Aryeetey v Tuntum Housing Association  EWCA Civ 1088
Application to re-open the refusal to grant permission to appeal various orders in a case concerning unfair dismissal and a protected act. Application refused.
The applicant, an accountant employed by the respondent, made allegations about the conduct of the Chief Executive concerning financial mismanagement. He was dismissed soon afterwards, despite an investigation which upheld the applicant’s concerns, but which also exonerated the Chief Executive from dishonesty. His dismissal was found to be automatically unfair, the ET ruling that the reason he had been dismissed was because he had made protected disclosures, in good faith, about the Chief Executive. However, the Tribunal reduced his compensatory award by 25%, holding that the applicant had made additional allegations that the Chief Executive had acted dishonestly, these allegations being unfounded and made in bad faith. During the liability hearing both parties and the Tribunal had access to the report written after the investigation, and the working papers which were named ‘document 22A’. The source documents, ie original dockets and credit card accounts, were not made available to the Tribunal, despite an order being made to supply them. After the hearing, the respondent persuaded the Tribunal that the applicant should not be able to retain a copy of document 22A since it contained sensitive information; instead a copy was lodged with his solicitors on the undertaking they would not be released to the applicant. The applicant then asked for document 22A to be made available to him at the remedies hearing since it would prove that the Chief Executive had been dishonest, thus challenging the respondent’s assertion that the applicant would have been dismissed very soon after his actual dismissal as a result of his so called unfounded allegations. The request was refused. The applicant sought to appeal against various decisions, including the reduction in compensation, the cut-off point in the remedies decision and the refusal to release document 22A. Permission to appeal against all matters was refused. Soon after this last decision, the applicant discovered document 22A in a bundle of papers sent to him by his solicitor, and his case in the present appeal is that he can now prove the Chief Executive was dishonest.
The Court of Appeal dismissed the application to appeal on the ground that the evidence on which the applicant sought to rely was known and deployed at the Employment Tribunal hearing. At this hearing, the applicant had the opportunity to use the evidence in the document not only to prove that his earlier disclosures had been made in good faith but also the later allegations of dishonesty. The Tribunal found the later allegations to be in bad faith which led to the 25% reduction in compensation, a finding not appealed to the EAT. The Judge also considered whether there would be an injustice if the matter was not re-opened and decided there was not: an examination of document 22A certainly demonstrated financial irregularity, which could give rise to a suspicion of dishonesty, but it was open for the ET to accept there was no such dishonesty. Application refused.
Case No: A2/2009/0870/A, A2/2009/0924/A & A2/ 2009/1330/A
Neutral Citation Number:  EWCA Civ 1088
IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Tuesday 21st September 2010
LORD JUSTICE THORPE
LADY JUSTICE SMITH DBE
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TUNTUM HOUSING ASSOCIATION (Respondent)
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The Applicant appeared in person.
Mr Tatton-Brown (instructed by Croner Litigation Dept) appeared on behalf of the Respondent.
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Lady Justice Smith:
- This is an application under CPR Part 52.17 to re-open the refusal of Mummery LJ to grant the applicant permission to appeal various orders made in this ongoing litigation with the respondent, the Tuntum Housing Association.
- The applicant is an accountant and was employed by the Housing Association in 2000 until his dismissal in 2005. The Association purported to dismiss him for gross misconduct, in a nutshell for making unwarranted accusations about the conduct of the Chief Executive. The applicant took proceedings, alleging that he had been unfairly dismissed and that the true reason for his dismissal was that he had made particular disclosures in good faith about the Chief Executive's obstructive attitude and behaviour in respect of the claimant's attempts to ensure that the Association's financial affairs were kept in proper order. In particular, the claimant had raised concerns about the Chief Executive's use of the Association's credit card.
- When the applicant made these allegations, the Association ordered an investigation, which was conducted by an accountant named Mr Allcock. His report vindicated the applicant's concerns, in particular about the Chief Executive's failure to provide receipts for goods and services paid for by the credit card and also about his use of the credit card for the payment of a large sum for the apparent benefit of a charity, which expenditure should have been authorised by the board and had not been. Mr Allcock specifically exonerated the Chief Executive from dishonesty. Notwithstanding the content of Mr Allcock's report, the Association first required the claimant to apologise to the Chief Executive, then suspended him, then disciplined and eventually dismissed him.
