United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BACON (of Counsel) Instructed by: Messrs Russell-Cooke Solicitors 2 Putney Hill London SW15 6AB
For the Respondent	MR RICHARD POWELL (Solicitor) of Messrs DLA Piper Rudnick Gray Cary UK LLP Solicitors Victoria Square House Victoria Square Birmingham B2 4DL


 


SUMMARY

Public Interest Disclosure

Claimant claims that some years after the termination of her employment, she was caused detriment by her ex-employers due to having been a whistleblower, and makes claims pursuant to s48 (and s47B) of ERA 1996. Fadipe ([2001] EWCA 1885) is binding CA authority that Part V of the ERA (Protection From Suffering Detriment in Employment) does not apply to post-employment detriment, notwithstanding Coote (post-employment victimisation), which was referred to. EAT bound by Fadipe: subsequent HL decision of Rhys Harper did not overrule Fadipe and in any event all the arguments were considered by the CA.

.
 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This has been the hearing of an appeal by the Claimant, Mrs Woodward, against the unanimous decision of the Employment Tribunal at London (Central), dismissing her claims against the Respondent, Abbey National plc, under ss 48(1A) and 47B of the Employment Rights Act 1996 (the "ERA"). The circumstances of the consideration did not involve a determination in relation to the facts. We understand that there has been a subsequent determination in relation to the same or similar facts with regard to the Claimant's claim in respect of sex discrimination. But, with regard to this determination, it fell to be decided upon the basis that the Claimant's case must be taken as correct, and the Tribunal dismissed the claim on the ground that there was no jurisdiction to hear the claim in law.
2. Her allegations were originally contained in an Originating Application on 10 January 2003 which contained a claim of victimisation. It was only in July of 2003, that the claim was formulated in the way it now is, specifically with regard to sections 47B and 48(1A) of the ERA. There is an unresolved dispute between the parties as to whether the claim under the ERA only arose for the first time in what was called the Re-amended Details of Complaint or whether it was already contained in the Originating Application, on a correct reading of that document. We do not need to decide the point.
3. The allegation is one that can loosely be described as 'post-termination detriment'. The facts, which must be taken as correct, allege that in relation to the Claimant, who alleges that she was or had been what in loose terms can be called a 'whistle blower' - albeit that her whistle blowing took place prior to the coming into force of the relevant statutory protection for whistle blowers in 1999 – which led to detriment to her in the years subsequent to the termination of her employment. Her employment ceased in 1994. and she makes an allegation that on, at any rate, three separate occasions, once in 1996/early 1997, once in 2000 and once in late 2001/early 2002, there were acts by the Respondent which would amount to the causing to her of detriment by putting at risk her employment or continued employment by subsequent employers, which is said to be, if it occurred, causatively linked with the fact that she had whistle blown during her employment by the Respondent.
4. In paragraph 19 of the Re-amended Details of Complaint, it is asserted, by reference to a letter that the Claimant wrote on 10 October 2002; that

"The concerns set out in the…letter constituted protected disclosures for the purposes of section 43(1)(b) of the Employment Rights Act 1996".

On a reading of that pleading, it would have appeared and certainly, Mr Powell, who appears for the Respondent, has so read it as if it were, that the protected disclosures, the whistle-blowing, were taking place in 2002 and thus, post employment. But Mr Bacon for the Claimant has clarified that it was, in fact, intended to have read something along the lines of "the concerns set out in the first letter were the earlier protected disclosures"; and thus he made clear that his client's case involves only an allegation that there is post-termination detriment in respect of disclosures during termination. Nevertheless, not least for that reason, as will appear the argument has ranged over the area not only as to the protection which his client seeks in this case against post-termination detriment, but also the possibility of protection in respect of post-termination disclosures for which the detriment would, by definition, also be post employment.

