ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Langstaff, Mr D. Evans CBE and Mr J. Mallender
UKEAT/0065/10/JOJ, BAILII:  UKEAT 0065_10_0712
Strand, London, WC2A 2LL
B e f o r e :
| JENNIFER MEARES
|- and -
|MEDWAY PRIMARY CARE TRUST
The Respondent was not represented
Hearing date: 18 July 2011
Crown Copyright ©
Lord Justice Rimer :
'… reflected a view of [the applicant], which plainly pervades the judgment as a whole, that she was someone who expressed her views trenchantly, who did not suffer fools gladly (as she herself said) and who was certainly no shrinking violet.'
'30. … The letter demanded details of "every fact relating to every incident, who made these accusations and exactly what was said. What you have done is serious and I have a right to defend myself. As you have lumped everything together so as to exaggerate and dramatise everything, I want to know who are the practice nurse advisers (in the plural), who are the course organisers (in the plural) …." and so on. [The applicant] went on to complain about Ms Rawson "talking down" to her in front of a patient and said "now if it's about mud-slinging then let me do some for a change" and then embarked upon other complaints.
31. She then wrote "I am so angry, hurt and upset about all of this that I am taking out a grievance against you. I will not be bullied and harassed by you, or anyone else, for your or their self-aggrandisement. I am, in case you have forgotten, an experienced senior professional and I am not going to be treated in such a manner."
32. She went on to say "I think that there is much more to this than meets the eye, by your insinuations, arrogance and just plain nastiness you and other staff have managed to make most of the old MEDDOC nurses leave the PCT (I know because we still talk to each other). The couple of them that are left are easily bullied, manipulated or whatever you want to call it. I AM NOT ONE OF THEM and I have absolutely no intention of becoming a victim like the others." The letter ended "You will be hearing from me in the very near future" and [the applicant] said that she would not be attending the appraisal, which had been rearranged for 15 May 2007'.
'32. If the only motivation which the Tribunal describes is personal antagonism, as here, it seems plain in the context of its judgment as a whole that that is what it was regarding as the predominant motivation if indeed it regarded motivation as mixed. If it were the sole motivation (and it must be noted it is the only motivation the Tribunal identifies) then that too must necessarily meet the statutory test because the sole motive is plainly greater than the predominant motive, and any test which seeks the identification of a predominant motive must necessarily be satisfied by the identification of the sole motive.'
33. Accordingly, we do not think that there is any force in the submissions made to us by Mr Kirby that the Tribunal should have analysed to a greater extent than they did whether and to what extent personal antagonism was a dominant or predominant motive.
34. We cannot pass from this part of the argument without noting that there was no sustained challenge to the entitlement of the Tribunal to conclude on the facts that they found that there was personal antagonism between the Claimant and Mrs Cable and that personal antagonism might have motivated the writing of the letter upon which reliance was placed.'
'It is also denied that the Claimant was subjected to any detriment on the ground that she has made a protected disclosure. It is not clear on what basis the Claimant is alleging that her grievance is a qualifying disclosure under section 43B Employment Rights Act 1996 and which grievance she is relying upon as a protected disclosure. The Claimant is asked to provide Further and Better Particulars of this and the Respondent reserves its right to amend the Response upon the provision of these Further and Better Particulars.'
If any Particulars were served (and I infer they were not), they are not in the bundle that the applicant has provided for this application. Having regard to the imprecision with which the applicant pleaded the protected disclosure point – with no express reference to the letter of 11 May as having been that disclosure – it is not surprising that the respondent pleaded to that case as it did. It is equally unsurprising that it did not advance any express plea that any protected disclosure (whatever it might have been) was not made in good faith. How could it have done so except by making some generalised, and inappropriate, pleading along the lines of 'If, which is denied, the Claimant ever made any alleged protected disclosure (none having been expressly identified by her), the Respondent denies that it was made in good faith'? I add that whilst Employment Judge Kurrein, in paragraph 2 of his reasons for his case management order of 3 December 2008, described the applicant's public interest disclosure case as 'sufficiently particularised', I infer that he was there referring to its clarification in List of Issues, to which I next refer.
'He relied, amongst other things, upon the conclusion in Street that if the main motive for a disclosure was antagonism toward the manager then it could not be regarded as being made in good faith. Although we would prefer the formulation that a Tribunal was entitled to hold it was not in good faith, because plainly, as it seems to us, every case must depend on its own facts and this must particularly be so when it comes to issues as complex as motivation, it is nonetheless plain that at that stage the point was very clearly put, and then the very words "good faith" were used.'
'49. … In this particular case, for instance, if Miss Meares had been taken at a disadvantage by the submission made at the conclusion of the case that she lacked good faith, or by the questions that alleged that she had a motive other than that which she put forward for writing the letter as she did, then we would have thought it was open to, and indeed we would have expected, counsel to have asked for an adjournment to call further evidence or to recall Miss Meares to deal with the point. We would have expected some objection if such an important point had not been properly ventilated beforehand. None of that happened.
50. We have looked here to see whether the allegations were sufficiently made. What, in our view, must be focussed on are not the words "good faith" as though they were some kind of mantra. What matters in a case such as this is what in the context of the individual case those words actually mean. Here the issue was clearly whether Miss Meares made the allegation she did in her letter in order to draw the attention of her employer to a breach of the employer's duty, and did so with a view to the public interest, or whether, rather, as the employer contended, she did so because of her personal antagonism towards Mrs Cable and to score a point against or undermine her.
51. The Tribunal's conclusion was that the disclosure was not made in good faith as in the former case but was, and we emphasise the next few words, as in the case of Street motivated by the Claimant's personal antagonism. The Tribunal plainly had regard to case of Street. Street was common currency at the Tribunal. That showed that here when antagonism being alleged that that went to the question of motive, and the question of motive straight to the issue of good faith. In this case the actual words "good faith" would have had much less meaning than did the allegation which was actually put, and it must be allegations of substance which are put to parties rather than some legal terminology which parties may not be able easily to understand devoid of context. A question – "You didn't do this in good faith, did you?" – begs what that actually implies in the circumstances of a particular case.
52. In short, we are entirely satisfied that here: (1) the issue was properly before the Tribunal; (2) that the questions put to Miss Meares gave her a proper opportunity to answer the allegation made against her that her motivation was other than she claimed. She had, through counsel, an opportunity to respond in detail to the allegations at the conclusion of the case and indeed had the last word. This is a very different case from one such as Lucas where the allegation was never put. It is a case in which we are satisfied that she had that reasonable opportunity to deal with matters held against her which the law requires.'