Case No: A2/2009/2162

Neutral Citation Number: [2009] EWCA Civ 1425
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HHJ MCMULLEN QC )
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 2nd December 2009

Before:

LORD JUSTICE MUMMERY

Between:

MR OLUFOLAHAN AKINTOLA (Appellant)

- and -

CAPITA SYMONDS LIMITED (Respondent)

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(DAR Transcript of
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The Appellant appeared in person.

The Respondent did not appear and was not represented

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Judgment
(As Approved by the Court)
Crown Copyright©

Lord Justice Mummery:

1. This is a renewed application for permission to appeal.  The application is made by Mr Akintola in person and the decision which he wishes to appeal is that of the Employment Appeal Tribunal chaired by HHJ McMullen QC sitting with two lay members, the hearing having taken place on 24 August 2009 and the decision having been issued as a transcript on 14 September 2009.

1. The application for permission to appeal to this court was first made on paper and was considered by Smith LJ.  She granted an extension of time but refused to grant permission to appeal.  As I have explained to Mr Akintola, an appeal can only be brought to this court on a question of law; it is not possible to appeal against the facts which have been found by the Employment Tribunal.

1. Mr Akintola has put forward, both in writing and orally at the hearing this morning, a number of grounds for permission.  In order to understand whether the grounds amount to a question of law for which court should grant permission it is necessary to say a little about the background to the proceedings.

1. Mr Akintola is an engineer.  He was employed by Capita Symonds Limited as a senior structural engineer from 13 August 2007 until he resigned on 6 February 2008.  His resignation was in the circumstances of work in which Capita were engaged for the London Underground.  There were three incidents relevant to his claim, first, for constructive dismissal, then, during the course of the Employment Tribunal hearing, for protected disclosure.  I mention the three incidents by name without going into the details of them.  The first was on 18 January 2008 where there was an incident at Marble Arch where Mr Akintola refused to go down a manhole, he said for safety and health reasons.  That I will call the Marble Arch incident.  Then, secondly, in 28 January 2008 there was a meeting at which he said that Capita proposed a paycut and demotion for him, which is relied on as detriment in relation to the protected disclosure; and thirdly, is what is called the Neasden depot incident.

1. In April 2008 Mr Akintola started proceedings against Capita for unfair constructive dismissal.  When the hearing took place in the Employment Tribunal he was allowed to amend his claim by adding a claim for protected disclosure.  When the Employment Tribunal came to make their decision on 23 December 2008 he lost on his claims both for unfair constructive dismissal and protected disclosure.  He then attempted to appeal to the Employment Appeal Tribunal.  It first came before Burton J sitting alone under rule 3(10) on 10 June 2009.  He did not allow the appeal on the unfair constructive dismissal point to proceed further, but the protected disclosure point was allowed to proceed to the tribunal chaired by HHJ McMullen QC.

1. One of the points on the appeal relating to protected disclosure was that the Employment Tribunal had erred in law in not dealing with his Marble Arch incident; they had only dealt with the incident. The Employment Appeal Tribunal held that the Employment Tribunal had in fact dealt with it and so there was no error.  That point is pursued by Mr Akintola along with complaints of procedural irregularity and reasonable apprehension of bias.  The position before Smith LJ on the papers was this.  She said she refused permission to appeal, but in giving her reasons said:

"I accept your submission that it is at least arguable that the EAT was wrong to say that the issue of protected disclosure did not arise in connection with the Marble Arch incident.  If you were to be allowed to relabel your claims as the Employment Tribunal apparently intended, it is certainly arguable that you have covered the Marble Arch incident as well as the Neasden depot incident.  It is clear that the Employment Tribunal did not deal with protected disclosure in respect of Marble Arch."

