United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER KIRBY (of Counsel)
For the Respondent	MR ROBERT MORETTO (of Counsel) Instructed by: Messrs Capsticks Solicitors LLP 77-83 Upper Richmond Road London SW15 2TT


 


SUMMARY

VICTIM DISCRIMINATION – Protected disclosure

CONTRACT OF EMPLOYMENT – Mitigation

An Employment Tribunal held that when the Claimant wrote a letter complaining amongst several other matters in a tirade of vehement comment that staff had been bullied and harassed she had not been making a protected disclosure: because the letter had been written to undermine her line manager, out of feelings of antagonism toward her, it was for an ulterior purpose. The two grounds of appeal against this were dismissed: the first was that the Tribunal should have considered what the relative strengths of the motivations were which caused the Claimant to write the letter. It was held unnecessary that a Tribunal should do more than determine whether a disclosure was made "in good faith" as that phrase had been interpreted in Street v Derbyshire Unemployed Workers Centre. The second was that an allegation of bad faith should have been put specifically to the Claimant not only at the hearing but sufficiently in advance of it so that she was not surprised by it when giving evidence. This was held unnecessary for a fair hearing, where the substance of the allegation was put in circumstances where the Claimant had a proper opportunity to rebut or explain it.


 


THE HONOURABLE MR JUSTICE LANGSTAFF

1. This is an appeal from a decision of the Employment Tribunal at Ashford which heard evidence over three days, taking a fourth day for deliberation, giving reasons for the decision it reached on 13 November 2009. By those reasons the Tribunal found that the Claimant had been unfairly (constructively) dismissed by the Respondent, and that a claim for breach of contract was successful, but dismissed the Claimant's case that she had made a protected disclosure on 11 May 2007. It therefore found that she was not constructively dismissed nor did she suffer a detriment as a result of having made a protected disclosure. It is to those latter two findings that this appeal is addressed.
2. The alleged protected disclosure is therefore central. We shall deal with the facts as set out by the Tribunal, concentrating upon that aspect.
3. The Claimant was employed as a nurse by the Respondent. She entered employment in 1997. In October 2005 she went on long term sick leave.
4. During the time she was on leave, from which she returned in March 2007, she had reason to write to her immediate boss, a Mrs Cable, on 21 March 2007. That letter was described by the Tribunal as 'vehement', and as a 'tirade': those descriptions reflected a view of the Claimant, which plainly pervades the judgement as a whole, that she was someone who expressed her views trenchantly, who did not suffer fools gladly (as she herself said) and who was certainly no shrinking violet.
5. In March 2007 it was planned that she should have a gradual return to work. During the course of that allegations arose adverse to the Claimant: in particular, it was said that she had turned up late on a number of occasions for work. These matters, rather than being put to her orally by Mrs Cable her boss, were expressed in a letter dated 4 May 2007.
6. It is the letter of 11 May 2007 written by the Claimant in response which is said to constitute the letter containing the protected disclosure, although the alleged protected disclosure constitutes a very small part of the text. The Tribunal (see paragraph 30 of its reasons) found the letter to be written in a tone which was extremely abrupt to the point of rudeness, aggressive and quite extraordinary given that it was written to her line manager. The letter included allegations that Mrs Cable had exaggerated and dramatised everything, was demanding and aggressive in tone, contained the phrase "…now if it's about mud slinging then let me do some for a change…", and made a reference as to the effect which the letter about timekeeping had upon the Claimant, after which it said:

"I will not be bullied and harassed by you, or anyone else, for your or their self- aggrandisement."

At a later point the Claimant wrote:

"I think that there is much more to this than meets the eye, by your insinuations, arrogance and just plain nastiness you and other staff have managed to make most of the old Meddoc nurses leave the PCT…the couple of them that are left are easily bullied, manipulated or whatever you want to call it. I AM NOT ONE OF THEM and I have absolutely no intention of becoming a "victim" like the others."

The letter ended:

"You will be hearing from me in the very near future."

