Marc Delehanty recently appeared as sole counsel in the Court of Appeal representing Mr A K, a former City banking analyst, in his dispute with his ex-employer, RBS. The appeal concerned whether or not the tribunals below had erred in refusing him permission to amend his claim of unfair dismissal so that he could bring allegations that he had been dismissed for making protected disclosures concerning breaches of contract by the Bank (i.e., whistleblowing). Judgment was handed down on 31 January 2017.
Mr A K v The Royal Bank of Scotland plc  EWCA Civ 43
In early 2012, the Appellant presented an ET1 claim form in the Employment Tribunal (“ET”), bringing a number of claims against RBS, including a claim of unfair dismissal. However, his claim form did not set out full particulars as to why he considered the dismissal to be unfair. The Bank’s defence was to contend that he had been fairly dismissed for redundancy. Thereafter followed a long period in which there were various interim hearings (including an appeal to the Employment Appeal Tribunal (“EAT”)) at which the Bank sought to strike-out several of the claims brought by the Appellant. After that aspect of proceedings had concluded – some two and a half years after the claim was first presented – a case management hearing was convened at which the parties presented rival draft list of issues for the ET’s approval.
By his draft list of issues, the Appellant set out a positive case as to the reason(s) for his dismissal, which included: (i) to avoid paying him a bonus (the “bonus avoidance ground”); and, (ii) because he had made protected disclosures in the form of grievances about the failure to pay him a bonus and/or a proposal to relocate him to a foreign branch of RBS.
The ET did not permit either (i) or (ii) to be included in the list of issues. On an appeal to the EAT, HHJ Eady QC made two separate decisions: first, the appeal in respect of the bonus avoidance ground was allowed; and, secondly, the appeal against the refusal of the whistleblowing amendment application was dismissed. The Appellant appealed the latter decision.
The basis of the appeal was that the ET’s original decision to refuse the whistleblowing amendment application could not stand in light of the EAT’s decision to permit the Appellant to advance the bonus avoidance ground as a possible reason for his dismissal. The argument ran that: (a) the effect of the successful part of the EAT appeal was to broaden the scope of the unfair dismissal claim; (b) in consequence, the ET’s original analysis of the potential prejudice to the Bank if the whistleblowing amendment were permitted (e.g., in respect of disclosure and evidence required) must have been based upon a mistaken premise as regards the existing claim; and, (c) therefore, the decision on the amendment application stood to be retaken.
The Court of Appeal (Elias and Lewison LJJ) accepted arguments (a) and (b), finding that the ET judge “did make his assessment without properly appreciating that the potential prejudice to the respondent was not as serious as he had assumed”. The Court also acknowledged that it was bound by the previous case of Jafri v Lincoln College  QB 781 to the effect that it could not itself remake the decision on the amendment application.
Nevertheless, the Court dismissed the appeal. Applying a “robust and realistic” approach to the materiality of the error of law in question, the Court decided against remittal of the amendment application to the ET, and found that, even without the error of law, the ET’s conclusion would not have changed.
In addition, the Court also found that there had been no error of law in the ET not excusing the delay in making the amendment application – the argument on behalf of the Appellant was that, notwithstanding the two and a half year timeframe, the prejudice was limited given that the application was made at a stage in the proceedings before the list of issues had been crystallised and prior to directions having been made for disclosure and exchange of witness statements.
The Appellant conducted the appeal as a litigant-in-person, and Marc appeared on his behalf at the Court of Appeal hearing.
Marc is described by the Legal 500 directory (2016 edition) as “a very clever lawyer with massive knowledge of the law”.