THE HONOURABLE MR JUSTICE SILBER
Introduction
1.
By a decision of the Employment Tribunal dated 4 May 2010, it was
decided after a hearing lasting thirteen days that:-
(a) Mr John Watkinson
(“the Claimant”) had been unfairly dismissed by the Royal Cornwall Hospitals
NHS Trust (“the Respondent”) as a result of his having made a protected
disclosure on 5 August 2008 (“the August Disclosure”) and that the dismissal
was automatically unfair;
(b) The dismissal was
procedurally and substantively unfair;
(c) The Claimant was not
subjected to a detriment as a result of having made a protected disclosure on
30 September 2008; and
(d) The claim was adjourned for
further consideration of remedies.
2.
The Respondent now appeals against finding (a). The main issues raised
on this appeal relate to first, whether the Claimant on the facts of this case
was entitled to take advantage of the whistle-blowing provisions; second,
whether the findings of the Employment Tribunal are defective. Regrettably the
handing down of this judgment has at the request of counsel been delayed
pending the handing down of the decision of the Court of Appeal in HM Land
Registry v Grant [2011] EWCA Civ 769, which occurred on 1 July 2011 as
this was correctly considered to have great significance on an issue raised by
the Respondent. After judgment was handed down we received further skeleton
arguments from counsel.
3.
In order to understand the appeal, it is necessary to explain that the
Claimant’s case on the protected August disclosure was that his dismissal by
the Respondent was a result of pressure from the South West Strategic Health
Authority (“SHA”) and in particular its Chief Executive, Sir Ian Carruthers.
The disclosure relied on by the Claimant was first that the Respondent was
under a duty to undertake public consultation with regard to the
reconfiguration of services for patients suffering from upper gastro-intestinal
cancer (“Upper GI”) and second that any failure by the Respondent to do so
would be wrongful and illegal. The Claimant considered that the Respondent was
likely to fail to agree to a public consultation. The case for the Claimant is
that by advising the Respondent of its duty to consult, he was acting contrary
to the wishes and intentions of the SHA with the consequence that pressure was
applied on the Respondent by the SHA to dismiss the Claimant and indeed he was
duly sacked. The Claimant also contended that the dismissal was unfair on
ordinary principles because of a failure by the Respondent to follow a fair
procedure. In the light of the main issues raised by the Claimant, it is now
appropriate to explain the findings of the Employment Tribunal.
The findings of the Employment Tribunal
(i) The role of different entities and the proposed
re-configuration of Upper GI services
4.
The Respondent is the NHS Trust, which has responsibility for the
delivery of health services in Cornwall where it operates several hospitals
including Treliske Hospital at Truro, which is where the Claimant was based.
5.
The Respondent together with another 39 NHS Trusts in the South West of
England has its activities supervised and overviewed by the SHA, which is based
in Taunton. At the relevant times, the Chief Executive and Chair of the SHA
were Sir Ian Carruthers and Sir Michael Pitt respectively. The SHA requires to
be assured that the Trusts are operating efficiently and within budget. The
SHA’s concern for a Trust such as the Respondent was not limited to financial
performance, but it also included being concerned with the sufficiency and
quality of the services, which it provides to the public.
6.
Another entity involved in the developments leading to the Claimant’s
dismissal is the Health Care Commission (“HCC”), which is an independent body
set up to monitor the performance of NHS trusts according to a number of
standards operating in relation to particular areas. The HHC can carry out
inspections of some or all its standards.
7.
The background to this case concerns the provision of cancer treatment
including surgery for patients suffering from Upper GI, which is a rare form of
cancer requiring specialist surgical and other treatment and the Respondent
provided these services until January 2010. In 2001, a guidance document
(“IOG”) aimed at improving the outcome and guidance for cancer patients was
issued by the Department of Health. It set out guidance for the outcomes,
treatment and survival rates for patients who had been suffering from cancer.
In respect of Upper GI, there are higher rates of survival and less prospect of
infection and other post-operative complications if such services are
concentrated in hospitals serving a population of more than a million people.
Statistically this population size apparently offers the prospect of a
sufficiently high number of cases to enable surgeons and other health care
professionals to be able to develop the necessary level of expertise and
experience so as to improve the outcome for patients. Provision of such
services in an IOG-compliant centre would offer the prospect of 50 or so cases
a year so as to enable the development and maintenance of the appropriate level
of expertise.
8.
Upper GI services were provided at Treliske, but the number of patients
using those services was normally about 25 a year and this was not regarded as
sufficient for the Respondent to be compliant with the IOG. In 2002, the
Peninsula Cancer Network (“PCN”), which was an NHS Advocacy Group set up to
provide advice on cancer cure in the South-West Peninsular, produced a plan for
the reorganisation of Upper GI services. This meant that the services which
had been provided at the Royal Devon and Exeter Hospital Foundation Trust,
Derriford which is near Plymouth, as well as Treliske would thereafter be based
solely at Derriford, which would then become a centre of excellence and would
be IOG-compliant. Treliske would thereafter be used for other aspects of the
service such diagnostics, radiotherapy and follow-up services.
9.
The proposal attracted widespread public concern and it was subject to
much public debate and consideration by patient groups, cancer support groups
and others in the public domain for two reasons. First, there was an issue as
to whether or not the clinical evidence supported the proposition that a
transfer to Derriford would be IOG-compliant and that it would achieve better
outcomes for patients. Second, there was the social concern as to the
difficulties which would be experienced by patients having to travel from
Cornwall and in some cases a substantial distance from the far west of Cornwall
to Plymouth, rather than being treated more locally at Treliske as happened at
the time.
10.
It is not disputed that there was a duty to consult with “interested
parties and stakeholders” about the proposed changes to issues arising
under s.242 of the National Health Services Act 2002 which applies to
all NHS Trusts such as the Respondent, as well as to the Cornwall and Isles of
Scilly Primary Care NHS Trust (“PCT”). A dispute as to whether there was a
need for consultation forms the background to this claim.
(ii) The Claimant
11.
The Claimant commenced service as the Chief Executive Officer of Bromley
Hospitals NHS Trust (“Bromley”) in May 2003 and he remained in that post until
31 December 2006, when he left to take up his post as Chief Executive of the
Respondent on the following day. To understand some subsequent developments,
it is necessary to explain that during the Claimant’s appointment at Bromley,
it had experienced a number of difficulties including a substantial financial
deficit, which extended over a period of years.
12.
When the Claimant commenced his appointment with the Respondent, it was
in a poor state as it had been assessed in 2006 to be the worst performing NHS Trust Hospital in England and it also had financial difficulties. On account of its
financial problems, a number of non-executive directors resigned including the
Chairman, Mr Martin Watts, who resigned on 30 April 2007 explaining in his
letter of resignation that he regarded the appointment of the Claimant as being
a very serious mistake.
13.
The Employment Tribunal found that the financial position of the
Respondent had improved by July 2008 as a result of much hard work on the part
of the Claimant, as well as of the other executive and non-executive
directors. The Trust had been subjected to inspection by the NHS Performance
Standards Team and in November 2007, it reported that the Respondent had made
progress in key areas although there still remained much to be achieved. It
also commented favourably on the leadership of the Claimant, the Chairman and
the Executive team.
(iii) The attitude of the Respondent towards consultation
relating to the proposed re-organisation
14.
Turning to the developments in relation to the PCN plan to reorganise
Upper GI services, the Respondent initially supported the proposal subject to
the necessary clinical evidence being made available to justify the transfer of
surgery to Derriford. In December 2007, however the Respondent’s Medical
Director wrote that the matter was to be discussed by the Respondent’s Board in
January 2008, but that pending that discussion, patients scheduled for Upper GI
surgery would have their treatment in Truro. In the letter, it was stated that
there were concerns about the loss of specialist surgical skills from the Respondent.
On 20 December 2007, the Chief Executive of the PCT confirmed to the Claimant
that the PCT supported the PCN plan. In January 2008, the Respondent’s board
discussed the proposed move of Upper GI services and then it decided that they
needed six months to consult the clinical staff and to carry out the review.
15.
On 8 February 2008, Mr Peter Davies, who was the Chairman of the Respondent
from May 2007 until his resignation on 10 July 2008, had a discussion with Sir
Ian Carruthers who said first that he was unhappy that the Claimant was not
taking the Respondent’s down the right path regarding Upper GI and second that
the Claimant was “a bullshitter”, who promised, but who did not deliver.
16.
The Respondent’s Board met on a regular monthly basis with members being
supplied with an agenda in good time before the meeting together with the
minutes of the previous meeting. They also received background papers. The
matters to be discussed fell into two parts with Part One business, being
public and open, and which was discussed in public. Part Two business was
confidential and so it was discussed in the absence of the press and the
public, but in both cases, the discussions were minuted. Part One minutes
would routinely be copied to SHA, to the PCT, to the Health and Adult Care
Overview Scrutiny Committee (“OSC”), which was a committee of Cornwall Council
discharging obligations to scrutinise local health services and to other
organisations. There was a dispute as to which parties received the Part Two
minutes but the Employment Tribunal preferred the evidence of the Claimant and
it found that on the balance of probabilities, the Part Two minutes were sent
to the SHA on a routine basis.
17.
