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Cite as: [2012] NIIT 1597_11IT, [2012] NIIT 01597_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1597/11

CLAIMANT: Albert Patterson

RESPONDENT: Brett Martin Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was not subjected to any detriment by any act and/or any deliberate failure to act by the respondent on the ground that the claimant had made a protected disclosure, pursuant to Article 70B of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Ms J Townsley

Mr R Hanna

Appearances:

The claimant was represented by Mr S Mearns, Solicitor, of John Ross & Son, Solicitors.

The respondent was represented by Mr P Bloch of Engineering Employers Federation Northern Ireland.

Reasons

1.1 The claimant presented to the tribunal a claim against the respondent on 6 July 2011, which was accepted by the tribunal, in which he made a claim, inter alia, that he had been subjected to a detriment by the respondent on the ground that he had made a protected disclosure to the respondent concerning an assault and threats that he had received from another employee. The respondent presented a response to the tribunal on 17 August 2011, which was accepted by the tribunal, in which it denied liability for the claimant’s claim.

1.2 At a Case Management Discussion on 22 September 2011, as set out in the Record of Proceedings, dated 22 September 2011, the representatives identified the following agreed issues to be determined by the tribunal, namely:-

“Legal Issues :

(1) Did the claimant make a protected disclosure?

(2) Did the respondent subject the claimant to a detriment by victimising him contrary to Article 70B of the Employment Rights (Northern Ireland) Order 1996?

Factual issues :

(1) Why was the claimant disciplined via a recorded verbal warning on 14 April 2011?

(2) Was this disciplinary action an act of victimisation?

(3) Was there in place a Brett Martin written procedure/oral instruction which the claimant is alleged to have breached in or around 22 December 2010?

(4) Was the matter, which it is alleged by the respondent, constituted grounds for the disciplinary action dealt with by the respondent in January 2011?

(5) Has the respondent, treated the claimant less favourably, by way of detriment, by disciplining the claimant for an alleged breach of procedure when other members of staff have not been disciplined for similar alleged breaches within the knowledge of the respondent?

(6) Has the respondent caused psychiatric injury to the claimant, and what is the claimant’s loss and damage?

1.3 At the commencement of the hearing and in light of the issues as identified and agreed as set out above, the tribunal noted that in the respondent’s response, at Paragraph 5.2, the respondent had stated:-

“5.2

The respondent denies each and every allegation raised by the claimant as detailed in the claimant’s claim form.

The respondent specifically denies that as a result of making a protected disclosure within the meaning of legislation (which the respondent accepts the claimant made) the claimant was subjected to an unlawful detriment, namely disciplinary action and a verbal warning … .”

The tribunal was concerned that, on one reading of the terms of the response, as set out above, there was an admission by the respondent there was a protected disclosure by the respondent and, if so, that the main issue therefore to be determined by the tribunal related to whether the claimant suffered a detriment having made the ‘admitted’ protected disclosure.

The respondent’s representative stated, in reply to the tribunal’s concerns, that no such admission had been made and the ‘admission’, if any, related to the fact a claim had been made under the relevant legislation. He drew attention to the general denial and the terms of the response, read as a whole, which showed, he submitted, the respondent was contesting the claimant’s claim on all issues. In particular, he also referred to the Record of Proceedings dated 22 September 2011, which expressly stated that the issue, whether a protected disclosure had been made, was in issue between the parties and this had been agreed, despite the said wording in the response, by the parties at that time. Although there was no reference in the said Record of Proceedings of any such agreement, the claimant’s representative acknowledged there had been some discussion of the above issue at the Case Management Discussion and, subsequently, he had not sought to challenge/object to the terms of the Record of Proceedings; but nevertheless he said the tribunal could draw inferences from the terms of the response as set out above and, in any event, this might be relevant to issues of costs.

1.4 The tribunal was satisfied that, although the wording of the response, as set out above, is somewhat unfortunate and less than clear, it is satisfied, having considered the response as a whole and the submissions of the representatives, the respondent did not intend to make any such admission/concession and that therefore no issue of inference arises, as suggested by the claimant’s representative. In so concluding, the tribunal took into account, in particular, the agreed identified issues as set out in the Record of Proceedings (which was at no time objected to by the claimant’s representative). Both representatives are experienced practitioners in the tribunal and are fully aware of the importance for tribunals, as stated by the Court of Appeal in numerous recent cases, to identify the issues in advance of the substantive hearing at a Case Management Discussion. This was done, as set out above, and the case was prepared by the representatives on the basis of the issues, so identified. In the case of ALM Services Ltd v Bladon [2002] EWCA Civ 1085, Mummery LJ emphasised the importance of identifying the issues in a protected disclosure case at a Case Management Discussion prior to the substantive hearing. In light of its decision above, it was not necessary to consider further any application by the respondent’s representative for leave to amend the respondent’s response.

1.5 Before the commencement of the hearing, the respondent’s representative made an application that certain paragraphs in the witness statement of the claimant and also in the witness statement of one of his witnesses, Mr Jamison, were not relevant and/or were insufficiently relevant and therefore should not be admitted in evidence. Having heard the said application, the tribunal reserved overnight to consider its Ruling on foot of the application. The tribunal, having so reserved, orally delivered the outline of its unanimous Ruling, on foot of the said application. It was agreed that a copy of the full written Ruling of the Tribunal would be attached to this decision and would form part of the decision. The Ruling, dated 17 April 2012, is attached hereto and forms part of the decision.

1.6 At the outset of the hearing the claimant’s representative confirmed the detriment relied upon by the claimant was the recorded verbal warning imposed on him by the respondent, on 14 April 2011.

1.7 The tribunal heard oral evidence from the claimant himself. It also heard evidence, on behalf of the claimant, from:-

Mr Derek Jamison;

Mr Mark Vehog;

Mr Alan Green;

Mr Gareth Geddis;

Mr John Jackson; and

Mr Chris Spence

In addition, the tribunal heard evidence on behalf of the respondent from:-

Dr Philip McCrea, Accredited Specialist in Occupational Health;

Mr Joe Heaney;

Mr Harry McGrath;

Mr James Moore;

Mr Des Reid;

Mr James McCullough; and

Mr Alvin Steele

Although Mr David McAuley had prepared and exchanged with the respondents a witness statement on behalf of the claimant, which the tribunal had read before the commencement of the hearing, the claimant’s representative decided to withdraw this witness statement and not require it to be admitted in evidence and, in the circumstances, the tribunal took no account of the matters set out in the said statement.

2.1 The legislation in relation to protected disclosure was first introduced by the Public Interest Disclosure (Northern Ireland) Order 1988 (‘the 1998 Order’). This is in similar terms to the Public Interest Disclosure Act (‘the 1998 Act’) which applies in Great Britain; and indeed in the Explanatory Note to the Order it is stated it was made for purposes corresponding to those of the 1998 Act. Despite the title of the said legislation there is no express requirement that any disclosure was made ‘in the public interest’.

2.2 The claimant’s claim was made pursuant to Article 70B of the 1996 Order, which provides:-

“(1) A worker has the right not to be subjected to any detriment by any act or deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure.

(2) This Article does not apply where –

(a) the worker is an employee; and

(b) the detriment amounts to dismissal (with the meaning of Part XI).

(3) ...”.

2.3 This provision has to be contrasted with a claim made, pursuant to Article 134A of the 1996 Order, which provides:-

“An employee who is dismissed shall be regarded for the purposes 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.”

2.4 Article 67A of the 1996 Order provides:-

“In this Order a ‘protected disclosure’ means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with Articles 67C to 67H.”

2.5 Article 67B(1) sets out various matters which can be a ‘qualifying disclosure’. At the commencement of the hearing of this matter, the claimant’s representative confirmed the claimant was relying on the following sub-paragraphs of the said Article, namely:-

“(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;

…

(d) that the health and safety of any individual has been, is being or is likely to be endangered.”

2.6 Article 67(C), insofar as relevant, provides:-

“(1) A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure in good faith –

(a) to his employer; or

… ”.

Again, there was no dispute that, if the claimant had made a qualifying disclosure, it was made by him to his employer.

Further, it was not disputed by the respondent’s representative, that the burden of establishing that an employee has failed to act in good faith was on the employer. He further accepted, at the commencement of the hearing of this matter, that the respondent would not be seeking to raise this ‘defence’ of absence of good faith. (See further the decision of the Employment Appeal Tribunal in the case of Lucas v Chichester Diocesan Housing Association Ltd [UKEAT/0713/04], which confirmed the burden to prove failure to act in good faith lay on the employer but also suggested, where it was alleged by the employer, it must be made explicitly in advance and expressly put to the claimant in the course of the hearing. In the event, no such issue was raised by the respondent in the agreed statement of issues, as set out in the Record of Proceedings dated 22 September 2011 and no such matter was put to the claimant by the respondent’s representative in the course of cross-examination.)