- The liability hearing before the tribunal took place over a substantial period in the summer of 2006. The decision was promulgated in December 2006. Not surprisingly, in view of what I have said about the essential facts, the tribunal found that the true reason for its conduct towards the applicant was that he had made disclosures about the Chief Executive and they held that these had been made in good faith on reasonable grounds and were therefore protected. The dismissal was automatically unfair.
- The tribunal considered the applicant's own conduct during the disciplinary process and concluded that he was not without fault. They reduced the compensation from his dismissal by 25 per cent. One of the matters about which they were critical of him was that, during the disciplinary process, the applicant had made further allegations about the Chief Executive, alleging that he had acted dishonestly and for his own financial benefit. The tribunal held that those additional allegations were unfounded, should not have been made and had been made in bad faith.
- The materials upon which these findings were made are now important. From part way through the liability hearing, the tribunal and both parties had Mr Allcock's report. Also from part way through the hearing they had a bundle of about 100 pages which were sometimes described as Mr Allcock's "working papers" and sometimes as "document 22A". After the hearing the Association persuaded the tribunal that the Allcock working papers were so sensitive that the applicant should not be allowed to keep them in his personal possession. His solicitors gave an undertaking that they would not release them to him. The tribunal did not have before it all the original dockets and credit card accounts which Mr Allcock had examined for the purpose of his investigation. I shall call those "the source papers". The ET had ordered disclosure of the source papers, but that order was not complied with and it does not appear that any complaint was made by the applicant's counsel.
- The respondent Association appealed to the EAT against the liability decision. That appeal failed. There was no cross-appeal by the applicant. Thus the issue of 25% contribution must be regarded as closed from that time onwards and, in the absence of fresh evidence or a reconsideration of the old evidence by the tribunal, so must the finding that the Chief Executive had not been dishonest.
- A remedies hearing was convened and a number of preliminary issues discussed at a case management discussion in January 2008. By this time the applicant was acting in person. Prior to this discussion, the applicant sought the release of his solicitors from the undertaking in respect of document 22A. The applicant was pressing for this bundle to be released for him to use at the remedies hearing. That was because the Association was contending that the claimant's compensation for dismissal should be time limited, because, it claimed, it would have been entitled to dismiss him fairly by April 2007. The tribunal refused to order the release of document 22A.
- The evidence called at the remedies hearing showed that between the two hearings the applicant had made a number of complaints to official bodies including the police, making the specific allegation that the Chief Executive had acted dishonestly and for his own financial advantage. Several investigations had taken place, including one by the police, and each had concluded that there was no evidence of dishonesty or personal gain, only financial irregularity.
- At the remedies hearing, the applicant sought to re-open the finding made at the earlier hearing in an attempt to demonstrate that the Chief Executive had been dishonest. He renewed his application to have access to document 22A which he said was necessary for that purpose. The tribunal again refused to order the release of the papers to him. They were in my view entitled to do so. Document 22A had already been considered. They were in my view entitled to say that there was no fresh evidence suggesting dishonesty by the Chief Executive and nothing to disturb their conclusion on that issue.
- In its remedies decision the tribunal repeated that the applicant's allegations of dishonesty were unfounded. They said that he had developed an obsession to destroy the Chief Executive. His conduct in making those allegations would have justified the Association in dismissing him by April 2007. For want of time, the remedies hearing did not proceed to a quantification of the loss but achieved only some findings in principle, from which it was hoped that the parties would come to terms.
- Alas they have not done so. First, the applicant sought a review of the remedies decision but that was refused. He then tried to appeal the cut-off point in the remedies decision. Before the hearing of that appeal at the EAT, he sought permission to adduce fresh evidence at the appeal but Slade J refused that application in January 2009. He applied for a review of that decision, which was refused. He then sought to appeal that decision to this court: reference number 2009/0870.
- Before that application had been processed at this court the substantive appeal was heard in April 2009 and dismissed by the EAT, Silber J presiding. The EAT held that the ET had made no error of law at the remedies hearing. On the evidence it had heard at both hearings the ET had been entirely justified in holding that the Chief Executive had not been guilty of dishonesty, and the Association would have been entitled fairly to dismiss the applicant for making such allegations. The applicant sought a review of that decision, which was refused. The EAT said that none of the grounds raised at that late stage undermined the ET's conclusions.