Upper GI services were discussed at a joint meeting between the Respondent’s
Board and the PCT Board on 10 March 2008. Ms Anne James the Chief Executive of
the PCT made it clear that the planned changes should be implemented, since the
service as a whole was working outside the Guidance and it was not
IOG-Compliant. The Employment Tribunal inferred from the minutes that the PCT
was willing to proceed without consultation or public engagement. Ms James’
position was that unless the OSC directed that public consultation should take
place, that would not occur and that had been the PCT’s position since late
2007. The Employment Tribunal explained that Ms James had drawn a distinction
between consultation and public engagement with consultation denoting the
disclosure of a proposed change or course of action before a final decision had
been made coupled with the provision of sufficient information and time so as
to enable interested parties to consider and to present their views, which
could then be taken into account before a final decision was made. By way of
contrast, public engagement was a less rigorous process involving conveying
information to the public of the decision that had been made together with the
discussion of the implications and how it would be implemented.
18.
At this time, the issue of Upper GI was the subject of much public
comment with strong views being expressed by a number of patient groups and
campaigners. On 25 March 2008, the OSC met and agreed that the implementation
of the plan could be deferred whilst there be a period of public engagement and
this decision was reported to the Respondent’s Board.
19.
On 31 March 2008, Mr Peter Davis the Chairman of the Respondent wrote to
Sir Ian Carruthers prior to a meeting of the Chief Executives on the following
day, making the points first that the view of the Respondent was that public
consultation was important and second that this view had been formed by the Respondent
on the basis of representations from consultants to the effect that it would be
wrong to proceed without public consultation. Mr Davis was concerned that
although a scheduled meeting had been due to take place with the SHA to discuss
the way forward, such a meeting had never taken place and he was concerned to
learn from the PCT that the service was to be transferred to Derriford on 1
February 2008. The Respondent had non-executive directors, who on the basis of
evidence then presented to them, were not convinced of the clinical case for
the transfer but it had been agreed that the matter would be deferred to allow
further evidence to be taken and for public consultation to take place.
20.
On 1 April 2008, a meeting took place at the SHA’s office at Taunton, which was attended by Ms James of the PCT, Sir Ian Carruthers, the Claimant and
representatives of other NHS trusts. According to the minutes, Sir Ian
Carruthers expressed concern about the manner in which the matter of Upper GI
had been the subject of public disagreement and continued debate. He stressed
the need to put in place a system, which was IOG compliant, and it was proposed
that the centres should be consolidated into one by 2010. It was pointed out
that the OSC had discussed the matter and that it had agreed that the proposal
did not constitute a significant change with the result that it did not require
consultation. Sir Ian Carruthers expressed the view that he could not
understand why the implementation of the first phase of the plan was in
difficulty.
21.
The Claimant on behalf of the Respondent expressed the view that the Respondent
would not be in a position to deliver a compliant service. It supported a plan
for a single site but considered that a two-site interim solution would not be
IOG-compliant. There was some uncertainty about the move to a single centre,
which made it difficult to implement the first phase of the plan and Ms James
commented that a period of public engagement of six to eight weeks would allow
a further explanation of the facts before the transfer was made. Sir Ian
Carruthers reiterated that the transfer had been sanctioned to take place in
2001 and so the outstanding issues needed to be addressed as quickly as
possible.
22.
There was an important development on 2 May 2008, when Sir Ian
Carruthers attended a Peninsula Cancer Network meeting at St Mellion conference
centre near Plymouth. Notes were taken by Mr Tito Lopez, a consultant surgeon,
who attended and Sir Ian spoke at length during which he forcefully made the
point that transfer to Derriford was going to take place and that media
pressure would make no difference. He criticised the leadership of the Trust.
One of the comments Mr. Lopez noted was that Sir Ian Carruthers had said that “whole
of Cornwall can sign petition but won’t change outcome”.
23.
The Employment Tribunal pointed out that considerable concern was
generated by Sir Ian’s remarks at the meeting.
24.
In a letter dated 14 May 2008 from Ms James of the PCT to a
representative of “Keep Cancer Care in Cornwall” campaign, it was explained
that the view of the PCT was that the NHS were only required to consult on
substantial service changes and that the OSC and the PCT both took the view
that the proposal in relation to Upper GI (in contrast with that relating to
Head and Neck and Gynaecology surgery) was not substantial with the result that
there was no requirement to consult but there had been a policy of local
engagement. The PCT were proposing to commission Upper GI surgery services at
Derriford. The letter was copied to many recipients including the Secretary of
State for Health, Mr Ben Bradshaw MP, who was not only an MP for Exeter but also then the Minister of State for Health Services, other local MPs, Sir Ian
Carruthers, Sir Michael Pitt and the Claimant.
25.
The next development referred to by the Employment Tribunal occurred on
3 July 2008, when the Claimant and Mr Davis were told by the SHA that they were
required to attend a meeting in Taunton that day before the scheduled meeting
of the South West NHS Trust’s Chairman and Executives, which was due to be held
later that day. When Mr Davis and the Claimant arrived, they had a meeting
with Sir Ian Carruthers, Sir Michael Pitt, Mr Andrew Williamson of the PCT as
well as Ms James and Mr Gabriel Scally of the SHA. The evidence of Mr Davis
was that they were informed by Sir Ian Carruthers that they were to agree a
joint statement setting out the position and that they were not to leave the
room until this was done and that this statement would be put before the OSC
meeting on 15 July 2008. The evidence of Mr Davis was that this was the most
unpleasant meeting which he had ever attended in 38 years of public service.
26.
A draft was prepared which was shown to the Employment Tribunal in which
it was stated that during May and June 2008, the PCT had conducted a period of
public engagement over the Upper GI issue, which had been fully supported by
the Respondent as an opportunity to address the lack of earlier patient
engagement. The statement also recorded that the local NHS had a chance to
consider the feedback from the process alongside the :-
“Unequivocal clinical evidence of the improved outcomes that will
be achieved by centralising Upper GI cancer surgery. Consequently the PCT and
[the respondent] agree that the service at Truro should move to Plymouth as soon as possible, as the first phase of the Peninsula plan to establish a
single centre for Upper GI cancer surgery by 2010. The PCT and the RCHT are
firmly committed working through the Peninsula Cancer Network to ensure the
implementation of the 2nd phase of the plan. This will ensure that
local patients undergoing curative surgery have the best chance of survival.”
27.
Mr Davis then circulated the draft to the non-executive directors of the
Respondent, but none agreed to it and indeed the majority actively declined to
accept it. Mr Davis then felt his position as Chairman of the Respondent was
untenable and on 10 July 2008, he wrote to Sir Michael Pitt tendering his
resignation while making it clear that that he did so because the draft statement
did not have the support of the non-executive directors.
28.
On 15 July 2008, the OSC met and according to the minutes of the meeting
the Claimant, Sir Ian Carruthers and Sir Michael Pitt were not listed among the
attendees, but the latter two were recorded in the minutes as “notify”.
Among the people at the meeting were John Mills, who had taken over from Mr
Davis as Acting Chair of the Respondent. The issue of consultation over the
Upper GI Services was discussed and a report from Ms James was considered. At
the end of the meeting, the OSC concluded that the Upper GI proposals as well
as the Gynaecological and Head and Neck cancers represented a substantial
variation in accordance with the Health and Social Care Act 2001 with
the result that the PCT should undertake full public consultation on the
principles behind and the provision of each service.
29.
The Employment Tribunal noted that this was contrary to the position
previously expressed by the OSC and the PCT.
30.
A few days later, Ms James on behalf of the PCT wrote to the Chair of
the OSC explaining that there was uncertainty on the basis on which
consultation was then to take place and she indicated that the PCT was taking
legal advice to examine the basis for the OSC asking them to consult, because there
was a need for clarity on which proposals were to be debated and considered.
Her letter was copied to the Claimant. It appears that legal advice was
obtained by the PCT, but the Employment Tribunal were not told what it said.
31.
The Respondent also took the view that it would be necessary to obtain
legal advice and Mr David Lock of counsel was instructed. His advice was
received and it was made available to the Respondent on 30 July 2008. We have
seen a copy of the advice in which Mr Lock explains in very clear terms that
under section 242 of the Act, each body to which the duty applied was obliged
to make arrangements for consultation. His view was that the approach of the
PCT was unlawful with the result that both the Respondents and the PCT would be
acting unlawfully if they attempted to move the Upper GI services from Truro to Plymouth without prior consultation.
32.
Mr Lock’s advice was presented to the Respondent’s Board by the Claimant
on 5 August 2008 at their meeting. Prior to the meeting, the papers sent to
the directors had included a summary in relation to the process of engagement
of consultation in which it was stated that a legal view had been sought. The
Part Two papers stated that the Board had been provided with a legal opinion on
the issue and it was to be discussed. Indeed it was discussed in a Part Two
meeting at which no representative of either the SHA or the PCT was present.
The Claimant then explained at that meeting that the advice from counsel
imposed on the Respondent a duty to take part in the consultation and a similar
duty was imposed on the PCT. This disclosure, which was the “August
disclosure”, was relied on as being first qualifying disclosure and which, as
we have explained, was what the Employment Tribunal regarded as a “protected
disclosure”. This finding forms a ground of appeal and when we consider
it, we will then explain the evidence in relation to it in more detail.
33.
