United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOEL DONOVAN (of Counsel) Cloisters 1 Pump Court Temple London EC4Y 7AA
For the Respondent	MR COLIN BOURNE (of Counsel) Instructed By: Messrs Graysons Solicitors 8 Paradise Square Sheffield South Yorks S1 1TB


 


JUDGE J McMULLEN QC:

1. This case is about unfair dismissal in the context of the regime protecting employees from dismissal if they make a disclosure in the public interest in good faith. We call this "the good faith point". It is also about Employment Tribunal procedure in the handling of an application to amend documents, "the procedural point". The judgment represents the views of all three members who pre-read the relevant papers. We will refer to the parties as Applicant and Respondent.

Introduction

2. It is an appeal by the Applicant in those proceedings against a reserved decision of an Employment Tribunal sitting over four days at Sheffield, Chairman Mr G.R. Little, registered with Extended Reasons on 26 March 2002. The Applicant was represented there by different Counsel and today by Mr Joel Donovan. The Respondent was represented there and here by Mr Colin Bourne.
3. The Applicant claimed unfair dismissal and relied on a protected disclosure under the Public Interest Disclosure Act 1998. The Respondent contended that it dismissed the Applicant for gross misconduct and it was fair and nothing to do with the protected disclosure. This exchange is important for the second point in the appeal.

The issues

4. The essential issue, as defined by the Employment Tribunal was as follows:

"5 The issue before the tribunal was whether the applicant had been unfairly dismissed because she had made a Protected Disclosure that being pursuant to the Employment Rights Act 1996, Section 103A. If followed that the tribunal also had before them the issue of whether or not the applicant had made a Protected Disclosure as that concept is defined in Part IVA of the same Act."

5. It also ruled on the procedural point against the Applicant, and decided that it should not amend the proceedings. The Tribunal put its decision in this way:

(a) The tribunal did not have jurisdiction to hear a complaint of unfair dismissal under sections 94 and 98 of the Employment Rights Act 1996 as such a complaint had not been presented within the period prescribed by Section 111 of the same Act and that it would have been reasonably practicable for the complaint to have been presented in time.

(b) That the applicant's complaint that she was unfairly dismissed pursuant to Section 103A of the Act fails and is hereby dismissed."

6. The Applicant appeals against that decision. Directions sending this appeal to a full hearing were given at a preliminary hearing by HH Judge Peter Clark, Miss Holroyd and Mr Peter Smith, who of course sits today. The EAT dismissed one ground and sent those we have cited to us.

The legislation

7. The relevant provisions of the legislation are in the Employment Rights Act 1996. Part X which contains section 94 provides the right to claim unfair dismissal. It also includes section 98(1) and (2):

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it -

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(c) is that the employee was redundant, or

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment."

8. Section 111 requires claims to be made within three months or within a reasonable time thereafter, if it was not reasonably practicable to comply with the primary period.
9. Section 103A deals with claims brought under the amendments brought in by the Public Interest Disclosure Act:

"103A Protected disclosure

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."

As can be seen, this corresponds and refers to the regime set out in Part IVA, the relevant provisions of which are section 43A, which provides that a "protected disclosure" means a qualifying disclosure in accordance with sections 43C to 43H.

10. Section 43B provides as follows:

"43B Disclosures qualifying for protection

"(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,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

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

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the proceeding paragraphs has been, or is likely to be deliberately concealed."

11. There are then provisions dealing with different recipients, so that under section 43C, employers would be the most obvious. That claim made by the Applicant in our case was dismissed and so we take it no further, but turn to section 43G which is disclosure in other cases:

"43G Disclosure in other cases

(1) A qualifying disclosure is made in accordance with this section if –

(a) the worker makes the disclosure in good faith,

(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c) he does not make the disclosure for purposes of personal gain,

(d) any of the conditions in subsection (2) is met, and

(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2) The conditions referred to in subsection (1)(d) are -

(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,

(b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

(c) that the worker has previously make a disclosure of substantially the same information -

(i) to his employer, or

(ii) in accordance with section 43F.

