United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR GERALD MCDERMOTT QC Instructed By: Messrs Philip Worrall & Co Solicitors 147 Liverpool Road Longton Preseton PR4 5AB


 


JUDGE P COLLINS CBE:

1. This is the preliminary hearing of an appeal against a decision of an Employment Tribunal sitting at Manchester, whose extended reasons were promulgated on 25 April 2000, after a hearing which had taken place on 15 November 1999 and on 31 January and 7 April 2000.
2. The case before the tribunal was concerned with Part IVA of the Employment Rights Act 1996 introduced with effect from 2 July 1999 by the Public Interest Disclosure Act 1998 which deals with the protection of employees who makes disclosures in accordance with the Act. This case, in a nutshell, concerns the position of the respondent to the appeal who was an employee in the appellants' nursing home and made disclosures firstly to the employer and secondly to the local Social Services Inspectorate about conditions at his employer's nursing home.
3. The finding of the tribunal was that the respondent had been subjected to a detriment within the meaning of section 47B(1) of the Employment Rights Act 1996 in that he had been given a written warning in effect for making a protected disclosure. Secondly, that he was unfairly dismissed for having made a protected disclosure.
4. Subsequently a remedies hearing was held and there is a separate appeal against the tribunal's decision on that hearing which is also the subject of a preliminary hearing today. The tribunal's reasons for its finding on remedies was promulgated on 16 June 2000. They awarded the respondent the sum of £10,000 as compensation for the detriment, that is, for the written warning and £13,075.06 by way of compensation for unfair dismissal. There is no appeal in relation to the compensatory award but there is an appeal in relation to the £10,000 compensation for injury to feelings.
5. Before I turn to deal with the matters which arise for substantive decision, there are three preliminary matters that we ought to deal with. I have indicated that the tribunal's decision was promulgated on 25 April 2000. The appellants had been represented at the original hearing on 15 November 1999 by a Mr Sinclair who was the personal assistant of Dr Matta who appears to have been effectively the proprietor of the appellants' business. Mr McDermott, to whom we are grateful for appearing today, who has been instructed at a late stage and has been of great assistance to the tribunal, informed us that Mr Sinclair was at the time (and for all we know still is) a solicitor who is suspended from practice, although we do not know the reasons.
6. At the later hearings the respondents were represented by a solicitor, a Ms Reece. We do not know whether she was an employee of the solicitors who drafted the Notice of Appeal sent to this tribunal on 5 June 2000.
7. On 10 January, which was Wednesday of last week, the tribunal received a fax from the solicitors who instruct Mr McDermott, saying that they had just taken instructions and that having spoken to Mr Sinclair and consulted counsel they would like to amend the Notice of Appeal to include bias as an additional ground of appeal. They also said that they had been supplied with certain items of new evidence, in the form of draft statements concerning the bona fides of the respondent, and were considering making an application to make further amendments to the Notice of Appeal in relation to that and they asked for the hearing to be adjourned for these reasons. That letter was placed before me and I declined to grant an adjournment on the ground that the appellants had had more than ample opportunity to prepare their case in the months they had known that this case was going to be listed for hearing today. Apart from that this tribunal was also entitled to take into consideration the proper administration of public justice.
8. As is well known to those who practise in this tribunal, there is a very substantial backlog of work which means that cases cannot be listed for many months after they have been allocated firstly a preliminary hearing and secondly a full hearing. It would be a grave disservice to other litigants, who are unable to have their cases heard, if anything other than applications made in good time and for good reason to adjourn cases were allowed. But the principal reason for my refusing was that there was no reason proffered for the late raising of these matters.
9. On 16 January the solicitors faxed a proposed amended Notice of Appeal to the tribunal. The solicitors apparently did not realise that they had to get permission of this tribunal to amend the Notice of Appeal and give no indication in their covering letter to the court that they understand that leave is required. Mr McDermott, of course, is under no such misapprehension.
10. The proposed amended Notice of Appeal asserts bias by the chairman of the tribunal against the appellants, principally at the hearing on 15 November, although there is some suggestion particularly in relation to the evidence of Mr Frain, which I shall mention separately, that such bias spilled over into subsequent hearings.
11. The procedural position is that appellants have 42 days from the delivery of extended reasons in which to lodge their appeal. The Employment Appeal Tribunal Practice Direction of 29 March 1996, paragraph 9, deals with complaints about the conduct of the hearing by the tribunal. It reads as follows, so far as is material:

