United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant

MR MICHAEL PAULIN (of Counsel) Instructed by: Lyons Davidson Solicitors Park House 87 Burlington Road New Malden Surrey KT3 4QP


 


SUMMARY

VICTIMISATION DISCRIMINATION

Whistleblowing

Protected disclosure

The Employment Tribunal clearly found the Claimant was dismissed fairly by reason of redundancy. That finding meant that the claim that he was dismissed for whistleblowing failed. There was no error of law.

It is reasonably arguable that the claim of per-employment detriments which failed as a matter of construction of Employment Rights Act 1996 s43B and application of Cavendish Munro Professional Risks Management Ltd v Geduld was wrong.

HIS HONOUR JUDGE McMULLEN QC

1. This case is about unlawful detriments and dismissal suffered as a result of making a protected disclosure, and ordinary unfair dismissal by reason of redundancy. I will refer to the parties as the Claimant and the Respondent. I have read an additional supplementary witness statement on remedy provided today.

Introduction

2. It is an appeal by the Claimant in those proceedings against a Judgment of an Employment Tribunal sitting at Ashford, Kent under the chairmanship of Employment Judge S G Vowles over three days, registered with Reasons on 15 March 2011. The Claimant was represented by Mr Michael Paulin of counsel, and the Respondent similarly was represented by counsel.

Procedural background

3. Live on appeal the Claimant made those claims above. The Respondent said it dismissed him by reason of redundancy which had nothing to do with his protected disclosure, and challenged the jurisdiction in any event. The same was true of its case on detriments.
4. The essential issues now relevant were defined by the Employment Tribunal in the following way:

"1.2 Unlawful detriments by a series of acts or failures to act on the ground that the Claimant made a protected disclosure within s.43A Employment Rights Act 1996. He claims that there were two protected disclosures both relating to a unilateral variation of his contract of employment by the Respondent by varying his hours of work which amounted to a breach of the contract. He claimed that this was a disclosure of information which, in his reasonable belief, tended to show that the Respondent had failed, was failing or was likely to fail to comply with a legal obligation to which it was subject.

1.3 Automatically unfair dismissal under s.103A Employment Rights Act 1996 on the ground that the reason or the principal reason for his dismissal was that he had made a protected disclosure.

1.4 Unfair dismissal under s.98 Employment Rights Act 1996. The Claimant accepted that a redundancy situation existed within the meaning of s.139 of the Act but claimed that the dismissal was procedurally unfair because the section criteria were not objective, there was no meaningful consultation and no meaningful steps taken to secure alternative employment for the Claimant."

5. The Employment Tribunal rejected all of the Claimant's case; he appeals. In Haritaki v South East England Development Agency [2008] IRLR 945 at paragraphs 1-13 I set out my approach to rule 3; it should be read with this Judgment. That approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240. On the sift of this Notice of Appeal in accordance with rule 3(7) HHJ Richardson came to the following conclusion:

"Grounds one and two are certainly arguable (I would say, in passing, that it is not helpful to set out supporting argument at great length as this Notice of Appeal does - the purpose of the grounds is to identify the legal error alleged, not to argue it at great length).

But even if they are successful, they face the difficulty that the Tribunal plainly found, for reasons set out particularly in paragraphs 38 to 41, that the whole process which led to the Claimant's redundancy and dismissal had nothing to do with the Claimant's grievances and was genuinely about his suitability for the CSM role and about redundancy. Ground five alleges that this conclusion at least in part was perverse, but I can see nothing perverse about it. In the end, therefore, as far as I can see from the Notice of Appeal and the reasons of the Tribunal, the protected disclosure points would lead nowhere even if they were successful.

I would add that Ground five mentions in passing that the Employment Tribunal curtailed cross examination - but it does not allege that this was an error of law or a procedural irregularity, and the amount of time allowed for cross examination is a matter of case management very much in the discretion of the Tribunal.

