United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOSEPH MIDDLETON (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of Preliminary Hearing the Appeal of Mr G Widders in the matter Widders v Surrey County Council. Today Mr Joseph Middleton has appeared on behalf of Mr Widders under the ELAAS system and we are very grateful for the time and effort he has put in on Mr Widders' behalf.
2. On 6 September 1999 Mr Widders presented an IT1 for victimisation, breach of contract, malicious references, "whistle-blower treatment" and dismissal. The dismissal was in September 1999 and the Respondent was Surrey County Council.
3. On 27 September 1999 the Respondent Council put in its IT3 and in it it is said that Mr Widders was dismissed by Surrey on 31 August 1999. He was redundant following the closure of his workplace, The Oaks School at Mayford Green in Woking. The Respondent conducted the redundancy procedure in a fair manner and then, a little later, the IT3 said:

"Mr Widders has also instituted proceedings against the Respondent in Guildford County Court for breach of contract and a hearing is due to take place on 3 December 1999. The Respondent contends that Mr Widders is not able to pursue the same remedy in both jurisdictions."

4. Victimisation, malicious references and "whistle-blower treatment" were denied and, as for the breach of contract, the Council's answer was, as I mentioned, that it had already been proceeded with in the County Court. Surrey suggested that there should be a directions hearing to sort out precisely what the real issues in the case should be. On 8 December 1999 there was a directions hearing. On 21 December the directions were given to the parties by being sent to them in writing. The case was set down for five days. Mr Widders by then collected a number of affidavits which he believes supported his case.
5. The main hearing then took place between 19 and 23 June 2000, taking some five days at London (South). On 15 September 2000 the decision was sent to the parties. It was a decision of the Tribunal at London (South) under the chairmanship of Mr A. M. Snelson. The decision was:

"(i) The unanimous decision of the Tribunal is that the Applicant's claims under sections 47B and 48 of the Employment Rights Act 1996 and under the contract jurisdiction of the Tribunal fail and are dismissed. (47B and 48 are relating to the "whistling blowing side of the case)

Going on:

(ii) The majority decision of the Tribunal is that the Applicant's complaint of unfair dismissal fails and is dismissed.

6. The Tribunal had begun by identifying what they took to be the truly material issues in the case. They said in their paragraph 3:

"At the beginning of the hearing we attempted to clarify the issues. It was established that the Applicant was making three claims. First, he maintained that he had been subjected to a detriment on the ground that he had made a protected disclosure (this is the "whistleblower treatment" allegation). Secondly, he alleged that the Respondent had breached his contact by failing in September 1993 to employ him in the job to which he had been appointed and by writing a malicious and prejudicial reference for him in 1994. Thirdly, he complained that he had been unfairly dismissed on the termination of his employment on 31 August 1999. All claims were resisted by the Respondents."

7. On 20 October 2000 Mr Widders lodged his Notice of Appeal. Mr Middleton has not amplified or abandoned the grounds set out in the Notice of Appeal and so we need to deal with them and also deal with an additional argument which Mr Middleton has added. Using our terms rather than the terms which Mr Widders himself used in the Skeleton Argument which he presented to the Employment Appeal Tribunal in writing earlier, the first head of complaint as we have understood it is this: that the Employment Tribunal misconstrued the "whistleblowing procedure and provisions and arrived at the conclusion in relation there to which he is wrong in law and contrary to another Employment Tribunal's decision called Edgar v The Meteorological Office.

The Tribunal said:

"Since it was common ground that the disclosures on which the Applicant bases his claim fell within the definition of "protected disclosures" under section 43 of the 1996 Act, it is not necessary to set out the relevant provisions here. What is, however, crucial is the date on which the protection which the Applicant invokes became part of our law. Part IVA of the Employment Rights Act 1996 was inserted by the Public Interest Disclosure Act 1998, section 1, as from 2 July 1999. The Act was not retrospective for any purpose. Since the disclosures on which the claim is based were made in 1996, it inevitably follows that the Applicant's detriment claim is unsustainable. Our unanimous decision was that it must be dismissed and we ruled accordingly."

