United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I N MORRISON (the Appellant in Person)
For the Respondent	MS H MULHOLLAND (of Counsel) Instructed by: Messrs Lyons Davidson Solicitors Bridge House 48-52 Baldwin Street Bristol BS1 1QB


 


SUMMARY

Public Interest Disclosure

The Employment Tribunal dismissed the Applicant's claim of unfair dismissal for whistle blowing in April 2001. It did not receive evidence or submissions about whistle blowing in November 2000, and the EAT refused permission to raise that issue on appeal, applying Kumchyk v Derby. The finding that he did not act in good faith and acted unreasonably leading to the award of costs of £10,000 was not wrong in principle.

HIS HONOUR JUDGE McMULLEN QC

1. This case is ostensibly about a claim under the public interest disclosure provisions of the Employment Rights Act 1996 but it is in substance about Employment Tribunal procedure and the ability to re-open matters at the EAT not dealt with below. It also includes an appeal against an award of costs. The judgment represents the views of all three members. We will refer to the parties as Applicant and Respondent.

Introduction

2. It is an appeal by the Applicant in those proceedings against the reserved decision of an Employment Tribunal sitting at Sheffield over five days in 2002, Chairman Mr G R Little registered with Extended Reasons on 13 November 2002. The Applicant was represented there for the first three days by a solicitor, who then withdrew. On the last day he represented himself and made written submissions subsequently as he does here. He has been assisted by his wife who has also addressed us. The Respondent was represented there and here by Ms Helen Mulholland of Counsel.
3. The Applicant claimed constructive unfair dismissal and other matters which we will explain in detail. The Respondent denied his claims. The Tribunal decided that the Applicant was not dismissed unfairly or by way of the specific provisions incorporating the Public Interest Disclosure Act 1998. There were other issues in the case. The Applicant appeals against one specific matter which relates to his contention that he raised Public Interest Disclosure matters following an incident on 28 November 2000 which the Tribunal did not in its Decision deal with. He does not challenge the dismissal of his claim for what might be described as ordinary constructive unfair dismissal nor the dismissal of his claims that he had made protected disclosures on or after 8 January 2001. He also contends that the Tribunal was wrong in law to award costs of £10,000 against him.
4. The Applicant has a specific view of himself which is encapsulated in a passage of his written submissions in which he compares himself to Galileo in the proceedings brought against the scientist for heresy. He also wrote this: "This case is mistitled Morrison v Hesley. The Appellant is a representative voice of vulnerable, mute or inarticulate children. The case should be entitled Autistic Children v Hesley." The Applicant also considers his case is reminiscent of the judgment of King Solomon recounted in 1 Kings 3 16-28. He criticises Solomon as making a perverse decision as a judge and categorises himself as the genuine mother of the disputed child. Mr Morrison is a devout God fearing man. We have to take submissions from him, however, based upon the law as applied in England today. Suffice it to say we do not regard Mr Morrison as Galileo or the Employment Tribunal as setting back the course of progress of rationality. Nor as will be clear did it make a perverse decision: Solomon is universally hailed for his wisdom. Nor is this an appeal about the rights of disabled children.

The Appeal

5. Directions in the appeal have been given by the President and by myself both in Chambers and at a Preliminary Hearing of a differently constituted Employment Appeal Tribunal in June 2003, which resumed in January 2004. These Directions are important for they tightly circumscribe the material which would be exigible before our own Tribunal in order that we could focus upon the essential issues.
6. At the first Preliminary Hearing, the EAT thought that it would be of assistance if the Chairman could provide his notes of evidence and comments on the treatment of the material before the Tribunal. He has done that, and we are very grateful to him for the time he has taken to produce that material for us for it has helped our understanding of the issues. At the opening of today's case, case management directions were given in order to keep the case within bounds and finish within the agreed time of one day. Three preliminary applications were made by the Applicant, all of which were dismissed in reasoned rulings annexed to this judgment. They were, in short, to refuse his applications to apply for judgment in default against the Respondent, to produce a further bundle of documents, and to rely upon the UN Convention on the Rights of the Child. In respect of the last, a final decision was not made and we allowed the Applicant to develop it, against the Respondent's submissions that it had not been used before. As it happens, having been given that leeway, he did not take it. We will accept that there is sufficient indication in these proceedings that the Tribunal was concerned about the rights of the child pursuant to the Children Act although the UN Convention had not apparently been put before it.

