United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M BARKLEM (of Counsel) Instructed by: Messrs Hay & Kilner Solicitors Merchant House 30 Cloth Market Newcastle Upon Tyne NE1 1EE
For the Respondent	MR A MELIA (Representative) Humane Resources Ltd 1 Dilston Road Durham DH1 5ND


 


SUMMARY

VICTIMISATION DISCRIMINATION

Protected disclosure

Dismissal for making a protected disclosure Employment Tribunal decision upheld.

Suffering a detriment for the same reason. Employment Tribunal decision inadequate and committed to a different decision for determination.


 


THE HONOURABLE MR JUSTICE WILKIE

1. This is an appeal by Network Rail Infrastructure Limited against decisions of the Employment Tribunal held at Carlisle on 12, 13 and 15 November 2007, in a reserve decision promulgated on 13 December 2007 in which the Tribunal unanimously concluded that the Claimant, Mr Glencross, had been automatically unfairly dismissed contrary to s103(A) and had suffered a detriment contrary to s47(B) of the Employment Rights Act 1996 for making a protected disclosure.
2. The grounds of appeal were set out in five numbered paragraphs on 14 February 2008 after the sift process conducted by HHJ Burke QC. The appeal was set down for a full hearing on all grounds in the Notice of Appeal, save for an allegation of bias in paragraph 5(b) of the grounds.
3. Mr Barklem, who has very helpfully made his submissions before us, has not sought to revive that particular ground. Instead he has focused on the last few paragraphs of the Tribunal's decision and has submitted that the reasoning in those paragraphs is so deficient that it either fails to amount to an adequate expression of reasons or, alternatively, demonstrates a fundamental misunderstanding of the facts and evidence, although he accepts that the legal approach identified by the Tribunal cannot be criticised as such. Those criticisms are made both in respect of the s103(A) decision and the s47(B) decision.
4. The Tribunal, at paragraph 10 of the Decision, set out in some 48 numbered sub-paragraphs the facts which they found and we will rehearse those briefly.
5. The Claimant, Mr Glencross, commenced employment in November 2001, having previously worked for another overhead line company. In 2002 he qualified as a "nominated person" who was responsible for issuing overhead line permits to the Controller of Site Safety. Normally this should involve a face-to-face briefing.
6. The focus of the decision said to be causative of the dismissal concerned a failure to comply with the safety procedures in relation to issuing an important form, form C. Normally that should be handed over only to the specific individual who is to be permitted to perform the necessary works. However, Mr Glencross had, on the occasion complained of, handed over multiple forms to one person who was then free to pass the multiple forms on to others. That is a delegation of authority which, according to the Respondent, can only occur in very limited circumstances which did not arise in the particular instance involved, although Mr Glencross' evidence was that it was a more common practice, and indeed he called evidence from his nephew about an incident in March 2005 involving multiple form Cs being issued.
7. The Tribunal was constrained, in our judgment, to make certain findings about an accident which took place on 7 March 2004 which Mr Glencross witnessed and in which a colleague of his, a Mr Taylor, was injured and had to be taken to hospital.
8. It was the evidence of both Mr Glencross and Mr Taylor, who gave evidence before the Tribunal, that their line manager, a Mr Armiger, had put pressure on them to give written statements which were false in that they asserted untruly that the correct equipment had been issued. They gave those false statements on 9 March 2004.
