United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W J KIRWAN In Person.
For the Respondent	MR S BRITTENDEN (Of Counsel) Instructed by: Messrs Lawrence Graham LLP, 4 More London Riverside London SE1 2AU.


 


SUMMARY

UNFAIR DISMISSAL

Reasonableness of dismissal

Automatically unfair reasons

PUBLIC INTEREST DISCLOSURE

Even though the Employment Tribunal had been incorrect to hold that the Claimant had not made protected disclosures, it had found in relation to each alleged protected act or disclosure that the Claimant had supported no detriment. Accordingly, the appeal failed on the factor.


 


HIS HONOUR JUDGE SEROTA QC

1. This is an appeal from the decision of the Employment Tribunal at Bristol of which Mr C G Toomer was the Chairman, on 29 January 2006, which dismissed claims by Mr Kirwan for unfair dismissal, including automatically unfair dismissal by reason of having made a protected disclosure, and in respect of detriments he claims to have suffered by reason of having made a protected disclosure.
2. The case was referred to a preliminary hearing which came before HHJ Burke QC and two lay members, firstly on 13 June 2007. On that occasion the Claimant was unrepresented, but an issue arose as to certain amendments he wished to make to his Notice of Appeal, and there was a need for the Respondent to comment. Accordingly the matter was adjourned and it came back before HHJ Burke on 13 July 2007.
   
3. HHJ Burke had before him a Notice of Appeal which contained a number of grounds of appeal. Of these grounds of appeal the first six related to a finding by the Employment Tribunal that there had been no protected act. There were additional points of appeal relating to other matters of a more factual nature, and Mr Kirwan also wished to raise additional matters. The Employment Appeal Tribunal on 13 July was only prepared to allow grounds one to six to go to a full hearing. The other grounds were dismissed. As we understand it HHJ Burke gave an oral judgment, albeit it has taken some little time for his transcript of this judgment to reach Mr Kirwan.
4. Mr Kirwan was dissatisfied with the decision of HHJ Burke insofar as it related to the refusal to allow additional grounds of appeal and to allow grounds seven to ten to go to a full hearing.
5. HHJ Burke provided short reasons for refusing a review and the order was sealed on 21 September 2007. We understand that Mr Kirwan received the documents a few days later and his time for appeal expires today. He told me earlier today, and we had dealt with this matter in an earlier judgment, that it is his intention to seek permission to appeal against that judgment. His time has not yet expired and he effectively wishes to appeal against HHJ Burke's refusal to allow him to reopen various factual matters, including various matters going to the issue of detriment.
6. HHJ Burke refused permission to appeal against the original decision, but of course Mr Kirwan is entitled to seek permission to appeal against the review decision. That is something that in the first instance will have to be considered by HHJ Burke and his colleagues, and so we say nothing more about it, albeit of course one of my colleagues was a member of the Employment Tribunal on that date. We therefore, as it seems to us, having refused an adjournment to enable the application for permission to appeal to be considered, can only deal with the appeal on the basis of the grounds of appeal numbers one to six permitted to go forward by the EAT presided over by HHJ Burke.
7. I think it important that we stress at the outset that because we are limited to considering those grounds of appeal we cannot entertain an appeal against findings of fact made by the Employment Tribunal. We need to make clear to Mr Kirwan that the function of the Employment Appeal Tribunal is to deal with matters of law. There are certain circumstances described in the leading case of Yeboah v Crofton [2002] EWCA Civ 794 in which the Employment Appeal Tribunal can entertain an appeal on questions of fact, often known as a perversity appeal, but such an appeal is not before us and the burden placed on an Appellant seeking to challenge findings of fact on the grounds of perversity is very high indeed.
8. Let us say something about the factual matter to this dispute. The Claimant began to work in Avonmouth docks in March 1977. The docks at Avonmouth were originally owned by Bristol City Council but we understand that ownership was transferred to the Respondent in about August 1991. Mr Kirwan for many years was active as a shop steward in the Transport and General Workers Union. When the transfer to the Respondent took place, the provisions of TUPE applied and various issues arose as to the existing pension schemes which needed to be changed to reflect the change in employer. I say this without any criticism of the Claimant at all, but the Claimant has been active for a number of years in raising issues of dispute with the directors and trustees of the pension fund about changes to the rules and the administration of the pension schemes. The Claimant's case, shortly put, is that he had made himself so unpopular with the Respondent by reason of his legitimate activities in relation to the pension scheme that the Respondent simply looked for an opportunity to dismiss him; and when the opportunity arose the reasons given were, in effect, a sham. He claims that the reason why he was dismissed, as we shall come to shortly, because the employer was anxious to get rid of him, by reason of his activities in relation to the pension scheme.
9. It also needs to be said that the Claimant's wife is unfortunately severely disabled, and historically the fact that he has had a severely disabled wife has had a significant effect both on the Claimant's flexibility and on his timekeeping. According to the evidence that was before the Employment Tribunal there was a history of poor timekeeping and absences going back to 2001. In addition, so far as the Claimant was concerned, there was on file at the relevant time a final written warning, which had been issued, I believe, in January 2005 and related to an incident when a vehicle had been damaged, and it was said the Claimant had left the site, contrary to the Respondent's rules.
10. The Employment Tribunal had this to say at paragraph 10:

"It is therefore clear that although the claimant did not have a particularly bad employment record, looked at against the background of his length of service, nonetheless there had built up a history of concerns about various aspects of his work and performance. Apart from the disciplinary record of verbal and final written warnings in respect of specific performance issues, there was plainly a level of concern over the claimant's record of attendance. The respondent had made some efforts to assist, and had refrained from imposing disciplinary sanctions, but it did not appear to us that the situation had improved substantially since 1997. It is against that background that we have to look at what happened next."

11. Various changes had been made by the directors and trustees to the pension scheme, which were of concern to members of the scheme, including the Claimant, who was active and indeed had been a founder of the Port Welfare Fund. On behalf of the Port Welfare Fund, in November 2004 he had sought legal advice from well known Bristol solicitors, Messrs Osborne Clark. The Claimant relied upon his instruction and imparting of information to Osborne Clark as a protected act. The Employment Tribunal described the matter in this way:


"This is the act which the claimant relies upon as a protected act, in that he alleges that it amounted to a disclosure of information which, in his reasonable belief, tended to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, within the provisions of section 43B(1)(b) of the Act. He alleges, moreover, that this was a disclosure to a legal advisor under section 43D and that accordingly his disclosure of this material to Osborne Clark amounted to a protected disclosure within section 43A."

12. The instruction of Osborne Clark led them to write to Mr Morris, who was the Respondent's director of personnel and administration but also acted as secretary to the trustees of the pension scheme. One of Mr Kirwan's complaints was that Mr Morris had been very angry indeed about the instruction of Osborne Clark, had told him to withdraw his instructions, and that he was misusing the welfare fund, and that he would see to it that Mr Kirwan was liable for all the costs, both of the Respondent's solicitors in objecting to the disclosure, and Osborne Clark's costs.
13. The Employment Tribunal, at paragraph 14, considered this claim together with another allegation that a fellow officer of the TGWU, a Mr Watts, had challenged him in instructing Osborne Clark and that Mr Watts was angry and threatening and was acting on behalf of Mr Morris. The Employment Tribunal at paragraph 13 rejected the Claimant's case that Mr Morris was very angry and had threatened to ensure that the Claimant paid all costs; and it also rejected or was unable to accept other allegations, in particular that Mr Morris had told a solicitor at Osborne Clark, Mr Ashby, who had dealt with Mr Kirwan's instructions, that the Claimant was a trouble maker. The Employment Tribunal, as I have said, was unable to accept the suggestion that Mr Morris had acted in this way, or that he had been offensive about Messrs Osborne Clark.
14. Coincidentally in time with issues in relation to the pension fund, concerns surfaced about Mr Kirwan's timekeeping. It is said that by the summer of 2005 he had been late for work on approximately 20 occasions. Also in June 2005 Osborne Clark produced a report. It did have some mild criticisms of the directors of the pension scheme, but the Employment Tribunal described the report as, broadly speaking, "favourable to the Respondent", see paragraph 16 of the decision of the Employment Tribunal. The Claimant asserted that Mr Morris and the port directors were very angry with him and that as a result Mr Morris planned to dismiss him. This is a matter dealt with in paragraph 17 of the Employment Tribunal decision. Again it is right to say that the Employment Tribunal was unable to accept the Claimant's case.
    
