United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DR MANIVASAGAM EASWARAN (The Appellant in Person)
For the Respondent	MS SHIRLEY BOTHROYD (of Counsel) Instructed by: Messrs Mills & Reeve LLP Solicitors Francis House 112 Hills Road Cambridge CB2 1PH


 


SUMMARY

VICTIMISATION DISCRIMINATION – Protected disclosure

Tribunal entitled to decide on the facts that the employee's belief that his disclosure tended to show matters of the kind specified under section 43B (1) of the Employment Rights Act 1996 was not reasonable.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. This is an appeal against the decision of an Employment Tribunal sitting at London (South) chaired by Employment Judge Taylor, dismissing the Claimant's claim under section 48 (1A) of the Employment Rights Act 1996. The case was heard over four days in December 2009, and the Judgment and written Reasons were sent to the parties on 27 January 2010.
2. The Appellant has appeared before us in person. The Respondent is represented by Ms Bothroyd of counsel. Both appeared in the Tribunal.

THE STATUTORY PROVISIONS

3. Section 47B of the 1996 Act provides that a worker has the right not to be subjected to any detriment by his employer on the ground that he has made a protected disclosure. Claims of a breach of that right can be presented to an Employment Tribunal by virtue of section 48 (1A).
4. A protected disclosure is defined by section 43A as follows:

"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."

5. Section 43B reads, so far as material, as follows:

"(1) In this Part a "qualifying disclosure" means any disclosure of 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,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

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

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

[…]"

6. Section 43C provides, so far as material:

"A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith -

(a) to his employer, or

[…]"

7. There is no need for present purposes to refer to sections 43D to 43H.

THE FACTS

8. The Respondent is responsible for the St George's Hospital Medical School. The Appellant was at the material times employed by the Respondent as a medical demonstrator. His principal job was to prepare cadavers for teaching purposes and to assist in demonstrations for students studying anatomy. Much of his work, therefore, took place in the dissecting room at the hospital.
9. In late 2006 or early 2007 a problem developed with the air exchange and cooling system in the dissecting room. One result was that in the winter the room could be very cold. Another result was that there was a risk that fumes from the formalin used to preserve the cadavers might build up. Formalin vapour can cause a risk to health. Mr Dennis, the dissecting room technician, who had responsibility for physical conditions in the room, would where necessary counter that risk by opening the windows. The Tribunal found that the opening of the windows and the leaving of them open did not in fact significantly aggravate the temperature problem caused by the malfunctioning of the system, but that that was so might not have been obvious to others.
10. The problem was recognised and was eventually solved by the installation of a new system which came into operation in April 2008, but in the winter of 2007 to 2008 it was unresolved. When the Appellant started work in the dissecting room on 5 November 2007 he regarded the temperature as "freezing". (He has made clear that that was a figure of speech and he was not suggesting that the temperature was actually below zero.) He asked Mr Dennis to close the windows. He refused because of the formalin risk to which we have referred. An altercation developed in which, on the Tribunal's findings, both men became very angry. Mr Dennis used bad language towards the Appellant.
11. Later that day the Appellant wrote a letter to Dr Penny Murphy, who at the material time had ultimate managerial responsibility for academic staff. The letter reads as follows:

"I would like to bring it to your notice the incident that happened in the Dissection Room today. I and Mr Greg (Anatomy Demonstrator) both entered the DR and both of us felt that it was freezing inside. That time Mr Lee, Technician, went past us and I asked Mr Lee if he could close the DR windows. He said he couldn't for the reason that the fumes would not be let out. Then I suggested to him that we could close the windows in the evening before we leave and open it the next morning so that the temperature in the DR doesn't fall to freezing levels in the night and there was no way to raise the temperature in the morning. He took strong exception to my suggestion and said, "Who are you to tell me what I should do?" I said it was basic health and safety as we do stay for hours inside the DR that might affect my health adversely (eg: Pnumonia (sic) etc). He got so angry and he literally abused me by saying F*** word 10 times. Finally he said, "Stay away from me I am working for 8 years here and I know what health and safety is". The fellow Demonstrators watched this scene and it was totally inappropriate for him to talk like that. It was a simple discussion and I had raised this matter not only to protect my health but also other Demonstrators' and students. Today when the students entered their first comment was it was freezing inside. Majority of the Demonstrators felt the same way as I did. As the winter is arriving I request your kind self to take appropriate action on this."