7. It was said that that letter was a qualifying disclosure within the meaning of the Employment Rights Act 1996 in the reference it made to bullying and harassment.
8. To complete the picture, after the letter of 11 May 2007, which the Tribunal regarded as a 'counterblast' to the letter of 4 May 2007, the terms of which the Tribunal did not criticise, there were a number of meetings and attempts to meet at dates stretching into January 2008, details of all of which are set out in the Tribunal's findings.
9. After May 2007 the Claimant had not been permitted to return to clinical work. There were said to be performance issues which affected her work. Though accused of lateness, no particulars were given to her: despite repeated requests none was forthcoming.
10. Ultimately she felt that she had no option but to resign, which she did on 9 March 2008 because she had been accused of a want of performance and poor timekeeping but had never been given any particulars whatsoever to back those allegations up. It was that that the Tribunal founded itself on in considering that she was entirely justified in treating that behaviour as a breach of contract on the part of her employer so as to entitle her to regard herself as dismissed from their employment, and both constructively so and unfairly.
11. As to the disclosure, what the Tribunal said in three paragraphs needs to be set out in full. The heading is 'Was that letter a protected disclosure?' At paragraph 33 it is said:

"The Tribunal noted that the letter clearly, at one point, refers to bullying and harassment by Mrs Cable. When given the opportunity in cross-examination to explain what she had meant by the letter, the Claimant was unable to produce an explanation. The Tribunal noted that in response to many questions the Claimant's response was that she could not remember these events because they had happened so long ago. She appeared to be fairly indignant that she was being asked about these events. The Tribunal noted that although bullying and harassment is mentioned, it is buried within a tirade of complaints against Mrs Cable and her letter about the claimant being late for a number sessions. The Tribunal found that if the Claimant seriously considered that she was being bullied and harassed by Mrs Cable, she would have complained to Mrs Cable's manager in line with the Respondent's grievance procedure."

We interpose there to note that Mr Moretto, for the employer, says that here the Tribunal was finding that the Claimant did not seriously consider that she had indeed been bullied and harassed: that is certainly a reading of the sentence, and it appears to represent what the Tribunal had in mind.

Paragraph 33 continued:

"The Tribunal considered the case of Street v Derbyshire Unemployed Workers Centre [2004] IRLR 687, produced by the Respondent. The Tribunal considered firstly whether there had been a disclosure of information which in the reasonable belief of the Claimant tended to show that a criminal offence had been committed, that a person had failed to comply with any legal obligation to which he was subject and/or that the Claimant's health or safety was being endangered. Clearly, the Claimant was complaining about the way in which she considered her manager had treated her. It appeared to the Tribunal that the Claimant had a belief that she had been treated badly by Mrs Cable and so to that extent, the Tribunal found that the letter could fall within the definition of a qualifying disclosure, although the Tribunal had some doubts as to whether it was a reasonable belief.

34 The disclosure was made pursuant to Section 43C. It must therefore be made in good faith to the employer. The Tribunal accepted that the Claimant's manager could, for these purposes, be her employer. However, the Tribunal was not convinced that the disclosure was made in good faith. The Tribunal found that, taking the whole of the contents of that letter into account, the disclosure was not made in good faith but was, as in the case of Street, motivated by the Claimant's personal antagonism towards Mrs Cable. Had the complaint been made in good faith because the Claimant genuinely believed that she was being bullied and harassed, the Tribunal found that she would have complained to Mrs Cable's manager and/or would have followed the grievance procedure, again by writing to Mrs Cable's manager.

35 For all of those reasons, the Tribunal was satisfied that the letter of 11 May 2007 was not a protected disclosure."

The Law

12. The right not to be dismissed by reason of a protected disclosure is contained in section 103A of the Employment Rights Act 1996. The right not to suffer a detriment is contained in part IVA, as is the definition of what constitutes a protected disclosure. Section 43A, within Part IVA, and headed "Meaning of 'protected Disclosure'", provides:

"In this Act a "protected disclosure" means a qualifying disclosure (as defined by Section 43B) which is made by a worker in accordance with any of sections 43C to 43H."

43B then deals with qualifying disclosures. Headed "Disclosures qualifying for protection", the statute reads:

(1) "In this Part a "qualifying disclosure" means any disclosure of any information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following-

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

…

(d) that the health or safety of any individual has been, is being or is likely to be endangered..."

