United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P OLDHAM (of Counsel) Instructed by: Sharon Langridge Employment Lawyer Milburn House Dean Street Newcastle upon Tyne NE1 1LE
For the Respondent	MR M HAY (of Counsel) Instructed by: Messrs Thompsons Solicitors The St Nicholas Building St Nicholas Street Newcastle upon Tyne NE1 TH


 


SUMMARY

VICTIMISATION DISCRIMINATION: Whistleblowing / Protected disclosure

Employment Tribunal did not go beyond the remit directed by the Employment Appeal Tribunal in further considering the Claimant's claims after remission to it further consideration by the Employment Appeal Tribunal.

THE HONOURABLE MR JUSTICE WILKIE

1. This is an appeal by Redcar and Cleveland Borough Council against a decision of the Employment Tribunal held at Newcastle-upon-Tyne, most recently on 26 September 2007, that the Claimant, Mrs Scanlon, was victimised contrary to section 4 of the Sex Discrimination Act 1975 by disciplinary action taken against her and, ultimately, by being dismissed by reason that she made a protected disclosure in March 2003 alleging a breach of the Sex Discrimination Act; and that she was unfairly dismissed contrary to s103A of the Employment Rights Act 1996, the principle reason for her dismissal being that she made a protected disclosure in March 2003 already referred to.
2. This case comes before the Employment Appeal Tribunal for the second time. There had been a decision of the same Employment Tribunal after a lengthy hearing during 2005-2006 which, amongst other decisions, came to the same conclusions on victimisation and unfair dismissal under s103A.
3. That decision was the subject of a successful appeal to the Employment Appeal Tribunal. It was successful on two grounds, the first being that the Tribunal, in its original decision, had failed adequately to direct itself on the true nature of the causal link required to be established between the conduct complained of and the making of the protected disclosure and, in particular, its failure to identify in relation to the victimisation claim whether the less favourable treatment was by reason of the protected disclosure and, in relation to section 103A, whether the reason or, if more than one, the principal reason, was that the employee had made a protected disclosure.
4. The second basis upon which the appeal was upheld was that although the Tribunal had made many findings of fact in its reasoning leading to its conclusion, it had focused on the conduct of a Mr Richardson who was the Director of Finance of the then Appellant, a person who had been involved in instigating disciplinary processes against the Claimant but not the person who had taken the decision to dismiss her, that being a Mr Moore, the Chief Executive of the Appellant. By failing to focus on the reason for Mr Moore's decision to dismiss, the Tribunal had misdirected itself in law.
5. The EAT, on that occasion, given that there were only two discrete issues to be determined and on the basis that no further evidence was required, remitted the question to the same Tribunal to apply its mind carefully on the linked issues of the test of causation and the role of Mr Moore on the basis of the facts found by it in the course of its initial hearing. Accordingly, the remitted hearing of the matter was conducted on a single day with the benefit of legal submissions by the parties but without any new evidence having been presented.
6. The Tribunal, in its decision, sensibly, in our judgment, did not simply set out as a matter of rote all the findings of fact it had made on the first occasion but, rather, in its narrative referred extensively throughout to the particular paragraphs in its original decision which established the facts which it was, at that stage, considering.
7. Unsurprisingly, in the light of the terms of the Employment Tribunal's decision, it started out by setting out at some length and in a way which has not given rise to any criticism, not only the statutory provisions but also the leading authorities on the correct approach both as to what is mean by the phrase "by reason that" in s4 of the Sex Discrimination Act 1975 where they cited the leading case of the Chief Constable of West Yorkshire v Khan [2001] IRLR 830 HL but also in relation to the shifting burden of proof in such cases by reference to the then decision of the Employment Appeal Tribunal in Dr R Kuzel v Roche Products Ltd (UKEAT/0516/06), a decision in which the approach taken has subsequently been approved by the Court of Appeal.
8. Notwithstanding the fact that they did so, the first Ground of Appeal is that it is said that the Employment Tribunal, nonetheless, failed to apply the correct causation test. The Tribunal concluded that, having had regard to the role of Mr Moore and standing, the previous findings of fact, that the two claims of automatic unfair dismissal and victimisation were well established.
9. Mr Oldham has focused his submissions in respect of that ground on paragraph 38 of the Tribunal's decision which addresses the victimisation claim but which also informs its reasoning in relation to the s103A claim and we think it right to set that paragraph out in its entirety:

"We would return to the preamble to our conclusions J33 which were as follows:-

'The Tribunal has concluded that the key event in this story is the claimant's letter of 16 March 2003 in which she complained about the conduct of Mr Richardson.'

