Kuznetsov v The Royal Bank of Scotland Plc

An amendment introducing a whistleblowing dismissal claim ordinarily advances a new cause of action. It is not merely further detail of an ordinary unfair dismissal claim where it raises additional issues about the alleged protected disclosures, the employer’s knowledge and the reason for dismissal.

When deciding whether to permit an amendment, an employment tribunal must assess all circumstances and balance the injustice and hardship on each side. Material matters include the nature of the amendment, limitation, the reason for delay and the additional evidential and procedural burden. The factors are not exhaustive or a tick-box exercise.

An appellate court may uphold a decision despite an error of law where it can robustly conclude that the error was immaterial and the same result was inevitable.

The appellant was dismissed for redundancy and brought claims including unfair dismissal. Nearly three years after presenting his claim, he sought to advance claims that he had been dismissed for making protected disclosures concerning an unpaid bonus and a proposed relocation.

Employment Judge Glennie refused permission to amend. He held that the proposed whistleblowing claims were new, substantially out of time, and unfairly burdensome to the respondent. The Employment Appeal Tribunal, HH Judge Eady QC, upheld that ruling in UKEAT/0089/15, although it held that the appellant could pursue an unfair-dismissal contention that the respondent had dismissed him to avoid paying a bonus.

The appeal concerned whether the tribunal’s assessment of the amendment applications was legally flawed because of the overlap between the bonus-avoidance contention and the bonus whistleblowing claim, and because of the delay in the litigation.

1. Appeal dismissed. The proposed whistleblowing claims required amendment. A claim that dismissal was for making a protected disclosure is not ordinarily encompassed by an unparticularised unfair dismissal claim.

2. The tribunal correctly applied the amendment principles in Selkent. The claims were made almost three years after the original claim, were substantially out of time, and no explanation justified their late introduction. The appellant had the necessary facts when he presented the original claim. A claim form is not a preliminary document which may later be augmented at will.

3. The whistleblowing claims were not simply a new label for facts already in issue. Even allowing for the bonus-avoidance contention, they required investigation of whether, when and to whom disclosures were made; whether they were made in good faith; whether the decision-makers knew of them; and whether they were the principal reason for dismissal. The relocation claim had no overlap with the bonus-avoidance contention.

4. Employment Judge Glennie had overstated the additional prejudice arising from evidence relevant to the bonus issue. That error was immaterial. The other factors, particularly the fresh and very late claims, absence of justification for extending time, and additional issues, meant that he would inevitably have refused the amendment. The EAT was therefore entitled to uphold the result.

5. The court added, obiter, that the present authorities generally require the EAT to remit after identifying a material legal error unless the limited Jafri exceptions apply, absent the parties’ consent. In case-management appeals the EAT should seek that consent in advance where remittal may arise.

6. The application for a costs-limiting order under CPR 52.9A was refused. The requirement to apply as soon as practicable was mandatory, and the extensive delay was not excused by ignorance of the rule or other litigation.

• Court of Appeal (Civil Division): Dismissed the appeal and upheld the refusal to permit the late whistleblowing amendments.
• Employment Appeal Tribunal: HH Judge Eady QC dismissed the appeal concerning the whistleblowing amendments, while allowing the appellant to advance the bonus-avoidance contention within his unfair dismissal claim: UKEAT/0089/15.
• Employment Tribunal: Employment Judge Glennie refused permission to amend the claim to add the whistleblowing causes of action.