Kell v Durham Police Authority

The court refused a renewed application for permission to appeal from an Employment Appeal Tribunal refusal. The Employment Tribunal had dismissed the claimant's claims for detriment and dismissal for protected disclosure and for disability discrimination, finding in particular that only one alleged disclosure (relating to an inspector's pocketbook) could arguably qualify but that it was not made in good faith, and that the true reason for dismissal was the claimant's long-term uncooperative absence and inability to perform police duties. The Court of Appeal concluded that the applicant had no real prospect of showing a material error of law by the tribunals below, that he sought to raise fresh or abandoned points that had not been properly pursued before the EAT, and that reopening evidence would be unfair to the respondent.

Background and parties:

• The appellant, Mr Philip Kell, was a former police officer who brought employment claims against Durham Police Authority arising from the termination of his employment in 2009.
• The Authority was represented at first instance; Mr Kell represented himself before the Employment Tribunal and was represented by legal aid counsel for the oral EAT challenge.

Procedural posture and nature of the application:

• The Employment Tribunal (ET) dismissed four claims and recorded withdrawal of a fifth by judgment of 27 January 2011.
• An initial paper sift by His Honour Judge McMullen QC concluded the proposed appeal had no reasonable prospect of success. On an oral challenge under rule 3(10) of the Employment Appeal Tribunal Rules 1993, His Honour Judge Peter Clark dismissed the application on 2 November 2011. Mummery LJ refused permission to appeal on the papers on 16 February 2012. This judgment concerns a renewed application to the Court of Appeal for permission to appeal.

Issues framed by the court:

• Whether there was any real prospect of success on arguable points of law, in particular whether the ET erred in law in its treatment of alleged protected disclosures under the Employment Rights Act 1996 (including sections 103A and 47B) and in its findings about good faith and causation.
• Whether the Court should permit re-opening of evidence or admission of fresh evidence that had not been advanced, or had been abandoned, before the EAT.
• Whether reasonable adjustments for the appellant's disability justified permitting the renewed appeal or re-opening the case.

Court's reasoning and conclusions:

• The Court accepted that the ET had made detailed findings of fact: most alleged disclosures were not qualifying and the one arguably qualifying disclosure (the inspector's pocketbook) was found to have been obtained and deployed without good faith. The ET also found that dismissal was for the applicant's uncooperative behaviour and incapacity to perform duties, not for protected disclosures or disability.
• The applicant had not identified cogently any legal error in those fact-based findings; an appeal against findings of fact does not ordinarily lie unless there is a material legal error. The EAT had correctly declined to look beyond the pocketbook point, applying the legal test for good faith (with reference to Street v Derbyshire Unemployed Workers' Centre [2004] IRLR 687).
• The applicant sought to adduce fresh evidence and to raise new or abandoned points, which the court would not permit since those matters could and should have been advanced earlier; reopening would be unfair to the respondent. While reasonable adjustments for disability are required, the applicant's self-certification that his disability accounted for omissions was insufficient to justify re-opening the case at this late stage.

Outcome:

• The Court refused permission to appeal to the Court of Appeal and dismissed the renewed application for permission.

The renewed application for permission to appeal was refused. The Court held that the Employment Tribunal had made detailed and permissible findings of fact (including that only one alleged disclosure could arguably qualify but it was not made in good faith, and that dismissal was for uncooperativeness and incapacity), the Employment Appeal Tribunal had correctly concluded there was no reasonably arguable point of law to pursue, and the appellant had no real prospect of showing a material legal error or of justifying the re-opening of evidence; accordingly permission to appeal was denied.

Employment Tribunal (Newcastle upon Tyne) judgment (sent with reasons 27 January 2011) dismissed four claims; His Honour Judge McMullen QC on paper sift directed no further steps on the proposed appeal; oral rule 3(10) challenge heard by His Honour Judge Peter Clark (EAT) on 2 November 2011, dismissed (UKEATPA/0038/11/RN); Mummery LJ refused permission on the papers on 16 February 2012; renewed application to the Court of Appeal refused on 20 June 2012.