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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Olayemi v Athena Medial Centre & Ors (Unlawful Deduction from Wages) [2011] UKEAT 0613_10_2004 (20 April 2011)
URL: http://www.bailii.org/uk/cases/UKEAT/2011/0613_10_2004.html
Cite as: [2011] UKEAT 613_10_2004, [2011] UKEAT 0613_10_2004
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UKEAT/0614/10/ZT
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
Before
(SITTING ALONE)
(2) DR A C OKOREAFFIA & OTHERS RESPONDENTS
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(of Counsel) (Bar Pro Bono Unit) |
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(of Counsel) Instructed by: RadcliffesLeBrasseur Solicitors 5 Great College Street Westminster London SW1P 3SJ
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SUMMARY
UNLAWFUL DEDUCTION FROM WAGES
Case Management. Refusal by the Employment Tribunal Judge to allow a late application to enlarge a claim of sex discrimination and unfair dismissal by adding a claim of automatically unfair dismissal (by reason of making protected disclosures). Appeal dismissed. The Judge correctly directed himself in law and reached a conclusion well within the scope of his discretion.
MR RECORDER LUBA QC
1. This is my Judgment on two closely related appeals brought against decisions of Employment Judge Pritchard sitting at the East London Tribunal Service office. The appeals are brought by Dr Olayemi, who is the Claimant, in the substantive proceedings brought against the Respondents, Athena Medical Centre and Dr Okoreaffia. The two appeals relate to decisions of the Employment Judge refusing an application made by Dr Olayemi to enlarge her claims before the Employment Tribunal in a respect which I shall identify in a moment.
2. The two appeals are against (1) a decision dated 24 February 2010 by which the learned Employment Judge rejected the application to amend and (2) an appeal against a further decision of his on 30 March 2010 declining to vary that earlier decision. Dr Olayemi appeals both decisions of the Judge but her representative today, Mr Andrew Smith of the Bar Pro Bono Unit, has invited me to deal with the appeals together rather than discretely. He made that invitation on the basis that the second decision had simply been, in essence, an affirmation of the first.
3. I need to say, therefore, a little more now about the background. As her title would indicate, Dr Olayemi is a medical practitioner. The First Respondent is a medical centre providing services to patients - I assume members of the public - and the Second Respondent is its senior medical partner. The background to the decisions under challenge in these two appeals can be shortly stated as follows.
4. Dr Olayemi lodged her first complaint to the Employment Tribunal in November 2008. She was, by that complaint, bringing claims of sex discrimination, breach of contract, unlawful deduction of wages and other associated claims for monies (in relation to holiday pay and other unpaid amounts of money). Further, she claimed unfair dismissal. For technical reasons it is not necessary for me to develop, a second complaint was made by Dr Olayemi to the Tribunal service in February 2009. Again, bringing claims of sex discrimination, unlawful deduction of wages, unpaid holiday pay and other unpaid monies.
5. Both claims were consolidated by an order of the Employment Tribunal. The matter was listed for a pre‑hearing review which was to take place on 21 April 2009. Both parties attended on that date, represented by counsel, but due to a shortage of available judges, the pre‑hearing review could not be conducted on that day. However, very sensibly and responsibly, the representatives of the parties sought to agree a list of issues for final determination by the Tribunal in much the same way as would have been done had the pre‑hearing review gone ahead.
6. Therefore, a list of issues was jointly prepared by counsel for both of the parties and agreed by them. The need for a pre-hearing review fell away and the Employment Tribunal were notified accordingly. A case management directions hearing was then conducted by telephone. The Claimant was represented by her counsel and he was the counsel who had participated in the preparation of the list of issues - I say ‘he’, it may have been ‘she’; that is immaterial.
7. The agreed list of issues was further refined by the parties and was submitted to the Tribunal Service by the Claimant’s own solicitors on 23 November 2009 indicating that it had been agreed by both parties. Directions were then given for the future preparation of the case and ultimately the case was listed for hearing over a period of 15 days to commence on 24 May 2010.
