England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Richardson, sitting alone
Appeal No: UKEATPA/1167/10/JOJ
His Honour Judge Birtles, Ms V. Branney and Dr B.V. Fitzgerald MBE LLD FRSA
Appeal No: UKEAT/0252/11/JOJ (BAILII: [2012] UKEAT 0252_11_0703)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/02/2013

Lord Justice Rimer :

1. This is a renewed application for extensions of time for appealing and for permission to appeal following the decision of Mummery LJ, on the papers on 6 August 2012, refusing permission to appeal. The applicant is Ramon Niekrash. He is the claimant in employment proceedings in which the respondent is his employer, the South London Healthcare NHS Trust ('the Trust'). Two orders by the Employment Appeal Tribunal ('the EAT') are the subject of challenge.
2. The first is an order by His Honour Judge Richardson, sitting alone, made on 6 June 2011 and sealed on 16 June. By that order, made on a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993, as amended, Judge Richardson permitted the applicant to pursue to a full appeal the issue of whether the Employment Tribunal ('the ET') had been in error by failing to consider, and give proper reasons for rejecting, his claim for aggravated damages. Otherwise he affirmed the dismissal of the applicant's appeal on all other grounds against the ET's order.
3. The second is an order by His Honour Judge Birtles and members (Ms V. Branney and Dr B.V. Fitzgerald MBE, LLD, FRSA) made on 7 March 2012 and sealed on the same day. That order dismissed the appeal on the single ground that Judge Richardson had permitted.
4. By his appellant's notice filed on 22 May 2012, the applicant challenges: (i) the order of 6 June 2011 insofar as Judge Richardson refused to permit him to pursue a full appeal against what he claimed was the ET's failure properly to compensate him for the loss of his private practice and damage to his reputation; and (ii) the subsequent order of 7 March 2012 dismissing his appeal on the single ground that Judge Richardson did permit.
5. Any appellant's notice against the Judge Richardson's order of 6 June 2011 was required to be filed with the Court of Appeal by, at the latest, 7 July 2011 (assuming, that is, that the seal date of the order is the relevant start date, as it usually is on appeals from the EAT, although Judge Richardson's order did not expressly so provide). Any appellant's notice against the order made by Judge Birtles and members of 7 March 2012 was required to be filed by 28 March 2012. In the event, the applicant has sought to challenge both orders by a single appellant's notice filed on 22 May 2012. It was, therefore, over ten months late for a challenge to the first order, and some seven weeks late for a challenge to the second. Section 9 of the appellant's notice seeks an extension of time. Section 10 provides an explanation of the difficulties the applicant was under as from 25 February 2012 onwards, and gives cogent reasons as to why he was unable until 16 April 2012 to apply his mind to the question of an appeal against the second order, although it does not explain why, after 16 April 2012, he should be granted the indulgence of more than a month in which to do what every proposing appellant (including self-represented ones) is required by the rules to do within 21 days.
6. Section 10 does not attempt an explanation of the applicant's failure to serve an appellant's notice in proper time in relation to Judge Richardson's order. At the hearing, I asked the applicant to explain the unusual delay in the filing of an appellant's notice against that order. I think it would be a fair summary to say that the discussion revealed that he had no explanation. In my view, there is therefore no ground for giving the applicant the long extension of time that he requires for the purpose of pursuing the appeal he wishes to make against Judge Richardson's order. To do so would be to reduce the rules in relation to the time for appealing to the status of a dead letter. I refuse to extend time and shall in consequence also refuse permission to appeal against Judge Richardson's order. I informed the applicant at the hearing that I was likely to come to this conclusion on his application for an extension of time and that he would probably employ his remaining time at the hearing more profitably by focusing on the proposed appeal against the order of 7 March 2010. The applicant recognised that and did so focus his address.
7. As for the proposed appeal against the order of 7 March 2012, the applicant has provided an explanation for most of the period of delay. Before considering whether it is appropriate to extend his time in respect of this limb of his appellant's notice, I shall consider the merits of the proposed appeal. I have taken the summary of facts that follow from Judge Birtles' judgment.