The Legislation

7. The relevant provisions of the legislation relate to the insertion into Employment Rights Act 1996 Part IVA of provisions from the Public Interest Disclosure Act 1998. The scope of our attention to this Act is circumscribed by the judgment at the first preliminary hearing in June 2003 which should be incorporated into this judgment. We are concerned with that Act's amendment to the Employment Rights Act 1996 alone. The focus is upon a certain period of time. The relevant provisions of the legislation are set out by the Employment Tribunal in its decision. No challenge is made to the description of those provisions. We can add however further matters relating to the power of the Tribunal to award costs which is provided for under rule 14 the 2001 Rules:

14 (1) Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides, may make—

(a) an order containing an award against that party in respect of the costs incurred by another party

…

(3) An order containing an award against a party ('the first party') in respect of the costs incurred by another party ('the second party') shall be—

(a) where the tribunal thinks fit, an order that the first party pay to the second party a specified sum not exceeding £10,000;

… or

(c) in any other case, an order that the first party pay to the second party the whole or a specified part of the costs incurred by the second party as assessed by way of detailed assessment (if not otherwise agreed).

The Employment Tribunal was careful to note the scope of its costs hearing

"5. The tribunal have endeavoured to make clear to the applicant that the hearing of the respondent's application is not an opportunity to re-visit the evidence which was before us at the merits hearing and on the basis of which we made our decision and findings of fact. Nor is it an opportunity to seek a review of that decision. Any such of those matters as are relevant can be dealt with during the course of the currently pending appeal by the applicant to the Employment Appeal Tribunal."

8. Regulation 10 of the 2001 Rules requires the Tribunal to observe the overriding objective.

The Facts

9. A good deal of the material, written and oral, in this case concerns facts which are no longer relevant to our appeal. It is necessary therefore to give only a short account of the relationship between the parties and the events as found by the Employment Tribunal:

"(a) The applicant commenced employment with the respondent on 24 January 2000 as a relief residential care worker. On 16 October 2000 his job changed to that of a special support assistant. In this capacity he was to work in a class room providing assistance to the students and the teacher.

(b) The employment was terminated ostensibly by the applicant's resignation contained in his letter of 20 July 2001 which appears in bundle B at B587 to 589.

(c) The activities of the respondent are that it runs some 10 residential schools providing education and care for children and young people who exhibit challenging behaviour as a result of complex learning difficulties such as Aspergers syndrome and associated conditions. The applicant was employed at the Fullerton House School at Denaby near Doncaster.

(d) The applicant's line manager was a Miss V Garbutt, she being the class teacher whom the applicant was to assist.

(e) In November 2000 Miss Garbutt considered that the applicant had used inappropriate language to a student we have referred to as HG when he called that student wicked or at least described his behaviour as such. Miss Garbutt spoke to the applicant in private about her concerns but no disciplinary action was taken. However, the head teacher did learn of this mater as Miss Garbutt mentioned it to him at her next appraisal meeting.

(f) On 4 December 2000 the applicant, in Miss Garbutt's view, made a further inappropriate comment to the same student this being a reference to the cemetery.

(g) On 14 December 2000 the applicant referred to a female student J G as "Medea G" on several occasions having re-counted to her the "story of Medea", a Greek myth. That too was regarded by Miss Garbutt as inappropriate."

