United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SAM NEAMAN (Of Counsel) Instructed by: Ashby Cohen Solicitors Ltd 18 Hanover Street London W1S 1YN
For the Respondent	MS KAREN MOSS (Of Counsel) Instructed by: Messrs Curwens Solicitors Crossfield House Gladbeck Way Enfield Middlesex EN2 7HT


 


SUMMARY

UNFAIR DISMISSAL

Reason for dismissal including substantial other reason

PUBLIC INTEREST DISCLOSURE

In this whistleblowing case, the Claimant had an opportunity to refute an allegation of bad faith, which the Employment Tribunal upheld. Lucas v Chichester Diocesan Housing Assocition Ltd EAT/0713/04; Street v Derbyshire Unemployed Workers' Centre [2004] IRLR 167 applied. The Employment Tribunal upheld a catalogue of 20 acts of misconduct against her. It did not err when it held as matter of fact that the principal reason for her dismissal and her treatment was nothing to do with whistleblowing but was her gross misconduct.
 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the concept of bad faith in a whistleblowing claim. The Judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal by the Claimant in those proceedings against the reserved judgment of an Employment Tribunal sitting at Watford over six days and a day in Chambers between July and October 2005 (Chairman Mr N Mahoney) registered with undated reasons. The Claimant was represented by a Consultant and today by Mr Sam Neaman of Counsel. The Respondent was represented there and here by Ms Karen Moss of Counsel. In the early stages relevant to the filing of the Response it was represented by a consultant.
3. The Claimant claims she was a whistleblower who suffered detriment and later unfair dismissal for her actions. The Respondent contended that it dismissed her fairly for misconduct. It was not necessary for that point to be decided since the Claimant had less than the one year's service required by Section 111 of the Employment Rights Act to bring a claim of ordinary unfair dismissal. It denied that it subjected her to a detriment short of dismissal.

The issues

4. The essential issues as defined by the Employment Tribunal were these:

"2.1 Did the Claimant make qualifying disclosures on a number of 24 June 2004 and 30 July 2004 as set out below?

2.2 If so, were such disclosures made in a proper manner?

2.3 If so, was the principal reason for the Claimant's dismissal the Claimant had made the said protected disclosures?

2.4 Further, was the Claimant subjected to a detriment or detriments by the Respondent prior to her dismissal in respect of the following matters namely:

2.4.1 the complaint made by the Claimant to Mr Booth, the Respondent's Managing Director out non-compliance by staff of her request that the documentation in respect of staff required by the inspectors from the National Care Standards Commission be complied with by 9 January 2004;

2.4.2 the complaint 24 June 2004 from the Claimant to Mr Booth relating to alleged acts of misconduct committed Mrs Eze, a Staff Nurse employed by the Respondent; aid the fact that the Claimant was accountable to the Director of the Respondent; the Commission for Social Care Inspection ("CSCI"), aid other organisations; the continued failure of Mrs Eze to produce her documentation and Mrs Eze's failure to report an accident in the Accident Book properly;

2.4.3 the oral complaint by the Claimant to Mrs Furlong out her refusal to prepare rosters in accordance with the Claimant's instructions;

2.4.4 the complaint by the Claimant to Mr Booth contained hi a letter referring him to an incident in which Mrs Furlong, the deputy Matron, had refused to prepare the rosters in accordance with her instructions;

2.4.5 by reason of the Claimant requiring Mrs Eze to provide a risk assessment after a service user (Ellen) had had a fall and been seen on the floor

2.4.6 by failing to deal with the Claimant's concerns about the bruise incurred by a service user (Ellen) about which she became aware on 16 April 2004;

2.4.7 by reason of the complaint made by the Claimant to Mr Hastings of the Care Standards Authority dated 16 April 2004 drawing his attention to alleged poor treatment of a service user and copying this letter to Mr Booth, Miss Sue Smith of the Adult Protection Agency and Mr Dagnew, the Haringey Duty Social Worker concerned with the case;

2.4.8 by reason of the Claimant complaining about non-compliance with fire testing arrangements to Mr Booth on 22 July 2004 who allegedly failed to do anything about her complaint and/or to follow appropriate procedures for fire safety himself after being provided with the procedures by the Fire lnspecting Officers;

2.4.9 by reason of the matters sat out in a letter of complaint from the Claimant to Mr Booth dated 30 July 2004 raising concerns about potentially unlawful acts committed by the Respondent or its staff."

Paras 2.4.5-7 are "the Ellen disclosures". The Tribunal decided that the Claimant was dismissed for a catalogue of misconduct and was neither dismissed nor subjected to a detriment by reason of her whistleblowing. .

