United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R WHITE (of Counsel) Instructed By: Mr David Gray-Jones Messrs Richmonds Solicitors Richmonds House White Rose Way Doncaster DN4 5JH
For the Respondent	MR D OUDKERK (of Counsel) Instructed By: Ms Lucy Atherton Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ


 


JUDGE J R REID QC:

1. Mr Aspinall appealed against a decision of an Employment Tribunal held at Sheffield on 4 May 2001. The decision was promulgated on 5 June 2001. By the decision the Tribunal held that Mr Aspinall "was not dismissed constructively or otherwise" and dismissed his application for unfair dismissal. Mr Aspinall's initial claim was that he had been unfairly constructively dismissed because he resigned believing that he was about to be dismissed without there being any proper disciplinary proceedings. He was allowed to amend his claim at the hearing to allege that he was constructively dismissed and that the dismissal was unfair under section 103A of the Employment Rights Act 1996 because the reason or principal reason for his dismissal was that he had made a "protected disclosure" (ie a qualifying disclosure as defined in section 43B(1)(d) of the Act). The Respondent ("MSI") cross-appealed against the decision to allow the amendment of the claim. At the conclusion of the hearing on 5 July 2002 we dismissed the appeal and the cross-appeal but because of the lateness of the hour we said we would give our reasons later. This we now do.

The cross-appeal

2. It is convenient to deal first with the cross-appeal. The amendment raised no new issues of fact. It was simply another way of putting the claim for unfair dismissal. It was not (as eventually transpired and contrary to what MSI appears to have thought) to raise a new claim under section 47B of the Act. If it had been, different considerations would have applied. It was made clear in the course of argument before us that the detriment which Mr Aspinall alleged he had suffered by reason of the protected disclosure was dismissal. Accordingly section 47B could not apply: see section 47B(2)(b). In these circumstances the amendment was doing no more than adding another label for facts already pleaded and not a substantial alteration pleading a new cause of action (see Selkent Bus Co Ltd v Moore [1996] ICR 836 at 843). The amendment simply made clear the main way in which Mr Aspinall was putting his unfair dismissal claim. In these circumstances the Employment Tribunal's decision to allow the amendment was unimpeachable.

