United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A GEORGE (of Counsel)
For the Respondents	The Respondents are debarred from these proceedings


 


MR RECORDER LUBA QC

1. This is an appeal by Mr Wilson Odong against a Decision of the London Central Employment Tribunal, sitting on 12 March 2002. The Employment Tribunal considered itself seized of three complaints from Mr Odong. These it identified at paragraph 1 of its Extended Reasons as follows:

"(a) unauthorised deductions from pay ….;

(b) an allegation that the Applicant had been subjected to a detriment for a health and safety reason contrary to section 44 of the Employment Rights Act 1996; and

(c) an allegation that the Applicant had been subjected to a detriment for making a protected disclosure contrary to sections 43A, 43B and 47B of the 1996 Act."

2. By an amended Notice of Appeal dated 13 November 2002, for which permission to amend was given by this Employment Appeal Tribunal on 4 November 2002, Mr Odong pursues an appeal in respect of the third only of those matters. He contends that the Tribunal erred in law in dismissing his complaint that he had been subjected to a detriment by his employers for making "a protected disclosure".

The facts

3. From 20 September 2000, Mr Odong was employed by Chubb Security Personnel Ltd, (who we will call "Chubb") as a security officer. The particulars of the terms and conditions of his employment were given in a document signed by both parties on 19 September 2000. By those terms, the company reserved the right to require Mr Odong to work on any site within reasonable travelling distance of his home, and reserved the right to relocate him to different sites.
4. In June 2001 his place of work was at the American Express bank building at 60 Buckingham Palace Road, London SW1. His duties there as security officer required him, among other things, to note in a Daily Occurrence Record such instances or occurrences as might arise during his period on duty. The Daily Occurrence Record shows that on 21 June 2001, another security officer, a Dayguard Security Officer, Mr P Bailey, completed his shift as Mr Odong came on duty.
5. The Tribunal's findings of fact as to what occurred between Mr Bailey and Mr Odong on 21 June 2001 are recorded at paragraph 11 of their Extended Reasons in these terms:

"On 21 June Mr Bailey had been contacted by American Express's maintenance engineers and directed to ensure that temperatures in three rooms were checked…….

The maintenance engineers were concerned that there was a danger of overheating which might lead to a fire. Detailed plans had been provided by the maintenance engineers together with instructions. Mr Bailey instructed the Applicant to carry out the checks. The Applicant refused but only because Mr Bailey would not write the direction in the Daily Occurrence Book. The Applicant doubted Mr Bailey had authority. Mr Bailey did not write the instruction in the Daily Occurrence Book because he had the detailed written [instruction] from the maintenance engineers. Those would be sufficient for the Respondent's purposes. Mr Bailey confirmed that the Applicant had the necessary authority to enter the rooms which were marked 'No Entry' but the Applicant did not accept this."

Although Mr Odong did not conduct the required temperature checks in the rooms on 21 June 2001, the Daily Occurrence Record for the next day, 22 June 2001, shows that he then did so.

6. Immediately prior to his own first record of that temperature check, the Daily Occurrence Record for 22 June 2001 contains these words next to an entry for 20.35 hours:

"Mr Andy Ginger has given Security Officer Wilson Odong permission to take reading and Security Officer Wilson is covered for injury and any accidents occurred down in the basement and other floors which need reading."

That passage is explained in Mr Odong's complaint to the Employment Tribunal. What he said was that he was not prepared to comply with the instruction to take temperature tests in the relevant rooms until a manager had confirmed that instruction in writing. The entry in the Daily Occurrence Record provided in writing that confirmation of a manager's instruction.

7. However, by 22 June 2002, American Express had been informed of Mr Odong's refusal to carry out the temperature check on the previous day, and it had required Chubb to replace him as Security Officer. Accordingly, on 23 June Chubb told Mr Odong not to report to the American Express site. Between 22 June 2001 and the date of his complaint to the Employment Tribunal Mr Odong did no further work for Chubb and, because pay was only due for hours actually worked, he received no pay.

The material complaint

8. Mr Odong's amended complaint to the Employment Tribunal set out his assertion that the instructions he had been given both by Mr Bailey on 21 June and by the manager on 22 June, were in his view "unlawful". His concerns appeared to be as to his health and safety in relation to compliance with the instructions. In summary, therefore, his contention was that he had effectively lost his posting at American Express because he had said on 21 June that he would not carry out what he considered to be an unlawful or unauthorised instruction.
9. The Employment Tribunal deal with this aspect of the matter first at paragraph 5 of their Extended Reasons. There they say as follows:

"Part of the Applicant's case relied on an allegation that the Applicant objected to carrying out instructions given to him on 21 June because he genuinely believed those instructions gave rise to a health and safety risk in the absence of any protective clothing. However, the Tribunal noted that the Applicant had carried out the instruction when repeated by a manager on the following night and there was no evidence before the Tribunal that the Applicant had obtained safety clothing to carry out the duties requested. Additionally, the Applicant explained during the course of his evidence that what had happened to him had been because the Respondent had wanted to remove him from the American Express site to which he had been posted, a matter about which he had been informed by a colleague on 18 June. In those circumstances, the Tribunal was satisfied that the Applicant's refusal to carry out the instructions on 21 June had to do with his concern that the Respondent was looking for a reason to remove him from the American Express site and had nothing to do with health and safety or any matter prone to a public interest disclosure."