The rest of the section is irrelevant for present purposes. Section 43C which, as we have noted, was in issue here, is headed "Disclosure to employer or other responsible person". It reads:

(1) "A qualifying disclosure is made in accordance with this section if the worker makes a disclosure in good faith:

(a) to his employer…"

13. It will be seen therefore that for there to be a qualifying disclosure the worker concerned must have a reasonable belief. That has two elements. The first is a belief: plainly what is referred to by the statute is an actual belief; the description 'genuine' has been applied to it. Mr Kirby rightly observes that it is the statutory wording which has to be regarded but this directs the attention of the Tribunal to what the employee actually believed. This is subjective, so far as the person making the disclosure is concerned. The second element is whether that belief, objectively viewed, is or is not reasonable. It is only if there is an actual belief which is reasonable that there can be a qualifying disclosure. The belief has to be in respect of any of the matters which are outlined in the statute.
14. As to section 43C there are, as it seems to us, two matters which are relevant: (1) the disclosure has to be made first in good faith. (2) It has to be made to an individual specified in one of the following subsections section, in this case to the employer.
15. Returning for the moment to paragraph 34, which we have quoted in full, the Tribunal there accepted that the Claimant's manager was, for the purposes of this case, to be treated as her employer. For the reference to bullying and harassment in the letter to come within section 43C the only issue which therefore remained to be determined was the question of good faith.
16. The approach to be taken to good faith was examined by the Court of Appeal in the case of Street v Derbyshire Unemployed Workers Centre [2004] IRLR 687. That case considered allegations made by Mrs Street that a manager had failed to comply with his duties. The Tribunal concluded as matter of fact in that case that none of her disclosures were protected because they had not been made in good faith but were instead motivated by her personal antagonism toward the manager.
17. That gave rise to what was described in the judgment of Lord Justice Auld, giving the lead judgement of the Court, as a critical issue for the Tribunal at paragraph 25; that was what exactly was meant by good faith and what, if anything, it added to the requirement of reasonable belief in the substantial truth of the allegations. The Court was to conclude, in his judgement with which Jacob and Wall LJJ agreed, that good faith for the purposes of Part IVA was not simply to be equated with honesty, nor was it to be equated with reasonable belief. There was an added dimension. Lord Justice Auld pointed out that, shorn of context, the words 'in a good faith' had a core meaning of honesty, but when context was introduced they called for further elaboration (see paragraph 41).
18. Having considered the context within which part IV of the Act came to be passed he concluded, as we have noted, that the purpose of the provisions was not to allow persons to advance personal grudges but rather to protect those who make certain disclosures in the public interest (see paragraph 47). At paragraph 53 he said;

"In considering good faith as distinct from reasonable belief in the truth of the disclosure, it is clearly open to an Employment Tribunal, where satisfied as to the latter, to consider nevertheless whether the disclosure was not made in good faith because of some ulterior motive, which may or may not have involved a motivation of personal gain, and/or which, in all the circumstances of the case, may or may not have made the disclosure unreasonable. Whether the nature or degree of any ulterior motive found amounts to bad faith, or whether the motive of personal gain was of such a nature or strength as to 'make the disclosure for purposes of personal gain' or 'in all the circumstances of the case' not reasonable, is equally a matter for its assessment on a broad basis."

19. At paragraph 55 Lord Justice Auld reminded tribunals that a failure or refusal by an employer to remedy a failure of duty, and it may be injustice to a worker, might well engender understandable resentment or antagonism. He observed at paragraph 56 in words which are material to one of the arguments addressed to us of the Claimant's behalf:

"On further reflection, it seems more in keeping with the declared public interest purpose of this legislation, fair and a more useful guide to Employment Tribunals in conducting this sometimes difficult, sometimes straightforward, exercise - depending on the facts - to hold that they should only find that a disclosure was not made in good faith when they are of the view that the dominant or predominant purpose of making it was for some ulterior motive, not that purpose."

20. At paragraph 57 he noted that a Tribunal should, in just the same way as Lord Diplock in the defamation case of Horrocks v Lowe [1975] AC 135 at 150 had done, look for the

"'dominant' or 'predominant' purpose of a disclosure when considering whether it was made in good faith."

