MR M UPHILL v COLAS LIMITED [2004] UKEAT 0323_04_0912

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0323_04_0912Case No ppeal Nos. UKEAT/0323/04/SM & UKEATPA/0437/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M UPHILLAPPELLANTCOLAS LIMITEDRESPONDENT
Before
His Honour Judge Richardson Mr D EvansDate 9 December 2004
[1]APPEARANCES For the Appellant MR A SOLOMON (Of Counsel) Instructed by: Messrs Russell-Cooke Solicitors 2 Putney Hill London SW15 6AB For the Respondent MR R BRADLEY (Of Counsel) Instructed by: Messrs Mace & Jones Solicitors Drury Houses 19 Water Street Liverpool L2 ORP SUMMARY The Tribunal's decision was not unsafe by reason of delay. The Tribunal did not err in law in the way in which it dealt with resignation, and did not err in law in concluding that the Appellant suffered no detriment. The Tribunal was bound to refuse the application to adduce further evidence. HIS HONOUR JUDGE RICHARDSON This an appeal against a Decision of the Employment Tribunal sitting at London South entered in the register on 12 February 2004.[2]Mr Michael Uphill, a quantity surveyor, was employed by Colas Limited hereafter ("Colas") as a Contracts Manager from March 1978 until 31 March 2002. He ran part of the business of Colas which was based in Battersea. He claimed that he was unfairly dismissed by Colas, either directly or constructively. He claimed that he had been subjected to detriment and dismissed for making protected disclosures. These claims were rejected by the Tribunal. Mr Uphill appeals against those parts of the decision.[3]By an amendment made in the course of the hearing Mr Uphill also claimed a bonus payment. The Tribunal upheld his right to a bonus payment and there is no appeal against that decision. There are on behalf of Mr Uphill four grounds of appeal. Firstly, it is said that delay in promulgation of the Tribunal's decision rendered it unsafe. Secondly, it is said that the Tribunal has failed to deal with an application on 30 January 2004 to adduce further evidence or review. Thirdly, it is said that the Tribunal has erred in the way that it has dealt with the "whistleblowing" issue. Fourthly, it is said that the Tribunal has erred in the way in which it has dealt with the question whether Mr Uphill has resigned. We will consider those four heads of appeal later in this judgement. But first, since delay is an issue in this appeal we will go into the factual background in a little more detail than otherwise we might have done. Background[4]Although the Tribunal was principally concerned with events in late 2001 and early 2002, it also had to consider some events which took place years earlier. It was part of Mr Uphill's case that these were protected disclosures.[5]In 1995 Mr Uphill reported overcharging of material by a sub-contractor. Colas had reached a compromise agreement with that sub-contractor whereby it recouped some of the overcharged money through reduced rates.[6]In 1996 Mr Uphill reported complaints that a subordinate employee had been extorting money from sub-contractors. He investigated, and then reported finding that a major client, a local authority, had been charged improperly for certain work. He believed and reported that a council employee was involved, and a sub contractor, as well as the subordinate employee. The subordinate employee resigned. There was an issue at the Tribunal whether the local authority had been informed of the improper charging.[7]In January 1997 at his annual appraisal Mr Uphill was himself criticised in particular for a 'hands off' approach to the contract with that local authority. He challenged the content of that appraisal in a memorandum dated 17 February 1997. He received a salary increase in April and his next appraisal reported favourably on his relationship with the local authority and his financial management of its contract.[8]In April 1998 Mr Uphill was dissatisfied by his salary increase, and wrote expressing that dissatisfaction. He said he would be happy to negotiate a mutually agreeable retirement date to include adjusted early retirement. He was then aged 50. His salary was reviewed and increased, back-dated to April 1998.[9]Also in 1998 Mr Uphill discovered that Colas had overcharged the local authority by the sum of £52,687. He reported it. A draft credit note was prepared by him in favour of the Council. This credit note was never sent. The circumstances in which it was not sent are the subject of some findings by the Tribunal.[10]There matters remained for more than 3 years. In September 2001 Mr Uphill became concerned that the same council employee might be involved in further activity which would prejudice the local authority. This time it was not suggested that any Colas employee was involved. Two Colas employees, Mr Hutchinson and Mr Dupond, informed the local authority about their concerns.[11]At this time Colas was planning for the retirement of a director, Mr Jones. Mr Hutchinson had been identified as his successor. He took over some of Mr Jones' duties and another employee, Mr Rushbrooke, was identified as his successor. Mr Rushbrooke took over responsibility for the Battersea business. Mr Rushbrooke was younger than Mr Uphill, and junior in service to him. Mr Uphill learned about the re-structuring at a meeting. The Tribunal found that the reasons for identifying Mr Rushbrooke as Mr Hutchinson's successor were genuine and sound, but said it was unfortunate that Mr Uphill should have learned of them at a meeting.