From the inception the Tribunal identified it was that letter that led to the claimant's dismissal. Of course the claimant did not realise at the time when she made the accusations against Mr Richardson that Mr Richardson had been acting with the full approval and concurrence of Mr Moore. We have no doubt that that is the reason that ultimately led to the dismissal and it explains the conduct of Mr Moore throughout the disciplinary process. Unwittingly the claimant had challenged Mr Moore's authority by challenging Mr Richardson. That we believe is established on the facts before us, particularly given the respondent's failure to prove otherwise. Therefore, the Tribunal has concluded that the disciplinary process ending with the claimant's dismissal was an act of victimisation that relates back to her whistleblowing complaint of 16 March. We find that the victimisation was by reason of that complaint. In that regard we applied the test of Lord Nichols and Lord Scott. Why did the alleged discriminator act as he did? What consciously or unconsciously was his reason? In identifying the motive for the treatment complained of, we are satisfied as we originally found, that the cause of that was the claimant's whistleblowing complaint alleging sex discrimination in her letter of 16 March 2003 and that that was a matter within the contemplation of Mr Moore."

10. Mr Oldham argues that, particularly in the first part of that paragraph, the Tribunal is persisting in the error which it displayed on the first occasion in treating the process leading up to the dismissal as a chain of causation, the first link in which was the making of the protected disclosure, the last in which was the dismissal and, because there is an unbroken chain of causation in the "but for" sense, therefore concluding that the statutory complaint of victimisation and, by parity of reasoning, automatic unfair dismissal under s103A is established.
11. We would agree that, had the paragraph concluded about half way through, this complaint would have had some merit because it is, undoubtedly, the case that what they are describing is the process beginning with that complaint and ending with her dismissal.
12. However, the Tribunal reminded themselves specifically of the terms of the statute, namely whether the victimisation was "by reason of" that complaint. They adopted the approach identified in the House of Lords in the Khan case, addressed the question why did the discriminator, that is to say, Mr Moore, act as he did? What consciously or unconsciously was his reason? Trying to identify his motive, they then concluded that the cause was the whistle-blowing complaint, a matter of which Mr Moore was well aware.
13. In our judgment, there is nothing in that latter part which does other than apply the statutory test as explained in the authorities in a perfectly proper way. What they were focusing on was the conduct of Mr Moore in discriminating against her and they were reminding themselves that what they had to do was consider what was his reason for dismissing her. They concluded that it was the fact that she had blown the whistle and that that was a sufficient causal basis for a finding both of victimisation and of an automatic unfair dismissal under ss103A.
14. Despite the ingenuity of the argument, in our judgment this Ground of Appeal really is of no merit.
15. The second and third grounds of appeal are, in a sense, interlinked. The second ground of appeal is that the Tribunal has, impermissibly, gone beyond the task which the EAT set it when it remitted the case for further consideration on the basis of the facts found. Mr Oldham, rightly, refers us to the decision of the Court of Appeal in Aparau v Iceland Frozen Foods [2000] IRLR 196 where it was made clear that where a case is remitted by the EAT to the Tribunal for limited purposes, the Tribunal has no jurisdiction to make decisions outside the extent of that remission.
16. What Mr Oldham says is that in a number of places the Tribunal has strayed beyond the terms of that remission. They have not limited themselves to the findings of fact which they had originally made but have made certain findings of secondary fact against Mr Moore and that that goes beyond the ambit of the remission. He focuses on certain findings of fact as he sees them. The first was that, in paragraph 16, it is said by the Tribunal that Mr Moore clearly attempted to mislead the Tribunal as to the true course of events in connection with the appointment of a Ms Kavanagh which the Claimant said drove a coach and horses through the Equal Opportunities policy and a complaint about which constituted the protected disclosure.
17. He also says that, at paragraph 25, when dealing with the fact that Mr Moore was the person who had dealt directly with certain disciplinary matters which had been initiated by somebody acting under Mr Richardson, and the fact that Mr Moore saw those disciplinary matters right through to the end, to the point of denying Mrs Scanlon an appeal because it was the Chief Executive who had dismissed her, the Tribunal concluded at the end of paragraph 25 that the only reason which seemed credible for this conduct was that he, Mr Moore, had been centrally involved in the decision to appoint Ms Kavanagh and, therefore, the Claimant was challenging his authority as Chief Executive.
18. Mr Oldham also criticises, paragraph 29, dealing with certain unsatisfactory aspects of the disciplinary proceedings, where Mr Moore was directly involved, which involved the adding, the dropping and then the substituting of certain disciplinary charges or circumstances by Mr Moore or on his instructions. He says that the conclusion of the Tribunal that, "the sequence of events strategy" suggests an absence of good faith on the part of Mr Moore went beyond the remit given to the Employment Tribunal by the EAT.
19. At paragraph 34, Mr Oldham criticises the Tribunal for concluding that the entire weight of the evidence in this case shows that Mr Moore was involved from the beginning to the end and, in paragraph 35, their conclusion that the blowing of the whistle by Mrs Scanlon was a very real challenge to the authority of Mr Moore and Mr Richardson which would have involved a very public climb-down.
20. At paragraph 37, where they come to the following conclusion:

"Our findings of fact show, very clearly, that there was no such justification [argued for by Mr Moore] and the respondent's conduct at the time showed that they knew they were breaking policies and were trying to cover up that fact."