(We should say that the reference to "Mr Lee" is to Mr Dennis, Lee being his first name.)

12. Following this incident the Appellant suffered, or believed that he suffered, a large number of detriments in the course of his employment. Since no issue arises in relation to them on this appeal, we need not itemise them. His case, however, is that they were done by reason of his having written the letter to Dr Murphy of 5 November 2007.
13. We should mention, because it features in the Appellant's submissions, one other matter of fact. The Appellant continued to raise points about the temperature in the dissecting room. These in due course led to him being referred, apparently by Dr Bazira, to the Occupational Health Department. He was seen there on 28 January 2008 by a Dr Alam. Immediately following that consultation Dr Alam wrote a note to Dr Bazira, copying it to the Appellant, in the following terms:

"Thank you for referring Dr Easwaran to the Occupational Health Department, I saw him this afternoon.

He has a long-standing problem of nasal congestion and sinusitis. For the last six months he has been getting frequent flare ups of his condition. He believes that it could be due to low ambient temperature in the dissection hall where he works on a regular basis.

He informed me that windows in the hall are kept open to compensate for a faulty exhaust system. He also stated that he has recorded a temperature of 15°C with his own thermometer, when there were about 200 students in the hall.

The Approved Code of Practice to the Workplace (Health, Safety and Welfare) Regulation 1992 explains that:

"The temperature in the workroom should provide reasonable comfort without the need of special clothing. Where such a temperature is impractical because of hot or cold processes, all reasonable steps should be taken to achieve a temperature which is as close as possible to comfortable."

Dr Easwaran's condition has not resulted in sickness absence or any functional impairment. Transient nasal symptoms should be controllable with appropriate treatment and should not result in a higher rate of sickness absence.

In view of his concerns regarding ventilation, may I recommend (if not already done) that estates look at servicing the ventilation in the dissecting hall. It is possible that this manoeuvre will correct Dr Easwaran's symptoms.

I have arranged any follow up for Dr Easwaran at present, but I would be happy to see him if necessary especially if his symptoms persist after the ventilation system is repaired."

THE CLAIM

14. It is and was the Appellant's case that his letter to Dr Murphy constituted a qualifying disclosure within the meaning of section 43B of the 1996 Act. His pleaded claim was not explicit as to which of the heads under sub-section (1) he relied on; but the obvious head, in view of the references in the letter to health and safety, is (d) - namely "that the health or safety of any individual has been, is being or is likely to be endangered". The only risk specifically referred to in the letter of 5 November 2007 is the risk of pneumonia, and that is the risk which the Appellant principally emphasised in his evidence and submissions to the Tribunal and to us. It is fair to say that he made passing reference to sinusitis, which was of course also mentioned in the report of Dr Alam, and to other conditions sometimes associated with exposure to cold, such as sore throats. But he also said to us in the course of his submissions:

"I believed I could get pneumonia; I wasn't worried about sinusitis, which is easily treatable. It is pneumonia I was worried about."

That reflects both the terms of the letter and the case as we understand it to have been run in the Employment Tribunal.

15. The Tribunal was prepared to consider the Appellant as also, at least potentially, relying on head (b) under section 43B (1), that is "that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject". So far as this way of putting the case is concerned, it is nowhere made entirely clear what legal obligation is relied on, but it is self-evident that to expose people working in the dissecting room to a risk of pneumonia would involve a likelihood of a breach of a duty arising under the Health and Safety at Work Act 1974 and/or regulations made under it.
16. The Code of Practice referred to in Dr Alam's memorandum refers also to maintaining a temperature which "provides reasonable comfort without the need for special clothing". It has not been made clear to us what the legal status of that recommendation is; but in any event the Code of Practice was not referred to in the letter of 5 November 2007, and there is no evidence that the Appellant had it in mind at that time.

THE TRIBUNAL'S REASONS

17. The Tribunal's reasons for holding that the letter of 5 November 2007 did not constitute a qualifying disclosure appear at paragraphs 43 to 52 of the Reasons as follows:

"43. We considered whether the Claimant had, as he alleged, made a "disclosure of information" by his letter of 5 November 2007. We considered, firstly, whether the letter of 5 November 2007, in his reasonable belief, tended to show that the health and safety of any individual "has been, is being or is likely to be endangered".

