Case Nos: A2/2009/2536,

A2/2010/0908

Neutral Citation Number: [2010] EWCA Civ 785

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(MR JUSTICE UNDERHILL)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Friday, 11th June 2010

Before:

LADY JUSTICE SMITH

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DANDPAT (**Appellant)

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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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**Approved Judgment
**Crown Copyright©

Lady Justice Smith:

1. This is a renewed application for permission to appeal against two decisions of Underhill J, the President of the Employment Appeal Tribunal ("EAT") on appeal from interlocutory decisions of an Employment Tribunal ("ET") sitting in Southampton, both applications arising from the same underlying claims brought in the ET which have yet to be heard.

1. The background needs to be explained only briefly. On 1 November 2007 Mr Dandpat commenced employment with the University of Bath as a knowledge transfer partner. This was a post funded by government, by which it was intended to facilitate the transfer of technical knowledge from the University to commercial organisations - in his case, to TUV Product Service Limited, and possibly also AEA Technology PLC. The contract was for a fixed term of two years.

1. It appears, putting it neutrally, that matters did not go well between Mr Dandpat and TUV Product Service Limited from an early stage. Mr Dandpat alleges that, at a very early stage, his immediate line manager at TUV, where he was based, assaulted him physically on a number of occasions and racially abused him. He did not wish at that stage to complain about the physical abuse, although he did complain about inappropriate remarks and attitudes which he felt were exhibited by more than one person (including Dr Howard, a senior employee of the University) in respect of his (Mr Dandpat's) wife. Mr Dandpat is of Indian origin, has converted to Christianity and is married to a white English woman. They are clearly a devoted couple and Mrs Dandpat has supported and assisted her husband very effectively during the two hearings before me. I can accept that if any remarks were indeed made about his wife, that would be most distressing to Mr Dandpat. Mr Dandpat alleges that, because of these complaints, which he says amounted to protected disclosures, the University decided to get rid of him.

1. For its part, the University claims that, from an early stage in his employment, they had concerns about Mr Dandpat's conduct and competence, but mainly about his conduct. On 31 January 2008 Mr Dandpat was summoned to a meeting to take place on 8 February. Although the letter did not make plain the purpose of the meeting, it was in fact a disciplinary meeting. Mr Dandpat recorded the proceedings on his laptop computer. The transcript demonstrates that, during a short period when Mr Dandpat left the room, there were discussions between the University staff present which suggested that they had indeed decided to get rid of him. However, on Mr Dandpat's return to the room, the meeting resumed and at the end of it he was given a formal warning as to his conduct.

1. Following that meeting, Mr Dandpat suffered a breakdown in his mental health and did not return to work. Soon afterwards, the University sent Mr Dandpat notice of a further allegation of misconduct. It appears that they regarded the recording of the meeting as a breach of trust and confidence. Mr Dandpat maintains that it had been agreed that that meeting should be recorded. Plainly that is in dispute. In this second letter, the University instructed him that, when his period of sick leave ended, he was suspended and would be required to attend a further disciplinary meeting. It is clear that the University had decided that the employment was to be terminated. That disciplinary meeting never took place because Mr Dandpat remained unwell.

1. In August 2008, Mr Dandpat raised an internal grievance alleging direct and indirect racial discrimination, bullying, harassment, victimisation, a breach of contract and other matters. Those allegations were rejected at an internal grievance hearing in August 2008 and Mr Dandpat's appeal from that was also rejected in November 2008. Meanwhile, before the hearing of that internal appeal, Mr Dandpat had commenced proceedings in the ET alleging discrimination, bullying, harassment, victimisation, breach of contract and other matters. He also alleged unfair dismissal and constructive dismissal; although, as was later held by the tribunal, and which I think he now accepts, he was still employed at that time and in receipt of sick pay. On 26 January 2009 Mr Dandpat sent a letter to the University giving three months' notice of his intention to resign, which would start from 27 February 2009. It is now accepted by both parties that his employment actually ended on 26 May 2009. Mr Dandpat commenced a further claim alleging dismissal and constructive dismissal.

1. Within the proceedings for unfair constructive dismissal, Mr Dandpat sought interim relief under section 128 of the Employment Rights Act 1996. He contended that the University had driven him to resign by its treatment of him, which had been caused by him making protected disclosures. He sought an order that the respondent should restore his contract of employment pending resolution of his claim. On 29 July 2009, the ET rejected that application on the ground that, on the basis of the material before them they did not consider it likely that Mr Dandpat would succeed in showing that his constructive dismissal was due to him having made protected disclosures.

1. Mr Dandpat was dissatisfied with that decision and appealed to the EAT, where on 10 November 2009 it came before the President, Underhill J, under the Rule 3.10 procedure. In a full and careful judgment, Underhill J rejected the grounds advanced and dismissed the appeal.

