Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1608/16

 

 

 

CLAIMANT: Dr Edward Cooke

 

 

RESPONDENT: Woodvale and Shankill Community Housing Association

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant's claims of constructive dismissal and detriment on grounds of having made protected disclosures are dismissed as set out in paragraph 7 of this decision.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Crothers

Members: Mr R Hanna

Ms E Gilmartin

 

Appearances:

The claimant was present and represented himself.

The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by BLM Solicitors.

 

THE CLAIM

 

1. (1) In his claim presented to the tribunal on 4 July 2016, the claimant claimed constructive dismissal against the respondent for allegedly making it impossible for him to continue in his contract of employment because of the respondent's breaches of health and safety (CDM 2007) Regulations), procurement breaches, DSD audit (2014 recommendation) breaches, charity commission breaches, and various alleged contractual breaches, which he further detailed at paragraph 8 of his claim form.

 

(2) The respondent denied the claimant's allegations in their entirety.

 

(3) At a Pre-Hearing Review held on 3 November 2016, the claimant was given leave to amend his claim to include a protected disclosure claim in the following respects:-

 

"(i) constructive dismissal on grounds of having made a protected disclosure; and

 

(ii) detriment on grounds of having made a disclosure in the respects set out at paragraph 8 above".

 

(4) Paragraph 8 in the Pre-Hearing Review Decision helpfully summarises the scope of the claimant's protected disclosure claim as follows:-

 

(a) That he was subjected to detriment when he received a letter on
5 September 2015 from the respondent saying that his duties had been removed and he was effectively silenced following a period of his having raised concerns about health and safety and other breaches from the outset of his employment.

 

(b) That from early on in his contract (that is from July 2015) the claimant raised issues about health and safety and, as a consequence, was ignored; was not consulted in areas that he had responsibility for; and, in particular, there was a diminution of his work between January and June 2016 resulting in him being under-utilised and effectively "twiddling his thumbs" instead of working.

 

(c) That he resigned in response to a last straw event which occurred in June 2016. The claimant confirmed at the PHR what he had said at the CMD on 5 October 2016 in this regard namely:

 

(i) That he had raised his issues on a continuing basis and this culminated in his raising concerns and objections in June 2016 in relation to the work being given to the subsidiary company and its intention to bring in the ex-chairman as a foreman.

 

(ii) The claimant became aware two to three days before he resigned that the ex-chairman was proceeding to do that work and he therefore realised that his concerns and objections had effectively been ignored.

 

(iii) The claimant feared damage to his reputation and the last straw was the fact that they progressed with this contractor against his advice and that he was being ignored.

(iv) The claimant connects his resignation to the issues raised because it is his case that what the respondent was doing was potentially unlawful as regards procurement processes and he had health and safety concerns particularly in relation to fire safety.

 

(5) The claimant also made clear at the Pre-Hearing Review that he was relying on his 36 page resignation report (to include appendices) dated
26 June 2016 and on his resignation notice letter of 14 June 2016. The respondent made a fulsome reply to the claimant's resignation report in correspondence to him of 18 July 2016 and, at the substantive hearing, denied his protected disclosure allegations in their entirety and raised the issue that part of his claim in this regard was out-of-time. The respondent also denied that the claimant was constructively dismissed.

 

ISSUES

 

2. The following issues were agreed as follows:-

 

Legal Issues

 

(1) Did the claimant suffer a detriment on grounds of having made protected disclosures?

 

(2) Was any part of his claim out-of-time, and if so, should time be extended?

 

(3) Was the claimant constructively dismissed?

 

FACTUAL ISSUES

 

(1) Was the respondent guilty of any legal failures in respect of health and safety and other identified issues in respect of 79 Ballygomartin Road, Cambrai Street (Offices) and Rosebank Street, and any other identified property?

 

(2) Was the claimant unlawfully excluded from the respondent's pension scheme?

 

(3) Was there a breach of Charity Commission legislation in respect to 73 Kilcoole Gardens?

 

(4) Were there legal failures in respect of the maintenance tender including the pilot and relevant health and safety issues?

(5) Were there legal failures in respect of the Green Energy Scheme including procurement anomalies and conflicts of interest?

(6) Why did the claimant resign?

 

SOURCES OF EVIDENCE

 

3. The tribunal heard evidence from the claimant and, on the respondent's behalf, from Michael McDowell of Toner McDowell Chartered Accountants (who provided management services to the respondent and acted, on occasions, as its Chief Executive Officer), Sarah Swain, Operations Director, Jocelyn Dunn, Business Director, Chris Campbell, Chairman of the Respondents' Board, Edward Quigg of Quigg Golden (an expert retained by the respondent to deal mainly with procurement issues). The tribunal also received an agreed bundle of documents together with additional documents in the course of the hearing.

 

FINDINGS OF FACT

 

4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

 

(i) The claimant, who has worked for over 35 years in the Northern Ireland Housing Association Sector, and had previously been a Board Member with the respondent, was employed by the respondent on a two year fixed term contract in the position of Building Surveyor from 1 June 2015 until his resignation on 14 June 2016. He presented his claim to the tribunal on
4 July 2016.

 

(ii) In correspondence to the respondent dated 23 August 2015 enclosing a report entitled:-

 

"Senior Management Team

 

Clanmil Civil Action - 3 Streets Projects Workmanship/Design Defects", the claimant describes himself as a "Building Surveyor" and adds the following qualifications at the end:-

 

"BA, BSc (arch), BSc (blg), LLb. (Law and Government)

PGD (Property Development), PGD (Administration and Law)

MSc (Environmental Management), MSc (Construction Management)

LLM (Corporate Governance and Public policy), LLM (Environmental law)

MA (Legislative Studies and Practice)
MRICS, MAPS."

 

(iii) Although the claimant's job specification is broad, the tribunal accepts that on 4 September 2015, the respondent invited the claimant to concentrate on certain duties. At that stage the claimant had raised various health and safety concerns over houses, particularly in Rosebank Street and Cambrai Street as part of what was termed "The 3 Streets Project". Sarah Swain's
correspondence of 4 September 2015 articulates the respondent's position, in the context of ongoing civil litigation, as follows:-

"Edward

 

In response to your email from yesterday.

 

Firstly the Association is not ignoring the on-going issues within the three streets.

 

I can assure you the BoM and SMT have indeed took this matter very seriously. I had a conversation with you two weeks ago and informed you that three streets scheme was subject to litigation, you are also well aware that the Association employed Johnston Houston to carry out an independent survey at the scheme because I passed you this information.

 

I understand that you are frustrated and have issues with the delivery of the scheme (as are the SMT and BoM) however, the Association need to leave this in the hands of the legal team. If there are breaches in building regulations/CDM regulations I am sure that this will be uncovered through the legal process.

 

The Association recognised the serious issues within the three streets scheme and need for technical expertise hence the employment of a Building Surveyor.

 

For the avoidance of any doubt we expect you to concentrate on the following;

 

To progress the Disraeli/Cambrai St contract and complete any outstanding work schedules for the properties;

 

To progress 79 Ballygomartin Road as quickly as possible;

 

To prepare paperwork on the void properties at Cambrai and Rathlin Streets, with a view to having them demolished (with possibly submitting outline planning permission at the same time?)

 

Preparing drawings for the filing/DLO areas and estimated costs; and

 

Preparing works schedules for the next properties we need to include in the planned maintenance programme again with estimated costings.

 

I cannot stress enough how important it is for you to concentrate on the above.

 

If you need to speak to me about anything please feel free to do so.

 

Sarah"

 

(iv) The tribunal was made aware that the respondent did not appear to have a designated officer for health and safety issues. Although the claimant involved himself in matters outside the framework of the foregoing correspondence from Sarah Swain, the tribunal does accept that he had genuine concerns over fire and safety issues, particularly relating to houses in Rosebank Street and Cambrai Street which he viewed as being unsafe and posing the risk of injury to tenants because of deficiencies in respect of the provision of stair rails and fire escapes. The tenants included elderly people. The tribunal accepts that the respondent did nevertheless investigate issues raised by the claimant with the Health and Safety Executive and AECOM. The Chairman of the Respondents' Board, Sam Robinson, who the tribunal accepts resigned at the end of December 2015, had approached Belfast City Council regarding issues raised by the claimant. Correspondence to the claimant from Mr Hewitt of Belfast City Council dated 7 October 2016, (the claimant having resigned on 14 June 2016), states, in relation to the fire safety concerns in the refurbished houses in Rosebank Street and Cambrai Street area, Belfast (the "3 Streets Project") that:-

 

"With reference to your concerns I should firstly point out that while the specific requirements concerning fire safety which you mentioned, such as protected stairways, are indeed applicable to new build properties, the Building Regulations legislation and its associated fire safety guidance cannot be applied retrospectively to the existing properties. In enforcing the Building Regulations the Council can only operate within that legislative framework and cannot compel a property owner to bring an existing property up to the standards of the current Building Regulations".

 

Later in the same correspondence, in relation to the issue of the building completion certificates, (a number of which was shown to the tribunal during the hearing), Mr Hewitt states:-

 

"As stated the issue of a completion certificate only relates to the completion of the works to which that application relates, it should not be considered as meaning there is nothing that could be construed as a health and safety risk within the whole building".

 

(v) In light of its finding that Sam Robinson resigned as Board Chairman at the end of December 2015, (and not, as incorrectly stated, 31 May 2016 in the respondent's report of the financial statements documentation for year ending 31 March 2016), the tribunal is satisfied that the claimant's subsequent concerns regarding a planned competitive tendering exercise for 51 houses being amended and his further concerns that a pilot scheme for four houses was to be undertaken by Sam Robinson, or a company owned by him, are in fact without any real foundation. The tribunal accepts that the respondent was embarking on a pilot scheme in relation to four houses as the responses to the tender for the 51 houses was not providing value for money. Sam Robinson, who had already resigned as Chairman, was not awarded the work. Instead, the respondent used a wholly owned subsidiary, WGS Property Enterprises Limited, ("the subsidiary") to carry out the work, using Sam Robinson on an ad-hoc basis to oversee the work as a Consultant/Foreman. He ceased this role in October 2016. The tribunal has no basis to doubt the factual accuracy of Mr Quigg's summary of the position in paragraph 2.31 of his Expert Report as follows:-

 

"(a) WSCHA awarded a contract to a wholly owned subsidiary to carry out works. It did not award a contract to an ex-chairperson or a company owned by him.

 

(b) As a result no procurement obligations arise.

 

(c) The award for the 4 house pilot scheme was recommended by AECOM.

 

(d) The award for the remaining 47 houses was only made after AECOM were asked to and did inspect the pilot scheme and report back.

 

(e) There is no record of H&S or quality issues with WGS PE."

 

(vi) The claimant also raised concerns in relation to a contract for Green Energy RHI Boilers. At a board meeting of the respondent on 4 October 2015, a discussion paper set out options for installing three bio-mass boilers costing around £900,000.00. It was agreed that the respondent would move forward on the installation. In January 2016, an advertisement was placed for "expressions of interest for bio-mass, a three-sheltered schemes and PV systems for 300 general family need properties - supply and install companies only", on the NIFHA website with a deadline of Friday 15 January 2016 at 12 noon. It appears that five companies responded to the advertisement. However, in early February 2016, the respondent was informed that the RHI scheme was closing in late January/early February 2016. As Jocelyn Dunn put it in her cross-examination, it was a case of "use it or lose it". There was clearly insufficient time for a tender exercise to be conducted and completed and the respondent decided to appoint Green Energy Technology (GET). The claimant was concerned that this breached procurement legislation and involved a conflict of interest as Mr McDowell acted as the accountant for GET. However, GET had previously provided free advice to the respondent. Furthermore, as Mr Quigg explained in his expert evidence, Regulation 32c of the Public Contracts Regulations 2015 expressly provides for an exemption from the normal procurement procedures, in cases of extreme urgency such as the situation which presented itself to the respondent. In such a situation the time-limits for a tender could not be complied with. The tribunal therefore accepts that the respondent acted appropriately in appointing GET, about which it had previous knowledge. Moreover, the claimant did not cross-examine Mr McDowell on the green energy issue and focused mainly on the issues associated with the 3 Streets Project.

 

(vii) The claimant also complained about his exclusion from a pension provision in his fixed term contract. The tribunal is satisfied, had the claimant remained with the respondent, that he would have been eligible to join a pension scheme in the Autumn of 2016. He was not entitled to any pension prior to that date.

 

(viii) The claimant was unable to point to any specific regulation breached in relation to the Charity Commission Regulations. The DSD audit issue referred to at (xiv) below, appears to have been linked, at least in part, to the issues arising out of the subsidiary company issue, referred to previously.

 

(ix) In relation to the property at 79 Ballygomartin Road, there is no doubt that the claimant was requested to work on issues relating to this property. The respondent denied that there were health and safety issues. The claimant did not provide evidence of the precise legal provisions which were allegedly breached or how tenant safety was endangered. It also appears that health and safety files were kept in relation to all properties by the respondent.

 

(x) The claimant, as part of his overall case, raised health and safety concerns about offices in Cambrai Street. He produced photographs to the tribunal in photocopy form which were insufficient to demonstrate his allegations regarding health and safety issues. These rented premises had been inspected by Belfast City Council Building Control Department and approved. However, the tribunal is mindful of the correspondence from Mr Hewitt of Belfast City Council already referred to, in response to the claimant's correspondence of 8 September 2016 to the Lord Mayor of Belfast and other members of the City Council to the effect that the issue of a completion certificate relates only to the completion of the works to which that application relates and should not be considered as meaning there is nothing that could be construed as a health and safety risk within the whole building. However, there is no satisfactory evidence to suggest to the tribunal that the existing number of fire exits was not appropriate for the number of persons using the offices in Cambrai Street.

 

(xi) The claimant confirmed during the hearing that there were never any problems between the respondent's staff and himself, throughout his years of working for the respondent. He confirmed that everyone got on particularly well and indeed that there had been a long term history of getting on well with the respondent's staff. It is also common case that after tendering his resignation on 14 June 2016, the respondent requested the claimant on five or six occasions to stay in employment. It was evident that the claimant had been searching for new work in March 2016 and was contemplating resigning at that point. He did not raise a grievance in relation to the issues in the case, including the alleged removal by the respondent of certain of his contractual duties in September 2015. The respondent however merely invited the claimant to concentrate on the duties outlined in the correspondence of 4 September 2015. Moreover, the claimant was evidently not part of the strategy in relation to the pilot scheme involving Mr Robinson after he had resigned as Chairman at the end of December 2015. AECOM had found the pilot scheme successful and the respondent and its subsidiary then established a works team on a more permanent basis in contemplation of taking on more maintenance work. Workers had been employed on a temporary basis during the pilot scheme phase and there was a necessary transitional period between the ending of the pilot scheme and the development of a more permanent workforce to engage in the increased amount of maintenance work to be carried out by the subsidiary.

 

(xii) The respondent contended in relation to the 3 Streets Project and the issues regarding the Cambrai Street Offices, that any claim regarding a protected disclosure and possible detriment was out-of-time as such matters had been raised in or about the Summer of 2015 up to September 2015.

 

(xiii) In relation to the protected disclosures issue, the claimant maintained that he had made a "rolling series" of qualifying protected disclosures from July 2015 to the end of June 2016 whereas, in relation to the 3 Streets Project at the Cambrai Street Offices, the respondent maintained that although issues had been raised as previously referred to up to September 2015, they had not reappeared until the claimant forwarded his extensive resignation report dated 26 June 2016.

 

(xiv) The claimant categorised the alleged protected disclosures as follows:-

 

Date                       Disclosures  

June / July 2015     H&S at 79 Ballygomartin Road

July / Aug 2015      H&S at Cambrai Court

July 2015                H&S in 3 storey re-lets

Aug / Oct 2015        H&S to 12-22-24-28 Rosebank (Bray) St

4 Sept 2015            Reassigned duties - removed from Rosebank St project

Jan / June 2016      H&S in the 4 house pilot project

30 Jan 2016            Charity Commission breaches at 73 Kilcoole Gdns

June 2016               H&S in the 47 house project - WGS PE appointment

26 June 2016          Complete disclosure of all qualifying protected disclosures from July 2015 until June 2016 within
34 page resignation report to the WSCHA Board.

 

The claimant alleged that he made protected disclosures to the DSD on
21 October 2015 and to the NIAO in a series of e-mails to
Ms Dorrina Carville (and then to Mr O'Sullivan after Ms Carville's resignation).  He further asserted that the disclosures to the NIAO about the alleged health and safety failings at the 3 Streets Project started on the
14 December 2016 (which should presumably read 2015) and ended on the 6 April 2016.

 

In his written submissions, the claimant also referenced certain pages in the agreed bundle of documents in relation to the above. All but a few of those alleged protected disclosures was made to the respondent. The exceptions were the Homes and Communities Agency, the Central Procurement Department of what is now, the Department for the Economy, the Department for Social Development, and the NI Audit Office.

 

(xv) It is clear to the tribunal that the respondent board lacked expertise in a number of areas covered by the claimant's broad job specification and that they relied on a number of outside sources, including consultants and legal advisers, particularly since the onset of civil litigation referred to in previous

factual findings. On the other hand, the claimant was of the view that he could supply the lack of expertise in such areas. However, the reality was that the respondent invited the claimant to concentrate on the duties detailed in the email correspondence from Sarah Swain to the claimant dated 4 September 2015. This led to the claimant also contending that there was a diminution in his work between January and June 2016. However, during this period, he was not involved at a strategic level regarding the pilot scheme and the involvement of the subsidiary. It appears that it was his culminating concerns and objections in June 2016 in relation to the work being given to a subsidiary company and its intention to bring in the ex-Chairman as a Foreman, combined with his allegation that the respondent proceeded with a subsidiary company as contractor against his advice which constituted, in his terms, the "last straw" and led to his resignation.

 

THE LAW

 

5. Protected Disclosures

 

(i) The legislative provisions governing protected disclosures are contained in the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order"). Whistleblowing protection extends to "employees" and "workers" as defined in the 1996 Order.

 

(ii) The following provisions are relevant:-

 

67A. Meaning of "protected disclosure"

N.I.

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

 

Disclosures qualifying for protection

N.I.

67B. —(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—

 

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

 

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

 

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

 

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

 

(e) that the environment has been, is being or is likely to be damaged, or

 

(f) that information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed.

 

Disclosure to prescribed person

N.I.

67F. —(1) A qualifying disclosure is made in accordance with this Article if the worker—

(a)    makes the disclosure in good faith to a person prescribed by an order made by the Department for the purposes of this Article, and

(b)     reasonably believes—

 

(i)         that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and

 

(ii)         that the information disclosed, and any allegation contained in it, are substantially true.

 

(2)  An order prescribing persons for the purposes of this Article may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed.

 

Disclosure in other cases

N.I.

67G. —(1) A qualifying disclosure is made in accordance with this Article if—

 

(a) the worker makes the disclosure in good faith,

 

(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

 

(c) he does not make the disclosure for purposes of personal gain,

 

(d) any of the conditions in paragraph (2) is met, and

 

(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

 

(2) The conditions referred to in paragraph (1)(d) are—

 

(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with Article 67F,

 

(b) that, in a case where no person is prescribed for the purposes of Article 67F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

 

(c) that the worker has previously made a disclosure of substantially the same information—

 

(i) to his employer, or

 

(ii) in accordance with Article 67F.