44. The Claimant claimed in his letter to have told Mr Dennis: "I said it was basic health and safety as we do stay for hours inside the DR that might affect my health adversely e.g. pneumonia etc.". The Tribunal considered whether that statement or any other part of the content of the letter, or the letter taken as a whole, constituted a disclosure of information tending to show that the health and safety of any individual was or had been at risk.

45. It appeared to the Tribunal that the Claimant was, by his statement making an unsupported allegation. We considered this to be a mere assertion or simply the Claimant expressing his opinion. On the matter of health and safety, the Claimant records in the letter that Mr Dennis told him that the reason for the windows being opened was to let the fumes out of the room. The Claimant also specifically records that Mr Dennis told him that opening the windows was a "health and safety" issue. That does not, in our view, constitute a disclosure of information tending to show that the health and safety of any individual was or had been at risk.

46. The Claimant makes other allegations concerning health and safety in his letter; one such allegation is that the temperature was "freezing". The Tribunal heard no evidence that the dissection room, although cold, had ever reached a temperature even approaching 0°C. We arrived at the view that this was a figure of speech or the expression of the Claimant's opinion but that it did not amount to a disclosure of information that in fact the dissecting room had dropped to such a low temperature.

47. We considered whether the Claimant's claim that he was at risk of contracting "pneumonia etc" amounted to a disclosure of information tending to show that the health and safety of any individual was or had been at risk. The Tribunal found that this statement also amounted to no more than a mere expression of an opinion. In arriving at that decision, we took into consideration that the Claimant was not, at the time he made the statement, in danger of contracting pneumonia, or had reason to believe that he was likely to contract pneumonia from the temperature in the dissecting room. On the Claimant's own evidence, it would not have been possible for him to contract pneumonia in a properly ventilated environment. We had regard to the Claimant's reference to the need for protection of staff and students. Similarly, the Tribunal concluded that the Claimant's claims that the health and safety of staff and students were being endangered constituted an unsubstantiated expression of opinion.

48. Having heard the evidence we decided also to consider, secondly, whether in the letter of 5 November 2007, the Claimant had disclosed information which in his reasonable belief, tended to show that a person has failed to comply with any legal obligation to which he is subject.

49. The Claimant set out in that letter that Mr Dennis had explained that there were health and safety reasons for opening the windows. In those circumstances we find that the Claimant's letter does not satisfy the definition of amounting to a disclosure of information tending to show that he had a reasonable belief that the Respondent had failed to comply with a legal obligation.

50. The Tribunal concluded therefore that the Claimant did not convey any facts to the Respondent that could be regarded as amounting a disclosure of information, as defined by section 43B.

51. The Tribunal found that the Claimant made allegations for the primary purpose of complaining about the conduct of Mr Dennis and that his allegations of being subjected to harm were unsubstantiated.

52. The Tribunal concluded that by his letter to the Respondent of 5 November 2007 the Claimant had done do (sic) more than to complain that he had informed Mr Dennis that he felt cold when he was working in the dissecting room and that Mr Dennis had acted in an inappropriate manner towards him. We find that the Claimant has failed to satisfy the Tribunal that he made a "disclosure of information" by his letter. Accordingly, we find that the Claimant did not make a disclosure qualifying for protection within the meaning of Part IVA of the 1996 Act. That being the case it is unnecessary for the Tribunal to proceed to determine the remaining issues identified or whether the Claimant was subjected to detriments as alleged at paragraph 1.5 of the case management directions."

18. So far as relevant for present purposes, the claim under section 43B gives rise to three questions:

(A) Did the Appellant disclose any information to Dr Murphy?

(B) If so, did he believe that that information tended to show either of the matters specified at section 43(1) (b) or (d) (though, for the reasons we have given, the two in practice come to the same thing)?

(C) If so, was that belief reasonable?