[12]Correspondence ensued. A meeting took place. Following the meeting Mr Uphill wrote on 17 October 2001 to say that he felt demotivated, and that the right thing to do was to place his job at the managing director's disposal for re-allocation to somebody for whom future promotion prospects were a reality. He said he hoped a compromise agreement could be reached. Again he mentioned his position on retirement.[13]There was also at this time a proposal to remove the Battersea office to Old Oak Common, substantially further from Mr Uphill's home in Wimbledon. Mr Uphill raised concerns with management about this proposal. He was then away for a period of annual leave until 23 January 2002. When he returned the proposal to move to Old Oak Common was going ahead. February 2002[14]A meeting which took place on 1 February which together with another meeting on 14 February was of key importance to the hearing before the Tribunal. The move from Battersea to Old Oak Common was at the end of the agenda for this meeting.[15]The Tribunal's findings about this meeting included the following. Mr Uphill announced that he would retire from Colas and did not intend to relocate to Old Oak Common. The managers of Colas - Mr Hutchinson, Mr Gaillard and Mr Jones - were surprised by Mr Uphill's announcement. Mr Gaillard said that Colas had no wish to lose him. Mr Uphill repeated that he had made his decision. The Tribunal said in short that it concluded that Mr Uphill "announced his resignation" at the Battersea management meeting on 1 February 2002.[16]In reaching that key finding the Tribunal was preferring evidence given by three management witnesses to evidence given by Mr Uphill, who did not accept that he went so far as to announce his resignation on 1 February. The Tribunal referred, in support of their conclusion of fact, not only to notes made by Mr Dupond and Mr Hutchinson, but also to an important e-mail sent by Mr Uphill himself on 4 February, which concludes:
"However, you may by now have heard that I have advised my Line Management of my own intention to leave the company. This appearing to have come unexpectedly to them, I have agreed to leave the exact moment of time of my departure in abeyance for a few days to give them a chance to discuss alternative way forwards, but it is unlikely that my (full-time, direct) employment would extend beyond that date"
. Further, by an e-mail dated 13 February 2002 Mr Uphill said:
"As you know, I notified you, on Friday 1 February, (12 days ago) of my intention to leave Colas. I said, then, that there at least two ways of dealing with the situation. I referred to the two that came to mind. The first will be for me simply to give notice of my resignation. The second (and the preferred option from my point of view is that this would enable the party to be amicable) is for the company to reach the compromise agreement I proposed to Bernard in October. I said at the time this would enable the company to continue to employ me, if it so wished, in an independent, part-time capacity, for a limited period, until a successor was in place, but it seems from conversations reported to me that there is a likelihood that I will not be replaced, in which case this option may not be required."
[17]On 14 February a further meeting took place. Again there was a dispute as to what took place which the Tribunal had to resolve. The Tribunal found that at this meeting the date was agreed at which the resignation would take effect: 31 March 2002. Mr Uphill wanted a severance package and made that clear, and said that if none was forthcoming he would consider his loyalty to Colas as at an end. He produced the credit note which had been sent to the Battersea office, as the Tribunal found. The Tribunal found that Mr Uphill raised the issue of the draft credit note to put pressure on Colas to provide him with a termination package, and said other matters might come to light and he was keeping his powder dry. The Tribunal said it found Mr Uphill's explanation that the matter had arisen without amounting to a threat wholly unconvincing.[18]The T found that at the meeting on 14 February Mr Uphill was asked for written notice of his resignation. On 21 February he was reminded. Eventually on 27 February 2002 Colas wrote to him confirming that his employment would terminate on 31 March 2002 by reason of his resignation. It was Mr Uphill's case that this letter amounted to a letter of dismissal; the case for Colas that it confirmed the resignation already notified. Everyone was agreed that employment in fact terminated on 31 March 2002. The Tribunal's Decision[19]The Tribunal heard the case on a day in November 2002 and for 2 days in April 2003. It heard from a number of witnesses, including Mr Uphill, Mr Hutchinson, Mr Jones and Mr Gaillard. It had two lever arch files of documents together with a bundle of witness statements. Both sides were professionally represented. Written submissions were put in after the hearing in accordance with a time table which meant that written reply submissions were in by 5 June 2003.[20]The Decision is detailed. The issues are correctly summarised at the outset. The Tribunal's findings of primary fact are set out over 29 paragraphs on 7 pages. The written submissions are summarised quite fully. The statutory framework is set out.