 

(3) In determining for the purposes of paragraph (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to—

 

(a) the identity of the person to whom the disclosure is made,

 

(b) the seriousness of the relevant failure,

 

(c) whether the relevant failure is continuing or is likely to occur in the future,

 

(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

 

(e) in a case falling within paragraph (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with Article 67F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

 

(f) in a case falling within paragraph (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

 

(4) For the purposes of this Article a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in paragraph (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

 

Protected disclosures

N.I.

70B. —(1) 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.

 

(2) . . . this Article does not apply where—

 

(a) the worker is an employee, and

 

(b) the detriment in question amounts to dismissal (within the meaning of Part XI).

 

(3) For the purposes of this Article, and of Articles 71 and 72 so far as relating to this Article, "worker", "worker's contract", "employment" and "employer" have the extended meaning given by Article 67K.

 

 

Complaints to industrial tribunals

N.I.

71. (3) An industrial tribunal shall not consider a complaint under this Article unless it is presented—

 

(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

 

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

 

(4) For the purposes of paragraph (3)—

 

(a) where an act extends over a period, the "date of the act" means the last day of that period, and

 

(b) a deliberate failure to act shall be treated as done when it was decided on;

 

and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

 

Protected disclosure

N.I.

134A.   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.

 

(iii) Unfair dismissal includes constructive dismissal.

 

(iv) Harvey on Industrial Relations and Employment Law deals with whistleblowing at Divisions C(III) and D(II).

 

(v) The first matter to be considered is whether there has been a qualifying disclosure. If there has been such a disclosure the next thing to consider is whether it is a protected disclosure. A qualifying disclosure can become a protected disclosure depending who the disclosure is made to. The hurdle for protection is lowest in disclosures to the employer or a Solicitor in the course of obtaining legal advice. A second tier relating to regulatory disclosures has a higher hurdle. A third tier relating to wider disclosures has the highest hurdle of all. Furthermore, in this jurisdiction a protected disclosure may be deprived of protection if the employee lacks good faith.

 

(vi) The maker of a qualifying disclosure must have a reasonable belief that the information tends to show a relevant failure in the case of a disclosure to an employer. In the other two categories already referred to, the worker must have a reasonable belief that the information and any allegations are substantially true. According to the guide to the Public Interest Disclosure (Northern Ireland) Order 1998 (amended April 2014), the list includes the Comptroller and Auditor General for Northern Ireland (Audit Office), Department for Social Development, Health and Safety Executive for Northern Ireland, Information Commissioner, Northern Ireland District Councils, Local Government Auditors appointed by the [Department of Environment] from the Staff of the Northern Ireland Audit Office and the Charity Commission for Northern Ireland.

 

(vii) The maker of a qualifying disclosure must reasonably believe that the disclosure meets the requirements. The greater the expertise of the maker of the disclosure the stricter is the criterion of reasonableness.

 

(viii) Where there is a series of disclosures the requirement is that there was a reasonable belief in respect of each. It is insufficient for the claimant to show that he has believed in the general thrust of his or her complaints. Apart from the disclosure being made in good faith, the burden lies on the claimant to establish the relevant failure. In respect of health and safety matters there only needs to be a likelihood of endangerment.

 

(ix) Harvey at D(II) provides useful guidance as follows:-

 

"[52] If it can be established that a worker has made a protected disclosure, as defined (see CIII (3) 4), it then becomes necessary to consider whether or not the worker has been subjected to an unlawful detriment as a result. When considering this question it is important that a tribunal should, in reaching and explaining its conclusions, set out separately the elements necessary to establish liability and consider them separately and in turn (see Harrow London Borough v Knight [2003] IRLR 140, EAT). This general approach was subject to more extensive guidance to tribunals dealing with these cases from Judge Serota in Blackbay Ventures Ltd v Gahir [2014] IRLR 416, EAT, which is worth setting out in full. Taking into account the amendments to this law in June 2013 (see CIII(9) he put it thus:

 

"a. Each disclosure should be separately identified by reference to date and content.

 

b. Each alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered as the case may be should be separately identified.

 

c. The basis upon which each disclosure is said to be protected and qualifying should be addressed.

 

d. Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the Employment Tribunal to simply lump together a number of complaints, some of which may be culpable, but others of which may simply have been references to a checklist of legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Unless the Employment Tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered. If the Employment Tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest act or deliberate failure to act relied upon and it will not be possible for the Appeal Tribunal to understand whether, how or why the detriment suffered was a result of any particular disclosure; it is of course proper for an Employment Tribunal to have regard to the cumulative effect of a number of complaints providing always they have been identified as protected disclosures.

 

e. The Employment Tribunal should then determine whether or not the Claimant had the reasonable belief referred to in s43B(1) of ERA 1996, under the "old law" whether each disclosure was made in good faith; and under the "new" law introduced by s17 Enterprise and Regulatory Reform Act 2013 (ERRA), whether it was made in the public interest.

 

f. Where it is alleged that the Claimant has suffered a detriment, short of dismissal it is necessary to indentify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the Claimant. This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the Respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act.

 

g. The Employment Tribunal under the "old law" should then determine whether or not the Claimant acted in good faith and under the "new" whether the disclosure was made in the public interest."

 

[52.01] Simplifying the above, it could be said that once a protected disclosure has been found to exist it needs to be shown that:

 

‒ the worker has been subjected to a detriment;

 

‒ the detriment arose from an act or deliberate failure to act by the employer, other worker or agent (as the case may be); and

 

‒ the act or omission was done on the ground that the worker had made a protected disclosure."

 

(x) The legislation makes it clear at Article 67(B) of 1996 Order (supra) that a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show, inter alia, one or more of the following:-

 

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

 

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

 

The ordinary meaning of giving information is conveying facts (See Cavendish Munro Professional Risks Management Team v Geduld [2010] ICR 325 (EAT). In the EAT decision in the case of Kilraine v London Borough of Wandsworth [2016] IRLR 422, Mr Justice Langstaff states at paragraph 29 of his judgement:-

 

"The dichotomy between "information" and "allegation" is not one that is made by the statute itself. It would be a pity if Tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggests that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one or rather the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information".

 

Therefore, a tribunal has to take care to ensure that it does not fall into the trap of thinking post Cavendish Munroe v Geduld (supra) that an alleged disclosure had to be either allegation or information, when reality and experience taught it may well be both.

 

Mere allegations, expressions of opinion, or raising of grievances or a statement of position may not qualify. There can be an admixture of fact and opinion. As noted in Bowers in Whistleblowing The New Law (C.3 at paragraph 3.02).