2.7 It will be necessary to consider in more detail, elsewhere in this decision, the said legislative provisions and relevant case law. Although the decisions of the Court of Appeal in England and Wales and also the decisions of the Employment Appeal Tribunal are not binding on this tribunal, the tribunal considered they were of persuasive authority and should therefore be followed by this tribunal in the absence of any relevant decision of the Northern Ireland Court of Appeal and, in particular, where the relevant legislative provisions in Northern Ireland and Great Britain are in similar terms. (See further the decision of Deeny J in the case of Fitzpatrick and Others v Sarcon (No 177) Ltd [2012] NICH 10 Paragraph 26.)

3.1 Article 67B(1) of the 1996 Order has been the subject of considerable case law in relation to the proper interpretation of the said Article.

Underhill P in the case of Easwaran v St George’s University of London [2010] UKEAT/0167/10, helpfully suggested the test whether a qualifying disclosure had been made should be divided into three elements:-

(1) Did the worker disclose information?

(2) If so, did the worker believe that the information tended to show at least one of the relevant failures?

(3) If so, was the belief reasonable.

The last two elements invariably are required to be considered together by a tribunal.

In relation to the first element – disclosure of information – issues have arisen whether a bare allegation or an expression of concern as to a relevant failure involves a disclosure of information. The leading decision is the case of Cavendish Monroe Professional Risks Management Ltd v Geduld [2009] UKEAT/0195/09, where the Employment Appeal Tribunal (Slade J) confirmed that to make a protected disclosure it was necessary to disclose information about a situation, ie by conveying the facts, which was different from making an allegation or merely stating a position. The Employment Appeal Tribunal (Slade J) illustrated the distinction by referring to hypothetical examples in a hospital scenario:-

“24. Further, the ordinary meaning of giving ‘information’ is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communication information about the state of a hospital. Communicating ‘information’ would be ‘the wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around’ contrasted with that would be a statement that ‘you are not complying with Health and Safety requirements.’ In our view this would be an allegation not information.

25. In the employment context, an employee may be dissatisfied, as here, with the way he is being treated. He or his solicitor may complain to the employer that if they are not going to be treated better, they will resign and claim constructive dismissal. Assume that the employer, having received that outline of the employee’s position from him or from his solicitor, then dismisses the employee. In our judgment, that dismissal does not follow from any disclosure of information. It follows a statement of the employee’s position. In our judgment, that situation would not fall within the scope of the [Employment Rights Act, Section 43].”

On the facts of the Cavendish case, it was held that the common scenario of the letter from the claimant’s solicitor to the respondent complaining about his treatment – and provoking his dismissal – did not contain a disclosure and was therefore was not a protected disclosure but was merely a statement of the claimant’s position and did not convey information as required, by the legislation, let alone disclose information. It was merely a statement of position, properly communicated in the course of negotiations between the parties. The letter which was said to amount to a qualifying disclosure asserted unfair prejudice by the company of which the writer was a director and employee but it gave no detail.

Cavendish has been applied in the case of Goode v Marks & Spencer PLC [2010] UKEAT/0442/09, in which a document and oral exchange formed the basis of an alleged disclosure about proposals by the respondent to change the respondent’s discretionary enhanced redundancy terms. The Employment Appeal Tribunal found that expressing an opinion about an employer’s proposal was not conveying information and was therefore not a qualifying disclosure.

Despite the foregoing, the distinction, as contained in the above decisions, between an allegation and a disclosure of information, is not without its difficulties in application in any particular case, which are always fact- sensitive.

For example, in Royal Cornwall Hospital NHS Trust v Watkinson [2011] UKEAT/0378/10, the respondent’s Chief Executive disclosed to the respondent’s Board that an opinion had been obtained from Counsel stating that the respondent Trust and the Primary Care Trust would be acting unlawfully if they did not conduct public consultation before locating the provision of certain services. The Employment Appeal Tribunal held that this was not merely an allegation but rather it involved conveying information as to what had to be done by the respondent and the Primary Care Trust to comply with their duty to consult.

However, in Smith v London Metropolitan University [2011] IRLR 884, it was held that the mere raising of grievances did not amount to the disclosure of ‘information’. In Everett Financial Management Ltd v Murrell [UKEAT/552/02], it was held that, when an employee sought to rely on a petition to which he was a signatory as a protected disclosure, the petition merely raised a number of concerns and sought certain assurances and therefore could not amount to a protected disclosure.

In a recent decision of the Employment Appeal Tribunal in the case of The Learning Trust and Others v Marshall [2012] UKEAT/0107/11 followed the approach of Mr Justice Slade in Cavendish. It considered the detail set out in the letters which were said to be the subject of the protected disclosure and concluded, having done so, the contents of the said letters contained more than mere allegations. It was held one letter conveyed facts about delay in dealing with a pay progression claim, another conveyed facts about a recruitment process and another appended the earlier letter and repeated the facts. In finding the said letters were protected disclosures, the Employment Appeal Tribunal emphasised that the information contained therein ‘tended to show’ [tribunal’s emphasis] a failure to comply with a legal obligation (see Article 67B(1) of 1996 Order).

Thus, it would appear that each case must be considered on its own particular facts and, whether there is the necessary ‘conveying of facts’ (Cavendish), will depend on the precise details/contents set out and/or context of any alleged qualifying protected disclosure.

Although a disclosure need not be of information which is unknown to the recipient (see further Article 43L(3) of the 1996 Order), there is some doubt as to whether a qualifying disclosure will have been made where the worker knows that the recipient was already aware of the information (see further Everett Financial Management Ltd v Murrell [UKEAT/552/02]). In Cavendish, the Employment Appeal Tribunal noted that the natural meaning of disclosure is to reveal something not already known to the recipient of the information and stated that disclosure is not synonymous with a communication.

There is no express requirement under Article 67B of the 1996 Order that a disclosure must spell out that there has been a relevant failure, or which type of failure (within Article 67B(1)) which the information tends to show has occurred or will occur. (See further Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, where the Employment Appeal Tribunal accepted there is no obligation to spell out any specific allegations.)

In the case of Fincham v HM Prison Service [2002] UKEAT/0925/01, the Employment Appeal Tribunal accepted there was a qualifying disclosure as a result of Ms Fincham having complained that she was under pressure and under stress. The Employment Appeal Tribunal considered this could not be anything other than a statement that her health and safety was being or, at least, was likely to be in danger. The tribunal accepted that, subject to the reasonable belief test, it was sufficient that the relevant failure was identifiable from the information, notwithstanding that the particular failure (in this case her health and safety was endangered) was not mentioned in express terms.

(See further Douglas v Birmingham City Council & Others [UKEAT/018/02], and Odong v Chubb Security Personnel [2003] UKEAT/0819/02 and Bolton School v Evans [2006] IRLR 500 – which cases illustrate that there may be a qualifying disclosure, notwithstanding the disclosure itself did not identify the particular relevant failure and a broad purposeful approach should be applied in identifying the relevant failure.)

3.2 It is then necessary for a tribunal to consider whether the employee had a reasonable belief that those facts tended to show one or more of the matters set out in Article 67B(1) of the 1996 Order. In determining whether the worker has a reasonable belief, it is not necessary for the information itself to be actually true. The disclosure may be a qualifying disclosure, even if it subsequently transpires that the information disclosed was incorrect (see further Darnton v University of Surrey [2003] IRLR 133). In that case, the allegations relied upon by the claimant were not factually correct, but the Employment Appeal Tribunal confirmed that the proper test to be applied is whether or not the employee had a reasonable belief at the time of making the relevant allegation; albeit the factual accuracy of the allegations may be an important tool in determining whether or not the employee had the necessary reasonable belief, which would involve an assessment of the individual’s state of mind based upon the facts as understood by him at the time.

As confirmed in Harvey on Industrial Relations and Employment Law, Division C111, D7:-

“It is also important to note that the statutory test is a subjective one. This is because the [Order] states there must be a reasonable belief of the worker making the disclosure. It follows that the individual characteristics of the worker need to be taken into account and the relevant test is not whether a hypothetical reasonable worker could have held such a reasonable belief.”

In Babula v Waltham Forest College [2007] EWCA Civ 174, it was confirmed the worker must subjectively hold the relevant belief but the question of reasonableness is to be a determined objectively in the context of the facts known to the worker at the relevant time (see Paragraph 75 and 81 – 82 of the judgment). Although reasonableness should therefore be assessed from the perspective of the person making the disclosure at the time it was made, the truth or falsity of the information disclosed and whether or not the relevant failure in fact did occur may be relevant to the assessment of whether a belief was reasonable (see further Darnton at Paragraph 29 of the judgment and Babula at Paragraph 79 of the judgment). In Darnton, it was considered that the more the worker claimed to have direct knowledge of the matters which are the subject of the disclosure, the more relevant would be his belief in the truth of what he said, in determining whether he held that belief reasonably; but as seen in Babula, the truth of the information disclosed will not always be relevant (see Paragraph 79 of the judgment).