(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to -

(a) to the identify of the person to whom the disclosure is made,

(b) the seriousness of the relevant failure,

(c) whether the relevant failure is continuing or is likely to occur in the future,

(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer."

The Employment Tribunal directed itself to those relevant provisions of the Employment Rights Act.

The facts

12. The Applicant was employed by the Respondent from 1989. The facts are set out in the judgment of the EAT:

"2 At the relevant times the Respondent was a 'not for profit' organisation providing advice and assistance to unemployed and low paid persons in North East Derbyshire. Funding was provided by various bodies, including Chesterfield Borough Council and North East Derbyshire District Council. It was run by a Management Committee consisting of persons elected or co-opted by the funding authorities. The senior manager was the co-ordinator, Mr Colin Hampton. The Appellant was at all relevant times employed as an administration worker.

3 On 22 May 2002 the Appellant wrote a letter to Mr Earlam, the Borough Treasurer of Chesterfield Borough Council, headed 'Private & Confidential under Whistle Blowers Legislation'. In it she detailed three allegations which she made against Mr Hampton, they related, first, to an alleged secret account, second, in relation to foreign trips taken by him and thirdly, that she said she was frequently instructed by Mr Hampton to do work in her working time with the Respondent relating to other organisations, specifically in relation to May Day arrangements. She followed that letter with another letter to Mr Earlam dated 19 June. Further, she prepared a report, similarly headed, of a staff meeting held on 9 June 2000. She showed the first Earlam letter and the report to Councillor Williams in June 2001. Ms Williams, the Tribunal found, had been barred from the Centre following an incident when she and a Mr Skinner, an employee of the Centre who was described by the Tribunal as a family friend of the Appellant, had visited Mr Skinner's former partner in February 2000 and had allegedly harassed her.

4 The Management Committee directed that the allegations made by the Appellant against Mr Hampton be investigated by a Mr Burrows, a Chesterfield Councillor who was not a member of the Management Committee. His report exonerated Mr Hampton and concluded that the Appellant's allegations were:

'clearly unfounded and based on mischief making of serious proportion bordering on serious employment disciplinary proceedings'.

Thereafter, disciplinary proceedings were commenced against the Appellant culminating in her dismissal by a letter dated 30 January 2001 on grounds of alleged gross misconduct and breach of trust. A subsequent internal appeal failed."

13. The Tribunal held that the Applicant met all of the qualifying conditions in order to bring her claim for unfair dismissal, but the case foundered on section 43G (1)(a), that is, that she lacked the necessary element of good faith. The Tribunal found:

"It is the unanimous conclusion of this tribunal that the applicant was not acting in good faith when she wrote her two letters to Mr Earlam and when she made her disclosure to Ms Williams."

It then set out the reasons including the following:

"When assessing good faith we also take account of the applicant's failure to co-operate with either Mr Earlam or the respondents after having written her letters and made her disclosure to Councillor Williams."

It concluded as follows:

"It is not, we find, the response of a person who had in good faith made a disclosure within the meaning given by the Act. Accordingly in those circumstances we conclude that none of the disclosures made can be regarded as made in good faith but were instead motivated by the applicant's personal antagonism towards Mr Hampton fuelled in particular by his perceived treatment of Mrs Skinner's and Councillor Williams' case."

The protected disclosure could not have been the reason for her dismissal and, having noted that it was given no power to hear any other parts of the claim, it dismissed them.

14. As to the procedural point, the claim made by the Applicant was the subject of an application. A note of what happened, agreed by Counsel, provides as follows:

"1 At the outset of the hearing of the case, the Chairman sought to clarify whether the application included an application for unfair dismissal and Counsel for the Appellant stated that it did not 'on its face'. The tribunal began to hear the case as one for automatically unfair dismissal by reason that the Applicant had made a protected disclosure.

2 On the afternoon of the first day of the hearing, at the conclusion of the evidence of Mr Pemberton, Counsel for the Appellant then sought permission to amend the originating application to include a claim for unfair dismissal simpliciter. In support of that application, Counsel for the Applicant said that the major issue was PIDA but that he was now hearing some of the considerations which lead the Respondent to dismiss."