15. In July 2005 Mr Morris again looked at the Claimant's lateness. There had been a further nine occasions when he had been late since the matter was looked at in June. Some of these were only a matter of one or two minutes, but nonetheless others were more significant and this led to a formal disciplinary hearing taking place in August 2005. This led to a further final warning. The Employment Tribunal considered evidence on the part of the Claimant that there had been some improper deal struck between Mr Morris and two representatives of the TGWU, Mr Preddy and Mr Watts, prior to the disciplinary hearing, whereby the Claimant would not be dismissed if he resigned as shop steward and secretary to the Welfare Fund, and effectively left the pensions issue alone. The Employment Tribunal had evidence from Mr Morris denying any such agreement had been reached. It found there was no independent evidence to support such suggestions, and they were not prepared to accept Mr Kirwan's evidence in this regard.
16. Unfortunately, there were further incidents of lateness, and this led to another disciplinary hearing on 20 October 2005. This was conducted by Mr Morris. Mr Kirwan objected to Mr Morris conducting the hearing and alleged that Mr Morris was victimising him by reason of the pension issues. Mr Morris was not prepared to withdraw because he was the person who was charged with issues of dismissal. The hearing went on and it was decided by Mr Morris that the Claimant should be dismissed on notice with pay in lieu of notice. Mr Kirwan appealed but his appeal was dismissed.
17. The Employment Tribunal, it is important to note, gave a detailed judgment, in which it considered the evidence. However, before considering the evidence the Employment Tribunal had determined, on the basis of the authority Kraus v Penna [2004] IRLR 260, that the disclosures by Mr Kirwan to Osborne Clark were not protected disclosures within the meaning of the Employment Rights Act, because the Respondent was under no relevant legal obligation. This submission was accepted by the Employment Tribunal, see paragraph 29.
18. Mr Kirwan had alleged that the reason given for his dismissal was in effect a sham, and that he was really dismissed by reason of his activities in relation to the pension fund. The Employment Tribunal considered this and came to this finding at paragraph 34:

"Having reviewed all these conflicting arguments, we were unanimously satisfied that the respondent has established, on the balance of probabilities, that the reason for the dismissal was not the claimant's approach to Osborne Clark, but because he was continuing to come into work late despite a long series of informal, and latterly formal, warnings. On the basis of Mr Morris' evidence - and more particularly what Mr Morris did and did not do once knowledge of the approach to Osborne Clark reached him - we were satisfied that the claimant was not dismissed or subjected to discipline because he had raised concerns with Osborne Clark or anyone else over the pension scheme, but simply because the respondent had concluded and could no longer accept his persistent lateness to work. That is a matter which relates to the claimant's conduct, and conduct is potentially a fair reason for dismissal."

The Employment Tribunal went on to find that the procedures and the decision to dismiss were within reasonable bounds.


19. We have already referred to the preliminary hearing before HHJ Burke, and we note that HHJ Burke considered that grounds one to six of the Notice of Appeal raised issues in relation to the protected disclosure; and an arguable case was raised. Indeed, it is now accepted by the Respondent that it is not simply an arguable case, but Mr Kirwan is right when he says the Employment Tribunal was wrong to find there had been no protected act. In fairness to the Employment Tribunal, let it be said they were relying upon the law as it appeared to them as set out in Kraus v Penna; but subsequent cases have made clear that Kraus v Penna was in fact wrongly decided and it has been over-ruled. We have therefore approached this appeal on the basis that Mr Kirwan is right when he says the Employment Tribunal was wrong to find there had been no protected act.
    