The facts as found

3. Mr Aspinall was employed as a team leader in a factory which manufactured arms for fork lift trucks. This was a highly competitive enterprise. There were only 4 similar businesses in the world and the protection of manufacturing methods was of vital importance. The contracts of MSI employees (including Mr Aspinall) contained a wide-ranging confidentiality clause in their contracts: this applied to everybody in the factory and not just high earners.
4. In 1999 Mr Aspinall alleged that he was injured in an accident at work. He was off work for 6 weeks. MSI refused him sick pay under its rules because it considered that he had not really been injured at work. This made Mr Aspinall very angry. He went off to a firm of solicitors who wrote a standard letter before action on in October 1999. The solicitors told him to obtain any evidence which he could in order to assist his claim. On 7 January 2000 Mr Aspinall arranged for a fellow employee to bring his video camera to the factory on the night shift and to take a video showing how the particular hoist worked which had allegedly caused the accident and to show the fault in it which was deemed to be the cause of the accident. He then handed the video to his solicitor and thought no more about it
5. In the course of the normal negotiations before the issue of proceedings this video was disclosed by the solicitors to MSI's insurers who on 17 August 2000 telephoned MSI's health and safety manager and told him of the existence of the video and roughly what it showed. He informed Mr Miles (the general manager) who in turn informed Mr Mangham (the managing director). No one from MSI ever looked at the video before the incidents that led to Mr Aspinall's resignation. Mr Mangham was not in any way concerned about what was, to the company, a totally trivial accident claim (it was limited to £5000) but was concerned because of the secrecy in the production process. Within 15 feet of the hoist there was an extremely important piece of production equipment which was secret and confidential. Mr Mangham was therefore most anxious to discover the circumstances in which the video was taken, who took it and whether it could have found its way into a third party's hands. He therefore instructed Mr Miles to hold an enquiry.
6. Mr Miles unfortunately did not deal with the matter particularly well. He immediately summoned what he called a disciplinary hearing and told Mr Aspinall what the problem was, invited him to attend and arrange for the union representative to be there on his behalf although Mr Aspinall was not a member of the union. Mr Turton, the production manager, was there to take notes. The Employment Tribunal accepted his evidence, supported by his contemporaneous notes, as an accurate account of what occurred. Mr Miles did not hear the applicant when he said that the person who took the video was a member of the staff although he refused to name him. Mr Miles, from his subsequent actions, was clearly under the impression that Mr Aspinall refused to say whether it was a member of the staff or an outside person who had taken the video, the latter being much more worrying to MSI.
7. Mr Aspinall considered that he had been threatened that if he did not reveal the name he would be sacked. It was accepted on his behalf that no such words were ever said and the Tribunal found there was nothing upon which such a belief could reasonably have been entertained. It is this finding of fact which lies at the core of the appeal. It is submitted on Mr Aspinall's behalf that this finding was perverse. He was given the weekend to consider his position as to whether he would reveal who had taken the video. It was clearly stated that no punishment would be meted out to any member of the staff whose name was revealed because all MSI wanted to find out was what had happened to the video and whether other things been recorded which had not been sent to the solicitors.
8. Mr Aspinall was on the night shift on Monday, the following working day, and when he arrived for work for some reason his clock card was not there. The tribunal were unable to come to any conclusion as to why it was not but found that it was not a deliberate act by the company to unsettle Mr Aspinall and that Mr Miles had no part in its disappearance. Nonetheless the incident caused Mr Aspinall concern. In the event he decided to resign. He got his wife to type out a letter which was just a straightforward resignation giving a week's notice of his intention to resign. It gave no reason. Mr Aspinall gave the letter to Mr Miles on the Tuesday but Mr Miles refused to accept it and said he would put it in a drawer for 24 hours whilst Mr Aspinall reconsidered the matter.
9. Meanwhile Mr Miles spoke to Mr Mangham to see if he could persuade Mr Aspinall not to resign. There was a meeting with Mr Mangham and Mr Aspinall when Mr Mangham did his best to persuade him not to do so but the resignation was confirmed. Mr Aspinall duly left the employment on the Friday but was paid up to the Monday which was a bank holiday. He then launched his claim for constructive dismissal. He immediately started work in a new job for which he had applied and been interviewed before any question of disciplinary proceedings arose. He was not popular with his fellow workers and had a further problem in that in his forthcoming proceedings he proposed to blame a fellow worker, Mr Seaton, for the accident.

The Employment Tribunal's conclusion

10. The Employment Tribunal held that there was no fundamental breach of Mr Aspinall's contract by MSI which entitled Mr Aspinall to resign and that in any event he did not do so because of any conduct on the part of MSI but because he considered it in his own best interests to do so. He resigned of his own accord for his own reasons. It went on to hold that a case could be made that the making of the video was a qualifying disclosure within section 43B(1)(d) of the Employment Rights Act 1996 but that he had not suffered any detriment as a result of the qualifying disclosure. Nothing that occurred was connected with the accident (which to the company was totally trivial). MSI was concerned only because of the secrecy of the production process and was anxious to discover the circumstances in which the video was taken, who took it and whether it could have found its way into a third party's hands. The Tribunal did not specifically refer to section 103A of that Act.

The Appellant's submissions

11. On Mr Aspinall's behalf it was submitted that the finding he was not subject to any detriment could not stand up. The note of the meeting on which the Tribunal relied showed that Mr Aspinall was told that if he named the maker of the video he would be given a nine month final written warning. At a later point the note stated "If the person who took the video is not named, further discussion will be required on the action to be taken". It was submitted that given the terms of the MSI disciplinary code, that could only mean dismissal. In these circumstances it was submitted (after the submissions evolved somewhat in the course of argument) that the detriment was the effective certainty of dismissal and the fact that Mr Aspinall jumped before he was pushed did not prevent there being an unfair dismissal under section 103A. This provides "An employee who is dismissed shall be regarded as unfairly dismissed if the reason (or if more than one, the principal reason) is that the employee made a protected disclosure". Reference was also made to section 47B which was not applicable to the Appellant's case as finally formulated (because it does not apply where the alleged detriment is dismissal) and an attempt was sought to be made to suggest the words "on the ground that" in section 47B(1) had a wider effect than if the words had been "by reason that". It was also submitted that since the finding that Mr Aspinall decided to go for his own reasons was based substantially on the unsupportable finding that he was not, in effect, under threat of immediate dismissal, it could not stand and the case needed to be remitted to another panel of an Employment Tribunal.