8. The first intimation that a new matter might be sought to be introduced by way of amendment came in a letter dated 29 January 2010, sent by the Claimant’s solicitors to the Employment Tribunal indicating that the Claimant, Dr Olayemi, wished to amend her claim to add a complaint that she was subjected to detriments and dismissed as a result of making protected disclosures both to the Respondents and to the local Primary Care Trust. The letter to the Tribunal of 29 January 2010 indicated that the Claimant would provide full particulars of the application to amend within seven days.
9. That timescale was not observed but shortly thereafter, on 11 February 2010, Dr Olayemi’s solicitors wrote to the Tribunal Service, setting out with significant particularity, the proposed amendment. The proposed amendment would have involved inserting after paragraph 9 of the existing ET1 form, which was before the Tribunal, a new paragraph 9A with some 24 sub-paragraphs identifying 24 instances in which the sending of emails or correspondence was said to amount to a protected disclosure. The opening rubric of the proposed new paragraph 9A read:
“9A I also consider that the reason or principal reason for my dismissal was that I made protected disclosures in the emails referred to in paragraph 8 above, and in particular […]”
Then the particulars in paragraphs 9A.1 to 9A.24 are given.
10. It is plain from the rubric there used that what the Claimant was seeking to do was to introduce, in addition to her existing claims, a new claim in reliance on section 103A of the Employment Rights Act 1996. That is to say a claim that her dismissal was automatically unfair because it was by reason of her having made a protected disclosure or more than one such disclosure.
11. The letter sent by her solicitors to the Tribunal on 11 February 2010 then set out the basis upon which the Employment Tribunal Judge was invited to determine the application. The text of the letter, following the proposed amendment, first refers to certain modern authorities on the appropriate test to be applied but also such earlier authorities as the important cases of Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 and Selkent Bus v Moore [1996] ICR 836.
12. The text of the letter then continues as follows:
“The Claimant will say that the balance of injustice and hardship of refusing the amendment outweighs any injustice or hardship of allowing it, since […]”
There are then set out in a series of some six sub-paragraphs those features of the circumstances which the Claimant particularly relied upon as being persuasive as to why her application should succeed.
13. After those six sub-paragraphs the letter continues:
“The Claimant requests that the Tribunal exercise its discretion to allow the amendment, taking into account all the circumstances and in particular the matters set out above.”
The letter then asked that the Employment Judge determine the matter on the papers.
14. In accordance with the usual procedures, the Respondents’ representatives were furnished with a copy of that application and responded to it by a letter of their own, dated 17 February 2010. On the second page of that letter the text of the penultimate paragraph opens as follows:
“The Claimant asserts that the balance of injustice and hardship of refusing the amendment outweighs any injustice or hardship presumably on the Respondents. This is not accepted.”
The body of the letter of 17 February 2010 then sets out why it is said that it would not be right in the particular circumstances of the case for the Employment Judge to allow the amendments.
15. The Employment Judge plainly considered those two letters, as the notice of his determination makes clear on its first page in the second paragraph. The Employment Judge in that document, dated 24 February 2010, first indicates that he has considered the leading authorities on the question of the exercise of the discretion to allow an amendment and lists three of the newer authorities, the cases of Evershed v New Star Asset Management [2010] EWCA Civ 870, Enterprise Liverpool Ltd v Jonas & Ors UKEAT/0112/09 and TGWU v Safeway Stores Ltd UKEAT/0092/07. The Employment Judge gives the appropriate references; there is no need for me to repeat them.
16. The body of the Employment Judge’s decision, notified by the letter of 24 February 2010, is then set out. In short - and I do not intend any criticism by not reproducing the full text of this letter in the body of my Judgment - the Employment Judge highlighted as features: (1) the lateness of the application in terms of the amount of time that had passed since the Claimant was dismissed; (2) the lateness of the application in the context of the stage of the proceedings in which it had been made; (3) the impact on the scope of the evidence that would arise by allowing the amendment; (4) the fact that there were other claims already before the Tribunal which would mean that the cap on compensation (which might otherwise inhibit any remedy to the complainant) was not likely to be relevant; and (5) that the prospects of her succeeding with the amended claim did not appear good. As I say, that is my own rather rough-and-ready summary of well‑expressed and fully expressed reasons.