In Babula it was also established that the burden lay on the worker to establish reasonable belief. Further, even if the information disclosed does not in law actually amount to a criminal offence (or as the case may be that the health or safety of an individual has been, is being or likely to be endangered) that will not in itself prevent the disclosure being protected. As Wall LJ noted:-

“The purpose of the statute, as I read it, is to encourage responsible whistle blowing. To expect employees on the factory floor or in shops and offices to have a detailed knowledge of the criminal law sufficient to enable them to determine whether or not particular facts which they reasonably believe to be true or capable, as a matter of law, of constituting a particular criminal offence seems to be both unrealistic and to work against the policy of the statute.”

[The test would therefore appear to involve both the subjective test of the worker’s belief and an objective assessment of whether that belief could reasonably have been held (Babula v Waltham Forest College [2007] EWCA Civ 174).]

3.3 In the context of this particular case, and having regard to Article 67B(1) of the 1996 Order, the first of the categories relied on by the claimant was that ‘a criminal offence has been committed, is being committed or is likely to be committed’. This would appear to include a criminal offence of whatever degree of seriousness, and may include breach of a minor Regulation.

The second relevant category was that the health or safety of any individual has been, is being or is likely to be endangered. It would appear to be wide enough to cover health risks to employees, the person making the disclosure or any other person. Indeed trivial concerns are not, in terms, excluded but it could be argued that, if the concerns were trivial, it would raise questions as to whether there was a genuine belief that there was a danger to health and safety and whether that belief was reasonable (see further Paragraph 3.91 of Whistle Blowing Law and Practice, 2^nd Edition, John Bowers QC & Others). As seen previously, in Fincham, it was not necessary that no express reference had been made to health and safety risks and it was sufficient to make a complaint that the claimant was under pressure and under stress to all within the said category.

3.4 Under Article 70B(1) of the 1996 Order a worker has the right not to be subject to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure. Detriment is not defined in the 1996 Order.

In De Souza v Automobile Association [1986] ICR514 at 522G (a race discrimination case) it was held that detriment was not limited to circumstances akin to dismissal, disciplinary action, constructive dismissal or the need to apply for a transfer but included any situation in which a reasonable worker would or might feel disadvantaged in the circumstances and conditions in which he thereafter had to work. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL11, a sex discrimination case, Lord Hope, at Paragraph 34 of his opinion, approved what had been held in De Souza and went on to say:-

“35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah [1980] IQB87, 104 B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to ‘detriment’ …. and it is not necessary to demonstrate some physical or economic consequence …

36. The question then is whether there was a basis on the evidence which was before the tribunal for a finding that the treatment of which the appellant complained was to her detriment or, to put it more accurately as the tribunal did not make any finding on this point, whether a finding that the appellant had been subjected to a detriment could reasonably have been held … .”

In Derbyshire and Others v St Helens Metropolitan Borough Council [2007] UKHL16, a sex discrimination victimisation claim, Lord Neuberger, in the course of his speech, with which three other Law Lords agreed, stated:-

“…. An alleged victim cannot establish ‘detriment’ merely by showing that she had suffered mental distress: before she could succeed it would have to be objectively reasonable in the circumstances.”

In a recent decision of the Court of Appeal in Northern Ireland in the case of Northern Ireland Fire and Rescue Service and Another - McNally [29 June 2012 unreported], a case of discrimination by way of victimisation, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 reviewed the above authorities and applied them. In Korashi the guidance in Shamoon was held by the Employment Appeal Tribunal to apply to a claim of detriment under [Article 70B of the 1996 Order].

3.5 In NHS Manchester v Fecitt [2011] EWCA Civ 1190, the Court of Appeal (when interpreting the similar legislation in Great Britain) held that, when determining a claim where a worker has been subjected to any detriment by his employer on the ground that the worker has made a protected disclosure, pursuant to Article 70B of the 1996 Order, (Article 70B) will be infringed if the protected disclosure materially influences [tribunal’s emphasis] (in the sense of being more than a trivial influence) the employer’s treatment of the employee (see further Paragraph 43 - 45 of Elias LJ’s judgment).

In relation to this issue of causation, Elias LJ at Paragraph 51 of his judgement does express a word of caution:-

“…. where the whistleblower is subject to a detriment without being at fault in any way, tribunals will need to look with a critical – indeed sceptical eye - to see whether the innocent explanation given by the employer for the adverse treatment of an innocent whistleblower necessarily provides a strong prima facie case that the action has been taken because of the protected disclosure and it cries out for an explanation from the employer … .”

It must be noted that in applying such a test in relation to the determination of a claim under Article 70B, the Court of Appeal in Fecitt has emphasised, that, in relation to a case under Article 134A of the 1996 Order (an employee who was dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or if more than one) the principal reason for the dismissal is that the employee has made a protected disclosure) a different test in relation to the burden of proof applies and is to be found in the decision in the Court of Appeal in the case of Kuzel v Roach Products Ltd [2008] IRLR 530. This, by way of contrast, to a case of detriment, requires the tribunal to determine what was the reason or principal reason for the dismissal of the claimant.

3.6 The Fecitt case also confirmed that the provisions of Article 70B of the 1996 Order do not expressly expose liability on anyone other than the employer. This has to be contrasted with the provisions to be found in other anti-discrimination legislation, under which anything done by a person, in the course of that person’s employment, must also be treated as done by the employer. In such legislation there are also relevant provisions embodying the agency principle so that anything done by an agent for a principal must also be treated as being done by the principal, subject to a defence, in respect of any liability arising from anything alleged to have been done by the employee in the course of the employment, if the employer can show that it took all reasonable steps to prevent the employee from doing that thing or from doing anything of that description. In addition, under the anti-discrimination legislation, an employee or agent who perpetrated the discrimination has a personal liability. In Fecitt, the Court of Appeal confirmed that there are no equivalent provisions in the [1996 Order] in relation to claims of victimisation on the grounds of the making of a protected disclosure. Equally, the Court of Appeal made clear that there is no scope for relying upon the common law vicarious liability principles in order to attribute liability under the Public Interest Disclosure [Order] for acts of employees in the course of their employment. In particular, the Court of Appeal, in Fecitt, which has not been appealed to the Supreme Court, disapproved the previous Employment Appeal Tribunal’s decision, to the contrary, in the case of Cumbria County Council v Carlisle-Morgan [2007] IRLR 314. In that case, the Employment Appeal Tribunal had concluded that vicarious liability could apply. The Court of Appeal in Fecitt held that an employer could only be vicariously liable for the legal wrongs of its employees; and where the employee has not committed a legal wrong there was no room for the principles of vicarious liability to operate. It further held the employee did not commit a legal wrong, in respect of the protected disclosure provisions, merely by virtue of an act of detriment on the grounds of protected disclosure. This was because the public interest disclosure provisions did not impose personal liability other than on the employer. In Carlisle-Morgan, the claimant made protected disclosures to her supervisor and her supervisor’s line manager, relating to concerns as to how a colleague, Mrs H, had been treating residents at the Home. The Employment Appeal Tribunal found that the respondent was vicariously liable for Mrs H’s actions. However, in Fecitt, the Court of Appeal found that this decision was in error and that Carlisle-Morgan was therefore wrongly decided, since Mrs H had no personal liability under the public interest disclosure provisions.

In the Fecitt and Carlisle-Morgan cases the relevant acts were those of colleagues of the claimants not, for example, senior/line managers, and who therefore could be considered to be acting ‘on behalf’ of the employer.

In Paragraph 61 of the Court of Appeal’s judgment in Fecitt, it was recognised that the absence of vicarious liability could mean that an employee, who made a protected disclosure, might be at risk of adverse treatment by colleagues without any remedy under the legislation.

In Whistleblowing Law and Practice, 2^nd Edition, John Bowers QC & Others at Paragraph 7.41 it is stated:-

“7.41: The decision in Fecitt left over an issue as to whether and to what extent liability under the PIDA can be established on some basis other than vicarious liability. It is clear from the reasoning in Fecitt that such a liability cannot be established on the basis of attributing liability for the wrongs of the employees or officers. However that does not exclude liability under agency principles which arises on the basis of attributing the acts of employees or officers as being acts of the employer irrespective of whether any wrong was committed by the agent. … Clearly employers will ordinarily act through particular employees and officers to whom managerial and other responsibilities have been delegated. Applying ordinary agency principles, the act of an agent acting within the scope of his/her authority are properly to be regarded as being acts of the employer. A paradigm example is the act of a manager in dismissing an employee. The dismissal is to be regarded as the act of the employer. Accordingly, it is the knowledge or state of mind of the manager delegated to consider dismissal (and only that manager) whose knowledge and state of mind is to be attributed to the employer for the purposes of the unfair dismissal provisions : Orr v Milton Keynes Council [2011] EWCA Civ 62.

