Niekrash v South London Healthcare NHS Trust

The Court of Appeal refused permission to appeal against the Employment Appeal Tribunal's dismissal of the claimant's appeal on aggravated damages and refused to extend time for an earlier EAT order, while granting a limited extension of time to pursue an appeal against the EAT order dated 7 March 2012 but nonetheless refusing permission to appeal that order. The court held that the Employment Tribunal had applied the correct legal test for aggravated damages (conduct that is high-handed, malicious, insulting or oppressive) and that the tribunal's evaluative conclusion that the respondent's conduct did not merit aggravated damages was a matter of fact and evaluation for the ET, not an error of law. The court also held that the EAT was correct to say a tribunal is not required to consider factors not properly put before it and that to overturn the ET on this point would require a perverse decision standard (an "overwhelming case").

This is a renewed application by Mr Ramon Niekrash for extensions of time and for permission to appeal to the Court of Appeal against two Employment Appeal Tribunal (EAT) orders arising from his whistleblowing (protected disclosure) claims against his employer, the South London Healthcare NHS Trust. The underlying Employment Tribunal (ET) had found detriment from exclusion and awarded compensation for injury to health, reputational loss (£15,000) and loss of private practice income (£2,568), but rejected a claim for aggravated damages.

The procedural history: Judge Richardson (EAT) by a rule 3(10) hearing permitted a full appeal on whether the ET had erred in not giving proper reasons for rejecting aggravated damages; a three‑member EAT (Judge Birtles and members) dismissed that appeal on 7 March 2012. The appellant filed a combined appellant's notice on 22 May 2012 seeking to challenge both EAT orders but was late in respect of both (over ten months late for the 6 June 2011 order and seven weeks late for the 7 March 2012 order).

Issues framed by the court:

• Whether to extend time for filing the appellant's notice in respect of the two EAT orders;
• Whether permission to appeal should be granted to challenge the EAT's dismissal of the appeal on aggravated damages;
• Whether the ET committed an error of law by failing to consider particular factors or give adequate reasons in rejecting aggravated damages.

Court's reasoning and outcome:

• Time extension: the court refused to extend time for challenging Judge Richardson's 6 June 2011 order because the applicant offered no explanation for the long delay. It granted a limited extension for the 7 March 2012 order on the basis of the explanations given in the appellant's notice but only reluctantly.
• Merits/permission: the court analysed the ET's approach to aggravated damages, noting the ET directed itself correctly to the test (high‑handed, malicious, insulting or oppressive conduct) and found no malice; the ET awarded compensation for the detriment it found. The Court of Appeal held that the ET's evaluation that the Trust's conduct did not amount to aggravated conduct was a factual evaluative judgment for the ET and not an error of law. To succeed on appeal, the applicant would have had to show that the ET's decision was perverse to the extent that no reasonable tribunal could have reached it (the "overwhelming case" standard as in Yeboah v Crofton), which he could not do.
• Procedure and scope of tribunal review: the court agreed with the EAT that tribunals are not required to search the record for every possible factor not advanced by the parties; the ET need consider the matters that were properly put before it.

The court therefore refused permission to appeal against both EAT orders (and refused to extend time in respect of the earlier order), while allowing only a limited extension of time for the 7 March 2012 order but denying permission to appeal on its merits.

The Court refused permission to appeal against the EAT's orders and refused to extend time for the earlier EAT order; it granted a limited extension of time for appealing the 7 March 2012 EAT order but refused permission to appeal that order. Rationale: the ET applied the correct legal test for aggravated damages, its evaluative conclusion that the respondent's conduct did not merit aggravated damages was a factual judgment not an error of law, and the appellant had no real prospect of establishing the required perversity (an "overwhelming case").

Appeal from Employment Appeal Tribunal (orders dated 6 June 2011, sealed 16 June 2011, and 7 March 2012, sealed 7 March 2012). Mummery LJ refused permission to appeal on the papers on 6 August 2012. EAT decision reported at [2012] UKEAT 0252_11_0703. This renewed application to the Court of Appeal dated 22 May 2012 resulted in the Court's judgment on 14 February 2013.