17. The response of the Claimant, Dr Olayemi, to the rejection of the application to amend by the letter notified on 24 February 2010 was to make her own significant and substantial additional written submissions to the Employment Judge inviting him to re-open the question of whether amendments should be permitted. That was done by her letter of 2 March 2010.
18. The Employment Tribunal Judge plainly considered that letter, took into account its contents and the medical report attached to it but decided in the circumstances that he would not vary the original refusal of permission to amend. I shall come back to the nature of the additional features referred to by the Appellant herself a little later in this Judgment.
19. Those then are the circumstances leading up to the two decisions of the Employment Judge and the outline content of the decisions that he made. Dr Olayemi, through today Mr Andrew Smith, has developed a series of challenges to the reasoning of the learned Employment Judge. I have had the benefit of extensive written submissions in the form of skeleton arguments, Answers and Replies and that material has been bolstered with the submissions of Mr Andrew Smith for Dr Olayemi and Mr Alexander Robson of counsel for the Respondents. It is not mere judicial puff to say that in this particular case I have had very considerable assistance from both counsel in the course of their oral arguments.
20. I shall deal with the points not as elucidated in the written documentation but rather in the order in which they were canvassed before me in the oral submissions of the two representatives.
21. Mr Smith’s first point was that the Employment Judge had wrongly failed to correctly direct himself in law as to the appropriate test to be applied on an application to amend. It is evident from the fact that he did not set out the test, says Mr Smith, that he did not have it in mind. It is said by Mr Smith that the requirement on the Employment Judge was that he should assess the balance of injustice and hardship as between the applicant and respondent to the application of, on the one hand, allowing the application and, on the other hand, of disallowing it.
22. Mr Smith asserts that because the Employment Judge had not, in terms, set out the wording of that test that he has not, in the circumstances of the case, applied it. Mr Smith, unsurprisingly, took me to the authorities to support the proposition that that approach - that is to say the balancing of hardship and injustice - is the correct approach that an Employment Judge should take in a matter of this sort. In particular, I was taken to passages - familiar passages - in the Selkent Bus case.
23. Mr Smith readily acknowledged that the Judge had set out the references on the first page of his first decision letter to the modern authorities but, says Mr Smith, he had not distilled the principles into his Judgment and, therefore, one could not be sure or satisfied that he had had them properly in mind. Thus, it is said, that the Employment Judge erred in law.
24. In reply, Mr Robson drew attention to the following features. Firstly, that the Employment Tribunal Judge had stated in his first decision notification that he had “considered the leading authorities” and then “particularly the newer authorities”, three of which he mentioned by name. Mr Robson submitted that in those circumstances it would be highly unlikely that the Employment Judge had not had in mind the familiar correct approach to determining applications to amend.
25. Moreover, submitted Mr Robson, the Employment Judge had in terms been reminded immediately before making his decision of the correct approach, balancing injustice and hardship. The correct approach had been expressly stated in both the letter of 11 February 2010 for the Claimant and the letter of 17 February 2010 for the Respondents. Further, the Claimant had herself invited the Employment Judge to deal with the matter on the papers and, therefore, one must assume that he dealt with it exclusively on the basis of the two written submissions mentioned in the sense that they, together with the authorities he had referred himself to, set the correct course for determining the application.
26. As Mr Robson put it with compelling good sense, this was not an abstruse area of the law. One must assume, and I do assume, that an Employment Judge will be very familiar with the correct test to be applied on the determination of an application to amend. Indeed, when he promulgates the second of the decisions under scrutiny, the Employment Judge expressly directs himself that
“[…] every case depends on its own facts, and the Judge has made an assessment of the facts of this case according to legal principles contained in Evershed and other cases.”