Ground three relates to the Tribunal's assessment of fairness on the alternative basis that this was, as the Respondent asserted, a redundancy case. The Tribunal considered this aspect fully, particularly in paragraphs 38 to 46, and I see no error of law in its reasoning.

Ground four relates to alternative employment. This is sufficiently addressed in paragraph 44 of the Tribunal's reasons. The 'subordinate employment' point was plainly a very long fall-back point, given the Claimant's primary case, and the Tribunal deal with it adequately. The Claimant had job vacancy lists - he did not provide any evidence that he had applied for any alternative roles either above or below his current grade.

For these reasons, while I accept that the points relating to protected disclosures are arguable, I do not consider that there are reasonable grounds for appealing on a question of law to the Appeal Tribunal."

6. Where no point of law is found, section 21 of the Employment Tribunals Act deprives the EAT of jurisdiction to hear the case. The Claimant was given the opportunity to have an oral hearing on his fresh application under rule 3(10), and I hear this matter afresh today with the advantage of a skeleton argument much reduced, no doubt after Judge Richardson's opinion, and oral argument from Mr Paulin. The question for me is whether there is any reasonable prospect of success in any of the points that are raised.

The facts

7. Since I have decided that the detriments point will go to a full hearing, it is not necessary for me to say a good deal about the facts, but I have formed the opinion that there is no reasonable prospect of success on the dismissal points. The Respondent is a national company with 700 retail stores in the UK. Each store employs a Customer Services Supervisor (CSS), including the Claimant, employed on 3 October 2007 at Orpington in Kent. During the time of the Claimant's career changes were envisaged in the management structure so that there would be elevation of the customer service function, now to be held by a Customer Service Manager (CSM), entailing more responsibility, more accountability and more customer care than the CSS. There was a system for grading those CSSs in a way that would enable them to achieve their potential. The Claimant contended that shortly after this system had begun he made protected disclosures in December 2008 or January 2009 to his manager, Mr Dingwall-Bayntun. In January 2009 there were further discussions about the possibility of redundancy. The Claimant submitted a written grievance, and on 21 February 2009 there is a reference to a further protected disclosure.
8. Management went on to carry out the exercise in finding out who were the best candidates to fulfil the CSM roles in its various stores. The Claimant was given what appears to be regarded as exceptional treatment, in that he was given additional time to try to reach the standards that were required, but he failed, and in due course he was made redundant. He had in the meantime issued grievances in respect of the process, but these were rejected.
9. The Employment Tribunal decided the application of the relevant part of the statute, which is the Employment Rights Act 1996, part IVA. This contains the definition of a protected disclosure under sections 43A and 43B, which is to do with detriments under section 47B and which in turn applies also to dismissal under section 103A. The Tribunal decided as a matter of construction that the material advanced by the Claimant as constituting a qualifying protected disclosure was not within the terms of the statute, applying Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 39. The Tribunal, having decided against him on that construction point said this:

"In view of this finding, neither the claim for unlawful detriment under s.47B(1) of the Act, nor the claim for automatic unfair dismissal under s.103A of the Act can succeed."

10. It then moved on to consider ordinary unfair dismissal as it is conveniently described, The Tribunal considered there was a redundancy situation as described in section 139 of the Act. The reason for dismissal was that redundancy. It went through the recognised criteria set out in, for example, Williams v Compair Maxam Ltd [1982] IRLR 83. The Tribunal in its paragraphs 38-45 analysed the steps taken by the management in the process that led ultimately to the Claimant's redundancy. For example, it talked about the consultation procedure and found that to be adequate, well-documented and meaningful; that the criteria, inevitably involving some subjective assessment, were applied in a fair way; and that sufficient consideration had been given to alternative employment. The dismissal was not unfair under section 98(4).

