United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Written submissions by the Appellant
For the Respondent	MR PAUL WILSON (of Counsel) Instructed by: Messrs Irwin Mitchell LLP Solicitors 2 Wellington Place Leeds LS1 4BZ


 


SUMMARY

VICTIMISATION DISCRIMINATION: Whistleblowing

The Employment Tribunal could not be faulted in making no decision on detriment suffered by the Claimant as a result of an alleged protected disclosure since it was not an issue to be determined. Anyway, the findings of the Employment Tribunal on the relevant issues, upheld by Burton J at a Rule 3 hearing, would doom any such claim.


 


HIS HONOUR JUDGE McMULLEN QC

1. The circumstances in which this case arises be found in the judgment of Burton J, sitting alone on 10 June 2009 at a Rule 3 hearing. Prior to that, HHJ Richardson had considered the papers and found nothing in them. Twice HHJ Peter Clark considered the appeal by the Claimant in these proceedings and found under Rules 3(7) and 3(8) that it disclosed no reasonably arguable question of law.
2. The Claimant, having exercised his rights to express dissatisfaction with those opinions, appeared before Burton J. Four points arose. Burton J rejected three as in his opinion having no merit but was concerned about a fourth. He called this "the Marble Arch point". The point is this: in respect of once incident at Marble Arch on 18 January 2008, the Claimant who is an engineer refused to go down a manhole to report on issues relating to London Underground for it was unsafe for him to do so.
3. He had raised a number of complaints about other incidents and in due course resigned, claiming that he had been constructively dismissed for having raised these issues. They were presented as issues under the health and safety regime and not expressly under the public interest disclosure regime which sits alongside the former but is different from it.
4. At the hearing before the Employment Tribunal, the Claimant argued that he should be allowed to run claims relating to detriment on the basis of having made a protected disclosure and he was allowed to do so. Burton J was concerned as to whether that allowance extended to the Marble Arch incident for he found no direct reference to it and he considered that a preliminary hearing should be conducted with the assistance, unusually, of representation by the Respondent as well as written submissions so that if necessary we could make a Burns/Barke request to the judge.
5. Burton J noted that the Claimant is assiduous, articulate and intelligent. His written material plainly displays that. The setting up of this preliminary hearing took account of the Claimant's request for expedition and for a hearing in August. Steps were taken and he was, generally speaking, collaborating with the directions given by Burton J and case management but he has not appeared today. He has, in writing, asked for the case to be dealt with on written submissions as to which he has presented lengthy written submissions and cited a large number of authorities.
6. Mr Paul Wilson of Counsel, who has appeared for the Respondent throughout, has attended pursuant to Burton J's direction to speak to his written submissions. Additional written submissions came after Burton J's transcript and make some observation on it because of course there was no appearance of the Respondent at the Rule 3(10) hearing.
7. The only issue is the ground relating to the Marble Arch incident upon which the Claimant made a protected disclosure and as a result of which suffered a detriment in the short period of time prior to the effective date of termination on 5 February 2008.
8. The submissions made by Mr Wilson, each of which is irresistible, seem to us to be preferable to the lengthy arguments of the Claimant. There is no question of law.
9. The first relates to whether or not the Marble Arch incident was live before the Employment Tribunal. We hold it was not. It cannot be criticised for not making a finding upon it.
10. This case had been very carefully and skilfully case managed by Employment Judge Taylor on 17 July and Employment Judge Weiniger on 7 October 2008. It is plain from the latter how narrow was to be the scope of the full hearing for he included the following passage.

"FOR THE AVOIDANCE OF DOUBT the Claimant's claim of constructive dismissal for the purposes of Section 95 ERA and automatic dismissal under Section 100(1)(d) ERA, for the reason or principal reason that the Claimant had in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, left, or proposed to leave, or while the danger persisted, refused to return to his place of work, or any dangerous part of his place work, WILL BE HEARD on Tuesday 2 December, Wednesday 3 December, Thursday 4 December and Friday 5 December 2008, and directions have been given accordingly."