Mr Oldham says that the Tribunal was, in effect, embarked upon an illegitimate exercise, namely, making secondary findings of fact whereas it was only tasked by the Employment Appeal Tribunal to consider whether Mr Moore had in his mind the whistleblowing activities of Mrs Scanlon as the principal reason for his decision to dismiss her. He says that these matters involve the Tribunal illegitimately straying into a new series of findings of fact in order to support the conclusion to which they came.

21. The Tribunal, in drawing these secondary findings of fact, or inferential findings of fact, from their primary findings of fact, have continuously and conscientiously throughout their second decision rooted those secondary findings of fact in prior primary findings of fact which they have identified by paragraph number. In particular, in relation to Mr Moore, in the original decision there were a very large number of findings of fact as to his conduct and its shortcomings both at the time and in relation to the evidence which he gave.
22. In our judgment, the submission which Mr Oldham makes, which is a fundamental one, is misconceived. One of the tasks for the Tribunal was to consider the conduct of Mr Moore in dismissing Mrs Scanlon applying the correct test of causation in the light of the primary findings of fact that they had already reached.
23. In our judgment that, necessarily, involved them looking at the role of Mr Moore as they had found it to be by their primary findings of fact and, where necessary, in order to consider his role and what went through his mind, to draw inferences from those primary findings of fact. In seeking to explain why it was that they considered that Mr Moore had dismissed Mrs Scanlon by a reason of her whistleblowing, it was necessary for them to reveal the thought processes by which they came to that decision and that, necessarily, involved them revealing the inferences which they saw fit to draw from the primary findings of fact they had already made.
24. Mr Oldham has not satisfied us that any of the inferences of fact which they drew were anything other than rooted, entirely properly, in the primary findings of fact which they were constrained by the remission of the EAT to regard as the factual parameter of the exercise they were undertaking.
25. In our judgment, there was nothing whatever in the thought processes which they revealed, which all related to the task that they were asked to undertake, which shows them going beyond that task and embarking afresh on a new fact-finding exercise. Each and every one of the conclusions to which they came was based upon ample primary findings of fact and, although no doubt disappointing to the Appellant, it cannot be said that they erred in law or acted outside the authority that the EAT had given them.
26. We indicated that the third ground was, in a sense, linked to the second ground because what the third ground says of the Tribunal is that it did not genuinely reason afresh its consideration of the role of Mr Moore and the reason for his actions but the terms of the decision reveal that they felt unduly wedded to the first decision. In particular, Mr Oldham focuses on certain of the passages in paragraph 38 where they refer to the inception of the story being the protected disclosure letter of 16 March 2003, and being what led, eventually, to the dismissal, that being the key event in this story.
27. In our judgment, that paragraph does not demonstrate an undue attachment to a version of events which they had already reached and to which they were impermissibly attached. On the contrary, it seems to us that what the Tribunal was doing was consistent with the terms of the remission, namely, to take as read their primary findings of fact. The primary findings of fact had been that the protected disclosure made by Mrs Scanlon had set in train a process of events in which Mr Richardson was primarily involved, in which Mr Moore was involved at the end, and which resulted in her dismissal.
28. They had concluded that there was such a chain from A to B. The reason they had erred was that they had posited the wrong test as to what was necessary for the dismissal to be by reason of the chain of causation and they had failed to focus at all on the role of Mr Moore. But they had to accept, as part of the factual matrix, the fact that there was such a chain of causation with a certain start point and a certain end point.
29. In our judgment they were by no means illegitimately regarding that chain of events as being the factual matrix within which they had to consider the matters which were remitted to it and they successfully separated that chain of events from their specific and detailed consideration of the role of Mr Moore and what they concluded had operated on his mind in dismissing Mrs Scanlon.
30. Therefore, in our judgment, this ground of appeal is misconceived and must fail.
31. The final ground of appeal is that it is said that the Tribunal failed to deal objectively with the issues of fact and law. It is said that, by making new, unheralded and serious findings against Mr Moore and by failing to reason afresh, the Employment Tribunal gave the impression of failing to deal objectively with the factual and legal issues.
32. In support of that proposition is cited the Court of Appeal decision in Co-operative Group (CWS) Ltd v International Computers Ltd [2003] APP LR 12/19 reported in Times Law Reports, 19 January 2004. In our judgment, the facts of that case are a very long way removed from this and, in truth, this is really a re-jigging of the second and third grounds of Appeal which we have already considered and found wanting.
33. In our judgment, given the limited remit of the Tribunal from the Employment Appeal Tribunal, it is manifest that it went about its task conscientiously and appropriately, did not go beyond its remitted task, came to conclusions which were manifestly open to it on the findings of fact that they had already made and did not err in law either in the test that they applied or in the way that they approached the exercise.
34. Therefore, notwithstanding the best efforts of Mr Oldham, we dismiss this appeal.