United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS D MASTERS (of Counsel) Instructed by: Messrs Harpers Solicitors 75 Gray's Inn Road London WC1X 8US
For the Respondent	MR B BURGHER (of Counsel) Instructed by: Messrs Devonshire Solicitors Salisbury House London Wall London EC2M 5QY


 


SUMMARY

UNFAIR DISMISSAL: Automatically unfair reasons

PRACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke

The employee claimed that she had been dismissed for making protected disclosures and that her dismissal was unfair under s98A(1) and 98(4) of the Employment Rights Act 1996 (ERA). She failed on protected disclosure; the dismissal was unfair under s98A(1) but if a proper procedure had been followed, she would have been dismissed fairly for misconduct; she was entitled to a basic award. On appeal held:-

1. The Employment Tribunal's conclusion that the employee did not reasonably believe in the truth of the information disclosed was not reached in error of law, it had correctly applied – Darnton and Babula.
2. There was no perversity.
3. Although the Employment Tribunal had originally failed to address disclosures to the employers as opposed to disclosures to outside recipients (a) the answers given by the Employment Tribunal to questions under the Burns/Barke procedure were sufficient (b) although one of the members went too far, in error of law, he was only 1 of 3 and his comments had no higher status than that of a dissent.

Observations on the use of the expression "we are driven to the conclusion"; it states no more than the fact finder's view of the strength of the evidence.


 


HIS HONOUR JUDGE BURKE QC

The history

4. This is an appeal by Miss Muchesa against the dismissal by the Employment Tribunal, sitting at London South and chaired by Mrs Spencer with Mr Reid and Miss Brown as lay members, of her claims against her employers, Central and Cecil Housing Care Support ("CCHS"), by a judgment sent to the parties on 5 February 2007.
5. The appeal was originally rejected at the sift stage of the Employment Appeal Tribunal's procedure; however Miss Muchesa sought an oral hearing under Rule 3(10) of the Employment Appeal Tribunal Rules which was successful; His Honour Judge Ansell, on 23 August 2007, permitted her appeal to proceed to a full hearing. He also asked the members of the Employment Tribunal to answer two questions to which we will refer in detail later in this judgment. As a result of the Tribunal's responses to those questions permission was sought on behalf of Miss Muchesa to add, by amendment, a further ground to the Notice of Appeal. CCHS objected to that amendment. At the outset of the hearing of the appeal before us, we heard argument from Ms Masters on behalf of Miss Muchesa and Mr Burgher on behalf of CCHS on this issue. It became clear that the sensible course was to hear the arguments upon the further ground provisionally and to give our decision on the application for permission to amend in this judgment; and we shall do so below at the appropriate place.
6. Miss Muchesa's claims were that (1) she had been unfairly and wrongfully dismissed by CCHS on 28 April 2006 (2) she had been subjected to a detriment other than dismissal, contrary to s47B of the Employment Rights Act 1996 (3) CCHS had made unauthorised deductions from her pay and (4) CCHS owed her unpaid holiday pay. The fourth of these claims was resolved by agreement during the course of the Tribunal's hearing.
7. The unfair dismissal claim was put in three separate ways, namely:

1. The dismissal was automatically unfair pursuant to s103A of the 1996 Act because the reason or principal reason for the dismissal was that Miss Muchesa had made protected disclosures.

2. The dismissal was automatically unfair pursuant to s98A(1) of the 1996 Act because CCHS had failed to comply with the statutory dismissal and disciplinary procedures set out in Part 1 of Schedule 2 of the Employment Act 2002.

3. The dismissal was unfair pursuant to s98(4) of the 1996 Act.

8. The Tribunal's conclusions upon the unfair dismissal claims were, in summary, as follows:

1. The dismissal was not unfair pursuant to s103A because the disclosures on which Miss Muchesa relied were not made in good faith and Miss Muchesa did not reasonably believe them to be true (paragraphs 55 – 58).

2. The dismissal was automatically unfair pursuant to s98A(1) because the charges of misconduct set out in the letters sent to Miss Muchesa before the disciplinary hearing after which she was dismissed did not satisfy the requirements of step 2 of the statutory dismissal and disciplinary procedure; but, had that step been complied with, the outcome of the disciplinary hearing would have been the same; Miss Muchesa had suffered no loss by reason of the procedural failure and was entitled to no compensatory award. She was however entitled to a basic award of 4 weeks' pay (paragraphs 59 – 64 and 68).

3. The reason or principal reason for the dismissal was Miss Muchesa's misconduct; the dismissal fell within the bound of reasonable responses and was not unfair pursuant to s98(4) (paragraphs 65 – 67).

9. The detriment short of dismissal claim failed on the basis that there had been no protected disclosure (paragraph 58). The Tribunal found that there had been no unlawful deduction of pay (paragraph 71).
10. By this appeal Miss Muchesa challenges only the Tribunal's decisions on the protected disclosure issues.

The grounds of appeal

11. There are, if the ground sought to be raised by the proposed amendment to the Notice of Appeal is included, five grounds of appeal. They are:

1. The Tribunal failed to consider all of the acts which, on behalf of Miss Muchesa, were put forward as constituting protected disclosure.

