ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HER HONOUR JUDGE EADY QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
| ALEXANDER KUZNETSOV
|- and -
|THE ROYAL BANK OF SCOTLAND PLC
Ms Alice Mayhew (instructed by Berwin Leighton Paisner LLP) for the Respondent
Hearing date : 25 January 2017
Crown Copyright ©
Lord Justice Elias:
The hearing before EJ Glennie
"The next group of issues, which are 2(g), 3, 4, 5 and 6, relate to the argument to which I have already referred about the bonus. However, in particular in paragraphs 3, 4, 5 and 6 the Claimant seeks to make what amounts to a whistle blowing complaint, saying that his grievance about the bonus was a protected disclosure. It is described as a "protected act" but I read it as a protected disclosure. He goes on to say that the reason for his dismissal and/or his redundancy was the raising of that protected disclosure.
I am satisfied that a claim of that nature has not previously been raised. As I have indicated, the question of the bonus was raised in general terms before Judge Auerbach. The complaint that protected disclosures were made is not to be found anywhere before its appearance in this draft list of issues. It is not in the 10 November 2014 letter and it is not in any of the earlier case management or pre-hearing review records. Therefore this would be a new claim in the case, as I am satisfied that to raise a complaint about protected disclosure goes beyond what is fairly in issue in an unfair dismissal complaint. I say this because the Claimant argues that it is all part and parcel of unfair dismissal. In a sense it is, because it relates to the dismissal, but I find that a complaint that an employee has made a protected disclosure and then that that has been the reason or principal reason for his dismissal is not something that a Respondent or the Tribunal could reasonably understand to be an issue in an unfair dismissal case where that is not specifically raised.
Therefore I am satisfied that raising such a complaint would require an amendment to the claim. I would not allow that amendment. It is nearly 2 years and 10 months since the claim form was presented. There would be a substantial increase to the issues in the case. The relevant evidence would have to be obtained, and that evidence would date back not only to some point necessarily before March 2012, but also as Ms Belgrove has submitted, back to considerations of what was said and what occurred in 2010 and 2011.
Applying the principles in Selkent v Moore  ICR 836, I am satisfied that it would not be just to allow the claim to be amended in that way at this stage. Applying the time limit in section 111(2) of the Employment Rights Act 1996, the new complaint, if brought in fresh proceedings, would be out of time by over 2 years 6 months. There are no grounds advanced for saying that it was not reasonably practicable for the complaint to be brought within time, as all the relevant facts must have been known to the Claimant by the time that he presented his claim. Furthermore, a further period of over 2 years 6 months is not a reasonable time within which to bring the complaint. I also find that the burden of prejudice to the Respondent in having to answer a claim that is so far out of time would outweigh that to the Claimant in not being able to bring it, given the evidential considerations to which I have already referred."
The appeal to the EAT
The decision of HH Judge Eady QC
"56. I then turn to the whistle blowing claim. I accept Mr Delehanty's submission that the issues being considered under this head by Employment Judge Glennie raised both the Claimant's alleged disclosures regarding the non-payment of bonus and those regarding the proposed relocation. As the Claimant acknowledges, however, these were being raised as new claims, new causes of action requiring amendment of the ET1. That being so, the ET was bound to consider the timing of the raising of these claims. The time limit in issue ran from the date of the Claimant's dismissal. The amended claims were, on their face, out of time. The Claimant suggests the ET ought to have found it was not really reasonably practicable for him to have brought these claims in time. His case on this being based on documentation provided to him by the Respondent pursuant to a subject access request in August 2014. There is, however, nothing in the documentation I have been taken to (and I have read all the material in question provided in the supplementary bundle), that provided the Claimant with anything new. There was no new information which would have made him realise he might have a whistle blowing claim of which he was not aware before. To the extent that he had a genuine concern that his dismissal (or selection for redundancy) related to his earlier raising of complaints or grievances (whether regarding bonus or relocation) he had all the information he needed to express that concern in his ET1 and, thus, make a protected disclosure claim. He did not.
57. Going further, and considering prejudice more generally, the ET was, I find, entitled to take into account the broader procedural history: the Claimant's clarification before Employment Judge Dr Auerbach that he was not making any other claims; his failure to mention the potential whistle blowing complaints at any earlier stage. The Claimant says that overall there is no real prejudice to the Respondent; it will be open to him to raise these factual matters in his unfair dismissal claim in any event (all the more so if the bonus avoidance case is permitted to be run on the unfair dismissal claim). That, however, is only part of the picture. First, raising matters as background evidential points is a different thing to pursuing a separate head of claim. In any event, I am not persuaded that the same points would be run. That is certainly not obvious regarding the relocation complaint. Even as regards the bonus payment, additional issues arise relating to whether there were any actual disclosures on the Claimant's part. Those questions - which raise both new legal and evidential issues - would need to be explored, which might well add to the time and cost of the proceedings and which would be all the more unfair for the Respondent to have to deal with after such a delay.
58. On these points I consider, therefore, that the ET reached an entirely permissible conclusion in refusing the amendment and I dismiss this part of the appeal."
"It is not the task of the [EAT] to decide what result is "right" on the merits. That decision is for the [ET], the industrial jury. The EAT's function is (and is only) to see that the ET's decisions are lawfully made. If therefore the EAT detects a legal error by the ET, it must send the case back unless (a) it concludes that the error cannot have affected the result, for in that case the error will have been immaterial and the result as lawful as if it had not been made; or (b) without the error the result would have been different, but the EAT is able to conclude what it must have been. In neither case is the EAT to make any factual assessment for itself, nor make any judgment of its own as to the merits of the case; the result must flow from findings made by the ET, supplemented (if at all) only by undisputed or indisputable facts. Otherwise, there must be a remittal."
The grounds of appeal
The costs limiting application
Lord Justice Lewison: