United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NIGEL LEY (of Counsel) Instructed By: Messrs McGoldricks Solicitors 79 Park Lane Croydon Surrey CR0 1JG
For the Respondent	MR MARTYN BARKLEM (of Counsel) Instructed By: Messrs Russell-Cooke Potter & Chapman Solicitors 2 Putney Hill Putney London SW15 6AB


 


HIS HONOUR JUDGE McMULLEN:

1. This case is about unfair dismissal on the ground of making a protected disclosure in the public interest and is also about Employment Tribunal procedure in dealing with an application for an adjournment. The judgment represents the views of all three members. We will refer to the parties as "applicant" and "respondent".

Introduction

2. It is an appeal by the applicant in those proceedings against two decisions of an Employment Tribunal sitting at London Central, Chairman, Mr G Solomons, registered with extended reasons on 30 November 2001. The applicant was previously represented by solicitors, who declined to support him at the hearing because of the view they took about the merits. The respondent was represented there, and here, by Mr Martyn Barklem, of Counsel. The applicant claimed unfair dismissal for having made a protected disclosure. The respondent conceded a protected disclosure had been made and that it dismissed the applicant but it contended there was no connection.

The Issues

3. The essential issue as defined by the Employment Tribunal was one of fact for it to determine the reason for the dismissal, and whether it was connected to his making protected disclosures. It also had to determine whether it was fair to continue proceedings or to adjourn for a short period.

The Legislation

4. The relevant provisions of the legislation are Sections 98(1) and 98(2), section 43(A), 43(B), 43(C)(a), 47(B), 48(1) and 48(2) of the Employment Rights Act 1996 as follows:-

"98 General

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it -

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

(b) relates to the conduct of the employee,

(c) is that the employee was redundant, or

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment."

43A Meaning of "protected disclosure"

In this Act a "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 -

(a) that a criminal offence has been committed, is being committed or is likely to be committed.

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

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

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

(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

(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).

43C Disclosure to employer or other responsible person

(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith -

(a) to his employer.

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).

(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.

48 Complaints to employment tribunals

(1) An employee may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 44, 45 46, 47, 47A or 47C.

(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."

As to Tribunal procedure, the relevant provisions are, Regulation 10, Rule 11(1) and 15(1) as follows:-

"10 Overriding objective

(1) The overriding objective of the rules in Schedules 1,2,3,4,5 and 6 is to enable tribunals to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable-

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate to the complexity of the issues; and

(d) ensuring that it is dealt with expeditiously and fairly.

(3) A tribunal shall seek to give effect to the overriding objective when it -

(a) exercises any power given to it by the rules in Schedules 1,2,3,4,5 and 6; or

(b) interprets any rule in Schedules 1,2,3,4,5 and 6.

(4) The parties shall assist the tribunal to further the overriding objective."

Rule 11 of Schedule 1

"11 Procedure at hearing

(1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."

Rule 15 of Schedule 1

"15 Miscellaneous powers

(1) Subject to the provisions of these rules, a tribunal may regulate its own procedure."

The Tribunal Decision

5. The Employment Tribunal, at the applicant's request, agreed to adjourn. It agreed to adjourn, however, for two days and then found that the respondent dismissed the applicant for reasons connected to his unwillingness, or inability, to produce management accounts for which function he was specifically employed.
6. The applicant appeals against the finding on the substantive issue and the refusal to adjourn for longer than two days.
7. Directions sending this appeal to a full hearing were given at a preliminary hearing by Judge Pugsley, on 22 November 2002. Previously, the Registrar had struck out allegations of bias and improper conduct made by the applicant against the Employment Tribunal.

The Parties

8. The respondent is engaged in productions for television. We learn little from the Tribunal reasons but Mr Barklem has told us that it is a substantial company involving stars such as Rory Bremner, a well-known TV personality. The applicant was employed by the respondent, as the Tribunal found, as a company accountant. In doing so, it resolved a dispute: the applicant contended he was Financial Controller and the respondent relied upon the contract. He was engaged from 10 April 2000 until the relationship ended by his dismissal on 17 April 2002, on the expiry of proper notice.

