England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2015] EWCA Civ 1181

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		Neutral Citation Number: [2015] EWCA Civ 1181
		A2/2014/3487

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 WC2A 2LL

21 October 2015

B e f o r e :

LADY JUSTICE SHARP
____________________

Between:

	DR K ATHANASOPOULOS	Applicant
	v
	THE INSTITUTE FOR ORTHODOX CHRISTIAN STUDIES	Respondent

____________________

DAR Transcript of
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(Official Shorthand Writers to the Court)

____________________

The Applicant appeared in person
The Respondent did not appear and was not represented
____________________

HTML VERSION OF JUDGMENT
____________________

LADY JUSTICE SHARP: This is an application by Dr Athanasopoulos, the applicant, for permission to appeal against the order made by Judge Peter Clark in the Employment Tribunal on 24 September 2014 in which he dismissed the applicant's application under rule 3(1) of the EAT Rules 1993 and the underlying appeal to the EAT. The applicant also applies for disclosure of the notes of Employment Judge Postle, who heard his original claim.

As a brief background, the applicant was employed by the Institute for Orthodox Christian Studies, the respondent, in 2008 as a Director of Distance Learning. On 3 August 2012 he was notified that he would be made redundant and given one month's notice of redundancy. There was then a telephone call between the applicant and the chairman of the board, Ms Bland, in which he said that he could bring down the distance learning programme in five minutes and there would be a number of angry students knocking at her door. The next day the programme went down and there was also an announcement on the website that Costas, which is the applicant's name, had been made redundant.

On 4 August 2013 the principal of the respondent wrote a letter to the applicant setting out some of the background, asking him to reinstate the programme by 10 pm that evening, failing which he would be dismissed and would lose his entitlement to redundancy payment and payment for the month of August. There was no response and on 5 August, the following day, the applicant was dismissed by letter. He brought a claim for unfair dismissal against the respondent, challenging that he was responsible for bringing down the distance learning programme and the dismissal on other grounds.

The claim was heard by Judge Postle. In his judgment of 24 September 2013 he found the applicant was responsible for bringing down the distance learning programme; that the grounds for dismissal were gross misconduct; that a reasonable investigation had been carried out which gave rise to a reasonable belief that the applicant had committed gross misconduct; and, that although there was procedural unfairness, the judge was satisfied that if there had not been that unfairness there was a 100 per cent chance that the applicant would have been dismissed in any event. This would have occurred within a period of four weeks, and he ordered the respondent to pay four weeks' net salary in addition to a basic award capped at the statutory maximum.

There was an application for a review made by the applicant of Judge Postle's decision on 3 October 2013. I should focus on two matters. It raised the issue of unpaid holiday pay which was quantified by the applicant at £6,300. The complaint was that Judge Postle had not given any decision in relation to that. He also said that he wished Judge Postle to consider a claim for loss of statutory protection and the question of uplift, which the applicant said the judge should have considered on account of the procedural failings.

The application for reconsideration was dealt with on 17 October 2013, and it was refused. The reasons for the refusal were that no evidence was advanced by the applicant to show he was prevented from taking annual leave, and if he did not take annual leave that was his choice. The judge said he was not obliged to make an award for loss of statutory protection and no uplift was appropriate, given the applicant's conduct. There was then a notice of appeal to the Employment Appeal Tribunal and on 13 June 2014 Simler J directed no further action be taken on the appeal as it stood no reasonable prospect of success.

There was then a rule 3(10) application for an oral hearing which took place before Judge Peter Clark. The judge found in short that with respect to the holiday pay claim no point of law was raised by the applicant. Some further reasons given by the Employment Tribunal dealt with the issue. In respect of the claim for uplift, the applicant's conduct contributed entirely to his dismissal and it was therefore within the Employment Tribunal's discretion not to award an uplift pursuant to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, even though there had been a failure to comply in certain respects with the ACAS code. In respect of the loss of statutory protection, the applicant had suffered no loss because he would have been dismissed fairly four weeks later and the period was de minimis in the context of a wait of at least two years before acquiring unfair dismissal protection in new employment.

The applicant has focussed his submissions before me today almost exclusively on the issue of holiday pay. His complaint is that the employment judge did not consider the matter in the first instance and gave inadequate reasons on the reconsideration for his refusal of holiday pay. He asks for disclosure of the notes in order to discover whether the matter was raised, as he said it was, in cross-examination of the respondent's witnesses.

In my view, none of the grounds advanced, whether orally or in writing, stand any real prospect of success in the light of the findings made by the Employment Tribunal.

So far as the claim for holiday pay is concerned, the applicant accepts in his written submissions which he has put before me that he did not refer to the holiday pay issue in his witness statement, but he says there was a reference to it in his schedule of loss. Moreover, he says he vigorously cross-examined both of the respondent's witnesses, that is Professor Frost and Ms Bland, on the subject, and reminded the judge of his cross-examination in closing submissions.

The problem, however, is this. Claims such as this one can only be dealt with on the basis of evidence. The applicant did not, as I have indicated, refer to the issue in his own evidence, and the fact that he cross-examined or sought to cross-examine Professor Frost and Ms Bland on the issue took the matter no further. The issue was in my view properly dealt with at paragraph 1 of the reconsideration decision of 17 October 2013. If the applicant did not proffer evidence that he was prevented from taking annual leave by the respondent, there was no evidence upon which the Employment Tribunal could have found this loss to be proved.

Accordingly, the application made, both in this particular respect and in relation to the other matters advanced in writing, is refused.