5. She appeals. Directions sending this appeal to a Full Hearing were given at a Preliminary Hearing by Burton J and Members A large number of allegations was dismissed, including serious allegations of apparent bias against the Chairman. Measures were taken to seek additional reasons from the Employment Tribunal and only one issue was identified as appropriate for this Full Hearing. It is the following: "Had the allegation of bad faith found by the Employment Tribunal been made explicit in advance I would have been able to rebut it".

The law

6. The relevant provisions of the legislation are not in dispute. The Employment Rights Act 1996 provides in Sections 43A – 47B a regime to protect from detriment those people who make disclosures in the public interest. A qualifying disclosure is one which meets the terms of the Act and it is unlawful to subject a person to a detriment for making such a protected disclosure. It is also unlawful to dismiss an employee contrary to Section 103A if the reason or the principal reason for the dismissal is that the employee made such a disclosure.
7. So far as is relevant to the only issue in this appeal, a disclosure will not be protected unless it is made in good faith. It is common ground that the law is accurately set out in the judgment of the EAT which I gave with members in Lucas v Chichester Diocesan Housing Assocition Ltd EAT/0713/04 and it says this:

"…an Employment Tribunal must consider all the evidence and decide for itself whether the dominant or predominant motive is an ulterior one in which case it will not attract the protection. As in all cases where improper motivation is alleged, it should be made explicit in advance, and it should be put squarely to the Claimant. In a case like this the chronology of events and the impression given by a witness are very important."

Nor is it disputed that the application of these sections is as determined by the Court of Appeal in Street v Derbyshire Unemployed Workers' Centre [2004] IRLR 167 and disclosure will not be made in good faith if an ulterior motive was the dominant or predominant purpose of making it. Further still, there is no dispute as to the correctness of the Tribunal's self direction in relation to unfair dismissal for whistleblowing which is:

"9.8 In order for the Claimant to establish liability under S103A, she must establish on the balance of probabilities that the reason (or if more than one, the principal reason) for dismissal was because she made the protected disclosure."

The Tribunal directed itself by reference to the relevant provisions and what we hold to be the leading authority cited in its reasons. We are happy to see that not only is there no dispute as to the legal principles but the parties seek to uphold the judgment in Lucas as correctly made.

The facts

8. We have set out only the facts as are necessary for the determination of this issue, so many of them having fallen away in earlier stages of this appeal. The parties were introduced by the Tribunal as follows:

"5.1 The Respondent operates a registered home for old people needing nursing care and accommodation, the Rembank Nursing Home ("Fembank") with a capacity of 34 residents, although normally there would only be approximately 31 residents at any one time. The Respondent employs 47 full-time and part-time staff.

5.2 The Claimant is an experienced registered general nurse with a long history of employment in nursing homes and has a certificate in respect of genetic management."

The actors in this drama are Mr Booth, the Managing Director of the Respondent who sadly died between the presentation of his oral evidence in chief and the resumed hearing and so could not be cross-examined on it. Mrs Eze is a registered general nurse and sister in charge of the night shift. Ms Bhatia also a registered general nurse and Ms Sarah Mead, receptionist gave relevant evidence

9. . The Claimant was appointed on 17 September 2003 but already by December 2003 the relationship was deteriorating and continued to deteriorate with other members of staff by January 2004. An incident occurred in July 2004 involving a resident known as Ellen. The Employment Tribunal focussed on this event and made the following findings:

"5.25 The facts that the Tribunal finds to be true are that on the night of 10/11 July 2004 Ellen fell out of her chair onto her backside when she wanted to go to the toilet or to bed after having been given a sleeping pill. A nurse helped her up very soon afterwards. No injury was caused to her arm at the time. She then went to bed normally and slept through the night. Therefore no record was required in the record of daily care (page 69) because nothing unusual had occurred.

5.26 The Tribunal is further satisfied that the Claimant invented an alleged injury to Ellen, namely bruising to her right upper arm, as a malicious act against Nurse Eze with a view to getting her dismissed by the Respondent What the Claimant did was to approach. Ellen and force her to write down an account of what 1ai taken place, which Ellen did not wish to record. That written down on a document page 64, in Ellen's, writing which (quoting directly) real as follows:-

"Two nights ago, someone gave me a sleeping tablet before I went to bed. I sat on a chair for a while, 1 tried to get up to go to the loo and my backside slipped down to the floor, I wasn't hurt But the lifting vas far worse, I was pulled by one arm a little kindness, help at a time like that It was a night nurse she was wearing dark blue uniform.."