[21]The Tribunal's conclusions relating to the various issues are then set out. In paragraphs 51(a) - (h) there are specific findings concerning protected disclosure. We shall return to those later in this judgment, but we will quote paragraphs 52 and 53 in full."52. The Tribunal has concluded that the Applicant announced his resignation at the Battersea Management meeting on 1 February 2002. The Tribunal preferred the evidence of the Respondent's witnesses that the Applicant had announced his resignation at such meeting and that the reason was that he did not wish to re-locate to Old Oak Common. Nothwithstanding the Applicant's account that he never went further than stating that unless some satisfactory alternative arrangements were made, he would probably be forced to leave the company at some stage, the Tribunal considers that there is ample corroborative evidence that the Applicant did announce his resignation at the 1 February 2002 meeting. There is the diary entry of Mr Dupond, page 749, and we note that the Applicant himself accepted that he had told Mr Dupond that he would not be moving to the new office in Old Oak, although the Applicant maintained that such was the position, "as things stood" . The Tribunal has noted the various E-mails from the Applicant which followed the 1 February 2002 meeting, namely the Applicant's E-mail, 4 February 2002, page 753 in which he stated "you may by now have heard that I have advised my Line Management of my own intention to leave the Company" and his E-mail of 13 February 2002, page 754 which was headed, "my departure from Colas" . We have concluded that the Applicant's termination date of 31 March 2002 was agreed at the Management Review Meeting at 14 February 2002.53. The Tribunal has not accepted the Applicant's evidence that his resignation had been motivated by the disclosures which he had made to the Respondent in the period 1995-2002. We have found that the Respondent acted properly and responsibly once the Applicant had raised the disclosure issues and that the Applicant suffered no detriment as a result. In any event the matters raised by the Applicant surfaced at intervals from around April 1995 and after 1997 there were significant gaps between the times when the Applicant raised disclosure issues. Thus the Applicant raised the overcharging issue in about July 1998, and the next matter relied upon by the Applicant did not surface until September 2001. Nearly three years after the Applicant had first raised the issue of the Borough being overcharged, he raised it again after he had announced his resignation, on 14 February 2002. We conclude that the disclosure issues, even if individually or cumulatively, were presented to the Tribunal within the period required by Section 48 of the Employment Rights Act 1996, had not caused the Applicant to be subjected to any detriment on the part of the Respondent. In the circumstances, the Applicant's complaints of unfair, constructive dismissal and wrongful dismissal are dismissed." Delay[22]The Tribunal's decision was unfortunately long delayed. The hearing concluded on 4 April 2003. Written submissions were complete by 5 June 2003 but the Decision was not promulgated until 12 February 2004. In accordance with its practice, the Appeal Tribunal wrote to the Chairman for an explanation. We have his letter dated 7 July 2004. After the hearing some time was necessarily incurred in the finding of a Chambers day when the three members could meet. The Chambers date took place on 26 June 2003. It took all day. The Chairman says he prepared a rough draft of findings. He does not say precisely when. It was 7½ months later that the Decision was promulgated. The Chairman's letter indicates the pressures within the London South Tribunal centre at that time.[23]In Kwamim v Abbey National [2004] IRLR 516 the Employment Appeal Tribunal gave guidance on what is an acceptable time for a Tribunal to take in delivering a reserved decision. The time starts from the end of the hearing itself unless written submissions are called for. Where written submissions are called for, it will generally start from their delivery. No more than 3½ months from that time is generally acceptable. There may be rare, personal, circumstances which explain greater delay: the illness of a chairman or a member, for example. But general pressures of work have to be handled by sensible procedures. Wherever possible listing of long cases should take account of the time required to consider and write a decision. A chairman who is falling behind with a written decision should say so. Those who are responsible for the administration of tribunals will be expected to provide the necessary time to conscientious chairmen who, because they are dealing with heavy workloads, fall behind. These matters are fully discussed in Kwamim . We expect that the problems which are indicated by the Chairman's letter have been addressed since that time. Suffice it to say that the delay in this case was unreasonable and excessive and the principles which the Appeal Tribunal has laid down in Kwamim v Abbey National are engaged in this case. The Application in January[24]Between the first day of the hearing in November 2002 and the second and third days in April 2003 Mr Uphill's solicitors had contacted the local authority. They told Mr Prangnell, the local authority's officer concerned with highways, something of the allegations made by Mr Uphill. Mr Prangnell wrote to them. They called him as a witness.[25]Following the hearing in April the local authority asked Mr Uphill to be interviewed. That was in a letter dated 16 April 2003. The interview was to be in early June 2003. The Tribunal was not at this stage informed of the development.[26]However, on 30 January 2004 Mr Uphill's solicitors wrote to the Tribunal, seeking to make an application to adduce relevant new evidence before the Tribunal reached its decision, or if the decision had been reached, asking for a review.