJ, refuse her permission to appeal on that ground. I add that, in paragraphs 84 and following of the applicant's skeleton argument, there is an application to re-open before this court an argument that was either abandoned by counsel before the EAT (see paragraph 53 of its judgment) or else raises new points as to the justification of the ET's factual finding which were not argued before the EAT. There is, however, no justification for permitting the applicant to raise before this court points not taken before the EAT and I say no more about them.
23. The second ground of appeal, which relates to the second ground argued by Mr Kirby before the EAT was, in effect, ground 1 as summarised in paragraph [13] above. The applicant's point was that the good faith point had never been put in issue by the respondent or raised in the course of the hearing before the ET; and she also claimed that she had never been questioned before the ET as to her motives. The essence of her point was that, when the ET's judgment and reasons were later produced, she found she had lost on a point that she had never had the opportunity to meet and answer. If those assertions were factually well-founded, it is obvious that there would have been something wrong with the procedure and that the ET's adverse decision on a crucial point could not stand. Before the EAT, reliance was placed on the observations of the EAT in Lucas v. Chichester Diocesan Housing Association Ltd UKEAT/0713/04/DA, in particular on paragraph 39 of the judgment delivered by His Honour Judge McMullen QC in which he said that '[a]s in all cases where improper motivation is alleged, it should be made explicit in advance, and it should be put squarely to the Claimant.'
24. As to whether the 'good faith' point had been raised as an issue before the ET, the EAT pointed out that the respondent had not raised it in its ET3. As to that I add that, although in paragraph 5 of her Particulars of Claim (under the general heading 'Background'), the applicant had pleaded her letter of 11 May 2007, she did not there assert that it was a protected disclosure, nor did she there plead facts which made it clear that she regarded that letter as a protected disclosure. The claim that she was unfairly dismissed for making a protected disclosure was an alternative claim advanced in paragraph 21 (under the general heading 'Pleadings'), where the pleading did not identify what the protected disclosure is said to have been and referred irrelevantly to the disclosure having been under section 47B. The same paragraph also alleged a 'detriment because she made a protected disclosure in that she was suspended from her clinical duties.'
25. In its ET3, the respondent admitted the letter of 11 May 2007, denied in paragraph 5.35 that the applicant was dismissed for making a protected disclosure under section 47B (nor has the contrary since been asserted by her) and pleaded in paragraph 5.36 that:

'It is also denied that the Claimant was subjected to any detriment on the ground that she has made a protected disclosure. It is not clear on what basis the Claimant is alleging that her grievance is a qualifying disclosure under section 43B Employment Rights Act 1996 and which grievance she is relying upon as a protected disclosure. The Claimant is asked to provide Further and Better Particulars of this and the Respondent reserves its right to amend the Response upon the provision of these Further and Better Particulars.'

If any Particulars were served (and I infer they were not), they are not in the bundle that the applicant has provided for this application. Having regard to the imprecision with which the applicant pleaded the protected disclosure point – with no express reference to the letter of 11 May as having been that disclosure – it is not surprising that the respondent pleaded to that case as it did. It is equally unsurprising that it did not advance any express plea that any protected disclosure (whatever it might have been) was not made in good faith. How could it have done so except by making some generalised, and inappropriate, pleading along the lines of 'If, which is denied, the Claimant ever made any alleged protected disclosure (none having been expressly identified by her), the Respondent denies that it was made in good faith'? I add that whilst Employment Judge Kurrein, in paragraph 2 of his reasons for his case management order of 3 December 2008, described the applicant's public interest disclosure case as 'sufficiently particularised', I infer that he was there referring to its clarification in List of Issues, to which I next refer.

