EAT Practice and Procedure – Case management – Amendment
Appeal by the Claimant on two bases: (1) the limitation of the issues on his unfair dismissal complaint to preclude his contention that the real reason for his dismissal was not redundancy but was a reason connected with a wish to avoid paying him a bonus; and (2) the refusal of his application to amend to rely on a complaint of making a protected disclosure relating to the failure to pay him bonus or proposed relocation and his assertion that this was the real reason for his dismissal and/or selection for redundancy.
Held:
Allowing the appeal on the first basis. Recognising that the EAT should be slow to interfere with the ET’s case management role in drawing up the list of issues, the decision to exclude the Claimant’s positive case as to the reason for his dismissal or selection for redundancy was wrong and could not stand: (1) it failed to take into account that which was relevant (the lack of concession as to a fair reason for dismissal on the face of the ET1 and the Claimant’s earlier raising of the question whether the reason given/his selection for redundancy was a sham); and (2) took into account that which was irrelevant (in terms of treating Employment Judge Deol’s record of the strike out hearing as containing a list of issues when it did not).
Further, having not conceded the reason for dismissal in his ET1, the Claimant was entitled to test the Respondent’s case on this question. The Respondent was entitled to know of any positive alternative case but that would have been apparent as and when the issues were identified. The Claimant had raised the question of the redundancy being a sham in August 2012. If the list of issues had been drawn up at that stage, there was no reason to think he would not have relied on bonus avoidance as the real reason for his dismissal and there could have been no objection to him having done so. The only real objection was of delay but that was not solely the Claimant’s responsibility. He should not have been restricted in how he put his case on the reason for dismissal.
The ET’s Decision would be replaced with a direction that the Claimant was able to contend the reason for his dismissal was a reason connected with a wish to avoid paying his bonus. The appeal on the second basis was, however, dismissed.
The matters relied on in respect of the whistle blowing allegations were raised as new claims before Employment Judge Glennie and, as the Claimant accepted, that required an amendment of the ET1. That being so, the ET was bound to consider the question of the timing of the raising of these claims and the time limit in issue ran from the date of Claimant’s dismissal. The claims were out of time. There was no reason why it had not been reasonably practicable for the Claimant to have raised those claims in time (subsequent disclosure from the Respondent did not give the Claimant any new information that changed the position for him in this regard). More generally, the ET was entitled to take into account the relevant procedural history, including the Claimant’s earlier clarification that he was not raising any further claims and his failure to mention the possibility of a whistle blowing claim at any earlier stage.
Whether or not the Claimant might be able to rely on some of the matters relevant to such a claim as part of the evidential material on the unfair dismissal case in any event (although that was more doubtful in relation to the relocation disclosure/s), the question of possible prejudice went far wider than this. Further legal and evidential issues were raised by the whistle blowing claims (not least in respect of the question of the (still unparticularised) disclosures themselves). In the circumstances, the ET reached an entirely permissible conclusion, with which it was not open to the EAT to interfere.
Eady QC HHJ
[2015] UKEAT 0089 – 15 – 2907
Bailii
England and Wales
Employment
Updated: 04 January 2022; Ref: scu.552832