[27]The letter explained that Mr Uphill had been interviewed by the Council and set out his belief that the investigation team had negotiated the return of some money from Colas and perhaps accepted that evidence provided by Mr Uphill constituted conclusive proof of fraud. The letter referred to the investigative team's conclusions and subsequent correspondence as important as going to the question whether protected disclosures were made and if so whether they were made in the reasonable belief that they were true and also to whether or not they were true. It was said also the issue might go to show that Colas has made admissions inconsistent with its evidence to the Tribunal.[28]The Chairman did not see that letter until July 2004 when he read the file after receiving an Order of the Appeal Tribunal. By then the letter dated 30 January was on file. When and how it came to be placed there is unclear, the case worker concerned no longer being available to be asked. We approach the appeal on the basis that a letter of this kind ought to be promptly and clearly put in front of a Chairman who should consider it and as appropriate rule upon it. We do not think that the apparent administrative mishap that occurred in January 2004 amount to any excuse for that not being done. Ground of Appeal (1) Delay[29]Against that background we turn to the specific grounds of appeal. The first ground of appeal is that the decision is rendered unsafe by delay. In Kwamim the Appeal Tribunal considered at length the approach that this Tribunal would take where there was unjustified delay in the delivery of a reserved decision. Having discussed the authorities including in particular Cobham v Frett [2001] 1 WLR 1775 the Appeal Tribunal laid down the proper approach in paragraph 15 of its judgment: "15 The proper approach appears to us, in the light of that guidance, to be as follows.15.1 The appellant will need to invite the appellate court to examine the delayed judgment for any sign of error due to faulty recollection. The party impugning a judgment will need to 08/12/2004 show a material error or omission (if only one, then it would need to be the more significant) or a series of material errors or omissions. Material in this context does not mean material in the sense of an independent ground of appeal, ie necessarily central to the decision and indicating an error of law or such error or errors of fact as to amount to perversity , but material in the sense that, taken separately or together, it or they show a real risk that there has been a failure of recollection, so as to establish that the decision is unsafe by virtue of the delay.15.2 Such causation is essential. The appeal must not be allowed, just because of the judgment being a delayed one, to degenerate into an impermissible appeal based upon an alleged error or errors of fact, as a result of what Lord Scott called 'trawling' through the judgment. It plainly should not open the door, of itself, to allowing a second bite at the cherry, or certainly to a remission to the employment tribunal for the purpose of allowing a better job to be done by the losing party, second time around. We are satisfied, notwithstanding Lord Scott's use of the words 'probably or even possibly', that, given the consequence for the parties of setting aside the judgment, the appeal tribunal must be satisfied on the balance of probabilities that the unsafeness is due to the delay. If the unsafeness of the decision due to the delay is established, then that is an independent A ground of appeal, and the delay will have infected and rendered unsafe one or more of the I (!1r bases in law for the tribunal's decision. The error or errors must be due to the delay, and cast doubt upon the decision or part of the decision .15.3 We emphasise 'or part of the decision' because we entirely agree with the approach of Judge McMullen QC in Chinyanga at paragraph 42, when he said: 'We have decided not to set aside the whole of the decision and send it to a different tribunal because we have dealt clinically with the submission made to us that what is required to be shown is delay plus some additional error. We do not consider that justice will be done by setting aside the whole of this decision, in the light of the consideration which we have given to it.' The delay may not impact so heavily, or not at all, on all parts of the decision. Some questions may depend upon an analysis or construction of documents or on undisputed questions of fact. Analysis of the causation must be careful, given the inevitably substantial consequences of an order for a rehearing of matters possibly many years before and of depriving the successful party of a decision in his or her favour, while condemning both parties to additional possibly extraordinary additional expenditure of time and cost. There I can be no question here of lone out, all out', but there must be what Judge McMullen QC called a clinical consideration of the effect, if any, of the delay.15.4 There is and must be what Ms Cunningham, on behalf of the appellant in the Kwamin case, called a 'sliding scale' of consideration of the danger of injustice dependent upon delay. The longer the delay, the more scrutiny required. Lord Woolf MR stated in Gardiner Fire that 'it has been our approach to scrutinise the material which has been placed before us in the light of the delay to which I have made reference'15.5 This brings us to the next and significant factor in an appeal based upon a delayed judgment. The Employment Appeal Tribunal is required by the Court of Appeal, and has always been prepared, to pay great respect to the conclusions of the employment tribunal, as industrial jury , as the finders of .fact, and because there is only an appeal to the Employment Appeal Tribunal on a point of law. In that context the Appeal Tribunal(i) will not be too demanding of detail in the expression of the tribunal's reasons (subject always