26. The EAT also pointed out that 'good faith' was not referred to in the List of Issues that the applicant had produced and that, at a case management discussion preceding the hearing, the ET had treated them as the issues for its decision. That list did make clear, in a way in which her pleading had not, what the applicant's protected disclosure case was, namely that the letter of 11 May 2007 was a letter complaining of bullying and harassing, was a qualifying disclosure within section 43B(1) and was made to her employer pursuant to section 43C. The EAT also observed that the respondent's witness statements made no reference to the good faith point, but rightly pointed out that they could not properly do so: their function was to give evidence, not to argue the case against the applicant.
27. That, therefore, was how the 'good faith' point appeared – or, rather, did not appear – in the documents. But, as the EAT's judgment explained in paragraph 39, the EAT had also made enquiries as to what happened at the ET hearing, and the Employment Judge provided his notes of the cross-examination of the applicant in relation to the issue of motive. They showed that the applicant was invited by counsel for the respondent to comment on a characterisation of the letter of 11 May 2007 as being threatening in a number of respects, mud slinging and as written for the purpose of undermining Mrs Cable. One question recorded in the notes was 'I suggest the letter wasn't a protected disclosure but was to aggressively rebut Mrs Cable's letter and undermine her and to assert your authority over her.'
28. As the EAT said, the question for it was whether the 'good faith' matter was so put that the applicant could deal with it. It pointed out that the words 'good faith' were not actually used in the cross-examination; and the first time the applicant was confronted with questions as to motive was during that cross-examination. Counsel for the respondent's closing written submissions, however, then dealt with the good faith issue in paragraphs 9 and 10, giving reasons for inviting the conclusion that the disclosure had not been made in good faith. Having referred to those submissions, the EAT continued:

'He relied, amongst other things, upon the conclusion in Street that if the main motive for a disclosure was antagonism toward the manager then it could not be regarded as being made in good faith. Although we would prefer the formulation that a Tribunal was entitled to hold it was not in good faith, because plainly, as it seems to us, every case must depend on its own facts and this must particularly be so when it comes to issues as complex as motivation, it is nonetheless plain that at that stage the point was very clearly put, and then the very words "good faith" were used.'

29. The EAT's conclusion on this issue was that it accepted, wholly unsurprisingly, that the applicant had to be given a fair opportunity to know in advance that the good faith issue was being taken against her. It further held that it was sufficient that she knew that before the ET began to consider its decision after receiving evidence and submissions. It continued:

'49. … In this particular case, for instance, if Miss Meares had been taken at a disadvantage by the submission made at the conclusion of the case that she lacked good faith, or by the questions that alleged that she had a motive other than that which she put forward for writing the letter as she did, then we would have thought it was open to, and indeed we would have expected, counsel to have asked for an adjournment to call further evidence or to recall Miss Meares to deal with the point. We would have expected some objection if such an important point had not been properly ventilated beforehand. None of that happened.

50. We have looked here to see whether the allegations were sufficiently made. What, in our view, must be focussed on are not the words "good faith" as though they were some kind of mantra. What matters in a case such as this is what in the context of the individual case those words actually mean. Here the issue was clearly whether Miss Meares made the allegation she did in her letter in order to draw the attention of her employer to a breach of the employer's duty, and did so with a view to the public interest, or whether, rather, as the employer contended, she did so because of her personal antagonism towards Mrs Cable and to score a point against or undermine her.

51. The Tribunal's conclusion was that the disclosure was not made in good faith as in the former case but was, and we emphasise the next few words, as in the case of Street motivated by the Claimant's personal antagonism. The Tribunal plainly had regard to case of Street. Street was common currency at the Tribunal. That showed that here when antagonism being alleged that that went to the question of motive, and the question of motive straight to the issue of good faith. In this case the actual words "good faith" would have had much less meaning than did the allegation which was actually put, and it must be allegations of substance which are put to parties rather than some legal terminology which parties may not be able easily to understand devoid of context. A question – "You didn't do this in good faith, did you?" – begs what that actually implies in the circumstances of a particular case.

52. In short, we are entirely satisfied that here: (1) the issue was properly before the Tribunal; (2) that the questions put to Miss Meares gave her a proper opportunity to answer the allegation made against her that her motivation was other than she claimed. She had, through counsel, an opportunity to respond in detail to the allegations at the conclusion of the case and indeed had the last word. This is a very different case from one such as Lucas where the allegation was never put. It is a case in which we are satisfied that she had that reasonable opportunity to deal with matters held against her which the law requires.'

