Meares v Medway Primary Care Trust

The court refused a renewed application for an extension of time to file an appellant's notice and refused permission to appeal. The applicant sought to challenge the Employment Tribunal's finding that a letter of 11 May 2007 was not a protected disclosure because it was not made in good faith. The Court of Appeal treated the time limit rules in CPR Part 52 as mandatory and rejected the applicant's excuse based on delay in obtaining a transcript and a fee-exemption procedural issue. On the merits the court held that the Employment Tribunal's adverse finding on motive was a finding of fact open to it on the evidence and therefore not a proper basis for appeal unless shown to be perverse or unsupported by evidence. The court also held there was no procedural unfairness in the Employment Tribunal deciding the good faith issue since the matter had been put to the claimant in cross-examination and in closing submissions and she had the opportunity to answer.

Background and procedural posture:

• The applicant, a state registered nurse, resigned on 9 March 2008 and succeeded on claims of constructive dismissal and breach of contract at the Employment Tribunal, but the ET rejected her claim that she had made a protected disclosure on 11 May 2007. The ET sent written reasons on 16 November 2009. The Employment Appeal Tribunal dismissed her appeal on 7 December 2010 (UKEAT/0065/10/JOJ). Mummery LJ refused permission to appeal on the papers on 12 April 2011. The applicant made a renewed application to the Court of Appeal for an extension of time and permission to appeal, heard by Rimer LJ on 18 July 2011.

Nature of the application: A renewed application for an extension of time to lodge an appellant's notice and for permission to appeal to the Court of Appeal against the EAT's dismissal of the protected-disclosure point.

Issues framed:

1. Whether the Court of Appeal should extend time for filing an appellant's notice under CPR Part 52.4(2).
2. Whether the proposed appeal raised arguable questions of law, in particular whether the Employment Tribunal erred in law by finding the disclosure was not made in good faith and whether it was procedurally unfair to decide that point when it had not been sufficiently put in issue at the hearing.

Court's reasoning:

• Time extension: the court applied CPR Part 52 time limits. The applicant filed 41 days late. The explanations offered (lack of transcript, fee-exemption communications) did not render it reasonably practicable to file within time. She had attended the EAT hearing, heard the oral judgment and so could have filed an appellant's notice within time, seeking an extension concurrently if necessary for the transcript.
• Merits and permission to appeal: the court examined the proposed grounds. The central ground attacked the ET's finding that the letter was motivated by personal antagonism and therefore not made in good faith (section 43C and qualifying disclosure under section 43B of the Employment Rights Act 1996). The court held the ET's finding was a factual conclusion open on the evidence; appeal is confined to questions of law under section 21(1) Employment Tribunals Act 1996 and there was no basis to treat the finding as perverse or unsupported. The court also held there was no procedural unfairness: the respondent raised motive in cross-examination and in closing submissions, the claimant answered and had counsel who could have sought an adjournment or objected; the EAT correctly found the issue had been aired.

Authorities and statutory provisions considered: The court considered CPR Part 52.4(2), section 111(2) Employment Rights Act 1996 (but held that statutory test did not apply to Court of Appeal time limits), the Public Interest Disclosure provisions in sections 43A, 43B and 43C of the Employment Rights Act 1996, and the appellate restriction in section 21(1) of the Employment Tribunals Act 1996. The Court of Appeal applied the guidance in Street v. Derbyshire Unemployed Workers Centre to the question of 'good faith'.

The application for an extension of time and for permission to appeal was refused. Rimer LJ refused to extend the 21-day limit under CPR Part 52 because the applicant had no good reason for the 41-day delay; on the merits there was no real prospect of success because the Employment Tribunal's finding that the disclosure was not made in good faith was a factual conclusion open on the evidence and there was no procedural unfairness in the ET's dealing with motive.

Appeal from the Ashford Employment Tribunal (written reasons sent 16 November 2009) to the Employment Appeal Tribunal (decision dismissing the appeal on 7 December 2010; UKEAT/0065/10/JOJ). Permission to appeal to the Court of Appeal was refused on the papers by Mummery LJ on 12 April 2011. The renewed application for extension of time and permission to appeal to the Court of Appeal was heard and refused by Rimer LJ on 28 July 2011 ([2011] EWCA Civ 897).