9. The Claimant, however, in reporting the accident to his union representative, a Mr Bond, who also gave evidence, gave the true version of events but asked his union representative not to mention him by name because he was afraid he would lose his job or be victimised. Mr Bond approached the Managing Director of the predecessor of the Respondent to ask for an amnesty to encourage individuals to come forward at that particular depot in relation to safety issues and there was a meeting at which that amnesty was offered which took place on 5 April 2004, just over a month after that accident, but no one came forward.
10. The Respondent conducted an accident investigation in which the false statements of Mr Glencross and Mr Taylor were used. When we say the Respondent we mean the predecessor of the Respondent because it was not until July 2004 that there was a transfer of the undertaking to the Respondent.
11. In June 2005 the Claimant was investigated in respect of an allegation that he had, contrary to safety directions, issued multiple form Cs. He accepted that he had done so. The manager who dealt with that complaint, a Mr Edwards, decided not to take any disciplinary action at all, even though there was a range of disciplinary sanctions running from reprimand through to dismissal, but he was made subject to some form of retraining.
12. In August 2005 the Claimant and Mr Taylor gave, in the context of litigation, truthful statements to Mr Taylor's solicitor about the 2004 accident. The solicitor then entered into correspondence with the Respondent, and in particular Mr Armiger, and the Claimant's evidence was that once it became apparent that a true and different account had been given by the Claimant his relationship with Mr Armiger deteriorated. Furthermore, in December 2005 Mr Edwards, the line manager, discovered from Mr Armiger that the Claimant and Mr Taylor were possibly going to change their statements concerning the accident. It was common ground that Mr Edwards had asked Mr Armiger to have a word with them about it and to explain to them that if they did not change their statements he may let sleeping dogs lie but that if they did change their statements they should be warned that they would be subject to disciplinary action for having given an initial false statement.
13. Matters were formalised on 22 December 2005. Mr Edwards wrote to the Claimant asking him to confirm the accuracy of his original statement or to correct and re-submit a new statement without delay. This was received by the Claimant on 12 January 2006. In the meantime the Claimant had submitted a new and truthful statement about the accident in a letter to Mr Edwards, which also included complaints about safety. The Claimant's evidence was that after he had submitted this new, truthful statement to Mr Edwards, "The whole game changed" and he also said, "Since submitting the statement on 12 January 2006 I have had three disciplinaries brought against me".
14. Those matters were as follows. On 20 January he was invited to an investigation meeting which took place on 25 January which concerned two matters. One was concerning a refusal to accept instructions on 30 December and another was a refusal to remain at work on 31 December despite an instruction to stay at work. Those two matters were first raised by the Respondent with the Claimant some three weeks after the events giving rise to them but within a matter of days of his having supplied Mr Edwards with the new, truthful statement in respect of the 2004 accident.
15. Indeed, the linkage between those two events and the change of statement was formalised because he was invited on 2 February to attend a disciplinary hearing to face three charges, the charges in relation to the 30 and 31 December matters already referred to and:

