Ronald Maclean Drysdale v The Department of Transport (The Maritime and Coastguard Agency)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Barling,Lord Justice Christopher Clarke,Lady Justice Arden |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1083 |
| Docket Number | Case No: A2/2013/0703 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2014 |
[2014] EWCA Civ 1083
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge David Richardson, Mrs MY McArthur FCIPD, Ms G Mills CBE)
UKEAT/0171/12/LA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Christopher Clarke
and
Mr Justice Barling
Case No: A2/2013/0703
Mrs Daniela Drysdale ( as lay representative) for the Appellant
Mr Jeremy Burns (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 8 th July 2014
Introduction
On 18 October 2011, the second day of the hearing in the Employment Tribunal ("ET") of the Appellant's claim for unfair constructive dismissal, the Appellant's wife, Mrs Daniela Drysdale ("Mrs Drysdale"), who was, and is, the Appellant's lay representative, informed the ET that she wished to withdraw his claim. On the ET enquiring whether she was making an application for the Appellant's claim to be withdrawn, she said yes. The Respondent's counsel, Mr Jeremy Burns (who appears for the Respondent before us), then applied for the claim to be dismissed. After a short deliberation the ET unanimously granted the application. An order was also made requiring the Appellant to contribute towards the Respondent's costs.
The Appellant applied to the ET for a review of its decision (see paragraph 33 below), which was refused on 7 December 2011. On 28 March 2012 the Employment Appeal Tribunal ("EAT") (The Hon Mrs Justice Slade) granted the Appellant permission to appeal against the original decision of the ET. The EAT gave its judgment on 13 February 2013, dismissing the appeal. Permission to appeal that decision was refused on the papers, first by the EAT itself and then by a single Lord Justice. At a renewed oral hearing on 3 December 2013 Lord Justice Elias granted permission on the following ground:
"whether having regard in particular to the overriding objective and the fact that neither the claimant nor his representative were legally qualified, the Employment Tribunal erred in law in failing to take adequate steps to ensure that the claimant had taken a properly considered decision to withdraw the claim."
In his ruling Lord Justice Elias emphasised that he was granting permission only on this single limited point, and not on any of the other proposed grounds of appeal. That is the sole question now before us.
Before turning to that question, brief mention should be made of one other matter. In his skeleton argument for this appeal Mr Burns referred to section 9 of the Contempt of Court Act 1981 and submitted that the Appellant is in contempt of court by virtue of Mrs Drysdale and/or the Appellant having covertly recorded the proceedings in both the ET and the EAT without the permission of those tribunals. He pointed to the fact that the Appellant's substantive submissions rely upon very exact timings in relation to the hearing in the ET on 18 October 2011 and that these are obviously based on the recordings. Thus, it was argued, the instant appeal is part of a process enabled by information obtained in contempt of the lower tribunal then repeated in the EAT. The Court of Appeal should not afford the Appellant continuing access to a judicial process which he has seriously abused by those contempts.
Mrs Drysdale has made no secret of having made the recordings – indeed in correspondence with the Respondent's representatives she indicated an intention to rely upon the tapes in order to establish "serious discrepancies" between these recordings and the Respondent's statements at the EAT hearing.
However, at the outset of this appeal Mr Burns indicated that the Respondent did not intend to pursue this point. That seemed to us a sensible approach to take, the making of the recordings having been drawn to the attention of the EAT by the Respondent some time ago. The matter, therefore, need not concern us further.
Background to the Appellant's claims in the Employment Tribunal
Although the appeal is limited to the single point of law to which I have referred, in order to examine the point it is necessary to understand the factual and procedural context in which it arises.
The following is a brief and, I hope, uncontroversial summary of how this matter has come about.
