United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN BOWERS QC (One of Her Majesty's Counsel) Messrs Nabarro Nathanson Solicitors Lacon House Theobold's Road London WC1X 8RW
For the Respondent	MR DANIEL OUDKERK (Of Counsel) Instructed By Messrs Russell Jones Walker Solicitors Swinton House 423 Grays Inn Road London WC1X 8DH


 


JUDGE PETER CLARK

1. This is an appeal by the Met Office, the Respondent, before the London Central Employment Tribunal, against that Tribunal's decision promulgated with extended reasons on 11 October 2000 that it had jurisdiction to hear the Applicant, Mr Richard Edgar's complaint of victimisation by reason of making a protected disclosure, contrary to Section 47B of the Employment Rights Act 1996.

Background

2. The Applicant would probably describe himself as a T.V. weatherman. He began his career as a Broadcast Meteorologist with Thames Television and then joined the Met Office in November 1989 because Thames were unlikely to have their license renewed. In 1993 he joined the BBC weather team, the Respondent holding the contract to provide weather data and presenters to the BBC.
3. Relations between the Applicant and his senior in the BBC weather team were, on his case, not good and on 11 March 1999 he made a formal complaint against that individual and another of bullying and harassment to the Respondent. He complained that this and other features of his working conditions had caused him to suffer physically and mentally over many years. He was signed off sick from 9 March until 17 December 1999.
4. His complaint was investigated and a report prepared by John Bradford which was favourable to the Applicant. The person against whom the complaint had principally been made was disciplined and appealed against that disciplinary decision to the Chief Executive, Peter Ewins. That appeal succeeded to some extent. Mr Ewins informed the Applicant of his decision in that appeal by letter dated 15 December 1999.
5. Meanwhile, on 17 November 1999 the Applicant attended a meeting with Mr Ewins and others in connection with his complaint.
6. The Applicant had hoped to return to normal duties but on 11 February 2000 he was told that he would not be returning to work at the BBC Weather Centre. That decision, he contends, has had a detrimental effect on his career and earning capacity.
7. On 5 May 2000 he presented an Originating Application to the Employment Tribunal complaining that the decision not to return him to broadcasting duties amounted to an act of victimisation, contrary to Section 47B of the Employment Rights Act 1996.
8. The claim is resisted. A number of points are taken in the Notice of Appearance and we are not required to adjudicate on those issues; the one relevant to the preliminary question with which we are concerned is that it is alleged that if a protected disclosure was made by the Applicant on 11 March 1999 then it pre-dated the coming into force of the Public Interest Disclosure Act 1998 (The Act), inserted into Employment Rights Act 1996 on 2 July 1999 and consequently the Tribunal has no jurisdiction to entertain the complaint.

Public Interest Disclosure

9. Colloquially known as the 'whistle-blowing legislation' the scheme of the protection is, as far as is material in this case as follows:

(1) The Right

Section 47B of the Employment Rights Act 1996 provides:

(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.

'Worker' includes an employee such as the Applicant. The detriment encompasses acts or omissions. 'Detriment' means putting the employee at a disadvantage.

(2) Protected Disclosure

By Section 43B(1) a 'qualifying disclosure' means any disclosure of information which in the reasonable belief of the worker making the disclosure, tends to show, in this case

(d) That the health and safety of any individual has been, is being or is likely to be endangered. The disclosure may be made to his employer. Section 43C (1) (a).

(3) The Complaint

Section 48(1A) provides that a worker may present a complaint to an Employment Tribunal that he has been subjected to a detriment in contravention of Section 47B. Time for bringing a complaint runs from the date of the act or omission complained of. Section 48(3) and (4).

(4) The Remedy

By Section 49(1), where such a complaint is found to be well founded, the Employment Tribunal must make a declaration to that effect and may award compensation.

We are not here concerned with dismissal of an employee, dealt with in Section 103A Employment Rights Act 1996.

Employment Tribunal Decision

10. The sole issue before the Tribunal at this preliminary hearing was whether, there being no transitional provisions, a protected disclosure having been made before the coming into force of Section 43B of the Employment Rights Act 1996 the Tribunal had jurisdiction to entertain a complaint brought under Section 48(1)(a), the detriment complained of having occurred after the passing of the legislation, that is on 11 February 2000.
11. The Tribunal found:

(1) That the purpose of the legislation is to protect employees. To accept the interpretation advanced on behalf of the Respondent, that the protected disclosure must post-date the coming into force of the Act, would be contrary to public policy and the

"public good construction"

referred to in Bennion on statutory interpretation.

(2) Implicitly, that such a construction did not offend the principle that legislation will not be construed as having retrospective effect unless expressly stated to do so.

(3) That since time for bringing a complaint ran from the date of the detrimental act or omission complained of, it could not have been Parliament's intention to require that the protected disclosure should have taken place after the Act came into effect.