"9(1) A party who intends to complain about the conduct of the Industrial Tribunal (for example, bias or improper conduct by the Chairman or lay members or procedural irregularities at the hearing) must include in the Notice of Appeal full and sufficient particulars of the complaint.

(2) [Provides for the giving of directions by the Registrar]

(3) Such directions will normally include the swearing and filing of affidavits by the complainant or his or her advisers or other witnesses or by the Respondent or his or her advisers or any others who can give relevant evidence as to the facts which form the basis of the complaint and the provision of further particulars of the matters relied on.

(4) When the direction has been complied with the Registrar will notify the Chairman of the Industrial Tribunal and provide copies of the Notice of Appeal, the affidavits and other relevant documents to the Chairman so that he has, and, if appropriate, the lay members of the Industrial Tribunal have, an opportunity to comment on them. …

…

(6) The EAT will not permit complaints of the kind mentioned above to be raised or developed at the hearing of the appeal unless this procedure has been followed."

12. It is a serious matter for it to be alleged against a chairman of an Employment Tribunal that he or she has been guilty of bias. It is within the experience of this tribunal that such allegations are not infrequently made against chairmen which, upon examination, turn out to be groundless.
13. One of the purposes of paragraph 9 of the Practice Direction is to ensure that if such allegations are made, they are dealt with expeditiously and justly. Justly in this context must mean giving firstly the tribunal and secondly the opposing party an adequate opportunity at the earliest possible stage to turn their minds to the allegations that are being made, so that a response to those allegations can be made before the hearing and what transpired at the meeting fades too fast from the memory.
14. In this case the late application to amend to allege bias is lamentable. It should never have been made. In our judgment it would be wholly wrong to invite a tribunal chairman in January 2001 to cast his mind back to the events of a hearing on 15 November 1999 so as to be able to give a sensible response to the allegations of bias which are made. This is particularly the case when the allegations of bias have been so poorly thought through and so poorly prepared for presentation to this tribunal that the appellants have not taken what might be thought to be the elementary precaution of swearing the affidavits in advance, as envisaged by paragraph 9 (3) of the Practice Direction, firstly so that the allegations are substantiated on oath and secondly so that the case was as ready as it can be for the responses of the tribunal and of the respondent to be sought.
15. We have no hesitation whatsoever in saying that it is far too late for these allegations to be made and we will not allow them.
16. The second matter that has to be dealt with is set out in the letter which I have mentioned and also in paragraph 18A of the amended Notice of Appeal. There was an application for an order for what is described as "fresh evidence" although, of course, it is nothing of the kind since what we have been supplied with is unsigned statements, which are not evidence of anything, and attached to the amended Notice of Appeal are the statements of two witnesses, one Beryl Bowers and one Paul Douglas. The point about these witnesses is that, if they were to give evidence in accordance with their draft unsigned proofs, they would not give evidence about any of the substantive matters with which the tribunal was concerned, with one possible exception. Essentially, they set out a number of serious allegations about the conduct of the respondent in relation to matters which are not the subject matter of these proceedings and, therefore, might be thought at first blush to be simply matters going to his credit.
17. Mr McDermott asserts that since at the heart of the tribunal's decision in the present case is the question of the respondent's good faith in making his disclosures or in his whistle blowing (to put it in the familiar phrase) evidence which shows that the conduct of his personal and professional life in other areas was of a particularly reprehensible kind, would throw doubt upon his good faith.
18. We think there is some force in Mr McDermott's submission. However, there are a number of, in our judgment, very convincing reasons why we should not allow the evidence to be adduced. First, it is apparent from the body of the drafts that they were both typed up in somebody's office on 24 June 2000. They do not appear ever to have been signed. We do not know why that would be. It may be that the witnesses refused to sign. It may be that the witnesses are not prepared to give evidence. It is impossible to tell, but in our judgment it would be quite unreasonable for us to allow fresh evidence on the basis that witnesses who gave their statements seven months ago have provided drafts which have not been signed. There is no fresh evidence which we are in a position properly to admit.
19. Next, Mr McDermott is not in a position to tell us, even today, whether the respondent has been served with copies of these statements. They were faxed to the tribunal on 16 January and we do not know whether copies of the statements or, indeed, of the proposed amended Notice of Appeal were served on the respondent. In our judgment it would be quite intolerable for appellants to sit on statements, which they have had since last June, seeking to cast doubt on the respondent's general character and spring them on him in January 2001. There has been ample opportunity since the service of the Notice of Appeal on the 5 June 2000 for an application to amend the Notice of Appeal to be made. At that time the appellants were quite clearly represented by solicitors who were in a position to deal with it.
20. We ought also to add that the Notice of Appeal gives no satisfactory explanation in our judgment as to why the material had not been available earlier. It is said that the material came out of the blue, and that the above-mentioned witnesses only came forward as a result of publicity given to the tribunal's decision in this case. There is no evidence placed before us to support that assertion. Who is saying that and on the basis of what material are they saying it? We are not told, and since it is part of the criticism of the tribunal that they failed to take into account a determined attack on the respondent's bona fides, it would have been only appropriate for the appellants to state what attempts they had made at the time to obtain collateral evidence which is now being put forward. Again we have no hesitation in refusing the application to admit further evidence.
21. The third preliminary matter which we ought to mention is this; in paragraph 20(b) of the draft amended Notice of Appeal there is a request for the production of the chairman's notes of evidence on the question of refusing the appellants to call a witness. We understand that to be a reference to Mr Frain. In paragraph 3 of the extended reasons the tribunal says:

"Present also was Mr D Frain, an employee of the respondents but the Tribunal determined that it was not necessary to hear his evidence."

22. Mr McDermott, through no fault of his own, has been unable to present us with any detailed information about what Mr Frain might have said and he accepts that it would have been quite wrong for him to proceed any further than he did, in the absence of any information supporting the idea that the respondent has been told that Mr Frain's evidence is sought to be put before this tribunal. Therefore, that is a third matter which does not seem to us to arise. Accordingly then we turn to the substantive points which remain.
23. The tribunal's reasons state the facts in considerable detail and it is not the intention of this tribunal to repeat them. Suffice it to say, for the purpose of making this judgment intelligible, that the appellant who is a man of some 50 years of age now was employed as a charge nurse, although he acted as acting matron for a time at the appellants' nursing home from 14 June 1999 until 16 September 1999 when he was dismissed. He had concerns about a variety of matters and on 22 August faxed a letter to Mr Sinclair in which he made a number of complaints. Mr Sinclair was shortly to go on holiday and on 31 August the respondent telephoned the Social Services Inspectorate and reiterated his complaints to them.
24. There was then an inspection of the nursing home by an inspector of the North West Lancashire Health Authority Nursing Home Inspectorate and an officer of the Social Services Inspection Unit. A number of concerns were raised and the inspectors required Dr Matta to deal with those matters.
25. However, on 10 September 1999 a meeting took place and the respondent attended a disciplinary meeting with Dr Matta at which, far from complying with the inspectors' direction to investigate the complaints further, Dr Matta took a very dim view of the respondent's conduct in reporting and gave him a written warning for that purpose. That was the detriment which the tribunal held to have taken place and then subsequently, on 16 December, he received from Dr Matta a letter dismissing him for a number of grounds relating to his performance as a charge nurse, none of which was specified and in relation to none of which had he been given any opportunity to state his case. That was the finding of the unfair dismissal and the tribunal held that he had been dismissed, not because of any shortcomings in his work, but because of his whistle blowing. That is a very brief sketch of the substance of the case.
26. There are two specific points which Mr McDermott has addressed in his submissions. Part IV of the 1996 Act in sections 43A to 43L inclusive set out a comprehensive self-contained code for dealing with protected disclosures. It is not necessary for me to analyse the whole of this part. Firstly, this is a preliminary hearing and we have only heard argument from Mr McDermott and secondly, the matters which arise for the purposes of this hearing fall into a very narrow compass and do not involve an overall consideration of the provisions. But we ought to make some general remarks which, even bearing in mind the limited scope of this hearing, may give some assistance to tribunals. Obviously enough, the purpose of this part is to give protection to those employees who, in broad terms in good faith and for good reason, make disclosures about their employer's business. However, the legislature obviously intended that these provisions should not give licence to malicious and unjustified complaints by employees against their employers and an effort is therefore made in these provisions to ensure that the protection given to employees is limited by defined requirements of good faith and reasonableness.
27. In this case Mr McDermott's submissions concentrated on two elements in this general approach. Both relate not to the initial disclosure to Mr Sinclair but to the subsequent disclosure to the public authorities. This is governed by section 43G which provides, so far as is material:

"(1) A qualifying disclosure is made in accordance with this section 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,

…

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

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

For the purposes of this appeal the relevant condition in subsection is (2)(c):

"(2)(c) That the worker has previously made a disclosure of substantially the same information –

(i) to his employer."

28. Subsection 3 sets out the various criteria, although not exhaustive, that the tribunal have to bear in mind when deciding whether it is reasonable for the worker to make the disclosure (and I ought to mention subsection (4) which deals with a specific set of circumstances in which subsequent disclosure may be regarded as a disclosure of substantially the same information); the concentration of the argument in this case has been on section 43G (2)(c) Did the disclosure that the respondent made to the public authorities qualify as a disclosure of substantially the same information as that given to the employer? Mr McDermott submits that on the basis of the primary facts found by the tribunal they were wrong in law in drawing the conclusion that it was substantially the same. We do not think it is possible to categorise it in that way. It was a question of mixed fact and law for the tribunal and difficult to disentangle one from the other.
29. The tribunal dealt with this issue in considerable detail. First, in their summary which begins at page 11 of our bundle, at paragraph (xiii) they say, referring to the telephone call on 31 August:

"On that day, therefore, he telephoned the local authority and subsequently spoke to Mrs Woan of the Social Services Inspectorate. He relayed to Mrs Woan substantially the same concerns that he had raised with his employer."

30. Pausing there for a moment, apart from that we do not have any evidence of the contents of that telephone conversation and it is, in our judgment, impossible for us to go behind that finding of fact. But Mr McDermott invites our attention to paragraph (xv) where Mrs Woan summarised the complaints which had been made and makes a number of comparisons between that list of complaints and the lists of complaints which had been set out in the facts of 22 August to Mr Sinclair which is summarised in (x) of the Summary at pages 11 and 12 of our bundle.
31. It is therefore necessary for us to consider what is meant by the expression "substantially the same information". In our judgment this phrase is not to be construed technically having regard to the purpose of the legislation as I have stated it broadly. The legislature is endeavouring to strike a balance protecting the rights of employees while ensuring that employers are not the object of malicious and unjustified complaints. It would, in our judgment, be wholly inappropriate for tribunals to embark upon an exercise of a nice and detailed analysis of the disclosure to the employer, compared with the disclosure to the outside body, for the purpose of deciding whether the test in section 43G (2)(c) has been made out. The correct approach, in our judgment, is for tribunals to adopt a commonsense broad approach when deciding whether or not the disclosure is "substantially the same". In this case the tribunal drew attention in paragraph (x) of their Summary to the facts of 22 August which specifically stated "Omissions to care which are going to lead to detrimental results for the residents unless they are addressed" and in the facts certain specific examples of that are given.
32. As I have indicated in paragraph (xiii) they say that the telephone call of 31 August raised substantially the same concerns and the matters listed at paragraph (xv) are said by the tribunal at paragraph (xvi) as follows:

"(xvi) The Tribunal records at this point that these issues are exactly the issues that were addressed in the fax of the 22 August."