And in their paragraph 8 they said:

"Our various rulings left the way clear for the Tribunal to focus on the unfair dismissal claim. Since the Applicant did not have the protection of the Public Interest Disclosure Act, he could not base the unfair dismissal claim on section 103A of the 1996 Act and was therefore restricted to a claim under section 98."

8. The Edgar case to which Mr Widders makes reference was decided by another Employment Tribunal after an oral hearing on 5 October 2000. The decision under Appeal before us was sent to the parties on 15 September 2000. The Edgar case therefore could not have been referred to by the Tribunal with which we are concerned because the case had not then been decided.
9. So far as one can tell in the Edgar case there had been no dismissal of the employee concerned. A complaint appears to have been that because of his protected disclosure Mr Edgar was not returned to secondment at the BBC but he was, though, nonetheless kept on, as far as one can tell, in his employment by his employer, the Respondent in that case, the Meteorological Office. Mr Edgar was therefore complaining of a detriment within section 47B of the Employment Rights Act 1996 but not of a detriment which was a dismissal. And that is a crucial point because section 47B in its original form - and I am now looking at the Eighth edition of Butterworths Employment Law handbook rather than the current Ninth - provided as follows:

"(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) Except where the worker is an employee who is dismissed in circumstances in which, by virtue of section 197, part X does not apply to the dismissal, the section does not apply where –

(a) the worker is an employee, and

(b) the detriment in question amounts to dismissal (within the meaning of that part)

(and then there is a definition in sub section 3)

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, "worker", "worker's contract", "employment" and "employer" have the extended meaning given by section 43K.

10. The Chairman in a letter to the Employment Appeal Tribunal has written as follows:

"At the start of the hearing it was made clear that the only detriment occurring after the coming into force of the Public Interest Disclosure Act on 2 July 1999 on which the Applicant relied was the dismissal itself (which took place on 31 August 1999). He gave no evidence and addressed no argument which could have substantiated any other detriment during that two-month period. In answer to a question from the Tribunal (at 2.35 pm on 22 June), Mr Widders maintained his consistent line, stating that he was not alleging that any detrimental act (other than the dismissal itself) occurred after 1 July 1999."

11. As Mr Widders' case is of a dismissal and, moreover, one that falls within Part X of the Employment Rights Act 1996, section 47B does not apply to his case, either as to 47B in its original form or 47B in its current form. That is not, of course, to say that a dismissal by way of reaction to a protected disclosure is left without remedy. On the contrary, the position is afforded particular description in section 103 of the 1996 Act 103A. 103A 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 of the principal reasons for the dismissal is that the employee made a protected disclosure."

12. Let it be assumed in Mr Widders' favour, without deciding the point, that a disclosure made before 2 July 1999 is a protected disclosure if it otherwise satisfies the requirements of section 43A of the 1996 Act, it would still fall to Mr Widders, if he wished to obtain relief where the only relevant detriment asserted was that he had been dismissed, to show that the only or principal reason for his dismissal was the making of the protected disclosure but that, unfortunately so far as concerns Mr Widders' position, he failed to do. Paragraph 16 of the Tribunal's Extended Reasons says:

"If the Applicant was dismissed, what was the reason for the dismissal? We were entirely satisfied that the reason for dismissal was redundancy. We reject without qualification the Applicant's contention that the true reason for the dismissal was a determination on the part of the Respondents to get rid of him. We unhesitatingly find that the Applicant is entirely sincere in the very strong allegations that he makes against the Respondents. We are equally clear that those allegations, insofar as they charge the Respondents with having pursued a conspiracy or a "witch hunt" against him or a policy to drive him out, are utterly mistaken."

13. So the position is that even assuming that the Employment Tribunal's view of the retrospectivity of the whistleblowing provisions was in error of law, their conclusion that the whistleblowing provisions led to no relief in his favour was the only conclusion the Tribunal could have arrived at on the facts as they found them to be, namely that the reason for dismissal was redundancy. It is not as if the Tribunal did not consider a case that it was the protected disclosures that had brought about the dismissal. They in terms have recognised that to have been Mr Widders' argument below.
14. In their paragraph 12 they say:

"The Applicant accepted that a genuine redundancy arose on the closure of the Oaks but contended that the Respondents did not make proper or suitable efforts to re-deploy him, and that this was a manifestation of a policy to get of him because of his earlier disclosures. In this way he argued that the true, or principal reason for his dismissal was the disclosures, not the redundancy."