7.42: Where the act in question is not dismissal but the imposition of a detriment then, in the light of the decision of the Court of Appeal in Fecitt, we suggest that the issue of whether the act or omission complained of should be treated as being done by the employer, thus making the employer liable for it, will need to be resolved by applying ordinary common law agency principles. In practice, in most cases it is likely to be plain whether the person alleged to be responsible for the act of victimisation was acting qua employer or otherwise on behalf of the employer. Thus, for example, little difficulty is likely to arise where the complaint relates to an act of managerial authority such as imposing a disciplinary sanction. More difficulty may arise where the conduct consists not of the imposition of a formal sanction but a more amorphous form of adverse treatment such as cold shouldering of the worker or a hypocritical assessment of his/her performance by the manager [tribunal’ emphasis]. It may still be possible to say that this consists of an exercise of managerial authority over the employee. Ultimately, however in cases of doubt, it will be necessary to analyse more carefully the scope of actual or ostensible authority of the employee of officer said to be responsible for the act of victimisation. It may also be necessary to consider what was known by the claimant employee as to the limits of authority in the event that the employer contends that the employer accused of an act of victimisation was acting in excess of his/her authority.

… .”

In light of the foregoing, the tribunal concluded that, in relation to the facts of this particular case, it should follow the decision in the case of Fecitt and in considering whether the issue of whether the act or omission complained of should be treated as done by the employer, thus making the employer liable for it, this should be resolved by applying ordinary common law agency principles (as outlined in the above extract from ‘Whistleblowing Law and Practice’).

3.7 In a claim under Article 70B of the 1996 Order, compensation is not limited to that which would be available in unfair dismissal claims and can include compensation for non-pecuniary loss, such as injury to feelings and/or personal injury and is required to be determined on a similar basis to that awarded in discrimination cases (see further Virgo Videlis Senior School v Boyle [2004] IRLR 268. In view of the tribunal’s decision in this matter, it was not necessary to further consider the issues of remedy in relation to the claimant’s claim under Article 70B of the 1996 Order, including the medical evidence produced by the parties.

4.1 Having heard the evidence given to the tribunal by the parties and their witnesses and the documents referred to by them during the course of the hearing, together with the oral submissions of the representatives, the tribunal made the following findings of fact, insofar as relevant, for the determination of the claimant’s claim, as set out in the following sub-paragraphs.

4.2 The claimant, who was born on 12 March 1951, is a Technical Operator Mixer Man with the respondent, having commenced his employment with the respondent on or about 1 September 1985.

4.3 In or about 2010/2011, he was one of two main mixer men in the Foamalux Department, along with Andy McAuley. There were two other workers, who were spare mixer men, John Jackson and Gareth Geddis. Alvin Steele was the Production Manager in charge of the said Foamalux Department. As part of his duties, it was the responsibility of the claimant to operate the mixing machine, which at that time was required to be run at a high level of overtime hours. He also had duties in relation to the delivery of material to the department, which was supplied by outside suppliers.

4.4 Sometime, prior to 11.30 am on Friday 28 January 2011, the claimant came up to Mr Steele’s office complained about Mr Johnston and another employee who he said were standing around and not doing their work and that as a result there was not enough regrind material. As a result, Mr Steele told Mr Joe Heaney, Process Technician, who was in the office, to check the situation about the amount of regrind material available. Mr Heaney spoke to Mr Johnston and told him Mr Patterson was concerned about the regrind situation; but Mr Johnston gave him assurances about the situation, which Mr Heaney reported to Mr Steele. Later, the claimant again visited the office and complained about Mr Johnston giving him orders and telling him what to do in the Department. He sought clarification from Mr Steele that Mr Johnston was not his boss/line manger, which was given to him by Mr Steele; but significantly, at that time, he did not refer to any assault or threat by Mr Johnston. Other than speaking to Mr Johnston, as requested by Mr Steele, and reporting back to Mr Steele, Mr Heaney, in the opinion of the tribunal, had no other involvement in the events of 28 January 2011, which were the subject-matter of these proceedings, as set out below.

However, after discussion with his wife over the weekend and, upon his return to work on the night shift on Monday 31 January 2011 the claimant handed in a letter dated 31 January 2011 to his team leader which was subsequently handed to Mr Steele. The letter stated:-

“I wish to lodge an official complaint against Temporary Worker Johnston, Foam Department, for physical assault and verbal threats against myself on Friday 28 January 2011.”

On receipt of the letter, in view of the absence of detail in the letter, Mr Steele spoke to the claimant and carried out a preliminary investigation in which the claimant gave further details of the alleged assault and verbal threat by Mr Johnston, which Mr Steele summarised as follows, with AP the claimant and FJ Frank Johnston:-

“Summary of preliminary investigation –

Referring to an alleged incident that took place on Friday 28 January 2011 around 12 – 1 pm.

AP had concerns there was not enough white regrind.

AP observed 2 people standing doing nothing and no noise from the granulators.

AP came to AS office stating concerns.

FJ came to mixer area approximately 10 minutes later.

FJ prodded AP in the chest with his finger.

FJ asked AP if he went up to the office complaining about him (AP considered this a threat).

AP told FJ not to poke his finger at him.

AP told FJ that he had no authority to tell her what to do or what not to do. FJ was only a ‘temporary worker’, yet he was full-time.

AP believed FJ was in a bad mood and hoped AP would retaliate. AP stated that he would not retaliate even when an employee was ‘cheeky and irate’.

4.5 Mr Steele recognised that the claimant, on the basis of his preliminary investigation, as set out above, had made a serious allegation which required to be investigated further. It would appear that Mr Steele also held a preliminary investigation with Mr Johnston, albeit no notes were made; but thereafter, on the basis of his said preliminary investigation he carried out formal investigatory meetings with both the claimant and Mr Johnston on or about 15 February 2011. By letter dated 1 March 2011, Mr Steele informed the claimant, inter alia:-

“ … I have met with both yourself and Frank Johnston and, having considered both versions of the events into the alleged incident, I am unable to uphold your complaint of physical assault and verbal threats. This is based on the evidence currently available to me and the fact that no independent witnesses were there present during the altercation … .”

Mr Steele offered a process of formal mediation, but this was not taken up by the claimant, as set out in his Notice of Appeal. However, although both the claimant and Mr Johnston worked in opposite ends of the Foamalux Department, Mr Steele asked them both, in order to avoid any opportunity for further dispute between them, to avoid each others areas of work. He did not consider this would cause inconvenience, as their roles did not interact. In addition he asked Mr Johnston not to take his breaks in the canteen but to take them in the Team Leader’s Office. The tribunal was satisfied this was only directed by Mr Steele to avoid any further disputes between these two workers and not because of any friendship between Mr Steele and Mr Johnston; albeit, in doing so, he recognised all contact could not be avoided, for example, in the toilets. He also reminded both men of the importance of treating each other with dignity and respect and each were also told that any future problems between them were to be reported immediately. There was no evidence of further similar problems between the claimant and Mr Johnston. This was a one-off incident between the two men. Since Mr Steele was the relevant line manager and had not been a witness to the incident, the tribunal was satisfied, contrary to the claimant’s assertion, Mr Steele was properly entitled to investigate the matter.

4.6 The claimant appealed the decision of Mr Steele by letter dated 3 March 2011 in which he stated, inter alia:-

“ … I feel I must appeal as the company has let me down and left me ‘in limbo’ concerning my safety in my place of work.

The company mention mediation to iron out the issues between myself and Frank Johnston. Issues? I don’t have any issues with Frank Johnston … .”

The appeal was conducted by Mr Jason McCullough, the Production Manager of the Marvec Department, another department of the respondent.

Mr McCullough carried out a full investigation. He interviewed a number of relevant employees, including Mr Steele, and Mr Joe Heaney who had been present in the office, as set out previously, together with the claimant and Mr Johnston. There was no criticism by the claimant of this investigation by Mr McCullough. Although the claimant believed, in his heart, the result of the appeal, as notified by him to the claimant by letter dated 25 March 2011, was wrong, he understood and acknowledged the reasons given by Mr McCullough for finding the appeal was unsuccessful. Mr McCullough stated:-

“Further to your recent appeal hearing I would confirm that I have taken this matter extremely seriously and have carried out a detailed investigation. As there were no witnesses to this alleged incident and it is denied by the other party I am unable therefore to form a view as to whether or not this incident occurred. I am therefore unable to come to a conclusion on this matter.

It is not that I believe or dispute the events, simply that I cannot form a view on the facts before me.”

The claimant took no further action following this notification by Mr McCullough, such as involving the police.

4.7 Although the claimant insisted Mr Johnston, at the relevant time, was a part-time temporary worker the tribunal was satisfied this was not correct and was based on workshop gossip. Mr Johnston was a Team Leader for some 18¹/₂ years before he retired from the Polycarbonate Department of the respondent. The tribunal is satisfied that some two years after his retirement he was recruited not as a temporary worker but as an agency worker through a recruitment agency. At the time it was recognised by senior management there were production problems in the Foamalux Department and Mr Johnston was taken on, as an agency worker, given his previous experience in the Polycarbonate Department, to take on the part-time role of organising the Foamalux Department. He was hired through an agency on a part-time basis and paid through an agency. The tribunal is satisfied he was recruited by senior management of the respondent to undertake this specific job for which he had previous experience. The tribunal was satisfied Mr Johnston’s recruitment was not carried out by Mr Steele but at the level of senior management.