It is necessary at this point to explain some other matters which were
going on concerning the performance of the Respondent, particularly bearing in
mind that the HCC had laid down core standards to be met by NHS hospitals. In
2006/2007, the Respondent had declared itself compliant with 13 out of the 43
relevant standards. By 15 March 2008, it declared itself fully compliant with
at least 34 out of the 44 relevant standards as in 2007/2008 and stated that it
would be fully compliant as at 31 March 2008. In June 2008, the Claimant
received a phone call from the HCC inviting him to consider whether the Respondent
should reconsider its self-declarations and the Claimant explained in evidence
that he did not regard this as a formal request or an indication that all might
not be well. So he then took no action on the matter and he did not report
this telephone conversation to the Chairman or to any of the non-executive
directors.
34.
Subsequently, the HCC visited and inspected the Respondent’s hospital at
Truro and concluded that it was not compliant in 4 of the standards in which
it had earlier declared itself compliant. This was notified to Sir Ian
Carruthers some weeks before it was disclosed to the non-executive directors
and there is no evidence that Sir Ian Carruthers immediately communicated the
HCC’s misgivings to the Claimant or Mr Mills. The non-executive directors were
in fact informed by Sir Michael Pitt at a meeting on 25 September 2008 that the
standards had been failed. There is apparently an avenue of appeal against the
HCC conclusions, but there is no evidence that any appeal was pursued. Both Mr
Davis and the Claimant said in evidence to the Employment Tribunal that had
they been in post at this time, they would have definitely appealed against the
decision.
35.
On 15 July 2008, the Respondent’s Remuneration Committee had agreed to
recommend an increase in the Claimant’s salary of £25,000 per annum from
£145,000 to £170,000, but this increase would be subject to the approval of the
SHA. Mr Mills wrote to Sir Ian Carruthers on 26 July 2008 seeking approval for
this increase explaining that under the Claimant’s leadership, a great deal had
been achieved with the Trust moving from the bottom of the Health-Care
Commission League to a positive accolade of “Most improved trust”, but
no reply was ever received by Sir Ian Carruthers to that letter.
36.
On 18 August 2008, Professor Mike Richards, the National Cancer
Director, wrote to Sir Ian Carruthers expressing his concern that Upper GI
services at the Respondent were not IOG-compliant. He stated that two senior
surgeons should undertake an urgent review of Upper GI services at the Respondent
and they did so reporting that after careful consideration, they considered
that the service was safe but that it was not sustainable in its present form.
The Employment Tribunal understood that to mean that there were no unnecessary
or avoidable clinical risk to the patients undergoing surgery at Treliske, but
as it could not have complied with IOG due to the relatively small throughput
of patients, this could not be sustained.
(iv) Developments in Bromley
37.
In late 2007, the Bromley Hospitals NHS Trust decided to commission a
report because its performance had been poor and significantly worse than
originally reported to NHS London, which was the local equivalent of the SHA.
It was considered that a review of the management and governance was
appropriate and the Claimant was invited to attend Bromley for an interview,
but he did not do so because certain assurances which he sought were not
given. Sir Ian Carruthers knew of this review and according to Mr Davis, Sir
Ian Carruthers said on 15 February 2008 that he did not think that “Bromley
is an issue”.
38.
On 19 September 2008, Sir Michael Pitt, who had seen the report, spoke
to Mr Mills saying the report was serious and suspension was inevitable for the
Claimant and another employee of the Respondent, who had moved from Bromley.
Sir Michael Pitt explained that the Bromley report was “one of the most
damning he had ever seen”. Indeed the report was very critical of a number
of people including the Claimant, who was criticised for being in breach of the
Code of Conduct for NHS Managers and for continuing to exude optimism about the
Trust’s financial position until his departure at the end of 2006.
39.
The Respondent’s Board were asked to review it and it reached conclusions
but Sir Michael Pitt said that suspension would be the minimum appropriate
action at that stage. Mr Mills said that he had been left in no doubt by Sir
Michael that there was an implied threat of possible sanctions against them as
a Board if they did not “show the necessary leadership”.
40.
The Bromley report was made available to the Respondent’s Board, who met
on 24 September 2008 and the consensus view was that the Claimant was doing a
good job and that there were no grounds for taking any action. On 25 September
2008, the Board met Sir Michael Pitt and Sir Ian Carruthers and Sir Michael
Pitt said that the minimum appropriate action would be to suspend the Claimant
and another former employee of Bromley who was then working for the Respondent.
Sir Ian Carruthers expressed the view first that the Respondent might be
heading towards a greater corporate failure than Bromley and second that he
also believed that the Claimant should be suspended with a review being
undertaken into the management and governance of the Respondent to ensure that
the problems identified in Bromley were not recurring in Cornwall.
41.
After Sir Michael Pitt and Sir Ian Carruthers left the meeting, the
non-executive directors of the Respondent discussed the way forward feeling
very much under pressure from the SHA. After the meeting, Mr Mills spoke to
the Claimant explaining the position to him inviting him to take “special
leave” for the time being, which he reluctantly agreed to do.
(v) The suspension and dismissal of the Claimant
42.
During September 2008, various other problems came to light such as the
number of MRSA infection cases and possible financial difficulties. The
Bromley report was published and the Respondent issued a press release, which
the Claimant subsequently considered to be defamatory and of which he was very
critical. On 8 October 2008, the Respondent met and formally decided to
suspend the Claimant but before this happened, the Claimant had written a
letter to Mr Mills on 30 September 2008 in which he referred to the advice that
had been given that consultation was required and stating in his letter that:-
“My request for a proper consultation to comply with our legal
obligations and support for the initiative for the provision of better cancer
care services for the local population supported by the doctors and public that
opposed the SHA is, I believe, the real reason for the current action being
taken against me.”
43.
On the same day, a meeting was called of all senior medical and dental
staff to consider the position of the Claimant, but the Employment Tribunal
noted that there was overwhelming support from the clinicians for the Claimant
with them expressing concern that he had been suspended.
44.
The terms of the independent review were agreed by the Board on 3
October 2008 and Professor Ruth Hawker was appointed as the Chairman of the
Review Panel. The Claimant attended for an interview with the Review Panel on
7 November 2008.
45.
On 30 October 2008, the Respondent’s Board considered a number of issues
including the position with regard to Upper GI in which the acting chairman
said that in principle the Respondent had always supported the single centre in
Plymouth. Reviews were also being carried out by Professor Griffin and Mr
Allan in Derriford and Exeter, following which it was anticipated there would
be a consultative document (which was not a consultation document as we
explained in paragraph 17 above) issued in 2009 with the hope and expectation
that a single centre would be in place in the Spring. The Acting Chairman said
that he wished to be satisfied that a new centre would be IOG-compliant.
46.
On 27 November 2008, the Claimant issued his first Tribunal claim
against the Respondent concerning the August disclosure which, as we have
explained was the one, which was subsequently upheld and it will be necessary
to consider the nature of it in greater detail when we return to deal with the
submissions later in this judgment.
47.
The SHA were aware of the claim and the appropriate representative of
the Respondent (Ms Jo Perry, its Director of Human Resources) assumed that the
necessary information would have been passed on to either Sir Michael Pitt or
to Sir Ian Carruthers.
48.
On 22 December 2008, the solicitors to the Review wrote to the Claimant
to advise him of their appointment, explaining that he would be given an
opportunity to review the relevant sections of the report with regard to their
factual content and to comment on them before being given an opportunity at a
later stage to read the whole of the report when again he would have a further
opportunity of commenting. The process was to be confidential at that stage.
49.
On 23 December 2008, the Claimant’s solicitors wrote to Sir Ian
Carruthers indicating the Claimant’s intention to claim for libel against him based
on the contents of the press release and seeking a retraction, apology and
compensation. The allegations were rejected in correspondence and it was
contended that the issue was covered by qualified privilege. No proceedings
were ever issued.
50.
On 22 January 2009, the Respondent’s Board met to discuss the financial
position and this was the date on which the first draft of the Review Panel
report was sent to the Claimant’s solicitor and a rebuttal letter was sent by
the Claimant’s solicitors criticising the report and its conclusions, as well
as dealing with the criticisms on a paragraph-by-paragraph basis. There was a
dispute as to the procedure by which the final report would be made available
to the Claimant, but after it was sent to him in draft form on 9 February 2009,
his solicitors responded on 17 February 2009 with a rebuttal letter.
51.
The final report was published on 5 March 2009, and its main finding was
first, that the Respondent’s Board was in breach of the Code of Accountability;
second that although financial improvements had been made, it still failed to
meet its financial targets; and finally that it still had a loan of £48,000,000
to the Department of Health. The report also concluded that the Board and the Claimant
had not followed the spirit of the Codes of Conduct for Boards and Senior
Managers and that there had been an erosion of trust between the Respondent and
the PCT over the Upper GI services. It was also explained that there had been
a lack of leadership over the Upper GI issue.
52.
On the day when the report was published, the Respondent’s Board held a
Part Two extraordinary board meeting to discuss the report at which it
unanimously decided to accept the recommendations with a majority voting to
accept the conclusions. The Employment Tribunal said that in making the
decision to accept the recommendations, there is no evidence that the Board was
aware of or had any regard to the letter of rebuttal sent by the Claimant’s
solicitors dealing with the complaints made against the Claimant.