1. She went on to say, however, that, even if the Employment Tribunal had dealt with that issue and had resolved it in his favour:

"You will still have to prove that you had suffered detriment arising from your making that protected disclosure.  You have two difficulties in that regard which, it seems to me, you would have no prospect of surmounting.  The first is that you cannot identify any detriment, the ET held as a finding of fact that the suggestion that you should be demoted was not pursued and the alternative conditions of employment were not altered.  I know that you do not accept that conclusion and it is now too late for you attempt to overturn that finding of fact as perverse.   A proposal to change terms and conditions is not pursued and could not possibly amount to detriment.  Your complaint that your timesheets were altered was rejected and is now unappealable. The Employment Tribunal found against your complaint about the Neasden matter and it is too late for you to complain about that so you cannot show a detriment.  Secondly, even if you have suffered in the short period between the Marble Arch day and your eventual departure, you could not show that the detriment was causively related to the Marble Arch events.  The Employment Tribunal accepted that your employers had not criticised you for refusing to go through the manhole and descend the ladder.  They regarded the issue as closed.  Accordingly, it would be pointless to grant permission as, even if you succeeded in showing that the events in Marble Arch amounted to a protected disclosure, you could not show that your making that disclosure resulted in any detriment."

1. Mr Akintola has handed in this morning some further written submissions in relation to his appeal.  First of all he repeats his submissions on the substantive grounds of appeal -- that the Employment Tribunal erred in law in not recognising that an improper entry into any enclosure designated a confined space without statutory and method statement safe entry requirements was an imminent danger violation.  He says, with respect to the Confined Spaces Regulations 1997, any enclosure is designated a confined space for the reason of the presence of a specified risk that could reasonably be expected to cause serious injury or death.  He says that there was an error in not recognising an improper entry into a confined space being an imminent danger violation. He submits that the Employment Tribunal erred in law in not finding that the reasons that he gave for refusing to enter the confined space at Marble Arch without the method statement safe entry requirement was a protected disclosure.  That qualified for protection in relation to Section 43B of the Employment Rights Act 1996.

1. He also says that it was not possible in law for the Employment Tribunal to have made a correct finding of fact as to whether the sudden attempt to demote him, contrary to a previous letter of commendation, amounted to detriment on the ground of the protected disclosure, if the Employment Tribunal had erred in law in not finding that there was a protected disclosure in relation to the Marble Arch incident.  He says it is not possible in law to make correct findings of fact as to whether an act or omission amounts to a detriment on the ground of protected disclosure, if there has been an error of law in not finding that there was a protected disclosure.

1. It seems to me that on this point it is reasonably arguable that the Employment Tribunal made an error of law.  If, as Mr Akintola contends, he was allowed to argue the case of protected disclosure in the Employment Tribunal in addition to his unfair constructive dismissal claim, then the likelihood is that it was to cover his complaints both of the Marble Arch incident and the Neasden depot incident.  Contrary to what the Employment Appeal Tribunal said in this case, it appears there may have been an error on the part of the Employment Tribunal in not making findings in relation to the Marble Arch incident.  If they had made findings in relation to the Marble Arch incident it is possible that there would have been a protected disclosure and it is possible, depending on what those findings were, that what happened subsequently may have amounted to detriment for the purposes of the protected disclosure provision.

1. For that reason alone I have said to Mr Akintola that I think there is an arguable question of law for which permission should be granted and that his appeal can proceed if he wants to pursue it to the full court.

1. As to the additional matters, he now sets out some lengthy submissions in relation to to a complaint that there has been procedural irregularity and non-compliance with Article 6 of his Convention rights in relation to the procedure as followed in his case in the Employment Appeal Tribunal.  I will not go through all the details of those submissions.  As this matter is going forward for an appeal on the substantive ground, what I propose to do in relation to that ground is to adjourn that to the hearing of the appeal.  All I can say at present is that I am not satisfied that the submissions which are made reveal a real prospect of success on a question of law relating to the procedure.  There are allegations in relation to the ELAS Advisory Scheme, which is used at the Employment Appeal Tribunal, and to a reasonable apprehension of bias arising from that scheme.  I am not satisfied that there is a real prospect of appeal on that point, but, as the matter is being allowed to go to an appeal on the substantive point, I will adjourn that submission to be dealt with by the full court that hears the appeal on the substantive ground.