 

"... the whistleblower may have a good hunch that something is wrong without having the means to prove it beyond doubt or even on the balance of probabilities ... The notion behind the legislation is that the employee should be encouraged to make known to a suitable person the basis of that hunch so that those with the ability and resources to investigate it can do so".

 

(xi) A series of communications can collectively amount to a disclosure of information ( Shaw v Norbrook Laboratories (2014) ER 139). A disclosure of information can also take place where the information is given to someone who already has that information.

 

(xii) The categories of relevant failure contained in Article 67B of the 1996 Order have to be considered insofar as relevant. Article 67B(1)(b) refers to the fact that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject. This can include a breach of any statutory obligation, common law obligation, such as negligence, nuisance or defamation and administrative law requirements such as a duty to consult. There is no requirement that the obligation has to be of a particular level of seriousness. However the more trivial the alleged failure, the more likely an employer will argue lack of good faith. It can include breach of the contract of employment including the implied duty of trust and confidence. In Parkins v Sodexho Ltd [2002] IRLR 109 , it was confirmed that this category was wide enough to cover obligations under the claimant's contract of employment. If the relevant failure is in connection with a breach of legal obligations, its scope is wide (see Hibbins v Hester's Way Neighbourhood Project [2009] IRLR 198 EAT). In that case, where the relevant failure did not need to be by the employer.

 

(xiii) In relation to health and safety risks, no actual breach of health and safety legislation is required. This appears to be potentially a wide category. There is nothing to exclude trivial concerns being raised. However such trivial concerns might be relevant in ascertaining whether good faith is absent. If a trivial concern is raised, the tribunal can also look at whether the worker genuinely believed that there was a danger to health and safety and whether that belief was reasonable.

 

REASONABLE BELIEF

 

(xiv) The principles involved in assessing the reasonable belief element can be summarised as follows:

 

(1) The test involves both a subjective test of the worker's belief and an objective assessment of whether the belief could reasonably have been held (Babula v Waltham Forest College [2007] EWCA Civ 174) ("Babula").

 

(2) The worker can be wrong yet still hold a reasonable belief ( Darnton v The University of Surrey [2003] IRLR 133 EAT) ("Darnton").

 

(3) The test of reasonable belief applies to all elements of the test of whether the information disclosed tends to show a relevant failure including whether the relevant criminal offence or legal obligation in fact exists ( Babula).

 

(4) Reasonableness of the belief is to be tested having regard not only to what was set out in the disclosure but also to the basis for that information and any allegation made ( Darnton and Babula).

 

(5) What is reasonable depends on all the circumstances assessed from the perspective of the worker at the time of making the disclosure and it is for the tribunal to assess this. This may include consideration of the circumstances in which the disclosure was made, to whom the disclosure was made, the context and extent to which the worker claims to have direct knowledge of the matters disclosed and a comparison with how the worker would be expected to have behaved if he genuinely and reasonably believed in the truth of the matter disclosed and that they tended to show a relevant failure ( Darnton and others).

 

(6) The truth or falsity of the information disclosed and whether or not the relevant failure in fact occurred may be relevant when assessing reasonable belief. In other words it can be used as a tool to assess the reasonableness of the belief of the claimant at the relevant time (Darnton). It is therefore relevant to the tribunal to find out if the allegation turned out to be true as this may strengthen a claimant's claim that it was reasonable to make the allegation. If the allegation turns out to be false, it does not necessarily mean that the allegation was unreasonable based on the information and circumstances at the time the claimant made the disclosure.

 

(7) The worker must exercise a judgement consistent with the evidence and resources available, including the expertise and seniority of the worker, their ability to investigate further, and whether it is appropriate in all the circumstances instead to refer the matter to someone else to investigate ( Darnton).

 

(8) The standard to be applied has to take into account that it is only necessary to have a reasonable belief that the information 'tends to show' the relevant failure, rather than that it positively establishes that failure ( Babula). Note however that reasonable belief in this context relates to whether or not a disclosure is a qualifying disclosure. If a worker seeks protection for wider disclosure under Articles 67F to 67G, there is an additional requirement for a reasonable belief that the information disclosed and any allegation contained in it are substantially true.

 

(9) In the EAT case of Soh v Imperial College of Science, Technology and Medicine [EAT 0350/14] a college lecturer alleged that students had told her that another lecturer had told them what would be in an exam. The EAT allowed an appeal against the tribunal decision, holding that the tribunal had erred in focusing on whether the lecturer making the assertions herself reasonably believed that the exam system was being undermined. Instead, the tribunal should have asked whether she reasonably believed that the information she was disclosing tended to show that the other lecturer had done so. As Judge Richardson stated at paragraph 47 of his judgement:-

 

"There is, as Mr Catherwoods submitted to us, a distinction between saying, "I believe X is true", and, "I believe that this information tends to show X is true". There will be circumstances in which a worker passes on to an employer information provided by a third party that the worker is not in a position to assess. So long as the worker reasonably believes that the information tends to show a state of affairs identified in Section 43B(1), the disclosure will be a qualifying disclosure for the purposes of that provision".

 

(10) The burden is on the worker making the disclosure to establish the requisite reasonable belief ( Babula).

 

(11) There must be more than unsubstantiated rumours in order for there to be a qualifying disclosure ( Darnton).

 

(12) The tribunal has to consider the whistleblower's state of mind based on the facts as understood by him at the relevant time. As it is the reasonable belief of the worker making the disclosure which has to be considered, the tribunal has to look at the individual characteristics of the work input ( Korashi v Abertawe Bro Morgannwg University Local Area Health Board EAT/0424/09, 12/09/11). Judge McMullan stated in that case (which involved a surgeon) that:-

 

"There may be things that might be reasonable for a lay-person to have believed, (however mistakenly) that certainly would not be reasonable for a trained professional to have believed".

 

Good faith

 

(13) The aspect of good faith must also be considered in this jurisdiction. It is not to be simply equated with honesty. Rather, the tribunal must consider the motive of the person making the disclosure to see if there is an ulterior motive. Should there be mixed motives, good faith can be negated if the ulterior motive was the dominant or pre-dominant one. An ulterior motive is one that is other than in the public interest. Examples of ulterior motives which have been found to negate good faith are personal antagonism, pursuing a personal campaign and seeking to obtain a personal advantage. The authorities make clear that motivation can be a complex matter to assess. Whistleblowing cases will often involve a whistleblower who may not have completely positive feelings towards the person or body that he is raising concerns about. The tribunal has to look at all the circumstances as the question of whether the disclosure was made in good faith is a question of fact. (See Street v Derbyshire Unemployed Wales Centre [2004] IRLR 687).