53.
Following a meeting of the Board, a decision was made to convene a “trust
and confidence meeting” to which the Claimant would be invited. Indeed the
Claimant was duly invited and the meeting had to be rearranged for 15 April
2009. The letter informing the Claimant of the meeting had said first that it
would be conducted by the two non-executive directors; second that the Board
would consider the findings of the review; and third that the report made
detailed criticism of the Claimant’s leadership but that he would be given an
opportunity to comment on those and on other findings in the report together
with their conclusions. The Claimant was warned that if the decision taken at
the meeting was that trust and confidence had broken down, one option to be
considered by the Board would be the termination of the Claimant’s employment.
54.
Prior to the meeting, a number of questions were drafted by Ms Jo Perry
for the panel to put to the Claimant, who duly attended the meeting together
with a friend and representative. The Employment Tribunal noted that the Claimant
responded to the questions being put to him by referring to what had been said
in his letter of rebuttal, but that the Claimant was reluctant to expand on his
answers.
55.
At the conclusion of the meeting, neither of the non-executive directors
took steps to seek to investigate the points raised by the Claimant, but
instead they prepared a report overnight concluding that there was an untenable
position as the continued employment relationship between the Claimant and the Respondent’s
Board as relations had broken down. It recommended that the Claimant’s
employment should be terminated with contractual notice of six months’ pay.
56.
Although the Claimant did not know this, the Board had arranged to meet
on the following day. Normal practice would have been for papers relating to
the meeting to be circulated beforehand, but on this occasion, the papers for
the meeting were given to those members as they arrived. It was observed the Claimant
did not accept the relationship between the parties had broken down or that if
it had, that the criticisms of him were correct. The Board concluded that the Claimant
should be dismissed forthwith. The Claimant was notified of this decision by a
letter of 21 April 2009 when he was told that he would be paid in lieu of his
contractual notice of six months and that he had a right of appeal.
57.
The Claimant duly exercised his right of appeal and a hearing took place
on 26 June 2009 when it was heard by a panel of NHS Directors from outside the Respondent.
The appeal was said to be by way of a rehearing. At the hearing the Claimant,
who was accompanied by a representative, reiterated the points he had raised in
his rebuttal letter regarding the Hawker review. During the meeting, Mr Watts
who had been appointed Chairman on 17 March 2009 explained that the Board had
lost confidence in the Claimant. The Panel produced its report recommending
the dismissal be upheld and it set out its findings. It stated that:-
“6.4.4 The panel considers the issue of reconfiguring the
provision in Upper GI cancer services in the South West has also contributed to
the deterioration in trust and confidence between key stakeholders, (for example
the [SHA] and [the respondent]) and consequently, the impact of these damaged
relationships has lead to an irretrievable breakdown in trust and confidence
between the Board and the [claimant] in his ability to lead an organisation in
the South West Health Economy.”
58.
On 27 April 2009, the OSC held a committee meeting and although the Claimant
as Chief Executive of the Respondent was not a member of the committee, he
would normally have attended. The minutes record that:-
(a) In November 2007, the
OSC had decided that the transfer to Derriford did not constitute a substantial
change requiring consultation;
(b) In the light of significant
public concern, the matter had been reconsidered and the view had been formed
that the proposals did represent a substantial change into services and the
joint committee had been formed in order to deal with the question of
consultation;
(c) Subsequently it had
been concluded that the service provided by RCHT was no longer sustainable;
(d) At the conclusion of a
lengthy discussion, the OSC concluded that the proposal to establish a centralised
Upper GI service at Derriford did not represent a substantial change to
services; and that
(e) The committee was
satisfied the PCT had undertaken appropriate public engagement and listened to
feedback with the result that the decision on the issue was thus reversed.
59.
The Employment Tribunal upheld the claim of the Claimant based on the
August disclosure but it rejected a further claim based on the disclosure on 30
September 2008. The Tribunal referred to the Respondent’s failure to call as
witnesses Sir Ian Carruthers, Sir Michael Pitt, which was a matter calling for
“adverse comment” [18]. The Tribunal also found many of the
Respondent’s witnesses “unsatisfactory” [12]. This has made the task of
the Respondent harder.
60.
The reasoning of the Employment Tribunal was that:-
(a) The initial view of
the Respondent’s Board was that if there had been any failure on the Claimant’s
part at Bromley, there were no grounds for taking any action against him. This
stance was reversed “in response to clear and strong pressure from the SHA”
[75]. In consequence the Claimant was invited to take special leave before
being formally suspended at the beginning of October 2008;
(b) When the Hawker report,
which was as we have explained in paragraph 51 above was very critical of the
Claimant, was made available to the Respondent at the beginning of March 2009,
it was instantly accepted without any reference to the Claimant . The
Employment Tribunal concluded that “it is extraordinary and highly
unsatisfactory that the conclusion and recommendations were accepted with such
alacrity” [76];
(c) The Respondent then
decided to pursue its issues with the Claimant through the medium of a trust
and confidence meeting;
(d) The Claimant was invited to
a meeting on 15 April 2009 which led to his dismissal. The Employment Tribunal
considered that the procedure was unfair because the Respondent in reaching
their decision to dismiss took no account of a rebuttal letter which had been
sent by the Claimant;
(e) There was an appeal
procedure which in the view of the Employment Tribunal was “a travesty of
anything approaching basic concepts of fairness” [77];
(f) At a meeting of
the OSC due to take place on 27 April 2009 to consider the issue of
consultation, the SHA through Sir Ian Carruthers had expressed in very forceful
terms its determination to ensure that the transfer of Upper GI services to
Derriford went ahead without consultation;
(g) Had the Claimant not
been dismissed on 16 April 2009, there is every reason to expect that he would
have resumed his post as Chief Executive and attended the OSC meeting and had
he done so “he would undoubtedly have reiterated the advice” of counsel
that to proceed without consultation would have been illegal “thus
presenting a further obstacle to SHA’s plan to transfer the services” [79];
(h) The Employment
Tribunal concluded that the Respondent took the decision to dismiss the
Claimant because of pressure brought to bear on it by the SHA to do so because
if they had not done so the Claimant would have undoubtedly have attended the
OSC meeting on 27 April and reiterated the August disclosure which gave the
advice of counsel that to proceed without consultation would be illegal; and
that
(i) The decision of
the Employment Tribunal was that the Claimant was dismissed as a result of having
made the August disclosure which was a “protected interest disclosure”
and it was automatically unfair for that reason as well as being unfair under
ordinary principles.
The issues
61.
Mr Simon Devonshire QC counsel for the Respondent contends that the decision
of the Employment Tribunal was flawed and that it erred in:-
(a) Failing to consider
adequately or at all whether the August disclosure was in fact a protected
disclosure within the meaning of section 43B(1)(b) of the ERA and/or in
concluding that it was such a disclosure (“The August disclosure appeal”);
(b) Failing to make clear
findings about whether the pre-dismissal detriments alleged (namely the
Claimant’s informal suspension on 25 September 2008, the unfair publicity for
him on that day, his continued suspension until 17 April 2009 and the failure
of the SHA to confirm the Claimant’s salary increase) were acts of
whistle-blowing discrimination and/or if insofar as it concluded that they were
not, nonetheless concluding that the Claimant was dismissed for whistle-blowing
contrary to s103A ERA (“The Pre-Dismissal Detriments Appeal”);
(c) Concluding that the
SHA orchestrated the Claimant’s dismissal and/or the pre-dismissal detriments
because of the August disclosure without considering first whether (and if so
when and how) the SHA knew of that disclosure (“The SHA Knowledge Appeal”);
(d) Failing to distinguish
adequately or at all between (i) the August Disclosure relied upon by Mr
Watkinson, and (ii) the alleged antipathy of the SHA to Mr Watkinson’s general stance
on the issue of public consultation on the transfer of Upper GI services, in
concluding that the SHA’s motivation for the acts of orchestration alleged was
the August Disclosure (“The SHA Motivation Appeal”);
(e) Failing to consider
whether the Trust knew of the SHA’s prohibited motivation in subjecting Mr
Watkinson to the acts of pre-dismissal detriment alleged (and if so when and
how the Trust acquired that knowledge), and/or in concluding that the Trust
knew of that prohibited motivation at the point of Mr Watkinson’s dismissal,
and/or in concluding that the Trust acted for the same prohibited reasons
simply by virtue of the fact that they acted under pressure from the SHA (“The
Imputed Knowledge Appeal”); and by
(f) Failing to
address or take into account matters of central significance to the question of
motivation (on the part of both the Trust and the SHA) before concluding that
Mr Watkinson was being victimised for his “stance over the issue of
consultation” and/or that this was a “severe irritant” to the SHA
(“The Unconsidered Evidence Appeal”).
62.
