Case No: A2/2009/2536
Neutral Citation Number: [2010] EWCA Civ 305
IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday 1st March 2010

Before:

LADY JUSTICE ARDEN

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Between:

DANDPAT (Appellant)

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THE UNIVERSITY OF BATH & ORS (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©
Lady Justice Arden:

1. This is an application for permission to appeal from the order of the Employment Appeal Tribunal, Underhill J sitting with Mr Norman and Mr Yeboah, made on 10 November 2009.

2. The judgment of the Employment Appeal Tribunal deals with a number of matters but Mr Dandpat, who appears in person this morning, makes it clear that his only application for permission to appeal is against the ruling on appeal of the Employment Appeal Tribunal against a ruling made at a preliminary hearing by HHJ Peters refusing interim relief pursuant to Section 29 of the Employment Rights Act 1996.

3. An appeal lies to this court only on a point of law, and accordingly Mr Dandpat, who has, as I say, appeared in person, must show a real prospect of success in establishing an error of law.

4. There is a considerable amount of history.  Mr Dandpat has filed a large bundle together with a smaller bundle dealing with the background material, a further submission and again today a chronology.  He has also filed a very large bundle of authorities.

5. So far as the background is concerned it is not necessary for me to go into all the details because Mr Dandpat has very helpfully stated what the kernel of the case is at the outset of his submissions sent last Friday:

“2.  THE KERNEL of the present case, Mr Dandpat v The University of Bath and Others is that the Appellant did not have his job to go back to since February 2008 immediately after the Appellant made Protected Disclosures.  There was a serious ‘cover up’ from the respondents until February/March 2009 [Bundle C2 Tab 18 Page 271-278 Paragraphs 3.0 – 4.2].  Since February 2008 the Appellant had been removed unlawfully from his ‘original fixed term contract’, ‘the TUV Product Service Ltd’ part of the contract, ‘the LTP Associate’s contract’/ his ‘job’ without following any statutory procedures and without any investigation suspending him unlawfully [Bundle C2 Tab 6 Page 151 Paragraph 23; Bundle C2 Tab 9 Page 182 Paragraph 4-6].”

Mr Dandpat has also addressed the court for some 50 minutes this morning on this point.

6. The application to the employment tribunal was for interim relief under Section 128 of the Employment Rights Act 1996 which provides:

“(1) An employee who presents a complaint to an industrial tribunal—
(a) that he has been unfairly dismissed by his employer, and
(b) that the reason … for the dismissal is [the one] specified in section … 103A … of … the Trade Union and Labour Relations (Consolidation) Act 1992,
may apply to the tribunal for interim relief.”

Section 103 A provides that:

“An employee who is dismissed shall be regarded for the purposes of this Part [Part X] as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

Section 129 provides:

“(1) This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find that the reason … for his dismissal is one of those specified in section … 103A … of … the Trade Union and Labour Relations (Consolidation) Act 1992.”

Subsection (2) provides:

(2) The tribunal shall announce its findings and explain to both parties (if present)-

(a) what powers the tribunal may exercise on the application, and

(b) in what circumstances it will exercise them.

(3) The tribunal shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint-

(a) to reinstate the employee (that is, to treat him in all respects as if he had not been dismissed), or

(b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.

7. Mr Dandpat sought on the interim application an order that he should have his contract continue but that he should not be required to attend the premises until the matters of which he had been complaining had been put right.

8. The matter was argued before the Employment Appeal Tribunal by Mr James Laddie.  He submitted that the tribunal did not hear evidence and that it had only had submissions.  The tribunal in its decision had pointed out that it had submissions.  It explained that the claimant's submissions were lengthy and that it had considered the submissions carefully.  It therefore did not hear oral evidence nor did it have formal witness statements.  The Employment Appeal Tribunal considered whether it was an error for the tribunal to consider the question of interim relief only on the basis of the material before it and not hear evidence, and it held that there was no arguable point of law.  The tribunal was not bound to hear oral evidence.  They were entitled to take account of a mixture of submissions and contemporary documents and they did not have to have witness statements.

9. Mr Laddie also submitted that the tribunal had failed to take into account a number of considerations.  The Employment Appeal Tribunal rejected that submission.  In its view it was sufficient for the tribunal to indicate the gist of its reasoning and it was sufficient for the purposes of its decision, and the Employment Appeal Tribunal held that there was a proper basis for the tribunal's decision which rendered unnecessary consideration of other allegations that would have been necessary to determine whether there was a dismissal.

10. I will need to go to the tribunal's decision in a moment.  There was one further argument to the Employment Appeal Tribunal which I should mention which dealt with procedural irregularities, which they held did not raise any new point and there was then a point of law.

11. The first point I must deal with is whether the decision discloses an arguable error of law which could found an appeal in relation to the first point.  The tribunal had before it submissions on behalf of both the employer and Mr Dandpat.  Mr Dandpat's submission, so far as relevant, had been that the reason for his resignation which had occurred on 29 February 2009 was conduct of the respondent following a series of disclosures he had made to outside bodies, but in particular the police.  So that point was fairly before the tribunal.  Mr Dandpat says that the disclosures were also to his employer.  The point was disputed by the employer who said that the real reason for the resignation was because the respondent refused to deal with a yet further grievance in view of the then ongoing tribunal proceedings, and that the reasons in the resignation letter were matters which were the subject of old grievances and were unconnected with any alleged protection disclosure.