 

Detriment

 

(xv) Detriment is determined using the test in Shamoon v The Chief Constable of the RUC [2003] UKHL 11, ("Shamoon") ie, whether a reasonable worker would, or might, take the view in all the circumstances that the treatment was to the claimant's detriment in the sense of being disadvantaged. There is no requirement to show financial detriment. If an employer's treatment of the whistleblower is to his detriment, it is immaterial that the whistleblower does not know that he is being subjected to a detriment (Garry v Ealing [2001] IRLR 681 CA). An unjustified sense of grievance is unlikely to be regarded as a detriment.

 

(xvi) The legislative provisions in relation to time-limits has been set out above. In relation to acts extending over a period, the case of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 CA is relevant. The issue for the tribunal in that case was whether there was evidence of a continuing discriminatory state of affairs, or:-

 

"An ongoing situation or a continuing state of affairs in which the female ethnic minority workers in the service were treated less favourably".

 

(xvii) Importantly, the detriment suffered must have been inflicted on the ground that the worker made a protected disclosure. The focus is on the reason or reasons for the employer's action. It is therefore important for the tribunal to distinguish between on the one hand detrimental acts which occur in consequence of any disclosure which does not result in liability and on the other hand detrimental acts done on grounds of having made a disclosure. In the case of Nagaragan v London Regional Transport [1999] ICR 877, the House of Lords set out the correct approach requiring the tribunal to consider the mental processes of the respondent and the reason why detrimental acts or omissions occurred. The tribunal must consider the motivations of the respondent, whether conscious or unconscious. The key question is whether the detrimental acts or omissions were materially influenced by the fact that the claimant made protected disclosures. The case of London Borough of Harrow v Knight [2003] IRLR 140, (EAT) illustrates how important it is to focus on the reason why there was a detrimental act or deliberate failure to act. The issue is whether or not the fact that the protected disclosure had been made caused or influenced the employer to act or not to act in the way complained of. The tribunal in that case should have looked at the reasons for failure to respond to the claimant's letters and for failure to protect him from being cold shouldered by colleagues.

 

Burden of Proof

 

(xviii) The burden of proof in whistleblowing detriment cases operates in the same way as in the trade union detriment cases. This means that there is, in effect, a lower threshold for a claimant to surmount in order for the burden to shift to the respondent to provide an untainted explanation for any detrimental acts. Thus the initial burden is on the claimant to prove:

 

(1) that he made protected disclosures, and

 

(2) that he suffered detriment.

 

If he proves these two elements the burden shifts to the employer to provide an explanation which is not tainted by the fact of the claimant having made protected disclosures.

 

(xix) The case of Blackbay Ventures Ltd v Gahir [2014] IRLR 416 EAT suggested that the tribunal should take a structured approach to detriment cases by dealing with the following issues:-

 

(1) identify each disclosure by reference to its date and/or content;

 

(2) identify each alleged failure by the employer;

 

(3) address the basis in which the disclosure is a qualifying disclosure and a protected disclosure;

 

(4) identify the source of legal obligation if applicable;

 

(5) determine whether the worker had the necessary reasonable belief;

 

(6) identify the detriment complained of and its date; and

 

(7) determine whether the claimant acted in good faith.

 

The tribunal must also address the issue of the causal connection between the detriment and the disclosure.

 

Constructive Dismissal in a Whistleblowing Case

 

(xx) In a whistleblowing case where the claimant alleges that he was constructively dismissed for having made a protected disclosure, the tribunal must focus on the reason for the conduct which the employee has shown amounted to the repudiatory breach of contract. If that conduct was by reason of the protected disclosure and the employee resigns because of the conduct, the employee is likely to succeed in a constructive dismissal case, provided he satisfies the other elements of the constructive dismissal case, ie that the conduct amounted to a repudiatory breach of contract; that the claimant left in response to that breach and not for another reason; and that the claimant did not delay too long before resigning. In a case involving a breach of the implied term of trust and confidence, the tribunal has to look at how important the protected disclosure was in any erosion of trust and confidence. It is still possible in such cases to find constructive dismissal on ordinary principles without finding that the reason or principle reason for the constructive dismissal was because a protected disclosure had been made. Importantly, however, if the constructive dismissal is sufficiently connected to whistleblowing, there is no cap on any compensatory award. By way of contrast if constructive dismissal is established on ordinary principles, there is a cap on the compensatory award.

 

Constructive Dismissal On Ordinary Principles

 

5. (i) Article 127 of the Employment Rights (Northern Ireland) Order 1996 ("the Order") provides that an employee is dismissed by his employer if the contract under which he is employed is terminated by the employer (whether with or without notice). Article 127 continues to provide as follows:-

 

"127. - (1) for the purposes of this Part an employee is dismissed by his employer if ... - (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct".

 

(ii) Article 156(2) of the Order states as follows:-

 

"Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly".

 

(iii) The Order further states at Article 157(6) as follows:-

 

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding".

 

(iv) Harvey on Industrial Relations and Employment Law ("Harvey") states at Division D1 at 403 as follows:-

 

"In order for the employee to be able to claim constructive dismissal, four conditions must be met:

 

(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

 

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

 

(3) He must leave in response to the breach and not for some other, unconnected reason.

 

(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract".

 

(See also Western Excavating (ECC) Limited v Sharp 1978 IRLR 27).

 

(v) Harvey continues:-

 

"(b) The duty of co-operation

 

[461] More recently the EAT has specifically followed the Post Office case on this point ( Woods v WM Car Services (Peterborough) Ltd 1981] IRLR 347, [1981] ICR 666). The Tribunal emphasised the significance of this duty for employers not to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of mutual confidence and trust. As it pointed out, it enables an employee who is 'squeezed out' of the company by the wholly unreasonable conduct of the employer to leave and claim that he has been dismissed even though he cannot point to any specific major breach of contract by the employer.

 

[462] This duty not to undermine the trust and confidence in the employment relationship can be subsumed under a wider contractual duty which is imposed on the employer, to co-operate with the employee."

 

(vi) Once a tribunal has established that a relevant contractual term exists and that a breach has occurred, it must then consider whether the breach is fundamental. Where an employer breaches the implied term of trust and confidence, the breach is inevitably fundamental (Morrow  v Safeway Stores plc 2002 IRLR 9, EAT). A key factor to be taken into account in assessing whether the breach is fundamental is the effect that the breach has on the employee concerned.