As many of the grounds of the Respondent
relate to the reasoning of the Employment Tribunal including contentions that
important matters have not been dealt with in its reasons, it is important to
bear in mind how the reasons of an Employment Tribunal should be considered by
an appellate body and in particular (with our emphasis added) that:-
(a) [31] “…The ET
judgment must be read carefully to see if it has in fact correctly applied the
law which it said was applicable. The reading of an ET decision must not,
however, be so fussy that it produces pernickety critiques. Over-analysis of
the reasoning process; being hypercritical of the way in which the decision is
written; focusing too much on particular passages or turns of phrase to the
neglect of the decision read in the round: those are all appellate weaknesses
to avoid.” (per Mummery LJ in Fuller v London Borough of Brent [2011] IRLR 414);
(b) “57. It is trite
law that a Tribunal has to set out with sufficient reason why it decides that
one party should lose and the other party succeed. This is both an elementary
requirement of justice so far as the parties are concerned, but secondly acts
as a necessary discipline for the decision maker, who can double check that his
conclusion is justified by his reasoning; and, thirdly, it enables a court of
appeal with a review jurisdiction, such as this Tribunal, to see if the
conclusion is in error. But this principle does mean that a Tribunal is
required to dot every "i" and cross every "t" in relation
to every act and submission before it.” (per Langstaff J in HM Land Registry
v Grant [2010] UKEAT 2010/0232-09-1504);
(c) “57…Selectivity
is not only desirable, but a necessary quality of proper decision making. Focus
is all - on the principles that matter, the central material disputes of fact,
and those matters critical to the analysis by which the principles are applied
to the facts”(ibid);
(d) “58. A Tribunal
reaching a factual evaluation, and applying legislation to it, is not engaged
in quite the same process as a decision maker exercising a discretion, or
reaching a judgment which might be amenable to Judicial Review if it failed to
take into account relevant considerations. However, where a Tribunal fails to
take into account, in its analysis, a matter of central significance, so that
the parties do not know why (on that point) the decision has gone against one,
and in favour of the other, or simply are left in ignorance whether the point
has ever been considered at all as it should have been, there is an error of
law. This is true only of matters of central importance: it is well
accepted that a Tribunal does not have to deal with the effect of the evidence
of every witness” (ibid).;
(e) “59. That said,
it is very easy for appeal hearings to focus upon matters which were given no
significance in either the conduct of the proceedings or the arguments of the
parties below. Therefore any appeal based upon a suggestion that a Tribunal has
ignored a central fact, the implications of which it was required to address
before it could properly draw its conclusion, is not one lightly to be
reached” (ibid); and
(f) Elias
LJ giving the only reasoned judgment of the Court of Appeal in the Grant case said of the decision of this
Appeal Tribunal that it “32.… correctly recognised that in general a challenge
to the reasoning of the Tribunal, particularly where there is as here a
conscientious and detailed analysis of all the facts, is difficult to sustain.
A tribunal is not obliged to refer to each and every matter in dispute before
it but only such matters as are necessary to tell the parties why they have won
or lost: Meek v City of Birmingham District Council [1987] IRLR 250.
However, the EAT held that it was necessary for a tribunal to analyse any issue
of central significance which goes to the heart of its conclusions, whilst
recognising that a finding that a tribunal had ignored a central fact was not
one which the EAT would reach lightly”
The August Disclosure appeal
63.
The case for the Respondent is that what was said by the Claimant in the
August disclosure was not a “qualifying disclosure” so as to be a
protected disclosure within the meaning of section 43 B(1)(b) of the ERA, which
states that:-
“..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)….
(b) That a person has
failed, is failing or is likely to fail to comply with any legal obligation to
which he is subject…”
64.
The Claimant’s case is that the August disclosure was that made at the
Part Two Board meeting on 5 August 2008 and to which we referred in paragraph
32 above was a “qualifying disclosure”. Miss Jane McCafferty, counsel
for the Claimant, contends first that he told the Respondent’s board of the
pressure which the SHA/PCT had already applied to close the services without
consultation, second that the OSC had recently decided the changes were “substantial”
and third that he considered that in the light of counsel’s opinion, a failure
to consult would put the Respondent in breach of its legal obligations if the
Board of the Respondent bowed to pressure from the PCT/SHA. Mr Devonshire
contends that first it was not accepted by any of the Respondent’s witnesses
that the Claimant spoke in those terms and second that the relevant extract of
the Part Two Board minutes did not reveal the Claimant making the disclosure
alleged, because he simply referred to the Respondent’s intention to take part
in the consultation process and that was uncontroversial in its terms.
65.
In support of the contention that the Claimant did not make a protected
disclosure, Mr Devonshire relies on the relevant Board minutes, which state
(with the Claimant referred to as “the Chief Executive”) that:-
“UPPER GI UPDATE
The Chief Executive said that the main priority was to
participate in the consultation process. He referred to the appended paper
detailing the legal advice relating to the proposed reconfiguration of Upper GI
Cancer Surgery. According to this advice it was RCHT’s responsibility to take
part in the consultation as well as the PCT. RCHT would need to participate as
closely as possible in the development of an array of options for the
consultation presented to the OSC.
The three sets of surgeons were developing care pathways for
patients presenting with particular types of cancer and this would also include
multi-disciplinary care teams.
The Chairman said that he and the Chief Executive would be
meeting with the PCT Chair and Chief Executive at the beginning of September
when the issues would be discussed.
Patrick Wilson, Non-Executive Director, asked when the next
review would be once it was agreed and was advised that a peer review took
place on a two to three year cycle.
The Chairman said that the OSC wanted assurance that there will
not be a drip of services leaving Cornwall. It had been pointed out to them
that some patients had to go elsewhere but there should also be patients coming
from Exeter and Plymouth to Truro if a model, supported by the clinicians to
keep surgeons here could be achieved.
It was noted that the Upper GI surgeons continued to operate and
would do so until at least the end of the year.
The Chief Executive said his view was that consultation was the
right process and that the proposed option for a virtual centre should be put
into the public domain. He suggested that, if the virtual centre was agreed,
it could be a national pilot.
The Board noted the legal advice on the proposed reconfiguration
of Upper GI surgery and the Acting Director of Strategy agreed to keep Board
members informed of progress.”
66.
The Tribunal having heard evidence stated at paragraph 37 of its Reasons
that the Claimant had presented to the meeting that:-
“according to the advice which he had received, the [respondent]
was under a duty to take part in the consultation as well as the PCT…The
claimant explained [at the Part Two meeting of the respondent on 5 August 2008]
that according to the advice that had been received [the respondent] was under
a duty to take part in the consultation as well as the PCT”.
67.
Mr Devonshire contends that in the light of this finding, the Claimant
had not been disclosing information about a present or prospective breach or
likely breach of its obligations so as to constitute a “protected disclosure”
within the meaning of section 43(B)(1)(b) of the ERA.
68.
It becomes necessary to see if this statement of the Claimant complies
with the requirements of section 43B(1)(b) of the ERA of disclosing information
which in the “reasonable belief of the worker [i.e. the claimant] making the
disclosure tends to show… (c) that a person is likely to fail to comply with
any legal obligation” when he stated that the legal obligation in this case
was the obligation to consult before reconfigurating the Upper GI Surgery
services.
69.
The case for the Claimant is that he made a “qualifying disclosure” by
the August disclosure because:-
(a) He disclosed the
advice of counsel to the Part II board meeting on 5 August 2008;
(b) This disclosure was to the
effect that the Respondent and the PCT would be acting unlawfully if they
attempted to move the Upper GI services to Plymouth without prior consultation;
and that
(c) It was the reasonable
belief of the Claimant making the disclosure that the disclosure “tends to
show.. that [the respondent and or the PCT] has failed, is failing or is likely
to fail to comply with any legal obligation to which [it is] is subject” in
relation to the obligation to consult on the proposal to move the Upper GI
services to Plymouth.
70.
As to (a) and (b) (whether there had been a disclosure and that it was
to the effect that the Respondent and the PCT would be acting unlawfully if
they attempted to move the Upper GI services to Plymouth without prior
consultation), the conclusion of the Employment Tribunal was first that the
Opinion of Mr David Lock of counsel who had advised that “in his view both
the [respondent] and the PCT would be acting unlawfully if they attempted the
Upper GI services from Truro to Plymouth without prior consultation” [37]
and second that this advice was communicated by the Claimant to the Respondent’s
Board at the meeting. Indeed the Part Two papers had stated that the Board had
been provided with the legal opinion and that it was to be discussed.
71.
So the Employment Tribunal found that the Claimant had explained at the
Part Two board meeting on 5 August 2008 that according to the advice that had
been received from counsel and as we explained in paragraph 70 above, the Respondent
as well as the PCT was under a duty to take part in the consultation. He
advised that each body to whom the duty applied:-
“Must make arrangements for the consultation. His advice,
couched in very clear terms was that the PCT’s approach was plainly unlawful. He
went on to advise that, in his view, both the [respondent] and the PCT would be
acting unlawfully if they attempted to move the Upper GI services from Truro to
Plymouth without prior public consultation.”
72.
As to requirement (c), (which was that it was in the reasonable belief
of the Claimant that the disclosure of information tended to show that the PCT
and/or the Respondent had failed or is failing or is likely to fail to comply
with any legal obligation to which it was subject), it must be stressed that
there can be a “qualifying disclosure” without showing that there has
been an actual breach of a legal obligation. This issue has to be
considered not in isolation, but in the context of the entire evidence,
including the previous history, so as to ascertain the factual matrix against
which the disclosure had been made.
73.