The Appellant was employed by the Respondent as a marine surveyor with effect from 29 July 2000. Many years before that, in 1974, a trawler known as the Gaul had been lost with all its crew. There was an enquiry at the time and a further enquiry in 2004 after the wreck of the trawler had been discovered. The second enquiry reported in December 2004. The Appellant was dissatisfied with certain aspects of the report. He believed that certain hull fittings had design faults, details of which had not been properly presented to the second enquiry and which that enquiry had not recognised. He set out his concerns in a series of letters to the Respondent from July 2007. He also aired his concerns publicly. It was accepted by the Respondent that what the Appellant said in these letters amounted to public interest disclosures for the purposes of Part IVA and section 103A of the Employment Rights Act 1996 ("the 1996 Act"). These provisions are popularly known as the "whistle blowing" provisions of that Act.
The Appellant continued to work for the Respondent but in April 2009 he requested permission to work at home in order to assist Mrs Drysdale, who suffered from type 1 diabetes. His request was granted on a temporary basis, and this arrangement continued until 31 October 2009, when a further extension was refused by the Respondent on the grounds that it would not be tenable from an operational perspective. From then the Appellant was granted special unpaid leave until 4 January 2010, in order to enable him to make alternative arrangements for Mrs Drysdale's care. The Appellant returned to work on 8 January 2010 and once more asked to be allowed to work at home. This application was refused. The Appellant was then off work on sick leave, supported by a certificate for "stress at home". He remained on certified sick leave until he applied for voluntary early retirement, which was granted with effect from 15 July 2010.
Thereafter the Appellant began proceedings in the ET claiming, first, that he had been subjected to detriment contrary to section 47B on the 1996 Act by reason of making protected (public interest) disclosures, and second, that he had been constructively and unfairly dismissed contrary to section 103A of the 1996 Act, in that he had been dismissed wholly or principally for making protected disclosures. The latter claim required the ET to decide whether the Appellant was constructively dismissed, and if so whether the sole or principal reason for that dismissal was the making of the disclosures in question. The ET did not have to consider or decide whether those disclosures were or were not true.
By the time of the hearing in the ET with which we are concerned, the claim under section 47B had been held to be out of time, so that the ET had no jurisdiction to hear it. That ruling achieved finality when on a renewed application Lord Justice Mummery refused permission to appeal to the Court of Appeal.
Throughout all these proceedings up to and including the present appeal, Mrs Drysdale has acted as the Appellant's lay representative, writing letters, drafting applications, grounds of appeal and skeleton arguments, and appearing as an advocate on the Appellant's behalf before all the courts and tribunals involved. Mrs Drysdale impresses one as a highly intelligent and very articulate person who, although not legally qualified, has a better understanding of court procedures and substantive rules than many, indeed than most litigants in person or McKenzie friends.
The hearing in the ET on 17 and 18 October 2011
I now refer to what occurred at the substantive hearing of the Appellant's claim for unfair dismissal on 17 and 18 October 2011, which is central to the issue in the present appeal.
The order of events at the hearing can be gleaned from a number of sources. When granting permission to appeal to the EAT on 28 March 2012, Mrs Justice Slade took the view that the grounds of appeal on which she had granted permission would require findings to be made as to what had occurred at the hearing in the ET. She therefore made an order in the following terms (so far as relevant):
"…the Appellant must lodge…affidavits from him and his lay representative, Mrs Drysdale,… as to the circumstances in which the claim for unfair dismissal was withdrawn and whether or not that withdrawal was with the agreement and authority of the Appellant and the circumstances in which the claim was dismissed on withdrawal and whether the Appellant or his representative were present when the costs order was made and whether they had been notified that a costs order was to be considered.
Upon receipt by the [EAT] of such affidavits, … the [EAT] will ask the Employment Judge for comments in writing on the affidavits and on the following matters relating to the hearing on 18 October 2011 and the orders made:
(1) All the circumstances in which the claim for unfair dismissal was treated as withdrawn;
(2) Who sought to withdraw the claim and in what terms?
(3) If it was the Appellant's representative, in what condition did [she] appear to be when she sought to withdraw the claim?
(4) Was the Appellant asked to confirm that he wished to withdraw his claim?
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