Case No: A2/2009/1841

Neutral Citation Number: [2009] EWCA Civ 1444
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 4th December 2009

Before:

LORD JUSTICE PILL
and
LADY JUSTICE SMITH

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Between:

**EVERSHED (Appellant)

• and -**

NEW STAR ASSET MANAGEMENT (Respondent)

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(DAR Transcript of
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Mr Andrew Hochhauser QC and Mr Nicholas Randall (instructed by Olswang LLP) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED.

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Judgment (As Approved by the Court)
Crown Copyright©

Lord Justice Pill:

1. This is an application for permission to appeal against a decision of the Employment Appeal Tribunal made by Underhill J, President on 31 July 2009.  He reversed a decision of an Employment Tribunal, judgment being given on 23 February 2009, with full reasons, which were requested on 27 March 2009.  The application was considered on the papers by Wall LJ.  He considered that it merited an oral hearing before a two-judge court.  It has not been made on notice to the respondent.

1. Mr Evershed is an experienced fund manager.  He joined the applicants, New Start Asset Management, in early 2002.  On 18 September 2008 he was told to go home from his work.  He resigned five days later and claimed constructive dismissal.  The reasons for his claim were set out in a statement dated 27 October 2008.  The applicant responded with a detailed document dated 25 November.  There was a case management discussion on 6 January 2009 at which Mr Evershed put forward a claim under section 103A of the 1996 Act.  That is a whistle-blowing claim.  He applied for leave to amend to add that claim on 20 January 2009.  Mr Evershed had been legally advised throughout.  Thus he sought to make a different claim and to do so out of time.

1. In his decision of 23 February Employment Judge Warren, adopting reasons given by Mr Randall, counsel on behalf of the applicant, refused the application, and it was because Underhill J reversed that decision that the present application is brought.  As with all decisions of this kind, Employment Judge Warren had a broad discretion.  He was entitled to bear in mind in making his decision that this was a new claim and one made out of time.  It was categorised as a new claim and not merely a re-labelling.  The employment judge took factors into account which he considered material.  The weight to be attached to each of them was for him to decide.  Mr Hochhauser, Queen’s Counsel for the applicant, has referred to the decision of this court in The Housing Corporation v Bryant [1999] ICR 123 and two comments of Buxton LJ as to the jurisdiction of the Employment Tribunal and of this court in circumstances such as the present.

1. Paragraph 127D:

“The same limited approach applies to appeals, such as in our case, against procedural or interlocutory orders of the IT, where an appellate court whose jurisdiction is limited to matters of law can only interfere where there has been a breach of well-established legal principles such as failing to take account of relevant factors: see per Mummery J in Kwik Save Stores v Swain [1997] ICR 49 at p54F. As this court put it in X v Z Ltd [1998] ICR 43 at p54C, this approach reflects the fact that the tribunals themselves are the best judges of case management decisions.”

1. Some of the factors which the employment judge took into account are accepted by Underhill J as having been relevant to the decision to be made.  In respect of one of them -- that is, the absence of a grievance in relation to the proposed new claim -- Underhill J considered that it deserved only minimum weight (paragraph 31).  The central error of law found by Underhill J at paragraph 37 is in relation to point B, which is linked with D, of the points he categorised.  No complaint is made about the categorisation point made.  The issue was whether there was a sufficient change in the scope of the enquiries to be made and the matters to be considered at the hearing by reason of the addition of a whistle-blowing claim.  That is to put it very broadly.  There is no doubt that, before both the employment judge and Underhill J, detailed consideration was given to the points raised on both sides.  Underhill J found that the employment judge had misdirected himself on ground B; further that he had given insufficient reasons for the conclusion which he had reached.  He had accepted the submissions of Mr Randall on behalf of the applicant.  I do not propose to set out the present arguments of Mr Hochhauser QC in full.  I do not find there is a need to do so.  He has referred in particular to paragraphs 36 and 37 of his skeleton argument.  He has referred to the decision of this court in ALM Medical Services Ltd v Blaydon [2002] ICR 1444 and to paragraphs 17 to 22 of the judgment of Mummery LJ, with which Sir Andrew Morritt (Vice Chancellor) and Rix LJ agreed.

1. At paragraph 21, Mummery LJ stated that the disputed question whether Mr Blaydon’s disclosures were protected disclosures raised a clutch of factual issues on which cross-examination of Mr Blaydon and evidence from ALM was relevant.  While that related to the facts of the case, Mr Hochhauser submits that it is a proposition of general application and there is some general importance in the question whether a whistle-blowing claim can properly be added out of time, or rather whether an employment judge is entitled to refuse the application to add such a claim out of time without being at risk of being overruled as a matter of law by the EAT or by this court.  Reference has been made to the actual application to amend.  I do not need to read it in full.  It is at page 109 of the bundle.  Reliance is placed on section 43B(1)(b) of the 1996 Act and 43B(1)(d).  Mr Evershed sought to achieve the same end result: that is a breach of the duty of trust and confidence by the applicants.  It is sought to do so, submits Mr Hochhauser, in a much broader manner than would be appropriate by way of a claim for unfair dismissal.  Reference is sought to be made to the conduct of the applicant’s employees towards other fund managers as well as Mr Evershed, thus damaging the fund’s performance and the reputation of those managers.

1. In my judgment it is plainly arguable that the scope of the enquiry is very much greater on the whistle-blowing claim than it would be on a claim for unfair dismissal simpliciter.  Indeed, it seems to me that, while both claims seek to achieve the same end result, the concept is a different one.  As between unfair dismissal and whistle-blowing the approach of Mummery LJ appears to me to have a quite general application, though it is fact-sensitive.  Accordingly, I would grant permission to appeal.

1. Reference has been made to a letter submitted by the respondents, as they are entitled to do, which again perfectly properly does not go into the merits of the claim but does make certain procedural points to which Mr Hochhauser has replied.  Indeed, he relies on procedural points to support his application for permission.  He submits that in the original grounds of appeal to the Employment Appeal Tribunal there was no complaint of lack of reasons.  Had there been such a complaint, he submits that the applicants would have followed the procedure in Bach, a decision of this court in [2005], whereby the tribunal can in situations such as the present be asked for further reasons.

1. I do not find the need to deal with other procedural points at this stage.  The argument that the decision of the employment judge was insufficiently reasoned may well be pursued on the hearing of the appeal.  There is no doubt that the issue, which, in my view, for present purposes, is central, was fully ventilated before the employment judge, and there is force in the submission made that in most cases it is self-evident that there will be a broader scope for enquiry.  I would not refuse permission to appeal on the basis that, having accepted the submissions of Mr Randall, the employment judge did not set out what those submissions were.  I would grant permission to appeal.

**Lady Justice Smith: 
**10.I agree that the grounds are arguable and that permission should be granted.

Order:  Application granted