England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE MCMULLEN QC, MS G MILLS CBE, MR D CHADWICK

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th March 2010

Lady Justice Smith:

1. This is an appeal from the order of the Employment Appeal Tribunal (EAT) (HHJ McMullen QC, Mr Chadwick and Ms Mills CBE) made on 24 August 2009 when they dismissed the appeal of Mr Akintola from the decision of an Employment Tribunal (ET) sitting in central London, promulgated on 15 December 2008. The ET dismissed Mr Akintola's claim that he had been constructively dismissed by his employers, Capita Symonds, in February 2008. The ET also rejected his claim that he had made a qualifying disclosure within the meaning of that term in Section 43B of the Employment Rights Act 1996 ("ERA"). Following the dismissal of his appeal by the EAT, permission for Mr Akintola to appeal to this court was granted by Mummery LJ.
2. Capita Symonds, the respondent to this appeal, is a property consultant with about 3000 employees. The appellant/claimant was first employed by the respondent on 13 August 2007. His position was that of senior structural engineer, a position of some responsibility requiring an engineering qualification. He left that employment on 6 February 2008 in circumstances which I will explain. I will take the facts from the ET's findings which, save in one respect, are not challenged on this appeal.
3. One of Capita Symond's clients was London Underground Limited. On 18 January 2008, the appellant was instructed to go to Marble Arch tube station where other employees of the respondent were carrying out survey work. They wanted advice from a structural engineer. On arrival, the appellant found that he was expected to enter a confined space in a tunnel through a manhole. He was not happy about doing so for safety reasons. He telephoned his line manager, who in effect told him to use his own judgment about whether he should enter the manhole. On asking to inspect the Method Statement for working in this area, the appellant discovered that protective equipment was required, not all of which was available to him: he therefore declined to enter the manhole. Other personnel went into the area, took photographs of the features on which the appellant had to advise and the necessary advice was given. On his return to his own depot, the appellant informed his line manager what had happened. The tribunal found as a fact that the appellant was not upbraided or criticised in any way for declining to enter the confined space.
4. On 28 January 2008 the appellant was called to a meeting at which it was suggested to him that he should be demoted from the position of senior structural engineer to that of structural engineer. The tribunal accepted that this was because the respondent had formed the view that the appellant was having difficulty with some aspects of his work and that he would find the position of structural engineer more "comfortable". It was not put to the appellant that he would have to take a cut in pay; the appellant declined this suggestion and no further action was taken by the respondent.
5. On 1 February 2008 the appellant was instructed to prepare a Method Statement for the demolition of some old premises at London Underground's depot at Neasden. The appellant told his line manager that he had not had the training necessary for such a task; he had never prepared such a document before. He was given some samples of how similar work had been done in the past; he was asked to complete the task by 5 February. It was management's intention, so found the Employment Tribunal, that when the appellant had prepared a first draft his line manager would go through it with him and check that it had been properly done. However, by 5 February the appellant had not done the work. He was of the view that he could not do it without a risk assessment being first carried out. On that day he was told to complete the method statement by the following day. He did not do so but resigned on the following day.
6. On 25 April 2008, the appellant commenced proceedings in the Employment Tribunal alleging constructive dismissal and racial discrimination. A case management discussion was held on 17 July 2008 at which the issues to be determined were defined. It should be noted that, as the appellant had been employed for only five months, and not one year as required by Section 94 of the Employment Rights Act 1996 (ERA) he could not bring a claim for unfair dismissal unless he could show that the reasons for his dismissal fell within one of the exceptions to the one-year rule. It is clear that this issue was discussed at the case management discussion and the appellant intended to rely on Section 100(1)(d) of the ERA. Section 100 is headed 'Health and Safety Cases'. It provides at subsection 1:

"An employee who is dismissed will be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that –

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work."

