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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Uphill v Colas Ltd [2004] UKEAT 0323_04_0912 (9 December 2004) URL: https://www.bailii.org/uk/cases/UKEAT/2004/0323_04_0912.html Cite as: [2004] UKEAT 323_4_912, [2004] UKEAT 0323_04_0912 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE RICHARDSON
MR D EVANS CBE
MRS J M MATTHIAS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
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 |
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
Background
February 2002
"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."
The Tribunal's Decision
"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
The Application in January
Ground of Appeal (1) Delay
"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 .
(2) Resignation
(3) Whistleblowing
"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.]
"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."
"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.
Returning to delay
(4) The application to call further evidence and review