Kuznetsov v Royal Bank of Scotland Plc

The Court of Appeal dismissed the appellant's challenge to the Employment Tribunal's refusal to allow amendments to plead a whistleblowing (protected disclosure) claim. The court reiterated that employment tribunals enjoy a broad case-management discretion and that an application to amend must be assessed by balancing the injustice of allowing the amendment against the injustice of refusing it, taking into account factors identified in Selkent Bus Co. v Moore and related authorities.

The tribunal was entitled to find that the proposed whistleblowing claims would constitute new causes of action, were out of time under section 111(2) of the Employment Rights Act 1996, and would add materially to the evidence and prejudice the respondent given the long delay. The court rejected the submission that the tribunal had misdirected itself by overestimating prejudice once the related "bonus avoidance" issue was in play, and it concluded any error was not material to the outcome.

The appellant was employed by the respondent from 25 October 2010 and dismissed for redundancy on 31 December 2011. He brought claims including unfair dismissal and in an "additional information" section alleged an oral promise of a £100,000 bonus for 2010–11. Over the course of case management and pre-hearing review hearings the appellant sought, years later, to amend his pleaded case to add whistleblowing claims that his dismissal related to either his complaint about non-payment of the bonus or to his refusal to accept a proposed relocation on worse terms.

The Employment Judge (EJ Glennie) refused permission to amend to add whistleblowing claims on the grounds that they were new claims requiring amendment, were out of time under section 111(2) of the Employment Rights Act 1996, would substantially increase issues and evidence going back to 2010–11, and would prejudice the respondent. The appellant appealed to the Employment Appeal Tribunal (EAT) where aspects were allowed to proceed to a full appeal, but HH Judge Eady QC ultimately upheld the refusal to permit the whistleblowing amendments. The appellant obtained permission to appeal to the Court of Appeal.

The Court of Appeal summarised the governing principles: tribunals have broad case-management discretion; applications to amend must balance injustice and hardship (Selkent); the appellate focus is on the ET's decision (Hennessy) and the EAT should generally not substitute its view for the ET's (Jafri). The central issues framed were (i) whether the ET misdirected itself by over-estimating prejudice and delay given that a "bonus avoidance" issue was to be considered and (ii) whether the ET failed to consider reasons for the late application.

The court rejected the second ground as without merit: the delay of almost three years was excessive and no satisfactory explanation was given for the late pleading. On the first ground the court accepted there was some misapprehension by EJ Glennie about the extent of prejudice, but concluded that on the whole of his reasoning (time-bar, delay, fresh cause of action and prejudice) he would have reached the same conclusion. The appeal was therefore dismissed. The court also refused the appellant's late application for a costs-limiting order under CPR 52.9A because it was not made "as soon as is practicable."

Appeal dismissed. The Court of Appeal held that the Employment Tribunal had not erred in law in refusing permission to amend to add whistleblowing claims. The tribunal was entitled to find the proposed claims were new, out of time under section 111(2) of the Employment Rights Act 1996, and would add materially to evidence and prejudice the respondent after a nearly three year delay; any misapprehension about the extent of prejudice was not material to the outcome.

The claim was originally heard in the Employment Tribunal with various case management and pre-hearing review decisions (including hearings before EJ Pearl, EJ Auerbach, EJ Deol and EJ Glennie). The appellant appealed to the Employment Appeal Tribunal (UKEAT/0089/15) where Langstaff J (paper sift) and HH Judge Serota QC considered aspects; a full EAT appeal was heard by HH Judge Eady QC who upheld the refusal to allow whistleblowing amendments. The appellant then obtained permission to appeal to the Court of Appeal (leave granted by Christopher Clarke LJ) and the appeal was dismissed by the Court of Appeal ([2017] EWCA Civ 43).