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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Dunster v First Transpennine Express Ltd (Victimisation Discrimination : Whistleblowing) [2011] UKEAT 0570_10_1908 (19 August 2011)
URL: http://www.bailii.org/uk/cases/UKEAT/2011/0570_10_1908.html
Cite as: [2011] UKEAT 570_10_1908, [2011] UKEAT 0570_10_1908
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| At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR B BEYNON
MR S YEBOAH
MS M DUNSTER APPELLANT
FIRST TRANSPENNINE EXPRESS LTD RESPONDENT
| APPELLANT | |
| RESPONDENT |
Transcript of Proceedings
JUDGMENT
(Corrected as to para. 41. Rule 33(3))
- This case is about unfair dismissal in its ordinary sense and in the context of the regime for protecting disclosures in the public interest. It is also about breach of contract of employment. It is the Judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimant and the Respondent.
- It is an appeal by the Claimant in those proceedings against the Judgment of an Employment Tribunal chaired by Employment Judge Forrest sitting over four days at Hull, and registered with Reasons on 13 January 2010.
- The Claimant represented herself. Today she has the advantage to be represented by Mr Jeremy Lewis of counsel, who gave his services under the aegis of the ELAA Scheme and the Bar Pro Bono Unit. The Respondent has been represented throughout by Mr Simon Robinson, solicitor.
- The Claimant made a very substantial number of complaints across the canon of the employment protection regime, but so far as is relevant after very significant case management intervention, both at the ET and the EAT, the issues described as having a long and chequered procedural history, were refined. They were unfair dismissal, both in its ordinary sense and for PIDA reasons, detriment falling short of dismissal and breach of contract. The Employment Tribunal described the essential issues and reduced them into 21 allegations relating to sub-dismissal detriment, the dismissal itself and breach of contract.
- The Tribunal dismissed all of the Claimant's claims, save for an unlawful deduction of wages claim, which the Respondent conceded and for which the Claimant was awarded £752.91, a payment having been made some time ago by the Respondent.
- The Claimant appeals, raising appeals against five findings against her on detriment and both of the unfair dismissal claims, plus a new contention that the dismissal was automatically unfair and the Tribunal failed to recognise this, the employer having failed to follow statutory procedures for dismissal, and that the Claimant was wrongfully dismissed.
- Directions sending this appeal to a full hearing were given in advance of a three person preliminary hearing, which I chaired, I having also heard the rule 3(10) application where Mr Lewis appeared for the first time, and transformed the homemade Notice of Appeal into a very substantial vehicle for the presentation of the Claimant's realistic grounds of appeal.
- The relevant provisions of the legislation are not in dispute. Section 98 of the Employment Rights Act 1996 provides for unfair dismissal. A potentially fair reason is conduct, that is not in dispute. Fairness under the heading "General" is set out in s.98(4) which provides as follows:
- In the specific case of a public interest disclosure, s.103A provides as follows:
- In order to understand the full impact of the above, it is necessary to consider Part IV of the Act which contains the insertions arising out of the Public Interest Disclosure Act 1998, and the relevant provisions are as follow:
- There is a layered approach to the disclosure with the most proximate recipient requiring the least obstacles in the way of a discloser. Here, the recipient is the Claimant's employer and it is the parliamentary intent that people employed should first disclose matters in the public interest to their employer, and only then to others such as regulators and outside bodies.
- In the same way as it is unlawful to dismiss a person for making a protected disclosure, it is also unlawful to subject them to a detriment, for s.47B provides the following:
- Insofar as there is a burden of proof, the Respondent is required to show its explanation. See s.48(2) which provides as follows:
- For five years there was a little mourned regime under the Employment Act 2002, requiring an employer seeking to dismiss an employee to go through a procedure. The procedure is regulated by ss.29-33 of the Act and schedule 2, together with the Employment Act 2002 (Dispute Resolution Regulations) 2004. A dismissal is automatically unfair if a relevant procedure applies and is not carried out. The specific requirements of the procedure are set out in part 1 of the standard procedure, which says as follows:
- To those specific requirements are added general requirements which deal with meetings in the following way:
- Hand in hand with the statute and the Regulations went a bespoke code of practice issued by ACAS, now repealed, which says in respect of meetings, this:
- The usage of the trade, adopted judicially, is to regard dismissals in breach of the statutory framework as automatically unfair, in the same way as a dismissal for breach of s.103A. Ordinary unfair dismissal continues under s.98(4). Where unfair dismissal is found compensation is fixed according to what is just and equitable by s.123. In assessing what is just and equitable, a Tribunal may make a reduction where the Claimant's conduct has caused or contributed to her dismissal. It needs to be culpable. Breach of contract is the subject of an order made in 1994, giving jurisdiction to Employment Tribunals for wrongful dismissal (in fact matters outstanding at the date of dismissal). Finally, the EAT's Practice Direction allows for amendments and requires them to be notified as soon as it is felt necessary.
- The Tribunal did not set out any of the above. It did cite by section number certain of the sections which we have referred to, but it gave itself the following directions:
- Sections 98A(1) and (2) of the ERA state:
- We infer that the Respondent is a statutory undertaking, a train operating company with substantial routing in the north west and north east of England. It did not say how many people it employed, when filing its response. The Claimant was employed by it, as a conductor, on a number of routes including those across the Pennines, linking Lancashire and Yorkshire. She was employed on 17 July 2000.
- The Employment Tribunal gave us a snapshot of the view it was to take of the actors in this drama:
- There is no challenge either to the fact that the Tribunal made that observation, nor as to its substance. The Tribunal backed that up with certain observations about particular parts of the Claimant's evidence, for example the delay in reporting the accident which is the start of this chronology and the conflicting accounts of her medical condition in 2007.