12. But it can be seen from that issue that a major issue was whether or not there had been a resignation rather than a dismissal.  What the tribunal did was they looked very carefully at the claimant's written submission, they read the resignation letter and were referred to a number of pieces of correspondence immediately prior to that letter.  The tribunal noted that the only reference to anything that could be protected disclosure appeared on page 7 of the resignation letter, and they then read that out.  The tribunal then reminded itself that the test was what was likely, namely whether it was likely that the tribunal would at the end of the day find that the reason for dismissal was that the claimant had made a protective disclosure; and they referred to a case called Taplin v Shippam Ltd [1978] IRLR 450, where the word ‘likely’ had been treated as meaning ‘a pretty good chance of success’.

13. The tribunal concluded it did not appear to them that the unfair dismissal claim based on Section 103 A of the Employment Rights Act 1996 stood a ‘pretty good chance of success’.  The tribunal members were of the opinion that a tribunal panel was unlikely to find that the claimant's reason for resigning was connected with his having made any disclosure or the consequences of having done so, and they dismissed the application for interim relief.

14. It will be apparent from what I have already said that the point argued before the Employment Appeal Tribunal was that the employment tribunal should have heard oral evidence on the question of the reason for the resignation.  What the tribunal did was look at all the evidence and submissions in writing placed before it.  That is not in fact an unusual course in relation to applications for interim relief.  Certainly in the ordinary civil courts it is not usual to hear oral evidence before giving interim relief because it is of its nature given before all the allegations have been fully considered.  The evidence included contemporaneous documents.  The tribunal additionally stated that it had “read carefully the claimant’s written submission”.  There is no basis for holding that they did not in fact do this.

15. Mr Dandpat this morning has sought to extend the argument from that placed before the Employment Appeal Tribunal.  He submits that if the employment tribunal had taken evidence they would have seen that the job that he had had was not there to go back to, because his employers had already been discussing in an email their proposal to terminate his employment with them.  So he submits that there was no job to go back to, and all that had happened was that his resignation confirmed the position.  The contract was not still in being.  There were serious dangers to his health in continuing as an employee.  But the position is that he was continuing to receive remuneration and that a meeting between the employers and Mr Dandpat to discuss the matters in the email did not take place due to the ill health of Mr Dandpat.

16. All those matters were before the employment tribunal and they considered them and they took the view that, in view of the resignation letter, which culminates with a statement that Mr Dandpat wished to resign, it was not likely that he would show that the dismissal was caused by the disclosures.  At the end of the day Mr Dandpat may show otherwise at the full hearing before the employment tribunal, but the question was whether or not the tribunal would grant interim relief and it was not shown, and it had to be shown, that it was likely that it would be shown by Mr Dandpat in due course that the dismissal was due to the protected disclosures.  The tribunal came to that decision as a result of looking at all the material before them and in my judgment, for the reasons which the Employment Appeal Tribunal gave, it was not necessary for them to hear oral evidence on this point.  Indeed counsel for Mr Dandpat had conceded that the tribunal had no obligation to hear oral evidence.  The fact that they did not do so was a matter of case management in which any appellate court would be reluctant to interfere.  What Mr Dandpat would have to show was that the tribunal’s conclusion was one which it was perverse of them to come to, but that argument was not put to the Employment Appeal Tribunal and it is thus not one for which this court would grant permission.  In my judgment, there is no real prospect of success on this issue.  There is no basis for saying that it was unreasonable of them to have regard only to the written evidence.

17. There is now a point of law which I must deal with and that is that Mr Dandpat submits that this court should revisit the meaning of ‘likely’.   The word ‘likely’ appears in a large number of different statutes, and its meaning had to take effect according to its context, for instance in Section 12 of the Human Rights Act 1998 the court must not give interim relief which might affect a person’s freedom of expression unless it is likely that the injunction will be dealt with in due course.  That is in a very different context. As Lord Steyn said in R (Daly) v Secretary of State for the Home Department [2001] 3 All ER 433 and 447: “In law context is everything”.  The Employment Appeal Tribunal did not consider it appropriate to revisit the test in Taplin.  It said Taplin has been recognised for 30 years and that there has been nothing in the experience of the intervening period to suggest it should be reconsidered unless it was satisfied that the decision was plainly wrong, which was far from the case.  They in fact saw good reasons for having a comparatively high test in relation to interim relief, and it is obviously a very different context to that which I have just cited from Section 12 of the Human Rights Act 1998.  The EAT pointed out that if interim relief was granted the respondent is irretrievably prejudiced because he is obliged to keep the contract continuing and pay the claimant until the conclusion of the proceedings, and for those reasons it was a consequence which should not be imposed lightly.

18. Mr Dandpat has argued extensively in writing with a number of authorities that this court should reconsider the matter.  However, I do not consider it is appropriate for me to give permission in the light of my conclusion on the first matter.  The findings of the tribunal do not suggest that interim relief would have been granted on some lower test.  Accordingly I refuse permission.

Order: Application refused