Afolabi v London Borough of Barking & Dagenham

This is a renewed application for permission to appeal following refusal on paper by Dame Janet Smith.

The applicant was employed by the respondent, to which I shall refer as “the Council”, as what is known as a “floating support team leader” in the tenancy sustainment team. On 30 May 2008, she resigned from her employment with effect from 30 June. On 27 September 2008 she began proceedings in the Employment Tribunal claiming constructive unfair dismissal, race and age harassment and detriment as a result of making a protected disclosure.

By virtue of section 32 of the Employment Act 2000 an employee was not entitled at that time to present a claim to an Employment Tribunal for detriment resulting from a protected disclosure (sometimes called, “whistleblowing”) unless he had complied with the prescribed grievance procedure. In its response to the claim given in its ET3 form the Council failed to take any point about compliance with the grievance procedure. In response to the question, “Has the substance of this claim been raised by the claimant in writing under a grievance procedure?” it ticked the box marked ‘Yes’. That may have been because one of the claims, at least, had been subject to a grievance procedure but this one had not. The Tribunal did not take the point of its own motion based on the documents before it, which is one of the possibilities contemplated by section 32(6) of the Employment Act.

At the opening of the hearing, however, the Council sought to have the claim for whistleblowing struck out on the grounds that the applicant had not complied with the requirements of section 32 by invoking the grievance procedure. That was the first time the applicant had been told that the point was going to be taken against her and, understandably, perhaps, her representative was taken by surprise. Accordingly, the Tribunal adjourned the proceedings until 10.00 am the next morning to enable them both to take stock.

When the hearing resumed, the applicant argued that since the respondent had not taken the point in its ET3 form, the Tribunal had no jurisdiction to reject her claim and in support of that argument, she relied on the decision in DMC Business Machines Plc v T Plummer (unreported, 2006). This time the Council was taken by surprise and in order to enable it to consider that matter, the hearing was adjourned again.

On the morning of the third day there was argument about the course the Tribunal ought to adopt, but the Council did not formally seek permission to amend its ET3. Having considered the relevant authorities, the Tribunal decided that the Council could raise the question of compliance with section 32 at any time and in whatever form the Tribunal considered fair. Ultimately, therefore, the Tribunal decided that matter should be governed by whether the applicant could fairly be expected to deal with the point. Having ascertained that the claim for whistleblowing had not been the subject of the grievance procedure (and there does not seem to have been any dispute about that), the Tribunal struck it out on the grounds that under section 32 of the Act it had no jurisdiction to consider it.

The applicant appealed to the Employment Appeal Tribunal, which held that section 32(6) itself imposed no procedural requirements on raising a point of that kind, which could be raised at any time before a Tribunal began to consider the merits of the claim, provided that the claimant was given a fair opportunity of dealing with it. It therefore dismissed the appeal.

The applicant now seeks permission to appeal to this court, the grounds of appeal being; (i) that the EAT had failed to recognise that the Council wished to, and indeed needed to, depart from its pleaded case (having admitted in its ET3 that the claims had been the subject of the grievance procedure), but had not, in fact, made an application to make the necessary amendment and had not been given permission to do so; (ii) that the EAT had failed to understand the true effect of section 32(2); (iii) that there are conflicting decisions in the EAT itself on whether a point of this kind can be raised for the first time at the hearing, and if so, how that question should be determined; (iv) that since the point had not been raised in the pleadings in this case or, indeed, at the previous stages when case management directions were being given and the list of issues was being determined, it would be contrary to the overriding objective to allow the Council to take the point at that stage; and (v) that the Tribunal had been wrong not to take into account the fact that the Council had not complied with the procedural regulations applicable to Employment Tribunals. For all these reasons it is said that the EAT had been wrong not to set aside what is accepted to have been a decision made by the Employment Tribunal in the exercise of its discretion.

As a rule, justice is better served by allowing disputes to be deciding on the basis of all relevant facts and arguments, provided neither party is put at an unfair disadvantage. In a case of this kind, therefore, where a defence is raised for the first time at the hearing, the Tribunal will need to take great care to ensure that the claimant has a fair opportunity of dealing with it, both in terms of evidence and argument. Subject to that, however, whether to allow a new point to be taken is a matter within the discretion of the Tribunal. Compliance with rules and procedures is, undoubtedly, important but is secondary to the need to do justice as between the parties. In my view, there is no real force in the points relating to pleading, compliance with rules and so on, all of which the Tribunal has the power to dispense with if it considers it appropriate to do so.

The main criticism made of the Tribunal's decision in this case is that it failed to consider the fact that a considerable amount of time had passed between the institution of the proceedings and the beginning of the hearing, in the course of which the claimant had spent time and money preparing her case and the issues to be determined by the Tribunal had been formulated. It is said that that is something which the Employment Tribunal did not consider and that this court should take the opportunity to re-state the principles which apply in that respect. However, I think the Tribunal was well aware of the need to ensure that the claimant was not prejudiced by the fact that this defence was raised at the last minute. In order to enable the claimant to assess the position, it adjourned the hearing for a day to enable her to consider and deal with the new point. No suggestion was made when the hearing was resumed, that she was unable to do so or that there was any real dispute about whether the grievance procedure had been followed.

Another way in which the case is put involves an analysis of the Tribunal's jurisdiction and my attention has been drawn to the case of Raghib Ahsan v Matt Carter [2005] EWCA Civ 990, in which there is discussion about the distinction between what is described as “constitutive jurisdiction” and “adjudicative jurisdiction”. I do not think it necessary to go into that question in any detail, because it is clear from section 32(6) of the Act, and indeed is accepted by Mr Edwards, that if the issue of failure to comply with the grievance procedure is raised the Tribunal undoubtedly has jurisdiction to consider it, which is what it did in this case.

In this case, the Tribunal exercised its discretion in favour of allowing the point to be taken. It was satisfied that the applicant had a reasonable opportunity to deal with it. It found that the section had not been complied with and it therefore struck out the claim. The EAT held that it was entitled to do so, relying on a series of authorities which emphasise that there is no particular time by which the point must be raised before the tribunal embarks on a consideration of the merits, and that the real question is whether it can be raised without injustice to the other side. The Employment Appeal Tribunal held that the Employment Tribunal was entitled to take the course it did and, in my view, there is no real prospect of persuading this court to a different view.

The submission that there are conflicting authorities within the Employment Appeal Tribunal really relates to the question of the amendment of the ET3 and to the approach that Employment Tribunals should take to a late application of this kind. These were essentially matters of procedure which lie in the discretion of the Tribunal. As I have sought to emphasise, what really matters in these cases is that the other party should have a fair opportunity of dealing with the point and that is where the authorities now stand.

In my view, there is no real prospect of persuading this court that the EAT’s decision to uphold the decision of the Employment Tribunal should be overturned and for those reasons, I refuse permission to appeal.