"That on 9 March 2004 you submitted a statement with regard to an incident which took place on the morning of 7 March 2004. Subsequently on 12 January 2006 you submitted a new statement in which you admit that you submitted a false statement to a formal enquiry into a safety related incident."

16. Prior to the disciplinary hearing taking place the third disciplinary matter referred to by the Claimant arose. There was an investigatory meeting on 30 January concerning an allegation that once again the Claimant had issued multiple form Cs, this time on 21 January 2006. The Claimant was not interviewed at that stage.
17. The disciplinary hearing in respect of the three linked matters went ahead on 2 February and at the end of it he was given a reprimand for the 30 December incident, a severe reprimand for the 31 December incident and was summarily dismissed for the offence of having made a false statement and then having made a corrective one in 2004 and 2005. Therefore he was summarily dismissed in respect of the matter which it was said constituted the protected disclosure.
18. The Claimant appealed against those disciplinary sanctions and specifically raised the fact that he had been pressured into making the original false statement by line management. It appears that that matter was considered in a rather unorthodox way in this sense that, pending the outcome of an investigation into the alleged harassment causing him to issue the original false statement and then being discouraged from changing it, his dismissal was suspended and he was suspended on full pay.
19. In due course, on 5 May 2006, following a disciplinary hearing held on 4 May 2006, the sanctions in relation to those three matters were changed. In relation to submitting a false statement to a formal safety investigation he was found guilty of the charge but because there was evidence of mitigating circumstances he was to receive a final written warning to remain on his file for 12 months.
20. In relation to charge 2 concerning the 30 December incident he received a severe reprimand and in relation to charge 3, the 31 December incident, he was found guilty and received a reprimand.
21. It will be remembered that the Claimant had been suspended from work on full pay pending the outcome of this disciplinary procedure. He returned to work on 5 May and on that very same day he was handed a letter informing him of the investigation into the second form C incident, the 21 January 2006 incident. Unsurprisingly, he was under considerable strain and receiving this particular further blow caused him to go to see his doctor, who signed him off work with stress.
22. He was then invited to a disciplinary hearing to take place on 18 July but that hearing was adjourned. There then followed an investigatory meeting on 20 July in which the Claimant participated, represented by his union representative, when he accepted that, in what he said was an extremely difficult situation, he had issued the multiple form Cs.
23. The disciplinary hearing was not resumed until 29 August 2006. Once again the way in which that happened was somewhat unusual. He was actually at work on that day, working on the track, when he was contacted by his supervisor to tell him that his disciplinary hearing was taking place that day. Apparently the Respondent had informed the union that the meeting was to take place on that day but had not contacted the Claimant. However, he nonetheless agreed to get the matter out of the way.
24. That disciplinary meeting was conducted by Mr Eley who was employed as the Maintenance Delivery Unit Manager at the Carlisle depot. He, after the hearing, decided summarily to dismiss the Claimant and a letter to that effect was sent the following day, 30 August.
25. There was before the Tribunal a fairly full note of the disciplinary hearing of 29 August. It is clear from that note that when Mr Eley was giving his decision to dismiss and the reason for it Mr Eley referred to the earlier incident of June 2005 in relation to issuing multiple form Cs and also referred to the incident in January 2006. Mr Eley in that disciplinary meeting did not mention having any knowledge of or having taken account of the matters, the subject of the three disciplinary decisions to which we have referred, the final decision being 5 May 2006.
26. The Claimant appealed against the sanction of dismissal. That was conducted by a Mr Halliwell on 6 September 2006. Mr Halliwell upheld the original decision and wrote to the Claimant accordingly on 7 September 2006.
27. The Tribunal found as a fact that at no point in the disciplinary process relating to the form Cs did the Claimant assert that he was being victimised or suffering a detriment because of having made protected disclosures. This issue was not raised until the claim was presented.
28. The Tribunal then reminded itself of the statutory provisions and also reminded itself of the proper approach, and in particular the moving or shifting burden of proof. It referred to what at that stage was the EAT decision in Kuzel v Roche Products Limited [2007] IRLR 309.
29. An issue had been raised by the Claimant whether the Respondent had been in breach of the statutory dismissal procedures but the Tribunal concluded that issue in the Respondent's favour.
30. They addressed the question whether the Claimant had made a protected disclosure in the form of the letter to Mr Edwards on 12 January 2006 and concluded that he had. They were satisfied that it had been made in good faith and that the Claimant had a reasonable belief that the disclosure tended to show that the health and safety of an individual had been, was being or was likely to be endangered. Plainly the truth of the Claimant's contention that he had been put under pressure initially to make a false statement and had been threatened with dismissal if he were to change it were findings which were relevant to the issue of good faith and the reasonableness of the belief, and we therefore reject the criticism made by Mr Barklem that the findings that they made about the accident and the making of the false statements and subsequently changing them were in any way irrelevant to their task. In our judgment they were plainly relevant.
31. In paragraph 17 they began to consider dismissal. They referred to the Kuzel guidelines, referred to the first step, which was that the Claimant had to raise a prima facie case by establishing that there was a real issue whether the reason put forward by the employer, namely dismissal for misconduct, was the true reason. They then, in the subsequent paragraphs, referred to a number of matters which they took into account and they rehearsed a number of matters upon which they had previously made findings of fact.
32. Mr Barklem, in his attack, focussed on paragraph 21 through to paragraph 25. In paragraph 21 they concluded, having referred to the previous paragraphs, that the Claimant had established a prima facie case that there was a real issue that the reason for dismissal put forward by the Respondent was not the real reason. No criticism is made by Mr Barklem of that conclusion or its reasoning.
33. They then say as follows:

"We then went on to consider whether the respondent had proved that the real reason for dismissal was misconduct and if not had 'disproved' the fact that the real reason for the dismissal was the protective disclosure."

Once again Mr Barklem does not criticise that as a summary statement of the processes which they then had to undergo.

34. The Tribunal start paragraph 22 in the following way:

"There was no direct evidence about this matter and we again looked at all the surrounding circumstances."