5. On the basis of taking as found the facts of the case, the Employment Tribunal in its Judgment concluded that there was no jurisdiction, as we have said. The Claimant, Mrs Woodward, argued the matter in person, and Mr Powell represented the Respondent. The basis upon which the Tribunal primarily concluded that there was no such jurisdiction, although it set out in full its reasons for so concluding, is that it was bound by the decision of the Court of Appeal in Fadipe v Reed Nursing Personnel [2001] EWCA Civ 1885, a judgment given by Mummery LJ, with which Buxton LJ and Longmore LJ agreed, and which is, surprisingly, unreported.
6. Reference was made at the Tribunal to the fact that an Ashford Employment Tribunal, in a case called Pullen & Matania v Zurich Advice Network and Allied Dunbar plc had allowed for the possibility of an arguable case in relation to post-employment detriment, but there was an issue in that case as to whether the claim made was itself out of time. The appeal against the decision by the Ashford Employment Tribunal that the complaints were out of time came before the Employment Appeal Tribunal, presided over by Judge Peter Clark, on 28 June 2004. The only issue before the Employment Appeal Tribunal was as to time, because there had been no adjudication by the Ashford Employment Tribunal, other than on the issue of time, against which there could be an appeal. Judge Clark recited in his judgment that the Ashford Tribunal had found that post-termination detriment might give rise to a s47B claim, although it had, as we have indicated, ruled out the claims as out of time. Judge Clark made no comment on the rightness or wrongness of that decision of the Ashford Tribunal; he simply recited the facts. In due course, the appeal was dismissed at a full hearing against the finding that the claim was out of time, and so the matter never proceeded further in the Ashford Tribunal. It is plain that the obiter conclusion by an employment tribunal, not in any way considered by Judge Clark (before whom, for that very reason, there was no argument and to whom no authority was cited), can be of no relevance or materiality or assistance whatever on the question now before us directly as a result of this Employment Tribunal's decision.
7. The argument has primarily ranged before us, although we have been assisted by submissions by both Mr Bacon, who appeared pro bono for the Claimant, and Mr Powell with all kinds of other arguments, as to whether we are or not bound by the Court of Appeal decision of Fadipe to which we have referred. Fadipe was a case in which there was detriment complained of by reference to s48 and s44 of the ERA. S44(1) provides that an employee has the right not to be subjected to any detriment by act, or any deliberate failure to act, by his employer done on the ground that

(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

(b) being a representative of workers on matters of health and safety at work or member of a safety committee …

the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee".

It also includes, under subsection (c)

(c) being an employee… he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety"

and similar provisions are set out in the rest of the section.

8. Although it is limited in terms to the articulation of complaints or concerns about and/or the performance of acts or duties in relation to health and safety, it is plainly, and very often in practice is, an example of one kind of what is called loosely whistle blowing. A claim by reference to s44 is to be presented to an employment tribunal by reference to s48, to which we will turn.
9. Part V of the ERA is headed "Protection from Suffering Detriment in Employment" and there are, in fact, at the moment 11 "rights not to suffer detriment" set out in Part V in sections 43M, 44, 45, 45A, 46, 47, 47A, 47B, 47C, 47D and 47E. All those rights not to suffer detriment are governed by the two sections which follow: s48, to which we have referred, relating to complaints to employment tribunals, and s49 relating to remedies. One of those 11 rights not to suffer detriment is the right in respect of which this Claimant claims, under the heading "Protected Disclosures"

"47B(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".

Protected disclosure is defined in ss43A and 43B of the Act, contained in Part IVA, in which disclosures qualifying for protection are set out, and they include, among disclosures relating to the commission of criminal offences or miscarriages of justice, under s43B(1)(d) a disclosure that the health or safety of any individual has been, is being or is likely to be, endangered and (e) that the environment has been, is being, or is likely to be damaged.

10. As is so often the case with Part V of the Act, there is a substantial cross-over between what amounts to a protected disclosure under s43B, and hence 47B, and what can fall within one of the other sections of Part V, and, in any event, as we have indicated, all of them can loosely be described as the protection of whistle blowing. S47B(2) continues:

"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)".

S47B(3) provides:

"For the purposes of this section and of sections 48 and 49, so far as relating to this section 'worker'…'employment' and 'employer' have the extended meaning given by section 43K.

11. We turn then to s48, headed up "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 sections 43M, 44 [we note that, of course, is the health and safety section which we have already quoted] 45, 46 and 47, 47A, 47C or 47E.

(1ZA). A worker may present a complaint to an Employment Tribunal that the he has been subjected to a detriment in contravention of section 45A"

- this relates to contravention of or complaints about the Working Time Regulations -

"(1A) A worker may present a complaint to an Employment Tribunal that he has been subjected to a detriment in contravention of section 47B"

- which is, of course, the subsection here in question. There are then subsequent provisions including provisions governing all whistle blowing cases within Part V, for example, providing in s48(2)that the onus on such a complaint is on the employer and providing for time limits and provisions generally in relation to when the causes of action accrue.

12. It is against that background that we turn to consider the Court of Appeal judgment in Fadipe, which as we have indicated, was a health and safety claim. However, as is now clear from our discussion of the provisions of the statute, a health and safety whistle blowing case under s44 falls under s48, as does a protected disclosure whistle blowing case under s47B, because s48 governs both of those complaints.
13. Mummery LJ concluded, as we have indicated, giving the lead judgment of the Court of Appeal, that there was no basis in law for jurisdiction in respect of post-employment detriment, that is detriment occurring after the termination of employment, by reference to s48 of the ERA and his reasoning is set out in paragraphs 25 to 29 of his judgment, which we repeat:

"25. Mr Fadipe has presented his arguments forcefully and c1early. For myself, I am in no doubt as to what points he is making. I have, however, come to the conclusion that he has failed to demonstrate that there was any error of law in the decision of the Employment Tribunal that it did not have jurisdiction to entertain his claim. I have come to that conc1usion for two reasons. The first is that section 44 does not, on its proper construction, apply in the circumstances relied upon by Mr Fadipe. The section is in the part of the Act that affords protection from suffering detriment in employment [and, we interpose, by referring to detriment in employment, he was there citing the heading to Part V which we have already mentioned]. Its purpose is to protect employees while they are still employed from suffering detriment, short of dismissal by reason of having brought to their employer's attention health and safety matters of the kind referred to in section 44(l)(c). If it is a dismissal case the section does not apply: see section 44(4). [We have already read the equivalent provision in s47(b)(ii)(b)]. The claim for unfair dismissal is made, if it is an alleged dismissal on health and safety grounds, under the unfair dismissal provisions in a different part of the 1996 Act. I am clear that this section does not apply where the facts are, as here, that the alleged detriment was inflicted and suffered after the employee (that is Mr Fadipe) had ceased to be employed.

26 As for Mr Fadipe's reliance on the reference in section 230(1) to "where the employment has ceased, worked under", in my view that parenthesis in section 230(1) was inserted by Parliament for the purposes of dealing with the kind of situation which would arise under section 48(1), which entitles an employee to present a complaint at a Tribunal that he has been subjected to a detriment. The person who may present a complaint under that section may still be employed; or he may have ceased to be employed, either by reason of resignation or dismissal. He does not cease to be entitled to present a complaint by reason of the fact that he has ceased to be an employee.

27. The section [and that is a reference of course to section 48] was not, however, intended to confer a general right on an ex-employee to complain about any acts done by his ex-employer after the employment relationship has ceased which could be described as detriment inflicted by reason of the ex-employee having raised health and safety grounds".