5.27 On 14 July, Miss Mead was having a chat with Ellen about taking part in activities programme. During the conversation Ellen told her that the fall she had had aid that the Claimant had forced her to write everything. Ellen told Miss Mead that she did not wait it written but that the Claimant had forced her to do so aid had said that she had to.

528 Further, Dr. Durden had attended Ellen at the nursing home on 12 July 2004 of problems to her breathing. He did not look for or see any bruising because Ellen mentioned no problem in this regard. Her concern about being moved into a hospice for her last few days. On 13 July 2004 Nurse Bhatia went to attend her at about 6.30. Ellen started to cry aid said to her that Matron 1a1 male her write the letter. She said, 'She made me do it. She made me. She kept on and on. So I wrote it. Then she said, 1 don't think she likes this nurse". She said her name was Chi Chi and was wearing a dark blue.dress. (A contemporaneous attendance note in the hand writing of Nurse Bhatia to this effect appeared at page 67A of the bundle but this document was not disclosed until very late in the day. However, the Tribunal is satisfied that the evidence from Nurse Bhatia true and that this was the conversation that took place between her and Ellen on that date).

5.29 Also on 13 July 2004 Mr Booth received a telephone call from Dr. Pelendrides, Dr Durden's partner in the medical practice which served Fembank. She informed Mr Mead that the CIaimant been extremely offensive to one of the practice doctors, Dr Jolic, and that as a result a practice meeting would be taking place shorlly to discuss discontinuing their service with Fembank.

5.30 On the following day Nurse Bhatia handed Mr Booth the document which appears at 67A.

5.31 On 15 July, Chi Chi handed to Mr Booth a copy of a letter dated 13 July (pages 65 to 66) which she was proposing to hand to the Claimant regarding allegations the Claimant had made against her regarding Ellen."

As a result of various complaints the Claimant was disciplined. The Tribunal summarised them as 'a catalogue of misconduct'; there must be 20 including the Ellen incident. The Tribunal made a finding that the complaints were true and further that they were acts of misconduct. All of them amounted to gross misconduct. The Claimant was dismissed. She appealed and failed.

10. The Tribunal then went on to consider against those facts the matters set out in para 2.4 of its list of issues (para 4 above). These nine matters said to be the reason for subjecting the Claimant to detriment there can be divided into three parts. The Tribunal decided that one of them was a qualified protected disclosure. This was in January 2004. It held that the Claimant was not subjected to any detriment as a result. No point seems to have been taken by either side that the point may have been out of time anyway.
11. That was a finding in her favour. She continued to be employed. Five other matters were found by the Employment Tribunal to be disclosures but not to be protected. In respect of six of the foregoing it was held by the Tribunal that they were disclosures made in good faith. Of the five post January 2004, all of them were dismissed for reasons variously critical of the Claimant's representative for failing properly to organise the approach to them. But it is notable that in one respect (this is 2.4.8 in paragraph 4 above) the Tribunal found the Claimant to have made a disclosure without any reasonable belief and that her conduct was totally irrational.
12. Of the remaining three matters the Tribunal said this:

"12 The Tribunal concludes that none of the Claimant's disclosures in respect of Ellen were made in good faith (paragraph 2.4.5, 2.4.6 and 2.4.7 of the List of Issues). The Tribunal concludes that these were malicious acts by the Claimant to further her vindictive campaign against Nurse Eze."

13. The upshot on the two claims advanced by the Claimant, that is detriment and dismissal, was this:

"14 The principal reason for the Claimant's dismissal was a catalogue of misconduct on her part set out in detail in the Tribunal's findings of fact. The principal reason for her dismissal was not because she had made any protected disclosures. It was because of her misconduct.

15 Further on its findings of fact as set out above the Tribunal does not consider the Claimant was subjected to any detriment or detriments for making protected disclosures by the Respondent prior to her dismissal."

The Claimant's case

14. The Claimant submitted on appeal that the allegation of bad faith in relation to the Ellen incident had been put only in cross-examination of her at the Tribunal and thus fell foul of the Lucas test which is to make such issues known in advance and to be put squarely to her. It was also submitted that the way in which bad faith was alleged in the response of the Respondent changed by the time of the trial. Even if it could be said that the matter was vouchsafed to the Claimant by the disclosure, five days in advance, of a witness statement from Mr Booth this was not sufficiently in advance to qualify under the Lucas test. In the light of that it is not possible to say with certainty that there was no contamination of the Tribunal's finding which we have described and cited from paragraph 14 of its reasons.

