Meares v Medway Primary Care Trust

Time limits for appeals from the Employment Appeal Tribunal are governed by the Civil Procedure Rules 1998, not by the statutory test applicable to presenting an unfair dismissal claim. Litigants in person must comply with the same appellate time limits as represented parties. A missing transcript does not ordinarily prevent timely filing where the proposed grounds are already known. A tribunal may decide an issue raised during the hearing if the affected party has a fair opportunity to address it. A finding about motive is a finding of fact, challengeable only for a recognised error of law such as lack of evidential support or perversity.

The claimant, a state registered nurse, succeeded in part before the Employment Tribunal on claims of constructive unfair dismissal and breach of contract, but failed on claims based on an alleged protected disclosure in a letter concerning workplace bullying and harassment. The Tribunal found that the disclosure was not made in good faith because it was motivated by personal antagonism towards the claimant’s line manager.

The Employment Appeal Tribunal dismissed the claimant’s appeal by order dated 7 December 2010 (UKEAT/0065/10/JOJ). It held that the good-faith issue had been fairly raised during cross-examination and in closing submissions. The claimant sought an extension of time and permission to appeal to the Court of Appeal.

1. Application refused. The application for an extension of time and permission to appeal was refused. The appellant’s notice was 41 days late. The statutory reasonably practicable test in section 111(2) of the Employment Rights Act 1996 did not govern an appeal to the Court of Appeal. The applicable time limit was governed by rule 52.4(2) of the Civil Procedure Rules 1998.
2. The absence of the EAT transcript did not justify the delay. The applicant had heard the oral judgment and knew the arguments she wished to advance. She could have filed the appellant’s notice and sought additional time for the supporting skeleton argument. The fee-exemption issue did not justify the further delay.
3. The Employment Tribunal’s finding that the claimant was solely or predominantly motivated by personal antagonism was a finding of fact. There was no basis for treating it as unsupported by evidence or perverse. Section 21(1) of the Employment Tribunals Act 1996 confined appeals to questions of law.
4. Applying the principles in Street v Derbyshire Unemployed Workers Centre [2004] EWCA Civ 964, the Tribunal had to assess the evidence and decide whether the disclosure was made in good faith. It was not required to quantify every competing motive or explain their relative proportions. The intemperate and retaliatory letter supported the finding that personal antagonism was the sole or predominant motive.
5. There was no procedural unfairness. Although good faith was not expressly pleaded in advance, the claimant was questioned about the motive and character of the letter, and the respondent’s closing submissions expressly relied on lack of good faith. She was represented by counsel, who could have objected, sought an adjournment, recalled evidence or made further submissions. The principles in Woodhouse School v Webster [2009] EWCA Civ 91 did not require a different result, and the case was distinguishable from Lucas v Chichester Diocesan Housing Association Ltd UKEAT/0713/04/DA.
6. The Court declined to reopen points abandoned before, or raised for the first time after, the EAT. The ordinary potential consequence of pursuing a dismissed appeal was noted to be an order for the unsuccessful appellant to pay the respondent’s costs.

• Court of Appeal (Civil Division) — The renewed application for an extension of time and permission to appeal was refused.
• Employment Appeal Tribunal — By order dated 7 December 2010, the EAT dismissed the claimant’s appeal from the Employment Tribunal’s rejection of her protected disclosure claims (UKEAT/0065/10/JOJ).
• Ashford Employment Tribunal — The Tribunal rejected the claim that the letter of 11 May 2007 was a protected disclosure and dismissed the related constructive dismissal and detriment claims, while the claimant succeeded in part on other claims.