7. So in order to succeed in his claim for unfair dismissal the appellant had to show that the reason for his dismissal fell within those circumstances.
8. At the case management discussion the issues to be determined were listed. These included whether the appellant had been constructively dismissed, even though the dismissal was automatically unfair for the purposes of Section 100(1)(d). However, a third issue was identified, namely whether the claimant had been subject to a detriment, contrary to Section 44(1)(d) of the ERA.
9. Section 44 is headed 'Health and Safety cases' and provides that an employee has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on any of several grounds, one of which, at (d) is the same ground as is found in section 100(1)(d) which I have set out above. In short, the claimant was alleging that what had happened at Marble Arch was not only the principle reason for his dismissal, but, in the alternative, gave rise to a freestanding claim under Section 44 that he had suffered one or more detriments short of dismissal. The detriments that the claimant relied on were set out in case management order. These were that the respondent had attempted to change the appellant's terms of employment and, second, that the appellant had been required to draw up a method statement for the London Underground Neasden depot which he was not in a position to do.
10. The list of issues also included allegations of discrimination, but the discrimination claims were dismissed for want of jurisdiction at a pre-hearing review on 7 October, and I need say no more about them. Also at the hearing on 7 October, the freestanding claim under Section 44 was dismissed for want of jurisdiction because the complaint had not been raised at an internal grievance procedure before the proceedings were commenced in the tribunal.
11. So, at the start of the substantive hearing, the claimant was alleging constructive dismissal for which he needed to prove that the principal reason for the dismissal was because of his reaction to the imminent danger created by the incident at Marble Arch.
12. The hearing took place at the beginning of December 2008. The tribunal's decision records that, during his evidence, the appellant indicated that he also wished to pursue a claim under Section 103(A) of the ERA. Section 103(A) is headed "Protected Disclosure" and provides:

"An employee who is dismissed shall be regarded for the purpose of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."

13. The definition of qualifying disclosure is found in Section 43B which, so far as relevant, provides as follows:

"(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following --

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

……"

14. This new contention was, on the facts, that on 5 February 2008 the claimant had told Mr Crosby, one of his managers, that it would be a violation of Health and Safety Regulations if he were to prepare a method statement for use at the London Neasden depot without there being in existence a site risk assessment specific to that depot. That, he claimed, was a qualifying disclosure. The tribunal permitted him to add this new claim, observing that the allegation was capable of being a qualifying disclosure. It should be noted that Section 103A is concerned with reasons for dismissal, and it would appear at first sight that the ET understood the claimant to be relying on Section 43B(1)(a) or (b) as an additional means of providing jurisdiction if he should fail to establish jurisdiction by reliance on Section 100(1)(d). The Employment Tribunal did not record that it was the claimant's intention to bring a freestanding claim that he had suffered a detriment short of dismissal as a result of having made a protected disclosure in respect of the Neasden method statement, nor did it record that it was the claimant's intention to make any protected disclosure claim at all arising out of the Marble Arch incident, whether as a reason for his dismissal or as a freestanding detriment claim.
15. The tribunal heard evidence from both parties and dismissed all the claimant's claims. They held that he had not made a qualifying disclosure under Section 43B of the ERA as he could not have had a reasonable belief that the request to prepare the method statement was a breach of any legal obligation. That was plainly a reference to the Neasden request. Also, they held that there was no serious or imminent danger to the claimant on the 18 January on his visit to the tunnel adjacent to Marble Arch tube station.
16. As to the incident at Marble Arch, the Employment Tribunal made a number of specific findings:

"This type of advisory work was within the Claimant's capability and remit as a senior engineer. There was in existence a method statement and the tunnel was not on London Underground property was owned by Westminster Council.

12. As there were already colleagues on site at Marble Arch, the request for a senior engineer to attend was one of some urgency. The Claimant attended and after he was on site he telephoned his Line Manager, Mr Castlo to say that access to the tunnel was through a manhole opening. The Claimant informed Mr Castlo that he felt that it was not safe that safety arrangements were in place, that gas monitoring equipment was being used and the survey would be carried out in conjunction with the specialist team from Westminster Council, who had entered the tunnel already and undertaken all necessary monitoring before anyone from the Respondent company would be allowed into the tunnel.

13. The Claimant, despite attempts by colleagues to persuade him that it was safe to enter the manhole, refused to do so and requested that his colleagues enter through the manhole and take photographs and then the structural engineering advice could be given by the Clamant was using the photographs in conjunction with drawings of the site.

14. The Claimant on the following day reported to Mr Castlo that he had not entered the tunnel and that was the decision he had made on site and so far as Castlo was concerned the Claimant had made his decision not to enter the tunnel based on his own safety which was entirely the right thing to do and therefore that was the end to the matter.

