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Wilkinson v University of Lincoln [2010] EWCA Civ 1075

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Keywords • practice and procedureprotected disclosure

Renewed application for permission to appeal decision by the EAT which dismissed an appeal against the ET judgment relating to the applicant’s claim of unfair dismissal and discrimination. Application adjourned.

The applicant had brought claims of unfair dismissal and discrimination against the respondent, which were dismissed at the ET. The applicant then claimed that the ET had failed to take into account her complaint based on public interest disclosure and appealed to the EAT. The EAT dismissed the appeal since the judge could not find any question of law arising from the decision of the Tribunal. The EAT judge said that no issue of public interest disclosure had ever been before the Employment Tribunal so they were not required to consider such a claim. The applicant was then refused permission to appeal to the Court of Appeal because the appeal had no real prospect of success and the claim consisted of attempts to re-open matters which had already been decided. In this renewed application the applicant maintained that the issue of public interest disclosure had been before the EJ at the pre-hearing review, and if this complaint was established, she would win her claim for automatic unfair dismissal.

The Court of Appeal judge had the employment tribunal decision before him, which made no mention of public interest disclosure. He also had the judgment of the EAT which said that the reason for the lack of reference to the public interest disclosure issue was because it was not listed for hearing at the pre-hearing review stage. Unfortunately no copy of the document defining the issues discussed at the pre-hearing review was available. On the other hand the judge had the word of the applicant that it had been an issue before the Tribunal and they did not deal with it. The judge decided that he was unable to decide the case until he had all the evidence before him, and ordered the applicant to obtain a copy of the pre-hearing review document so that the case could be re-listed on another date. The application was thus adjourned.

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Case No: A2/2010/0528

Neutral Citation Number: [2010] EWCA Civ 1075

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(HHJ PETER CLARK)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Thursday, 12 August 2010

Before:

LORD JUSTICE MUMMERY

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Between:

WILKINSON (Applicant)

 - and -

UNIVERSITY OF LINCOLN (Respondent)

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(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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The Applicant appeared in person.

The Respondent did not appear and was not represented.

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Judgment

(As Approved by the Court)

Crown Copyright ©

Lord Justice Mummery:

1. This is a renewed application for permission to appeal. The application is made by Ms Carol Wilkinson in person. The decision which she wishes to appeal is that of the Employment Appeal Tribunal, which had dismissed her appeal, for reasons given by His Honour Judge Peter Clark sitting alone at the appeal tribunal on 20 January 2010. Ms Wilkinson did not appear and was not represented at that hearing because of ill-health.

2. Judge Peter Clark said the case was listed and that he had received an email saying that Ms Wilkinson was not well enough to travel to London to present her case and asked that it be considered on paper. That, Judge Clark did. He said in his judgment that the appeal had not any real prospect of success. He said that, in the context that appeals from employment tribunals to the appeal tribunal and to this court can only be brought on questions of law, he was not able to find any question of law arising from the decision of the tribunal on Ms Wilkinson's claims for unfair dismissal and discrimination.

3. Ms Wilkinson then sought permission to appeal from this court and that was refused on paper by Sir Richard Buxton on 13 May 2010. He did not think that the appeal had any real prospects of success, in that it consisted of attempts to re-open matters that had been decided and it was not demonstrated that there were grounds for a further appeal.

4. The matter came before me this morning, and Ms Wilkinson began by explaining that the first question she wished to raise was that the employment tribunal had not taken into account her complaint based on public interest disclosure, which, if established, would result in a case of automatic unfair dismissal. I pointed out to her that I could not find in the decision of the employment tribunal (which was sent to the parties on 1 July 2009) any consideration of a complaint of public interest disclosure. The detailed reasons are organised under headings starting with "the issues and procedural background", in which reference is made to the definition of the issues by the presiding employment judge, sitting alone at a pre-hearing review followed by case management discussion on 24 November 2008. I mention at this stage that no copy of the document defining those issues at the pre-hearing review is included in the bundle for the court.