20. HHJ Burke in giving judgment, at page 70, noted that the Tribunal made findings of fact contrary to Mr Kirwan's evidence and there could be no arguable appeal against those findings. We quote:

"That detriment is not, however, the only detriment which he claimed to have suffered by reason of the protected disclosure. The Tribunal rejected his other claims to have suffered detriment other than dismissal because they concluded that there was not a protected disclosure. It follows that it must be reasonably arguable that they should not have rejected those claims that he had suffered detriment; and, so far as that part of this appeal is concerned, it is clear to us that that part must go forward for a full hearing."


21. The Employment Tribunal then went on to refuse permission for the other factual matters raised by Mr Kirwan to go forward, and dismissed the other grounds of appeal.
22. As it is conceded by the Respondent, having regard to the decision in Babula v Waltham Forest College, that the Employment Tribunal's finding that there had been no protected act cannot stand, the only issue before us is whether in fact the Employment Tribunal rejected claims by Mr Kirwan that he had suffered detriment, solely on the basis that there had been no protected disclosure. The Respondent submits that every detriment pleaded was considered and rejected on the facts. This may not have been apparent to the Employment Tribunal at the preliminary hearing, which of course was conducted in the absence of the Respondent.
    
23. Mr Kirwan produced a list of detriments which are at pages 56 and 57 of the bundle, and there were two further specific allegations of detriment which are referred to and identified by the Chairman of the Employment Tribunal in the order of 24 July, namely the disciplinary procedure to which the Claimant was subjected firstly in August 2005 and secondly the disciplinary procedure in October 2005. We have already referred to the passage in the decision of the Employment Tribunal at paragraph 34, where it found, in terms, that the Claimant was not dismissed or subjected to discipline because he had raised concerns over the pension scheme; that the disciplinary measures and dismissal were solely because the Respondent had concluded it could no longer accept his persistent lateness to work.
    
24. If one takes the various allegations that are made, the allegations relating to what took place on 26 and 27 February are rejected by the Employment Tribunal at paragraphs 12 and 13 of the decision. The suggestion - this is the third head, as we take it - that the Claimant was described as a troublemaker by Mr Ashby was rejected at paragraph 14. The suggestion that Mr Morris was very angry, and the Claimant was told this by Mr Watts, was also rejected at paragraph 14. The suggestion that Mr Morris was offensive about Osborne Clark was rejected at paragraph 14. The suggestion that the directors were angry and that Mr Morris planned to dismiss him as a result of the Osborne Clark report was considered and rejected at paragraph 17. The suggestion there was some form of conspiracy in relation to the disciplinary hearing on 8 August 2005 was rejected at paragraph 19. In addition, a number of other matters are referred to in Mr Kirwan's detriment list at pages 56 and 57, numbers 5, 6 and 7. These are not referred to in the decision of the Employment Tribunal, and we understand that there was no evidence led in respect of these matters, either in the witness statement, or in evidence-in-chief, or in cross-examination of either Mr Kirwan or Mr Morris. Accordingly, there was no way in which the Employment Tribunal could find that these facts were established.
    
25. It follows, therefore, that the Employment Tribunal, on the facts that it found, was satisfied that Mr Kirwan had suffered none of the detriments he alleged as a result of having made a protected disclosure.
26. Mr Kirwan has been at pains to submit to us that he told the truth to the Employment Tribunal in his witness statement, in his evidence and in the various documents that he produced. Unfortunately, for the reasons I have attempted to explain to Mr Kirwan, the Employment Appeals Tribunal is simply unable to go behind the findings of fact made by the Employment Tribunal. We appreciate that it seems very harsh to Mr Kirwan, particularly as Mr Kirwan would say that he had put in nearly 30 years of service in the Avonmouth Docks, and had been involved in the trade union and with the pension scheme for a long time. But nonetheless, as I have said, we are bound by the findings of fact made by the Employment Tribunal, and we therefore are bound to say that the decision of the Employment Tribunal that there was no evidence of detriment suffered by Mr Kirwan, and that his dismissal is not related to any protected disclosure, cannot be challenged. In those circumstances this appeal must be dismissed.