11. On the basis of that exclusive jurisdiction, how could it be that the full hearing, presided over by Employment Judge Warren could deal with a protected disclosure? The answer was that Counsel for the Respondent accepted that there was a relabeling exercise and that certain of the material had been made plain in the Claimant's claim and witness statement.
12. The point, however, is that relates to what is described as the Neasden incident and there was no reference by the Claimant at any stage to the Marble Arch incident as founding a protected disclosure. So not only did the Warren Tribunal not deal with it, it was not entitled to deal with it. Exercising its flexible discretion in allowing a claim of protected disclosure in respect of the Neasden incident did not mean it was also doing the same in respect of Marble Arch where different circumstances applied. Now that submissions have been made by the Respondent, we accept those in full and do not need to consider making a Burns/Barke order. This Tribunal correctly discharged the sole duty it had to determine the issues set out by the two previous judgments.
13. That is an end to the case but since the Claimant does raise a number of other issues in support of his argument we will very briefly deal with them. There was no question of the Tribunal answering the Claimant's case in any other way. Starting at the other end of the statute, on the assumption that a claim was validly made for the Marble Arch incident, what was the detriment? The Employment Tribunal in the context of its other findings dismissing the Claimant's case has made three important findings as to the Respondent's attitude to the Claimant's statements about going down the manhole at Marble Arch. In paragraphs 14, 33 and 36 the Tribunal acknowledged the Respondent did not criticise the Claimant or hold it against him for having taken that decision. [We make a correction to substitute the word "upbraided" for "upgraded"]. Those findings would indicate that the Respondent did not disapprove of the Claimant for having refused on the grounds of health and safety to go down the manhole.
14. We accept Mr Wilson's argument that the overall finding of the Employment Tribunal as to the attitude of the Respondent, this directed towards whether it had damaged the relationship of trust and confidence, is capable of applying to any response of the Respondent to the Marble Arch incident. The Tribunal concluded as follows:

"We conclude that none of the conduct complained of was capable of damaging the relationship of trust and confidence and the Respondent had acted with reasonable and proper cause throughout."

15. One final matter is unnecessary for us to deal with but since Mr Wilson has addressed us upon it we will. It is the nature of detriment. The detriment alleged by the Claimant is said to fall within the judgment of the House of Lords in Shamoon v The Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. The Employment Tribunal, having isolated the two detriments relied on by the Claimant indicates that the Respondent did no wrong.
16. The two incidents were forcing him to accept a pay cut and rearranging his hours so as to make him look bad. Neither of these is held by the Employment Tribunal to have actually put pressure on the Claimant. The Tribunal accepted the Respondent's evidence that there was no demand the Claimant take a pay cut or a change of status nor was there any alteration of the Claimant's time sheets to make him look bad. So it would follow that even if he could establish an entitlement to argue the Marble Arch point, there was no detriment arising out of it and so for that reason, too, we would have dismissed this appeal.
17. That, too, seems to indicate that there can be no prospect of success even if the Marble Arch incident were let into the picture. It should be noted this case has come this far without any judgment of a judge that it had a reasonable prospect of success and so we join with HHJ Peter Clark and Burton J in indicating that there is none.
18. In addition, since it has been a source of complaint by the Claimant, we deal with the opinion given by Mr Ivan Hare. He was the Counsel who volunteered his services under the ELAA Scheme for the conduct of the Rule 3(10) hearing before Burton J. In accordance with his professional obligations, generally and specifically in relation to the Scheme, he disclosed to the Claimant his written opinion that the claim had no prospect of success and that he could not represent him. The Claimant was notified on the morning of the appeal.
19. The Claimant believes that this opinion was shown to Burton J. We have looked most carefully in the file. There is no trace of this note of advice arising in the EAT prior to its disclosure by the Claimant to the Registrar on 21 July 2007 long after the hearing. Anyway, we consider it inherently improbable that Counsel, instructed by a client, as is the proper relationship in an ELAAS-Appellant relationship, would have given his opinion to the hearing judge.
20. We have no doubt that Burton J would have referred to it. There is no mention. In any event, as the Court of Appeal has pointed out in Ansar v Lloyds Bank [2006] ICR 1565 Burton J is robust and proactive. The fact that Counsel had formed an opinion about a particular case would have no impact whatsoever on him, for he would exercise his independent judicial mind to decide the issue himself, no matter how many Counsel had thought that the point was good. As it happened, Mr Hare thought there was nothing in the appeal but Burton J thought there might be, and so he was, actually, acting contrary to Mr Hare's opinion albeit he did not know of it.
21. There has been no appeal to the Court of Appeal by the Claimant against those aspects of his case dismissed by Burton J and there is nothing in this point about Mr Hare's opinion except it seems to demonstrate the opinion which we have come to.
22. We thank Mr Wilson for coming along today to assist with his arguments and we thank the Claimant for presenting his material in writing. The appeal is dismissed.