United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondent	MS MELANIE TETHER (of Counsel) Instructed by: Messrs Beachcroft Wansbroughs Solicitors 7 Park Square East Leeds LS1 2LW


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Mr Phipps, the Applicant before an Employment Tribunal sitting at Leeds under the Chairmanship of Mr P Hildebrand against parts of that Tribunal's Decision, promulgated with Extended Reasons on 3 April 2002, which upheld his complaint of unfair dismissal brought against his former employer, the Respondent, Bradford Hospitals NHS Trust. We shall use that description of the parties in this judgment.
2. The Tribunal hearing took place over twelve days. Both parties were represented by Counsel, the Applicant by Mr Freddie Reynold QC, the Respondent by Ms Melanie Tether. On the final day of hearing both Counsel submitted written closing arguments which are before us, supplemented by oral submissions. The Tribunal then deliberated in private for three days before promulgating their unanimous Decision with very full Reasons running to thirty seven pages. In these circumstances we shall not set out the full history of this matter.
3. In summary, the Applicant was employed by the Respondent as a Consultant Surgeon from 14 September 1998 until his summary dismissal on 21 September 2000. An internal appeal against the decision to dismiss was itself rejected by a different appeal panel by letter dated 8 June 2001. The Applicant presented his Originating Application to the Tribunal on 7 December 2000, complaining of unfair dismissal, breach of contract and "Protected Disclosure sect 47B ERA 1996", that is a complaint of automatically unfair dismissal under section 103A ERA.
4. At the hearing before the Tribunal the following issues arose for determination:

(1) The Respondent's reason for dismissal.

The Applicant having raised an automatically unfair reason for dismissal, that is a protected disclosure, the burden of establishing a potentially fair reason for dismissal and thus negativing that impermissible reason, lay on the Respondent. Maund -v- Penwith [1984] IRLR 24. Thus the questions for the Tribunal were:

(a) had the Applicant made a protected disclosure (or disclosures) to the Respondent within the meaning of section 43A - H ERA ?

(b) If so, was the reason or principal reason for dismissal an inadmissible reason under section 103A, as the Applicant contended or one relating to his conduct (ERA section 98(2)(b) as the Respondent claimed? If the former, then the dismissal was unfair without more.

(c) If the Respondent succeeded in establishing a potentially fair reason, conduct, then the question of reasonableness under section 98(4) ERA was engaged. Did the Respondent act reasonably in treating the conduct found as a sufficient reason for dismissal? If so, the claim failed. If not the dismissal was unfair.

(2) If the dismissal was unfair then:

(i) in assessing the compensatory award under section 123(1) ERA was a "Polkey" deduction appropriate, that is to say, in the case of procedural unfairness as opposed to substantive unfairness, would the result have been the same or different had a fair procedure been followed, and if different, what was the percentage chance that the Applicant would have retained his employment? and

(ii) Had the Applicant contributed to the dismissal by his own culpable blameworthy conduct such that it was just and equitable to reduce the compensatory award (section 123(6) ) and/or the basic award (section 122(2) ) accordingly?

5. The Tribunal answered those questions in the following way:

(1) the Applicant had not made any protected disclosure within the meaning of the Act. A number of communications to the Respondent were relied upon by the Applicant as falling within section 43C ERA. Only one is material for the purpose of this appeal; that is a letter which he wrote to Dr Smith, the Respondent's Medical Director, dated 5 May 2000.

The 5 May letter

6. We begin with the material statutory provisions:

Section 43B provides:

"(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 -….

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

And by section 43C:

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

(a) to his employer, "

7. In this appeal we are concerned only with the requirement of good faith on the part of the Applicant. The 5 May letter reads:

"Dear Dr Smith

I am writing to you following advice from the Medical Defence Union.

I have concerned that there is a cohort of patients who have undergone conservative surgery for breast cancer and have not received adjuvant radiotherapy. Three patients have been discussed at recent Multidisciplinary Meetings who have undergone wedge excision and have not received radiotherapy. Two patients now have recurrent disease. The remaining patient had a Grade III cancer with positive surgical margins and is currently being followed up.

I have raised this issue with Dr Bradley, the Lead Clinician, on an informal basis. He informed me that it has not been routine practice at Bradford to administer post-operative radiotherapy to those patients who have undergone conservative surgery for breast cancer.