15. Personal safety is a high priority for the Respondent and staff are always reminded that they should never take risks or put themselves in any physical danger."

17. Following on those findings of fact, the tribunal held that the claimant had failed to prove that there were circumstances of danger that he reasonably believed were serious or imminent and which he could not reasonably be expected to avert. In short, at paragraph 33 of their decision they held that he had failed to bring himself within Section 100.
18. I interpose at this stage, in order to dispose of the issue, to say that today the appellant has sought to argue that that conclusion was not open to the tribunal. I can say at once that, having set out their findings of primary fact, it plainly was open to the tribunal to conclude that there was no serious or imminent danger to the claimant. In short, that conclusion was plainly not perverse. I shall say no more about that discrete ground of this morning's appeal.
19. The tribunal then turned to deal with the claim for constructive dismissal without, at that stage, mentioning that the claimant was facing jurisdiction problems, having failed to bring himself within Section 100. The claim of constructive dismissal was based on the allegation that the respondent had breached the implied term of trust and confidence. The tribunal considered four allegations raised by the claimant: the respondent's conduct arising out of events at Marble Arch; an allegation that the respondent had dishonestly altered the claimant's timesheet as to which the tribunal held there was no evidence at all; the allegation that the respondent had tried to demote the claimant; and the respondent's alleged conduct in respect of the Neasden work. In respect of the Neasden work, the tribunal said at paragraph 39:

"So far as the Neasden depot and method statement incident is concerned, we accept that the Respondent had reasonable and proper cause to instruct the Claimant to carry out such work. It was reasonable for the Respondent to ask the Claimant to carry out a task in view of his status as a senior engineer. There was no breach of any legal requirement by the Respondents in making such a request nor could the Claimant have reasonably believed so. The request to complete the draft was of reasonable instruction to give the Claimant. Such a request is not in any way begin to undermine the relationship of trust and confidence."

20. Then at paragraph 40 the tribunal held that there was no conduct by the respondent that was capable of damaging the employment relationship of trust and confidence, and at paragraph 41 they said:

"The Claimant resigned because he had been requested on 5 February to prepare the draft method statement by the following day. A request to prepare such a draft is totally unlike to the Marble Arch incident. For all the above reasons the claims fail and are dismissed."

