United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondent	MS H GOWER (Of Counsel) Instructed by: Messrs Sinclair Taylor Martin Solicitors 9 Thorpe Close Portobello Road London W10 5XL


 


JUDGE McMULLEN QC

1. This case is about whistle blowing, the treatment of an employee who makes disclosure in the public interest about wrong doing by others.

EAT Procedure

2. At a preliminary hearing on 19 March 2003 where I sat with Ms Bilgan and Mr Crosby the Applicant persuaded us that there was a reasonably arguable case to be made at a full hearing in respect of the First Respondent. The order which was made considered this matter fit for expedition because the Applicant had put before us circumstances relating to legal proceedings in a different jurisdiction which were imminent. This hearing was expedited to accommodate the Applicant's wishes.
3. This morning the panel originally appointed to hear this case included a member who decided there was a conflict of interest because of that member's connection to Mind in a different part of the country. Thus having consulted the judge in her case it was decided that she would not sit upon this case. In her place Mr Hodgkins was due to hear the case he being appointed by the Secretary of State under Royal Warrant as a person with experience of Industrial Relations representing employers as was the previous member.
4. The Applicant arrived late for the hearing scheduled at 11.45 am. But as it happened no inconvenience was caused since a Tribunal of two is presently available, that is myself and Mr Hodgkins. Before the case was called on we caused an enquiry to be made of Counsel, Ms Gower and the Applicant as to whether they would consent to this case being heard by two persons. That is permitted under Section 28(3) of the Employment Rights Act 1996. Consent is required although unlike the Employment Tribunal's parallel provision it does not need to be in writing. There was no objection.
5. At the calling on of the case in open tribunal at about 12.40 both the Applicant and Ms Gower confirmed expressly in answer to my question that they had no objection to the case being heard as constituted. The hearing began. A form was prepared in standard form which we use in this Tribunal for the Applicant and Ms Gower to sign. At 2.05 pm the Applicant has indicated that she will not sign the form. She points out she is without legal representation and fears that she is committing herself irrevocably to something which will disadvantage her. The disadvantage she says is having the case heard without a person experienced in Industrial Relations as a representative of workers.
6. Thus she applies today for this Tribunal to discharge itself in the event that there is no third person. Ms Gower submits that the case is already under way. The consent already has been freely given by both parties and considerable effort has been put in by the Respondent into making the case ready for today. That much can be said of the Applicant's case too, who has done considerable preparation. The Applicant's other hearing which overshadows this hearing has now being brought forward to 16 April. There is no question therefore of a hearing of the Applicant's appeal by a three-person Tribunal before that date. That however is a secondary consideration. The Applicant gave her consent to the hearing. The hearing is on foot. It is not in the interest of the administration of justice that a party may decide part-way through a hearing that she is dissatisfied with its constitution. This hearing is being conducted under Section 28(3) of the Employment Tribunals Act 1996 by the consent of both parties constituted as a Judge and one member. We will continue as constituted

Introduction

7. On 19 March 2003 we directed as follows:

"1. This appeal be set down for a full hearing limited to ground 3 of the Notice of Appeal against the 1^st Respondent, all other grounds against the 1^st and 2^nd Respondent be dismissed. The time estimate for such hearing to be half a day [the parties are to notify the Tribunal in writing if and so soon as they disagree with such estimate]. Category C."

We dismissed the Applicant's claims under provisions relating to health and safety, a failure in procedure and a failure to review. The judgment we gave can be read with this judgment. It was reasonably arguable for the Applicant to contend that the Tribunal had made an error which stems from a meeting on 19 February 2001.

8. We put in place the provision of Chairman's notes which have kindly been provided. The Tribunal decided that it would consider the Applicant's appeal relating to events on that day and if she succeeded on that ground would consider the rest of the Applicant's case under Ground 3 of her Notice of Appeal relating to public interest disclosure. The Applicant had made what the Respondent concedes to be certain protected qualifying disclosures but denied that the Applicant had been dismissed or had suffered a detriment as a result.

The Issues

9. The Employment Tribunal made decisions relating to all of the Applicant's claims. Following the preliminary hearing before the Appeal Tribunal we have identified above one issue. The Applicant's claims were set out in paragraph 2(i)-(v) of the Reasons:

"(i) Failure to refer the Applicant to occupational health in December 2000/January 2001 and May/June 2001, contrary to the First Respondent's procedures and in contrast to a white employee who for sickness absence was so referred.