4.8 It was not disputed that the claimant was given a recorded verbal warning by Joe Heaney, the Process Technician in the Foamalux Department on 14 April 2011, which stated:-

“This is to confirm that a verbal warning was given to you on 14 April 2011 and has been entered on your personnel record. This warning is in respect of performance of duties below an acceptable standard.

You admitted that you signed for a load on 22 December 2010, as you were leaving site. In November 2010, following an incident regarding a load of K445 you were spoken to [tribunal’s emphasis] by myself and told the paperwork must not be signed for until the load has been inspected and discharged in the silo.

If there is not an immediate and sustained improvement in your conduct you may receive a formal written warning, as detailed in the Employee Handbook … .”

Section 13 of the Employee Handbook Disciplinary Procedure provides that a person committing minor misconduct will lead to an interview with Team Leader, Supervisor or Departmental Manager and, if after interview, it is decided an offence has occurred a verbal warning will be recorded and placed on file for a period of six months. The tribunal is satisfied there was no person formally employed by the respondent in the Foamalux Department as a ‘supervisor’; but there were persons employed in the Department who carried out supervisory duties, such as Mr Heaney, a process technician.

The tribunal is satisfied Mr Heaney, at the relevant time, was authorised by the management of the respondent to issue this recorded verbal warning. He was a Process Technician with supervisory responsibility as a junior member of Mr Steele’s management team and, in that capacity, he had delegated authority from Mr Steele to conduct such interviews for minor misconduct and issue recorded verbal warnings. The tribunal further accepts that it was custom and practice in that Department, and other Departments, for such Process Technicians to have such a role. In addition, Mr Heaney, at the relevant time, along with other Process Technicians, had previously been selected to participate in the respondent’s management development programme to enable such employees to progress through the company, develop their management capability, provide management support for the Production Manager, such as Mr Steele and, in time, hopefully become managers themselves. Further, in May 2010, Mr Heaney had been given training by the respondent in disciplinary and grievance procedures, which was given for those in such a supervisory capacity. It is to be noted this training and participation in the management programme took place long before any issue arose in relation to the delivery of material, the subject-matter of the warning, the subject-matter of this claim.

4.9 The claimant was informed he had a right of appeal, which he exercised by letter dated 14 April 2011 stating:-

“He wished to appeal the decision ‘Recorded Verbal Warning’ on the grounds of victimisation.”

In addition the claimant on 21 April 2011 lodged a grievance on the grounds of victimisation and, in particular, he requested that his appeal against the recorded verbal warning be adjourned until the outcome of his grievance for victimisation. This request was granted by the respondent.

4.10 In light of the foregoing, it is necessary to consider certain events that occurred in relation to a number of deliveries of material to the respondent (a PVC additive known as K445) in or about the last few months of 2010. In or about the middle of November 2010, the respondent was invoiced by its supplier for a delivery of K445, in the sum of £52,000.00 approximately, that had been received towards the end of August/beginning of September 2010. This was subsequently queried by the Accounts Department because there was no record of a delivery on the production stock sheets. An invoice, in the above sum, had been raised on the basis of a signed Proof of Delivery Docket (‘POD’). After an investigation, it was discovered that the claimant had initially signed the docket when the goods had arrived on site; but, in fact, the material was not physically unloaded, as it was not required due to lack of space and was returned to the suppliers, where it had remained.

The above invoicing difficulty, which involved considerable sums of money, had arisen because the claimant had signed the POD which stated goods had been received in good order and he had given it to the delivery driver before the material was unloaded. As set out above, the load was never delivered. In order to prevent such a situation occurring again, the tribunal is satisfied that the claimant, and also Mr McAuley, who had similar involvement in duties relating to delivery of material into the Department, were each verbally spoken to by Mr Steele, their line manager, about the importance of waiting until any material had been offloaded and checked before signing the POD. Indeed the claimant did not dispute, in evidence, that he had been spoken to by Mr Steele, which conversation was witnessed by Mr James Moore, a Senior Technician, now retired, and who had been closely involved in resolving what had actually happened to the delivery, the subject of the disputed invoice. The tribunal was satisfied that Mr Steele had taken a very serious view of what had taken place. It had potential serious financial consequences for the respondent, if it had to pay for goods, which had not in fact been delivered; in circumstances where this could not be shown to be wrong, because a POD had been signed for by an employee of the respondent showing there had been a delivery of material, with an invoice value of £52,000.00.

4.11 The tribunal is further satisfied that, in addition to speaking to the claimant and Mr McAuley, Mr Steele gave instructions to Mr Heaney to tighten up the Department’s material management. As part of this exercise, Mr Heaney, himself, also spoke to the claimant and Mr McAuley, as the men who were mainly responsible for receiving such materials to the Department, and gave them similar instructions to what had already been said to them by Mr Steele. Unfortunately, what was said was verbal and no written procedure was drawn up at that time. If such a written procedure had been adopted at that time, many of the issues that arose in these proceedings might have been avoided.

4.12 Mr Heaney contended, in evidence, that following this oral conversation with the claimant and Mr McAuley he prepared a file note of what he had said to each man, which he signed and which he subsequently had placed, by HR Department, on the claimant’s personnel file. The tribunal had considerable concerns about this file note and, in particular, when it was prepared by Mr Heaney.

The note stated, inter alia:-

“Delivery of Materials into Foamalux Dept (Nov 10)

Albert Patterson was involved with an issue surrounding a load of K445 that BM was invoiced for but did not receive. The load in question arrived at the Department but was not offloaded due to insufficient racking and was sent back to Woodsides yard. Albert had signed the paperwork indicating that the load was received. This resulted in an invoice for £52K, for a load that wasn’t recieved [sic].

The following issues were clarified with Albert –

1. Deliverys [sic] into the department must only be signed for once all of the goods have been offloaded and the delivery has been inspected to ensure that it is in good condition. The details and quantities contained in the paperwork must be checked to ensure it coincides with what has been left off before signing the paperwork.

2. The bulk offloading procedure was reinforced. For bulk PVC loads the ‘received in good order and condition’ section of the paperwork must not be signed for until the full load has been discharged into the side. When the weighbridge is working a weigh docket must accompany the paperwork. This must be checked against the quantities displayed on POD.

3. Albert was also reminded of the importance in following the correct procedure for loads received into the Department and the series [sic] consequences resulting in non-conformance.”

The tribunal has no doubt that what is set out in the note reflected and was consistent with the main points made by Mr Heaney to the claimant, during the course of his conversation with the claimant; namely he was told by Mr Heaney the paperwork must not be signed for until a load had been inspected and discharged in the silo. In essence, this was common sense. However the tribunal is not satisfied the conversation was as detailed as the file note would suggest. The tribunal noted that the claimant did not deny there had been such a conversation. Significantly, in the tribunal’s view, the file note did not give the date of the conversation, nor when it was signed by Mr Heaney and the claimant was never asked to sign it as an accurate record of the conversation. Whilst the recorded verbal warning reflected the oral conversation, it made no reference to the file note, which the tribunal found surprising, if it had existed at the time of the warning. No evidence was produced from the respondent’s Human Resources Department about when the file note was placed on the claimant’s personnel file and, in particular, confirmation it had been placed, as Mr Heaney suggested, on the claimant’s file some short time after the conversation. The existence of this file note only became apparent long after the warning had been given and only when the issue arose, during the subsequent appeal and grievance hearings (see later) in relation to whether there was a written procedure at the material time. As set out above, which the tribunal is satisfied there was no such procedure at the material time. In particular, no such written procedure was given to the claimant before the warning was issued; albeit he had been given an oral instruction in November 2010, as set out above. In the circumstances, the tribunal found Mr Heaney’s evidence on the existence of the file note and its placing on the claimant’s personnel file within a short period after the conversation in November 2010 less than credible. The tribunal concluded the file note was produced by Mr Heaney after the warning had been given by him; and when questions were raised about the absence of a written procedure.

4.13 In the period before Christmas 2010, there was severe weather and there were difficulties in operating the weighbridge and/or offloading material due to the severe weather conditions. After the Christmas/New Year break, Mr Heaney was aware that two loads were delivered on 22 December 2010 but only one was received and the other was returned to the supplier due to the bad weather and subsequently delivered on 4 January 2011. It appears that, on 22 December 2010, the weighbridge was not working, because it was frozen. The claimant was at the security gate, as he was leaving work, and he signed, in an effort to be helpful given the conditions, a delivery driver’s docket stating the delivery of PVC resin, which the driver had brought to the security gate, had been ‘received in good order and condition’; albeit at that time the load had not in fact been delivered. He told the driver where to unload the resin, but also to ensure he left his paperwork with the person in charge after he unloaded. Unfortunately, the driver did not leave the relevant paperwork for the load and issues then arose, in the New Year, whether the respondent had received the load and therefore required to pay for it in circumstances where there was no relevant paperwork for the load, other than the document signed by the claimant as he left from work on 22 December 2010, as referred to above. It thus left the respondent exposed to have to make a payment for which there was not the necessary relevant paperwork. Given the bad weather over the Christmas 2010 period and the difficulties with deliveries, the tribunal accepts it was sometime into the New Year before the Finance Department were alerted to the problem of this particular delivery and enquiries were commenced with the Foamalux Department to ascertain what had happened.