There is consequently a group of patients who are at an increased risk of local recurrence because they have not received appropriate treatment for their condition. The concern for the Trust must be the potential litigation from a group of patients who have not had appropriate treatment and were not made aware of an increased risk of local recurrence if radiotherapy was not given. Equally, the need for careful post-operative follow-up with surveillance mammography.

Following advice from the MDU I have discussed this matter with senior colleagues who share my concern. Furthermore, I have taken the opportunity of reviewing NYCRIS data with regard to breast cancer referral for radiotherapy. The data available reinforces my impression that referral rates for radiotherapy from Bradford has been lower than other regions.

General Medical Council guidelines unequivocally indicated that I must bring such concerns to the attention of an appropriate person.

I have no option in this matter and as in accordance with my professional responsibilities I make you aware of this."

8. The Tribunal's findings of fact in relation to the letter are set out at paragraph 7(v) of their Reasons and their conclusions are set out at paragraphs 14 - 19. Distilling those findings, the Tribunal concluded that the letter was not written in good faith because:

(i) the issue raised in the letter, that is the low level of referral for adjuvant radiotherapy had already been the subject of a report and discussion within the Respondent in the context of which steps had been taken to raise the numbers of those receiving radiotherapy.

(ii) That since the Applicant's concern related to a cohort in the past, the issue was the follow-up measures being utilised in relation to those patients. As to that, the Applicant had acknowledged in cross-examination that he did not apply the Respondent's established procedures and had no knowledge of them, preferring to follow procedures of his own.

(iii) The background to and timing of the letter of 5 May, including the fact that it was immediately preceded by a meeting between Dr Smith and the Applicant following a general surgeons' meeting on 27 April 2000 and the investigation into inter-personal relationships within General Surgery. The level of suspicion on the part of the Applicant is perhaps exemplified by one of a series of questions which he posed to Dr Smith, recorded by the Tribunal at paragraph 17 of their Reasons: "was the Chief Executive trying to shaft him".

(iv) The absence of information in the letter which would have allowed the Respondent to investigate either the extent of the cohort mentioned or the three individual patients concerned. In that context the Tribunal noted (Reasons paragraph 14) that the Applicant had not explained why he had not provided disclosure of the patients' names to the Respondent, despite a request therefor by Dr Smith in a letter to the Applicant dated 6 June 2000, so that investigations could be undertaken, in circumstances where he had named one of the three patients in a letter which he wrote to the Medical Defence Union (MDU), of which he was a member, on 21 June 2000.

(v) The Tribunal considered the Applicant's assertion in the 5 May letter that he had received advice from the MDU. They record, at paragraph 15 of their Reasons, an exchange of correspondence between the Applicant and MDU, beginning with his letter of 6 April 2000 and the MDU reply dated 13 April, which concluded:

"I will be happy to review your draft letter."

The Tribunal continued, at paragraph 16 of their Reasons:

"We were not told that the draft letter had been reviewed by the MDU …"

On these various findings the Tribunal concluded (Reasons paragraph 18) that the Applicant in his letter of 5 May was establishing a position and making clear to the Respondent that his position was not to be lightly challenged. The disclosure was not made in good faith.

(2) The Respondent's reason for dismissal related to the Applicant's conduct, in particular three of the original disciplinary charges laid against the Applicant in a document entitled "Statement of Case" and dated 31 August 2000, found by the disciplinary panel and subsequent appeal panel to be made out. They were:

(i) the Applicant's failure to keep the Respondent informed of Court proceedings which started in New Zealand and culminated in the Privy Council.

(ii) A misrepresentation in his curriculum vitae (CV) which he submitted in applying for the post with the Respondent as to his Consultant status in New Zealand.

(iii) The validity of his accreditation of higher surgical training, based in part on his assertion that he held the substantive post of Senior Registrar at the Royal Marsden Hospital for two years when he held a locum post at that hospital.

(3) The dismissal for that reason was procedurally unfair on two grounds, set out at paragraph 27 of the Reasons. First the members of the disciplinary panel, Mr Stones and Mr Earp had met with Mr Jackson, Chief Executive and Mr Evans, the Respondent's Legal Adviser, in advance of the disciplinary hearing and had been "coached" (Reasons paragraph 7 (ddd) and 27; secondly, a document purporting to set out the disciplinary panel's criteria for deciding the case appeared to the Tribunal to have been created retrospectively (Reasons, paragraph 7(lll) and 27). The subsequent appeal had not cured those procedural failings (Reasons paragraph 30).