(ii) Not inviting or allowing the Applicant to attend monthly meetings of the executive committee of the Respondent organisation between October 2000 and February 2001, whereas a colleague, the Second Respondent, was so allowed.

(iii) The Applicant not being considered for deputising duties before March 2001 and/or not considered for or appointed to the post of acting director from March 2001, whereas Ms Lang was appointed deputy and then acting director.

(iv) Failing to appraise the Applicant between October 2000 and March 2001.

(v) Failing to deal properly with the Applicant's complaint of racial harassment and treatment against the Second Respondent, raised in letters dated 6 and 12 March 2001 to Mr Clive Pilcher, vice chair of the First Respondent's executive committee, in contrast to Mr Jack Steel, whose complaints were investigated."

The Legislation

10. The relevant legislation for the purposes of the current claim is set out in paragraph 6. It consists of amendments made by the Public Interest Disclosure Act 1998 (PIDA) to the Employment Rights Act, Section 43A, 43B, 47B(1), 48(2) and Section 103A so far as is relevant:

"43A Meaning of "protected disclosure"

In this Act is "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.

43B Disclosures qualifying for protection

(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 –

…

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

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

(5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).]

47B Protected disclosures

(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 section does not apply where-

(a) the worker is an employee, and

(b) the detriment in question amounts to dismissal (within the meaning of [Part X]).

48 Complaints to [employment tribunals]

(2) On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

103A Protected disclosure

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.]"

The Appeal

11. As we have indicated the Employment Tribunal dismissed all of the Applicant's claims. The appeal is upon the substantive grounds set out in Part 3 of her Notice of Appeal but limited to the PIDA matters. Directions in this appeal were given in Chambers by Mr Justice Wall on 2 February 2002. They were also given at the preliminary hearing which I conducted.

The Parties

12. The Respondent is a local association for mental health, a company limited by guarantee. It performs important work in the community in partnership with the local council and local health authorities. It employs about 30 people in Brent in North West London. The Applicant was employed by the Respondent as the housing services manager on 6 months probation from 3 October 2000 until the relationship ended by her dismissal on 30 June 2001. She is of black Afro Caribbean origin, a matter relevant to her claims now dismissed under the Race Relations Act 1976, and possibly relevant to her allegations that the Respondent did not comply with its equal opportunities policy. The second Respondent Ms Lang who was dismissed from these proceedings at the preliminary hearing was made up to be acting director from 1 March 2001.

The Findings

13. The findings relevant to the issue before us are that the Applicant reported to Mr Hardman. Up until 1 March 2001 he was the director. The Applicant was contracted to work 35 hours a week. She obviously worked hard. She suffered various sicknesses causing her to be absent as was a white comparator Miss Trudy Scrivener. On 28 February 2001 the Applicant's probation was extended by Mr Hardman. The reason given by Mr Hardman was so that he could effect to hand over to Ms Lang with no loose ends as he was leaving. Otherwise the probation would be due to end on 3 April.
14. On 19 February shortly before his departure, Mr Hardman met the Applicant, and it is this which is in issue.

a. Her case was that she complained to him about Trudy Scrivener's appointment and how it was in breach of the Equal Opportunities Policy. The complaint was that it did not give an opportunity for promotion to Ms Scrivener's black colleague.

b. Mr Hardman did not recall this being said at the meeting and the Applicant agreed that she did not use the word discrimination. Mr Hardman's evidence was that Ms Scrivener was appointed by way of internal advertisement. was the only applicant for the job and that the Applicant herself was involved in the interview and the recruitment exercise. Mr Hardman pointed out to the Tribunal that if he had wanted to put Ms Scrivener into the post he could have done it before the Applicant was appointed.