 

(vii) It is also possible for a tribunal to make a finding of contributory conduct in a constructive dismissal case in the event of there being a connection between the employee's conduct and the fundamental breach by the employer. As was pointed out in the Northern Ireland Court of Appeal case of Morrison v Amalgamated Transport and General Workers Union (1989) IRLR 361 NICA, since it was open to a tribunal to declare a constructive dismissal fair, there could be no inconsistency in its holding that the employee contributed to the dismissal in the first place. All that is required is that the action of the employee to some extent contributed to the dismissal. Once a tribunal has found on the evidence that an employee has to some extent caused or contributed to his or her dismissal it shall reduce the compensatory award.

 

(viii) Unlike an anticipatory breach of contract, an actual breach of contract cannot be retrieved by the employer offering to make amends before the employee leaves. Once the breach has been committed it is for the wronged party to decide how to respond ( Buckland  v Bournemouth University [2010] IRLR 445 CA).

 

(ix) In Mahmud and Malik  v Bank of Credit and Commerce International SA [1997] IRLR 606, ('Malik') the duty of implied trust and confidence was affirmed by the House of Lords in the following terms:-

 

"The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee."

 

Lord Steyn stated that:-

 

"The implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer's interest in managing his business as he sees fit and the employee's interest in not being unfairly and improperly exploited."

 

(x) The test for breach of the implied duty of trust and confidence is an objective one. The duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee. The duty may be broken even if an employee's trust and confidence is not undermined. It also follows that there will be no breach simply because an employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held.

 

(xi) The range of reasonable responses test is not applicable to constructive dismissal per se. However it is open to the employer to show that such a dismissal was for a potentially fair reason in which case the range of reasonable responses test becomes relevant.

 

(xii) The breach of contract must be "sufficiently important" to justify the employee resigning or it must be the last in a series of incidents which justify his leaving. It must go to the heart of the contractual relationship between the parties. Harvey comments that where the alleged breach of the implied term of trust and confidence constitutes a series of acts, the essential ingredient of the final act is that it is an act in a series, the cumulative effect of which amounts to the breach. It follows that although the final act may not be blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant ( Harvey Division D, paragraph 481.01). See Omilaju  v Waltham Forest London Borough Council [2005] IRLR 35.

 

(xiii) The employee must resign in response to the breach. In the recent EAT case of Wright  v North Ayrshire Council [2014] IRLR 4, ("Wright") Mr Justice Langstaff (President) states at paragraph 20 of his judgment that:-

 

"Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause."

 

(xiv) In Western Excavating (ECC) Ltd  v Sharp (1978) IRLR 27 CA, it was pointed out that an employee must make up his mind regarding resignation soon after the conduct of which he complains. Should he continue any length of time without leaving, he will lose his right to treat himself as discharged from the contract. However, where there is no fixed period of time within which the employee must make up his mind, a reasonable period is allowed. This period will depend on the circumstances of the case including the employee's length of service, and whether the employee has protested against any breach of contract.

 

SUBMISSIONS

6. The tribunal had the benefit of written submissions from both parties. These are attached to this decision. It also considered further oral submissions on 12 May 2017.

 

CONCLUSIONS

 

7. The tribunal after having carefully considered the evidence before it and having applied the relevant principles of law to the findings of fact, concludes as follows:-

 

(i) The tribunal carefully considered the protected disclosure claims made by the claimant in connection with the dates and events referred to at paragraph 4(xiv) of its factual findings, against the legislative background and relevant authorities referred to in this decision and in the written submissions.

 

(ii) The tribunal is satisfied that the claimant acted in good faith and had genuine concerns over certain issues. It is not however satisfied that he made protected disclosures as defined by the legislation, except to the respondent in relation to what is termed the 3 Streets Project. The claimant had a reasonable belief that the information made to the respondent in relation to the 3 Streets Project tended to show a relevant failure in relation to fire safety and health and safety in relation to the provision of stair rails. The 3 Streets Project is specifically referred to in Sarah Swain's correspondence reproduced at paragraph 4(iii) of the tribunal's factual findings. The tribunal regards it as being important to observe that this correspondence was sent in the context of ongoing civil litigation and included an expectation that the claimant would concentrate on certain duties which are set out in that correspondence. The claimant, on the other hand, made the case that certain of his duties were removed as a result of this correspondence. The tribunal is not satisfied that this was the case. Furthermore, in the context of requesting the claimant to concentrate on certain duties, the tribunal was not satisfied that this constituted a detriment under the protected disclosure legislation or that his perceived diminution in workload from January to June 2016 represented a continuing detriment. The claimant was clearly not part of the strategy in relation to the pilot scheme and the involvement of the subsidiary and Sam Robinson during that period of time. Furthermore, in reality, the claimant's concerns regarding Sam Robinson and the involvement of a company allegedly owned by him is without any real foundation. Sam Robinson, resigned as Chairman of the respondent at the end of December 2015 and was clearly not personally awarded the work involved in the pilot scheme. Instead the respondent's wholly owned subsidiary
WGS Property Enterprises Limited, carried out the work using Sam Robinson on an ad-hoc basis to oversee the work as a Consultant/Foreman. He ceased this role in October 2016. In this respect the tribunal reiterates the factual accuracy of Mr Quigg's summary of the position in paragraph 2.31 of his expert report, as set out at paragraph 4(v) of this decision.

 

(iii) In arriving at its conclusion regarding the alleged protected disclosures, the tribunal is also aware that the greater the expertise of the maker of the disclosure, the stricter is the criterion of reasonableness. Furthermore any qualifying disclosure to the respondent must only tend to show a relevant failure in the case of a disclosure to an employer, whereas, in the other two categories referred to in the legislation, the worker must have a reasonable belief that the information and any allegations are substantially true. The burden is also on the claimant to establish the relevant failure. However in respect of health and safety matters, there only needs to be a likelihood of endangerment. Furthermore, the worker has to prove that he was subjected to a detriment, that the detriment arose from an act or deliberate failure to act by the employer, other worker or agent (as the case may be), and that the act or omission was done on the ground that the worker had made a protected disclosure.

 

(iv) Apart from health and safety and fire safety issues in the 3 Street Project, the claimant was alleging that the respondent had failed to comply with certain legal obligations referred to in the agreed issues, which the tribunal has also addressed in its factual findings.