(h) On being notified of the 4th December incident by Miss Garbutt, Mr O'Connor endeavoured to discuss the matter informally by means of a supervision meeting with the applicant. However, the applicant refused to do this unless those persons who he believed had made allegations against him were also present. This position was maintained by the applicant on on 15 December when the applicant was asked to attend a meeting with Mr O'Connor and the Deputy Head Mr Mistry. By this time Mr O'Connor was aware of a further incident involving TW who might have been restrained in circumstances where he should not have been. The Applicant was suspended.

(i) It was in those circumstances that Mr O'Connor arranged a disciplinary hearing for 22 December 2000 before himself and Mr Mistry. On that occasion the applicant was accompanied by a colleague and witnesses were called and questioned. The panel concluded that the applicant had used inappropriate language and referred to JG in an inappropriate manner. He was given verbal warning. That was confirmed in a letter to the applicant dated 28 December 2000 which appears at page A180. The suspension was lifted.

j) On 8 January 2001 the applicant returned to work after the Christmas holiday and on the same day he submitted a grievance against Mr O'Connor. The grievance letter appears at page A201. The applicant's complaint was that he believed that any matters of difference between the parties should have been dealt with informally and that Mr O'Connor had therefore used the incorrect procedure in applying the disciplinary process.

(k) Also on 8 January 2001 the applicant had a return to work meeting with Mrs B S Saddington, senior teacher. Notes of that appear (as do many items) in both the respondent's bundles and the applicant's bundle, and in the latter at C107 there is a copy of Mrs Saddington's note. Reference is made therein to a list of "scenarios" which the applicant gave Miss Garbutt who was also present at that meeting asking for clarification of how to deal with such matters as were set out therein. This was on the basis that some of these scenarios were "imaginary" but others had happened. That list of scenarios goes from page C108 to C113, Mrs Saddington explained that it would be difficult to give definitive answers to myriad situations that could occur but she set out what the policy would be in the case of' respectively child protection issues, minor issues and repetition of what would otherwise be minor issues. Ultimately the document at C108 onwards came into the possession of Mr Lloyd who had been forwarded a copy by Mr Mistry.

10. It will be seen that that account deals with what might be described as the early part of these proceedings. What followed was the sequence of proceedings brought by or against the Applicant. For example, he received a verbal warning in respect of his language. He appealed unsuccessfully. The warning was upheld. Miss Garbutt complained about harassment and he was given a written warning in early April 2001 against which he appealed. Shortly after that hearing the Applicant recorded what is regarded as his first protected disclosure. The Applicant was suspended during parts of this period. He was also sick-absent. He made threats through his solicitor against the Respondent based upon allegations of serious violations of his rights under the Data Protection Act, libel and slander. The Applicant in due course returned to work and claimed shortly thereafter on 20 July 2001 that he had been constructively dismissed.
11. He had the advantage of advice by Mr Colin Bourne of Counsel who is recorded by the Tribunal as being experienced in employment law, a comment which we wholeheartedly endorse as he is a regular advocate here. The Applicant was concerned that he may have a claim of constructive dismissal. Privilege was waived before the Employment Tribunal and us and the account of Mr Bourne's advice is before us. It concludes as follows:

""As regards a constructive dismissal action, it was identified in conference that the only possible ground for an action for constructive dismissal arose from allegations that Mr Morrison's conduct in reprimanding two children constituted emotional abuse and was a child protection issue. If such allegations were made in an unwarranted manner or disclosed to persons who had no legitimate interest in the proceedings they may constitute a breach of implied contractual term under which the parties to any employment contract must maintain mutual trust and confidence … In those circumstances I cannot discern the elements of a repudiatory breach of contract by the employer."

"26 In conclusion I would advise that an action based upon constructive dismissal would not succeed."