8. The applicant was employed by the Queen Elizabeth Hospital NHS Trust as from January 2000 as a consultant urologist at the Queen Elizabeth Hospital in Woolwich. He remains employed by the Trust, a successor employer. No criticism has been made of his professional skills and commitment, and Judge Birtles recorded that he is widely described as an excellent clinician. Between 2002 and 2008, however, he had cause to make complaints and criticisms of the Trust's management relating to the provision of urological service, in particular in relation to cancer. He expressed himself forcefully. His complaints were dealt with by Dr Power and Ms Weichart, respectively the Clinical Director for Surgery and General Manager for Surgery.
9. On 22 March 2008, Dr Power and Ms Weichart each wrote to the Trust's Chief Executive, complaining in trenchant terms about the applicant. Dr Power said he had destroyed their relationships with the rest of the urology team and was utilising much energy on trying to do the same for the orthopaedic and general surgeons and anaesthetists. Ms Weichart made similar criticisms, saying the applicant's language was offensive and his comments hurtful and damaging. Neither of them had ever told the applicant that the number, tone or content of his letters were causing them distress.
10. On 9 April 2008, the applicant was 'excluded' under a procedure entitled 'Maintaining High Professional Standards in the Modern NHS'. An investigation was set up under Mrs Holt, an outside consultant. The 'exclusion' was extended until 5 June 2008. It was plain that the applicant had widespread support among senior medical staff. Mrs Holt's report, in July 2008, criticised him only for the amount and tone of his correspondence, which she said had distressed Dr Power and Ms Weichart. She made the point that he had not been told that his correspondence was causing distress. She said there were genuine concerns held by all consultants that needed to be addressed by management. No disciplinary proceedings were brought against the applicant.
11. The applicant brought an employment tribunal claim against the Trust for compensation for the detriment that he had suffered by reason of his disclosures. It was common ground that they were 'protected disclosures' that had been made in good faith (see Part IVA of the Employment Rights Act 1996). The ET rejected his case that his disclosures had caused him any detriment prior to his exclusion. But it upheld his case that the complaints made against him on 22 March 2008 and his subsequent exclusion were detriments imposed on him by reason of the disclosures. The ET accepted that he had suffered a loss of private practice income, loss of reputation and injury to his feelings and his health.
12. The ET, by way of remedy, awarded the applicant £15,000 for injury to health and loss of reputation; and £2,568 for loss of private practice income. The ET, however, rejected his claim for aggravated and exemplary damages. It was only the refusal to award aggravated damages that became the subject of the appeal to the EAT that was heard by Judge Birtles and members.
13. The ET dealt with the claim for aggravated damages in paragraphs 35 to 39 of their reasons. They recognised that an employment tribunal has jurisdiction to award such damages and noted that the manner of committing a wrong may warrant such an award. However, they declined to award such damages. They said that the requirement for such an award is conduct that is high-handed, malicious, insulting or oppressive. They found, however, that there was no malice present when Ms Weichart and Dr Power wrote the letters which resulted in the exclusion: rather, they were seeking support. They found that there was no malice in the exclusion decision: it was rather in the nature of a misguided attempt to resolve the issues that were faced by Ms Weichart and Dr Power. The ET did find that the treatment of the applicant 'was wholly inappropriate', which had caused injury to his feelings for which they were compensating him. They noted also that the Trust could have apologised earlier and more fully, but that its omission to do so did not justify an award of aggravated damages; its view was that, had there been an earlier recognition of the Trust's inappropriate conduct, there may have been a beneficial impact upon his feelings. Whilst the ET ruled out any malice on the part of the Trust, they did not expressly find that the Trust's conduct was not high-handed, insulting or oppressive, although it appears to me obvious that they were in fact so finding.
14. At the rule 3(10) hearing in the EAT, before Judge Richardson, the applicant argued that the ET had been wrong not to find that his exclusion was malicious. Judge Richardson pointed out that it was for the ET to make its findings on such an issue and he was there, by inference, noting that no appeal lies against an employment tribunal's findings on matters of fact. The applicant's further point was that his exclusion could be described as high-handed, oppressive and insulting and Judge Richardson recognised that it was well arguable that aggravated damages are available where there is conduct of that nature. He considered it arguable that the ET had not adequately addressed this limb of the case in paragraphs 38 and 39 of its reasons. He therefore directed a full appeal on the single question of 'whether the [ET] erred in law by failing to consider and give proper reasons for rejecting the claim for aggravated damages on the basis that the Respondent's conduct was high-handed, oppressive and insulting.'