For my part, I am quite satisfied that the asserted error of law advanced by Mr Smith is not made out, essentially for the reasons given in the submissions of Mr Robson, which I have just sought to summarise.
27. Mr Smith’s second criticism of the Employment Judge was that in the exercise of balancing hardship and injustice in which he was engaged, he had failed to properly identify and assess a real prospective hardship that Dr Olayemi may suffer if the amendment was not allowed. That arises in this way. Dr Olayemi had brought the claims for unfair dismissal and also for discrimination under the Sex Discrimination Act. The effect of a prospective success on the Sex Discrimination Act aspect of her claim would be to open the availability of compensation to her to precisely the same extent as would be opened up by success on the protected disclosure point that she was seeking to introduce. That point is referred to expressly by the Tribunal Judge in the first of his two decisions.
28. However, says Mr Smith, what the Employment Judge has not done is spelt out that he considered the alternative side of the coin. That is to say that the Sex Discrimination Act might fail and, therefore, that the employee may obtain a real gain by the addition of, and prospective success of, a claim based on the protected disclosure limb.
29. True it is that that point is not expressly made by the Tribunal Judge, but I find it inconceivable that he had in mind one side of the coin but put out of his mind the other when it was so evident and apparent. I accept Mr Robson’s submission that it is no requirement of our law that the Employment Judge set out in a written decision each and every factor that was deployed or capable of being deployed before him and his or her assessment of that factor. Certainly it may have been helpful if the Employment Judge had expressed himself directly to the matter advanced by Mr Smith, but in my judgment nothing turns in the circumstances of this case on his failure to do that expressly.
30. The third matter urged upon me by Mr Smith was that the Employment Judge had allowed himself to be over‑influenced by delay as a factor in this case. Mr Smith’s concise submission was that the Employment Judge had placed undue weight on the factor of delay. He was driven to submit, given that the assessing of the weight of various factors is primarily the function of the initial decision taker, that undue weight was given by this Judge to the question of delay such that it was virtually determinative, or at least a very powerful, feature of his decision‑making in this case.
31. I reject that submission. Firstly, it is clear that the Employment Judge did not treat the question of time or delay as being determinative. He said so in terms in the third paragraph, second page, of his first letter. Moreover, it is clear that he has weighed in addition to the factor of time or delay the various other factors to which I have already made reference when summarising the points he took into account in reaching his decision.
32. As I have indicated, the weight to be given to a particular fact or feature is a matter for the person charged with the exercise of the relevant legal or statutory discretion. For my part I am satisfied that the Employment Judge was entirely right to give such weight as he evidently thought appropriate to the question of delay.
33. There were three features in relation to delay that were material features here. Firstly, the claim sought to be introduced by amendment was itself a claim significantly out of time. The Claimant’s date of dismissal was 28 August 2008 so the application was being made some 14 months out of time. Secondly, the application was made very late in the procedural history which I have already recounted and was made at a stage significantly after the list of issues had been agreed and directions given for the trial of the matter. That aspect obviously was treated as significant by the Employment Judge for the evident reason that the whole function of seeking to agree lists of issues is to ensure that the cases that the parties wish to advance are those that the Tribunal are prepared to receive by way of argument on each side.
34. The third material feature in this case was that the cause of the delay was not explained in the initial application for the amendment. That, as Mr Robson urges upon me, is surprising given the significance, on the question of late applications for amendment, that the reason for lateness has. He took me to the familiar relevant passages in Selkent from the Judgment of Mummery J, as he then was.
35. It is suggested by Mr Smith, in rejoinder to that third point, that Dr Olayemi’s own letter of 2 March 2010 did intimate why the application to introduce the protected disclosure matters was being made as late as it was. In essence, and I shall hopefully do no injustice to his submissions by this short summary, his client’s case is that she had suspected that she was being dismissed or would be dismissed by reason of the protected disclosures, but that although she had asked for the disclosure of material to her which would prove that matter, such disclosure had wrongly been refused by the Respondents until as recently as January 2010 and that once she had got the documents that she believed provided the evidential basis for her protected disclosure claim, she had then advanced the application to amend promptly.