12. In reaching that conclusion, he set out what in our judgment are all of the relevant matters which could form the basis of a claim and advised that the Applicant would fail on those. In a claim of constructive dismissal, as the Tribunal correctly directed itself by reference to the principles Western Excavating (above) all of the elements necessary to prove a fundamental breach of contract would have to be in place. Clearly they were not, in Mr Bourne's opinion.
13. At the hearing before the Employment Tribunal the Applicant's solicitor withdrew. It was of course known to that solicitor that Mr Bourne's advice had focussed upon ordinary constructive unfair dismissal and not upon public interest disclosure. The Applicant told us that he instructed his solicitor at the end of the third day to make this point. They parted company. The Applicant was offered the opportunity to go on or not. He chose to do so without his solicitor. Thus at the beginning of the fourth day when, the sixth witness of the Respondent was called, he sought to raise a number of questions. We have seen the notes of the proceedings. It is clear to us that the Tribunal was correct to prevent such questions being asked. The witness was not in a position to give evidence about what is now the central focus of our appeal, the events at the end of 2000. From the notes, his witness statement and his submissions it is clear the Applicant did not raise the question which is foremost in his mind today. That is that a protected public interest disclosure was made by him on 29 November 2000 and again on two occasions prior to meetings on 4 and 11 December. The Tribunal heard evidence that it did not dawn on the Applicant to raise this matter until April 2001 when he was facing the rejection of his appeal. The issue before the Employment Tribunal therefore, until written submissions were made by the Applicant, was to focus upon the period after 8 January 2001.
14. The Tribunal was able pursuant to our directions to cast light upon the apparent lacuna which are preliminary hearing had identified, for it said this:

"Treatment of the material

As to how we treated the other material referred to above, we did not understand that the applicant was making a discrete complaint about his treatment by the respondent allegedly as a result of the letter of 29 November 2000. Rather we understood the applicant's case to be that the operative potential protected disclosures were those which we analyse in pages 19 to 21 of our reasons. In essence our conclusion was that whilst the alleged incident on 28 November 2000 and the letter of 29 November 2000 formed the subject matter of what the applicant sought to disclose in April, May and July of 2001 that was because of how the applicant in retrospect viewed the November incident. Accordingly, we did not understand that we were being invited to find that the letter of 29 November 2000 was itself at the time a protected disclosure. If we had, we would have concluded that it was a protected disclosure pursuant to Employment Rights Act 1996, Section 43C. We would not have questioned the applicant's good faith at that point in time. However, we should stress that we did not understand the applicant's complaint to be that he had suffered a detriment because of his letter of 29 November 2000 or that it was in itself an operative factor in relation to his alleged dismissal.

Whilst it is true to say that Mr O'Connor's evidence in chief did not deal with the letter of 29 November 2000 and subsequent correspondence nor was he cross-examined on that topic."

15. Having found against the Applicant on the claims which he was making, the Tribunal recorded major criticisms of him. First, it found unsatisfactory the closing submissions and questioned the motive for his putting this material before the Tribunal in a way which looked like a description of the evidence but was in fact his own introduction of material. In those written submissions occurred the first express reference to public interest disclosure in November and December 2000. The Tribunal addressed the disciplinary and grievance processes, the appeals and the relationships between himself and Miss Garbutt at least in these proceedings. The Tribunal found as follows:

"(c) We take the view that the applicant has blown out of all proportion the incidents and has at every turn proceeded in such a way as to aggravate his own position. He is in our view entirely the author of his own misfortune albeit a misfortune which is not properly to be laid at the door of this Respondent."

16. That disposed of his claim for ordinary constructive dismissal. It then turned to the Applicant's claim that his dismissal was for a reason connected protected disclosures emanating from Section 103A. The Tribunal asked itself whether the Applicant made disclosures. It began its account on 8 January 2001 and dismissed his case upon that. As to a telephone call on 9 April 2001 from the Applicant to an outside agency that too was rejected on the grounds that the Applicant did not have a reasonable belief in the truth of the matter. A similar approach was taken to the third disclosure on 2 May 2001 which was to the social services director. The Tribunal said as follows:

"We note that a disclosure will be protected if among other things the worker has a reasonable belief that the information disclosed is substantially true and so this means that it may ultimately prove not to be, but the key issue is reasonable belief at the time of disclosure. However, a further requirement of disclosure to a person other than the employer is that the disclosure is made in good faith. Having regard to the proximity of the disclosure on 9 April 2001 (as further described in the subsequent disclosure of 2 may 2001) to the applicant's knowledge on the same day of the written warning for harassment of Miss Garbutt, we must register considerable doubt as to the applicant's good faith."