15. The Applicant relies on that exchange as the first protected disclosure. The second is a letter she wrote to Mr Pilcher, the chairman on 6 March 2001 complaining about her treatment by Mr Hardman and of a number of other matters. The third relates to correspondence taking place on 2-4 May. The Applicant wrote to Mr Coniff, of Brent community care alleging institutional racism in the Respondent.
16. The Tribunal found that at the date the Applicant was suspended on full pay from her duties Ms Lang did not know of the Applicant's complaints. After the Applicant's suspension an investigation was conducted. The suspension by Ms Lang was on the basis of alleged gross misconduct viz a serious failure to discharge her obligations in accordance with the contract of employment and gross professional negligence or grossly inadequate standards of work.
17. Following the suspension the Applicant was in due course dismissed on the grounds of unsatisfactory performance during probation. This decision became effective on 30 June. The Applicant's appeal failed. The protected acts upon which the Applicant relies were therefore three, and detriment was said to have been suffered by way of response to the first in the form of extension of the probation and docking of pay and in respect of them all by her suspension and subsequent dismissal.
18. The Tribunal concluded in an important passage as follows:

"(i) We conclude that the alleged oral disclosure to Mr Hardman of 19 February 2001 was not a qualifying disclosure. If anything was said at that meeting, then, as the Applicant agreed in cross-examination, she did not actually use the words 'race discrimination' in any context. The factual background over the appointment of Ms Scrivener is very much in dispute, and we find that the Applicant has not proved her case that it happened in the way that she says it did. We accept Mr Hardman's evidence that the Applicant in fact had played a part in the appointment of Ms Scrivener. It appears to us that the Applicant had put this allegation in very late in the day as a make-weight, it never having been pleaded or raised before its appearance in her witness statement. Therefore, the extension of the Applicant's probation period and the docking of her pay were not caused by any protected disclosure that she made."

19. As to the second and third disclosures it is conceded by the Respondent and was all along that these were qualifying protected disclosures within the meaning of Section 43. The Tribunal decided that the suspension of the Applicant was not done as a result of any protected disclosure nor was any the effective cause. The reason for the dismissal was connected with issues relating to the Applicant's performance. The Tribunal accepted the evidence of the disciplinary panel whose decision it upheld in respect of those findings.

Employment Tribunal Directions

20. The Employment Tribunal directed itself by reference to the relevant provisions of the Employment Rights Act and to an unreported case The Brother of Charity Services Merseyside v Eleady-Cole [unreported] EAT 24 January 2002.

The Applicant's case

21. The Applicant contends in a skeleton argument supporting her grounds of appeal that her account of the meeting on 19 February is correct and that the Tribunal thus erred in its criticism of her account. She adds to that complaint the fact that this was the first of a series of three complaints all leading to her dismissal and which were therefore based upon the initial protected disclosure at least in part. She contends that the Tribunal wrongly failed to pay attention to the evidence which she gave and that this constitutes an error in the Tribunal's appreciation of the facts.

The Respondent's case

22. On behalf of the Respondent it is contended that the recording of the evidence of Mr Hardman is now supported by the Chairman's note, for which we are grateful. Secondly, as a matter of law the material in this case was not a qualifying disclosure under the statute. Thirdly, the allegation is not an allegation of failure to comply with any legal obligation. Fourthly, the Applicant did not have a reasonable belief in the truth of the allegation; and fifthly as a matter of causation the Tribunal made findings of fact which are unimpeachable.

The Applicable Principles

23. In our judgment the principles applicable to a case such as this can be derived from the following authorities. It must be asked in each case:

a. Does the allegation made by an applicant include a failure to comply with an obligation under Section 43?

b. Did the Applicant have reasonable belief in the factual basis of the allegation?

c. Did the Respondent act on the ground of that disclosure?

24. The correct approach is set out in Darnton v University of Surrey [2003] IRLR 133 EAT. Judge Serota QC said at paragraph 29:

"In our opinion, the determination of the factual accuracy of the disclosure by the tribunal will, in many cases, he an important tool in determining whether the worker held the reasonable belief that the disclosure tended to show a relevant failure. Thus if an employment tribunal finds that an employee's factual allegation of something he claims to have seen himself is false, that will be highly relevant to the question of the worker's reasonable belief. It is extremely difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if he knew or believed that the factual basis was false, unless there may somehow have been an honest mistake on his part. "

25. In London Borough of Harrow and Knight [2003] IRLR 140 EAT Mr Recorder Underhill QC, it was decided that in a claim under this section it is essential to show that the fact that the protected disclosure had been made caused or influenced the employer to act in the way complained of. See paragraph 16:

"It is thus necessary in a claim under s47B to show that the fact that the protected disclosure had been made caused or influenced the employer to act (or not act) in the way complained of: merely to show that 'but for' the disclosure the act or omission would not have occurred is not enough (see Khan). In our view, the phrase 'related to' imports a different and much looser test than that required by the statute: it merely connotes some connection (not even necessarily causative) between the act done and the disclosure."