2. The Tribunal misdirected themselves as to the meaning of reasonable belief in s43G(1)(b) of the 1996 Act.

3. The Tribunal's conclusions that a report by the Council for Social Care Inspection ("CSCI") of 23 June 2005 did not support Miss Muchesa's case were perverse.

4. The Tribunal's analysis of good faith in the protected disclosure provisions of the 1996 Act was in error of law.

5. (The subject of the proposed amendment.) The Tribunal erred in law in concluding that the reason for the dismissal was Miss Muchesa's misconduct and not the protected disclosures. This ground is based on part of the response made by one of the Tribunal members, Mr Reid, to the questions posed to the Tribunal by the Employment Appeal Tribunal.

The facts

12. In order to understand these grounds it is necessary for us to set out the essential facts, which we take from the Tribunal's findings of fact at paragraphs 16 – 49 of the Tribunal's judgment. The Tribunal prefaced their detailed findings of fact with a general conclusion that, in a case in which there were substantial disputes of fact which turned on the credibility of the witnesses, they preferred the evidence of CCHS's witnesses to that of Miss Muchesa.
13. Miss Muchesa was employed by CCHS as a Senior Night Carer at Link House in London, SW20, one of nine residential care or nursing homes operated by CCHS. She worked on the second floor, which accommodated 18 residents with dementia. To scotch a false rumour that she had complained to CSCI about staff relationships at Link House, in January 2005 Miss Muchesa wrote to CSCI a letter in which she praised Link House and its new Manager, Ms Rose, highly. The Tribunal rejected Miss Muchesa's evidence that Ms Rose had prompted, assisted in composing and posted that letter. In effect they found that Miss Muchesa wrote and sent that letter herself.
14. Miss Muchesa's case was that she was then and continued to be very concerned about the standards of care at Link House; and to express her concerns she said that she had sent letters of complaint to Ms Rose in January and April 2005. Ms Rose denied receipt of those letters; and the Tribunal preferred her evidence. Those letters had not been produced in April 2006 at the disciplinary hearing of CCHS's allegations of misconduct on Miss Muchesa's part, after which she was dismissed, or at her appeal against her dismissal and were first produced in the course of disclosure in these proceedings.
15. In May 2005 Miss Muchesa discussed a number of concerns with Mr Onifade, CCHS's Human Resources Manager. The Tribunal found that, in these discussions, she was principally concerned with her working conditions and her relationships with other staff.
16. On 24 May CSCI carried out an unannounced visit to Link House which took 11 hours. The Tribunal described the ensuing report from CSCI as raising no serious concerns.
17. Over the following weekend, 27 – 30 May, Miss Muchesa made an anonymous phone call to the daughter of a resident, telling her of what, if true, amounted to seriously defective care of that resident. Miss Muchesa told the resident's daughter that her mother had faeces on her body and in her mouth and that this was not an isolated incident. Miss Muchesa made a number of calls to the Police and to Social Services complaining of serious neglect. The resident's GP attended Link House on 31 May at her daughter's request but found no signs of neglect.
18. On 31 May Miss Muchesa was suspended by a letter from CCHS which referred to but did not particularise a number of serious allegations regarding her conduct in the workplace.
19. On 2 June Miss Muchesa lodged grievances about sexual harassment and race discrimination; those complaints became the subject matter of separate Tribunal proceedings issued by Miss Muchesa which had been struck out by the Tribunal before the present proceedings were issued. When on that day she arrived to work her shift, she was told that she had been suspended; CCHS's case was that she became hysterical, shouted and was abusive to her seniors and refused to leave until police arrived. Her evidence was that she had not misconducted herself at all. On 6 June Miss Muchesa was invited to attend an investigatory interview in relation to allegations of misconduct which were again spelt out only in general terms.
20. On 12 June Miss Muchesa made very serious allegations to CSCI about care of the residents at Link House. As a result CSCI made another visit without any warning. The Tribunal concluded that CSCI found none of the allegations made by Miss Muchesa to be substantiated.
21. Thereafter disciplinary procedures took a prolonged course, described in detail in paragraphs 36 – 46 of the Tribunal's judgment. We do not need to repeat that detail. It should suffice to set out that Miss Muchesa walked out of the investigatory interview on two occasions; she then went off ill. Eventually a disciplinary hearing took place in April 2006, after which she was dismissed; and her subsequent appeal failed.
22. We have excluded from this factual summary reports or complaints of mistreatment made to persons within CCHS; we have done so because they will need to be specifically considered when we turn to the first ground of appeal.

The Tribunal's self-directions as to protected disclosure

23. The Tribunal set out, at paragraphs 6 – 9 of their judgment, the relevant law relating to the four reports to persons outside CCHS which were relied upon as protected disclosures; they were reports to the patient's daughter, Social Services, the Police and CSCI. It is not suggested that they misdirected themselves in those paragraphs. It was not in dispute that those reports were qualifying disclosures which satisfied the requirements of s43B(1)(b) of the 1996 Act. Those disclosures, in order to be "protected disclosures" falling within s47B and s103A, had to have been made in accordance with one or more of s43C to s43H. Miss Muchesa relied on s43G so far as those four external reports were concerned. The Tribunal set out, at paragraph 8, sub-sections 43G(1) and (2); they identified that, of the conditions set out in sub-section 2, Miss Muchesa relied on sub-section (2)(c)(i) and that sub-section (3) set out the factors to which the Tribunal were required to have regard in determining whether it was reasonable for Miss Muchesa to make the disclosures relied upon.
24. In paragraph 9 the Tribunal accurately summarised the effect of the leading case on the requirement that the employee making the disclosure should have done so in good faith in s43G(1)(a) – and also in s43C(1); Street v Derbyshire Unemployed Workers Centre [2005] ICR 97.

Grounds of appeal 2 - 4

25. We propose to address first grounds 2 – 4 which arise from the conclusions reached by the Tribunal in respect of the four disclosures made by Miss Muchesa to external recipients. We will then turn to ground 1 which arises from Miss Muchesa's case that she had made protected disclosures to internal recipients and to ground 5 which arises from the Tribunal's answers to questions posed to them by the Employment Appeal Tribunal about those disclosures to internal recipients.

Ground 2

26. Ms Masters submitted that the Tribunal had erred in law in two linked respects in reaching the conclusion, at paragraphs 56 – 58, that Miss Muchesa did not reasonably believe that the disclosures she made to the four external recipients were substantially true and, therefore, that those disclosures were not protected disclosures i.e. qualifying disclosures made in accordance with s43G by reason of s43G(1)(b).
27. In Darnton v University of Surrey [2003] ICR 615 the Employment Appeal Tribunal considered the correct approach to be adopted by a Tribunal when deciding, for the purposes of s43A - L of the 1996 Act, the "whistle blowing" provisions inserted into the Act by the Public Interest Disclosure Act 1998, whether an employee who claimed to have made a protected disclosure within those provisions held a reasonable belief. In Darnton the issue was whether the employee had the reasonable belief required by s43B(1) that the disclosure tended to show one or more of the matters set out in s43B(1)(a)-(f). The issue which arose in the present case, under s43G(1)(b), whether the employee reasonably believed that the allegations made were substantially true, did not arise in Darnton. As the appellate decisions on the whistle blowing provisions have pointed out (e.g. Street paragraphs 5 – 9), those provisions establish a three-tiered disclosure regime; the requirements for protection under them increase commensurately with the distance between the employee and the recipient of the disclosure. If the recipient relied upon is the employer or other responsible person within s43C, there is no requirement that the employee reasonably believes in the truth of the information disclosed; but if the recipient is not the employer or does not fall within the classes of recipient specified in s43C-43F and the employee relies, therefore, on s43G, then such a requirement exists; see s43G(1)(b).
28. In the present case, as we have already pointed out, reasonable belief for the purpose of s43B(1) was not in issue; but so far as all four external complaints were concerned, reasonable belief for the purpose of s43G(1)(b) was very much in issue.
29. We accept Mr Burgher's point on behalf of CCHS that the two forms of reasonable belief are not the same; the subject matter of the belief, i.e. what it is that the employee has reasonably to believe if he is to obtain protection, is different; but we nevertheless regard what the Employment Appeal Tribunal said as to the approach to reasonable belief in Darnton and what the Court of Appeal said on that topic in Babula v Waltham Forest College [2007] IRLR 346, also a s43B(1) case, as applicable to and providing clear guidance as to the approach which a tribunal should adopt in deciding an issue arising under s43G(1)(b).
30. In Darnton the Employment Appeal Tribunal said, at paragraphs 28 and 29:

"28 …Circumstances that give rise to a worker reporting a protected disclosure will vary enormously from case to case. The circumstances will range from cases in which a worker reports matters which he claims are within his own knowledge, or have been seen or heard by him. At the other extreme will be cases where the worker passes on what has been reported to him, or what he believes has been observed by other persons.

29 In our opinion, the determination of the factual accuracy of the disclosure by the Tribunal will, in many cases, be an important tool in determining whether the worker held the reasonable belief that the disclosure tended to show a relevant failure. Thus, if an Employment Tribunal finds that an employee's factual allegation of something he claims to have seen himself is false, that will be highly relevant to the question of the worker's reasonable belief. It is extremely difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if he knew or believed that the factual basis was false, unless there may somehow have been an honest mistake on his part. The relevance and extent of the Employment Tribunal's enquiry into the factual accuracy of the disclosure will, therefore, necessarily depend on the circumstances of each case. In many cases, it will be an important tool to decide whether the worker held the reasonable belief that is required by section 43B(1). We cannot accept Mr Kallipetis' submission that reasonable belief applies only to the question of whether the alleged facts tend to disclose a relevant failure. We consider that as a matter of both law and common sense all circumstances must be considered together in determining whether the worker holds the reasonable belief. The circumstances will include his belief in the factual basis of the information disclosed as well as what those facts tend to show. The more the worker claims to have direct knowledge of the matters which are the subject of the disclosure, the more relevant will be his belief in the truth of what he says in determining whether he holds that reasonable belief."

Having referred with approval to Bowers, Mitchell Lewis, Whistleblowing: The New Law (1999) the Employment Appeal Tribunal pithily summarised the position in paragraph 32 in this way:

"32 …We agree with the authors that, for there to be a qualifying disclosure, it must have been reasonable for the worker to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure, even if the worker was wrong, but reasonably mistaken."

31. In Babula Wall LJ, with whom Thorpe and Thomas LJJ agreed, said at paragraph 75:

"However, I agree with the EAT in Darnton that a belief may be reasonably held and yet be wrong. I am reminded, in a different context, of the well-known speech of Lord Hailsham of St Marylebone LC in the adoption case of Re W ...an infant) [1971] AC 682 at 700D when discussing whether or not a parent could be said to be unreasonable in withholding consent to adoption. He said: - 'Two reasonable parents can perfectly reasonably come to opposite conclusions without either of them forfeiting their title to be regarded as reasonable.' In my judgment, the position is the same if a whistleblower reasonably believes that a criminal offence has been committed, is being committed or is likely to be committed. Provided his belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the claimant believed to be true (and may indeed be true) does not in law amount to a criminal offence – is, in my judgment, sufficient, of itself, to render the belief unreasonable and thus deprive the whistleblower of the protection afforded by the statute."

32. Founding on these important passages, Ms Masters submitted that, in this case, the Tribunal (1) focussed only on whether the subject matter of Miss Muchesa's allegations was true i.e. the objective element and failed to consider the subjective element and (2) failed to consider the inter-relationship between the two elements. The first error, she submitted, was demonstrated by the Tribunal's concentration in paragraph 56 of their judgment on what a hypothetical reasonable complainant would have done, culminating in the last sentence with these words:

"These were not rational actions motivated by a genuine desire to protect the residents."

Ms Masters drew our attention to the Tribunal's referral in these passages to Miss Muchesa's failure to use CCHS's whistleblowing procedure, of which she was aware, her failure to ask a junior member of staff to witness the abuse of which she was complaining, her failure to require the attendance of the Police herself, her failure to write up the incident in the communications book and her spending a significant amount of time photocopying rather than attending to the problem which was at the root of her complaints. Despite these many criticisms of Miss Muchesa, based on objective facts inconsistent as the Tribunal saw it with an objectively reasonable belief, the Tribunal nowhere referred, expressly, she submitted, to the subjective element which, on the authorities, they were required to consider.

33. The second error was said to be the Tribunal's failure to consider whether Miss Muchesa had made an honest mistake; the Tribunal, it was argued, had leapt from the conclusion that the allegations were untrue to the conclusion that Miss Muchesa had no reasonable belief.
34. We do not accept that the Tribunal made either of these errors. The Tribunal directed themselves properly, at paragraph 58, to decide whether Miss Muchesa's reports to the resident's daughter, the Police, Social Services and CSCI were made in good faith, reasonably believing the allegations to be substantially true. They were entitled, in reaching their decision, to consider whether the complaints were in fact true (see Darnton paragraph 29) and to regard their view of their truth or untruth as an important tool to the resolution of the issue before them of reasonable belief. The matters of fact of which Miss Muchesa had complained were matters of which she claimed to have direct personal knowledge; she was not relying on information from a third party; the truth of her allegations would naturally appear to be of greater weight than if this was a case of second-hand information. In reaching their decision the Tribunal were, in our judgment, entitled – and indeed it was wholly natural for them – to ask themselves whether the actions or inactions of Miss Muchesa pointed not only towards the truth of her complaints but also to whether she genuinely believed in that truth. They determined that her actions and inactions were strongly inconsistent with such a belief i.e. she had not behaved in the manner in which she would have behaved had she reasonably believed in the truth of the complaints and was motivated by a genuine desire to protect the residents. She was not reasonably mistaken; she complained of events which had not occurred and for an ulterior motive of her own not connected with the care of the residents.
35. That this was the process of the Tribunal's process of reasoning is, in our judgment, clearly to be seen from paragraphs 56 to 58 when they are read as a whole. The Tribunal were entitled to give strong weight, as they clearly did, to their conclusion that the complaints were untrue. They did not in law have expressly to pose the question – Was there an honest mistake? On the facts found and in the circumstances which they set out, it is difficult to see how the question of honest mistake could in any practical sense have arisen; but the Tribunal's reasons, in our judgment, adequately set out why they reached the conclusion that the complaints were not true and that Miss Muchesa did not believe that they were and demonstrate that the Tribunal made no error of law such as is suggested.