Finally

"29. I should mention for the sake of completeness that reference has been made at this hearing, as reference was made at the hearing in the Employment Tribunal, to the decision of the European Court of Justice in Coote v Granada Hospitality Ltd [1999] ICR 100. That was a ruling of the Court of Justice on the effect of Article 6 of the Equal Treatment Directive, 76/207/EEC, which has no equivalent provision in the Council Directive concerning health and safety at work. The Coote case was dealing with the quite different situation of the need to provide judicial protection for a worker whose employer, after the employment relationship has terminated, refused to provide a reference as a reaction to legal proceedings which the employee had brought to enforce compliance with the principle of equal treatment within the meaning of that Directive. That case is not authority for the wider proposition canvassed by Mr Fadipe that there was a general principle under which an employee who comp1ained that he suffered retaliation from his employer or former emp1oyer, having raised health and safety matters, was entitled to bring a claim under section 44 of the 1996 Act."

14. Mr Bacon has sought to persuade us that we are not bound by the Court of Appeal judgment. So far as its content is concerned, as appears from our having read it, Mummery LJ there dealt in turns with a number of the arguments upon which Mr Bacon relies before us, as the Claimant relied upon them before the Tribunal, such as, for example, the alleged construction of s230 of the ERA, with which Mummery LJ deals in paragraph 26. We do not propose to repeat the arguments on both sides which have been ranged before us, because the crux of this case is not whether there are fresh arguments that might be run or old arguments that might be repeated, but whether we are indeed bound by the Court of Appeal decision.
15. The first basis upon which Mr Bacon submits that we are not bound is what one might call a simplistic one, namely that Mummery LJ was dealing with a health and safety complaint and not a protected disclosure complaint. Quite apart from the fact that it is wholly apparent from what we have already said that there is a total link between health and safety and protected disclosures under the heading of whistle blowing, and that the factual scenarios are bound to overlap or may well overlap on any given case, the bull point here is that both s44 complaints in respect of health and safety and s47B complaints in respect of protected disclosures are governed by the same section, s48 and it appears to us quite clear that the decision which Mummery LJ was dealing with is as applicable and, indeed, as binding, in relation to s47B as to s44. His conclusions relate to s48 and to the position of s48, together with s44 and, indeed, for that matter, s47B within Part V of the ERA, protection from suffering detriment in employment. As Mr Powell has pointed out, there is not, under the ERA, protection in respect of pre-employment matters such as job applications, and so far as dismissal is concerned, that is expressly exempted from the protection of Part V in the respects already referred to and is dealt with under Parts IX and X. In any event, Mummery LJ, has given his judgment in relation to s48, as we have recited, and we see no distinction in this case from that which was before Mummery LJ nor any way in which we can fail to be bound by the Court of Appeal decision.
16. The second minor matter which Mr Bacon referred to was the small distinction that there is between s47B and s44 by reference to the importation into s47B by subparagraph (3) of s43K of the Act, which is described in its heading as "extension of meaning of "worker" etc for Part IVA" of the Act [Protected disclosures]. It is plain, however, that, although for the purposes of s47B the definition of worker is deliberately slightly wider than it is in respect of s44 and other sections, s43K itself expressly refers to s230, and the conclusion of Mummery LJ in paragraphs 26 and 27 of Fadipe is as apt to the interpretation of s47B, as applied to a slightly larger group of workers, as of s44.