So they had the point plainly put in front of them. Under this first heading as we have described it we see no arguable error of law and, of course, as Mr Widders will wish to know, it is only errors of law with which we can deal. At this point we are looking for arguable ones and we do not find one on this part of the case. The second heading in the Notice of Appeal and amplified in the Skeleton Argument can be summarised as this: As the Employment Tribunal wrongfully dismissed Mr Widders' claim under the PIDA it was wrongly made inevitable that his case for unfair dismissal would fail.

15. If Mr Widders had been able to show that the disclosures he had made were the sole or principal reason for his dismissal then he would, continuing the assumption that pre 2 July 1999 disclosures can nonetheless be protected disclosures, have succeeded. Under section 103A that we have cited the dismissal would have been automatically unfair. Why Mr Widders lost the issue of unfair dismissal was not because of any view taken by the Tribunal as to the applicability of section 43A of the Employment Rights Act but on the facts, which the Employment Tribunal give every impression of having investigated at length, sympathetically and with care. Indeed Mr Widders' making of disclosures was described by them as a courageous step. Nonetheless, it was held to be a true redundancy situation that had led to the reason for the dismissal and not any determination, as Mr Widders was fervently arguing, to get rid of him. We see no arguable error of law in that heading of the Appeal.
16. Thirdly, this heading could be given: Affidavits were ignored. The Affidavits in question go to the nature of abuses which were occurring at the Respondent's school and about which Mr Widders had made disclosures. Let it be assumed he made protected disclosures. They may well have been relevant, had it been in dispute whether Mr Widders disclosures had been of false allegations or had not been made, for example, by him in good faith, but neither of those subjects was in dispute.
17. The Tribunal said:

"The serious abuses of vulnerable children and adolescents and the bullying of staff which appear to have been commonplace at The Oaks."

It is a matter to which they referred. They also said, as we have already quoted, that it was common ground that disclosures on which the Applicant bases his claim fell within the definition of protected disclosures within section 43 of the 1996 Act.

18. The Chairman has been asked to comment on Mr Widders' complaint that the Affidavits that Mr Widders sought to adduce below were ignored and what he says is this:

"Mr Widders then drew attention to a number of affidavits included within his bundle (A1, section 8). My note (timed at shortly after 11.00 am) reads:

"[Applicant] wishes to rely on affidavits – which go to background"

The Respondents' solicitor, who was familiar with the affidavits, confirmed that they dealt with the background events and were not relevant to the issues which we were to decide. Since there was no dispute that children and staff at The Oaks had been victims of serious abuse, and (as the Tribunal was at pains to stress repeatedly during the hearing) the way in which the Respondents dealt with the disclosures was not an issue for us to resolve, I agreed after reading sample passages from the affidavits that they went to the background and did not appear to be strictly relevant to the issues before us. Since the background had been explored in cross-examination of the Respondents' witnesses and was given extensive treatment in the Applicant's witness statement I did not consider that the affidavits would assist us."

A little later he says:

"Finally, I should say that we did not exclude the affidavits from the case, but merely made it clear that we would not read them before hearing the Applicant's evidence. It was open to him to refer to them if he so chose."

19. Whether the matters which Mr Widders disclosed were true or not and just what the nature of the abuses at the school were was not a matter that needed, as it seems to us, to be gone into. Equally, save for the question of whether Mr Widders was dismissed by reason of making the disclosures, just how the Respondent responded to the disclosures was not a subject that was material to the case. The case took five days as it was. A Chairman can reasonably be expected to rule out material which is strictly irrelevant. Mr Widders, in his Skeleton Argument who refers to passages in the Affidavit which he believes are samples of passages that would have assisted his case. We have looked at them. They would not have assisted his case for the reasons that we have given and we find no arguable error of law to be discernible in this part of Mr Widders' argument.
20. A fourth heading is this: an important witness on the Respondent's side was not available for cross examination. The nature of the complaint is this:

"The prime respondent witness, a Ms Budgen, went on extended sick leave shortly before the hearing, as a result she could not be questioned, therefore many of the manipulations and whistleblower treatment to which I was subjected were not discussed in evidence."