15. With that in mind the Tribunal gave reasons: that the Applicant had made the application outside the time limit set out in section 111, that she was represented by skilled advisers, namely UNISON and then thereafter by solicitors; and this:

"We are driven inevitably to the conclusion that it would have been reasonably practicable for the amendments sought now to have comprised part of the original claim when the union were giving advice. Moreover, if the solicitors subsequently instructed had felt the union had missed something there has been more than adequate time for them to seek an amendment."

Thus, it held that there was no jurisdiction to allow an amendment to make an ordinary unfair dismissal claim, distinguished from what Mr Justice Mummery in Selkent Bus Co Ltd v Moore [1996] ICR 836, described as "an automatic unfair dismissal claim".

The Applicant's case

The good faith point

16. The Applicant submitted that the Employment Tribunal had erred in law in that it had misinterpreted the construction of "in good faith" within section 43G. Neither Counsel has found an authority on the point, or on similar wording, in the anti-discrimination statutes as Judge Clark suggested might be a fruitful source of authority. However, it is submitted that "in good faith" simply means "with an honest intention". There is some overlap, therefore, with the reasonable grounds set out in section 43G(1)(a) and (b). Thus, when good faith is used in isolation the falseness of the material upon which the allegation is made does not destroy it.
17. It is accepted by Mr Donovan that a person could not knowingly promote a falsehood, for that would not be in good faith. The finding by the Employment Tribunal that the Applicant believed in the truth of what she was promoting is in itself sufficient to discharge the requirement that she acted in good faith. The time for reference of this matter is the time disclosure was made. Thus, the Tribunal erred when it made the conclusion that it was possible to look forward and backward from each of the disclosures. It was not relevant to consider the chronology which the Tribunal considered was important by particular events occurring post-disclosure. There was a fundamental misapprehension of what the Act envisaged. The Applicant contended that the statute does not police the Applicant's conduct after discipline, except in certain circumstances which are there regulated by section 43(3). In other words, subsequent conduct could not vitiate contemporaneous good faith. As to the finding by the Tribunal about persona antagonism, Mr Donovan did not contend that there was no basis for that finding, simply that those matters went into considerations on section 43G(3) and not into section 43G(1). The decision of the Tribunal was made in error.

The procedural point

18. It was contended that the concession made by Counsel previously instructed did not include what the Tribunal ought to have made of the claim itself. The Tribunal was not absolved from its duty to consider the Originating Application. At the outset the claim arguably included a straightforward unfair dismissal claim and when the application was made later in the day the Tribunal lost sight of the original formulation.
19. There is only one cause of action in unfair dismissal and that is set up by section 94. No new time limit was applied in Selkent {above} and should not have been applied in this case. As a matter of construction, the Originating Application disclosed an ordinary unfair dismissal claim: see The Housing Corporation v Bryant [1999] ICR 123. It is contended that the words "in this Part" in section 98 regulate the sole claim which is made, that is, of unfair dismissal and is apt to describe its general and all of its specific forms.

The Respondent's case

The good faith point

20. On behalf of the Respondent it is contended that the making of an allegation by someone who has a grudge takes the claim outside the protection of the Act. There is no honest intent (accepting Mr Donovan's formulation). It is a commonsense approach to the Act to describe good faith as including "not in pursuance of antagonism or a grudge". The purposes of Parliament were to protect public interest disclosure and not capricious or grudge-based disclosures. The motive for the disclosure is important and, in this case, as the further reasoning of the Tribunal which we have not cited shows, the Applicant had made certain disclosures knowing them to be untrue. It is possible to use subsequent evidence of bad faith to shed light on the decision which needs to be made, it is accepted, as at the time of the disclosure. Evidence of bad faith before or after a relevant disclosure is to be adduced in order to shed light on it when considering good faith.

