Weare v HBOS Plc (Practice and Procedure : Review) [2011] UKEAT 0612_10_0505

EAT
Weare v HBOS Plc (Practice and Procedure : Review)
[2011] UKEAT 0612_10_0505 · 2011-05-05
[1]The parties in this matter before the London (South) Employment Tribunal are Mr Weare, Claimant, and HBOS Plc, Respondent. Background[2]The Claimant presented claim Forms ET1 to the Employment Tribunal on 5 December 2007 and 28 April 2008 complaining of constructive unfair dismissal, dismissal by reason of whistleblowing, that is making protected disclosures, detriments suffered on that ground and unauthorised deductions from wages.[3]The claims, resisted by the Respondent, were combined and came on for hearing before a full Tribunal chaired by Employment Judge Freer in November 2008. The hearing lasted ten days. Following four days of deliberations in Chambers the Tribunal promulgated their reserved Judgment with Reasons on 9 February 2009. All claims were dismissed. That Judgment has not been disturbed on appeal. Consequently the parties and this EAT are bound by the Employment Tribunal’s findings of fact, subject to the Tribunal’s power of review.[4]The short facts found by the Employment Tribunal, for present purposes, were these. The Claimant commenced employment with the Respondent as a Personal Financial Adviser (PFA) on 24 April 2006. He was assigned to their Putney branch on 10 July 2006. Following a period of sick absence he was charged with the disciplinary offence of unauthorised absences on 1 and 2 March 2007. Following a grievance process a disciplinary hearing was finally held on 5 October 2007. The charge was upheld and on 16 October 2007 he was given a written warning. He resigned from the employment on 30 October 2007.[5]By their Judgment the Freer Tribunal held:(1) that he had not been constructively dismissed;(2) that the alleged disclosures did not influence the Respondent’s treatment of the Claimant;(3) the Claimant received all wages, including sick pay, due to him.[6]The time limit for applying for a review of the Tribunal’s Judgment was 14 days from 9 February 2009. He applied for a review on 23 December 2009, well out of time.[7]The basis of the review application was that the Claimant had recently discovered, as a result of a letter from the FSA, the relevant regulatory body, dated 11 November 2009, that on 20 July 2007 the Respondent’s Lesley Fraser, had emailed the FSA in these terms:
“Hi there, This is to notify you of a Stage 3 Disciplinary - gross misconduct for adviser Stephen Weare, which is to take place on the 30/7/07. The details of the allegations are as follows: · Unauthorised absence from work on Thursday 1 st and Friday 2 nd March 2007. Further details to follow.”
[8]For completeness, it is relevant to note that following the disciplinary hearing in October 2007 Ms Fraser had again emailed the FSA, notifying them of the nature of the disciplinary hearing, namely a stage 3 written warning.[9]The documentary evidence shows that on 14 November 2007 and 29 November 2007 the Respondent wrote to the Claimant notifying him of their perceived obligation to inform the FSA of all disciplinaries involving relevant staff and asking him to complete a Form D. On 6 May 2008 he was told that by the Respondent’s solicitors that the Respondent had emailed the FSA about the outcome of his disciplinary.[10]In the event the FSA was not much interested in the disciplinary action taken against the Claimant for unauthorised absences. On 27 November 2007, we see from page 240 of the EAT bundle, in response to an email from the Claimant dated 16 November 2007, which has not been put before us, Mr Downie of the FSA wrote:
“Further to our conversation, we do not consider disciplinary action in regards to an unauthorised absence to be a matter that should be forwarded to the FSA. Firms have an obligation to advise the FSA of rule breaches as soon as possible, but we do not believe that to be appropriate in the circumstances described. […]”
[11]Employment Judge Freer considered the Claimant’s review application and summarily dismissed it by a decision letter dated 2 February 2010 (the review decision) on two grounds. First, that it was made out of time and time would not be extended. Secondly, there was no reasonable prospect of the Judgment being varied or revoked on review.[12]On 10 May 2010 Mr Weare presented a fresh claim Form ET1 complaining of detrimental treatment as a result of making protected disclosures. A pre-hearing review was held before Employment Judge Salter on 11 August 2010. He struck out the claim by a Judgment with written Reasons dated 24 August 2010 (the strike‑out order). First, because any claim ought to have been brought before the Freer Tribunal, applying the rule in Henderson v Henderson [1843] 3 Hare 100 ; secondly, because it was out of time and time would not be extended. The appeals[13]There are presently three appeals before this Tribunal:(1) EAT/0612/10. This is an appeal by the Claimant against Judge Freer’s review decision of 2 February 2010 (the review appeal);(2) PA/1443/10. The Claimant’s appeal against the strike‑out order of Judge Salter dated 24 August 2010 (the strike‑out appeal); and(3) an interim appeal against the Registrar’s decision of 26 & 27 April 2011 and 4 May 2011 in both appeals, refusing the Claimant’s application in respect of alleged suppression of evidence by the Respondent (the Registrar’s appeal).