4.14 The claimant contended, in evidence, that he had on 4 January 2011 brought the delivery driver up to see Mr Heaney to explain there had been a delivery. The tribunal accepts he did so but has concluded the conversation was very brief, and he did not fully explain to Mr Heaney what delivery he was referring to, what had happened and how he had come to sign for a load, which had not at that time been delivered, which was contrary to what he had been told to do by Mr Heaney and Mr Steele in November 2010, following the earlier delivery of the K445 material. Certainly, Mr Heaney did not understand, which the tribunal accepts, from any conversation with the claimant on that day what had happened and indeed why the delivery driver had been brought up to the office. By mid-February 2011 the respondent had received an invoice for the resin and enquiries were commenced, as set out above, in the Department. Mr Heaney did not link the problem with this delivery with any conversation he had had with the claimant on 4 January 2011, as referred to above.

4.15 On 17 March 2011 Mr Heaney carried out an investigation meeting into the matter and in the course of that meeting Mr Heaney reminded the claimant of what he had been told by him in November 2010 and the instruction not to sign for any deliveries until the load had been received.

The claimant queried the absence of a written procedure, which did not exist at the time; albeit, as set out before, it would have been helpful if there had been. Indeed, the claimant knew very well there was no written procedure and, in the tribunal’s view, was seeking to use the absence of such a written procedure as part of his defence to the issuing of the recorded verbal warning. However, significantly, he did not dispute that, contrary to the earlier verbal instruction in November 2012 by Mr Heaney, he had signed the document on 22 December 2010, at a time when the delivery had not been made and indeed he had left the respondent’s premises immediately after signing the document for the delivery driver. On 11 April 2011, the claimant was informed a disciplinary hearing would take place and was warned a possible result would be a finding of minor misconduct, which could result in a recorded verbal warning. The hearing was held on 12 April 2011.

In the Minutes, Mr Heaney at the outset of the meeting – outlined a summary of what had been established in his investigation:-

“We have established that you signed for the load before the holidays as you left the site. That was not the correct procedure as you know that you should have waited until was fully off before you sign anything. You were aware of the procedure before you received the PVC load. This was reiterated to both yourself and Andy on the back of a previous incident re the K445 load that caused an issue internally and based on that we made you aware of the procedure and explained it to you.”

The claimant, in essence, did not dispute what had been established but asked to see whether there was any written procedure. As seen previously, there was none; there was only the verbal procedure outlined to him in November 2010. Mr Heaney, the tribunal noted, did not produce the file note, referred to previously, during this meeting, which the tribunal would have expected him to do, if it was in existence at that time.

4.16 The claimant then on 14 April 2010 received from Mr Heaney the recorded verbal warning, referred to previously. The tribunal is satisfied this decision was taken by Mr Heaney, in his capacity as a supervisor and a junior member of Mr Steele’s management team and that he took the decision alone, after carrying out his said investigation and was not instructed/advised/encouraged by Mr Steele to issue the said warning.

4.17 Subsequent to these events, a proper written procedure has been introduced by the respondent, which hopefully, will bring clarity to the procedures to be employed by employees when materials are brought to the respondent’s premises. However, as these written procedures were not in force at the time of the matters, the subject-matter of this hearing, it was not necessary for the tribunal to consider them further for the purposes of this decision, although the tribunal was concerned there was some evidence that, since its introduction, it has not been properly followed by employees, including Mr Heaney, the author of the procedure.

4.18 As the claimant had asked that his grievance should be determined before the appeal against the recorded verbal warning was heard, the outcome of that appeal was delayed and it was, as a consequence, not until, by letter dated 26 October 2011, he was informed by Mr McGrath, the Production Director, who determined the appeal, it was successful. He was informed as follows:-

“Recorded Verbal Warning

I have no doubt that the investigation that took place by Joe Heaney that resulted in you receiving a Recorded Verbal Warning was appropriate, given the importance of tight material management to our business. However, I have concluded that the Recorded Verbal Warning which was given to you on 14 April by Joe Heaney was an inappropriate sanction given the circumstances and on this occasion should be withdrawn. I recommend that any reference to it is removed from your personnel file.”

The tribunal is satisfied that the recommendation was followed; but it also acknowledges that it did remain on the claimant’s file from April 2011 to October 2011 and, during that period, he therefore remained the subject of a disciplinary sanction. If the tribunal had found the respondent liable for the claimant’s claim (see later in this decision) the tribunal would have had to consider the relevance, if any, of this to the size of any remedy to which the claimant was entitled.

The tribunal fully accepts that Mr McGrath, as he said in evidence, decided to withdraw the recorded verbal warning arising out of the mitigating circumstances around the Christmas period exacerbated by the extreme weather, including the fact the weighbridge was frozen and that the claimant had already completed his shift. He had also accepted, after giving the claimant the benefit of the doubt that the claimant had found himself in an unfortunate situation as the delivery arrived just as he was waiting to go home at the gate. He also concluded that; although the claimant did not follow the instruction he had previously been given by Mr Heaney, he did not believe the claimant intended to deliberately ignore the procedure but, in the circumstances, was attempting to assist.

4.19 The claimant’s grievance was investigated by Mr Des Reid, the Product Development Manager. He accepted that although the claimant was at no time shown, prior to the grievance hearing in May/June 2011, the written document relating to his conversation with the claimant in November 2010 relating to the K445 delivery prepared by Mr Heaney, to which earlier reference has been made, the claimant was aware of the relevant procedures and, in particular, not to sign for a delivery until after the delivery following his verbal conversation with Mr Heaney in November 2010.

4.20 The claimant, in his grievance, complained that he had been victimised in the Foamalux Department by either Mr Steele, the Department Manager and/or Mr Heaney, the Process Technician. At the heart of his said grievance was that he was ‘being fitted up’; because he had put in an official complaint against Frank Johnston for an assault against himself and verbal threats; and this was “because Johnston is the manager’s friend and they have tried to dig ‘up dirt on me for the previous four months’’’ and Joe Heaney was part of Mr Steele’s clique.

Mr Reid, after carrying out an investigation involving interviewing 11 employees concluded that none of the claimant’s evidence led him to believe that the claimant was being victimised in the Foamalux Department by either Mr Steele or Mr Heaney. He also recommended although the claimant had insisted he had no issues with Frank Johnston, that mediation should take place to resolve the current breakdown of relationships and the separation issue within the Foamalux Department between the claimant and Frank Johnston. He also insisted the outcome of the grievance should have no relation to the outcome of the appeal against the Recorded Verbal Warning. The tribunal had no doubt that Mr Johnston and Mr Steele had a proper professional working relationship; which required them, at times, to work together and/or have contact in carrying out their respective duties. Mr Heaney was required to work with Mr Steele as a junior member of Mr Steele’s management team. The tribunal, despite the claimant’s assertions to the contrary, could find there was no credible evidence to suggest that Mr Steele and Mr Johnston and/or Mr Heaney were friends, social or otherwise, or Mr Heaney could be thought of as part of Mr Steele’s clique, merely because he was a junior member of his management.

4.21 The claimant also appealed the outcome of the grievance for victimisation, which was also heard by Mr McGrath. Mr McGrath concluded, as set out in his letter dated 26 October 2011 to the claimant:-

“The premise of your grievance was that you suffered victimisation by Alvin Steele and Joe Heaney as a result of raising the matter of the alleged assault on you by Frank Johnston. I have considered the points made during your original hearing with Des Reid and the subsequent statements supporting your grounds for appeal letter. I do not believe that the warning that you received in April was brought on because you raised the issue of the alleged assault. My conclusion is that the decision taken by Des Reid into your victimisation allegation is upheld.”

4.22 There was no evidence that any other employee had been spoken to about delivery procedures, as the claimant and Mr McAuley were spoken to, following the problems with the delivery of the load of K445, worth some £52,000.00. It was not therefore surprising, in the view of the tribunal, there was no evidence of any other employee being disciplined in a similar way to the claimant and also in circumstances where there was not , at the relevant time, a written procedure for deliveries to the respondent.

5.1 In light of the facts as found by the tribunal and the legislative provisions and legal authorities referred to in this decision, the tribunal came to the following conclusions, as set out in the following sub-paragraphs.

5.2 The first issue for the tribunal to determine was whether there had been a qualifying disclosure within the terms of Article 67A and 67B of the 1996 Order. The tribunal does not underestimate the difficulty of determining this issue, not least in view of the decision in the case of Cavendish Munroe and the distinction set out therein between conveying facts and making an allegation. Indeed, this is often easier to state than to apply the particular fact situations and, in circumstances, where each case is fact-sensitive. As was both properly recognised by both representatives, if the claimant failed to establish he had made a qualifying disclosure, his claim would fail.