1. There is one other matter I should mention relating to the appeal and an application that has been made by Mr Akintola.  The first is this: he made an application for an expedited hearing.  He tells me he has been out of work since his resignation from Capita last year and there are circumstances which are pressuring him.  He wishes to get an early resolution of this appeal; I think particularly, as I told him, that, even if his appeal is successful (which it may not be), it does not follow that that is the end of the case.  If he succeeds in this court on the point that he has raised, then it is almost certain that the consequence would be a rehearing of his case, in whole or in part, in another Employment Tribunal, so the matter will go on for some time after a successful appeal.  I have told Mr Akintola that it is not possible for me to expedite his case over other cases which are waiting for hearing in this court.  I quite appreciate the pressures that he is under with this case, but lots of other litigants have cases and they also have pressures and they want to get them over.  They cannot all be expedited; I see no special grounds for expediting Mr Akintola's case.  I would estimate that the hearing would take a day or even less, so it may be possible to fit it in at an earlier date than a case which would take longer.  I do not grant expedition.

1. The second point is not a result of the application.  I have emphasised to Mr Akintola that it is not a question of me giving him advice or trying to deter him from pursuing an appeal if he wants to.  What I have given him is a piece of information which I have found through experience in this court is not always a matter that litigants know about.  What I have informed him about is the position on costs if this appeal is unsuccessful.  I have explained to him that granting permission to appeal is not a guarantee that the appeal will succeed; he may lose it.  If I granted permission it is simply an indication that there is something in the case that is reasonably deserving of a full hearing.  If he loses it, a different consequence as to costs may follow than followed from his having lost this case in the Employment Tribunal and in the Employment Appeal Tribunal, where no orders for costs were made.  In the absence of unreasonable behaviour, that is the normal order in the tribunals: no order as to costs.  There was no question of unreasonable behaviour on the part of Mr Akintola; he was simply seeking in good faith to vindicate his rights.  In this court, I explained to him, there is a different regime as to costs.  The normal rule in a Court of Appeal case is that the person who loses pays the other side's costs, so the winner of the appeal gets his costs.  In the terms of this case it means that, if Mr Akintola loses this appeal, then the legal representatives of Capita, solicitors and barristers, would almost certainly make an application for their costs to be paid, and that order would normally be granted by this court -- not always, but would normally be granted -- and that could have serious consequences on Mr Akintola.  To be blunt about it, he would be worse off bringing an appeal and losing it than he is now.  At one point Mr Akintola thought I was giving him advice; I am not giving him advice.  I cannot give him advice as a judge; I am simply providing him with information.  I have made it clear to him that, if he wishes to seek advice for a case that he is at the moment conducting himself, there are organisations, such as the Citizens Advice Bureau (which have an office in this building), the Bar Representation Unit, the Free Representation Unit, which can take on cases at no cost; it is for them to decide whether they take on a case and they are the people to go to for advice.  I am not giving Mr Akintola advice; I am not encouraging him in this appeal and I am not discouraging him, I am simply giving him information that may be relevant to his decision as to whether he wishes to go on with the appeal for which I have granted permission.

1. So to sum up, the position is that I am granting permission to appeal on the substantive ground that there is a question of law arising from the argument that the Employment Tribunal did not deal with the Marble Arch incident on the protected disclosure claim, and there is a possible consequence that they therefore made an error of law in their finding of no detriment in relation to protected disclosure in connection with the later Neasden depot claim.  It may not be possible for the two to be separately considered.  If they did not consider the first, that may have led to an error in relation to the second incident and to the question of detriment.

1. As to the additional grounds in which it is alleged that there were procedural irregularities and a reasonable apprehension of bias, I am not satisfied that there is a real question of law arising from those arguments; but, as the permission is granted for the other ground, I will stand over that ground to be dealt with by the full court.  I have to say that, at present, I doubt whether there is a real prospect of those grounds succeeding; but I am not making a decision on that point.  It is for the decision of the full court.

1. Permission is granted.  The hearing I would estimate would take a day, possibly less, not more.

Order:  Application granted in part