Our conclusions

26. The first issue for us to decide is whether the Tribunal erred in its approach to its finding in paragraph (i) which we have cited above. We have been shown the evidence and the Chairman's note relating to that meeting. The Tribunal made a conclusion that the words alleged to have been used by the Applicant were not. The Tribunal made its decision upon ample grounds. It is important to note that the primary conclusion of the Tribunal was that the alleged oral disclosure was not a qualifying disclosure. In other words the Tribunal was operating on the footing for this purpose alone that the Applicant's case on the evidence had been accepted. The Tribunal did not accept her case but proceeded to deal with the other parts of the statute, answering the statutory questions against the Applicant, that is that there was not a qualifying disclosure and that it did not in any event cause the Applicant's failure to be made permanent employee and did not cause the docking of her pay. The Tribunal noted that the Applicant had not proved her case that the events have happened as she said.
27. The basis upon which the Applicant succeeded before us at the preliminary hearing was because she had shown the Tribunal her protected disclosure on 6 March in which there is the following passage:

"I challenged him about the methods he used to appoint Trudi Scrivener to her present post, her suitability for the post, 3^rd party comments about the service delivery at Walm Lane and the fact that I do not believe the post is necessary or cost effective."

28. The Tribunal found that the allegation had been made by the Applicant for the first time in her witness statement. The word 'allegation' has two meanings. The Applicant contends that it means an allegation about the appointment of Trudy Scrivener in breach of the Equal Opportunity Policy. Ms Gower contends that it means an allegation of a protected disclosure for the purposes of the statute. We prefer the second and uphold Ms Gower's submission. The Tribunal is critical of the approach of the Applicant. It nevertheless agreed to hear the Applicant's case relating to this meeting notwithstanding that it was not in her Originating Application or her further particulars, it had not been raised at a very comprehensive directions hearing and had first been raised by her Counsel in opening pursuant no doubt to the instructions he received through her witness statement.
29. Thus the Tribunal cannot be faulted, in its appreciation of the importance of this point, that it was put in as a make weight. The Tribunal had in mind that in the cataloguing by the Applicant of her various complaints and protected disclosures this did not feature until her witness statement and so the Tribunal was entitled to put such weight upon it as it felt appropriate. No criticism therefore can be made of that judgment by the Employment Tribunal.
30. The Tribunal also went on to say, although of course it was not strictly necessary for its decision having made decisions adverse to the Applicant on the facts of the meeting, the contents of the meeting and the strength of the allegation, that there was no causative link between the meeting, the docking of the pay and extension of the probation. Causation is essentially a legal judgment based upon an appreciation of the facts. No legal error has been committed by the Employment Tribunal, operating again on the footing that the Applicant did make a protective disclosure, by finding no connection. It seems to us, contrary to the Applicant's submission, that the word 'therefore' in this passage is a summary of the disposal of all of the Applicant's case in relation to 19 February. Put bluntly she failed on the facts and she failed on the law.
31. Turning then to the later disclosures, we decided to allow the Applicant's case to be heard at a full hearing on these matters if she succeeded on the first. Since her case throughout had been that there was a series of disclosures, at the very least if the decision of the Employment Tribunal were overturned in relation to the 19 February a fresh consideration by the Employment Appeal Tribunal would be required in respect of the findings about the other two disclosures.
32. Because this matter was to go to a full hearing it was not necessary to announce our decisions about the second and third disclosures. It is now appropriate for me to do so. That Appeal Tribunal decided that in the absence of the Applicant succeeding on disclosure 1 she would fail on disclosures 2 and 3. The Tribunal decided that although there were qualifying disclosures, she failed to meet the statutory tests of causation in respect of the detriment or dismissal which followed such disclosure. The findings of fact by the Tribunal as to the effective cause appeared at the preliminary hearing to be soundly based.
33. Thus the conclusion which we reached is that the Employment Tribunal was as correct in its approach to the issue of protected disclosure as it was in its approach to the Applicant's case of direct racial discrimination and victimisation and health and safety. The appeal is dismissed.