Ground 3

36. Ms Masters' argument on this ground is that, in paragraphs 57 and 58 of their judgment, the Tribunal proceeded on the basis that the findings of CSCI, arising from their visits on 24 May and 13 June, were inconsistent with Miss Muchesa's complaints and used that conclusion as an important yardstick in reaching their decision on the reasonable belief issue; but, at least in their report of their visit of 13 June, CSCI had not wholly rejected Miss Muchesa's allegations or given CCHS a clean bill of health; and the Tribunal's conclusion as to CSCI's findings was accordingly perverse.
37. Ms Masters accepted that she could not criticise the Tribunal in so far as they relied on CSCI's report of their visit of 24 May; and that report was not before us. As to the 13 June visit, that followed a telephone call from Miss Muchesa to CSCI making what the Tribunal described as very serious allegations. The Tribunal singled out five allegations, obviously of a serious nature, in paragraph 35, and said that none of them were found to be substantiated.
38. CSCI visited Link House on the day after Miss Muchesa's call to them. Their report is lengthy and detailed. It is apparent from its conclusions, in our judgment, that the Tribunal were entitled to say that those serious allegations were not substantiated. It is true that, in relation to a complaint that some patients were woken at 4.00 am, CSCI noted that night staff had got residents up before 6 am and that this had been noted by management as inappropriate, that, in relation to the complaint that one carer was left to deal with 21 residents, the report said:

"CSCI is concerned that if there is only one nurse on duty at the home, who may be busy with nursing tasks, one person to care for 21 residents is not an acceptable staffing level to deliver quality care."

and that, in a letter from CSCI to Miss Muchesa dated 24 April 2006 (seven months after their report upon the visit of 13 June 2005 and about a year after that visit itself), CSCI said:

"A number of issues regarding poor care practice have been highlighted previously during inspections and the Home has provided action plans to address any shortfalls, improvements have been noted in some areas at inspection visits."

39. However the early waking was not one of what were regarded by the Tribunal as the very serious allegations set out in paragraph 35; CSCI's comment upon one carer for 21 residents did not include any confirmation of that allegation but only an acceptance that, if that occurred, it would be unacceptable; the comment in the letter to Miss Muchesa referred to previous inspections and did not expressly involve acceptance of the truth of Miss Muchesa's allegations in June 2005. Indeed the letter said, in relation to those allegations:

"You reported that a resident on the first floor had been bitten by a carer and that a carer was shouting at residents. Evidence was not available at the home to confirm that these incidents occurred. You also reported that residents were left for long periods in the same incontinence pads. That residents were left when they had been incontinent. You reported that the home was dirty. As I explained to you written evidence was not available at the home confirming your concerns. During the inspection, there was no evidence of residents being left when they had been incontinent. At the time of the visit, the home environment was clean and hygienic."

40. While the report of the visit of 13 June was, we accept, not wholly free of any criticism, it was, in our judgment, open to a reasonable tribunal to conclude, as the Tribunal did, that there would have been some evidence of abuse noticeable by CSCI on 13 June if the extreme allegations made by Miss Muchesa were true and that CSCI had, in substance, given Link House a "clean bill of health" – see paragraph 58.
41. If a perversity argument is to succeed, perversity must be overwhelmingly demonstrated; see Yeboah v Crofton [2002] IRLR 634 per Mummery LJ at paragraph 93. In substance the Tribunal's factual conclusions as to the impact of CSCI's report, even if there were one or two aspects of it which pointed in the opposite description, were conclusions to which a reasonable tribunal, properly appreciating the relevant evidence as a whole, could have come. Perversity, in any of its forms, has not been made out, overwhelmingly or, indeed, at all.

Ground 4

42. Both in the Notice of Appeal and in Ms Masters' skeleton argument this ground is set out in these terms:

"The Employment Tribunal's analysis of good faith under s43G(1)(a) of the ERA 1996 was tainted by the errors of law disclosed under appeal grounds 2 and 3."

It ought, therefore, to follow from our conclusions on grounds 2 and 3 that this ground of appeal can be safely rejected. However, in deference to Ms Masters' argument, we propose, albeit briefly, to set out the basis of her submissions and to explain why we would not have accepted them, even if we had reached a different conclusion on grounds 2 and 3.

43. The thrust of those submissions is that, in paragraphs 56 to 58, the Tribunal addressed the issue of Miss Muchesa's good faith and her reasonable belief as if they were one and the same and, therefore, if the Tribunal had erred in their resolution of the reasonable belief issue, they must have erred in relation to good faith. The presence or absence of good faith is a subjective matter; but the Tribunal had only considered the issues objectively.
44. In our judgment the Tribunal can, in relation to good faith, be clearly seen to have considered Miss Muchesa's motivation and not considered only objective factors. In the circumstances of this case there must have been, as a matter of commonsense, not a very great distance between a finding that Miss Muchesa did not reasonably believe in the truth of her allegations and a finding that she had not acted in good faith; but, whatever the extent of that distance, the Tribunal were fully aware of it and had expressly directed themselves as to it at paragraph 9. Having directed themselves that good faith involved more than a lack of reasonable belief and that, if they were to find that the disclosures were not made in good faith, they had to find that Miss Muchesa's motive or predominant motive was an ulterior motive unrelated to the statutory objectives, they proceeded to make express findings as to Miss Muchesa's motive in the last sentence of paragraph 56; and, in paragraph 58, they referred to motive or genuineness several times before turning, in the words "even if she had been concerned" to make a separate finding as to reasonable belief, having made clear findings as to motive.
45. Ms Masters was critical of the Tribunal's use of the expression "We are driven to the conclusion …" in paragraph 58, which, she submitted, demonstrated the Tribunal had been persuaded by their analysis of the objective facts, i.e. whether the allegations were true and not by consideration of subjective motive. Forensic criticism of that expression, often used by tribunals and other fact finders, is not unusual; but it expresses no more than the fact finder's view of the strength of the evidence on which the relevant finding of fact is based. In any event it was open to the Tribunal to infer from the objective facts which they found that Miss Muchesa's subjective motive was unrelated to the statutory objectives and was an ulterior motive. It is clear, in our judgment, that the Tribunal, on the basis of the evidence and their findings of fact, legitimately reached a conclusion, separately from their finding as to reasonable belief, that Miss Muchesa's motive was such that she had not acted in good faith.
46. For these reasons ground 4 fails.