[14]The review appeal was originally rejected by Underhill P on paper under EAT rule 3(7). Following a rule 3(10) application HHJ McMullen QC permitted that appeal to proceed to a full hearing. Although an appeal against a Judge sitting alone, he directed that appeal be heard by a full division of the EAT. Hence I sit with members on that appeal and have exercised my discretion to sit with members on the Registrar’s appeal. The strike‑out appeal was rejected by Judge McMullen under rule 3(7) on the paper sift. I have before me, sitting alone, an application under rule 3(10) in that appeal. The review appeal[15]As to time, we have carefully considered the observations of Judge McMullen at paragraph 6 of his Judgment, given at the rule 3(10) hearing, then adjourned, held on 22 September 2010 and on which Mr Weare relies. Having investigated the matter with the advantage of full submissions by both Mr Weare and Ms Chudleigh, on behalf of the Respondent, we are quite satisfied that it fell within the proper exercise of Judge Freer’s discretion to refuse to extend time for review under ET rule 35(1).[16]The time for application for review expired on 23 February 2009. The application was not made until 23 December 2009. It was, therefore, out of time. As Judge McMullen allowed, the Employment Judge was entitled to take account of the delay between the Claimant acquiring the relevant knowledge on 11 November 2009 on his case and lodging his application on 23 December 2009. On the Claimant’s own timeline no good excuse for the delay was advanced. There is no error of law shown. On this ground alone the review appeal fails.[17]However, we are further satisfied that the Judge was also entitled to reject the application on its merits. It is clear from the Claimant’s review application that he relied essentially on the Respondent’s email from Ms Fraser to the FSA dated 20 July 2007, which we have earlier set out. That merely informed the FSA of the forthcoming disciplinary. Any detriment to the Claimant was caused not by that notification but by the subsequent email of 14 November 2007, informing the FSA of the outcome of the disciplinary. The Claimant knew of that email from a letter from the Respondent’s solicitors dated 6 May 2007. The sanction imposed by the Respondent was a permissible one, so the Freer Tribunal found (their Reasons paragraph 205). It was plainly open to the Claimant to take the point at the substantive hearing as to the effect of the notification of the disciplinary sanction to the FSA by the Respondent. Either he did and it did not sway the Tribunal or he did not but ought to have done applying the rule in Henderson v Henderson . Either way we are satisfied that knowledge of the 20 July 2007 email would not have affected the nature of the substantive hearing one jot.[18]It follows, on both grounds, the review appeal fails. The registrar’s appeal[19]We entirely agree with the Registrar’s approach expressed in her review letter dated 4 May 2011. The Claimant is seeking to raise matters in relation to documents (EAT bundle pages 404 to 405) which were before the Freer Tribunal at the original hearing. He made application to see the full version of redacted documents disclosed by the Respondent. If those applications were refused the time for appealing was in the appeal against the substantive Judgment. That appeal has been dismissed. He cannot, in our judgement, now re‑open the matter in connection with the present, subsequent appeals. The strike‑out order[20]For the purposes of this application under rule 3(10), the Claimant has the advantage of representation today under the ELAAS pro‑bono scheme by Mr Oliver Segal QC. Mr Segal has taken me to the particulars attached to the Form ET1 lodged on 10 May 2010. Those particulars refer to the emails of 20 July and 14 November 2007 to which I have earlier referred and also the letter from the Respondent’s solicitor dated 6 May 2008. It appears that he chased the matter up until at least 1 April 2010.[21]The argument that is presented today is that somehow those subsequent communications between the Claimant and the Respondent created a new detriment, the subject matter of the new claim. I do not read the particulars in that way. It seems to me that this was, as Employment Judge Salter found, an attempt to re‑open matters which were, or ought to have been, raised before the Tribunal chaired by Employment Judge Freer. As I indicated in our Judgment in the review appeal, the communication of 20 July 2007 took matters no further forward than did the email of 14 November 2007 informing the FSA of the outcome of the disciplinary proceedings.[22]In these circumstances I see no reasonably arguable prospect of success on the substantive ground of appeal against Judge Salter’s decision. Further, I am unimpressed by the argument that is addressed in relation to limitation. It seems to me that the nub of the complaint, however it may be dressed up by Mr Weare, was the notification to the FSA of the outcome of the disciplinary proceedings on 14 November 2007. Even if one takes into account also the email of 20 July 2007, the Claimant was, as the Judge found, aware of the fact of both emails at the time he received the FSA’s letter dated 11 November 2009. On a proper reading of the claim time began to run at the latest from that date.[23]Accordingly, the claim lodged on 15 May 2010 was lodged outside the primary three‑month limitation period. In view of the Claimant’s experience in the Tribunal system the Judge, in my opinion, was quite entitled not to extend time. Post‑script[24]It appears to me and, I think, to my colleagues that Mr Weare is seeking to prolong this matter for his own ends. His claims, the subject of these appeals, have no merit and the appeals are dismissed.