(4) (i) Polkey deduction

The Tribunal concluded that had a fair procedure been followed it was one hundred per cent certain that the Respondent would have fairly dismissed the Applicant.

(ii) Contribution

The Tribunal also found that the Applicant had contributed to his dismissal, both for the purposes of the compensatory and basic award, to the extent of ninety per cent.

Although the question of final remedy was formally adjourned, on the Tribunal's findings the Applicant was entitled only to ten per cent of his basic award, based on two years' continuous service.

9. In this appeal, four issues arise for consideration.

(1) Protected disclosure

Mr Phipps submits, without challenge by Ms Tether, that in recording at paragraph 16 of their Reasons: "We were not told that the draft letter (later the 5 May letter) had been reviewed by the MDU ….." the Tribunal made a factual error.

10. Reference may or may not have been made to the final advice received by the Applicant from the MDU in oral evidence; we do not have the Chairman's Notes of Evidence. It is not referred to in the written closing submissions of either Mr Reynold or Ms Tether. However, it is clear:

(a) that at paragraph 31 of the Applicant's witness statement, which stood as his evidence-in-chief, the Applicant referred to a letter from the MDU dated 3 April 2000, approving the draft prepared by the Applicant, subject to one amendment, and

(b) that that letter was included in the trial bundle (extending, we understand to more than two thousand documents).

The MDU letter reads:

"Dear Mr Phipps

Thank you for your correspondence received in our office on 28 April 2000. I am happy to approve your draft letter to the CEO in the main however, I suggest you amend your final paragraph as follows:

I have no option in this matter and as in accordance with my professional responsibilities I make you aware of this.

Please do not hesitate to contact me if you require further advice on this matter.
Kind regards.
Yours sincerely
Gill Birt (Mrs)
MDU Secretariat."

That amendment was included as the last paragraph of the 5 May letter.

11. Whilst Ms Tether accepts that that evidence was apparently overlooked by the Tribunal she submits that such omission does not vitiate the Tribunal's finding that the letter of 5 May was not written in good faith.
12. Mr Phipps argues to the contrary. He draws our attention to the observations of Mummery LJ in Yeboah -v- Crofton [2002] IRLR 634, paragraphs 94-95, giving general guidance as to the proper approach to be taken by this Appeal Tribunal when considering appeals based on the perversity ground. Having deprecated the technique employed by some appellants of trawling through the Tribunal's extended reasons, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence and alleging that these particular findings of fact are perverse and therefore the overall decision is perverse, His Lordship allowed of circumstances where a Tribunal has fallen into error by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed.
13. We gratefully adopt that approach and turn to the particular circumstances of this case. Was the Tribunal's erroneous finding, that they had not been told that the Applicant's draft letter had been received by the MDU before the 5 May letter was sent, a crucial finding, or at any rate of such significance that it undermines the Tribunal's conclusion that that letter was not sent to the Respondent in good faith? We prefer Ms Tether's submission that it does not for the following reasons.
14. The Tribunal gave a number of reasons for their finding that the 5 May letter was not sent in good faith. We have set them out in summary form earlier in this judgment. There is no appeal against any of those findings, save the last. In our judgment they provide solid reasoning for the Tribunal's conclusion on the question of good faith.
15. We do not understand that reasoning to be predicated on the proposition that either the receipt of advice from the MDU necessarily leads to the conclusion that the disclosure was made in good faith, nor that, conversely, failure to obtain such advice inevitably leads to the opposite conclusion.
16. No evidence was adduced from a representative of the MDU, we see from paragraph 5 of the Tribunal's Reasons, in particular from Mrs Birt, the author of the MDU letter of 3 May 2000. In these circumstances there was no direct evidence from the MDU as to the precise purpose of the review. On the face of it, the concern of Mrs Birt, judging from the amendment which she advised the Applicant to make to his draft, was to ensure that the Applicant made clear his duty to protect patients as set out in the extract from the GMC Guidance set out in Mrs Birt's letter to the Applicant dated 13 April 2000.
17. What is clear from the full sequence of correspondence between the Applicant and Mrs Birt was that the latter was not in a position to form a view as to the validity of the opinion expressed by the Applicant in his letter; the background tensions between the Applicant and his employers at the time and his motive for writing the letter. The Tribunal, on the other hand, was very well placed, having heard the evidence to make a judgment on the Applicant's motives, which is the critical consideration in determining whether or not he acted in good faith.
18. In these circumstances we are not persuaded that the erroneous finding was crucial to the Tribunal's conclusion in good faith; it was at the most tangential. A crucial finding is one which is central to the Tribunal's conclusion . An example of a crucial finding in the cases may be seen in Levy -v- Marrable [1984] ICR 583. There, a factual issue arose, central to the fairness of the Applicant's dismissal. He contended that he had previously carried out a dangerous practice for which he was dismissed, with the knowledge of his employers and without complaint by them; the employer denied any such knowledge. The Tribunal failed to make a finding of fact on that significant issue. The appeal was allowed by the EAT and the matter remitted for rehearing. We do not consider that the erroneous finding in the present case approaches that sort of level of critical importance.
19. (2) Reason for dismissal