10. Then at paragraph 18 of their Extended Reasons the Tribunal's conclusions are expressed in these terms:

"The Tribunal concluded that the action of removing the Applicant from the American Express site was because he had refused to carry out a reasonable instruction and his removal was requested by the client, American Express Bank. This had nothing whatsoever to do with an issue relating to health and safety or a public interest disclosure and the Applicant produced no satisfactory evidence to the Tribunal which could support a claim that he had been subjected to a detriment for either of those two reasons. Accordingly those complaints, under sections 44, 43A, 43B and 47B of the 1996 Act fail."

In those circumstances they dismissed this particular aspect of the complaint along with the others.

11. Mr Odong contends before us that the Tribunal erred in law because what he had said to Mr Bailey on 21 June 2001 amounted to a protected disclosure. In consequence of the saying of it, he, Mr Odong, had been subject to a detriment, that is the withdrawal of his posting to the American Express Office and the failure of the employers thereafter to provide a further posting. Before we consider those submissions in further detail, it is right to consider the statutory provisions.

The Law

12. The law related to protected disclosures is to be found in section 43A of the Employment Rights Act 1996 into which it was inserted by the Public Interest Disclosure Act 1998. Section 43A provides a definition of protected disclosure. It provides as follows:

"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."

One goes immediately, therefore, to the definition of "qualifying disclosure" in section 43B. That provides, in subsection (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 number of matters are then listed, including relevantly for the purposes of this appeal, the following in subparagraph (b):

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

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

The provision in section 43C refers to disclosure to an employer. It provides as follows:

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

(a) to his employer …."

13. The right given to a worker who makes a protected disclosure is a right not to be subjected to "any detriment". That is provided by section 47B in the following terms:

"(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."

Based on those statutory provisions, Mr George, appearing today for the Appellant, Mr Odong, has suggested that the proper course for an Employment Tribunal in a protected disclosure case is to follow a particular sequence of analysis. The sequence of analysis proposed by Mr George is that the Tribunal should ask itself three questions. First, did the Applicant make a protected disclosure as defined? Second, was the Applicant subjected to a detriment by reason of an act or deliberate failure to act of his employer? Third, if so, was that act or deliberate failure to act done on the ground that the worker had made a protected disclosure?

14. We accept that formulation from Mr George as broadly representing the correct approach. He draws our attention to a recent decision of this Appeal Tribunal, given on 18 November 2002 and reported at [2003] IRLR 140 in the case of London Borough of Harrow -v- Knight. In that case, Mr Recorder Underhill QC and the members, set out a formulation in paragraph 5 as to the correct approach to be taken by the Employment Tribunal. It differs in no material respect from the formulation Mr George has urged upon us today.

Applying the Law

15. The starting point, as Mr George recognises, is to see whether there has been something qualifying as a protected disclosure, and, more particularly, given that we are at an appellate level, to see whether the Tribunal addressed themselves correctly to that question. It is right to record at this point that the original Notice of Appeal lodged by Mr Odong took a great number of disparate points. By order of this Employment Appeal Tribunal those points were collapsed into a single issue, and that single issue turns on that first point, that is whether the Tribunal correctly dealt with the question of whether there had been a protected disclosure.
16. Mr George's attractive submissions are that on the facts that the Tribunal had itself found, there was a protected disclosure. Although the case below may have been advanced to the Employment Tribunal on the basis that this was a disclosure falling within section 43B(1)(d), that is the "health and safety" limb, Mr George nevertheless contends that what the Tribunal found was material apt to satisfy also, or alternatively, the provisions of 43B(1)(b). That is a disclosure that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.
17. This shift of emphasis from the "health and safety" limb to the "legal obligation" limb is at first blush surprising, given the wording of the Appellant's own original complaint to the Tribunal and the Tribunal's handling of it. Both would suggest or imply that the Appellant and the Tribunal below were focusing on the health and safety limb. However, we accept Mr George's submission that the Tribunal had section 43B as a whole before it, and therefore if its findings of fact satisfy any one of those limbs, then there has, on the face of it, been a protected disclosure.

Was there something capable of amounting to "protected disclosure" in this case?