As we have explained, the Respondent’s Board and the Claimant knew how
determined the SHA and the PCT had been to avoid public consultation on the
proposed change as opposed to engagement. We have already explained the long
history of opposition on the part of the PCT and the SHA to the need for
consultation, such as that:-
(i) On 10
March 2008, there was a joint meeting between the Respondent’s Board and the
PCT’s Board and the Employment Tribunal inferred that the PCT was willing to
proceed without consultation;
(ii) On 1
April 2008 (as explained in paragraph 20 above) there was a meeting at which
the SHA’s office which was attended by Ms James of the PCT, Sir Ian Carruthers,
the Claimant and representatives of other NHS Trusts at which it was pointed
out the OSC had agreed that the proposed change did not constitute a
significant change and did not require consultation;
(iii)
On 2 May 2008 there was the meeting at the St Mellion conference centre
at which Sir Ian Carruthers had explained that the transfer to Derriford was
going to take place and that “the whole of Cornwall can sign the petition
but it won’t change outcome” [31]. The Tribunal considered this to be “an
extraordinary state of affairs” [75];
(iv)
In a letter dated 14 May 2008 from Ms James of the PCT to a
representative of “Keep Cancer Care in Cornwall”, it was explained that the OSC
and the PCT both took the view that the proposal in relation to Upper GI
services was not substantial and so there was no requirement to consult;
(v)
On 3 July 2008 the Respondent was asked by the SHA to agree a statement
that the transfer of services should move “as soon as possible” and
thereby meaning that no consultation was required. The majority of directors
of the Respondent refused to agree to it and the non-executive directors
unanimously disagreed with it;
(vi)
On 15 July 2008 the OSC met without Sir Ian Carruthers and Sir Michal
Pitt being listed among those attending and it was agreed the PCT should
undertake full public consultation, but a few days later Ms James on behalf of
the PCT wrote to the Chair of the OSC explaining that there was uncertainty on
the basis on which consultation was to take place. She indicated that the PCT
was taking legal advice to examine the basis for the OSC asking him to consult
because there was a need for clarity on which proposals were to be debated and
considered;
(vii)
“Through [Sir Ian Carruthers], the SHA had expressed its
determination to ensure that the transfer of Upper GI services to Derriford
went ahead come what may. Those views have been expressed in very forceful
terms” [79]; and that
(viii) This
tends to show that the Respondent (which was under the supervision of the SHA)
was likely to fail to comply with its obligation to consult.
74.
Against that background and the fact that it has not been and cannot be
suggested or shown that the Claimant either did not believe Mr Lock’s advice
was incorrect or did not have reasonable grounds for not accepting it to be
correct, it is clear that in the Claimant’s reasonable belief when disclosing
the opinion of Mr David Lock, he was making a disclosure tending to show that
the PCT and/or the Respondent was likely to fail to comply with the legal
obligation to consult and that in the words of paragraph 79 of the Reasons:-
“It amounted to a protected disclosure in that if the
[respondent] proceeded without consulting they would, at least, be likely to
breach that obligation under the legislation.”
75.
Mr Devonshire also submits that the August disclosure did not fall
within section 43B (1) (b) of the ERA as it did not relate to the “disclosure
of information” as this Appeal Tribunal stated in Cavendish Munro
Professional Risk Management Ltd v Geduld [2010] IRLR 38 that “the
ordinary meaning of giving ‘information’ is conveying facts” [24]
(per Slade J), which contrasts with an “allegation”. This statement was
applied by this Appeal Tribunal in Good v Marks and Spencer Plc
(UKEAT/0442). In our view, what the Claimant said in the August disclosure was
giving information about what had to be done by the Respondent and the PCT to
comply with their duty which was to consult on the proposed changes, and it was
not making an allegation.
76.
We therefore reject this ground of appeal.
The pre-dismissal detriments appeal
77.
Mr Devonshire contends that the Employment Tribunal erred because it
failed to make clear findings about whether the pre-dismissal detriments
alleged (namely the Claimant’s informal suspension on 25 September 2008, the
unfair publicity for him on that day, his continued suspension until 17 April
2009 and the failure of the SHA to confirm the Claimant’s salary increase) in
the words of the Respondent’s written skeleton argument “were acts of
whistle-blowing discrimination and/or if insofar as it concluded that they were
not, nonetheless concluding that the claimant was dismissed for whistle-blowing
contrary to s103A ERA”.
78.
He submits that the effect of the judgment of the Employment Tribunal is
that the dismissal of the Claimant was an act of whistle-blowing
discrimination, but that these pre-dismissal detriments which led to the
dismissal were not. He contends that there is a lacuna in the reasoning of the
Tribunal in that whilst it made a finding that the pre-dismissal detriments
were not causally linked to the September disclosure in any relevant sense, its
reasons are unclear as to the part that the August disclosure played in
bringing about these detriments.
79.
Mr Devonshire contends that it is imperative that there should be proper
findings about a link shown between the August disclosure and the pre-dismissal
detriments so as to explain the reasons for dismissal. It is said by him that
it is unlikely that the Claimant was suspended pending an independent review
for an “innocent” motivation, but then he was dismissed for a prohibited
one.
80.
He points out that the pre-dismissal detriments were not caused by the
September disclosure in the relevant legal sense, but that the conclusions of
the Tribunal as to whether those detriments were motivated by the August
disclosure are “opaque”. Thus it is said that the Tribunal erred in law
in failing to make clear its conclusions and its reasons for its decision.
81.
The case for the Respondent is that by failing to focus and to make
clear rulings on the pre-dismissal detriments and the reasons for them, the
Employment Tribunal failed to consider all the relevant matters as to whether
it could infer that the Claimant had been the victim of a whistle-blowing
dismissal contrary to section 103A of the ERA.
82.
In our view, Mr Devonshire’s contentions fail to appreciate that the
Employment Tribunal did conclude in paragraph 81 that the pre-dismissal
detriments preceded the second protected disclosure in the Claimant’s letter of
30 September 2008 and so it rejected the claim based on those detriments.
Another reason why there is no merit in this ground as this is not a matter
which is what was described in Grant’s case as “of central
significance which goes to the heart of its conclusions”.
83.
In any event, even if there was any merit in this ground, it should not
undermine the findings of the Employment Tribunal in respect of the August
protected disclosure.
84.
We should explain that in paragraph 75 of its Reasons, the Employment
Tribunal explains the history in relation to consultation leading to its
conclusion that the imposition of “special leave” on the Claimant and
his suspension, which were part of the pre-dismissal detriments. It explains
that these detriments were imposed as a result of a volte-face on the part of
the Respondent, which in turn was in response to “clear and strong pressure
from the SHA” [75]. The Employment Tribunal set out the background
to the pressure from the SHA and what it described as “an extraordinary
state of affairs” [75], which was the remarks made by Sir Ian Carruthers at
the meeting in May 2008 (to which we have referred in paragraph 22 above) which
were recorded by a consultant surgeon present as stating that the plan would go
ahead in any event irrespective of any action taken over consultation.
85.
In addition, it was pointed out that at that stage, the OSC and the PCT
did not consider that there was any requirement to undertake any significant
consultation other than dissemination of information although they did not hold
their views as strongly as Sir Ian Carruthers.
86.
The Tribunal proceeded to say that when the Bromley report was
published, that this would have caused the non-executive directors of the Respondent
to consider the Claimant’s position as an employee of the Respondent because of
the criticisms made of him notwithstanding that he disputed them. The initial
view of the Board of the Respondent was that if there had been any failings on
the Claimant’s part at Bromley, that this was not a reason to think that they
would be replicated in his employment with the Respondent and therefore that
there were no grounds for taking action against him.
87.
The Employment Tribunal proceeded to say that those views “were
reversed immediately and totally following a meeting on 25 September with [Sir
Ian]” [76]. The SHA then made it clear that they wished there to be
an independent review of the governance of the Respondents, questioning whether
the Board had confidence in the Respondent. The Tribunal noted that:-
“The outcome of this was that the claimant was invited to take
special leave before formally being suspended at the beginning of October
2008. It is the view of the Tribunal that this volte face on the part of [the respondent’s]
Board was in response to clear and strong pressure from the SHA” [75].
88.
This finding does not undermine in any way the conclusion of the
Employment Tribunal that the Claimant’s dismissal was contrary to section 103A
ERA, which is a finding supported by evidence. Thus we reject this complaint,
but we should repeat that even if it was valid, it would not undermine the
conclusions in respect of the August disclosure, which explains why the Claimant
succeeded below.
The SHA knowledge appeal
89.
The case for the Respondent is that the Employment Tribunal erred by
concluding that the SHA orchestrated the Claimant’s dismissal and/or the
pre-dismissal detriments because of the August disclosure without considering
whether and, if so, when and how the SHA knew of the disclosure.
90.
These criticisms have to be placed in perspective bearing in mind that
no criticism is made of the approach adopted by the way in which the Tribunal
explained that it would approach the issue of knowledge (see paragraphs 10 and
11 of its Reasons).
91.