33. So that the essential similarity between the disclosure to the employee and the disclosure to the local authority is that they are omissions to care which are calculated to lead to detrimental results for residents of the nursing home and in each case examples are given. The examples are similar or the same or additional; in our judgment, it matters not. Substantially the same causes of concern are being put forward, namely that patients, for one reason or another, are being put at risk by reason of failures of care and it seems to us that on any view the test is satisfied and there is no arguable point of law arising from the tribunal's decision.
34. The other substantial matter which has been addressed by Mr McDermott relates to section 43G (1)(e). Was the tribunal perverse in coming to the conclusion that it was reasonable for the respondent to make the disclosure to the local authority? The tribunal deal with this issue in detail in paragraph 24 of their reasons and they had particular regard to the matters which are urged on us by Mr McDermott today, principally that having made his complaint to Mr Sinclair on 22 August and knowing that Mr Sinclair was going to go on holiday, the only reasonable course for the respondent would have been to wait for Mr Sinclair to come back from holiday before dealing with them.
35. We cannot accept that that is a proper criticism of the tribunal's approach not to accept that line of argument and the supporting arguments which Mr McDermott addressed. Patients were at risk here and, in particular, as Mr Springer pointed out during the course of argument, there was a complaint that patients' record cards were not being kept up to date and, as the respondent pointed out in his complaints, medication records were not being kept. These were almost so serious as to call into effect the operation of section 43H which allows an employee to disclose exceptionally serious failures without having to jump through the procedural hoops which are provided by section 43G, and at one point during the course of his argument Mr McDermott was almost, but not quite, led to submitting that the real gravamen of the respondent's complaints were so substantially different from those he had made to the employer that they could only be properly interpreted as being exceptionally serious under section 43H. The tribunal considered section 43H but did not find it necessary to make any decision because of their view on section 43G. If they had been obliged to consider section 43H it is far from clear that they would not have come to the conclusion that section 43H did apply.
36. It is difficult to imagine anything more obviously important for a worker in a nursing home establishment to have concern about and the care of patients or residents and in our judgment the tribunal weighed all the factors, they had regard to all the arguments and they came to a decision on reasonableness which they were perfectly entitled to take. Underlying the whole of the tribunal's reasoning was their view of the participants. They took the view, having heard the evidence, that the respondent was a reasonable man who acted bona fides throughout. They took a very different view about Dr Matta and in our judgment the tribunal were entitled to have regard to their views about the respondent's bona fides at every point in their decision and it is clear that that underpinned their decision.
37. In our judgment, therefore, there is no arguable point of law in relation to the tribunal's decisions firstly, that the respondent was subjected to a detriment and secondly, that he was unfairly dismissed because he had blown the whistle.
38. I now turn to deal with the appeal against the award for injury to feelings. All I need say about this is that the letter of 10 September was quickly followed by the letter of dismissal on the 16^th and the tribunal confessed that it is very difficult to disentangle the effect of the two on the respondent's feelings. In our judgment, and bearing in mind that this is a comparatively new jurisdiction, the award of a sum as large as £10,000 for receiving a warning letter on 10 September is arguably too high and we think that that ought to be considered by a full hearing of this tribunal.
39. We shall direct the matter to go to a full hearing on the £10,000 award for compensation for a detriment only. The award in relation to compensation for unfair dismissal stands. We shall direct that it is listed as Category C, a time estimate for the hearing one hour, skeleton arguments 14 days before the hearing.
40. We refuse permission to Mr McDermott to appeal on the ground that it is our view that, on any view of the construction of the section, the disclosure was substantially the same. On the other matters we have come to such very clear and clearly expressed views that we really do not think there is any reasonable prospect of success.