18. We return briefly to a summary of the factual circumstances on 21 June 2001. On that date, Mr Odong was being asked by a fellow security officer, indeed instructed via a fellow security officer, to enter rooms in the American Express Bank building which had been designated by American Express as 'No Entry' rooms. Mr Odong doubted that Mr Bailey had the authority to instruct him to enter those rooms. The Tribunal, in the extract we have already quoted, expressly find that Mr Odong doubted Mr Bailey's authority to give that instruction. The facts found by the Tribunal indicate plainly that Mr Odong invited Mr Bailey to put the instruction in writing; that is explained by reference to the original complaint made by Mr Odong to the Tribunal in which he indicates that the sequence of events was as follows. After instructed by Mr Bailey to enter the relevant rooms, he, Mr Odong, contacted the American Express Bank control centre in Brighton by telephone. The controller in Brighton:

"requested me to inform Mr Philip Bailey to write down in the site Daily Occurrence Book, but he refused. Therefore I refused to carry out the instructions that he had requested me as I considered it to be unlawful."

It is in those circumstances that the Tribunal make the finding of fact that the Applicant doubted Mr Bailey had the authority to give the instruction that had been given.

19. It is right to record again that the Tribunal had itself indicated earlier, at paragraph 5 in its Extended Reasons, that this was in the context of Mr Odong having, in the days immediately preceding 21 June, been informed by a colleague that Chubb wished to move him from the American Express site. In those circumstances, submits Mr George, it was incumbent upon the Employment Tribunal to hold that Mr Odong had made, on 21 June, a qualifying disclosure to his employer, or to his employer's representative, Mr Bailey. That qualifying disclosure being the very matter found by the Tribunal, i.e. the statement that he would not comply with the instruction given by Mr Bailey on the basis that Mr Bailey did not have the legal authority to give the instruction.
20. In support of his submission, Mr George draws attention to the fact that there are several potential legal obligations which may have been infringed by Mr Bailey. First, Mr Bailey may have been in breach of his own contract of employment with Chubb, if he was giving a fellow employee an unauthorised or illegitimate instruction. Second, insofar as Mr Bailey was acting as Chubb's representative in giving the instruction, the giving of an unauthorised instruction or an instruction beyond the terms of Mr Odong's contract of employment was a breach of that contract of employment. Thirdly, the instruction may have been in breach of legal obligations imposed by American Express Bank, as represented by the fact that they had described the rooms as 'No Entry' rooms. It is not necessary for Mr Odong to establish that, in fact, there was a failure to comply with any legal obligation in giving Mr Odong the instruction he was given. For the purposes of section 43B, it is sufficient if it was the reasonable belief of Mr Odong that the instruction was given in breach of legal obligations.
21. Mr George asserts, and he is able to do on the basis of the recent authority of this Tribunal in Parkins -v- Sodexho Ltd [2002] IRLR 109 that a breach of a term of a contract of employment is a sufficient breach, or a potentially sufficient breach, to come within section 43B(1)(b). In those circumstances, it is Mr George's submission that the Tribunal, having found the facts that it did find, must have been satisfied that the conditions of section 43B(1)(b) were made out and insofar as they thereafter rejected the proposition that that section was satisfied, they erred in law in doing so. As to the "reasonable belief" component of the section 43B test, Mr George draws attention, again, to the finding by the Tribunal that Mr Odong believed that the employer's representative (Mr Bailey) had no authority to give the instruction. Although the Tribunal do not expressly find that this was a reasonable belief, nor do they find that it was an unreasonable belief. In those circumstances it seems to us that there was material found by the Tribunal capable of amounting to a protected disclosure for the purposes of 43A and 43B of the 1996 Act.
22. Although the submissions of Mr George, for Mr Odong, then turn to other aspects of the statutory test and draw attention to the Tribunal's failure to address them, he rightly accepts that the Tribunal did not deal with those other matters precisely because it robustly rejected the contention that Mr Odong had got to first base (by establishing a protected disclosure at all). For the reasons we have given, it seems to us that Mr Odong has established that the Tribunal erred in law in failing to direct itself that, on its own findings of fact, there was material capable of amounting to a protected disclosure.
23. In those circumstances, it seems to us that this appeal must be allowed and the matter remitted to a differently constituted Employment Tribunal. Nothing in this judgment should be taken to indicate to that Tribunal whether they shall reach the same conclusions on the facts as the predecessor Employment Tribunal. The question of whether there was a protected disclosure, for the purposes of section 43A, 43B, 43C and section 47 will all be at large before the new Tribunal.
24. We emphasise that the only complaint remitted to the Tribunal is the complaint in relation to protected disclosure. Mr Odong pursues no appeal in relation to the Tribunal's dismissal of his other complaints, and we do not remit those other complaints for further consideration. This appeal is allowed.