1. Mr Dandpat sought permission to appeal to this court. Maurice Kay LJ refused permission on consideration of the papers, observing that it appeared to him that the President's judgment was impeccable. The renewed application came before Arden LJ. In a full and careful judgment, she refused permission to appeal. However, before that hearing had taken place, Mr Dandpat had been subjected to a most unfortunate and reprehensible experience, in that he had received death threats from a member of the staff of the Civil Appeals Office. This must have been distressing to him and, for present purposes, I am prepared to accept his claim that it compounded the illness from which he was already suffering.

1. When Arden LJ heard of these threats, she directed that his renewed application should be reheard. This is that rehearing. It began on Wednesday afternoon at 4 o'clock and continued for an hour and a half. At the end of that time, Mr Dandpat had not completed his submissions and was plainly very tired. I agreed that the hearing should be adjourned until this morning. We started again at half past ten, and Mr Dandpat was allowed to address me for a further 50 minutes. He now accepts that he has had a full opportunity to advance his arguments.

1. In this rehearing, Mr Dandpat has repeated some of the arguments which he raised before. In particular, he complains that the ET did not consider the full facts before rejecting his application for interim relief. He was allowed to submit only a limited amount of evidence. He complains that he was not allowed to put his full witness statement before the tribunal. He was told that he must confine his statement to five pages covering all the issues, and he was not allowed to address the tribunal for as long as he thought necessary. And he does not accept that the tribunal actually read and absorbed the written material that he had put before them. As to that, I cannot accept that he is entitled to say that. The tribunal stated in terms that they had carefully read his submissions and it simply is not acceptable for him to suggest that they had not done so.

1. Proceedings for an interim order are supposed to be summary proceedings, designed to be conducted quite quickly at an early stage so as to preserve the applicant's position pending a full hearing. It is not intended that there should be a full hearing of the evidence such as would enable the tribunal to make findings of fact as to which witnesses are truthful, accurate and reliable.

1. I do not propose to say more about the other arguments which were raised on the earlier occasions. These were comprehensively dealt with by the President and by Arden LJ, and I agree with everything that they said.

1. At this rehearing, Mr Dandpat's main contention has been that the decision of the ET was perverse. He argues that, if the ET had considered the full evidence that Mr Dandpat had tried to put before them and had wished to put before them, they would have – indeed they must have - held that he was likely to succeed in showing that he had been unfairly constructively dismissed by reason of his protected disclosure.

1. On Wednesday afternoon and again this morning I have spent a considerable time with Mr Dandpat, allowing him to explain the full nature of his case, which I must tell him does not appear clearly from his written submissions. I have read a number of documents including the transcript of the disciplinary hearing and his resignation letter. I have also read a substantial portion of the respondent's response to his claim, the ET3. Having read those documents, I can well understand why the ET was not prepared to make an interim order.

1. In the present case, there are very stark conflicts of evidence between the two sides as to the facts. The ET could not be expected, on a summary application, to resolve those conflicts of fact. In my judgment, they did all that they could have been expected to do. They took a broad view of the evidence and concluded - quite reasonably in my judgment -- that they could not say that it was likely that the applicant would succeed. That of course does not mean that he will not succeed when the case is heard finally - when all the evidence comes out, when the witnesses are cross-examined and when the documents are read in detail. That remains to be decided. But I can quite well understand why, on a summary consideration of the papers and of the submissions advanced, the tribunal concluded that they could not say it was likely that the applicant would succeed. That decision was far from perverse. In my view, it was a reasonable decision.

1. Mr Dandpat must understand that it is in his interests to move as rapidly as possible to a full hearing of the evidence so that the conflicts of evidence between the two sides can be resolved. In my judgment, he really ought to stop appealing the interlocutory decisions, because such appeals are simply delaying the time when the real issues can be brought before the court.

1. The application for permission on that matter must be refused.

1. The second application I can deal with very briefly. It related to a decision of Underhill J made on 14 April 2010. There is no need to explain the background to this application because Mr Dandpat has accepted that the issue it raised is no longer a live issue. The President had declined to adjourn a pre-hearing review which had been fixed for 19 April 2010. That hearing began, but due to an attack of ill health that morning at the tribunal building, Mr Dandpat was unable to conduct the hearing and it was postponed and re-fixed for 22 June. Thus any appeal against the President's decision is, as I called it colloquially, water under the bridge. Mr Dandpat asked me this morning for an explanation of that term, and I explained that, because the decision to refuse to adjourn the hearing of 19 April was no longer an effective decision in that 19 April had now passed, and the hearing had in any event been postponed to 22 June, it was quite pointless for him to continue to appeal the President's decision of 14 April. I believe that Mr Dandpat now understands the expression "water under the bridge", and he has voluntarily withdrawn that application.

1. Mr Dandpat has addressed me with great courtesy and I am grateful to him for that. I am also grateful to Mrs Dandpat, who has assisted him. Her comprehensive knowledge of the papers has been a boon, both to him and also to me. The applications are refused.

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Order:** Applications refused.