Employment Tribunal Findings

The postponement.

9. The Employment Tribunal found that the proceedings could commence two days later than had originally been scheduled. The applicant was insured. His insurers declined to continue to represent him through solicitors after 6 November 2001. The applicant then went to other solicitors who, again, considered documents and declined to represent him. Whether or not that was pursuant to the release of documents by the earlier solicitors or to the applicant bringing them does not matter. At the date on which those solicitors represented the applicant and gave him advice, they were in possession of documents relevant to this hearing, although, the paginated bundle did not arrive in the applicant's hands until 9pm the night before the trial. Nevertheless, the impact of the documents in that form would not have been significant since the Tribunal noted that the documents were already in the applicant's possession, albeit, not in a paginated bundle.
10. Upon the applicant's application for an adjournment, it appears that the Tribunal accepted his case that he had received the bundle the previous night, and witness statements that morning. There had been no direction for exchange and he had had insufficient time to prepare. The question for the Tribunal was: for how long should an adjournment be granted? The Tribunal was able to use that day and the next day to read and sat again on the third and fourth days. In other words, the case which was due to begin on Tuesday 13 began on Thursday 15 November and concluded on 16 November. Thus, the Tribunal accepted the applicant's reasons for an adjournment, although it was led to believe that it was because he had dismissed his solicitors, rather, than in truth, that his insurers had declined to support him. The sole issue then is, whether in the exercise of its case management and its discretion to ensure the fairness of the hearing, it committed an error of law in deciding to adjourn for two days and not on some open-ended basis.

Protected disclosure

11. As to the substantive matter, the Tribunal decided that the issue was whether or not it was established that the reason, or if more than one, the principal reason for the applicant's dismissal was that he had made a protected disclosure. The circumstances described by the Tribunal were that the applicant had made three qualifying disclosures as conceded by the respondent for the purposes of the Employment Rights Act cited above. The Tribunal decided that there was a factual dispute between the parties and heard evidence. It made a general conclusion that it preferred the evidence of the respondent's witnesses on the single factual issue to that of the applicant. The issue was whether the applicant's failure to provide management accounts in the format that the managing director required them was a continuing sore during the summer months of 2000, which created difficulties for Ms Morris, the relevant director, and led to her complaining to the applicant on more than one occasion about that, and, eventually, to his dismissal.
12. The Tribunal found that the impression given by another of the respondent's witnesses was truthful and honest. It formed a poor impression of the applicant which corresponded to the view taken by the respondent. The Tribunal found that it was in the mind of the respondent that the applicant was not performing pursuant to the expectations which it had. It was finally decided by Ms Morris that the applicant would be dismissed on 9 November 2001. The Tribunal then said this:-

"16 We are satisfied that, in reaching that decision, Ms Morris did not take into account the disclosures which had been made by that stage by the Applicant in his memoranda of 28 September and 3 October and that what concerned Ms Morris was the fact that the Applicant appeared unable or unwilling to produce the accounts ... .

17 ... We are entirely satisfied that the disclosures which the applicant had made ... played no part in that decision."

13. The applicant was dismissed on 17 January and the reason for his being held on beyond the original decision date was fully accepted by the Employment Tribunal. The Tribunal noted that legal advice had been taken from the respondent's solicitors about the position faced by the respondent in the light of the applicant's performance. These materials were disclosed by the respondent. What the documentation showed very clearly was that there was no discussion at all by the respondent and its solicitor about the documents which constituted the protected disclosures. Thus, the Tribunal came to this conclusion:-

"Any competent employment lawyer giving advice as to unfair dismissal rights would of course be aware of the fact that, even without 12 months' qualifying service, an employee could complain of unfair dismissal in the event of dismissal on the ground of making a protected disclosure."

The respondent did not seek advice and the solicitors did not give it. Thus the Tribunal assisted its decision by reference to that confidential material released by the respondent.