15. The applicant had been represented in the ET (at both the liability and the remedy hearings) by leading counsel experienced in employment law. Before the EAT on his appeal, he represented himself, as before me. The Trust was represented by counsel, Ms Cowen. Judge Birtles, in giving the EAT's judgment on the appeal, explained how the applicant's case on aggravated damages had developed. The schedule of loss accompanying the claim form had identified six factors as supporting such an award. Leading counsel's skeleton argument at the remedy hearing had identified three factors, of which one overlapped with the schedule of loss, but her oral submissions were confined to two factors, of which one so overlapped. Judge Richardson had referred to six factors as relied upon, of which only three were in the original schedule. The applicant's grounds of appeal at the EAT relied on no fewer than 18 factors and his skeleton argument identified 22 factors. He subsequently produced two further schedules, of which one referred to five factors, all in the original schedule of loss, and the other to 27 factors, of which four were in that schedule.
16. The EAT explained that somewhat unusual development of the applicant's case as a preliminary to saying that the applicant had mistakenly approached the appeal on the basis that the ET had been under an obligation to trawl through the judgment on liability and associated documents and identify every potential factor that might support an award of aggravated damages. The EAT rejected the suggestion that the ET was under any such duty. I respectfully agree. It is not the ET's function to investigate for themselves the existence (if any) of every potential head of loss. ETs administer an essentially adversarial jurisdiction and their function does not ordinarily extend beyond deciding the issues that are clearly put before them for decision by the parties. In the present case, the EAT held that the ET at the remedy hearing were required simply to consider those factors that were in the original schedule of loss and the factors also raised by leading counsel in her written and oral submissions. For my part, I consider that the ET's function was to consider those factors that it was made clear at the remedy hearing were being relied upon.
17. Having said what it did in these respects, the EAT noted that Judge Richardson, when permitting the single ground of appeal on aggravated damages to go forward, had identified seven factors as meriting consideration, of which only three had featured in the original schedule of loss, with only one of such three also featuring in leading counsel's submissions at the remedy hearing. The EAT questioned whether Judge Richardson had been right to allow any new factors to be the subject of consideration on the applicant's appeal. I consider that the EAT was correct to raise that question. The EAT's jurisdiction in relation to appeals from an ET is confined to appeals on alleged errors of law by the ET: see section 21 of the Employment Tribunals Act 1996. It cannot have been an error of law by the ET to fail to take into account, when considering the claim for aggravated damages, factors that were not put before it as meriting such an award. In my judgment the EAT ought not to have paid any regard to any factors identified by Judge Richardson that had not been advanced to the ET in support of the claim for aggravated damages.
18. The EAT nevertheless considered all seven factors identified by Judge Richardson. It went through each, explaining which were not raised before the ET, and why in its view there was no error of law on the part of the ET in not regarding the factors that were before it as meriting an additional award of aggravated damages. The essence of it was that the ET had found that the exclusion procedure had been lawfully available to the Trust, and that whilst it had used it mistakenly, it had attempted (if not wholly successfully) to follow the prescribed procedure. The Trust had applied the procedure without malice, and the ET had found no inappropriate behaviour on the part of the Trust in the continuation of the exclusion. To the extent that the use of the procedure represented a detriment to the applicant, the ET of course compensated him for that. The factors identified by Judge Richardson (insofar as also raised before the ET) were ones that the EAT considered were properly regarded by the ET as not meriting an award of aggravated damages; and the EAT could see no error in the ET's approach in their consideration of whether or not to award aggravated damages. The main factor that features in the ET remedy reasons as having been relied upon by leading counsel was the lack of an apology of any kind until April 2010; and that was a factor that the ET specifically concluded did not merit an award of aggravated damages.
19. The applicant has provided extensive written arguments in support of his proposed appeal. Their essence is that the ET, in their remedy judgment, erroneously failed to recognise the reckless, insulting, oppressive and high-handed behaviour of the Trust, which he asserts occurred prior to, during and following his exclusion. There is no doubt that he feels outraged by the way he was treated. The only issue, however, is whether the ET erred in law in their conclusion that the Trust's conduct was not of a nature meriting an award of aggravated damages. The ET expressly directed themselves, in paragraph 38 of their remedy reasons, that 'another formulation of the requirement for such an award to be made is that the conduct of the Respondent must be high-handed, malicious, insulting or oppressive.' The ET expressly acquitted the Trust of having acted in any way maliciously, whilst also making clear that they had found that its exclusion of the applicant was 'wholly inappropriate'. Whilst the ET admittedly did not say so expressly, it appears to me to be unquestionable that their evaluation was that none of the factors relied upon for an award of aggravated damages amounted to high-handed, insulting or oppressive conduct such as to merit such an award. The section of the decision dealing with aggravated damages occupies just five paragraphs of the ET's reasons, in which they gave themselves a correct direction as to the applicable test. The ET cannot possibly have ignored that direction when considering the factual bases upon which the claim for aggravated damages was advanced to them.