17. The Tribunal then turned to the fourth alleged disclosure and said as follows:

"In relation to these we must again register our grave doubts as to the good faith element in circumstances where what we can only describe as the campaign being waged by the applicant against his employer over the proceeding 6 months was reaching it's crescendo. As to the "campaign", we note the content of the applicant's letter to his solicitor."

18. The Tribunal went on to indicate that it did not find certain of the Applicant's material credible nor his explanation for it. It found as follows by reference to the Applicant's witness statement.

"We are also concerned at the comment in the applicant's witness statement at paragraph 28 which is in these terms: "I held conference with Counsel on 9 July after which I decided to "blow the whistle" good and proper and confirm my intentions to all concerned." This statement in the applicant's own witness statement only serves to confirm the view of this tribunal that the applicant has regarded the protection which the law affords to "whistle blowers" as a weapon in the campaign he has waged against the respondent. We conclude that the complaint in respect of a protected disclosure can only properly be regarded as something which the applicant has decided to latch onto having been advised by his barrister that his case as presented to that barrister was unlikely to succeed."

19. With those findings in mind, the Tribunal dismissed the complaint and the Respondent sought costs. It was ordered to put in grounds which it did. The Applicant arrived at the costs hearing on 30 April 2003 with what was described as his rebuttal of the claim for costs. There was an application for the Applicant to call his wife for she may have had something to say pursuant, to a witness statement which had not been previously been served, about the disclosure and inspection procedure. The response of the Tribunal was relaxed until lunchtime when Ms Mulholland renewed her objection indicating that if Mrs Morrison were to be called Ms Mulholland would be in difficulty because she would need to take instructions from a person who was not there (the solicitor in Bristol) and there might be an adjournment for the purpose of calling him on the very subject. The Tribunal retired and considered all this material. It applied the overriding objective and decided to disallow Mrs Morrison from giving evidence on the matter having balanced all of the relevant factors.
20. It then considered whether to award costs. It addressed the relevant rules. The Tribunal decided that in respect of the Applicant's ordinary unfair dismissal claim, costs should be awarded for three reasons. First, the Applicant's Counsel had advised that he could not discern the elements of a repudiatory breach of contract. The Applicant regarded the protection which the law affords to whistle blowers as a weapon in a campaign he has waged against the Respondent. He sought to carry out at an Employment Tribunal the function of a public enquiry into the running of the Respondent's establishments. That is an approach which the Tribunal found to be inappropriate.
21. The Tribunal held that in the face of the opinion which he had received and his approach to the proceedings he was engaged in conduct which was both unreasonable and misconceived. It also held that having brought the proceedings his conduct thereafter was unreasonable and misconceived. No saving was made for the fact that there had been no application for a pre hearing review.
22. The Tribunal then turned to the public interests disclosure claim and said this:

"We are bound by our earlier finding that the Applicant was not acting in good faith and he was waging a campaign."

The Tribunal considered the meaning of scandalous, frivolous, vexatious and misconceived and said this citing from E T Marler Limited v Robertson [1974] ICR 72:

"In the judgment of the National Industrial Relations Court (Sir Hugh Griffiths) the following appears: "If an employee brings a hopeless claim not with any expectation of recovering compensation but one of spite to harass his employers or for some other improper motive he acts vexatiously and likewise abuses the procedure. In such cases the tribunal can and doubtless usually will award costs against the employee". We consider that that is an apt description of the applicant's bringing and conducting of that part of his claim which relates to public interest disclosure and indeed in reality to the whole of the complaint."