to there being sufficiency of reasons in accordance with Meek v City of Birmingham [1987] IRLR 250 )(ii) will resist the kind of analysis of extended reasons which treats them as if they were a statute, but will encourage and adopt a sensible and common sense understanding of them,(iii) will ensure that respect is given to the fact that the employment tribunal has seen and formed impressions of the witnesses, and(iv) is required to be very slow indeed to interfere with the decision of an employment tribunal on ground of perversity (see most recently Yeboah v Crofton [2002] IRLR 643). Such deference and reluctance and giving of leeway must inevitably be the less when it is suggested that there have been errors by the tribunal by virtue of the delay, or that conclusions of the tribunal are not, or may not, be based upon any abiding recollection of the witnesses or their impression upon it. In Goose (referred to in Cobham in the passage cited in paragraph 14 above) at paragraph 113 Peter Gibson LJ stated: 'Because of the delay in giving judgment, it has been incumbent upon us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal, unless it can be shown that he failed to use, or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received, with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J denied himself the opportunity of making this further check in any meaningful way.' Similarly in Poundall he said: ''These matters leave me profoundly uneasy as to whether the Recorder did take proper advantage of the fact that he had seen and heard the witnesses.' See too per HH Judge Reid QC in Barker at paragraph 31: ''The danger in any case of this sort is that the tribunal will have forgotten the impression created by witnesses.' However, there falls to set against this the authoritative statement in Cobham at 1783, when Lord Scott, giving the judgment of their Lordships, including Lord Slynn of Hadley and Lord Hope of Craighead, stated: 'As to demeanour two things can be said. First, in their Lordships' collective experience, a judge rereading his notes of evidence, after the elapse of a considerable period of time, can expect, if the notes are of the requisite quality, his impression of the witnesses to be revived by the rereading. Second, every experienced judge ...is likely to make notes as a trial progresses, recording the impression being made upon him by the witnesses. Notes of this character would not, without the judge's permission or special request being made to him, form part of the record on an appeal .... It is, in their Lordships' opinion, impermissible to conclude from the fact of a 12 months' delay that the judge had a difficult task, let alone an "impossible" one as Singh JA suggested, in remembering the demeanour of witnesses.'15.6 Something may depend upon the history of events after the hearing, in so far as it may be clear. The Employment Appeal Tribunal will not want or be able to have a mini-trial of what has occurred, involving any question of cross-examination of the chairman or members or indeed of the administration of the tribunal. However it may, in a particular case, be clear that there was a chambers discussion soon afterwards, and that the decision was then finally arrived at and recorded in all but final form, subject to tidying up or to typing, and that delay thereafter was due to incompetence or oversight. In such a case, although a great deal of anxiety and irritation will have been caused to the parties, the decision, and the recollection upon which the decision was based, will have been crystallised, and the delay thereafter will be of no materiality. Such a possibility only emphasises the need, to which we have referred above, in the unhappy and, we hope in the future, unlikely event of these kind of delays continuing to occur, notwithstanding a system of follow-up of outstanding judgments by the tribunal administration, to which we shall refer, for the parties, or their legal representatives, to chase the employment tribunal in respect of delayed judgments -and, sadly, it seems in the light of the experience of the solicitors in the Kwamn case, not necessarily to take what they are told at face value, but to press further .[30]In the light of this guidance we will look at the specific criticisms that are made of the decision - not only those which are said to relate to delay, but also those which are said to be errors of law independently of any issue of delay. Each may impact on the other as Mr Solomon said in his submissions to us.[31]Firstly, it is submitted that the Tribunal unfairly criticised Mr Uphill's handling and presentation of his case. We do not detect this in the decision. The only specific example put forward relates to bonus: see paragraphs 31 and 55 of the Decision. We do not read these comments as being a criticism of Mr Uphill's handling of the case. It was relevant to the Tribunal to note that there was no complaint about bonus in correspondence. It supported the Tribunal's finding that non-payment of bonus played no part in Mr Uphill's decision to resign, and it was relevant also to his evidence that he had been treated rudely. We do not think that anything here said by the Tribunal is in any way related to delay.[32]Secondly, it is submitted that the Tribunal unfairly praised the conduct of Colas, saying that it had acted "properly and responsibly" once disclosure had been made to it, whilst failing to consider that the only reason the Council had been informed that Colas unlawfully held its money was due to Mr Uphill. This comment by the Tribunal in paragraph 53 does not seem to us to have anything to do with delay; it follows from the Tribunal's earlier findings.