Employment Judge B ElgotMs E Darlow Stearn (instructed by counsel) for claimantMr J Arnold (instructed by counsel) for respondentDate 9 May 2025
REASONS
[1]The Claimant has requested written reasons for the Judgment sent to the parties on 16 May 2025.[2]The date of the request under Rule 60 Employment Tribunal Procedure Rules 2024 is 13 May 2025 at which time the parties had not seen the written Judgment (there is no separate order despite the reference to it in the Claimant’s email of 13 May 2025). I was sent a copy of the request on 4 June 2025.[3]I am satisfied that in paragraphs 3-5 of the Judgment there are sufficient written reasons already provided for the decisions made in relation to the Claimant’s application for specific disclosure of documents. That original application made on 1 August 2024 and revised on 27 December 2024 was much reduced in scope by the time this PH took place and there was a greater measure of agreement and cooperation between the parties, for example, over the application of legal privilege to some documents.[4]Full oral reasons were also provided at this preliminary hearing (PH). I am satisfied that the principles set out in the Employment Appeal Tribunal case, cited to me by Ms Darlow Stearn on behalf of the Claimant, of Bari v Richmond and Wandsworth Council [2025] EAT 54 have been considered and applied by me. That case concerned the principles to be considered by the Tribunal when determining requests for further information (sometimes called further and better particulars)[5]I therefore only add the following reasons for the decision in paragraph 1 of the Judgment from which the consequential decision in paragraph 2 derives.[6]I have seen a Preliminary Hearing (PH) Bundle of 492 pages (most of which addresses the disclosure issues) and Skeleton Arguments supplemented by case authorities from both counsel from whom I also had the benefit of oral submissions and argument.[7]The Claimant makes an application under Rule 35 Employment Tribunal Procedure Rules 2024 to add two individual Respondents namely Mr Neville Howe (NH) the Respondent’s General Counsel and the Claimant’s line manager and Mr Richard Lockwood (RL), the Respondent’s Chief Financial Officer and the grievance hearing manager, as parties to these proceedings.[8]This is a somewhat delayed application made on 23 December 2024 (and due to be determined by the Tribunal on 2 January 2025 and then on 28 February 2025 but postponed until 7 May 2025.) The application is made by email to which is attached a document headed ‘Amended Particulars of ClaimAdditions.’ The ET1 Claim was presented to the Employment Tribunal over a year earlier on 5 September 2023 and it is listed for a final hearing soon on 23- 26 and 30 September 2025. There is no reason given by the Claimant for this delay save that, he says, he has changed legal representation and received conflicting advice on the point of the amendment, as his representative states in the 23 December 2024 application.[9]It is the Claimant’s clear contention in his application that no new factual allegations other than those already pleaded in his Particulars of Claim are made.[10]He also states that no new cause of action is brought as a consequence of the addition of Messrs Howe and Lockwood as Second and Third Respondents. I do not agree with this analysis for the reasons given below. There is a new and separate claim in paragraph 31 of the Amendment against the proposed two additional Respondents under section 47B (1A(a)) and (1B) of the 1996 Act with the consequent claim for remedy in paragraph 32 where the case of Osipov v Timis [2018]EWCA Civ 232 is cited.[11]I find that there is a substantial and obvious prejudice to the two individually named Respondents (even if they are highly likely to be called as witnesses for the Respondent) in becoming parties to the proceedings given the potential liability to which they are exposed.[12]I am satisfied that if the amendments are permitted there are inevitably substantial amendments which the Respondent will be required to make to its Response and to the agreed List of Issues. There is also the distinct possibility that the proposed Second and Third Respondents will seek separate representation since they will be obliged to defend allegations that their individual acts (or deliberate failures to act) caused a detrimental dismissal which the First Respondent alleges was not unfair and which it says was not done for the reason that the Claimant made protected disclosures. The Claimant has less than the two year qualifying period entitling him to the right not to be unfairly dismissed unless he can rely on the exception in section 103A of the 1996 Act.