23. The Employment Tribunal then awarded the Respondent £10,000 costs out of the £22,936.64 spent by the Respondent.

The submissions

24. Very helpfully, the Applicant has made a written consolidation of what he considers to be the relevant issues before us. These were contained in a green coloured summary which succinctly includes the issues which he seeks to raise. However, the essential issue on the merits hearing is that the Tribunal failed to recognise that the Applicant was making a protected disclosure on 29 November 2000 and failed to deal with his case. He also contended that the award of costs against him was a perverse decision given his involvement in the case and what is said by the Chairman in his helpful comments relating to the Tribunal's alternative finding, which if asked to make it, it would have said that the Applicant did make a protected disclosure and it would not have been otherwise than in good faith. No submissions have been made as to the sum and no issue arises as to its amount.
25. On behalf of the Respondent it is contended that the Applicant did not raise before the Employment Tribunal, as he raises now, the issue of the 29 November or for that matter the two events in December 2000, upon which he now relies, as being protected disclosures until his written submissions after the conclusion of the oral hearing and Ms Mulholland's oral and written presentations. No cross examination of him had occurred on that basis on behalf of the Respondent. None of the Respondent's witnesses relevant to this matter had been cross examined and the Chairman on behalf of the Tribunal had been correct to stop the Applicant asking a witness who was not involved in those matters questions about it. As to costs, the Tribunal made a correct decision based upon what is said to be a finding of lack of good faith and the matter was one for the discretion of the Tribunal.

The Legal Principles

26. The legal principles appear to be as follow. A tribunal is to be given credit for decisions of fact which it makes, particularly when they go to issues of credibility. A finding on an issue such as reasonable belief or good faith is peculiarly fact sensitive and the decision of the Employment Tribunal would not likely be over turned based upon that matter. A Tribunal must regulate its own procedure in accordance with the Rules, and is entitled to refuse to hear a submission on an issue not identified until after the Applicant saw the Respondent's closing. As to costs, a decision to award costs is unusual and has to be justified by cogent reasoning. The award however, is one of discretion and will be overturned if it is wrong in principle.