 

TIME LIMITS

 

(v) (a) Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 CA held that in determining whether there was "an act extending over a period", as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The Court also held that concepts of policy, rule, practice, scheme or regime referred to in the authorities were examples of when an act extends over a period and should not be treated as a complete and constricting statement of the indicia of "an act extending over a period". In the case of Robertson v Bexley Community Centre [2003] IRLR 434 CA, it was held that to establish a continuing act it must be shown that the employer had a practice, policy, rule or regime governing the act said to constitute it. In the case of Richman v Knowsley Metropolitan Borough Council [2013] EqLr 1164 the EAT held that in determining whether there was evidence of "conduct extending over a period", it is not sufficient to consider only whether there was evidence of a discriminatory policy, rule or practice in accordance with which decisions were taken from time to time. A tribunal must consider whether there was something more, such as a continuing state of affairs.

 

(b) The claimant did not raise any form of grievance in relation to the correspondence from Sarah Swain dated 4 September 2015, although he alleges that it amounted to detrimental treatment under the protected disclosure legislation. The tribunal is not persuaded that there was an ongoing situation or continuing state of affairs pursuant to 4 September 2015 in which the claimant was subjected to a detriment, in the sense of being disadvantaged. Furthermore Sam Robinson had approached Belfast City Council regarding issues raised by the claimant. Detriment is determined under the test in Shamoon, ie, whether a reasonable worker would, or might, take the view in all the circumstances that the treatment was to the claimant's detriment in the sense of being disadvantaged. If an employer's treatment of the whistleblower is to his detriment, it is immaterial that the whistleblower does not know that he is being subjected to a detriment ( Garry v Ealing [2001] IRLR 681 CA). As previously stated, any detriment suffered must have been inflicted on the ground that the worker made a protected disclosure. The focus is therefore on the reason or reasons for the employer's action. In this connection, it is in the tribunal's view significant that the claimant acknowledged that there were never any problems between the respondent's staff and himself throughout his years of working for the respondent. He also confirmed that everyone got on particularly well and that there had been a long term history of getting on well with the respondent's staff. It was also significant that the respondent requested the claimant on five or six occasions following his resignation on 14 June 2016 to remain in employment.

 

(c) Furthermore, the claimant had been seeking alternative employment from March 2016, during a period when he alleged that certain contractual duties had been removed from him, and when he was not involved at a strategic level in the pilot scheme, having been requested to concentrate on the matters referred to in Sarah Swain's correspondence to him dated 4 September 2015.

 

(d) The tribunal therefore has to consider whether it was not reasonably practicable for the claimant to present a claim to the tribunal before the end of a period of three months from when he received Sarah Swain's correspondence dated 4 September 2015. The meaning of the words "reasonably practicable" lies somewhere between reasonable on the one hand and reasonably, physically capable of being done on the other. The best approach is to read "practicable" as the equivalent of "feasible" and to ask, "was it reasonably feasibly to present the complaint to the Employment Tribunal within the relevant three months?" ( Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 CA). The tribunal is satisfied that it was reasonably practicable for the claimant to have brought such a claim in time, relating to the 3 Streets Project, as there was nothing in his evidence before the tribunal to suggest otherwise. The claimant in fact presented his claim to the tribunal on 4 July 2016.

 

(e) Apart from the foregoing analysis of the out-of-time issue, the tribunal is satisfied, in any event, as already reflected in its findings of fact, that the claimant has not proven all of the necessary elements to establish his protected disclosure case in relation to the 3 Streets Project, being the only area in which the tribunal is satisfied that he made protected disclosures.

 

REMAINING ISSUES

 

(vi) Part of the claimant's claim was that he resigned on 14 June 2016 in response to a last straw event, the background to which, from the claimant's perspective, can be summarised as follows:-

 

(a) He had raised issues on a continuing basis which culminated in him raising concerns and objections in June 2016 in relation to work being given to the subsidiary company and its intention to bring in the ex-Chairman, Sam Robinson, as a Foreman.

 

(b) His case was that he had become aware two or three days before he resigned that Sam Robinson was proceeding to do the work and that his concerns and objections had effectively been ignored.

 

(c) The claimant feared damage to his reputation and the last straw was the fact that the respondent progressed with the contractor against his advice and that he was being ignored.

 

(d) The claimant connected his resignation to the issues he had raised, which are also dealt with extensively in his resignation report, dated 26 June 2016. It was also his case that what the respondent was doing was potentially unlawful as regards procurement processes and he had health and safety concerns particularly in relation to fire safety.

 

(vii) In a protected disclosure case, where the claimant alleges constructive dismissal for having made a protected disclosure, the tribunal must focus on the reason for the conduct which the employer has shown amounted to the repudiatory breach of contract. If that conduct was by reason of the protected disclosure and the employee resigns because of the conduct, the employee is likely to succeed in the constructive dismissal case provided he satisfies the other elements of the constructive dismissal, ie, that the conduct amounted to a repudiatory breach of contract; that the claimant left in response to that breach and not for another reason; and that the claimant did not delay too long before resigning. In a case involving a breach of an implied term of trust and confidence, the tribunal has to look at how important the protected disclosure was and any erosion of trust and confidence. In such cases it is still possible to find constructive dismissal on ordinary principles without finding that the reason or principle reason for the constructive dismissal was because a protected disclosure had been made.

 

(viii) The tribunal is not satisfied that any of the alleged conduct by the respondent was by reason of any protected disclosure having been made by the claimant. The respondent was clearly under the pressure of civil litigation in relation to the 3 Streets Project and had engaged legal advisers who were consulted on a range of issues, including some issues raised by the claimant. The respondent also took steps to ascertain the position from Belfast City Council. They advised the claimant to concentrate on certain duties which, in the tribunal's view, they were entitled to do. There is no satisfactory evidence before the tribunal that any conduct by the respondent amounted to repudiatory breach of contract, either actual or anticipatory. At any rate, any such breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving.

 

An employee must leave in response to a fundamental breach and not for some other unconnected reason. In this respect the claimant was not only engaged in pursuing alternative employment in March 2016, but was also incorrect in his understanding of when Sam Robinson had resigned as Chairman of the respondent and his role in the pilot scheme. Furthermore, it appears that the claimant's fear of damage to his reputation was a significant factor in his resignation.

 

(ix) The tribunal also concludes that the claimant was not constructively dismissed on ordinary principles. There is no satisfactory evidence before the tribunal that the respondent conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of mutual confidence and trust between itself and the claimant or that there was a breach of any contractual duty by the respondent to co-operate with the claimant.

 

(x) The claimant's claims are therefore dismissed in their entirety.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 8-12 May 2017 and 8 June 2017, Belfast.

 

 

Date decision recorded in register and issued to parties:

 

 

Edward Cooke V WSCHA- 1608/16IT - Closing Statement - 11 May 2016