Submissions and discussion

11. At the outset of this morning's hearing I indicated to Mr Paulin that I was minded to allow the detriments point to go to a full hearing because there has not been a full consideration of those detriments; the point was headed off, as it were, by reason of the construction point taken against the Claimant. To this extent I disagree respectfully with Judge Richardson, whose attention did not seem to have been focussed specifically on the detriments point. Judge Richardson acknowledged that the construction point was arguable. In saying that, of course, he was bearing in mind that for a hearing to be ordered following a rule 3 determination there has to be a reasonable prospect of success on appeal, and in so far as he formed the opinion, in respect of the dismissal claim that the case would not succeed, I agree. There will always be alternative candidates (here, redundancy and whistleblowing), and in my judgment the findings as to the fair procedure and the reason for dismissal are apt to be applied to the Claimant's claim that he was dismissed as a result of his whistleblowing or his raising grievances. Both of those are dealt with carefully. In order to make good his point the Claimant would have to show that those findings about ordinary unfair dismissal are perverse or unsafe. In my judgment the material provided by the Tribunal shows clearly the reason why the Claimant was dismissed – redundancy - and the procedure attendant upon it was fair.
12. The reservation I have is as to the detriments point. The correct approach to an appeal here is not evident in the dismissal point (that is, it has to be reasonably arguable and with a prospect of success). There are clear findings on dismissal, there is none in respect of detriment. In other words, there is no default position set out by the Tribunal in respect of the detriments claims. If the Claimant succeeds on his argument as to the meaning of section 43B and its application here, there needs to be attention to the per-employment detriments that he contends he suffered.
13. That would not suffice, in my judgment, for the purposes of a hearing on dismissal, and so I agree respectfully with the evaluation by Judge Richardson that this case cannot be said to be perverse (there were plain findings in the Judgment based upon evidence going both ways). The case management issues relating to the hearing are matters of fact for the Employment Tribunal (and I draw Mr Paulin's attention to the fact that these are decisions made by a three-person Tribunal and not, as he says, by the Employment Judge alone). This case not the overwhelming case necessary for a perversity appeal to succeed in this jurisdiction (see Yeboah v Crofton [2002] IRLR 634), and so the Notice of Appeal apart from grounds 1 and 2 will go no further.
14. The Claimant's claim for ordinary unfair dismissal as a freestanding matter was properly decided by it, and the findings as to that are also findings that make the allegation of whistleblowing being the reason for dismissal wholly untenable. I do not accept that if the Claimant succeeds in showing the Tribunal erred in its construction of s43B and then goes on to prove he suffered the detriments that he alleges, this would feed into his dismissal, for the reasons given by the Employment Tribunal.

Further steps

15. In order to clarify this matter before the full hearing my attention has been drawn to the 50 detriments alleged by the Claimant. Mr Paulin identifies numbers 1-17, and some others, as clearly pre-dating the process of redundancy. For my part I would be prepared to draw the line under point 17; that is, at this stage I am prepared to say that these 17 points are freestanding detriments that can be decided at the Employment Tribunal if the construction point succeeds. I assume the Employment Tribunal heard evidence and submissions on them but did not decide them in light of its construction of s43B. It will be for counsel for the parties at the full hearing to analyse whether my approach is correct as to all of them, but what I had in mind, for example, is number 4, which is a simple failure to pay for attendance on 2 February 2009 post, on this footing, after a relevant disclosure when others were so paid. That would constitute at face value a one-off detriment as a result of having made a protected disclosure.
16. There may be time issues. I appreciate that the Claimant alleges a series of acts, and I do not know whether time points were taken, but isolating the issues in this way might well have thrown up time points unless they could all be joined together as a series or as continuing treatment. For expedience points 1-17 will be allowed to a full hearing. Mr Paulin must use his discretion to decide which points out of those are worth fighting for; otherwise. I respectfully adopt the opinion of Judge Richardson, with my thanks to Mr Paulin for his careful arguments. The grounds relating to dismissal will be taken no further and are effectively dismissed.