30. I have set out those reasons in full as in my view they provide a complete answer to the applicant's complaint under this head. 'Good faith' is an ingredient that was expressly relevant to whether or not the alleged protected disclosure was made in accordance with section 43C. I express no view on whether that section imposed a burden of proving good faith on the applicant, or whether, absent a challenge by the respondent, there would a presumption of good faith on her part. It was, however, plainly open to the respondent to put her good faith in issue. I accept that it did not do so in its ET3, but it cannot be criticised for that omission having regarded to the imprecise way in which the applicant had herself framed her protected disclosure claim in her particulars of claim. The issue of good faith was, however, raised at the hearing itself, when it was first raised by the respondent in its cross-examination of the applicant (by putting to her the motivation for the letter of 11 May 2007) and was then advanced expressly as a defence to the applicant's claim in paragraphs 9 and 10 of counsel's closing written submissions. How, in those circumstances, paragraph 6 of the applicant's grounds of appeal to the EAT came to be drafted as it was, I do not understand.
31. It is obvious, and I need no persuading, that it is procedurally unfair for a court or tribunal to decide an issue against a party of which that party has not been given fair notice or with which it has not had a fair opportunity to deal: see what I said in paragraph [61] of my dissenting judgment in Woodhouse School v. Webster [2009] EWCA Civ 91; [2009] ICR 818 (a decision referred to by the EAT in the present case, at paragraph 47). In this case, however, there was no procedural unfairness by the ET. It is a common thing for an issue to be raised before a court or tribunal that has not been expressly flagged up in advance. That does not mean that it cannot fairly be raised and decided. In some cases, of course, a party who claims to have been taken unawares by it may have good grounds for objecting to it being raised and will object accordingly. He may have grounds for objection on a variety of grounds, for example that in order to be able to meet the point he would wish to adduce evidence from witnesses not already before the court or tribunal and will be prejudiced if he is unable to call them. Any well-founded objection might be dealt with by, for example, either refusing to allow the new point to be raised or granting an adjournment. There may be other ways to deal with it. How to deal with it with it will be a matter for the court's or tribunal's discretion.
32. In many cases, however, there will be no injustice in the raising by a party at the hearing of a new point that the other party has not foreseen. In the present case, the new issue went to the applicant's motives in writing her letter of 11 May 2007. She was obviously able to answer questions about that. Indeed, she was the only person who could. I recognise that she may perhaps not at the time have foreseen to what end the questions were directed. But she was represented by counsel, whose duty it was to look after her interests during the cross-examination; and if he had considered that the line of questions as to motive was unjustified, or was taking the applicant unfairly by surprise, he could have objected to the questions. Had he done so, it is not of course possible to forecast the outcome and I will not speculate as to it. He did not, however, object and the questions were put and answered.
33. It is conceivable, but improbable, that counsel did not appreciate the intended thrust of the motive questions at the time they were put. But, if he did fail to do so, he cannot have failed to understand their intended thrust when he saw paragraphs 9 and 10 of his opponent's closing written submissions. If he had hitherto been under any illusion that the applicant's good faith was not in issue before the ET, it would have been open to him to object to the respondent making use of the applicant's evidence in support of a 'no good faith' argument, or therefore of advancing such an argument. He might, if he had not previously understood what was going on, have explained that it was unfair for the 'good faith' point to be taken; alternatively, he might have taken the line that he should at least have the opportunity of considering it with the applicant and, if so instructed, asking for her to be re-called to give additional evidence on the point. But nothing like that happened.
34. In the result, the applicant's motive was examined in evidence and was the subject of express submissions by the respondent to the effect that the disclosure was not made in good faith. Not a murmur of dissent to any of that was advanced by her counsel. It is now said that the fact that the ET ruled on such issue was procedurally unfair. The argument appears to me to be obviously unsustainable. If there was any arguable unfairness, it was there for the applicant's counsel to see at the time and it was his duty and right to raise objections to it. As he raised no objection, the ET was fully entitled to proceed on the basis that there was no irregularity and that the applicant was content to deal with the 'good faith' issue. The applicant's argument, first to the EAT and now to this court, is in effect that a party to proceedings is entitled to observe the commission of an alleged procedural regularity in the course of a trial or proceeding, remain wholly silent about it and then to submit on an appeal that it was either the court or tribunal that was at fault and that he is entitled to a re-trial. I respectfully disagree. The applicant was represented by counsel and the ET was entitled to proceed on the basis that he was looking after her interests.
35. All cases turn on their own particular facts. In the circumstances of this case, however, I regard the EAT's disposition of this line of criticism of the ET's decision as entirely sound. There is, in my judgment, no real prospect of the Court of Appeal taking a different view on an appeal. I refuse permission on this ground as well.
36. I therefore both refuse to extend the applicant's time for appealing and to give permission to appeal. I add that, whilst I appreciate the applicant will be disappointed, I hope that she may also appreciate that such refusal is likely to be in her interests. The ordinary consequence of the pursuit of an appeal to the Court of Appeal that is dismissed is that the losing appellant is ordered to pay the successful respondent's costs of the appeal.