Grounds 1 and 5

47. At a case management discussion on 31 August 2006 it was identified that Miss Muchesa relied, in addition to the disclosures to external recipients which we have set out earlier, upon disclosures to recipients who were employees of CCHS, namely Mr Onifade (Human Resources Manager), Ms Rose (Link House Manager) and Miss Pigden (said to be from "Head Office").
48. Such internal complaints would have qualified for protection within the whistleblowing provisions if the requirements set out in s43C of the 1996 Act were made out, namely that they were made to CCHS in good faith; whether Miss Muchesa reasonably believed in their truth was not a statutory requirement.
49. The Tribunal, as part of their narrative of the facts, made findings as to discussions between Miss Muchesa and Mr Onifade at paragraph 24. We have earlier (at paragraph 12 above) set out their conclusion that, in those discussions, Miss Muchesa was principally concerned about her working conditions and her relationships with other staff. They also found (later in paragraph 24) that Miss Muchesa often complained to Ms Rose about the day staff in relation to incontinence having been unsatisfactorily dealt with.
50. However, in summarising the disclosures said to have been protected disclosures at paragraph 2, the Tribunal made no reference to internal disclosures. In their conclusions section of their judgment, at paragraph 55 to 58, the Tribunal referred to the external but not to the internal complaints. The first ground of appeal is based upon the Tribunal's failure to express any conclusions in their judgment upon the internal complaints.
51. The situation was one to which the process endorsed by the Court of Appeal in Barke v Seetec Business Technology Centre Ltd [2005] ICR 1373 was manifestly appropriate; accordingly the Employment Appeal Tribunal, at the Rule 3(10) hearing, required the Tribunal to answer the following two questions:

"(a) Did the internal qualifying disclosures to Mr Onifade, Ms Rose and Miss Pigden satisfy s43C of the Employment Rights Act 1996?

(b) If so, whether they were the principal reason for Miss Muchesa's dismissal as defined in s103A of that Act?"

52. The three members of the Tribunal provided individual responses to those questions. They were the subject of considerable argument before us.
53. We shall first address the arguments relating to complaints to Miss Pigden; for they are very straightforward. The Employment Judge in her response stated that Mr Ohlson, who represented Miss Muchesa before the Tribunal, had specifically stated on day 2 (out of 4) of the hearing that he did not rely on disclosure to Miss Pigden as causative of the dismissal and that, in any event, Miss Muchesa did not refer to any such disclosure in her evidence. Mr Reid in his responses did not refer directly to Miss Pigden; Miss Brown in her responses said that, according to her notes, Miss Muchesa had said that Ms Rose had discussed with Miss Pigden the concerns which she, Miss Muchesa, had reported to Ms Rose.
54. Ms Masters drew our attention to Mr Ohlson's undated written submissions which appear to rely on a complaint to Miss Pigden; she agreed, however, that we could not hold a trial as to whether Mr Ohlson had or had not made the concession set out by the Employment Judge. No notes of evidence given by Miss Muchesa were put before us, either as agreed between the parties or from the Tribunal. However, Miss Muchesa's witness statement does not refer to Miss Pigden at all; and it was not suggested that she had given evidence about a complaint to Miss Pigden in cross-examination. In the circumstances we can only proceed on the basis that there was no evidence of a complaint by Miss Muchesa to Miss Pigden (as opposed to a complaint to Ms Rose which Ms Rose discussed with Miss Pigden) and that that issue was not pursued.
55. The Employment Judge's response to the first of the Employment Appeal Tribunal's questions in relation to Mr Onifade was that, although Miss Muchesa reported abuses to him, the Tribunal found that the purpose of her meeting with him was not to make disclosures but to complain about colleagues and to find out what was being said about her and that disclosures to Mr Onifade were not made out of concern for the welfare of the residents or in the public interest and were for the predominant purpose of an agenda of her own. Mr Reid said that the purpose of Miss Muchesa's meeting with Mr Onifade was not primarily about the welfare of the residents but was focussed on other issues. Miss Brown said that the main thrust of the meeting related to Miss Muchesa's claim that she was entitled to money in respect of hours worked; she clearly accepted Mr Onifade's evidence that issues relating to the residents were not Miss Muchesa's main concern.
56. Ms Masters submitted that, in these additions to their reasons, the Tribunal did not speak with one voice and that there was no analysis to be found therein of their apparent conclusion that, in making disclosures to Mr Onifade, Miss Muchesa was not acting in good faith and that the Tribunal had considered not what was the purpose of the disclosures to Mr Onifade but what was the purpose of the meeting between them.
57. Mr Burgher reminded us that the subject matter of Miss Muchesa's report to Mr Onifade was not in a different category from the subject matter of the external complaints to the resident's daughter, the Police, Social Services and CSCI. It related to the alleged abuse of a patient or patients who were incontinent. The Tribunal, he submitted, had clearly found that Miss Muchesa's external complaints in relation to that subject matter were not made in good faith; they had also found at paragraph 42 that the meeting with Mr Onifade was not principally about such abuse but about Miss Muchesa's working conditions and her relationships with other staff which were not and were not alleged to be the subject of protected disclosure. He drew our attention to the notes of this meeting which record Mr Onifade as saying "The issues that concern me more are the welfare of the residents and the image of the company." and Miss Muchesa replying "I'm not complaining. I came here to find out what you told Jyoti."
58. When the Tribunal's conclusions in their judgment and in their further reasons in response to the Employment Appeal Tribunal's questions are read together, it was submitted, no further analysis was necessary; the basis on which the Tribunal concluded that, so far as Miss Muchesa was making disclosures to Mr Onifade, her predominant motive was an ulterior motive – the touchstone, as set out in Street, at paragraphs 53 – 56, of bad faith – was sufficiently clear and supported by findings of fact. The three members of the Tribunal had spoken as one in relation to that conclusion.
59. We prefer Mr Burgher's submissions. The further reasons given by the Tribunal's members should not be isolated from but should be read together with and as part of their original reasons. All three members, albeit using different language, set out their conclusion that the predominant purpose of the complaints to Mr Onifade was not the welfare of the residents. All three for that reason decided that Miss Muchesa had not established that her complaints to Mr Onifade fell within s43C i.e. she had not in those complaints acted in good faith. It was not necessary for the Tribunal to analyse further; the basis for that conclusion in respect of complaints of the same nature as those or some of those made to the external recipients appears with sufficient clarity from the Tribunal's further comments when read together with their original reasons.
60. Ms Masters, indeed, accepted in argument, and we have a very clear note of that assertion, that if an employee made the same complaint to internal and external recipients, a finding as to the absence of good faith in respect of the complaints to the external recipients would apply to the internal recipients. The external complaints here, at least to CSCI, were wider in nature than the content of the complaints of abuse to Mr Onifade; but they included the subject matter of those complaints. If Ms Masters did not so accept, the position is, in argument, as set out in paragraph 56 above.
61. For these reasons we see no error of law on the part of the Tribunal in relation to complaints for Mr Onifade.
62. So far as Ms Rose is concerned, the Employment Judge said:

"As to Miss Rose the Claimant principally relied on two letters, which we found as a fact were not sent to Miss Rose and no disclosure were made. There was also a vague reference to other "informal discussions". We found that the Claimant complained frequently about the day staff to Ms Rose. We did not come to any conclusion about good faith as we were certain in any event that these complaints had no bearing on the decision to dismiss which was a decision arising solely out of the events of 27 – 29 May and 2^nd June."

Mr Reid said:

"It was our view as a Tribunal that the two letters that Miss Muchesa alleged she sent to Marie Rose in January and April 2005 were in fact not received by Ms Rose."

Miss Brown said:

"Marie Rose stated and it was accepted by the Tribunal that she had not received any letters from the Claimant nor any other formal disclosure of specific abuse The Claimant did not satisfy s43c in this disclosure."

63. In these responses the Tribunal have found as fact that there were no written disclosures made by Miss Muchesa to Ms Rose. Ms Masters accepted that Miss Muchesa relied, in relation to Ms Rose, principally upon the two letters supposedly sent by her to Ms Rose in January and April 2005; but we have already referred to the Tribunal's finding, at paragraph 21, that Ms Rose never received those letters; and the Tribunal's further reasons demonstrate that the Tribunal found that there was no other disclosure by Miss Muchesa to Ms Rose beyond a vague reference to other 'informal discussions'; see the Employment Judge quoted above. It is not suggested that that finding was perverse. Although Ms Masters was critical of the Tribunal for not making a finding as to good faith in relation to complaints to Ms Rose, it was, in the circumstances, unnecessary for them to do so.
64. In the light of these conclusions, it is, strictly, unnecessary save perhaps in the case of oral disclosures to Ms Rose for us to consider the Tribunal's responses to the Employment Appeal Tribunal's second question; but for the sake of completeness we should refer to them, albeit briefly. All three members of the Tribunal expressed in their answers to that question the conclusion that the disclosures to Mr Onifade and any disclosures to Ms Rose were not the reason or the principal reason for Miss Muchesa's dismissal. Ms Masters did not seek to attack that conclusion and accepted that, as a result, whatever the outcome of her argument as to the Tribunal's conclusions as to the internal complaints in answer to question 1 from the Employment Appeal Tribunal, Miss Muchesa's claim that she had been automatically unfairly dismissed pursuant to s103A of the 1996 Act must fail in any event because the reason or principal reason for her dismissal was not the internal disclosures. However, she submitted that Miss Muchesa's claim under s47B that she had been subjected to a detriment on the ground that she had made those disclosures was not defeated by that conclusion.
65. We do not intend to address that argument; there is no doubt that the finding of absence of good faith is fatal both to the s103A claim and the s47B claim; and we have set out why, in our judgment, the Tribunal did not err in law in making that finding.