Conclusion

27. We reject the arguments of the Applicant under both of the appeals. It seems to us that there has been demonstrated by reference to the material before the Employment Tribunal that the Applicant did not raise as a protected disclosure the events in November and December 2000. We have been taken in detail to the Chairman's notes, the Applicant's witness statements and his written submissions and find that that submission on behalf of the Respondent is amply made out. The question is whether a new matter, which this would be, may be raised on appeal.
28. It is a principle of long standing in the Appeal Tribunal that a party may not be permitted to introduce new matters here which could have been raised below, absent exceptional circumstances - see for example Glennie v Independent Magazines [1999] IRLR 719, Jones v Governing Body of Burdett Coutts School [1998] IRLR 521, Kumchyk v Derby CC [1978] ICR 116. There is in fact a clutch of five Court of Appeal and four EAT judgments all pointing to the same conclusion. No exceptional circumstances have been advanced. The Applicant was advised by counsel and represented for the first three days by a solicitor. The point was not live.
29. We will not exercise our discretion to allow the Applicant's application to raise this matter before us when it was not opened before the Tribunal and that is our short disposal of this case. We accept the argument of the Respondent that the Applicant did not consider in November of December 2000 that he was making a protected disclosure and raised this matter only at a time when he was himself under scrutiny and facing disciplinary proceedings. He did not raise the matter before the Employment Tribunal. Sadly the Tribunal has concluded that it would have been protected had the Tribunal known about it but this cannot help the Applicant. The high water mark in those cases which we have mentioned in Mensah, where a concession wrongly made by Counsel could not be departed from on appeal because it would be unjust so to do and contrary to the principles of finality of litigation. If this matter were to be remitted to an Employment Tribunal there would have to be careful re-examination of a good deal of the material and not simply the material in November and December 2000, now long ago. It is not fair to the Respondent to put it through this process and it is not consistent with the principle that there must be finality of litigation, with parties putting all their relevant case to the Tribunal at one time.
30. We are satisfied that the real fault here was in the Applicant failing to instruct his lawyers or to take their advice about the matter. The fact of the matter is by the end of the third day when the Applicant was legally represented the point about the November and December disclosures had not been made by the Applicant or by his representative in cross examination. Ample leeway was given to the Applicant for he was enabled to have several adjournments to consider further the evidence of the Respondent in witness statements and there was indeed no further cross examination of him by Counsel. At no time did he raise the point which he raises now and thus we can see no fault in the Tribunal's decision based upon that.
31. It must be borne in mind that although the Applicant's Originating Application mentions public interest disclosure the further and better particulars do not specify the dates now in focus. A manuscript addition to the Originating Application is put in as an afterthought mentioning protected disclosure. This appeal is dismissed.
32. We then turn to the costs issue. What might have at first sight appeared to be less than a firm finding of bad faith at the merits decision is put beyond doubt by the costs decision. The Tribunal regarded the conduct of the Applicant as unreasonable and misconceived. He was acting in bad faith in pursuing a campaign against the Respondent. We have mentioned to the parties a judgment of the Employment Appeal Tribunal in Street v Derbyshire Unemployed Worker Centre EAT/0508/02 which indicates that a claim for Public Interest Disclosure protection will not succeed even if there is reasonable belief in the truth of the matter put forward if it is put forward out of personal antagonism. We bear in mind that this legislation is designed to protect people who no doubt would be regarded as officious, at best and bloody minded at worst. It is in the public interest that people be protected if they make disclosures meeting the specific conditions, and do so in good faith reasonably believing the material before them. It is not Parliament's intention to protect those who simply wage a campaign against their employer. The finding by the Tribunal based upon both the conduct of the proceedings and upon the lack of good faith is an ample basis upon which the Tribunal could exercise its discretion when asked by the Respondent to award costs.
33. Part of its decision is also based upon the advice of Counsel. Counsel did not advise on the public interest matter but in subsequent correspondence the Applicant did not seek to raise that matter with him or to complain that it ought to have been addressed by Counsel. The decision by the Tribunal that the Applicant had pursued the case regardless of Counsel's opinion requires careful examination. It cannot be the case that a person who launches proceedings, or continues proceedings, when advised by Counsel that they may fail is necessarily behaving unreasonably or conducting a misconceived case. However, we have examined Counsel's opinion most carefully. He does not leave any doubt about the prospects of this case. He is firm in his examination of each of the elements required to prove a case of constructive dismissal which it must be remembered is one which requires four elements to be satisfied. In those circumstances his judgment that the claim would fail was one which was strong. Counsel's advice was unequivocal and is to be distinguished from advice that Counsel may have given that was based upon a percentage chance. Clearly if he had advised that there was a 40:60 chance against succeeding, we would view that in different terms (and so no doubt would the Tribunal) from one where as here he advised in such firm terms which has proved to be correct.
34. Thus, we can see no misdirection by the Tribunal in its approach to this material upon which it based its decision on costs. As we have indicated the Respondent did not claim the full amount of its costs and indeed may not have been entitled to all of those after a detailed assessment. No point has been made to us that the figure is too high and so we will dismiss the appeal against the costs order.
35. We would like to thank Mr Morrison for the measured way in which he has made his submissions to us today. It is not easy for him, so firmly believing in the stance which he has taken. Yet he has followed our directions today and put the material before us in a way which we have been able to assimilate. We are also grateful to Ms Mulholland for the flexible way in which she has put again her case on behalf of the Respondent to us.