21. Thus the constructive dismissal claim had failed. However, it is clearly implicit in the wording used in paragraph 39, where the tribunal refers to there being no breach of a legal requirement and no possibility that the claimant could reasonably believe that there was any breach of the legal requirement, that the tribunal had also considered whether the refusal to undertake the Neasden work amounted to a qualifying disclosure. They were clearly of the view that it did not. Thus the claim for unfair dismissal had failed for want of jurisdiction as well as failing on the merits.
22. It will be noted that at no stage did the ET consider the Section 47B freestanding claim for compensation for suffering a detriment short of dismissal as the result of the Marble Arch incident. The appellant appealed to the EAT. Initially the case was rejected on the sift, but then came before Burton J under Rule 3(10). Prior to that hearing Mr Akintola, who had throughout appeared in person, was put in touch with ELAAS, the pro bono service, and received advice from counsel. Counsel formed the view that there was no merit in the proposed appeal and so informed Mr Akintola in a written advice, with the result that, at the oral hearing under Rule 3(10), Mr Akintola once more appeared in person.
23. Mr Akintola claims that Burton J was aware of the content of counsel's advice. I do not know upon what basis he makes that allegation. In any event, Burton J did not think that the proposed appeal was wholly without merit. He refused to allow the appeal against constructive dismissal to proceed, but said that it was not clear whether the ET had been seized with a freestanding protected disclosure claim in respect of Marble Arch. He was of the view that the ET had been seized of the freestanding detriment claim in respect of Neasden and had validly rejected it. So, he allowed the possible freestanding detriment claim in respect of Marble Arch to go through to what he described as a preliminary hearing.
24. In the event, there appears to have been a full appeal on that issue, although the appellant was not present. The full EAT panel sat and the respondent was present and represented by counsel. The EAT, like Burton J, was of the view that the appellant had, by amendment, brought a freestanding protected disclosure claim in respect of the Neasden request, but held that there never had been a freestanding detriment claim arising out of Marble Arch. However, the EAT went on to hold that, even if such a claim had been before the ET, it could not possibly have succeeded because the claimant was unable to show any detriment flowing from the Marble Arch incident.
25. The EAT also dealt with the complaint raised by Mr Akintola about his belief that counsel's unfavourable advice had been disclosed to Burton J. The EAT called for the case file and examined it carefully and could find no evidence that that advice had been shown to the judge prior to the Rule 3(10) hearing. They observed that it would be most unusual for that to happen. They also observed that, in any event, Burton J had obviously formed his own view about the possible merits of the appeal.
26. The appeal was dismissed by the EAT. On appeal to this court I initially considered the permission application on paper and formed the view that it was arguable that the EAT had been wrong to say that the issue of a protected disclosure had never been raised in connection with the Marble Arch incident. However, I was of the view that, even if the issue had been raised and the ET had been obliged to deal with it and if when they had dealt with it they had been persuaded that Mr Akintola had made a protected disclosure, there was still no real prospect of success because the appellant had been unable, and would be unable, to show that he had suffered a detriment as a result of that disclosure.
27. The application for permission was renewed before Mummery LJ who was persuaded that the point was arguable. He thought it was arguable that the tribunal could not make a valid finding that the attempt to demote Mr Akintola did not amount to a detriment resulting from protected disclosure before it had made any finding as to whether he had indeed made a protected disclosure in respect of that issue. That has been the main burden of the appellant's submissions today. However, before dealing with that issue I must deal with the basis on which the EAT decided the case, namely that the tribunal could not be criticised for not dealing with a detriment claim arising from the Marble Arch incident because it was never before them.
28. In my view, it is clear from the careful way in which this matter was case-managed that, at the start of the substantive hearing, the only issues before the tribunal were those relating to constructive dismissal and whether, notwithstanding the short period of employment, there was jurisdiction to consider such a claim. It is not clear exactly what the ET allowed the claimant to do by way of extending his claim. That lack of clarity is unfortunate. It would have been better if the claimant had been required to put his application to extend his claim into written form. The nearest we get to an application in writing to add one or more freestanding detriment claims is a statement in the claimant's written submissions to the tribunal that he "reasonably believed he was also victimised as an employee". There is also in the claimant's witness statement at paragraph 14 a reference to his refusal to go into the tunnel at Marble Arch as "my protected disclosure".
29. Mr Wilson, for the respondent, submitted today that it was up to Mr Akintola to make it clear to the ET exactly what he had been alleging. However, he did acknowledge that there were these oblique references in the documents to a claim for protected disclosure. I agree with Mr Wilson's submissions that it really was up to Mr Akintola to make his position clear, but I also accept that, had he been represented, it is highly likely that the claim would have been clarified in the way that Mr Akintola now wishes he had clarified it. Of course, had he been represented at the time and had matters been left as they were, there could have been no argument that the freestanding claim had not been adequately put to the tribunal. But it does seem to me that, dealing with a litigant in person, some additional responsibility must fall on the employment judge to clarify exactly what is being alleged and to ensure, at the start of the hearing, that the parties know what the issues are and what ground is to be covered.