Ground 5

66. We will set out again the full text of the second question asked of the Tribunal by the Employment Appeal Tribunal:

"If so, whether they" (the internal complaints) "were the principal reason for the Claimant's dismissal as defined in Section 103a of the Employment Rights Act 1996?"

67. In answer to that question, Mr Reid said:

"In any event in regard to 4a) above, it is my emphatic view that the claimant had not made at any time any protected disclosures and that the principal reason for her dismissal had not been in connection with her making a protected disclosure as set out in Section 103a. The claimant had however, been unfairly dismissed under Section 98A of the Employment Rights Act 1996."

68. Ground 5 is based wholly on that answer. Ms Masters submits that (1) in it Mr Reid was expressing the conclusion that all of the disclosures relied upon i.e. both the external and the internal disclosures were not the principal reason for Miss Muchesa's dismissal but 2) there was ample and, indeed, uncontradicted evidence that the making of the external disclosures was a substantial reason for that dismissal; such evidence was to be found both in the letter inviting Miss Muchesa to the disciplinary hearing, in the management case against her at that hearing and also in the dismissal letter and 3) the Tribunal had themselves concluded at paragraph 65 that the reason for Miss Muchesa's dismissal was CCHS's belief in her misconduct in (inter alia) unreasonably calling the Emergency Services and CSCI.
69. Although, considering only the external disclosures, the Tribunal in their original reasons had not found that such disclosures were not a material cause of the dismissal and had come to the opposite conclusion, Ms Masters submitted that ground 5 was important because if Miss Muchesa were to succeed on grounds 2, 3 or 4 of this appeal her victory might be rendered hollow by Mr Reid's answer if it stood unchallenged.
70. For these reasons, which emerged from Mr Reid's answer to the Employment Appeal Tribunal's second question and could not have been included in the original Notice of Appeal, Ms Masters sought permission to amend and, if such permission was granted, to persuade us that Mr Reid's answer contained an obvious error of law.
71. Mr Burgher objected to the proposed amendment on the basis that it was sought very late, well after the answers to the Employment Appeal Tribunal's questions had been provided to the parties, that the 42 day limit ordinarily applying to a Notice of Appeal from the Employment Tribunal had been exceeded since receipt of those answers, that CCHS were prejudiced in relation to costs and by the absence of any view from the Employment Judge and Miss Brown on Ms Masters' interpretation of Mr Reid's answer and that Mr Reid's view, if that interpretation was correct, stood alone as a minority view.
72. Although the proposed amendment was drafted and put before CCHS belatedly, they were aware of it well before the hearing of the appeal and were able to respond to it in their skeleton argument; they were not caught by surprise; and in our judgment they have not been prejudiced. If it was essential to their successful resistance to the new grounds to have the views of the other two members of the Tribunal upon Mr Reid's answer we would, in justice, have had to adjourn to seek those views; but any cost consequences could have been appropriately dealt with. For these reasons we have decided that it would be fairer to address Ms Masters' arguments in substance than to refuse permission to amend. However, we are unpersuaded by those arguments, for two reasons. First, assuming Mr Reid's answer to bear the meaning which Ms Masters has attributed to it and therefore to refer to all the disclosures and not only the internal disclosures, it remains the view of only one of the three members of the Tribunal. It has not been suggested that either the Employment Judge or Miss Brown has expressed a similar view. No authority or principle of law had been put before us which even suggests that, if one of the three members of an employment tribunal expresses a conclusion in response to a question from the Employment Appeal Tribunal which was not included in the Tribunal's original reasons and which is not endorsed or supported by the other two members, that conclusion has any more weight than if that member had expressed it, as the conclusion of a minority, in the original reasons. In our judgment, as the view of only one of the three members of the Tribunal, it cannot be regarded as the view of the Tribunal. Ms Masters' apprehension that Mr Reid's view would rob Miss Muchesa of the spoils of victory on other grounds of her appeal, should she achieve such victory, is, in our judgment, misplaced.
73. Secondly, in any event we have come to the conclusion that Ms Masters' interpretation of Mr Reid's answer, while semantically possible, is incorrect when that answer is seen in context. That context includes two important features, namely 1) Mr Reid was answering a specific question which was plainly limited to the internal disclosures 2) the Tribunal as a whole had made the express finding at paragraph 65 to which we have already referred that some at least of the external disclosures were constituent parts of the misconduct for which Miss Muchesa was dismissed. Therefore if Mr Reid's answer were to be interpreted as Ms Masters submits it should, he must have deliberately decided to express himself in terms which went well beyond the question asked and which contradicted the conclusion in paragraph 65 to which he himself had been a party. The words used by Mr Reid were perhaps not as precise or taut as, with hindsight, he would have preferred; that is, perhaps, why the argument which Ms Masters has developed has been open to her; but for the reasons we have set out we are not persuaded by it.

Conclusions

74. Accordingly this appeal fails and must be dismissed. There will be a detailed assessment of Miss Muchesa's publicly funded costs.