ANNEX: PRELIMINARY RULINGS

36. An application has been made by Mr Morrison, the Applicant in the proceedings before the Employment Tribunal who launches an appeal today. The application is dated 3 March 2004. Following discussions with the case manager I ordered that this matter be dealt with by a full Tribunal at the outset which is now. The application made by Mr Morrison is for judgment by default against the Respondent, Hesley Lifecare services.
37. Following that letter, written submissions in opposition were filed on behalf of the Respondent. At the opening of today's hearing Mr Morrison has drawn our attention to the contents of his letter and to his plea that the Respondent submit to judgment by default. We pointed out to Mr Morrison that judgment by default is not a remedy available either in the Employment Tribunal or in the Employment Appeal Tribunal. Regulations currently in consultation to replace the 2001 ET Regulations do make such a provision but they are not in force.
38. Our primary decision is that this application is misconceived for that reason. We have however looked carefully at the merits of the application and the points which he raises. We consider that the response provided by Ms Mulholland in her written submissions meet all of the points made by the Applicant. Essentially the Applicant is complaining about the way in which the Respondent organised its defence at the Employment Tribunal and its response to orders made by the EAT. We accept the submissions of Ms Mulholland and dismiss the application.
39. In his second application Mr Morrison seeks to raise an argument relating to the UN Convention of the Rights of the Child and the Children Act 1989. The Respondent resists such an application on the grounds that the point was not raised before the Employment Tribunal. Clearly the Applicant, as he has told us, was aware of both of these provisions at the time of the Employment Tribunal hearing. Nevertheless it forms part of his Notice of Appeal. Generally speaking we would not allow new points to be taken at an Appeal Tribunal hearing - see for example Kumchyk v Derby City Council and Jones v Governing Body of Burdett Coutts School. In order to do justice to what is obviously a deeply held view by the Applicant that these two measures are relevant we will allow him to refer to them and make a decision in due course about whether or not they should form part of our consideration, they not having been raised below and we not having the benefit of the Tribunal's view.
40. In this, his third application this morning Mr Morrison seeks permission to introduce a bundle of approximately sixty-three pages. The application is opposed by Ms Mulholland. She points out that case management in this case has been effected by two orders of a previous three-person Tribunal at the Preliminary Hearing in June 2003 and its resumed hearing in January 2004. This case cries out for careful case management and orders were given to that effect. The Applicant was strictly enjoined, together it must be said with the Respondent, to keep the paperwork to reasonable levels. The Practice Direction 202 requires an application to be made if a bundle of 100 pages is to be exceeded. The Applicant has driven forward his case to the exclusion of documents which he should properly have produced from the Respondent for it is a joint bundle for which the Applicant ultimately has responsibility. The bundle presently before us exceeds a proper document and Mr Morrison's further papers well exceeds the limit.
41. The Registrar, in her accompanying letter to the Order which we made in January said this:

"Only documents that were before the Employment Tribunal and relevant to the grounds of appeal may be submitted to this Tribunal for inclusion in the court bundle.

Your attention is drawn to paragraphs 6 and 13 of the Employment Appeal Tribunal Practice Direction 2002 with regards to the filing of hearing bundles and skeleton arguments."

Those practice directions and the bespoke directions in this case have not been followed.

42. It is not in the interest of justice for this case already now three years after the relevant events to be the subject of further delay and adjournment so that a separate application may be considered for further documentation to be adduced. We accept Ms Mulholland's submission that this case, snowballing at the Preliminary Hearing, should now be confined within reasonable and predictable bounds. Allegations about forgeries of documents are matters for the Employment Tribunal in its task of case management and fair co-operation between the parties on issues of inspection and disclosure of document.
43. There is no ground of appeal now following the Preliminary Hearing that this matter may be raised again. The judgment which we gave in June made it clear and I will now make the correction to the language in paragraph 5 as follows:

"5 We now make clear that this case is concerned with the Public Interest Disclosure Act 1998 aspect of the complaint."

Mr Morrison's application is dismissed.