36. Sadly, and I intend no criticism of Dr Olayemi, that analysis does not leap from the page of her letter of 2 March 2010. Indeed, it omits any reference to the point in time at which the disclosed particulars were eventually provided. Mr Robson utilises the terms of the letter of 2 March 2010 as illuminating another feature of this case which goes to the question of delay. That is the sentence in which Dr Olayemi writes:
“With the disclosure of these documents it became clear that my belief that the suspension dismissal was a sham and due to public interest disclosures was correct”.
37. As Mr Robson is entitled to submit, that discloses that the Claimant had long held the view that the reason that she was being maltreated, in the sense of suspension and dismissal, was because of her public interest disclosures. If that had been her longstanding belief, it is extraordinary that she had not advanced that as some dimension of her original employment tribunal claims, or at least put her legal representatives on notice of them so that they could make the appropriate application or provision for those matters to be introduced.
38. In sum, having carefully considered the respective submissions of Mr Smith and Mr Robson, I am satisfied that there is nothing of substance in the criticism of the learned Employment Judge in relation to his handling of the question of time/delay.
39. I then come to the point on which, I think, Mr Smith placed the greatest emphasis in advancing Dr Olayemi’s case. His submission was that the learned Employment Judge was quite wrong to say midway through the second page of his first decision:
“The scope of evidence and, more especially argument around the ‘protected’ status of nearly 30 separate emails, will be considerably widened by the amendment.”
40. It is plain from that wording that the Employment Judge took into account, as a factor telling against allowing the amendment, that there would potentially be an enlargement in the scope of evidence and, in particular, of argument. Mr Smith seeks to demonstrate that that is quite wrong. His case is that the materials which were essential to the protected disclosure claim were already materials substantively referred to in the complaints already before the Employment Tribunal. For my assistance he prepared a very helpful table indicating by reference to the 24 sub-paragraphs of the proposed amended paragraph 9A cross‑references to the corresponding places in which one might find reference to those documents, either in the doctor’s original grievance or in her ET1 or in the Respondents’ ET3.
41. He submitted that this demonstrated that save in respect of just one letter or email, or class of letters or emails, all these matters were, in any event, going to be in play in the substantive hearing of the claim and that the amendment would not, contrary to the Employment Judge’s view, open up the scope of the evidence significantly.
42. I remind myself, at Mr Robson’s urging, of what in fact was in issue in the extant claim before the Tribunal. It was claims of unfair dismissal and of sex discrimination by the Respondents against the Claimant. The complaint of the Claimant in relation to the letters and emails, as it stood before the Employment Tribunal on the existing applications, was in essence a failure by the Respondents to address these various letters or emails, or otherwise respond to the concerns of the Claimant that they had raised. That is evident, not least, from the terms of the grievance itself (under subsection 2 of that grievance). I refer there to pages 31 and 33 of the material before me.
43. In contrast, the issue to be raised by the protected disclosure claim is wholly different, submits Mr Robson. He says that for the purposes of determining a protected disclosure claim one is not so much concerned with what is in the mind of the receiver of the documents, but rather what is in the mind of the sender. He took me to section 43B of the Employment Rights Act 1996 and, in particular, the definition of qualifying disclosure in sub-section (1) which provides that 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 […]”
44. It is, therefore, necessary, he submits, for the Tribunal, seized of a claim for automatic unfair dismissal on the basis of protected disclosure, to be satisfied as to the state of mind of the worker in relation to the relevant documents rather than that of the employer. Further, he took me to 43C(1), which again refers to the state of mind of the sender by reference to the term ‘in good faith’. Thus, says Mr Robson, in relation to the 24 documents or sets of documents amounting in total to some 30 emails or letters, the Tribunal would, were the amendment to be allowed, have been required to go through each of them to objectively assess the state of mind of Dr Olayemi in the sending of them.