The tribunal, not without some hesitation, concluded that when the claimant wrote to the respondent on 31 January 2011, stating, inter alia:-

“I wish to lodge an official complaint against temporary worker Johnston Foam Department for physical assault and verbal threats against myself on Friday 28^th of January 2011,”

he was conveying/disclosing information. In the tribunal’s judgment, it was more than merely making an allegation and he was stating, as a fact, he believed he had been the subject of such an assault and threat. The tribunal also considered it was necessary to look at what was written by the claimant in a non-technical way. Inevitably, in disclosing the above information, it can be argued it contained some element of an allegation by the claimant; but, in the tribunal’s view, it disclosed much more than that and was stating, as set out above, he believed he had been assaulted and the subject of a verbal threat. The detail provided was limited; but, in the context of the workplace where the persons and places were known, sufficient information was provided. In any event, this was expanded upon, whenever Mr Steele carried out his preliminary investigation. Indeed, if it had been necessary to do so, the tribunal would have decided that taking together both the letter and the minutes of what the claimant had said to Mr Steele at the preliminary investigation, the claimant had made the necessary disclosure of information and it was not a mere allegation.

5.3 Having established the first element, as set out in the case of Easwaran, the tribunal then considered whether the information tended to show [tribunal’s emphasis] a criminal offence had been committed and/or the health & safety of the claimant had been or was likely to be endangered (see Article 67B(1)(a)(d) of the 1976 Order). The claimant referred to physical assault and verbal threat, in his letter, which he then expanded upon during the course of the preliminary investigation, as set out in the minutes, with reference to ‘prodding in the chest with his finger’, ‘poking his finger at him’. Again this requires to be considered in a non-technical manner and with a broad purposeful approach. The tribunal had no doubt the claimant had set out sufficient in his said disclosure to tend [tribunal’s emphasis] to show a criminal offence had been committed but also that, in the circumstances of such an assault/threat, his health or safety had been endangered. Further, in so concluding, the tribunal was satisfied the belief of the claimant was at all times reasonable. As set out previously, it was not necessary for the tribunal to be satisfied the information was actually true and the tribunal has no doubt, in the light of the facts found by it, that the claimant, at the time of the disclosure, had the necessary belief that he had been so assaulted/threatened by Mr Johnston. Indeed, in the course of Mr McCullough’s investigation, Mr Johnston did not dispute that there had been an altercation with the claimant, albeit he disputed the extent of that altercation.

5.4 The tribunal was satisfied the imposition of the recorded verbal warning on 14 April 2011 was a detriment for the purposes of the claimant’s claim and remained so for the period it was imposed and on his file; and whilst this disciplinary sanction remained on his file was, in the tribunal’s view, to his disadvantage in the circumstances and conditions in which he had to work (see Shamoon). As stated previously, if the tribunal had had to consider any remedy to which the claimant was entitled, the fact that the warning was removed on appeal would have been relevant to the amount of any compensation to which the claimant was entitled. As now established in the Fecitt decision, the provisions of Article 70B of the 1996 Order do not expressly expose liability to anyone other than the employer. The warning, the subject-matter of the detriment, was imposed by Mr Heaney, a fellow employee of the claimant. However, the tribunal is satisfied that Mr Heaney was properly authorised and delegated the necessary managerial responsibility to impose the warning and, applying the principles set out in Paragraph 7.42 of ‘Whistleblowing Law and Practice 2^nd Edition’, referred to previously, the tribunal was satisfied the respondent could therefore be liable for the imposition of such a disciplinary sanction; albeit it was imposed by Mr Heaney on behalf of the respondent and with its authority.

5.5 In light of the foregoing, the tribunal therefore had to determine whether the protected disclosure by the claimant materially influenced the respondent’s treatment of the claimant when it imposed the recorded verbal warning (see Fecitt). The tribunal, on the facts found by it, could not find such any influence.

The tribunal was satisfied Mr Heaney had no direct involvement in the incident between Mr Johnston and the claimant, other than he had initially spoken to Mr Johnston to ascertain the position about the regrind situation, on instruction from Mr Steele, following a complaint about the regrind situation made by the claimant to Mr Steele. He was not present with the incident occurred between the claimant and Mr Johnston. The complaint of assault/verbal threat made by the claimant was properly investigated and treated seriously by Mr Steele and, on appeal, again investigated and treated seriously by Mr McCullough. There were no further incidents between the claimant and Mr Johnston and the claimant insisted that there was no ongoing issue between them. Mr McCullough, in view of the conflict of fact and the absence of any witnesses in relation to the incident, decided he could not reach any conclusion on the facts before him, which decision the claimant recognised Mr McCullough was entitled to reach in the circumstances. It was a one-off incident, which was, no doubt, of considerable importance to the claimant; but it was an incident which, in the tribunal’s view, was properly dealt with by Mr Steele and Mr McCullough. There was no evidence of any close friendly relationship between Mr Steele and/or Mr Heaney with Mr Johnston or that Mr Heaney was part of a clique with Mr Steele. Mr Steele was not responsible for Mr Johnston’s employment as an agency worker, despite the claimant’s assertion to the contrary, which was based, not on fact, but on workshop gossip. Further, Mr Heaney was at all times authorised to impose a recorded verbal warning, having been given relevant training and/or participated in the management programme, to enable him to carry out such junior management tasks, albeit he remained a Process Technician. Other Process Technicians had been given similar training and had participated in similar management programmes. This was not something unique to Mr Heaney or in the gift of Mr Steele but rather had been arranged by the senior management, who obviously had spotted the potential of Mr Heaney and/or other Process Technicians. Further, the tribunal was not satisfied there was any evidence of ‘digging up dirt’ by Mr Steele and/or Mr Heaney in order to have the claimant disciplined.

However, there was evidence that a serious incident had occurred involving the claimant, relating to delivery to a load of K445. After this, it was verbally impressed on the claimant, in November 2010, by not only Mr Steele but also Mr Heaney, the importance of not signing a delivery docket until the end of the process, when a delivery was completed. Indeed, this would seem to have been common sense and readily understood by the claimant. The seriousness of what had happened could not be underestimated, given that a sum of £52,000.00 was involved. Shortly thereafter, a further incident involving the claimant occurred relating to delivery of material on 22 December 2010, when again the claimant had wrongly signed the delivery docket before the delivery was completed and contrary to what he had been told in November 2010 by both Mr Steele and Mr Heaney, as referred to above. Although the tribunal does not accept Mr Heaney’s evidence about when the file note, dated November 2010, was actually prepared, the tribunal has no doubt there was the said verbal conversation between the claimant and Mr Heaney about how he was to complete deliveries in November 2010. If there had not been that conversation, the tribunal’s conclusions in relation to the file note would have been of much greater relevance to the determination of the issues in this matter. It also has to be recognised that the fact that a witness is wrong about one piece of his evidence, does not mean he is wrong about another. Indeed, for the tribunal, the crucial fact was that the claimant himself did not dispute that there was such a verbal conversation instructing him not to sign the relevant paperwork until the delivery had been completed. There never was a written procedure and indeed the warning imposed on the claimant did not refer to breach of any such written procedure. It only referred to what the claimant was told by Mr Heaney in that conversation. In the tribunal’s view, whenever Mr Heaney found a further breach in 2011 by the claimant, contrary to what the claimant had been expressly told by him in November 2010, it was not surprising therefore that he imposed a recorded verbal warning on the claimant. This, in the tribunal’s view, on the evidence before it, had nothing to do with the fact of the incident with Mr Johnston and his raising of the incident with the respondent. The fact that ultimately Mr McGrath, who is a member of senior management, unlike Mr Heaney, for good reasons, decided that, although there had been a breach in relation to the delivery on 22 December 2010 of the instruction the claimant had previously been told in November 2010 in relation to how to handle deliveries, there were mitigating circumstances, which allowed him to remove the warning, this was of no assistance to the claimant in establishing the necessary linkage between the protected disclosure and the imposition of the disciplinary sanction. The tribunal considers that the claimant has sought to use his complaint about the incident with Mr Johnston, in order to try to excuse his failure to carry out in December 2010 the procedure which he had been verbally told to carry out in November 2010 when the verbal warning was imposed. Although the actual delivery was made on 22 December 2010, the tribunal accepts that it was not until the New Year before the Finance Department commenced enquiries to reconcile the paperwork relating to the delivery and this accounted for the delay in the commencement of the disciplinary process until March 2011, which resulted in the imposition of the warning. This was not part of any attempt by Mr Steele and/or Mr Heaney to dig up dirt on the claimant because of the claimant’s disclosure of the incident involved Mr Johnston.

5.6 The tribunal was therefore not satisfied the claimant had been subjected to a detriment on the ground that he had made a protected disclosure. The claimant’s claim is therefore dismissed.