[33]Thirdly, it is submitted that the Tribunal forgot that there was evidence of specific allegations of fraud made by Mr Uphill to Colas in September 2001. Thus paragraph 51 (e) is said to be wrong when it concludes "there was no evidence before the Tribunal that the information about Middleton involved a criminal offence or tended to show that a legal obligation had been broken". This relates, we remind ourselves to September. The Tribunal dealt separately in the next sub paragraph with October. In September there is a reference to fraud made in Mr Uphill's witness statement and also recorded by him in a very short passage in a contemporaneous memorandum but there was no detailed information given (so far as the evidence or the memorandum went) about the nature of the fraud. We think the Tribunal may have been intending to refer to the brevity of what was said. But in any event this does not affect the Tribunal's conclusion that there was no evidence leading them to conclude that Mr Uphill had suffered any detriment as a result of communicating the information. If the Tribunal fell into error here, it was error only in failing to recognise the use of the word fraud not in failing to recognise any lengthy or detailed description of criminal activity.[34]Fourthly, it is submitted that the Tribunal incorrectly stated that Mr Uphill had announced his resignation by 15 October 2001. The Tribunal clearly said in many places in its Decision that the events concerning the resignation took place in February 2002. The point is made that in dealing at sub paragraph 51(f) with one of the allegations of Mr Uphill concerning protected disclosure the Tribunal added the sentence "in any event by this stage he had announced his resignation and his termination date had been agreed." That sentence is plainly wrong. The contrary has not been argued by Colas. The error is in our judgment most unlikely to be anything to do with delay. The extended reasons both before and after paragraph 51(f) make it entirely plain that the resignation took place in February. We think this is a slip made in the course of writing or dictating a long decision. The essential reasoning in paragraph 51 (f) is given in the previous sentence.[35]Fifthly and sixthly it is submitted that the Tribunal forgot certain oral evidence of Colas. This is bound up with the question of resignation. We will deal with this aspect of the case later when we deal with resignation.[36]Seventhly, it is submitted that the Tribunal's conclusion that Colas had informed the local authority of the impropriety discovered by Mr Uphill is perverse in the light of the evidence of Mr Prangnell. The Appeal Tribunal by its Order dated 14 July 2004 gave directions in its usual terms. In particular at paragraph 5, that requires an endeavour to agree any relevant evidence. If relevant evidence is not agreed then the Direction envisages an application on notice to the other party either for the purpose of resolving the agreement or for the purpose of requesting Chaiman's notes. No such application was made. We therefore have no Chairman's notes. Mr Prangnell's evidence was, we are told, given by reference to a letter which he had written but it is clear that he was cross-examined and that in the course of his cross-examination he made an admission of some kind to the effect that a line manager of his had heard something about the matter. The position therefore for the Tribunal was this "There was we are told evidence of Mr Hutchinson that the matter was reported. There was evidence from Mr Prangnell that it was not reported. Mr Prangnell was cross-examined and said something which threw doubt on the question whether anything had been said some years before the Tribunal concluded in due course in its Decision that the matter had been reported to the Council. We are not prepared in these circumstances to find that the Tribunal's decision was perverse. Still less that its conclusion had anything to do with delay."[37]Eighthly, it is submitted that the Tribunal forgot a point when it said that if Mr Uphill had been treated rudely over the bonus he would have complained in correspondence. It is said the Tribunal forgot his evidence that he was ill, awaiting the results of a biopsy. We do not draw the conclusion that the Tribunal forgot any evidence at this point. There was correspondence, including in particular a solicitor's letter written on Mr Uphill's behalf in March 2002, and the matter was not mentioned in correspondence. The point is a proper one for the Tribunal to make and in our judgment not indicative of any unsafety by reason of delay. (2) Resignation[38]It is convenient to deal with two respects in which it is said that the Tribunal forgot evidence given at the hearing. These are the points which we have left over for consideration of the submissions on delay. Firstly, it is said that the Tribunal forgot that Colas's witnesses had said that there was no resignation on 1 February. Secondly, it is said that the Tribunal forgot that Mr Hutchinson prepared his memo dated 4 February on 21 February not the 4 February. Therefore it is said the Tribunal is wrong when it says that Mr Hutchinson's notes of meetings were transcribed into an expanded version on 4 February 2002 (see paragraph 23 of the Decision).[39]Here again we must observe that paragraph 5 of the Directions Order given on the Preliminary Hearing has not been followed through. We have therefore no Chairman's notes on this point. As regard the date of production of the memo we have seen a letter from Colas' solicitors in 2002 prepared during the course of the Tribunal proceedings indicating that the memo was produced on 21 February 2004. It seems likely that the Tribunal overlooked this when giving reasons. As regards what precisely Colas' witnesses may have said it is impossible to be precise without an agreement or a Chairman's notes.