The procedural point

21. It is contended that the concession had been made in the morning and that the Tribunal committed no error in failing to allow the matter to be unpacked. The decision of the Tribunal that the Originating Application did not disclose a separate claim could not be faulted. Mr Bourne did not suggest that previous Counsel for the Applicant was incompetent. On the contrary, it showed Counsel was doing the best he could with the material which was available. Witness Statements had been exchanged. Insofar as the Notice of Appearance dealt with an ordinary unfair dismissal claim, that was understandable since the Respondent was required to provide a reason and, indeed, a reason note related to the employee making a protected disclosure. The onus is always on the employer to show the reason and for that reason the universal practice is for the Respondent to give evidence first.

The legal principles

22. The principles to be applied, as we see them, emerge from the following authorities.

(1) In ALM Medical Services v Bladon [2002] EWCA Civ 1085 CA, Mummery LJ said at paragraph 4:

"Disclosure by a worker 'in other cases' may be also protected under s.43G, if certain cumulative requirements are met: it must be made in good faith, he must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true, he must not make the disclosure for the purposes of personal gain."

(2) In Darnton v University of Surrey [2003] IRLR 133, Judge Serota QC and Members had to consider the adequacy of Employment Tribunal findings in relation to good faith. It was indicated that the words of the statute were paramount and that a lack of reasonable belief in the truth underlying the disclosure would be highly relevant in determining whether the disclosure was made in good faith: see paragraph 24.

(3) The editors of Harvey on Industrial Relations and Employment Law suggest at:

L. paragraph 210:

" … in approaching the questions under similar but not identical provisions in the anti-discrimination sphere, a succinct solution is as follows:

'That means you cannot therefore spitefully tell the truth about me or honestly tell untruths about me. I must not in either case victimise you'."

That, of course, is relevant because the sections in the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 all protect persons from victimisation, unless they have made an allegation which is false and not made in good faith: the two go together.

(4) In Secretary of State for Employment v Aslef (No.2) [1972] 2 QB 45, Lord Denning MR said as follows on rather different facts.

"If the employee with the others, takes steps wilfully to disrupt the undertaking, to produce chaos so that it will not run as it should, then each one who is a party to those steps is guilty of a breach of his contract. It is no answer for any one of them to say 'I am only obeying the rule book', or 'I am not bound to do more than a 40-hour week'. That would be all very well if done in good faith without any wilful disruption of services; but what makes it wrong is the object with which it is done. There are many branches of our law when an act which would otherwise be lawful is rendered unlawful by the motive or object with which it is done. So here it is the wilful disruption which is the breach."

23. Those three cases and the reference to Harvey, are relevant to the consideration of the matter under the good faith parts of the appeal. Turning then to procedure, the relevant provisions appear to us to be found in the following authorities.

(1) In Bryant (above) it was held that when considering an Originating Application, it was a matter of the construction of the Originating Application; to see whether it contained the basis of a claim so that it could be adduced. Such was a technical issue, a pure point of law and not the assessment of the reality of the circumstances: see Buxton LJ at p.130.

(2) In Selkent (above), Mummery P in the EAT laid down the guidelines upon which a decision about the adduction of an additional claim might be made: see the principles set out at p. 842. Amongst those are the relevant circumstances which a Tribunal must consider:

"(5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant.

(a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g. in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978.

(c) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision."

It will be noted that in that case the appeal against the Tribunal's original accession to the submission that the Originating Application should be amended was upheld, for the EAT said that the facts pleaded had not previously been pleaded in support of a new positive case of automatic unfair dismissal. A claim had been made for ordinary unfair dismissal and it was unsuccessfully sought to add a claim based on the specific grounds of trade union activity; nor was there any challenge to the assertion that the Applicant in had at all times been aware of his rights; nor was there any injustice since the case could still go on, on the basis of a balance of the hardship and prejudice.