30. Out of an abundance of caution, therefore, and a desire to be completely fair to Mr Akintola, I propose to approach this appeal on the basis that the issue of protected disclosure arising from the Marble Arch incident was before the tribunal and that they should therefore have dealt with it. Is there any possibility that, if it had considered the issue, the tribunal would have held that there was either an express public interest disclosure statement by something said by the claimant with his manager, or an implied public interest disclosure by the claimant's actions (in refusing to go into the tunnel and in reporting his reasons for so refusing) taken in the reasonable belief that, in requiring him to go into the tunnel and in permitting other employees to go into the tunnel, the respondent was failing to comply with a reasonable obligation.
31. I note that in paragraph 12 of its decision, which I quoted, the tribunal held that entering into the tunnel was not in fact unlawful. Proper provision had in fact been made. However, that would not have been the question for them. Rather, they would have had to ask whether the claimant acted as he did, or said what he did, in the reasonable belief that requiring anyone to go into the tunnel was unlawful. That is a more difficult question and is not, in my view, capable of final determination. I note that in his ET1 the claimant said that he refused to go into the tunnel because he thought it was dangerous. He claimed that some days later he discovered that he needed an entry permit issued by London Underground, which he did not then have. Even that is disputed by the respondent, as it is said that the tunnel belonged to Westminster City Council and not to London Underground. However, there is no doubt that Mr Akintola's reason for refusing to go into the tunnel was on the ground of what he perceived to be safety reasons or reasons of danger, and it appears likely that those grounds were reasonable, at least so far as he personally was concerned, because he was short of personal safety equipment. Most health and safety legislation is based on outlawing dangerous practices, so if the practice is dangerous it is likely also to be unlawful. Accordingly, I cannot rule out the possibility that a tribunal, considering this issue properly, might have found that the claimant had made a protected disclosure in respect of the events at Marble Arch.
32. However, I am firmly of the view that, given the tribunal's finding of primary fact, the claimant could not possibly succeed in showing that he had suffered a detriment as a result of his refusal to enter the tunnel or on account of him having told his manager that he had refused to go into it for safety reasons or, by implication, because it would be unlawful to do so.
33. First, the tribunal found as a fact that the appellant was not criticised in any way for his decision not to go into the tunnel or, by implication, for what he said about his decision. Quite the contrary. The tribunal accepted that the company regarded safety as a priority, and its attitude was that employees should never take risks. That necessarily implies that, whatever they did subsequently, they were not critical of him and did not wish to penalise him in any way on account of what he had done or said in connection with Marble Arch. Second, the tribunal accepted as true the respondent's explanation for its suggestion that the appellant should be demoted. It also accepted that when that suggestion was declined by the appellant no further action was taken. Even if the tribunal had been prepared to hold that the mere suggestion of demotion was capable of amounting to a detriment -- for example, by damaging his reputation -- they clearly held that this proposed suggested demotion was in no way connected with events at, or after, the Marble Arch incident.
34. Finally, the tribunal accepted that the respondent's request for him to carry out the Neasden work was wholly reasonable; it could not amount to detriment, and they specifically found that it had nothing to do with events at, or after, the Marble Arch incident. It is said that the tribunal could not properly consider the causal relationship between the protected disclosure and the potential candidates for detriment until after deciding that there had indeed been a protected disclosure. I cannot accept that submission. The tribunal knew very well that it was being alleged that the respondent had turned against the claimant because of what had happened at and after the Marble Arch incident; yet they specifically rejected that, and held that all the alleged detriments were wholly unconnected with Marble Arch. It makes no difference to the validity of those findings that the tribunal had not specifically considered whether the claimant had in fact made a protected disclosure.
35. I would not be prepared to remit this case to the tribunal for consideration of the protected disclosure issue, even though I recognise that it is unclear whether they were seized of that matter and, if they were seized of it, whether they could have held that the claimant did in fact make a protected disclosure. Such a remission would be pointless as the claim could not possibly succeed for the reasons I have given.
36. Accordingly, it remains only to consider the appellant's complaint of bias which was raised again this morning. I can deal with this very briefly. The complaint is based on the appellant's belief that Burton J knew of counsel's unfavourable advice. There is no evidence at all that he did, and that really is an end to the matter. But the appellant submits that Burton J showed some unconscious bias when, at paragraph 32 of his judgment, he said:

"Quite plainly I cannot allow this to go forward to a full appeal without involvement of the Respondent, and quite probably at a preliminary hearing, at which I direct that the Respondent will be entitled not only to put in written submissions but, if they so conclude, to attend. If the matter is to go forward, it may be that a Burns/Barke request to the Employment Judge would need to be formulated at and after the preliminary hearing; but that will be a matter for hereafter and, of course, it may be that the Respondent will be able to succeed at a preliminary hearing without that course being taken."

37. The appellant this morning has submitted that Burton J's thoughts and postulations about what might happen at, or after, the preliminary hearing in some way discloses unconscious bias. I think the suggestion is that Burton J was revealing that he thought that the respondent was going to succeed in any event. I cannot for a moment accept that a reasonable bystander would consider that those innocuous remarks indicated the least suspicion of bias by Burton J. That ground of appeal is wholly without foundation.
38. For those reasons I would dismiss this appeal.

Lady Justice Wall:

39. I agree. My Lady has covered the ground fully and there is nothing that needs to be added.

Mrs Justice Baron:

40. I agree.

Order: Appeal dismissed