14. In those circumstances the Tribunal decided, not on a balance of probability, but by being entirely satisfied that the reason for the dismissal was not connected to the making of protected disclosures.

Directions

15. The Employment Tribunal directed itself by reference to the relevant provisions of the Employment Rights Act 1996 and the Employment Tribunals Rules of Procedure which we have set out above.

The Appellant's Case

16. The applicant submitted that the Employment Tribunal had erred in law. The applicant ought to have been given time beyond that which was given to him in the light of the documentation.
17. It is contended that the Tribunal misdirected itself on the burden of proof in that it indicated that the applicant had to prove that he had made a protected disclosure otherwise his case would fail. Analogy was drawn to those provisions in section 47(B) which deal with detriment.
18. It is contended that the Tribunal erred without taking account of the veracity and accuracy of the disclosures the applicant made. Because of that, the Tribunal made decisions about the case, which were born of a misconception about the contents of the three protected disclosures.
19. It is also contended, very much as a factor related to the last ground above, that the Tribunal, by way of example, misunderstood the evidence about the respondent's turnover.

The Respondent's Case

20. On behalf of the respondent it is contended that the postponement is a matter of case management. We have decided this matter already and need say nothing more about it. As to the burden of proof, Mr Barklem, relies upon a citation from Harvey and upon Maund v Penwith District Council [1984] IRLR 24 to which we will return. As to the veracity and accuracy of the document, it is contended that this was irrelevant since the respondent had conceded that the act of disclosing the documents was both the qualifying and the protected disclosure. As to the fourth ground, it is contended that it would be odd that a company which, on this footing, was to mislead others as to its accounts, would indicate turnover of £5m a year and yet tell the Inland Revenue that its turnover was £1.5 million (see, for example, the figures for the previous year).

The Legal Principles

21. The Employment Tribunal must control its own procedure. Case management is a matter entirely for it.
22. As to the burden of proof, an extract from Harvey on Industrial Relations provides as follows:-

"The only exception to this as the Maund case recognised, is where the employee does not have sufficient qualifying period to claim unfair dismissal. In such a case the employee has to establish that the tribunal has jurisdiction to hear the claim. This can be done only if the employee can show that the reason for dismissal is one of those automatically unfair reasons where no qualifying period is required. Accordingly, where the reason had to be established to confer jurisdiction on the tribunal, the onus is on the employee."

The reference to Maund v Penwith is an allusion to the judgment of Lord Justice Griffiths who says this (See [1984] IRLR 24) the following:-

"If the employer produces evidence to the Tribunal that appears to show the reason for the dismissal, is redundancy, as they undoubtedly did in this case, then the burden passes to the employee to show that there is a real issue as to whether that was the true reason."

The employee cannot do this by merely asserting in argument that it was not the true reason. An evidential burden rests upon him to produce some evidence that casts doubt on the employee's reason. Lord Justice Purchas said this:-

"Parliament was not extending an open invitation to an employee who was angry at being dismissed to raise frivolous, imaginary or unsubstantiated allegations against his employer. ... With respect, I agree with Lord Justice Griffiths in criticising the description of the effect of an apparently properly arrived at resolution by a responsible body as being of little weight. In my judgment the onus that rests upon the employee is to show that there is an issue which warrants investigation existing, against which an alternative reason, or competing reason, may be established. I emphasise that the onus resting upon the employee is not to prove, on a balance of probabilities, that his contending reason is the principal reason, but he must prove, on the balance of probabilities, that the issue exists."

23. That then is the normal case to which the exception cited by the authors of Harvey applies. We are dealing with the latter.
24. As to the veracity and the accuracy of the documents, it is a principle in cases under the PIDA amendments that the material falls within the definition of a qualifying disclosure.