The Respondent's case

15. On behalf of the Respondent, it is contended that there is no factual basis for this assertion. The Lucas test is passed for the allegation was put in advance. There is no obligation to disclose, in what are usually but erroneously call pleadings in an Employment Tribunal, more than the allegation or to descend into the evidence. This case could be distinguished from Lucas, where the allegation of bad faith was made only on the closing submissions and there really was no opportunity to rebut, which is the essential purpose of the Lucas test. In any event, the fallback position of the Respondent is that the dismissal finding is plain and clear. The principal reason for the dismissal cannot be said to have been whistleblowing.

Discussion and conclusions

16. We prefer the arguments of the Respondent and have decided that the appeal should be dismissed.

The Lucas point

17. As a matter of fact the point about bad faith was made by the Respondent well in advance of the hearing. It is said in its response form that " … the Claimant did not make her alleged disclosures in good faith". It is true that in the next sentence there is a reference to the Claimant not having twelve months' service, and that that is the reason why she raised the public interest disclosure point. Nevertheless we hold that the Claimant was put on notice that she would have to defend an allegation of bad faith and it is common ground that that has to be made by the Respondent.
18. In any event, the materials relevant to this allegation were disclosed in the evidence which was exchanged pursuant to standard directions prior to what was to be a hearing in March 2005 when evidence of several of the junior witnesses in the case was sent. The evidence of Mr Booth, however, was not sent until 20 July ahead of the hearing on 25 July 2005. In it he said this:

"…I considered that Ellen's [Miss H's] statement appeared to have been obtained against her will. … I came to the conclusion that there had been no abuse, and that Mrs Roberts' motivation was vindictive, aiming at causing difficulties for Nurse Eze [Nurse Chi Chi] and aiming to undermine my authority as Director and owner of the home. I therefore found this to be an act of gross misconduct.

… based upon the above incidents, I had no choice but to terminate Mrs Roberts' contract of employment. I considered the above acts, some of which were acts of misconduct, and others of gross misconduct. I finally decided to dismiss her on the grounds of misconduct rather than gross misconduct."

19. In considering the notes taken by the Chairman, a member of the Tribunal and Counsel for the Respondent and having examined the evidence which was put, we are firmly of the view that there was proper cross-examination on the issue of bad faith which the Respondent had to make good. An opportunity was therefore given, as foreshadowed by the pre-hearing documents, for the Claimant to refute the allegation. Indeed, there was actual rebuttal in its legal sense. Following the Claimant's evidence and the commencement of the Respondent's evidence when allegations were made, the Claimant was recalled and gave rebuttal evidence. Thus the vice in Lucas was entirely avoided. There was disclosure in advance of the allegation of bad faith and there was an opportunity provided to the Claimant to fight back

The fallback position

20. In any event the Tribunal made firm findings in its paragraph 14 It must be borne in mind that the Claimant succeeded in part on several of her allegations. She made a protected disclosure in January 2004. She made disclosures which were not made in bad faith and she made disclosures which we take it were not totally irrational and unreasonable in respect of others.
21. It must be borne in mind too that the point of this case was to prove that the Claimant's dismissal was principally for whistleblowing. Any examination of the history of this very short relationship shows that there was a gross deterioration in it and that the Claimant was as found by the Tribunal fairly convicted of gross misconduct. The Tribunal uses the word catalogue of the 20 complaints made against the Claimant and upheld by the Respondent and the Tribunal. Only one of them relates to the Ellen incident. It could not be said that the principal reason for the dismissal was the Ellen incident and that is what is required by Section 103A. Indeed Mr Neaman shrinks from making that contention simply relying upon the possibility that there is contamination as to which we have to say that there is none. That is not enough. Of the 20 allegations found to be true and misconduct, it cannot be said in any sense that the Ellen incident constitutes the principal one. Its conclusion on law having examined all the facts is one which cannot be interfered with.
22. The Tribunal sets out in its reason the distinction between those findings which it upholds and those which it rejects. It bears in mind that it has upheld the finding in her favour on a protected disclosure but that was not the reason for her dismissal nor we hold was the Ellen incident wrongly miscategorised as not been protected. The same goes for the detriment. Although it is in respect of a detriment that the finding in her favour is made, no point is taken about that.
23. It is not strictly necessary for us to have made findings on the second (fallback) point since we found in favour of the Respondent on the first. For both those reasons this appeal will be dismissed. We very much wish to thank both Mr Neaman and Ms Moss for their helpful submissions.