Respondent's submissions

12. On behalf of MSI it was submitted that the Tribunal was entitled to find that Mr Aspinall did not suffer a detriment, that even if he did it was not "on the ground" or for the reason that he made a protected disclosure, and that the Tribunal was entitled to find he was not constructively dismissed. MSI accepted that the making of the video amounted to a protected disclosure. But, MSI submitted, the only detriment that could be alleged was the dismissal because for there to be a detriment there has to be some physical or economic consequence as a result of the discrimination, which is material and substantial (see Lord Chancellor v Coker [2001] ICR 507 at para 44 and Shamoon v Chief Constable of the RUC [2001] IRLR 520 at para 14) and a mere emotional sense of grievance is not enough. It was submitted that even if there were a detriment it was not on the ground of or by reason of the protected disclosure but on the ground that Mr Aspinall had made a video of a secret and confidential piece of production equipment.

Conclusions

13. The Tribunal were entitled to reach the conclusions of fact which they did. The relevant part of the notes of the meeting with Mr Aspinall read as follows:

"If the person is named, serious disciplinary action will be taken (final written warning) for 9 months. Appeal to CM in writing within 5 days. Workforce to be informed of confidentiality ref photos and video without express permission of m/director. This has nothing to do with the accident claim pending. Copies of code to be re-issued if reqd. If person who took the video is not named, further discussion will be reqd on action to be taken. No further action or recrimination will be taken against the individual who took the video (if named) …. MM asked GA to think about the situation over the w/end & let MM know on Monday 21/5/00 what he intends to do."

The note does not say that Mr Aspinall will be dismissed if he does not name the maker of the video. It does make clear that MSI's concern was the possibility of confidential production information being leaked. Mr Aspinall chose after his Monday shift (having not named the maker of the video) to hand in a letter of resignation on the Tuesday. He refused to reconsider his position though invited to. That invitation itself is strong evidence that MSI had not decided to dismiss Mr Aspinall if he did not disclose the name. Instead of reconsidering his position Mr Aspinall chose to stand by his resignation and to take up the post which he had already lined up for himself before any suggestion of disciplinary proceedings had been made. In these circumstances the Tribunal were entirely entitled to reach the conclusion which they did and to hold that Mr Aspinall left for reasons of his own and not because of anything done or threatened by his employer.

14. It follows from this legitimate finding of the Tribunal that there was no constructive dismissal. In the light of the way in which the matter was finally put in argument before us, this finding disposes of any question of there being victimisation because of a protected disclosure. However, as the point was raised before us, we should express our views briefly. We have reservations about the concession by MSI that the mere making of the video was a protected disclosure. That there was a protected disclosure at the point when the video was produced to Mr Aspinall's solicitors is clear, and the introduction of an outsider who could witness the confidential process and to make the video could be a protected disclosure, but we remain unconvinced that the making of the video by itself (if it was made by a fellow worker to whom nothing new was disclosed) amounted to a protected disclosure. For there to be detriment under section 47B "on the ground that the worker has made a protected disclosure" the protected disclosure has to be causative in the sense of being "the real reason, the core reason, the causa causans, the motive for the treatment complained of", to borrow the words of Lord Scott in the Race Relations case of Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at 1082. Similarly if the detriment is (as was suggested in this case) dismissal, the making of the protected disclosure has to be the reason or principal reason for the dismissal. In this case not only was there no dismissal but the steps which the employer took were not because of any protected disclosure that tended to show "that the health or safety of any individual has been, is being or is likely to be damaged" (see section 43B(1)(d) of the 1996 Act). It was solely because of the perceived breach of the confidentiality of MSI's manufacturing process.
15. It follows that for the reasons given both appeal and cross-appeal are dismissed.