The Tribunal said this in their paragraph 7:

"A further point was raised and disposed of during the hearing. Prior to the hearing the Applicant had obtained a witness order in the name of Mr B Parrott, the Respondents' Director of Social Services. On the first day Mr Graham objected to the order on the ground that Mr Parrott had no useful evidence to give, having delegated his authority to Ms F Budgen, Director of Children's Services, who in turn shared some of her responsibilities with Mr T Wells, Children's Services Manager, and Ms A Butler, Personnel Manager. Ms Budgen was on long-term sick leave and would not be called to give evidence but Mr Wells and Mr Butler were witnesses in the case. The Applicant did not challenge Mr Graham's assertion that Mr Parrott had played no significant part in the events with which the case was directly concerned. We impressed on the Applicant the need to confine the case to relevant evidence and argument. (Understandably, this was a subject to which we need to return at frequent intervals during the hearing.) The question of the witness order was then deferred. We returned to it on the morning of the third day, at which point the Applicant withdrew his challenge to the Respondent's application for the discharge of the witness order."

21. The nature of the case that Mr Widders wished that they had considered is set out at some length in the Chairman's comments. He says:

"By a letter to the Tribunal dated 7 May the Applicant applied for a postponement of the hearing (listed for 19 June) on the ground that he wished to call as a witness Ms F Budgen, the Respondents' Director of Children's Services, who was on extended sick leave. That application was refused by another Chairman. There was no appeal. The applicant then applied for, and obtained, a witness order requiring the attendance of Mr B Parrott, the Respondents' Director of Social Services. On the morning of the first day we explored the question of witnesses. The Respondents' solicitor explained that he might need to call Ms Budgen as a witness, and that as she was too unwell to give evidence at present, he must reserve his position on whether to ask for an adjournment in due course to await her recovery. At that stage Mr Widders stated that he would be prepared to put his case to Mr Parrott, who was then expected to attend on the third day. The Respondents' position was that Mr Parrott had almost no first-hand involvement in the case and could contribute no useful evidence and that the witness order should be discharged. It was agreed that we would proceed with the hearing and revisit the question of witnesses in due course. At about 4.20 on the afternoon of the second day the Applicant stated that he might abandon his plan to call Mr Parrott as a witness. At 10.00 am on the following morning the Applicant stated that he did not wish to address any further questions to Mr Wells (the witness who has been cross-examined) and that the proper target for his questions was Mr Parrott. We explored this comment and Mr Widders then appeared to accept that the individuals with direct knowledge of, and involvement in, the relevant events were Ms Budgen, Ms Butler and Mr Wells. After Mr Wells's evidence was completed (at about 11.10 am on 21 June), the Respondents' solicitor stated that he would not seek a postponement to enable Ms Budgen to be called. Mr Widders then stated that he would not require Mr Parrott to give evidence and (as we have related in paragraph 7 of the Extended Reasons) the witness order was discharged. At no point during the hearing did the Applicant ask for a postponement or adjournment to enable him to call Ms Budgen."

22. Mr Widders should have appealed the refusal to adjourn made by another Chairman or should have reapplied to have Ms Budgen's evidence taken and cross-examined (on commission or its equivalent if necessary) once the Respondent's advocate had indicated that he was not any more considering calling her. It is sometimes a little hard to visit upon litigants in person the strict approach appropriate where a professional advocate has failed to make a relevant application. But here Mr Widders and his advocate, namely his father, were apparently familiar enough with Employment Tribunal procedures to know that application could be made for an adjournment and that application could be made for a witness order, as, indeed, both had been already been done and in the circumstances we have seen no arguable error in law in that part of the case.
23. The next heading, the fifth, of matters which can be extracted from the Skeleton Argument and Notice of Appeal is one of Health and Safety. The Health and Safety part of the case was peremptorily dismissed. The Notice of Appeal says:

"We were not able to present any Health and Safety arguments which would have shown that the respondent was well aware of the situation in existence at my place of work but did nothing about it. The Health and Safety aspect of my case was dismissed peremptorily."