21. He concluded though, at paragraph 58:

"…where, as here, the Employment Tribunal was driven on the evidence to conclude, as it did, that none of Mrs Street's disclosures 'could be regarded as made in good faith, but were instead motivated by…[her] personal antagonism toward Mr Hampton', it is plain, as the Employment Appeal Tribunal stated in paragraph 25 of its judgment, that it found that such personal antagonism was her dominant, if not her sole, motive. In my view, the Employment Appeal Tribunal was right not to interfere with that finding. Looked at against the broader public policy interest behind this legislation, protection of such powerfully motivated disclosures could not be said in the circumstances to serve or encourage subversion of the Act's declared overall purpose of the Act of protecting those 'who make certain disclosures of information in the public interest'."

Lord Justice Wall gave, as we have said, a concurring judgment to which we shall come later in the discussion of the arguments addressed to us.

22. Mr Kirby has challenged the conclusions of the Tribunal under two heads. First he says that, in accordance with Street, the Tribunal should have approached the facts by asking whether the predominant or dominant motive for writing the letter with its allegations, amongst other things, of bullying and harassment was personal antagonism towards Mrs Cable its primary recipient.
23. Secondly, he argues that the suggestion that Miss Meares had not acted in good faith should have been put fairly and straight to her either, as he submitted in his written argument, when she was giving evidence or, as he submitted orally, before the case ever came to a hearing so that she could properly prepare to meet it. This was procedural unfairness which rendered the decision bad in law.
24. We turn to these arguments in greater detail.
25. Predominant purpose: Founding himself upon the passages which we have cited from Lord Justice Auld's judgment in Street Mr Kirby argued that the Tribunal here was faced with a case in which it was inevitable that the motives must have been very mixed. It had recognised, in paragraph 33, that the Claimant had a belief, and that must therefore mean a genuine belief, that she had been treated badly by Mrs Cable. The Tribunal had found that, to that extent, the letter could fall within the definition of a qualifying disclosure. We should not lose sight, argued Mr Kirby, of the fact that ultimately the Tribunal were to hold that the Claimant had been entitled to leave the service of the Respondent because of its conduct toward her. She was thus entitled to (and it was perhaps only to be expected that she might) answer any accusations, particularly those which had nothing evident to support them, in robust terms. The Tribunal here had not recognised any mix of motives. It had not asked what was the predominant motive, had thereby denied allowing itself to examine the relative strength of the relative motivations which might or might not accord with the Act, and thus had not put itself in a position when it could properly address whether the disclosure was made in good faith.
26. This argument at times seemed to us to suggest that he was contending that it was an error of law for a Tribunal not to ask, in terms reflected in its judgment, what was the predominant motive.
27. If that is a common perception of the effect of Street it is a heresy which needs to be remedied. The wording of the statute is always the starting point. The question which the statute poses is whether a disclosure is made in good faith: it does not ask 'predominantly in good faith', nor does it ask for a description and evaluation of other motives that there might have been. Lord Justice Wall made this point in concurring with Lord Justice Auld's judgment (and therefore seeing nothing contradictory to what Lord Justice Auld had said) when he, Wall LJ, said by way of further explanation of the reasoning of the Court of Appeal at paragraph 63:

"I am in no doubt at all that, on the facts of this case, the Employment Tribunal was entitled to reach the conclusion that the disclosures made by the Appellant were not made in good faith but were instead motivated by her personal antagonism towards [her line manager]…"

That was a reflection of the particular conclusion of the Tribunal in that case most clearly referred to by quotation at paragraph 29 of the Appeal judgments. The Tribunal in Street had not asked itself, so it appears, what was the predominant motive. It had investigated what was the motive, had decided it was antagonism, and had concluded that did not meet the statutory requirement of good faith.

28. At paragraph 71 Lord Justice Wall dealt with the context within which Part IVA of the 1996 Act is set, and at paragraph 72 said this:

"Motivation, however, is a complex concept, and self-evidently a person making a protected disclosure may have mixed motives. He or she is hardly likely to have warm feelings for the person about whom (or the activity about which) disclosure is made. It will, of course, be for the Tribunal to identify those different motives, and nothing in this judgment should derogate from the proposition that the question for the Tribunal at the end of the day as to whether a person was acting in good faith will not be: did the Applicant have mixed motives? It will always be: was the Complainant acting in good faith?"

