United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR STEFAN BROCHWICZ-LEWINSKI (of Counsel) Instructed by: Field Fisher Waterhouse LLP Solicitors 27th Floor City Tower Piccadilly Plaza Manchester M1 4BD
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


SUMMARY

PRACTICE AND PROCEDURE – Case management

Whistleblowing claim but not properly particularised. Respondent sought further particulars and case management conference. Employment Tribunal refused to order them or to hold case management conference. Respondent appealed.

Employment Appeal Tribunal Held: that the Claimant provide further and better particulars of his claim, namely, (i), what the protected disclosure is that he claims to have made; (ii), to whom, when and how he made the alleged disclosure; and (iii), how that disclosure is alleged to have led to his dismissal.

THE HONOURABLE MR JUSTICE SILBER

1. The Secretary of State for Work and Pensions (Jobcentre Plus), ("the Respondent"), appeals against a decision of Employment Judge Grazin, sitting at the Leeds Employment Tribunal, communicated to the parties by a letter dated 11 December 2009, by which the Tribunal refused to (a) grant an order requesting Richard Constable, ("the Claimant") to provide further and better particulars to his claim, or (b), convene a case management discussion at which the Respondent's application for further and better particulars of the Claimant's claim could be heard.
2. The case was listed for 10.30. The Claimant has not turned up and it is now 11.15. Attempts have been made by the Employment Appeal Tribunal staff to contact him. They have not been successful. In those circumstances, and bearing in mind that the hearing of the application is due to be heard on 21 July 2010, it seems appropriate to deal with the appeal today. We have no reason to believe that the Claimant has been held up or that there is any other reason to explain why he is not here today.
3. The nature of the Claimant's claim is that he was dismissed by reason of having made a protected disclosure. This is the sole basis of his claim as he did not have sufficient continuous employment to bring a conventional claim for unfair dismissal.
4. The nature of the claim is set out in the originating application of the Claimant, which explains that his employment started on 16 June 2008 and ended on 27 March 2009. His job was described as "Fortnightly Job Reviewer". The grounds of his application are: "Claim for unfair dismissal under making protected disclosures of information within the meaning of the Public Interest Disclosure Act 1998 (Whistle blowing)". He explains that he worked at East Gate Jobcentre as a Fortnightly Job Reviewer signing people on. A legal requirement for claiming Jobseekers Allowance was that claimants must provide evidence that they are actively seeking work and that:

"If I believed a Claimant was not complying with the law, I was entitled to ask them to complete Decision Making Assessment forms whereby the Claimants wrote down the steps they took to finding work. These were then sent to a decision maker and the Claimant's benefits can and were suspended.

The manager Susan Green disagreed with my compliance with the law. She actively encouraged me to sign Claimants and sub them to job vacancies, regardless of whether they were actively seeking work or not. I understand that this approach would make her figures look good for East Gate Jobcentre. In some instances I was forced by Susan Green to break the law by signing people who were blatantly not looking for work […] with one customer in particular who had a speech problem, did not look for work and should not be claiming Jobseekers Allowance, Susan Green told me to sign him on saying "some people just slip through the net". This also undermined my responsibility to protect public funds."

5. The Claimant then contends that he attempted to issue the appropriate forms on two non-compliant customers who complained that their benefit entitlement was at risk, but Susan Green took the opportunity to investigate the complaints. He said that she issued a final warning on his record for two years. An appeal was made by the Claimant and the warning was reduced to two years and a simple written warning.
6. It is contended that when the Claimant was offered an equivalent post with Harrogate Council, the Claimant's line manager was told by Susan Green to change his reference to show unsatisfactory performance with the result that the job offer was withdrawn. The Claimant says he complained bitterly at the time and a second reference was written without the unsatisfactory performance on it, but it was too late for Harrogate Council to offer the position.
7. The Claimant then says he submitted a grievance against Susan Green's decision to refuse his transfer request which was submitted "under hardship", "I felt she was not treating me fairly. This was not upheld." The claim goes on to say that between February 2009 and March 2009 over several meetings to discuss the end of his contract, Susan Green said she was not making his position permanent because he was not making submissions to the job and his attitude. He was then dismissed at the end of his contract and his appeal was not upheld.
8. The Respondent contends that the Claimant has not, firstly, sufficiently identified any specific act of disclosure; secondly, given details as to whom, when and how such a disclosure was made; and thirdly, how he alleged such disclosure has led to his dismissal. Various letters were sent to the Employment Tribunal which the most relevant one is one dated 3 December 2009 asking the Tribunal for an order that the Claimant provide further and better particulars to his claim, namely full details of, (i), what the protected disclosure is that he claims to have made; (ii), to whom, when and how he made the alleged disclosure, and (iii) how that disclosure is alleged to have led to his dismissal.
9. The approach of the Employment Tribunal Judge is set out in a letter dated 11 December 2009 in which he said:

"Employment Judge Grazin directs me to inform both parties that he sees no need for any further order or for a Case Management Discussion. He can see no basis for any reconsideration from our letter of 28 October 2009."

10. The letter of 28 October 2009 states:

"Employment Judge Grazin directs me to inform both parties that it is for the Claimant to satisfy the Tribunal that he made qualifying disclosures. If he fails to produce relevant documents in support of that, he may well fall on that aspect of his case.

The Employment Judge sees no reason to make any further orders such as those now requested by the Respondent's solicitor. The Respondent can deal simply with the need to decide which witnesses to call."

11. The case for the Respondent is that the key factual issue in this appeal is whether the Claimant provided sufficient particulars of his case so that the Respondent would know which witnesses would be called and what documents would be necessary. It is said on behalf of the Respondent in the helpful skeleton argument that it would be disproportionate and unfeasible for the Respondent to be required to produce evidence from an array of witnesses, effectively seeking to set out the entire history of the Claimant's employment with the hope that whatever he might say the protected disclosure or related acts took place, these points could be dealt with in evidence. I agree that this would be a time consuming and costly exercise which would be unfair to the Respondent. They need to know what the case is against them and who to call.
12. To my mind, without having these particulars, it would be very difficult for the case to be heard in compliance with the overriding requirements. In reaching that conclusion I have not overlooked the view that the Employment Tribunals should not allow unnecessary formalism to take hold of its proceedings. It is clear as was explained by Phillips J in White v University of Manchester [1976] ICR 419 that:

"We do not wish to say anything to encourage unnecessary legalism to creep into the proceedings of Tribunals, but whilst that should be avoided it should not be avoided at the expense of falling into a different error, namely that of doing injustice by a hearing taking place and the party who has to meet the allegations does not know in advance what these allegations are."

13. The decision of the Employment Tribunal would lead to an injustice to the Respondent. It falls:

"Outside the generous ambit within which a reasonable disagreement is possible, as was explained in Noorani v Merseyside TEC Limited [1999] IRLR 184."

14. Another reason why I consider that the decision of the Employment Judge should be reversed is that he has failed to give any reasons and, therefore, it is difficult to see how his decision can be justified. In reaching that conclusion I have taken account of a skeleton argument which has been prepared by the Appellant, but there is nothing in there which indicates that the decision of the Employment Tribunal was correct.
15. In those circumstances I am proposing to order that the Claimant provide further and better particulars of his claim, namely, (i), what the protected disclosure is that he claims to have made; (ii), to whom, when and how he made the alleged disclosure; and (iii), how that disclosure is alleged to have led to his dismissal.