24. Mr Widders refers to a passage in his IT1 which said:

"I was bullied and had incidents fabricated against me by Mr Hutchinson, Mr Wilcock, Mrs Marshall, Mrs Chowney. I complained to Personnel and management. Health and Safety Regulations to protect staff and the County's laid down procedures were ignored by Management. Nothing was done."

25. At the directions hearing on 8 December 1999 the Chairman then dealing with the matter Mr D N Milton had said:

"I also pointed out to the Applicant that apart from the specialised protection afforded by section 43 (as amended) there is no general jurisdiction within a Tribunal to protect employees from hostile and unpleasant behaviour at work. Mr Widders mentioned the proposition "health and safety". It will be a matter for him to take advice and see whether there is anything in the facts which supports some complaint of that kind. At the present time on my brief perusal of the case there is no such material. The full Tribunal will unfortunately to a certain extent have to unravel from Mr Widders' very lengthy case the relevant material for the purposes of the main claims."

But nothing further seems to have been done in relation to the Health and Safety side of things. "Health and Safety" is usually taken to be a reference to section 100 of the Employment Rights Act 1996 but no such case was identified by the Employment Tribunal when it identified the issues as we have already cited. We have no reason to think that the Tribunal was wrong in not seeing section 100 to be part of Mr Widders's case below. Mr Widders may very well have wished to rely on Health and Safety in a quite different way, in other words in order to show yet further abuses on the County Council's part. His Skeleton Argument says:

"My father and I had prepared a whole line of questioning which would have proven that Health and Safety issues were being ignored wholesale at The Oaks, that these matters had been brought to the attention of senior managers who had not taken any corrective action. We were told firmly by the Chairman that we could not follow this line of questioning."

26. And he gives examples in that Skeleton, taken from the Affidavits that he had wished to adduce, of complaints made by others about Surrey's conduct of the Health and Safety matters. But whether Surrey committed breaches of Health and Safety matters generally, in other words matters not involving Mr Widders himself, and whether they were disclosed or not by him in protected disclosures did not touch the chief issue before the Employment Tribunal, namely whether he had made protected disclosures, whether Surrey had broken its contract with him and whether he had been unfairly dismissed. The Employment Tribunal was right to exclude general evidence of Health and Safety issues being ignored by Surrey because it did not go to any of the issues that truly needed to be decided in the case. There is, as it seems to us, no arguable error in this part of the case.
27. A sixth heading is this; evidence of a conspiracy was excluded. The Notice of Appeal says:

"I was not allowed to present other evidence which bore out the 'whistleblower' treatment which I had suffered, eg I was not allowed to refer to a conspiracy which took place which included Child Protection and which succeeded in discrediting me."

The Chairman has been asked to comment and he says this:

"Mr Widders's fourth complaint is wrong in fact. He was allowed to adduce evidence of what he considered to be "whistleblower treatment" following the disclosures (ie treatment alleged to have been received before the Public Interest Disclosure Act came into force). This evidence was admitted because it might tend to substantiate the allegation that the true reason for the dismissal was the fact that he had made the disclosures. The Applicant was permitted to advance the case that he was a victim of a "cover-up" and a conspiracy, and did so in his own oral evidence, in questions to Mr Wells (for example alleging at one point that he had tampered with a document) and in his closing submissions (A5). The conclusion of the Tribunal on this aspect is to be found at paragraph 16 of the Extended Reasons."

28. We have already cited the passage in which the Employment Tribunal rejected that there had been any conspiracy or witch hunt. The Employment Appeal Tribunal's practice directions requires an Affidavit to be filed if complaint is to be made as to the conduct of the hearing below. There is here no such affidavit. We are left with simply assertion and counter assertion. It is impossible to make any fully informed ruling but it is plain that the issue of conspiracy was recognised by the Employment Tribunal to be in issue and that they made a finding which we have no good reason to regard as perverse, nor as one which was based on inadequate evidence, nor such as might have been determined otherwise than it was had only Mr Widders' father, as his advocate, been granted further rein to introduce yet further evidence. As it was,as we have mentioned, it was a case that lasted five days. We are unable to be sure of any even arguable error of law emerging in this part of the argument. There was no appeal at the time against the refusal to admit evidence, nor any application for an adjournment to allow an interlocutory appeal on the point.
29. A seventh heading is this: Reports. Mr Widders wished to see reports of a body called the Inspection and Registration Unit, presumably some department or agency or Surrey County Council. He believes that it would have helped him to have proved the conspiracy which he alleged was being practised against him. Now there is, of course, no automatic discovery or inspection in the Employment Tribunals. The Chairman reports this:

"The application was refused by Mr Milton (that is the earlier Chairman) on the ground that the Respondent had conceded that the disclosures were within the definition of "protected disclosures" under the Public Interest Disclosure Act. The general effect of the report is summarised in the amended Notice of Appearance, and was not the subject of any dispute before us. Our findings on this aspect are at paragraph 14(8) of the Extended Reasons. I have no record of the application for discovery being renewed before us."

What 14(8) says is this:

"In February 1997 reports containing the findings of the two investigatory bodies were delivered to Ms Felicity Budgen, Head of Children's Services. The essential findings are helpfully summarised in the Respondents' amended Notice of Appearance. Put shortly, the child protection working party found a number of allegations concerning the inappropriate use of aggression and/or physical force against children and young persons at the school to be substantiated. Ms Wing's team found some of the Applicant's allegations made out, but rejected others for want of evidence. This second report also included a series of recommendations. One of these was to the effect that the future of the school should be reviewed. A second was that neither the Applicant nor Mr Hutchinson should return to employment at the school as the positions of both were "untenable"."

30. Had Mr Widders wished to say that the summary of the reports which Surrey gave to the Employment Tribunal was false or inadequate or that the full reports should be disclosed to the Employment Tribunal he should have not only applied for disclosure of them but, on that having been declined, should have either appealed its refusal or revived an application for the discovery and inspection of them. We have no reason to doubt the Chairman's assertion that the earlier application had been refused by the earlier Chairman, Mr Milton, and was not appealed and that the application was not revived before the full hearing. In the absence of such application there is no arguable error of law involved on the Tribunal's part in this part of Mr Widders's case.
31. Eight and last of the various headings that can be derived from the Skeleton Argument in the Notice of Appeal is a heading; split decision. The Employment Tribunal's decision was unanimous as to the failure of the whistleblowing claims but decided only by a majority as to unfair dismissal. But the Employment Tribunal is, of course, entitled to decide things by a majority and it did so and no error of law is involved in that part of the case.
32. This leaves only, as it seems to us, the point that Mr Middleton has most advanced before us this morning and it is, if we have understood it, that a claimant is entitled to rely upon the PIDA even where both the date of the disclosure and the date of the alleged detriment suffered both occurred before 2 July 1999 when the Act came into effect. There is no clue that any such argument was advanced below. That, of itself, would be sufficient to bar the matter being raised on appeal but there are further difficulties in accepting that that argument is even to be properly regarded as arguable. It would lead to a retrospectivity to the Act which would be quite radical and we have no reason to believe that such a radical conclusion was intended by Parliament. It would have surely used a different language had that been the case. We do not feel able to discern, even in this part of the case, any arguable error of law.
33. The aspect of the case that has come closest to troubling us was not in fact ventilated by either Mr Middleton or by Mr Widders himself but concerned the finding that there had been a report that Mr Widders should not be returned to employment at the school but that, nonetheless, the redundancy that was found to exist seems chiefly to have been triggered by the closure of the school. If Mr Widders relationship with employment at the school was manifestly already impossible earlier then the later closure of the school, surely, would have had little effect upon him. But, for all that, the Employment Tribunal does at considerable length consider how Mr Widders was dealt with over a period and how suitable alternative or unsuitable alternative employment by Surrey could be or was offered to him and they did conclude, ultimately, as we have already read, that they were entirely satisfied that the reason for dismissal was redundancy and not in any way by reference to any conspiracy or witch hunt.
34. We have not been able to find anything to suggest that the doubts that we have just mentioned can duly amount to a suspicion of an arguable error of law and so, even in that area, we are not able to assist Mr Widders. It is only errors of law that the Employment Appeal Tribunal and address and, having found none to be arguable, we must therefore dismiss the appeal.