We elicited from Mr Phipps, who represented himself, that the way in which he put his appeal was that if the Tribunal's finding that the 5 May letter was not sent in good faith, then the Tribunal's finding that the reason for dismissal related to the Applicant's conduct would itself be undermined, requiring that the whole case be remitted to a fresh Tribunal for full hearing.

20. We have upheld the Tribunal's finding on protected disclosure and consequently that argument necessarily fails. However we should, in deference to an alternative argument advanced by Ms Tether, examine that proposition a little further.
21. Even if the Tribunal's finding of bad faith could be set aside it does not necessarily follow that a protected disclosure was the reason or principal reason for dismissal. Looking at this Tribunal's Reasons as a whole we have concluded that Ms Tether is correct in submitting that the Tribunal reached a clear and unequivocal conclusion that the Respondent's reason for dismissal was the conduct of the Applicant as found (Reasons paragraph 23). It had nothing to do with his letter of 5 May 2000. That is a finding of fact with which we should not have interfered.
22. On that ground also we would uphold the Tribunal's finding that the Respondent had established a potentially fair reason for dismissal.
23. (3) The Polkey deduction and contributory conduct

We begin with this observation. As Ms Tether properly pointed out, the Applicant being unrepresented before us, in Rao -v- Civil Aviation Authority [1994] ICR 495, the Court of Appeal provided guidance as to the Employment Tribunals' approach in a case where findings of both a Polkey deduction and contributory conduct were made. The correct order in which to make and apply those findings is first to decide the level of the Polkey deduction for the purposes of the 123(1) assessment and then to apply the level of contribution to the resulting figure. In the present case, on the fact of their Reasons at paragraphs 34-35, the Tribunal appear to have approached the matter in reverse.

24. That is immaterial in circumstances where so far as the section 123(1) compensatory award is concerned, a finding of one hundred per cent deduction is made; the additional finding of one hundred per cent contribution merely achieves the same result; no compensatory award. The Polkey deduction does not arise in relation to the basic award.
25. We shall therefore turn to consider the third and fourth issues in the appeal; respectively the finding of a hundred per cent Polkey deduction and the contribution finding of ninety per cent in respect of both the compensatory and basic awards.
26. The Polkey deduction

Mr Phipps challenges the Tribunal's conclusions that had a fair procedure been carried out the Respondent would certainly have dismissed the Applicant and that dismissal would be fair.