[13]In other words, subject to advice, the three Respondents who the Claimant seeks to have as parties to these proceedings may have quite different arguments requiring separate representation, emphasis, and advocacy. All three will suffer prejudice. There is a risk of delay to the final Hearing.[14]The Application to add R2 and R3 I agree that there is no time limit in Rule 35 of the 2024 Rules which provides that a party may be added to proceedings where there are issues between that party and any of the existing parties which it is in the interests of justice to have determined.[15]I note that the Claimant obtained ACAS early conciliation certificates in relation to potential claims against NH and RL but did not issue claims in the Tribunal against either of them.[16]The Respondent does not rely on the defence in section 47B 1D Employment Rights Act 1996.[17]The claims are of unfair dismissal where the Claimant says by reference to section 103A Employment Rights Act 1996 (the 1996 Act) that the reason or principal reason for his dismissal on 16 June 2023 was that he made qualifying and protected disclosures (whistleblowing). Secondly, he claims that that he has been subjected to detriment by acts or deliberate failures to act done by the Respondent on the ground that he made protected disclosures (section 47B 1996 Act). The Respondent accepts that two qualifying disclosures were made on 24 March and 16 May 2023. Employment Judge Park, in a letter from the Tribunal to the parties on 19 June 2024 reiterates that this issue need not be determined by the Tribunal.[18]The Issues identified and set out in the Case Management Summary of EJ Park on 25 January 2024 confirm this position and are the Issues agreed between the parties.[19]The main question for the full Tribunal will be the extent and nature of detriments and, crucially, causation. Were the disclosures the reason for dismissal by the Respondent? Were the alleged detriments by any acts or deliberate failures to act by the Respondent done on the ground that the Claimant made those disclosures?[20]It is certain, by reference to section 47B (2) of the 1996 Act that a dismissal of an employee does not in law amount to a detriment and therefore the financial losses flowing from a dismissal are not recoverable by any Claimant who succeeds only in his section 47B claim.[21]An employee who succeeds in an unfair dismissal complaint will have his compensation capped in accordance with the relevant statutory provisions to 12 months’ gross pay with the application of a statutory maximum week’s gross pay. The Claimant was a relatively high earner and the maximum would apply to him to curtail the remedy for financial losses if he wins his unfair dismissal claim.[22]He seeks to add Messrs Howe and Lockwood as Rs 2 and 3 because by reference to section 47B 1 A and 1B of the 1996 Act and the interpretation of the statutory provisions in the Osipov case and others it is suggested that although it is certain that dismissal by the employer (R1) is not a detriment nonetheless where it can be proven that one or more of the Claimant’s individual co-workers (i.e. not his employer) caused his dismissal by their acts or deliberate failures to act in the course of their employment then the result of those acts ( i.e. the dismissal itself) can be a detriment . In such a case there is no cap on the compensation that may be awarded. This potential enhanced success in both liability and remedy is the reason for the Claimant’s application to amend.[23]The prejudice to the Claimant if I do not permit this amendment is that he loses the opportunity to pursue, at this late stage, any relevant declaration and the whole of the losses flowing from his dismissal when his fixed term contract was not extended by the Respondent.[24]First, I have concluded that the additional detail given in paragraph 29 of the Amended Particulars of Claim- Additions is uncontroversial further information about the original claims which just adds the names of the actors in relation to the named incidents. The amendment of paragraph 29 is not a matter of contention between the parties and indeed the Respondent welcomes the additional information.[25]However, paragraphs 30,31 and 32 are not permitted amendments and I refuse the Claimant’s application to make them.[26]The Claimant calls these allegations a ‘re-labelling’ of his original claims but I am certain that those amendments comprise a new cause of action under sections 47B 1A and 1B as described above. Furthermore, in the absence of any additional factual allegations or particulars, there are no detailed stated grounds for the new claim against the suggested Rs 2 and 3. The Respondent or indeed Respondents may be obliged to seek further information about those claims and provide new and/or amended responses very close to the date of the final hearing.