19. Those questions are not sufficiently distinguished in the Tribunal's reasoning as we have set it out above. Paragraph 42 suggests that the Tribunal is about to embark on a systematic approach taking the various elements in section 43B (1) in turn, and paragraph 43 starts well by saying that the Tribunal will consider first, in effect, our question (A); but it then spoils that good beginning by reformulating the question in a way which ignores question (A) and runs together questions (B) and (C). That is unfortunate. It is always desirable, and particularly so in the case of complex provisions of this kind, for employment tribunals carefully to analyse the separate elements in the statutory provision under consideration and then to consider in turn whether each has been met. Nevertheless, it is possible to do some disentangling; and if the Tribunal has in fact addressed the right questions, albeit not in the most systematic way, no error of law will have occurred.
20. As to (A), it is not entirely clear whether the Tribunal meant to find that the letter to Dr Murphy contained no information; but certainly some passages from the paragraphs which we have set out could be read as making such a finding. If so, it is, with respect, wrong. It seems to us clear that the letter did contain some information (over and above the allegations about Mr Dennis' behaviour towards the Appellant which are immaterial for present purposes): in particular, it contained information that the room was very cold and that Mr Dennis was not prepared to close the windows in order to try to mitigate the problem.
21. As to (B), the Tribunal makes no express finding about whether the Appellant actually believed that the temperature in the dissecting room was likely to cause a risk to the health and safety of the people working there - or, therefore, as to whether he believed that any person was likely to be in breach of any legal obligation. We get the impression that the Tribunal may have thought that he did not in fact have any such belief and that he raised the question essentially as a vehicle to express his anger at Mr Dennis' conduct towards him. However, it made no finding of bad faith, despite being invited to do so by Ms Bothroyd; and even if it would be possible to make a finding that the Appellant had no belief in the matters that he was stating without that amounting to a finding of bad faith, which is debatable, we would have expected such a finding to be made explicitly. We are, therefore, prepared to proceed on the basis that the Tribunal did not, or in any event did not sufficiently clearly, make any finding that the Appellant did not believe in the risk to health and safety which he was asserting.
22. The crucial issue is thus (C). In our view, the Tribunal did clearly find that any such belief that the Appellant may have held was not a reasonable belief. That is clear from the second half of the third sentence of paragraph 47 of the Reasons. The finding there made is based squarely on the fuller findings of fact at paragraph 24 of the Reasons, which are in the following terms:

"The Tribunal heard no evidence from the Claimant, or any other witness, that the temperatures in the dissecting room had ever fallen below a level that posed a danger to the health and safety of any members of staff or students. We found that it had not. The Claimant gave evidence that he believed he "might get pneumonia" because of the cold temperature, but produced no evidence to support his allegation. Pneumonia is "an inflammation of the lungs caused by an infection of the lung tissue". Pneumonia is not a condition caused by working in cold temperatures."

23. The Tribunal had heard evidence from a number of witnesses with medical expertise (though the Appellant tells us that only one, Dr Bazira, was a clinical doctor) and the finding made in paragraph 47 was clearly open to it. We are also bound to say that it seems to us to be an obviously correct finding. Of course, the facts found in paragraph 24 do not necessarily mean that, simply because the Claimant's belief was wrong, it was unreasonable; but on the evidence in the present case a finding that it was not only wrong but unreasonable was entirely appropriate. The fact is that, even allowing that the Appellant may genuinely have believed what he said, it is clear that the Tribunal saw this as a case where his anger with Mr Dennis led him into taking an extreme and unjustifiable position about the risk of pneumonia.
24. We should say something about the passage immediately following that which we have referred to in paragraph 47, where the Tribunal says:

"On the Claimant's own evidence, it would not have been possible for him to contract pneumonia in a properly ventilated environment."

He tells us that he did not say that. We have not had any notes of his evidence from which we could verify his denial; but it is clear in any event that the statement attributed to him was not decisive and that the conclusion was one which the Tribunal would have reached in any event.

THE GROUNDS OF APPEAL

25. Against that background we turn to the Appellant's amended grounds of appeal. These were not drafted by a lawyer, but we took pains to go through them with him at the start of the hearing and established that he was making essentially three points:

(1) that if the Tribunal was indeed saying that the letter of 5 November 2007 gave Dr Murphy no information that was wrong;

(2) that on the evidence the Tribunal was bound to find that he genuinely believed that the information contained in the letter tended to show the likelihood of a risk to the health and safety of himself and other persons working in the dissecting room and, thus, also a breach of the Respondent's legal obligations; and

(3) that on the evidence the Tribunal was bound to find that his belief was a reasonable one.