(3) In Smith v Zeneca [2000] ICR 800 (EAT), Charles J and Members dismissed an appeal by an Applicant whose application to add an additional claim had been refused at the Employment Tribunal. The claim had originally been for sexual harassment, but the Applicant sought to introduce, as a further complaint of sex discrimination, the employer's handling of her complaint of harassment. It was held that the correct approach was to decide whether an Originating Application was an effective complaint so as to prevent time from running: see Dodd v British Telecommunications Plc [1988] ICR 116, cited at p. 824 in Smith. The EAT went on to say as follows, in paragraph 58:

"(e) if the originating application does that it then prevents time running in respect of claims of such descriptions based on such act or acts (but not other claims of discrimination or sex discrimination as defined) and this has the result as in Dodd that further information as to, or amplification and explanation of, complaints or claims included in the originating application would be properly classified as particulars; and

(f) if the originating application does not do that the addition of complaints or bases of claim based on other acts complained of constitutes the introduction of new complaints or bases of claim and their introduction should be classified as an amendment and one of the considerations in the decision to allow it would be the time limit set by section 76 of the Sex Discrimination Act: see Selkent Bus Co Ltd v Moore [1996] ICR 836 and paragraphs 41 and 42 above."

Conclusions

24. Attempting to apply those authorities to the circumstances put before us, we have decided that the arguments of the Respondent are correct on good faith; and we accept the argument of the Applicant on the procedural point.

The good faith point

25. As to good faith, we hold that there is a compelling finding of fact contained in the passage we have cited. The Tribunal clearly had in mind the competing situations, that is, a faultless good faith disclosure and a disclosure made purely out of personal antagonism. It decided to reject the former description and accept the latter. There can be few areas in which the judgment of an Employment Tribunal is more fact-sensitive than in conducting such an exercise. As a matter of law, we see no question arising about that particular holding. Thus, it destroys the case (which would have otherwise been perfectly made by the Applicant) for a successful claim under section 103A.
26. We reject the contention that the simple finding that the Applicant believed the material, as far as she was aware, as being a complete answer. There is nothing inconsistent in an Applicant holding such a belief that the material is true and yet promoting it for reasons which are based upon personal antagonism. It seems to us that what Lord Denning had in mind, albeit in a different context, was that the motive for which a person does a particular act can change its character from good to bad, and so here.
27. We do not think that the slight overlap that there may be between section 43G(1)(a) and (b) and section 43(3) destroys the essential focus, recognised as fundamental in this case, on whether the Applicant acted in good faith. Thus, it is important for the Tribunal to assess motive and, as often, this matter is one of fact for it to determine in its own appreciation.
28. As to the material upon which it based it decision, we can find no fault in its looking forwards and backwards. After all, such an approach is readily adopted in the anti-discrimination statutes so that evidence of what happened before and after a relevant timeous event is frequently used to shed light upon that event. It does not detract from the fact that the judgment is to be made as at the time the relevant disclosure was made. But as Mr Bourne puts it, and we accept, if evidence comes to light which threatens the finding of good faith at the time, there is no reason why that should not be borne in mind by the Tribunal. Here is a good example. The Tribunal used the material post the disclosure as part of its overall assessment of the good faith of the Applicant. We see no fault in that, or in its considering matters in the background.
29. Thus, the finding of lack of good faith in this case is one which was open to the Tribunal, having directed itself correctly as we hold. We agree that good faith involves the deployment of an honest intention and, just as in public law, actions of a person can be vitiated if a purpose is advanced not in accordance with the statute, here section 43G.
30. It is not, in our view, the purpose of the Public Interest Disclosure Act to allow grudges to be promoted and disclosures to be made in order to advance personal antagonism. It is, as the title of the statute implies, to be used in order to promote the public interest. The advancement of a grudge is inimical to that purpose. That ground of the appeal is dismissed.

The procedural point

31. We then turn to the procedural aspect. Faced with Counsel then instructed helping it to define the issues and making it clear that an ordinary unfair dismissal claim was not to be advanced but solely a specific one, the Tribunal cannot be faulted.
32. It was only when Counsel realised, having heard the first witness for the Respondent, that there may be grounds for advancing a claim for ordinary unfair dismissal, that the problem arose. At that stage, in our judgment, the Employment Tribunal should have fallen back on the Originating Application itself. Since this is a matter of construction on our approach to the The Housing Corporation v. Bryant, we ourselves have analysed the Originating Application. At the beginning of every Originating Application in box 1 is the following:

"Please give the type of complaint you want the tribunal to decide (for example, unfair dismissal, equal pay). A full list is available from the tribunal office. If you have more than one complaint list them all."