45. Furthermore, submits Mr Robson, not all of the 30 documents were documents addressed to the Respondents. The disclosure was to other bodies, including the Health & Safety Executive and the local Primary Care Trust, and it seems potentially others. Mr Robson submits that that would raise a question as to whether the disclosures were made to prescribed persons for the purposes of the statute: i.e. another inquiry or additional matter which the Tribunal would have to address were the amendment to have been allowed. Thus, he submitted in answer to Mr Smith’s point, the amendment raised different issues of law or fact from those that were before the Tribunal.
46. He reminded me of the importance of identifying whether the issues sought to be introduced were essentially the same as those already before the Tribunal by reference to the Evershed case itself, and in particular to the Judgment of Underhill J (at paragraphs 9 and following) of the Employment Appeal Tribunal in that case.
47. I am satisfied that the Employment Judge was right to direct himself that, in this case, the scope of the evidence, and more especially the argument around the protected status of the 30 documents, would considerably widen the matters before the Tribunal.
48. One can readily see in addition to the features I have already addressed that there would be the scope for argument as to whether what had occurred was a protected or qualifying disclosure and whether it had been made to the appropriate body to engage the statutory provisions. In short, in my judgment, this was a feature that the Employment Judge was entitled to take into account and his decision does not evidence any misdirection in this respect.
49. Next, Mr Smith urged upon me that the Employment Judge had been wrong to refer to the prospects of success of the amended claim as a feature in the exercise of his discretion. The Employment Judge says on the second page of his letter “the prospects of success on this claim do not appear good”. Mr Smith asserts, with some force, that really an Employment Judge dealing with an amendment of this nature in a case of this broader substance was not in a position, on a paper application to amend, to go into the prospects of success.
50. In my judgment the flaw in Mr Smith’s submission is the circumstance in which the Employment Judge has made his observation. The relevant paragraph continues:
“The Claimant will have to show that a factor which has apparently been completely overlooked by her and her experienced team is now so clear that she can prove that this was not only influential in the Respondent’s decision for dismissal but that it was the ‘principal reason’ for it. The threshold is far higher under section 103A than for a discrimination claim where sex only has to be a significant factor in a dismissal”.
51. In my judgment the Employment Judge is there explaining what he means by the relevance of an assessment of the prospects of success. That is to say, that the amendment must be seen in the context of introducing a matter in respect of which there is already a considerable legal hurdle.
52. The points advanced by Mr Smith do not stop there. Other less significant criticisms of the Employment Judge’s decision are also made. Not least, it is suggested, that the Employment Judge ought really to have taken into account the feature mentioned by Dr Olayemi herself in her subsequent letter of 2 March 2010 that it ought not to be held against her that any earlier omission to make the application to amend was a failing by her legal representatives. Any concern in that regard is addressed by the Employment Judge’s second decision in which he expressly meets the point that errors by representatives do often occur but that is not itself a good reason to refuse the amendment. That is dealt with in terms in the fourth paragraph of his second decision. I should say that that decision also refers to another matter urged upon me by Mr Smith in the latter part of his submissions that I should have some regard, as should have the Employment Judge, to the health of the applicant for the amendment.
53. Insofar as that is relevant to the question of delay, I am satisfied that the Employment Judge had it in mind, and indeed he indicates that nothing in the medical report led him to vary his earlier refusal of the amendment.
54. Mr Smith’s submissions to me have been infused throughout with reference to the Court of Appeal’s recent decision in what I have hitherto referred to as the Evershed case, that is to say Evershed v New Star Asset Management [2010] EWCA Civ 870. In that case, submits Mr Smith, the refusal of an Employment Judge to allow a protected disclosure amendment to be added to an unfair dismissal claim was held to have been wrong by the President of the Employment Appeal Tribunal and his decision was upheld by the Court of Appeal in what, says Mr Smith, are strikingly similar circumstances to those of the present case. Thus, it is that he took me to a number of passages in the Judgment of the Court of Appeal to draw the analogy between the present case and this.