- The applicant sought permission to appeal both of those decisions to this court. Separate reference numbers were provided. 2009/0924 relates to the substantive appeal and 2009/1330 relates to the refusal to review. The focus of the applications was that the applicant had been unable effectively to challenge as perverse the holding that there was no evidence of the Chief Executive's dishonesty. He now wanted to be able to demonstrate that document 22A would show that the Chief Executive had been dishonest if only he would be allowed to have it in his possession.
- On 1 July 2009, the applicant applied to the Court of Appeal for an order of disclosure of document 22A. The applications for disclosure and permission were refused on paper by Elias LJ and came before Mummery LJ on renewal. Because he found it difficult to establish exactly what the position was, Mummery LJ adjourned the application on notice to the respondent and directed that attempts should be made to produce document 22A to the court.
- At the adjourned hearing, which took place on 17 November the bundle was brought to court by the respondent, although Mummery LJ did not in the event examine it in detail. When he had sorted out the factual position to his satisfaction, he held that an appeal based on the wish to introduce new evidence was doomed to failure because the evidence concerned was not new. The applicant had had the material in his possession during the liability hearing and was aware of its contents, even though he had been required to give up personal possession at the end of that hearing. It was true, as Mummery LJ recognised, that the applicant had tried on more than one occasion to persuade the tribunal to let him have the material back so that he could deploy it at the remedies hearing in an attempt to demonstrate that the Chief Executive had indeed been dishonest; he had been hampered in his attempt. But in any event the ET had not been willing to allow him to go behind their previous finding, which had been confirmed by the various investigations which had been carried out. Mummery LJ refused permission to appeal against all three of the matters that were before him.
- Very shortly after the hearing of 17 November, or even possibly a little before, the applicant received a file of papers from his former solicitors. Within that file he found the bundle of working papers, document 22A. Soon afterwards he applied to this court to reopen Mummery LJ's refusal, in reliance on CPR 52.17. His case is that now that he has the papers he can demonstrate that the Chief Executive was dishonest. He submits that all the investigations that have taken place have been based upon Mr Allcock's original investigation, which was inadequate and incompetently conducted.
- I am afraid that this application does not fall within the kind of circumstances in which the Court of Appeal will be willing to re-open one of its own decisions. First, there must be some evidence which was not known to the applicant during the proceedings. Here the evidence was not only known to him, he actually had it in his possession during the liability hearing and his counsel had the opportunity to deploy it in any way he thought fit to demonstrate that not only had the applicant's early disclosures been made in good faith and on reasonable grounds, but so also had the later and more serious allegations of dishonesty. I do not know whether counsel made any attempt to prove the latter point, but the issue was certainly before the tribunal, as the unreasonableness of those later allegations was the main foundation for the finding of 25% contribution. That finding was not appealed to the EAT and was not pursued to this court. Far from the evidence on which it is now sought to rely being new and hitherto undiscovered, this evidence was known of and deployed. The present application to this court would fail simply for that reason.
- The second requirement for the re-opening of the Court of Appeal decision is that it must appear to the court that if the matter is not re-opened there will be a real injustice. Here I can see none. I say that because we have examined the material in bundle 22A. This morning, the applicant has taken us to the five points which he says best demonstrate the Chief Executive's dishonesty. So far as I can see, none of them does so at all. The report as a whole and the working papers, document 22A, certainly demonstrate financial irregularity, and I quite accept that financial irregularity may and often will give rise to a suspicion of dishonesty, but that is the issue that the ET applied its mind to at the liability hearing and concluded, having accepted Mr Allcock's evidence, that there was no such dishonesty. Examination today of the material on which the applicant seeks to rely takes the matter no further at all.
- In short, this application comes nowhere near to crossing the high threshold which must be reached before this court will re-open one of its own decisions.
- I would refuse this application.
Lord Justice Thorpe:
- I am in complete agreement with my Lady's very comprehensive judgment. These applications are refused.
Order: Applications refused.
Published: 12/10/2010 15:41