20. The applicant of course profoundly disagrees with the ET's conclusion. By way of headline points of complaint about the treatment he received, he explained to me the manner in which he was excluded, and he gave me what amounted to evidence about that; he complained about the consequences of his exclusion, including the problems that that caused him by being locked out of his computer, which in turn complicated his then progression of a 'job plan appeal'; and he complained about the overall handling of the exclusion procedure.
21. Whilst it is not clear to me from the ET's remedy reasons, I presume that points such as these were advanced to the ET by the applicant's very experienced leading counsel. If they were not, the ET was not at fault in not taking account of them. If they were, it is plain that the ET's overall assessment was that the Trust's conduct in relation to the exclusion just did not merit being characterised as high-handed, insulting or oppressive. The difficulty I have with the applicant's challenge to the ET's decision is that the assessment of whether any relevant conduct does or does not qualify as conduct meriting an award of aggravated damages is one of evaluation for the particular tribunal charged with the decision making process, in this case the ET. It was the ET that was best placed to make that evaluation, having read and heard the relevant evidence; and their conclusion was that the conduct complained of did not merit the claimed award. I recognise that other tribunals might perhaps have come to a different view. The problem with the applicant's proposed appeal is, however, that he is driven to having to say that the ET's adverse decision as regards aggravated damages involved an error of law. As it seems to me, the only way in which he could hope to make that good would be if he could show that the ET's decision in relation to the factors relied upon was perverse, in the sense that it was a decision to which no reasonable tribunal could have come. Unless he can go that far, there is no basis for an assertion that the ET erred in law in refusing to award aggravated damages; and no basis, therefore, for an appellate court to revisit the ET's decision.
22. Making good a case based on perversity involves taking on a heavy challenge: it requires nothing less than an 'overwhelming case' (see Yeboah v. Crofton [2002] IRLR 634, at paragraph 93, per Mummery LJ). Whilst I recognise the strength of the applicant's feeling about the outcome of this case, nothing I have read, or heard from the applicant, satisfies me that he has any real prospect of establishing that the decision of the ET in relation to aggravated damages was perverse. That being so, I consider that he can have no real prospect of showing an error of law either by the ET in its decision in that respect, or an error of law on the part of the EAT in dismissing his appeal.
23. I add that the applicant also attacks the ET's decision on the basis that it was insufficiently reasoned. The ET did not, as he claims they should have, deal specifically with each factor relied upon and explain why, either separately or collectively, they did not justify an award of aggravated damages. It can fairly be said that the ET do not list the factors that leading counsel was relying upon and deal with them seriatim; although I have to say that, apart from the apology point, which was dealt with expressly, I am somewhat in the dark as to which specific factors leading counsel did rely upon. Of course, what needs to be remembered is that several issues were in play before the ET on the remedy hearing, of which the aggravated damages issue was but one. I must say that that I have the impression, perhaps wrongly, that that issue may perhaps have been something of a sideshow. If, however, it was not, I anyway feel quite unable to conclude that the ET were not properly entitled to assess that, whatever factors were advanced to the ET in support of an award of aggravated damages, they did not justify such an award. The applicant has, in my view, no real prospect of showing otherwise on an appeal to the Court of Appeal. The Court of Appeal, an exclusively appellate tribunal, is not going to second-guess the ET, the fact finding tribunal, on such an issue.
24. In the circumstances, I shall: (i) extend the applicant's time for appealing against the order dated 7 March 2012 of the EAT, since I have concluded, although with hesitation, that in the circumstances explained in section 10 of the appellant's notice, an extension of time would be just; but (ii) I shall, however, refuse permission to the applicant to appeal against that order, since I consider that an appeal would have no real prospect of success. I shall also, as indicated in paragraph 6 above, (i) refuse to extend the applicant's time for appealing against the order dated 6 June 2011 of the EAT, and (ii) in consequence, refuse the applicant permission to appeal against that order.