29. Thus far, Lord Justice Wall appears to be saying that for a Tribunal simply to answer the question "was it in good faith?" is sufficient, that is if the Tribunal were to conclude that the motivation was other than the motivation provided for by statute, so that it was an ulterior motive, it would be entitled to do so. What he said at paragraph 73 makes this, in our view, self evidently clear:

"In answering this question, however, it seems to me that Tribunals must be free, when examining an Applicant's motivation, to conclude on a given set of facts that he or she had mixed motives, and was not acting in good faith."

The expression that a Tribunal must 'be free' is not a requirement that the Tribunal is bound to consider mixed motivation: it is merely that it is not in error of law if it does, despite the need for the focus to be upon the statutory question of good faith or no.

30. He describes in the balance of paragraph 73 the approach which a Tribunal might take:

"If that is correct, how is it to be done? I can see no more satisfactory way of reaching such a conclusion than by finding that the Applicant was not acting in good faith because his or her predominant motivation for disclosing information was not directed to remedying the wrongs identified in section 43B, but was an ulterior motive unrelated to the statutory objectives".

31. In other words a Tribunal can and may very well examine a mixture of motives, in which case the question for its determination must necessarily be which is the predominant motive. It is not, it follows from the very facts of Street itself, an error of law for a Tribunal to conclude simply that a disclosure has not been made in good faith because it was motivated by personal antagonism.
32. If the only motivation which the Tribunal describes is personal antagonism, as here, it seems plain in the context of its judgment as a whole that that is what it was regarding as the predominant motivation if indeed it regarded motivation as mixed. If it were the sole motivation (and it must be noted it is the only motivation the Tribunal identifies) then that too must necessarily meet the statutory test because the sole motive is plainly greater than the predominant motive, and any test which seeks the identification of a predominant motive must necessarily be satisfied by the identification of the sole motive.
33. Accordingly, we do not think that there is any force in the submissions made to us by Mr Kirby that the Tribunal should have analysed to a greater extent than they did whether and to what extent personal antagonism was a dominant or predominant motive.
34. We cannot pass from this part of the argument without noting that there was no sustained challenge to the entitlement of the Tribunal to conclude on the facts that they found that there was personal antagonism between the Claimant and Mrs Cable and that personal antagonism might have motivated the writing of the letter upon which reliance was placed.
35. The procedural issue: The principle enshrined in many cases, and recognised too in the context of the Employment Rights Act 1996, part IVA, is to the effect that fairness and proper procedure demands that a Claimant or Respondent be told of any matter which is likely to be held against them by a Tribunal such that they have a reasonable opportunity of meeting the point and if they have an answer, giving it. This is particularly so if it may be thought that there is some moral obloquy which may attach to the issue concerned. Thus a court or Tribunal will be stringent in ensuring that if, for instance, a party is to be accused of dishonesty or criminal behaviour or fraud or, it is said in this case, a lack of good faith, that should be clearly made known to them so that they may have a proper opportunity of dealing with the point.
36. Reliance before us was therefore placed on the decision of this Tribunal of Lucas v Chichester Diocesan Housing Association Limited [2005] UKEAT 0713/04/0702 (HHJ McMullen QC presiding), a decision of 7 February 2005. In paragraph 39 this Tribunal observed that where an allegation is made that disclosure was not made in good faith the evidence as a whole must be cogent, for bad faith is a surprising and unusual feature of working relationships and, as Lord Nicholls said in Re H and others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC563, 586, the more serious the allegation, the less likely it is to have occurred and hence the more cogent is the evidence required to prove it. In that particular case this Tribunal was dealing with a case in which the Claimant had in essence lost on one point only which was a point never put to her. This Tribunal decided that was unfair.
37. What he argued, before us, was based upon the immediate reaction no doubt of Miss Meares to the basis of the decision against her when, in her Notice of Appeal, she had claimed, at paragraph 6, that the matter of good faith was never raised during her case, that the Respondent had made no mention of it and the matter of good faith was never addressed during the three day full merits hearing before the Tribunal. She maintained that she had not been questioned on her motives nor was any evidence relating to that provided to the Tribunal. The Tribunal had failed to observe the principle expressed as it was in Lucas.
38. The Respondent, in its Respondent's Notice, maintained that indeed the issue of good faith had indeed been raised.
39. As a consequence enquiries were made. Notes of the cross examination of the Claimant in relation to the issue of motive were extracted by the Employment Judge. Those show that in the course of cross examination she was invited to comment on a characterisation of the central letter by counsel for the Respondent, Mr Moretto then as he is for the Respondent today, as threatening in a number of respects, as mud slinging, and as written for the purpose of undermining Mrs Cable. Finally and very clearly a question is recorded in these terms:

"I suggest the letter wasn't a protected disclosure but was to aggressively rebut Mrs Cable's letter and undermine her and to assert your authority over her."