Conclusions

25. It is not for us to decide how long an adjournment should have been but only whether the Employment Tribunal was so wrong in principle in the decision which it took. We see no error. The documents were already in possession of the applicant. He had been given an enumerated bundle which he could work on during the two days between the opening of the case and its adjournment; the documents were not unfamiliar to him. He is an accountant. Many of the documents are accountancy based. We see no error in the Tribunal's decision in the exercise of its case management to postpone the case for only two days, further, it must be noted that the Tribunal owes a duty to other Tribunal users. To have postponed for a longer period would have caused further difficulties no doubt to other Tribunal users. This ground of appeal is dismissed.
26. As to the burden of proof, it is easy to illustrate the distinction in this way. An employee who has more than 12 months' service is entitled to call upon the employer to set out a reason. If the employer fails, it does not get past section 98(1) and 98(2) and, in an ordinary sense, the dismissal is automatically unfair because no consideration is given to fairness or unfairness. The employee succeeds. In a case where the employee is said to have less than 12 months' service and is claiming, let us say, unfair dismissal on the grounds of unfair selection for redundancy, a jurisdictional point will arise. It will often be taken as a preliminary issue providing the gateway, if found in favour of the applicant, to the hearing on the substance. The employee must start and must prove the Tribunal has jurisdiction to hear his or her case, otherwise it will be dismissed. In a case where it is admitted the employee has less than 12 month's service but such service is not a requirement for full liability as in a protected disclosure case, different considerations apply. There is unlikely to be a preliminary hearing as to jurisdiction, thus the Tribunal will descend upon the substance. The issue for the Tribunal is not to decide whether the employer's reason falls within section 98(1) or 98(2). The employer is, it seems to us, under no duty to slot its reasoning into any of those categories. That is because all that has to happen is that it has to avoid a finding that the reason for the dismissal is a protected disclosure. To use the language of Lord Justice Griffiths:-

"There is not always going to be a competing reason, although common sense dictates that there will be."

In this case there was. It was the competence of the applicant or his ability to perform the work to the satisfaction of the respondent. That no doubt will shed light on the respondent's action. It sets up for the respondent an alternative (fair) reason to the alleged reason of protected disclosure.

27. Thus, in a very real sense, the baton is in the hand of the applicant. He or she must come to the Tribunal and establish a protected disclosure and causation, that is, that there is a connection between the protected disclosure and dismissal. It is not unreal to say that the burden of showing evidence is upon the employee. As the editors of Harvey put it:-

"The burden remains on the employer even where the employee alleges that the dismissal was for a reason that is automatically unfair. The burden is not on the employee to prove such a reason."

28. Now, burden of proof is a difficult concept in unfair dismissal. It seems to us that what is required is at least an evidentiary burden on the applicant to adduce material upon which the Tribunal could form a view that a protected disclosure was the reason for the dismissal. However, those legal arguments appear to become smaller when the facts of this case are examined. The Tribunal was not in any doubt about the scale of the evidence adduced on both sides. This was not a case where the burden of proof proved to be decisive. As we have recited, the Tribunal decided on the basis on the evidence, as to which it was in no doubt, that there was no connection between the protected disclosure and the dismissal. Thus, even if we are wrong about the approach to be taken in a protected disclosure, or automatic unfair dismissal case, it makes no difference since the findings in this case are all one way.
29. We then turn to the argument about accuracy and veracity. With respect to Mr Nigel Ley, who has put before us all arguments which could possibly be made on behalf of his client, we do not see this point as going anywhere. This is because we accept the argument that, once it is conceded that there is a protected disclosure and a qualifying disclosure, the content is unimportant. As it happened, there were disputes about the accuracy and veracity but the Tribunal discharged its duty, after the concession by the respondent, in making the decision on the relevant issues. The accuracy and the veracity of the content of the disclosure was not one of them. We therefore reject Mr Ley's argument, coupled with his argument on the fourth ground which, as he put it, was very much part of that. The Tribunal cannot be criticised for indicating its difficulty in accepting the proposition about the difference between the turnover in each of the years. It has even before us proved to be an elusive matter, but, as we have said, it appears not to be relevant. The appeal is dismissed.