[40]However, it seems to us that the Tribunal's conclusions about what occurred on 1 February are unimpeachable. The Tribunal concluded that Mr Uphill announced his resignation on 1 February (see paragraph 52, first sentence). The Tribunal was well aware that he did not then set a termination date. The Tribunal concluded that the termination date of 31 March 2002 was agreed at the management review meeting on 14 February 2002 (see paragraph 52, last sentence). The Tribunal's conclusion that Mr Uphill announced his resignation on 1 February 2002, receives the strongest of support from the e-mails to which we have referred. The first of them is explicit. Mr Uphill himself described that he had advised line management of his intention to leave the company. The second was almost as explicit. There were alternatives. Either he might give notice of his resignation (which we interpret to mean in writing) giving a particular date or there might be a compromise. There was never was a compromise. The position as we see it is that Mr Uphill was saying that he was leaving if there was not a compromise agreement. The Tribunal was right in our judgment to reach the finding that it did. We are not satisfied that it forgot or misunderstood the evidence of Colas' witnesses in any way. Nor do we think that it had any impact on its decision that Mr Hutchinson's note of what occurred on 1 February was later in the day. We accept the point that a memorandum written later in February would have written once the dispute was crystallised in a way which would not have been the case on 4 February. Nevertheless, Mr Uphill's own memoranda amply justify the conclusion that the Tribunal reached. In these circumstances, again we do not accept that the Tribunal's decision can be impeached either by reason of delay or by reason of any misunderstanding about the date when the memo was produced. Mr Soloman also submits that at the highest Mr Uphill had evinced an intention to resign on 1 February which would not entitle Colas to accept a resignation and set a date but the Tribunal found that the termination date was agreed on 14 February. (3) Whistleblowing[41]The law relating to whistleblowing is set out in the Employment Rights Act 1996:
"43A Meaning of "protected disclosure"
In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.] [43B Disclosures qualifying for protection (1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following – (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. [43C Disclosure to employer or other responsible Person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith – (a) to his employer, or [47B Protected disclosures (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. [103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part 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.][42]Against that background we turn to deal with the specific criticisms which are made on the Tribunal's decision in paragraph 51. Firstly, in respect of paragraph 51(a) it is said that the Tribunal wrongly concluded that if information given by an employee involved a breach relating to the conduct of a sub-contractor rather than the conduct of the employer it was not within Section 4A and Section 43B of the 1996 Act. We do not read paragraph 51(a) in that way. The Tribunal do not expressly say that such a disclosure would not qualify and we do not think they fell into that error. The Tribunal rested its decision on there being no detriment to Mr Uphill. We think the Tribunal were making a practical point. Where the report is a misconduct of a sub-contractor towards Colas it is the less likely that Colas who has subjected an employee to a detriment for reporting it.[43]Criticism is made of the Tribunal's conclusion in sub-paragraph 51(b) that this is point concerning Mr Prangnell with which we have already dealt. As to paragraph 51(c) it is said to be an error of law by the Tribunal to find that the memorandum dated 17 February 1997 does not raise any new matters in addition to those which had surfaced in 1995 and 1996. Again we do not read the Tribunal as laying down in sub-paragraph (c) any proposition of law. The Tribunal's decision rested on its conclusion that even if the letter had involved a disclosure Mr Uphill did not suffer any detriment as a result of it.[44]We turn then to sub-paragraph (d) which concerns the issue of the £52,000 due to Hammersmith and Fulham. The Tribunal first conclude:
"We do not consider that the information relating to the Respondent overcharging the Council meets the requirements of Section 43B of the 1996 Act, and in our view such information did not tend to show that a criminal offence had been committed or that the Respondent had failed to comply with any legal obligations."
[45]We are critical of some parts of this conclusion. We agree that the information did not tend to show that a criminal offence had been committed. However, in our judgment, if there was overcharging it would tend to show (and be a complaint) that Colas had failed to comply with a legal obligation. It is possible the Tribunal in expressing its doubts had in mind what was said in the memorandum dated 14 February 2002:
"MJU then produced a draft credit note to LBH & F in the sum of circa 45K plus VAT and asked he would authorise it. Discussion ensued and MJU explained that this was in respect of an overpayment by H & F in 1998 as a result of confusion over invoices and credits."
