Kuznetsov v The Royal Bank Of Scotland

An Employment Tribunal must manage issues firmly, but it must not treat a record made at a strike-out hearing as a concluded list of issues when it was not made for that purpose. An unfair-dismissal claimant who has not conceded the employer’s asserted reason may test that reason and advance an identified positive alternative case. That does not itself create a new claim, although the employer is entitled to fair notice and the claimant bears an evidential burden for the alternative reason.

By contrast, a proposed protected-disclosure dismissal claim is a new cause of action requiring amendment. The Tribunal must consider limitation, the explanation for delay, the new legal and evidential issues, and relative prejudice. A refusal is permissible where the claim is substantially late, the claimant had the necessary information to plead it in time, and its addition would materially expand the proceedings.

The Claimant appealed two case-management rulings of the London Central Employment Tribunal, made by Employment Judge Glennie. He had brought an unfair-dismissal claim after the Respondent dismissed him for asserted redundancy.

The Tribunal excluded his proposed contention that the real reason for dismissal or selection for redundancy was a wish to avoid paying a promised bonus. It also refused permission to amend the claim to add protected-disclosure claims based on complaints about bonus payment and proposed relocation.

The central issues were whether the bonus-avoidance contention was an impermissible new case, and whether the refusal of the proposed whistleblowing amendment was a permissible exercise of discretion.

1. Appeal allowed in part. The EAT set aside the restriction on the Claimant’s unfair-dismissal case and substituted a direction permitting him to contend that dismissal was connected with the Respondent’s wish to avoid paying his bonus. The appeal against the refusal of the protected-disclosure amendment was dismissed.

2. The EAT accepted that appellate courts should be slow to interfere with Employment Tribunal case management. However, the decision concerning the bonus case was tainted by error. Employment Judge Deol’s record at the earlier strike-out hearing was not a list of issues. Treating it as one was an irrelevant consideration. The Tribunal also failed to take account of relevant matters: the ET1 did not concede redundancy as the reason for dismissal, and the Claimant had previously questioned whether the redundancy or his selection was a sham.

3. The Claimant could therefore test the Respondent’s asserted reason for dismissal. A positive alternative reason did not amount to a new claim. Although a claimant advancing such a case bears an evidential burden under Maund and must give the employer fair notice, the bonus allegation had been apparent from the ET1 and was raised further during the proceedings. Any delay in identifying the issue was not solely attributable to the unrepresented Claimant.

4. The protected-disclosure allegations were different. They were new causes of action and required amendment under Rule 29 of the ET Rules 2013. They were facially out of time. The material disclosed in August 2014 gave the Claimant no new information that made a protected-disclosure claim newly apparent. He had sufficient information to plead it when presenting the ET1.

5. The Tribunal was entitled to weigh the broader procedural history and the prejudice caused by adding distinct legal and evidential issues, including the nature of the alleged disclosures. Its refusal of the amendment was a permissible application of the Selkent principles.

• Employment Appeal Tribunal: allowed the appeal concerning the bonus-avoidance case and substituted a direction permitting that contention; dismissed the appeal concerning the proposed protected-disclosure amendment ([2015] UKEAT 0089_15_2907).
• London Central Employment Tribunal: Employment Judge Glennie excluded the bonus-avoidance contention from the list of issues and refused amendment to add protected-disclosure claims. The first ruling was set aside; the second was upheld.
• Earlier Employment Tribunal proceedings: Employment Judge Deol declined to strike out the unfair-dismissal claim. An appeal from that decision was dismissed by consent.