40. There were answers to those questions. But the issue before us is whether the matter was put, so that the Claimant could deal with it. The words 'good faith' themselves do not appear. In the Respondent's submissions, made at the close of the full merits hearing (but made before Mr Sparks who was then representing the Claimant responded) Mr Moretto dealt with the question of good faith in two paragraphs, paragraph 9 and 10. He gave detailed reasons for inviting the conclusion of the Tribunal that the disclosure had not been made in good faith. He relied, amongst other things, upon the conclusion in Street that if the main motive for a disclosure was antagonism toward the manager then it could not be regarded as being made in good faith. Although we would prefer the formulation that a Tribunal was entitled to hold it was not in good faith, because plainly, as it seems to us, every case must depend upon its own facts and this must particularly be so when it comes to issues as complex as motivation, it is nonetheless plain that at that stage the point was very clearly put, and then the very words "good faith" were used.
41. What Mr Kirby then argues, orally, is that it is necessary for a point to be raised sufficiently in advance such that the person against whom any allegation of this type is made can see that it is fairly and squarely put to them and has a fair and reasonable opportunity to answer it. He notes that in this case there was first of all nothing said in the ET3, the Respondent's Notice, to the effect that the Claimant had made allegations other than in good faith.
42. Next, he draws attention to the fact that there was a case management discussion prior to the hearing. At that CMD a list of issues, albeit prepared by the Claimant, was treated as a list of the issues for decision by the Tribunal. It contained no express reference to good faith. The case management order contains no reference to there being any dispute about the good faith or otherwise with which she wrote the letter of 11 May 2007. There is nothing in the notes of housekeeping which the Employment Judge at the Tribunal has provided for us to show that on the occasion they were made, at the outset of the hearing, reference was made by Mr Moretto or the Respondent to any alleged absence of good faith. Although perhaps one might not have expected argument to appear in the witness statements tendered for the Respondent, and indeed it would be a matter of regret to us if it had, as a matter of record there was no allegation made there either. Thus it was for the first time, when she was giving evidence, that Miss Meares was confronted with questions as to motive and even then the words "good faith" were not used. This, contends Mr Kirby, was unfair.
43. In Doherty v British Midland Airways Limited [2006] IRLR 90, a decision of the Employment Appeal Tribunal chaired by HHJ McMullen QC, the Judge had referred at paragraph 39 to the need to make any point of bad faith clearly in advance so that a party of the object of such criticism has an opportunity to deal with it. Mr Kirby argues this had not been done or done properly in the present case.
44. Mr Moretto, for his part, argues that good faith was always in play and was clearly put. He argues that nine points are to be made here which show that it was clear sufficiently to the Claimant so that she might rebut the allegation. First, the issues in the issue list, drawn up by her for the purposes of the case management discussion, refer specifically to it being in issue whether disclosure was made to her employer pursuant to section 43C. As we have noted, section 43C contains two important elements: one is the nature of the person to whom the disclosure is addressed, but the other is good faith. This was therefore, though not expressly, nonetheless (and necessarily) put in issue by the list of issues.
45. Mr Moretto told us next of his personal recollection about what had been said at the start of the hearing. We discount that because there is no record of it made by the Employment Judge - but he is right to say, in his next point, that the dispute about whether or not there had been a protected disclosure under section 43C was specifically recognised by the Tribunal at paragraph 2 of its decision and it must therefore be taken that the Tribunal had it in mind as a legitimate issue throughout the proceedings. Indeed we observed, earlier during the argument before us, that when questions in cross-examination had been asked as to motive, which of the issues in the case could only logically relate to the issue of good faith, there had been no objection made either by counsel or by the Tribunal Chair to stop them being asked. That should have occurred had the issue been irrelevant.
46. Mr Moretto relies upon the record of the cross examination, as made by the Employment Judge, which shows that reference had been made to the bullying tone of the letter by other witnesses. However it seems to us that this cannot help on the issue of good faith because it describes an aspect of the way the letter was written. It does not directly deal with the motivation for it. He emphasises that Miss Meares was represented by counsel who did not indicate that the cross examination or the submission either prejudiced him or his client or took him or his client by surprise. He tells us that it has not been suggested that had the matter been put differently the Claimant would have been in any different a position than that in which she was, and that questions as to the essence of what good faith was all about in this case were put clearly and straight to Miss Mears so that she had a chance to respond.
47. It is true that the words "good faith" were not themselves used in cross-examination, but it was suggested that her motive was that of personal antagonism, thus she had a chance to respond to that. He draws our attention to what was said by Lord Justice Mummery in the case of Woodhouse School v Webster [2009] ICR 818 at paragraph 38:

"There is, in general, no procedural unfairness or injustice in the employment tribunal making findings based on evidence before the employment tribunal, if the parties have had a fair opportunity to address submissions to the tribunal on the substance of the evidence and if there is no real possibility that further submissions would have made any difference to the outcome".

Discussion

48. The principle as it seems to us is clear and we have stated it. One aspect of the principle, however, may merit further discussion. That is the observation in paragraph 39 in Doherty that if a point is made as to bad faith it has to be made clearly in advance. That begs the question: in advance of what? Mr Kirby's submissions would tend to argue in advance of the hearing itself. Mr Moretto's submissions would argue in advance of the decision being made.
49. It seems plain to us that provided that a reasonable opportunity is made or available for the Claimant to rebut any suggestion which is adverse to her, the critical time before which it must be made is the time at which the Tribunal begins to consider its decision after receiving evidence and submissions. In this particular case, for instance, if Miss Meares had been taken at a disadvantage by the submission made at the conclusion of the case that she lacked good faith, or by the questions that alleged that she had a motive other than that which she put forward for writing the letter as she did, then we would have thought it was open to, and indeed we would have expected, counsel to have asked for an adjournment or to call further evidence or to recall Miss Meares to deal with the point. We would have expected some objection if such an important point had not been properly ventilated beforehand. None of that happened.
50. We have looked here to see whether the allegations were sufficiently made. What, in our view, must be focussed on are not the words 'good faith' as though they were some kind of mantra. What matters in a case such as this is what in the context of the individual case those words actually mean. Here the issue was clearly whether Miss Meares made the allegation she did in her letter in order to draw the attention of her employer to a breach of the employer's duty, and did so with a view to the public interest, or whether, rather, as the employer contended, she did so because of her personal antagonism towards Mrs Cable and to score a point against or to undermine her.
51. The Tribunal's conclusion was that the disclosure was not made in good faith as in the former case but was, and we emphasise the next few words, as in the case of Street motivated by the Claimant's personal antagonism. The Tribunal plainly had regard to the case of Street. Street was common currency at the Tribunal. That showed that here when antagonism was being alleged that that went to the question of motive, and the question of motive straight to the issue of good faith. In this case the actual words "good faith" would have had much less meaning in context than did the allegation which was actually put, and it must be allegations of substance which are put to parties rather than some legal terminology which parties which may not be able easily to understand devoid of context. A question – "You didn't do this in good faith, did you?" – begs what that actually implies in the circumstances of a particular case.
52. In short, we are entirely satisfied that here: (1) the issue was properly before the Tribunal; (2) that the questions put to Miss Meares gave her a proper opportunity to answer the allegation made against her that her motivation was other than she claimed. She had, through counsel, an opportunity to respond in detail to the allegations at the conclusion of the case and indeed had the last word. This is a very different case from one such as Lucas where the allegation was never put. It is a case in which we are satisfied that she had that reasonable opportunity to deal with matters held against her which the law requires.
53. In the light of our conclusions therefore, that there is no force in either of the two points taken by Mr Kirby on appeal and his having abandoned a third point which had initially been adumbrated, that of perversity, we have declined to call upon Mr Moretto to advance his cross appeal which would otherwise contingently have followed. We should technically dismiss the cross appeal (subject to arguments by counsel) noting that we have not heard nor determined it but dismissed it because as a contingency it simply did not arise on our primary holdings.
54. In conclusion, neither of the grounds argued before us having any force, we are obliged to dismiss this appeal, with gratitude to counsel for their well-focussed submissions.