They then went on to state that in particular they considered the contrast between the treatment of the Claimant in respect of form C infringements before his disclosure and after his disclosure, highlighting the fact that in the first pre-disclosure incident no disciplinary action whatever was taken, whereas in respect of the second, post-disclosure, he was summarily dismissed for gross misconduct. They also noted that there had been other disciplinary matters which they had concluded all arose after the disclosure complained of. They point out that in the minutes of the disciplinary hearing Mr Eley made no mention of those other matters.

35. What they do not refer to, but what is in fact the case, is that in his witness statement before the Tribunal Mr Eley had in paragraph 15 indicated that he did have regard to other disciplinary matters. He specified the incidents of 30 December and 31 December. He referred specifically to the letter of 5 May 2006, that he was aware of the details of those safety incidents and took those failings into account in reaching his decision.
36. We observe that the letter of 5 May 2006 referred at charge 1 to the submission of the false statement to a formal safety investigation for which the Claimant had a final warning. That was not mentioned at all by Mr Eley in his disciplinary hearing.
37. The other matter that the Tribunal had regard to was the fact that the safety incident which gave rise to the dismissal occurred in January 2006 but was not acted upon until May 2006 and he was first informed of that matter on the day that he returned to work after a prior dismissal had been changed into a final written warning.
38. They also considered in paragraph 24 the fact that the Claimant had not come forward in response to the offer of an amnesty but recounted that the Claimant had said that he was genuinely frightened about making allegations for fear of reprisals.
39. They also had regard to the Respondent's submissions that at no stage had the Claimant raised the protected disclosure issue in the course of these disciplinary hearings in relation to the form C incident in January 2006. They concluded that that failure did not undermine his case as he may well not have considered or known about the possibility until he took advice.
40. In paragraph 25 of their decision they pulled these strings together and say as follows:

"For all these reasons, we conclude on the balance of probabilities that the principal reason for the claimant's dismissal was that he made a qualifying disclosure and the respondent has failed to disprove that this was the principal reason for his dismissal. We were aware, when reaching this conclusion that we were relying on 'circumstantial' evidence but we concluded it did satisfy the requirements of the burden of proof in civil cases."

41. Whilst Mr Barklem acknowledges that in assessing the truthfulness or otherwise of the evidence of Mr Eley and Mr Halliwell that the reason for dismissal by Mr Eley and the upholding of the dismissal by Mr Halliwell was misconduct and not protected disclosures, the Tribunal was entitled to look at the surrounding circumstances in order to see whether those accounts could be true. Mr Barklem criticises the Decision of the Tribunal because it makes no explicit finding that Mr Eley and/or Mr Halliwell's evidence in this respect was not accepted. Furthermore he criticises the Decision of the Tribunal for erroneously stating that there was no direct evidence as to what the real reason for the dismissal was because, as Mr Barklem rightly points out, there was direct evidence, namely the evidence of the takers of the respective decisions to dismiss and uphold that decision on appeal namely Mr Eley and Mr Halliwell.
42. We have to accept that in this respect the Decision of the Tribunal is not happily expressed. However, we have to look at the Decision read as a whole as Mr Melia, for the Respondent to the appeal, cogently pointed out. He read the judgment from front to back and he understood why the Respondent had lost the case.
43. In our judgment, looking at the Decision and reading it as a whole, not picking out particular phrases and submitting them to minute analysis, it is perfectly plain that the Tribunal has come to the conclusion that it did not accept the evidence of Mr Eley when he said that the real reason for dismissal was misconduct. The Tribunal plainly were entitled to have regard to the striking discrepancy in the treatment of the same misdemeanour before and after the disclosure; the fact that Mr Eley had been less than frank to the Claimant in identifying what informed his decision to dismiss at the disciplinary meeting as opposed to what he accepted in his Tribunal statement had informed his decision.
44. As to the timeframe between January 2006 when the form C incident occurred and May 2006, when it was first given expression as a disciplinary matter, in our judgment it is obvious, reading the Decision as a whole, that this Tribunal did not accept the evidence of Mr Eley and Mr Halliwell as having established on the balance of probabilities that the Respondent proved that the real reason for the dismissal was misconduct. That being so, and the Tribunal having been entitled to come to the view that the Claimant had raised a prima facie case that the real issue was not that put forward by the Respondent but the protected disclosure, then it necessarily followed that the Tribunal were entitled to conclude, on the balance of probabilities, that the principal reason for his dismissal was that he had made a qualifying disclosure.
45. In our judgment, whilst it cannot be said that the Decision is the fullest or the happiest expressed, it is nonetheless, in our judgment, adequate to explain to any fair-minded reader who reads the whole judgment why it was that the Claimant won, why it was that the Respondent lost, and to identify the approach on the legal issues which the Tribunal took.
46. Furthermore, in our judgment, having regard to the very high hurdle which has to be surmounted before a perversity challenge can be successfully sustained, we do not accept that this was in any way a perverse decision as far as the s103(A) case is concerned.
47. As we have indicated, Mr Barklem has not, in our judgment properly, made any significant criticism of the legal approach or the step-by-step approach, if the Decision read as a whole is to be read as involving them taking those steps. In our judgment therefore the appeal in respect of s103(A) must fail.
48. As far as the s47(B) claim is concerned, however, the reasoning of the Tribunal is, in our judgment, gravely deficient. The only place where, in respect of the s47(B) decision, the Tribunal identifies its approach is in paragraph 6 where they refer to a causal link between the disclosure and any detriment he may have suffered, and paragraph 26 of the Decision, the final paragraph, which in its entirety reads as follows:

"We were also satisfied that the way the disciplinary process in respect of the second Form C allegation was handled amounted to a detriment."

In our judgment that is wholly inadequate to identify to the parties what the Tribunal concluded was the detriment and in particular whether it concluded, and if so by what process of reasoning it concluded, that the detriment was by reason of or on the grounds of the protected disclosure.

49. Of course it is right to say that the whole of the preceding paragraphs would tend to suggest that the Tribunal was proceeding on a parallel course of reasoning to that which it had engaged in in relation to the dismissal, but in our judgment that is, in the absence of any explicit statement to that effect, a wholly inadequate basis for the parties to try to glean what the reasoning of the Tribunal was, and in any event it is wholly unsatisfactory if the Tribunal is to engage in a task of giving a remedy in respect of that particular complaint and it certainly does not give either of the parties any basis upon which to prepare for such a hearing.
50. Mr Melia has bravely suggested that that issue may be sent back to the Tribunal for them to clarify or amplify their reasons.
51. Mr Barklem has drawn our attention to the case of Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578 and in particular paragraph 46 where the Court of Appeal says:

"As Burton J recognised in Burns … there are dangers in asking the original tribunal for further reasons where the ground of appeal is inadequacy of reasoning. It will not be appropriate where the inadequacy of reasoning is on its face so fundamental that there is a real risk that supplementary reasons will be reconstructions of proper reasons, rather than the unexpressed actual reasons for the decision."

52. In our judgment it would be quite inappropriate, given the fundamental deficiency of the reasoning in relation to that particular claim, for the matter to be sent back to the same Tribunal for them to amplify and clarify its reasoning.
53. In our judgment the appeal in respect of the detriment claim must succeed.
54. The only order that we can make is that that particular claim should be remitted to a differently constituted Tribunal for them to consider that issue afresh. Whilst that is the only proper direction that we can give we would simply say this. The hearing has already taken place on three separate dates. Plainly much of the material, particularly the background material, is common to both the dismissal and the detriment claims. It is a little difficult to see how a hearing in respect of the detriment claims would be significantly shorter than the original hearing conducted by the Tribunal.
55. On any view the overwhelming importance of this claim is to be found in the challenge to the decision to dismiss. The detriments, such as we can glean them to be potentially, are de minimis by comparison. We would question, therefore, whether anyone with any sense of proportion or wisdom would seek to have a new Tribunal embark on a fresh hearing in relation to this particular issue, even though the order that we make is the order that we are obliged to make, and no doubt the parties will consider that carefully before taking that course.
56. As matters stand, however, the remedies hearing in respect of the dismissal, the automatic unfair dismissal conclusion, which we understand is fixed for 16 June, can undoubtedly go ahead.