5. The reasons of the employment tribunal, which dismissed Ms Wilkinson's claims in their entirety, proceeded under other headings of "the hearing and evidence considered"; "the attitude of the claimant"; "findings of fact on the issues"; "conclusions so far"; "the disability discrimination"; "race discrimination"; "breach of contract/unlawful deduction of wages" and "post-victimisation reference issues". I was unable to find any reference in those reasons (which run to 14 pages) to public interest disclosure, nor was Ms Wilkinson able to take me to any passage that referred to them. She said her complaint was that the employment tribunal had not taken account of it. She referred me to her Amended Particulars of Claim in which there are undoubted references in the tabulated form of the complaints to protected disclosure. That appears a number of times in the third right-hand column of the table. I pointed out to her that in paragraph 6 of his judgment Judge Peter Clark said (last two sentences of the paragraph):

"Finally, no issue of public interest disclosure was before the Employment Tribunal. They were not required to consider such claims following the pre-hearing review held in this case."

6. My understanding of that is that there must have been documents before Judge Clark, on the basis of which he was asked by Ms Wilkinson to consider her appeal, which showed that, at the pre-hearing review when the list of issues was drawn up, protected public interest disclosure was not included as an issue. Ms Wilkinson tells me that she disputes that. She did appear at the pre-hearing review and she says it was not ruled out as an issue for the hearing, which was held by the employment tribunal on 15 and 16 June 2009.

7. I have informed Ms Wilkinson that, as she raises this point as a question of law arising from the way in which the employment tribunal dealt with her case and as it is unclear from the papers what the position was, I am unable to proceed to make a decision today on whether permission should be granted for her appeal. At the moment I have the employment tribunal decision, which makes no mention of public interest disclosure. And I have the judgment of Judge Peter Clark, which says that the reason for that is that it was not in issue and it was not in issue because of the way in which the issues had been listed for hearing by the tribunal at the earlier pre-hearing review stage. On the other hand I have the word of Ms Wilkinson that it was in issue before the tribunal and the tribunal did not deal with it. She relies on the Amended Particulars to support her case that it was an issue and she has also referred me to some correspondence and to her undated submissions, which, she tells me, although they have a heading of an Employment Appeal Tribunal reference, were prepared for the hearing in the employment tribunal. She points out that they contain references to public interest disclosure. The Particulars of Claim (which are amended) are at pages 31 and following of the bundle. Ms Wilkinson also referred me to her typed out submissions, which she says did make it clear that she was making a public interest disclosure complaint.

8. I am, therefore, left in this rather unsatisfactory position that I am unable to make a final decision on this application until I have sorted out what the position was at the pre-hearing review. I asked Ms Wilkinson for a copy of the pre-hearing review document (as it was not included in the bundle) and she has told me that she does not have it with her and that it was not included in the bundle, because of her understanding from the Civil Appeals Office of what was to be included in a bundle limited to 100 pages. So, in the light of the obscurity about what was in issue before the employment tribunal I am forced to adjourn this application.

9. It will have to be re-listed at another date and I give a direction that within seven days of today Ms Wilkinson supplies to the Civil Appeals Office a copy of the pre-hearing review documentation, in particular the list of issues that was made at the pre-hearing review for determination by the employment tribunal at the hearing which took place in the following June. If there are any other relevant documents which Ms Wilkinson intends to rely on, in addition to what is in the bundle, they should also be supplied to the Civil Appeals Office within seven days. It will then be for the office to re-list the application for hearing.

10. I make it clear that at this stage I am not able to say whether or not this proposed appeal has a real prospect of success, though I have explained to Ms Wilkinson what the limitations are on appeals proceeding in this court. I pointed out to her, first, that there can only be appeals on issues raised by an employment tribunal decision in relation to questions of law. This court is an appeal court; it does not re-hear or re-decide the facts of the case. Secondly, I pointed out that permission can only be given if the proposed appeal has a real prospect of success. There is no point in cases proceeding to a full appeal before three appeal judges and with the other side being present if they have no real prospect of succeeding.

11. Following on that, I also pointed out to Ms Wilkinson a third point, and that is that at present the rules as to the cost of legal proceedings in this court are not the same as the rules that apply in the tribunals. The normal rule which applies in this court is that, if an appeal is brought and fails, then the unsuccessful party will normally be ordered to pay the cost of the successful party. I mention those now so that there should be no misunderstanding at a later stage as to the basis on which the application is being heard and the possible basis on which the application would be granted.

Order: Application adjourned