Chairman:

Date and place of hearing: 16 – 20 April 2012, Belfast

Date decision recorded in register and issued to parties:

THE INDUSTRIAL TRIBUNALS

CASE REF: 1597/11

CLAIMANT: Albert Patterson

RESPONDENT: Brett Martin Ltd

RULING OF THE TRIBUNAL

1.1 The respondent’s representative at the commencement of the substantive hearing made an application that the tribunal should not admit in evidence certain paragraphs/parts of paragraphs contained in the witness statements of the claimant and in the witness statement of one of his witnesses, Derek Jamison, which referred to certain matters contained in and/or arising from the decision of the industrial tribunal in the case of Zubin v Brett Martin Ltd, which decision was recorded in the Register and issued to the parties on 3 March 2010 ([2010] NIIT 00261). The application was made on the grounds the said evidence was not relevant and/or insufficiently relevant to the issues to be determined by the tribunal. The respondent’s representative had previously sought a pre-hearing review to determine the above application; but this was refused by the Vice President, who directed the said application should be considered and determined by the tribunal at the commencement of the substantive hearing and/or as it considered necessary and appropriate. At the commencement of the substantive hearing, the respondent’s representative renewed his application.

1.2 It should be noted that in accordance with the decision in the Court of Appeal in Veitch v Red Sky Group Ltd [2010] NICA 39, the Vice President at a Case Management Discussion, on 22 September 2011, had made an order, by consent, that the tribunal would read the witness statements which had been prepared and exchanged between the parties, in advance of the commencement of the hearing. The tribunal had therefore read all the said witness statements prior to considering and determining this application.

1.3 Under Rule 14(2) of the Industrial Tribunals Rules of Procedure 2005, it is provided that:-

“Insofar as it is appropriate to do so the Chairman or tribunal shall seek to avoid formality in his or its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts.”

In interpreting these Rules of Procedure and/or exercising any power given under the Rules, the Chairman or tribunal is required to give effect to the terms of the overriding objective (Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005). The overriding objective is to enable tribunals and Chairmen to deal with cases justly. Dealing with a case justly includes, so far as practicable:-

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(d) saving expense.

1.4 The present claim before the tribunal is a claim pursuant to Article 70B(1) of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’):-

“A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

1.5 In the case of Zubin v Brett Martin Ltd, the tribunal, as set out in the decision, found that ‘the claimant was discriminated against on grounds of race and was unfairly dismissed’. In a lengthy judgment, of some 32 pages, the tribunal set out its reasons for its said decision. It must be remembered this first instance decision is not binding on this tribunal. In the course of its judgment, the tribunal made certain findings of fact and referred to various issues of law, including the relevant legislation and case law before, in light of same, it reached its said decision. It has to be noted, in particular, that the issue of race was the main focus/central issue of the tribunal’s conclusions on the evidence. Race is not the main focus/central issue in the present case. In the Zubin case the tribunal decided, in particular, that the claimant’s dismissal amounted to an act of victimisation on grounds of race and was therefore discriminatory and unfair. In the present case, insofar as it may be referred to as a ‘victimisation’ claim, race is not the main focus/central issue, which grounds liability; but rather it is the alleged protected disclosure of the claimant.

1.6 The respondent’s representative, in his submission, emphasised he did not seek to prevent the claimant from making relevant submissions, at the conclusion of the evidence, based on the decision issued in the Zubin case, insofar as the claimant might consider the decision was relevant to the issues to be determined by the tribunal in the present case.

1.7 In essence, the respondent’s representative contended that those paragraphs in the claimant’s statement, in particular those parts of Paragraph 17 and 54 of his witness statement, insofar as it made reference to the decision in the Zubin case, should be excluded on the grounds such matters, as set out by him as evidence, were not evidence and/or relevant and should not therefore be admitted. In this context, it must be also noted that the claimant was not involved himself in the Zubin case, either as a witness or otherwise. The respondent’s representative also contended that those paragraphs in the witness statement of Derek Jamison, and, in particular, those parts of Paragraph 16, insofar as it referred to the decision in the Zubin case, should also be excluded on the grounds such matters, as set out by him in evidence, were also not evidence and/or relevant and should not therefore be admitted in evidence. However, it is correct to note that, in contrast to the claimant, the tribunal in the Zubin case heard evidence from Mr Jamison.

1.8 It is not the function of this tribunal to re-hear and/or to re-open the Zubin case and, in particular, any findings of fact made by the tribunal in that case.

1.9 The claimant’s representative in his letter to the tribunal relating to this application, and again in the course of his submissions, accepted that the matters, set out in the above paragraphs by the claimant and his witness, Mr Jamison, were ‘background information’ and not determinative of the issues the tribunal had to determine in the present case. In the course of his submissions, in relation to such ‘background’ information, he referred to the findings in the Zubin case to certain actions of Mr Steele and/or Ms Mooney.

1.10 In the recent decision of the Fair Employment Tribunal in the case of HSBC Asia Holdings BV and Another v Gillespie [2010] UKEAT/0417, Underhill P has summarised the applicable principles relating to the issues of admissibility of evidence in tribunals. Although the decision is not binding on this tribunal, the tribunal could see no reason why the principles set out therein should not be followed in this jurisdiction (see, in particular, Paragraph 13), in the absence of any other relevant decision by the Northern Ireland Court of Appeal. It appears from the above guidance in Gillespie that a tribunal has a wide discretion whether to exclude evidence which is not ‘sufficiently relevant’. Indeed, Underhill P suggest employment tribunals should be rather more willing to exclude irrelevant or marginally relevant evidence.

1.11 The tribunal, in the present case, concluded, at this stage of the proceedings, that what Mr Steele and/or Ms Mooney may have been found to have done or not done in the Zubin case, which was a race case and it was that element which made it unlawful, could not, in the circumstances, give rise to issues of similar fact evidence, as suggested by the claimant’s representative The tribunal recognises both Zubin and the present case, may involve issues of ‘victimisation’ but the basis, both factual and legal, which give rises to liability in each case are very different.

1.12 For evidence to be relevant it has to be ‘logically probative or disprobative’ of some matter which requires proof … relevant (ie logically probative or disprobative) evidence is evidence which makes the matter, which requires proof, more or less probable (see further O’Brien v Chief Constable of South Wales Police [2005] 2 AC 539 and Paragraph 13 of the judgment in HSBC Asia Holdings case).

The tribunal has considered carefully the contents of the disputed paragraphs, as referred to above. A witness statement is meant to contain evidence relevant to the issues in the matter. In particular, it is not an opportunity to make submissions. The tribunal has concluded that by the manner in which reference was made to the decision in the Zubin case, in their witness statements in the disputed paragraphs, neither the claimant nor Mr Jamison were putting forward factual evidence; but rather, in reality, were seeking to make submissions in the course of a witness statement. That is not the function of a witness statement. As stated previously, there is no dispute that, at the conclusion of the evidence, the claimant’s representative will be entitled to make submissions, which may include, insofar as appropriate, reference to the decision in the Zubin case; but only insofar as may be relevant.

Indeed, when challenged by the tribunal what specific parts of the decision in the Zubin case were sought to be relied upon, the claimant’s representative was somewhat general in his response, and, referring in general to the findings of fact, in relation to the actions of Mr Steele and/or Ms Mooney, and then to the complexity of the decision and the reasons given and the need to read the whole decision in context. This emphasised, in the tribunal’s opinion, that the claimant and Mr Jamison, in the course of their witness statements, were merely seeking to ‘comment’ on the findings in the Zubin decision and its potential relevance to the present case. That is not the function of a witness statement. Further, the tribunal has to be slow to allow itself to be so diverted on such a background issue and/or to allow itself to re-open the Zubin case and/or to allow the facts found and the issues determined, in the Zubin case, to be the focus of the present case.

2.1 Therefore, the tribunal decided it would exclude and not admit in evidence, from the said paragraphs of the claimant’s witness statement and the witness statement of Mr Jamison, all references to the Zubin decision.

2.2 Even, if the tribunal is wrong and what has been set out in the said paragraphs of each witness statement was evidence and appropriate to be included in a witness statement, rather than the subject of submission at the conclusion of the hearing, the tribunal, given the different factual matrix of both claims, concluded the evidence in the said paragraphs, if that is what it was, could not be considered to be anything more than of marginal or peripheral relevance. In such circumstances, the tribunal, therefore, would also have required to be excluded and not admitted in evidence the said references to the Zubin decision in the witness statements of the claimant and Mr Jamison, having regard to the tribunal’s wide discretion, its case-management powers in such matters and the terms of the overriding objective (see further Gillespie).

2.3 In light of the tribunal’s decision, as set out above, but subject to any objections by the representatives of the parties, the tribunal, in light of the terms of the overriding objective, did not consider it was necessary, in the circumstances, for the said witness statements to be re-drafted in order to comply with this Ruling. There were no such objections.

NEIL DRENNAN QC

Chairman:

Date: 17 April 2012