27. In mounting that challenge he has been driven, we think, to do that which Mummery LJ refers to at paragraph 94 in Yeboah. The finding of the Tribunal, at paragraphs 33 and 35 of their Reasons, that on two grounds, the New Zealand proceedings and the Applicant's misrepresentation as to his post at the Royal Marsden Hospital, the Respondent had good grounds to dismiss fairly by reason of the Applicant's conduct, was reached after careful consideration of the evidence and rival contentions of the parties. In essence, it was the Applicant's case that he was under no obligation to disclose to the Respondent the progress of the New Zealand proceedings during the employment. What happened was that prior to his appointment by the Respondent, when he was employed at a hospital in Dunedin, New Zealand, the Royal Australasian College of Surgeons (RACS) published a report criticising his colorectal practice. On an application by the Applicant for judicial review that report was quashed, judgment being given at first instance on 23 March 1998. At the time of the Applicant's application for a post with the Respondent, the Respondent was made aware of that report; the decision of the Court and the fact that the matter was under appeal to the New Zealand Court of Appeal. An investigation was carried out into that matter by the Respondent's solicitor, who advised that it would be impossible to appoint the Applicant whilst that matter was pending. Mr Jackson nevertheless felt able to disregard that advice and the appointment was made.
28. Subsequently the New Zealand Court of Appeal largely reversed the decision of the first instance judge; thereafter the matter went on further appeal and on 13 April 2000 the Privy Council varied the Court of Appeal Order. The Applicant did not advise the Respondent of the progress of the case and Mr Jackson first learned of the Privy Council's decision and the earlier New Zealand Court of Appeal decision on or about 19 May 2000.
29. Mr Phipps takes the point that his non-disclosure of the course of that litigation after his appointment by the Respondent did not cause Mr Jackson to take immediate disciplinary action against him until the matter was raised amongst the charges in the Statement of Case dated 31 August 2000. That is not altogether surprising, given that other matters arose during June 2000; an investigatory meeting was held on 9 August, leading to formulation of all charges against the Applicant in the Statement of Case.
30. However, it is not for us to re-investigate the facts; that task was carried out at length by the Employment Tribunal. Based on the evidence they heard they reached permissible findings of fact. Based on those findings they concluded that a reasonable employer in the position of the Respondent was entitled to expect full disclosure by a Consultant Surgeon in their employment and did not receive it. That, coupled with their finding that he had misrepresented the nature of this post with the Royal Marsden prior to appointment, would, they found, have inevitably led to a fair dismissal by the Respondent had they carried out a fair procedure.
31. As to the Royal Marsden post, the Applicant has, by reference to selective parts of the evidence, sought to persuade us that he held a substantive, not locum Senior Registrar's post at that hospital. Again, that matter was fully ventilated before the Employment Tribunal and, accepting the Respondent's case, they found that he had misrepresented the position in his CV forming part of his job application. Among other evidence before the Tribunal was a recommendation by a Tribunal reporting back to the Royal College of Surgeons of Edinburgh as to the validity of the Applicant's accreditation of higher surgical training which found that the Royal Marsden post held by the Applicant was as a locum not as a substantive post. Although the report is dated 20 June 2001, that is post-dismissal, it was evidence which the Tribunal was entitled to take into account in reaching its conclusion.
32. Mr Phipps has also submitted that in assessing the Polkey deduction the Tribunal failed to consider whether, in that hypothetical exercise, the Respondent would have had reasonable grounds for their belief in the Applicant's conduct. We cannot accept that submission. It is clear from the Tribunal's findings on fairness of the actual dismissal that the Burchell test, to which Mr Phipps referred us, was met; the only unfairness lay in the two procedural failings. Since the Polkey exercise proceeds on the footing that no such procedural unfairness exists he is not able to pray in aid the Tribunal's own findings of procedural unfairness in attacking their conclusion on the Polkey deduction.
33. In these circumstances we can see no grounds in law for interfering with that conclusion.

Contributory conduct

34. Here the question is different. It is not whether the Respondent would have dismissed fairly absent procedural unfairness, but whether the Applicant was in fact guilty of the relevant culpable or blameworthy conduct. The Tribunal addressed that question and answered it affirmatively at paragraphs 33-34 of their Reasons. They were entitled to do so on their findings of fact.
35. As to the degree of contribution, ninety per cent, we accept Ms Tether's submission, by reference to the observations of Stephenson LJ in Hollier -v- Plysu Ltd [1983] IRLR 260, 263, that the degree of contributory fault is "so obviously a matter of impression, opinion and discretion" for the Tribunal that there must be a plain error of law or perversity for the EAT to interfere.
36. In our judgment no error of principle is made out. We are unable to characterise the apportionment of blame as perverse. This was a professional man from whom the highest level plain dealing was to be expected. On the Tribunal's findings the Applicant fell below that standard.
37. It follows, in our judgment, that no error of law was made out in this appeal; accordingly it must be dismissed.