A report that a client has made an accidental overpayment is not in itself a complaint that someone has failed to comply with a legal obligation to which he is subject but it is implicit in what was being said by Mr Uphill that the circumstances were such that the money should be repaid. An obligation by Colas to repay the £52,000 would in our judgment in all probability be a legal obligation either as a matter of contract or the law of restitution and therefore on our analysis the complaint will have been a complaint which met the requirements of Section 43B.[46]But the Tribunal's second conclusion is that even if the matter amounted to a protected disclosure Mr Uphill suffered no detriment as a result of it. It is to be borne in mind that the credit note was raised in July 1998. No specific detriment is said to have occurred in the period following that. As we have seen there is a gap in the history from 1998 to 2001. In our judgment the Tribunal's conclusion that no detriment was suffered is not vitiated or flawed by reason of its conclusion that the information did not meet Section 43B.[47]We have already dealt with the criticism that is made at paragraph 51(f). Finally, dealing with paragraph 51, the criticism is made under paragraphs (g) and (h) that the Tribunal held that Mr Uphill could not suffer a detriment when serving his notice period. We do not read the Tribunal's decision this way. The Tribunal's observation in relation to paragraphs 51(g) and (h) is to be seen in the context of the issues. Part of Mr Uphill's case is that his employment came to an end by reason of his whistleblowing. The Tribunal, however, had accepted that by the time the issue of the overcharging of the sum of £52,000 arose on 14 February ?? by the time of the letter of 7 March 2002 Mr Uphill had already announced his resignation and his termination date had been agreed. The point is not one of norm. It is one of fact.[48]Finally, the criticism is made that the Tribunal has not dealt expressly with the issue that non- payment of bonus was a detriment. It is true that the Tribunal having gone item by item through the list of protected disclosures does not expressly address the issue whether non-payment of bonus was a detriment by reason of protected disclosure. If it were a detriment it would have to be a detriment by virtue of the earlier protected disclosures up to and including October 2001. The Tribunal has in each case said that it was not satisfied that those earlier protected disclosures led to any detriment.[49]In this case where the issue of bonus arose late and where the amendment to deal with the question of bonus was made informally and consisted of adding a claim for breach of contract and unauthorised deduction of wages we think the Tribunal has dealt sufficiently with the issue. We would add that it did award the bonus as a matter of contract. Mr Soloman submitted that there might in addition have been an award for injury to feelings but the Tribunal had correctly pointed out that the issue was not raised contemporaneously in the correspondence. Returning to delay[50]Having looked at the Tribunal's decision with that extra degree of attention to issues of fact which is called for by the decision of this Appeal Tribunal in Kwamim we are satisfied that the decision of the Tribunal is not unsafe by reason of delay. The Tribunal met reasonably promptly in order to discuss its decision. The reasons that we have contained only one error, the one concerning the date when Mr Hutchinson's memo was produced, which is in our judgment possibly due to delay. None of the essential reasoning of the Tribunal in our judgment has been affected in any way because of delay. (4) The application to call further evidence and review[51]We have already noted that the Tribunal did not consider the application filed on Mr Uphill's behalf to adduce further evidence or for a review.[52]In addition, an application was made to this Appeal Tribunal for disclosure of further material. In the order on the Preliminary Hearing the Appeal Tribunal envisaged that a request for disclosure of the local authority's report and relevant correspondence would be made again and that there might be a further application to the Appeal Tribunal for directions. By August it was clear that the documents would not be forthcoming by consent. Unfortunately there was a delay of three months until the matter was raised with the Appeal Tribunal. When it was raised at a late stage I directed that it should be considered along with the appeal by the full Tribunal.[53]We have considered both what took place on 30 January and the application to ourselves for disclosure. In our judgment the application dated 30 January, if it had been considered by the Chairman was bound to fail. The central question in the case was whether Colas subjected Mr Uphill to detriment or dismissed him because of those things which he had reported. This depends on an assessment of what took place between Mr Uphill and Colas. How the matter was subsequently resolved by the local authority is of marginal if any relevance to that question.[54]By the time the application was made on 30 January evidence had been concluded, andsubmissions made. At this stage in our judgment an Employment Tribunal ought only to permit further evidence to be adduced if there is a compelling case to do so both as to the relevance of the material and as to its impact on the case (see by way of analogy Wileman v Milinec Engineering Limited [1998] IRLR 144). The material which was sought in this case given the issues which arose at the Tribunal was of marginal relevance if any relevance at all and in our judgment if the letter had been considered the Chairman's duty would have been to reject the application to re-open the case and to go ahead as he did and deliver his decision.[55]Similarly, in our judgment the issues which arise before us fall to be determined by reference to the Tribunal's Decision and it is neither necessary nor just to re-open evidence and documents in order to do so.[56]It follows for these reasons that the appeal will be dismissed.