The Employment Tribunal made findings of fact which were open to it that
the SHA was routinely sent copies of the Part Two minutes as explained in
paragraph 28 of the Reasons. These documents would have included the papers
before the Board on 5 August 2008 which included the advice from counsel which,
as we pointed out in paragraph 32 above, explained first the duty on the Respondent
and the PCT to consult and second that both the Respondent and the PCT would be
acting unlawfully if they attempted to move the Upper GI Services from Truro to
Plymouth without prior public consultation. Furthermore, the SHA would have
seen the Claimant’s recorded comments in the minutes, which have been set out
in paragraph 65 above and which together with the summary of the advice from
counsel constituted the August disclosure. Indeed all that the SHA needed to
know to justify the contention that it applied pressure was the nature of the
disclosure as the other requirements of section 43B(1)(b) only had to be
satisfied by the entity which took the decision to dismiss the Claimant, namely
the Respondent.
92.
The Employment Tribunal was then entitled to conclude that the Claimant’s
action in tendering the advice to the Respondents on 5 August 2008 “was a
severe irritant to the SHA’s intentions” [79]. In our view, the Employment
Tribunal were also quite entitled to reach that conclusion which shows why this
ground of challenge has to be rejected bearing in mind that:-
(a) Sir Ian Carruthers’
hostility to consultation as expressed at the meeting on 2 May 2008 which we
have described in paragraph 22 above; and also what occurred in the meeting on
3 July 2008 as described in paragraphs 25 and 26 above;
(b) The clearly held view of the
Claimant that consultation was necessary;
(c) The additional
unexplained absence of any evidence from Sir Ian Carruthers or Sir Michael
Pitt;
(d) The absence of any evidence
explaining as to why they could not give evidence at the Employment Tribunal
bearing in mind that no request was made for an adjournment so as to enable
them to give evidence; and
(e) The consequence was that
is as Miss McCafferty correctly says the Respondent “cannot avoid a finding
on a relevant factual issue in particular as to acknowledge, simply by failing
to call the relevant witnesses and then complaining that the Tribunal was
unable to make more detailed findings as to what knowledge these individuals
had at the relevant time”. So on the evidence adduced, the Tribunal was
entitled to conclude that the SHA had the required knowledge.
The SHA motivation appeal
93.
Mr Devonshire submits that the critical issue is the discriminator’s
motivation in deciding the core motive for the matter complained of and he
contends that in concluding that the SHA’s motivation for the acts of
orchestration alleged was the August disclosure, the Employment Tribunal failed
to distinguish adequately or at all between, on the one hand, the August
disclosure relied on by the Claimant and, on the other hand, the alleged
antipathy of the SHA to the Claimant’s general stance on the issue of public
consultation on the transfer of Upper GI services.
94.
Mr Devonshire complains that the Tribunal failed to consider the
specific link between the August disclosure and the treatment complained of
because it proceeded on the basis that it was enough for the Respondent that
the SHA objected to the general stance of the Claimant. He relies in support
of that submission on the statement of the Employment Tribunal that:-
“…the reasons for the claimant’s dismissal was due to pressure
brought to bear on [the respondent] by the SHA and the reason for that pressure
was the claimant’s stance over the issue of consultation.” [80]
95.
The Employment Tribunal also concluded that the:-
“Underlying motive [for the claimant’s suspension] was his
stance over the issue of consultation.”[81]
96.
We are unable to accept this criticism which takes these comments out of
their correct context and treats the reasons of a Tribunal like a statute and
as we have explained in paragraph 62(a) above, it would be one of the forbidden
“appellate weaknesses” to focus too much on a particular passage rather
than consider all the reasoning of the Employment Tribunal. The Tribunal did
properly consider the evidence before it concluded that the August disclosure
was the reason why the SHA took steps to ensure that the Respondent dismissed
the Claimant.
97.
First, the Tribunal explained the SHA’s position prior to 5 August 2008
in which it was stated that the cancer services would be transferred without
public consultation, as was explained by Sir Ian Carruthers at the public
meeting on 2 May 2008 and which we have quoted in paragraph 22 above. Second,
the Claimant did not agree that public consultation was unnecessary and in the
August 2008 disclosure, he made it clear that the Respondent and the PCT were
under a duty to take part in prior public consultation in the light of the
opinion from counsel; that was the justification and basis for the Claimant’s
statement that failing to consult would be unlawful. Third, the SHA’s
opposition to the Claimant’s general stance on the need for consultation was a
relevant consideration as it provided a background and the reason as to why the
SHA regarded the August disclosure as “a severe irritant” as it provided
justification for the Claimant’s stance and stigmatised the opposing view as
illegal. Fourth, the August disclosure made it clear that if the SHA and the
PCT prevented public consultation, the PCT and the Respondent was likely to be
in breach of legal obligations and the Claimant was not going to permit this
breach to happen. Finally, matters were due to come to a head on 27 April
2009, which was just before the Claimant was dismissed when the dispute over
the legal requirement for consultation on the proposed move (as distinct from
engagement) was to be determined by a decision of the OSC, which the Claimant
would normally have attended, as we explained in paragraph 58 above and
“reiterated the advice” [79] (namely the legal requirement for consultation) so
“he was to be got rid of” [80]. As we explained in paragraph 58, the
minutes of that meeting showed that the decision that there was a need for
consultation for the change in the Upper GI services was reversed. In our
view, this ground must be rejected.
Imputed knowledge appeal
98.
Mr Devonshire contends in the words of his skeleton that the Employment
Tribunal:-
“Failed to consider whether [the respondent] knew of the SHA’s
prohibited motivation in subjecting [the claimant] to the acts of pre-dismissal
detriment alleged (and if so when, and how [the respondent] acquired that
knowledge), and/or in concluding that the respondent knew of that prohibited
motivation at the time of the claimant’s dismissal and/or in concluding that
the respondent acted for the same prohibited reason simply by reason of the
fact that they acted under pressure from the SHA.”
99.
The case for the Respondent is that the decision-maker in the present
case was the Respondent and not the SHA, and therefore the real question for
the Tribunal was the reason why the Respondent acted as it did, especially as
it is not alleged that the Respondent had the prohibited motivation but merely
that the Respondent succumbed to pressure from the SHA. This, according to Mr
Devonshire, would not fix the Respondent with the prohibited motivation of the
SHA and certainly could not have done so if the Respondent did not know of the
impermissible motivation of the SHA. He says it is not enough for the
Employment Tribunal to conclude that the Respondent acted in accordance with
the wishes of the SHA “as opposed to some other reason of their own”.
His case is that the Tribunal had to go further and to find that the Respondent
knew of the improper motivation for that pressure not just at the point of
dismissal but at the time of the earlier detriments alleged.
100. We are
unable to accept that criticism because the Employment Tribunal explained the
facts that:-
i. The
OSC was due to meet on 27 April 2009 to consider the issue of consultation and
through Sir Ian Carruthers, the SHA expressed its determination in very
forceful terms to ensure that the transfer of Upper GI services to Derriford
went ahead come what may and that means without consultation;
ii. The
SHA through Sir Michael Pitt and Sir Ian Carruthers had expressed serious
criticism of the Claimant and his actions in giving the August disclosure was a
severe irritant to the intentions of the SHA;
iii. If
the Claimant had not been dismissed on 16 April 2009, there is every reason to
expect that he would have resumed his post as Chief Executive and attended the
OSC meeting on 27 April 2009 where at which he would undoubtedly have
reiterated his advice that to proceed without consultation would be illegal and
this would have presented a further obstacle to the plans of SHA to transfer
the services;
iv. The
Respondent has not established that its reason for dismissing the Claimant was
a breakdown in trust and confidence so there is no reason why the Respondent
wanted to dismiss the Claimant. There was clear evidence that the SHA
supervised the Respondent and it regarded the August disclosure as a “severe
irritant”;
v. “Having
regard to all the circumstances which we have set out we have come to the
unanimous conclusion that we could and do draw the inference that the reason
for the claimant’s dismissal was due to pressure brought to bear on the
[respondent] by the SHA and that the reason for that pressure was the
claimant's stance over the issue of consultation. We are satisfied that when
they took that decision that reason was known to the [respondent’s] Board put
shortly he was to be got rid” [80]; and that
vi. It
is not open to the Respondent to dispute this inference when it failed to call
Sir Ian Carruthers or any other representative of SHA or to give any reason for
its failure to do so.
101. This
reasoning also shows why we cannot accept the next submission of Mr Devonshire
which is that the reasoning of the Employment Tribunal showed that it failed to
analyse the Respondent’s state of mind merely observing that it succumbed to
SHA pressure and that it failed to focus on whether the August disclosure (as
opposed to the general hostility of the SHA to consultation) was the “causa
causans” of the dismissal.
102. For the
avoidance of doubt, the Employment Tribunal did state in paragraph 80 that it
reached its conclusion set out in paragraph 100 (v) above “having regard to
all the circumstances which we have set out”. Those circumstances included
the fact that if the Claimant had not been dismissed before the meeting on 27
April 2009 he would have resumed his post as Chief Executive and attended that
meeting and “had he done so he would undoubtedly have reiterated the advice
[that had been given by counsel that i.e. the August disclosure]” [79]. It
therefore follows that the Tribunal concluded that the “causa causans”
of the dismissal was the knowledge of the August disclosure. Thus we conclude
that these and the decision of the Employment Tribunal cannot be justifiably
criticised on this point.
