Dandpat v University of Bath & Ors

The Court of Appeal refused renewed permission to appeal against interlocutory decisions of the Employment Appeal Tribunal and the Employment Tribunal. The appellant sought interim relief under section 128 of the Employment Rights Act 1996 to restore his contract pending a full hearing of his complaint of constructive dismissal said to arise from protected disclosures. The court held that applications for interim orders are summary in nature and the tribunal was entitled to take a broad view of the materials before it. Given stark conflicts of evidence it was not perverse for the Employment Tribunal to conclude that the applicant was not likely to succeed on the constructive dismissal/protected disclosure point.

The Court affirmed that the Employment Tribunal had read the papers, that it was not obliged to hold a full evidential hearing on an interim application, and that delay caused by repeated interlocutory appeals was contrary to the applicant's interests. A second challenge about refusal to adjourn was abandoned as no longer a live issue.

Background and claims:

• The appellant began fixed-term employment with the University of Bath on 1 November 2007 as a knowledge transfer partner. He alleged early physical assault and racial abuse by staff at the placement employer and complained of inappropriate remarks about his wife.
• The University raised disciplinary concerns about his conduct, including that he had recorded a disciplinary meeting. The appellant subsequently suffered mental ill health, took sick leave and later resigned with notice; his employment ended on 26 May 2009.
• He brought Employment Tribunal proceedings asserting, among other matters, direct and indirect racial discrimination, bullying, harassment, victimisation, breach of contract and constructive unfair dismissal. He applied for interim relief under section 128 of the Employment Rights Act 1996 seeking restoration of his contract pending final resolution.

Procedural history:

• The Employment Tribunal refused interim relief on 29 July 2009.
• The appellant appealed to the Employment Appeal Tribunal, where the President (Underhill J) dismissed the appeal on 10 November 2009 (Rule 3.10 procedure).
• Applications for permission to appeal to the Court of Appeal were refused on paper by Maurice Kay LJ and then by Arden LJ, but a rehearing was directed after the appellant received death threats.
• The rehearing before Lady Justice Smith took place on 11 June 2010.

Issues framed by the court:

• Whether the Employment Tribunal erred in refusing to make interim relief under section 128 ERA 1996.
• Whether the tribunal's decision was perverse given the appellant's evidence and whether it had properly considered the written material.
• Whether an adjournment refusal remained a live issue.

Court’s reasoning and disposition:

• The court emphasised that interim applications are summary proceedings and are not intended to produce full findings of fact or credibility assessments. Where there are stark conflicts of evidence the tribunal is not required to resolve them on an interim application.
• The Employment Tribunal had carefully read the papers and reasonably concluded on the available material that it was not likely the applicant would establish that his constructive dismissal resulted from protected disclosures. That conclusion was not perverse.
• The court encouraged the appellant to pursue a prompt full hearing rather than further interlocutory appeals. The separate challenge to the refusal to adjourn a pre-hearing review was no longer a live issue and was withdrawn.

The applications for permission to appeal were refused and the appeal dismissed. The court held that the Employment Tribunal, on summary consideration, was entitled to conclude that it was not likely the applicant would succeed in proving constructive dismissal arising from protected disclosures; the tribunal had read the material and was not required to resolve stark conflicts of evidence on an interim application. A second challenge about refusal to adjourn was withdrawn as not a live issue.

Interim relief refused by the Employment Tribunal on 29 July 2009. Appeal to the Employment Appeal Tribunal (President Underhill J) dismissed on 10 November 2009 under Rule 3.10. Permission to appeal to the Court of Appeal refused on paper by Maurice Kay LJ; Arden LJ refused permission but directed a rehearing after an intervening incident. Rehearing before Lady Justice Smith on 11 June 2010 led to refusal of the renewed application for permission to appeal; a separate challenge to refusal to adjourn was withdrawn as no longer live.