The reference is to a list which can be obtained on the website, and which includes both unfair dismissal under section 94 and other specific claims of unfair dismissal, including unfair dismissal under the provisions injected by the Public Interest Disclosure Act. To this, the Applicant wrote as follows:

"Unfair Dismissal – Right not to be dismissed or victimised following disclosure of wrongdoing by employer under PIDA 1998.

Application for interim relief."

She then expressed details of complaint which, it is correct to note, correspond to the elements which are required to be found under section 43C and G, but she said this:

"I conclude that I have been disciplined and dismissed unfairly, that I was protected under PIDA and the allegations I made were made in good faith at the time and were made to organisations ... because I feared victimisation and eventual dismissal, which has come to pass."

33. On the basis of that, it is contended that a claim is made for unfair dismissal in its ordinary sense.
34. The Tribunal, in our judgment, failed to recognise that there was within the Originating Application the basis of a claim for ordinary unfair dismissal. It may have been seduced by previous Counsel's original concession, as we have cited above, that the Originating Application did not, on its face, disclose such, but once the matter became the subject of a detailed submission, the Tribunal was bound to consider.
35. The Tribunal did not expressly refer to Selkent. It is common ground that Selkent contains the required guidance in deciding this case. The Tribunal focused upon section 111 which is the time point. Time is relevant under Selkent principles: see above. Nevertheless, the Tribunal treated as completely separate the handling of two aspects of Part X: section 98 and section 103A.
36. We accept Mr Donovan's submission that there is what we described as a single channel, that is, one complaint is made under the sole basis which is section 94, a complaint of unfair dismissal. It may take different forms and different facts will be relevant to different specific forms.
37. In Selkent the very reverse of what was occurring in our case took place. An ordinary unfair dismissal claim was sought to be amended to introduce an automatically unfair one and it was refused at the EAT. In our case a specific claim is plainly advanced. If what was thought to be advanced was a completely new ordinary unfair dismissal claim, Selkent would have been directly relevant. In Selkent it is not decided whether or not such a change constitutes a new cause of action. The principal basis upon which Selkent was decided was that new facts, not previously pleaded, would have to be put in evidence and it was unfair to allow that to be done at the stage that had then been reached.
38. It seems to us, however, that had the sole issue been one of time, the Employment Tribunal in our case would have been correct, but it was not, for there were other factors to be considered under the Selkent principles.
39. Thus, we have come to the conclusion that the Employment Tribunal focused incorrectly on section 111 and did not focus upon the other factors in Selkent and did not correctly analyse the Originating Application as containing in itself a claim for ordinary unfair dismissal which simply needed particularisation. It will be borne in mind that the onus then would fall on the employer to produce reasons. As it happens, the Respondent did so, for it met a claim of ordinary unfair dismissal by its answer that the dismissal was nothing to do with public interest disclosure, was to do with gross misconduct and was fair; and it demonstrated the procedure adopted.
40. It follows that we uphold submission made by Mr Donovan that the Tribunal fell into error. We have decided, having heard both Counsel, that this case should be remitted to the same Employment Tribunal for it to determine unfair dismissal.
41. We add this note of caution. The Tribunal indicated in its powerful reasoning on good faith that the Applicant had failed on public interest disclosure. The Notice of Appearance in this case is absolutely unequivocal as indicating that, because of the unfounded complaints made against the leadership of the Respondent, a breach of trust essential to the operation of both the organisation and the contract of employment, had been irrevocably undermined.
42. When this case returns to the Employment Tribunal the findings which it has made in respect of the substantive issues will remain in place. The issue to be tried is whether or not there is an unfair dismissal in its ordinary sense as contained in the pleadings.
43. We will direct that particulars be provided within 14 days of the amendment which would have been put before the Employment Tribunal had previous Counsel's application been accepted.
44. We are most grateful to both Counsel for their very helpful submissions, both in writing and orally to us today. The appeal is allowed in part and remitted to the same Employment Tribunal.