In connection with point (3) he made three particular criticisms of the Tribunal - first that it omitted any reference to Dr Alam's memorandum, which we have set out above; secondly, that it omitted any express reference to two pages which he had printed off the internet in the course of the hearing from a BUPA website containing certain facts about pneumonia; and thirdly that it omitted to refer to an incident which occurred in May 2008 when a student collapsed in the dissecting room.

26. As regards the first point - that is to say, that the Tribunal was wrong to find that the letter disclosed no information - it will be apparent from what we have already said that we agree that if that is the correct reading of the Reasons it was indeed wrong. As regards the second point, we have said above that we accept that the Reasons cannot properly be read as finding that the Appellant had no genuine belief in the risk which he was asserting. Those points, therefore, may be taken as established in his favour. But, as we have said, the important point is the third, that is to say the question of the reasonableness of the belief. For the reasons we have already given, it seems to us clear that that was a finding which the Tribunal was entitled to make.
27. As to the particular points made in that connection:

(a) There is nothing in Dr Alam's memorandum which was so supportive of the Appellant's case that it required to be specifically addressed in the Reasons. It says nothing whatever above the risk of pneumonia, and even as regards the risk of sinusitis it is far from establishing that the conditions in the dissecting room posed a risk to his, or anyone else's, health and safety.

(b) As for the internet material about pneumonia, this established nothing material. The Appellant relies on a statement that most pneumonia infections occur in the autumn or winter. That does not come close to establishing that allowing persons to work in unusually cold conditions in the dissecting room meant that it was likely that they would develop pneumonia - or even, if this be different, that it was likely that there was a risk that they would develop pneumonia.

(c) As for the incident when the student collapsed, this was, of course, in the summer and had nothing to do with the problem of excessively low temperatures prevailing in the dissecting room in the winter.

28. For all those reasons we can see no error of law in the Tribunal's decision, and this appeal must be dismissed.
29. There are two other matters which we should briefly mention.
30. The first is that by a letter to the Registrar dated 31 March 2010 the Appellant sought permission to adduce fresh evidence for the purpose of this appeal. The evidence consisted of temperature readings made by the Appellant in the dissecting room in late January 2008 and early February 2008. With his initial application he submitted only a summary, but he has since produced the original notes that he made of those readings. In the application he said:

"Unfortunately this evidence could not be produced in the Tribunal hearing as I couldn't find the notes before the hearing. Recently I have made extensive search and found this notes, since the Respondent's barrister mentioned in her answer to the Employment Appeal Tribunal that I hadn't produced to the Tribunal the notes of actual temperature recordings in the dissecting hall."

Unsurprisingly, applying the usual principles, the Registrar refused permission on the basis that the Appellant's own application made it clear that he had the notes available before the hearing but had simply been unable to lay his hands on them. The fact that he was able to find them subsequently shows that, with reasonable diligence, they would have been available in time for the hearing. He has appealed against that decision. We would dismiss the appeal for the same reason as that given by the Registrar. We would, however, add that it is most unlikely that the notes in question would have made any difference to the Tribunal's reasoning. They show a variety of readings at different times of day, the lowest being 10°C at 9.00 a.m. on 4 February 2008, though readings later in the day are substantially higher, going indeed as high as 17°C. The Tribunal heard evidence, which it appears to have accepted, that the level of temperatures during the period in question was between 13°C and 15°C. The fact that it might have been considerably lower than that first thing in the morning on some days would not have borne on any of the issues. The whole case proceeded on the basis that the dissecting room was too cold; the real question was whether bringing that fact to the attention of Dr Murphy constituted a qualifying disclosure.

31. The other point is this. The Appellant was anxious that the notes of the evidence of Dr Adds and Dr Murphy be before the Tribunal. The Respondent's solicitors produced what, if we may say so, seem admirable notes of the evidence of both witnesses. That of Dr Adds was agreed; that of Dr Murphy was agreed subject, however, to a few points where the Appellant says that his own notes differed. In a pre-hearing decision I declined to direct that the Employment Judge be asked to provide his notes on the points of difference since they did not seem to me to be of any real significance for the purpose of the appeal. That has turned out to be the case. We have only had to make brief reference to the notes of evidence, and that only for points of background or marginal importance. We have not been referred to any point in the notes where the difference between the Appellant's version and the Respondent's featured.