(4) That accordingly the alleged protected disclosure made on 11 March 1999 did potentially fall within Section 43B for the purpose of giving the Tribunal jurisdiction to consider the Applicant's complaint.

12. In these circumstances they did not find it necessary to consider whether the Applicant made a fresh, protected disclosure at the meeting held on 17 November 1999, after the Act came into force.

The Appeal

13. We should first record our gratitude to Mr John Bowers QC, appearing on behalf of the Respondent employer, for very properly drawing our attention and that of his opponent Mr Daniel Oudkerk, to a recent unreported judgement of the Scottish Employment Appeal Tribunal (Lord Johnston presiding) in Stolt Offshore Ltd v Miklaszewicz, 10 May 2001.
14. In Stolt a similar issue to the one now before us arose. The complaint by the employee was one of unfair dismissal contrary to Section 103A Employment Rights Act 1996. The protected disclosure relied upon occurred in 1993, dismissal took place after 2 July 1999. An Employment Tribunal found that because the protected disclosure pre-dated the passing of the Act it had no jurisdiction to entertain the Section 103A complaint. The Employment Appeal Tribunal reversed that decision.
15. It is common ground that no distinction is to be drawn between decisions of the English and Scottish divisions of the Employment Appeal Tribunal and that, although not bound by earlier decisions of the Employment Appeal Tribunal, we ought, as a matter of comity, to follow them. This is not a case where there are earlier conflicting Employment Appeal Tribunal decisions.
16. We should say now that we shall follow the reasoning of the Employment Appeal Tribunal in Stolt. Accordingly, this appeal fails. We do so gladly, satisfied that the Employment Appeal Tribunal approach in that case is correct. We now give our reasons for that conclusion.
17. We accept the principal, approved by Scarman J in Carson v Carson [1964] WLR 511, 516, that statutory constructions should proceed:

"Upon the presumption that the legislature does not intend what is unjust, rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended."

18. That statement of principle was cited by Sir Thomas Bingham MR in L'office Cherifien v Yamashita Ltd [1994] 1 AC 486, 494 D-E, Court of Appeal.
19. Mr Bowers submits that here, the cause of action advanced by the Applicant relies upon facts which came into existence before the Act came into force. In the absence of any transitional provisions, each ingredient of the cause of action must post-date the coming into force of the Act.
20. We reject that submission. First, we do not understand the passage, above cited, to mean that all relevant facts must post-date the coming into force of the legislation.
21. The principle goes back as far as the mid-nineteenth century. In Cherifien in the House of Lords, Lord Mustill, 526-7 referred to The Queen v Inhabitants of St Mary, Whitechapel [1848] 12QB120, a case followed by Lord Johnston's division in Stolt (paragraph 13).
22. The Whitechapel case concerned a question as to whether a widow could rely on new statutory protection against eviction for widows of up to 12 months, when her husband had died before the relevant Act came into force. Lord Denman CJ, giving the judgement of the Court of Queens Bench, observed that the statute was prospective, in that it related to future removals only, not retrospective, because part of the requisites for its action is drawn from time antecedent to its passing.
23. Lord Mustill said of that case; 527B:

"The passage quoted is germane because it reveals an assumption that a person newly qualified for relief may have that relief assessed in terms of events occurring before the relief became available."

24. The Whitechapel case was also relied upon by Lord Denning MR in considering whether a straddling notice of dismissal, that is notice of termination given before but taking effect after the coming into force of the Industrial Relations Act 1971, meant that an Industrial Tribunal had no jurisdiction to consider the employee's complaint of unfair dismissal, HW Smith Cabinets Ltd v Brindle [1973] ICR 12, 22 D-G. The Court of Appeal found that the Tribunal did have jurisdiction.
25. From this longstanding line of authority we return to the principle referred to by the Master of the Rolls in Cherifien. It seems to us that there is no injustice here to the Respondent. The whole of the facts giving rise to the Applicant's cause of action do not pre-date the coming into force of the Act. After 2 July 1999 they knew what was a protected disclosure. The statutory tort was not completed until they did an act of victimisation, that is, on the Applicant's case, subjecting him to a detriment by reason of his earlier having made a protected disclosure to them.
26. Nor are we persuaded that there is a distinction to be drawn between 'status', as Mr Bowers puts it, such as earlier dissolution of marriage, see Chebaro v Chebaro [1997] Family 127 or widowhood and the present case. We think that this case is no different than, for example, a complaint of disability discrimination under the Disability Discrimination Act 1995, where a necessary ingredient of the statutory tort will involve the complainant's disability, which state of affairs may have started factually before the Act came into force, although its definition was not known until the relevant provisions of the Act did come into force.
27. In these circumstances we shall dismiss this appeal and accordingly it is unnecessary for us to consider the Applicant's cross appeal, in relation to the meeting held on 17 November 1999, a point on which the Employment Tribunal also found it unnecessary to rule.