[27]In all the circumstances I have considered the balance of hardship and prejudice to both parties. I note that the Respondent does not rely upon the section 47B 1D defence and will accept liability and indemnify its workers and employees in relation to their actions and pay any award of compensation. This does not remove the prejudice to the Claimant in being unable to argue that the decision to dismiss and the way in which it was effected are detriments for which Messrs Howe and Lockwood are personally liable; and to claim an expanded remedy if he wins against them.[28]I anticipate that the Claimant will still be able to cross-examine both managers at the full merits Hearing because they will be key witnesses.[29]However, in view of the late introduction of this amendment application which is only exempted from any examination of the jurisdictional time limit for the new claims because the Claimant has decided, as Respondent’s counsel puts it, to ‘by pass’ those time limits by relying on Rule 35 of the 2013 Rules for the addition of parties without setting out any particulars/grounds or reasons for the new claims (no new factual allegations or arguments) I am satisfied that the balance of hardship lies against the Claimant and in favour of the Respondent.[30]All and each of any of the three actual and proposed Respondents will, if this amendment is permitted, be required to consider new causes of action, obtain further particulars voluntarily or by Tribunal order, draft and lodge amended responses and amend the List of Issues. There may be yet further contention over the extent of specific discovery and disclosure in a case which is almost two years old. It is likely that the hearing date and duration will be impacted.[31]The Claimant has extant and feasible claims against the Respondent which have reached a good state of preparedness and which will provide him with the opportunity to ventilate his complaints, be heard and receive a final determination. The alternative for all the parties but particularly the Respondent is an ongoing state of uncertainty, delay, and expense causing significant prejudice.[1]The Claimant’s application under Rule 35 Employment Tribunal Procedure Rules 2025 to add two individual Respondents namely Mr Neville Howe and Mr Richard Lockwood does not succeed because it is not in the interests of justice to join them as parties to these proceedings. The Respondent does not rely on the defence in section 47B 1D Employment Rights Act 1996.[2]The Claimant’s consequent application to amend the Particulars of Claim does not succeed save for the amendments to paragraph 29 which are permitted by consent.[3]The Claimant’s application for specific disclosure of additional documents succeeds in part and the Respondent is ordered to disclose on or before 5 June 2025 the following relevant documents which I find it is necessary and proportionate to disclose to dispose fairly of the claims and issues in this case. The numerical references below are to the numbered boxes in a table headed Appendix 1 on page 281 of the 492-page Preliminary Hearing Bundle :- Case Number: 3201677/2023 i) The documents in Boxes 1-5 with a generic heading ‘Whistleblowing Materials’ (none of which the Respondent alleges to be legally privileged) must be disclosed by the Respondent to the Claimant. ii) The documents, if they have ever been created, in Box 8 under a subheading ’Hiring Documents’ consisting only of the business case prepared for the proposed hiring of six senior staff identified at pages 283-4 of the bundle. It is anticipated by the Respondent that written business cases for some of these posts were never created and therefore cannot be produced on disclosure. I decline to order any employee, agent or contractor of the Respondent to produce a witness statement in this connection.[4]I decline to order the disclosure described in Box 6 which is a request for further information rather than an application for specific disclosure. The Claimant is directed to seek from the Respondent the voluntary provision of this information which may obviate the need for any order of the Tribunal.[5]There is a document named ‘Budget Summary’ on page 333 of the PH Bundle. I am not satisfied that it is proportionate or necessary for the disposal of the pleaded claims and agreed issues in this case to order the disclosure of the metadata and/or version history of this document although the Respondent agrees through counsel to ‘have another look’ for the version history if it can be found. The Respondent’s witnesses may be cross examined about this document in any event.