17. The major thrust of Mr Bacon's submissions before us has been that the Court of Appeal decision in Fadipe has been overtaken by the decision of the House of Lords in Rhys Harper v Relaxion Group plc [2003] IRLR 484. We use the word "overtaken" very loosely. It was difficult to fathom from Mr Bacon's submissions what effect, in fact, he was saying that Rhys Harper had had on the decision in Fadipe. It certainly did not overrule Fadipe, both because Fadipe was not cited in Rhys Harper and because Rhys Harper was dealing with victimisation under the sex and race discrimination legislation, and not cases of detriment under Part V of the ERA. There is no overruling in those circumstances. Effectively, what he is submitting, presumably, is that it is implicitly overruled. We know of no such concept in the law of precedent, whereby we can disregard a binding authority of the Court of Appeal unless, of course, we were to conclude that it was per incuriam. That is a difficult task for Mr Bacon take on, particularly in relation to a Court of Appeal judgment delivered by a judge who has such knowledge of employment law as Mummery LJ, formerly president of the Employment Appeal Tribunal, and his distinguished colleagues, and after what was plainly full argument, albeit that the Appellant appeared on his own behalf, Counsel appearing for the Respondent to assist and, clearly from the judgment of Mummery LJ, very wide ranging arguments, including all or most of those which have been put before us.
18. The basis upon which Mr Bacon submits that we now should not follow or should reconsider Fadipe is that, in Rhys Harper, the House of Lords plainly allowed for the availability of claims in respect of similar conduct to that which is alleged here, by way of ex-employers giving inappropriate or unhelpful references to ex-employees so far as claims for victimisation is concerned under the sex, race and other discrimination legislation. In particular, he submits that what the House of Lords allowed for was some kind of separate entity or existence of an employment relationship, even after the termination of an employment contract, and that that was not addressed by Mummery LJ or, if it was, that his words in paragraph 27 "acts done by his ex-employer after the employment relationship has ceased" would now be seen to be in some way erroneous if indeed it were the case that the conclusion of the House of Lords in Rhys Harper had concluded that the employment relationship continued for many years thereafter, whenever any question of reference for an ex-employee arose.
19. The reason why Mr Bacon has to be quite so careful in respect of the basis upon which he says that Rhys Harper has somehow affected Fadipe is that we must find something in Rhys Harper other than the decision itself which strengthens his argument, because of the fact that Mummery LJ addressed in terms in paragraph 29 of his judgment that which we have already referred to, by reference to his judgment, namely the decision of the European Court of Justice in Coote v Granada which was, in fact, the first case to establish - and it was subsequently ported back to the United Kingdom in the decision in the Employment Appeal Tribunal in 1999 IRLR 452 –that post-employment victimisation was actionable in appropriate circumstances. What Mr Bacon submits is that the existence of that jurisdiction, as set out by the European Court of Justice, by which Mummery LJ was not impressed in his judgment as not directing him and the Court of Appeal to reach the same conclusion in relation to Part V detriment, has been overtaken by some wider concept arising out of Rhys Harper.
20. We had cause to consider the effect of Rhys Harper in Metropolitan Police Service v Shoebridge, a judgment of mine at the Employment Appeal Tribunal [2004] ICR 1690. That was a case where, some 14 months after the termination of employment, it was alleged that the ex-employer had set out on a spoiling exercise to interfere with subsequent employment of an ex-employee who had brought discrimination proceedings. We needed, for the purpose of that case, in which the question was how far the decision of the House of Lords in Relaxion ran in terms of ongoing rights of ex-employees, to consider all the speeches of their Lordships in Rhys Harper; and, as indeed one would expect in relation to such distinguished judges dealing with very interesting and academic new jurisdictions, they did not coincide. We did our best in Shoebridge to reconcile the judgments, and came to the conclusion that, on the facts of that case, the Employment Tribunal had been right to allow the Claimant's claim to go forward. We cite the following passage from that judgment:

"35. Secondly, we are entirely satisfied that Lord Nicholls was looking at incidents of an employment relationship, as he describes them in paragraphs 36, 37, and 44 and not necessarily the continuation of the employment relationship as a whole. When he said in paragraph 44 'the obligation not to discriminate applies to all the incidents of the employment relationship, whenever precisely they arise' he was referring to the kind of incidents of such a relationship such as the discriminatory non-provision of a reference, or, as here, if proved, possibly discriminatory statements made about an ex-employee in an employment context, and certainly those with a view to spoiling the subsequent employment of the employee, if such be found; both could be incidents of an employment relationship and they could, as indeed Lord Nicholls himself foresees in paragraphs 41 and 42, arise years after the employment relationship itself had ended. In those circumstances, we are satisfied that Lord Nicholls stands on the side of the line together with Lord Rodger and Lord Hobhouse, and that the facts alleged here, if proved, would amount to discriminatory conduct of an incident of employment relationship.

36. On the other hand, a much simpler test is set out, in our judgment, and one which the Employment Tribunal may well find it far easier to adopt, applying the commonsense of an industrial jury, namely the tests set out by Lord Hobhouse and Lord Rodger: whether there is a substantial connection with the employment relationship, or a sufficiently close connection with the employment, or whether the employer was here discriminating qua employer, or whether the facts alleged are sufficiently proximate to, or not remote from, the employment of the employment relationship. We are satisfied that that is a matter which this Employment Tribunal can resolve and might resolve against the Applicant; that is a matter for the Employment Tribunal when it fully hears the facts. But it appears to us that if it be proved that an employer deliberately set out to spoil a subsequent employment, however long after its own employment had ceased, or so acted, knowing of the likely consequences of its actions, it would be acting qua former employer, to quote Lord Rodgers' words. That is not to say, of course, that it would necessarily be victimising, because it may have other motivations for its act, but that if such were proved, there would be, in our judgment, sufficient proximity and a sufficiently close connection with the employment".

If that be the correct analysis, and we believe it is, of the effect of Rhys Harper, then Rhys Harper was simply writing large the conclusion of the European Court in Coote which had been asked the question, as Mr Bacon points out, referred to at paragraph 12 of the EAT judgment:

"The main issue before this court is whether it is possible to construe the 1975 Act so as to enable a claimant to take a victimisation complaint in relation to events that occurred after the employment relationship had terminated.

21. It appears to us, indeed, not sensible to suggest that the employment relationship continued through to 2002 in this case. The question would be, if this had been a victimisation claim, whether the acts complained were sufficiently proximate, so that there had been a surviving right to claim by reference to an incident of the employment relationship even after the employment relationship terminated. Coote and subsequently Rhys Harper found that such a right exists in relation to discrimination claims, and Mr Powell points out that that has subsequently been statutorily enshrined in s20A of the Sex Discrimination Act 1975, and similar discrimination regimes, namely that of making it clear that it is unlawful for there to be discrimination where a relevant relationship has come to an end if the discrimination

"arises out of and is closely connected to the relevant relationship".

22. In those circumstances, we are entirely satisfied that the Court of Appeal hearing did consider the very point that is now raised and that, in any event, nothing in Rhys Harper causes us to believe either that their decision is wrong or certainly, that in some way it falls to be impliedly overruled.
23. We are, consequently, bound by the decision of the Court of Appeal and so was the Employment Tribunal. If there is a need, as Mr Bacon submits there is, for there to be post-employment protection of those who have whistle blown, then on the basis of the Court of Appeal judgment, it is not open for there to be such a claim short of the House of Lords, and it may be that it is a matter rather for legislation than for the Courts for the position to be reconsidered. That became even clearer during the course of the argument to which we have already referred. Mr Bacon submits, and it is sufficient for the purposes of his client in this case, that Fadipe is wrong and/or we should decide differently from Fadipe in relation to acts of post-employment detriment suffered by ex-employees relating to whistle blowing during their employment, by way of what he submits ought to be a broad construction of a combination of ss 47B and 48 of the ERA and s230, contrary to Mummery LJ's conclusions in Fadipe. But he accepted, in the course of argument, that there was no natural need for a distinction between the claim for protection of a whistle blower who has whistle blown during employment and suffers detriment afterwards and of someone who keeps quiet during employment and then whistle blows after employment and, by definition, suffers detriment after employment. If there were to be a strained, as it might be put, interpretation of the existing legislation so as to introduce claims in respect of the former, then it would hardly be any more of a strain to the legislation to introduce protection in respect of the latter. That, alone, in our judgment, renders it the more likely that this whole question ought to be considered by Parliament rather than by the Courts, but that is a matter for other places. It is sufficient for us to say that we are wholly satisfied that the Employment Tribunal was right in concluding that it and we are bound by Fadipe and this appeal must be dismissed.