The unconsidered evidence
appeal
103. The contention of the Respondent is that the
Employment Tribunal failed to address or to take into account matters of
central significance as to the question of motivation on the part of both the Respondent
and the SHA before concluding that the Claimant was being victimised for his “stance
over the issue of consultation” and/or that this was a “severe irritant”
to the SHA. The basis of this allegation was that this Appeal Tribunal in HM
Land Registry v Grant [2010] UKEAT/0232/09 had explained that if a
Tribunal reaching a factual evaluation and applying legislation to it failed to
take into account in its analysis a matter of central significance so that the
parties did not know why on that point the decision had gone against one party
or in favour of the other with the consequence that they were simply left in ignorance
whether the point has ever been considered at all as it should have been, then
this would constitute an error of law. As we have explained this matter was
considered by the Court of Appeal and we have set out the applicable legal
principles in paragraph 62 above.
104. The complaint on this issue by the Respondent is that
the Tribunal came to very trenchantly expressed conclusions without considering
the totality of the evidence. Mr Devonshire contends that the Tribunal failed
to make any findings in respect of the context of the consultation debate
during the period when the Claimant was supposedly placed at a disadvantage by
reason of the August Disclosure. The case for the Respondent is that the
Tribunal ignored what Mr Devonshire describes as “highly significant
evidential circumstances”, which form part of the Respondent’s case.
105. Those factors were that by the time of the 5 August
2008 Board Meeting, the Respondent had accepted there had to be public
consultation over the proposed transfer and whatever heat had been generated
historically, consultation was by then a “given” and this was accepted
by one of the Claimant’s witnesses, Mr Byrne, the Medical Director, in
cross-examination. It is also said that from October 2008, the Respondent was
awaiting the result of the Griffin & Allum Reviews of Exeter and Plymouth as ordered by the OSC and recognised at its Board Meeting held on 31 October 2008.
Those results were not expected until December 2008. The OSC would then have
to decide what to do. Thus it is said from the Respondent’s perspective, the
status quo had been preserved for the time being. A further fact relied on by
Mr Devonshire is that the Respondent had considered a plan from the PCN for Peninsular-wide
consultation, including the commissioning of a MORI poll and user group meetings
aimed at collecting and understanding the views of the public and patients on
cancer services and reconsideration. This was according to Mr Byrne “a
constructive document that gave everyone the opportunity to be involved and
develop it in the right format”.
106. This process was pursued and the Claimant accepted
that by March 2009, that there had been single-issue focus group meetings with
LINK representatives to develop a series of local events followed by four
meetings to hear the views and concerns with notices being placed in the press,
on the radio and on websites to publicise these events together with
personalised letters to Upper GI patients, their families and carers. It is
said by Mr Devonshire, but disputed by the Claimant, that consultation was not
an outstanding issue when the Respondents took the decision to dismiss and that
the Tribunal did not have to decide whether the steps taken before 27 April
2009 exhausted the obligations of the PCT or of the Respondent to consult under
sections 242 and 244, although the Respondent considered that as a matter of
law that they did fulfil those obligations. Thus it is said that “consultation”
was not an outstanding issue and indeed at the Trust and Confidence hearing,
the forthcoming OSC hearing was “not even on the radar”.
107. The case for the Claimant is that all these steps
constituted engagement and not consultation and therefore they could not, and would
not, have been understood by the decision-makers as addressing the outstanding
legal requirements. Mr Devonshire’s complaint is that these matters are
ignored by the Tribunal notwithstanding that these matters were considered in
the decision. He stresses that what happened to the consultation debate after
the suspension of the Claimant was relevant to the reason for dismissal and as
the Employment Tribunal did not consider it, they were at fault.
108. We are unable to accept these complaints particularly
bearing in mind that these issues do not relate to the central issues which
related to the nature, effect and consequences of the August disclosure. As we
have explained, the Court of Appeal in Grant stressed first that
the Tribunal is not obliged to refer to every matter in dispute but only such matters
as are necessary to tell the party why they have won or lost; second where
there is a conscientious and detailed analysis of all the evidence, a challenge
to the reasoning of the Tribunal “is difficult to sustain” [32], and third
“a finding that a Tribunal had ignored a central fact was not one which the
Employment Appeal Tribunal would reach lightly” [32].
109. In our view, the findings of the Employment Tribunal
satisfy the requirements because the Employment Tribunal explained clearly the
nature of the ongoing dispute in the debate as to whether or not consultation
or engagement was necessary and how the Claimant was involved and affected by
this debate. As we have explained, the position was that:-
(a)
The implication from the Minutes
of the meeting of 10 March 2008 was that the PCT was wishing to proceed without
further consultation or public engagement and the difference between the two
was made quite clear by Ms James in her evidence who said that unless the OSC
directed there would be no public consultation which had been her position
until late 2007 [29];
(b) On 25 March 2008, the OSC
met and agreed that the implementation of the plan should be deferred while
there was a further period of public engagement and this was reported to the Respondent’s
Board [29];
(c) On 31 March 2008, Sir
Ian Carruthers was told by Peter Davies then Chief Executive of the Respondent
that the Respondent considered that public consultation was important and that
it would be wrong to proceed without it;
(d) On 1 April 2008 a meeting
took place at the SHA’s offices in Taunton and Ms James of the PCT considered
that a 6-8 week period of public engagement would allow a further explanation
of the facts before the transfer could be made and Sir Ian Carruthers stated
that outstanding issues needed to be addressed as quickly as possible [30];
(e) On 2 May 2008, Sir Ian
Carruthers attended a meeting at St Mellion conference centre near Plymouth at
which he is quoted as saying “public outcry will not work – waste of effort”
and “the whole of Cornwall can sign the petition but won’t change outcome”
[31];
(f) On 14 May 2008
the PCT said that there was no requirement to consult on the proposal referring
Upper GI services and there had been a process of local engagement [32;]
(g) A draft statement was
prepared on about 3 July 2008 and a meeting took place at which a draft report
had been produced explaining that during May and June 2008, the PCT had
conducted a period of public engagement and implicitly rejected consultation
[34] but the Respondents objected to this [35];
(h) On 15 July 2008, the
OSC met and it was agreed that the PCT should undertake full public
consultation this was contrary to the position previously adopted by the PCT
and the OSC [36];
(i) A few days later
Ms James wrote to the Chair of the OSC expressing uncertainty as to the basis
on what consultation was to take place and that the PCT was taking legal
advice. The Respondent also took legal advice which, as we have explained, was
“couched in very clear terms was that the PCT’s approach was plainly
unlawful… both the [respondent] and the PCT would be acting unlawfully if they
attempted to move the Upper GI services from Truro to Plymouth without proper
consultation” [37]; and that
(j) Reviews were being carried out by Professor Griffin and
Mr Allum by which it was anticipated there would be a consultative document
issued in the New Year in the hope that the single centre would be in place by
the spring. This finding did not support the position that public consultation
was to be part of the timetable [52].
110. There is then the crucial conclusion of the Employment
Tribunal (with emphasis added) that:-
“70. On 27 April the OSC held a committee meeting in Truro. Although the Chief Executive of the RCHT was not a member of that committee, he
would normally have attended in that capacity, as indeed did PC, the acting
Chief Executive. Had he been in post the claimant would have attended. It was
anticipated that the issue of Upper GI cancer services would be discussed. The
minutes of the meeting record the fact that in November 2007 the OSC had
decided that the transfer to Derriford did not constitute a substantial change
requiring consultation. The minutes recorded that, in the light of significant
public concern, the matter had been reconsidered and the view had been formed
that the proposals did represent a substantial change into services and the
joint committee had been formed in order to deal with the issue of
consultation. Subsequently it had been concluded that the service provided by
RCHT was no longer sustainable. At the conclusion of a lengthy discussion,
the OSC concluded that the proposal to establish a centralised Upper GI service
at Derriford did not represent a substantial change to the services with the
services carried out at RCHT and the RD & E being transferred to
Derriford. The committee was satisfied that the PCT had undertaken appropriate
public engagement and listened to the feedback and the decision on this issue
was thus reversed.”
111. We agree with Miss McCafferty that if, as Mr
Devonshire submits consultation was no longer “a live issue”, there
would have been no need for the OSC to take the decision it did on whether
there was a need for consultation on 27 April 2009. Another reason why
consultation was apparently still a live issue is shown by the fact that there
was a “lengthy discussion” which indicates continuing uncertainty.
112. In our view the Employment Tribunal was entitled to
conclude in paragraph 71 that there had been a sufficient account of the
factual circumstances as the Tribunal had identified the key points during the
course of the debate as to whether consultation or engagement was required. No
further information was required in the reasons which had adequately dealt with
the central issues. It is worthwhile repeating the high threshold required
before the Employment Appeal Tribunal will impugn a decision on the basis that
a central issue was not considered, namely as we explained in paragraph 108
above that it would not reach such a decision “lightly” and this is a
further ground for rejecting the case for the Respondent.
Conclusion
113. As will be apparent, the case for the Respondent
raised many issues and insofar as we have not expressly commented on any point,
we should explain that we have considered them but not accepted it. We cannot
leave this case without echoing the views of the Employment Tribunal first that
“in many respects, we have found the evidence put forward by the respondent
to be unsatisfactory” [18] and second that the failure of the Respondent to
call several important witnesses (including in particular Sir Ian Carruthers,
Sir Michael Pitt and John Mills) “is a matter of adverse comment” [18].
Notwithstanding the able submissions of Mr Devonshire in those circumstances,
the appeal must be dismissed.