55. It is right to say that much the same had been put forward by Dr Olayemi’s representatives earlier and they were a feature of the way in which the matter was developed in the correspondence before the Employment Judge. He expressly dealt with the Evershed case, then at its Employment Appeal Tribunal stage, in both his first and second decision letter. He distinguished it from the instant case.
56. In my judgment he was right to do so essentially for the reasons that he gave and that Mr Robson emphasised in his submissions. Evershed was a case in which the necessary additional material constituted one email in relation to which there was no dispute as to whether it was sent or received. Here there are some 24 to 30 documents, not all of them sent to the Respondent, and in relation to which there is a dispute about their receipt. Moreover, and most pertinently, Evershed was a case in which the unfair dismissal claim itself raised the question of the state of the mind of the employee, whereas no such consideration or concern arose in the underlying complaint made by Dr Olayemi in this case.
57. I have been referred to an extensive range of authorities by both parties in this case but it is perhaps important for a judge sitting in an appeal such as the present appeal to always bear in mind the succinct expression of opinion by Buxton LJ in the Housing Corporation v Bryant [1999] ICR 123 case who said, at page 127, letters D to F: “The tribunals themselves are the best judges of Case Management Decisions”. I, with great respect, agree with that proposition and adopt it. Certainly case management decisions founded on errors of law can, and should, be upset in this Appellate Tribunal. As I have indicated, however, I have been unable to discern any error of law as being established on this appeal by Dr Olayemi.
58. For good measure Mr Robson indicates that were I to have found the contrary he would have invited me to exercise afresh the discretion in this case. He urged upon me that on any reconsideration of this matter, even omitting any reference to what has subsequently happened in terms of the determination of the substantive claim, the outcome would have been the same. That is to say that the application would have been refused.
59. Mr Smith did not join issue with that part of the reply by Mr Robson and it would not be fair in those circumstances for me to make a conclusive ruling on the point. It will, however, suffice if I provisionally indicate that I am, at least as at present advised, of the view that were it to have fallen to me to exercise the discretion again today, it would have been exercised to the same affect as it was exercised by the Employment Judge. That is to say that the application to amend would have been refused.
60. For all those reasons, and in those circumstances, these two linked appeals will be and are hereby dismissed.
61. Upon my having given Judgment for the Respondents to this appeal and dismissed the two appeals, the Respondents, through Mr Robson made an application for costs pursuant to rule 34A(1) of the Employment Appeal Tribunal Rules. He did so on the ground that it can be said that proceeding with the appeal by the Appellant was “misconceived”. His submission was that in substance there was no proper basis upon which it could be asserted that the Tribunal Judge, in exercise of his case management discretion in this case, had erred in law.
62. As I have indicated in my Judgment, the submissions for Dr Olayemi were shot through with references to the precedent case of Evershed. Mr Robson submits that, no later than the Tribunal Judge’s decision, it ought to have been evident to the present Appellant that there was no crutch to be offered by the Evershed case in advancing her challenge to this Employment Judge’s decision. In those circumstances, he submits that continued pursuit of this appeal was misconceived.
63. In my judgment this application for costs has no prospect of success and no proper legal basis. The Employment Appeal Tribunal’s Rules of Procedure incorporate important provisions to ensure scrutiny as to the propriety of issues of law advanced in appellants’ notices, through the medium of rule 3. That scrutiny was applied in this case and I remind myself that, as long ago as 26 April 2010, HHJ Peter Clark of this Tribunal took the view that there was no substance in the particular appeals. Dr Olayemi exercised her statutory right to renew her appeals at an oral hearing before a Judge of this court and that Judge, HHJ McMullen QC, considered it appropriate to allow this case to go through for a full hearing.
64. In those circumstances, notwithstanding the succinct and to‑the‑point submissions made by Mr Robson, I do not believe it is possible to say that this appeal has been pursued on a basis which was misconceived. I, therefore, refuse the application for costs.