- The Tribunal also set out conveniently a chronology of the early part of the events, and we are grateful to it for it said as follows:
- It is important to point out that protected disclosures in this case occurred on 6 January 2006, 20 September 2006 and 1 February 2007. The Claimant was suspended until 20 June 2007, returned after the suspension was terminated, and she was required to take up her work again. She declined to do so on 21 and 31 August 2007, and appears to have been suspended on that latter date again, while an investigation was conducted.
- The Claimant had asked why her route cards were taken from her. Route cards are an important part of the Respondent's apparatus. She is required to sign them. If she does not, she cannot take out a train. The Tribunal found that it was a condition of employment that she sign her route cards; that is that she is able, and qualified and satisfied herself that she was so able, to take out a train. If she did not she could not work.
- The conclusion of the Respondent's examination of the route (see the chronology above) naturally required the Respondent to have the Claimant back at work, and it was the failure of the Claimant to agree that ultimately led to her dismissal on the ground of misconduct. At a meeting on 31 August 2007, she said that she was waiting advice from her union on the issue. The matter went off for a further investigatory meeting. The Claimant had some periods of leave and the Claimant never did sign the route cards.
- There was a jumbled sequence of meetings which were postponed for one reason or another. Of relevance is 31 October 2007, where both the Claimant and the Respondent were criticised for that not going ahead, and a disciplinary hearing on 20 December 2007. That was put in place. The Claimant was to be represented by a full time officer of her union, RMT. She walked out before the hearing and hung up on her union official when he tried to contact her by phone and failed to answer the call of management. The hearing did not go ahead, but was reconvened. It is described as a disciplinary hearing by management and as a disciplinary meeting by the Tribunal, a difference which will become important when we examine the complaint about the statutory procedures not being completed.
- The Claimant obtained certified sick notes for the period up to and including 15 January 2008, when the reconvened meeting took place. The venue was shifted by management in order to accommodate the Claimant's illness, which was anxiety. There is no question that the illness was genuine and the Claimant was not able to attend on account of it. Management had asked for a union representative to be present, and a branch secretary of RMT, together with a representative of RMT as an observer, attended.
- The officer said that he had not been able to speak to the Claimant that day, had had no communication from her, and did the best he could in the circumstances. He had what is described as the pack of information which was available to the union officer and the Claimant prior to the aborted December hearing. The hearing went ahead. There is a detailed minute. The officer, Mr Russell, did the best he could but indicated that he had not heard any explanation from the Claimant as to why she would not sign the cards, as directed by management and advised by her senior union officers. More than that he could not say. The Claimant was dismissed for the two charges which were put against her, and these were in the following terms:
- The Claimant never did recover, but did lodge a Notice of Appeal drafted by a solicitor and a hearing was arranged. New medical evidence was produced indicating that the Claimant would not get well until her employment issue was resolved and, in the light of that, her solicitor consented to the appeal going ahead in her absence, and for the matter to be dealt with, effectively, on the written submission which he had made on her behalf. There is a detailed note of that hearing. All the points put forward were dealt with and Mr Donovan formed the view that, having heard all this material, he too would dismiss the Claimant and said this:
- That view seems to have been supported by medical evidence given a year later, indicating the Claimant continued to suffer from anxiety and stress. With that chronology in mind the Tribunal turned to the 21 detriments which the Claimant alleged.
- We regard all of these as important as we will show in a moment, but live on appeal are five. In other words, of the 21, four are withdrawn in evidence by the Claimant (we take that as being under cross-examination) and 12 are not proceeded with on legal advice. The Tribunal's understanding of the five detriments are preceded by orders in case management having been made for her to set them out, and they are as follow, together with the findings:
- Having made those findings analytically, the Tribunal stood back and made what it described as a collective approach, having taken a more detailed case by case approach to each one, and came to these conclusions:
- It then turned to automatic unfair dismissal, for the purposes of PIDA, that is s.103A, and made the following finding:
- The Tribunal then went on to consider what it described as ordinary unfair dismissal in what we regard as simple terms. First, as to not attending the interviews, it found in favour of the Claimant's submissions, a reasonable employer would not have dismissed for that, and there is no appeal against that. It then turned to the second ground and it formed the view that it was justified in dismissing her, for the two grounds were entirely separate. That is a correct construction we hold of the latter and it has not been challenged before us. That is in the following terms:
- The conclusions on ordinary unfair dismissal were these:
- The Tribunal then applied what is, on examination, the correct approach for a misconduct dismissal:
- The Tribunal was concerned over procedural fairness, again a proper term which derives from the sub-heading before s.98A in the statute. It was most concerned about the absence of the Claimant at the two disciplinary hearings, and came to these conclusions:
- Whether or not it was necessary, in the light of that decision, it went on to consider the position, had the Claimant been offered a further opportunity. This is an apt reflection on the case law stemming from Polkey v A E Dayton Services Ltd [1988] ICR 242 HL. It is asking what would have happened had, on this footing, a procedural failure made the dismissal unfair, and it said the following:
- The Tribunal noted that the Claimant had a right of appeal. She exercised it through her solicitor and the Tribunal came to the conclusion "if necessary" as it put it, it would have held that any procedural failings before the appeal were put right by the Respondents at that appeal hearing, and there is no challenge to that finding.
- So, the Tribunal had discharged its function but, again, this time it said for completion, it decided that if the dismissal had been unfair it would have reduced the compensatory award to zero, on account of the Claimant's 100 per cent contribution. Finally, dealing with breach of contract, in the light of the findings which it identified throughout the Judgment and summarised in paragraph 8, the Claimant had repudiated her contract by refusing to sign the route cards, and therefore the breach of contract claim failed.
- It will be disproportionate for us to do full examination of Mr Lewis' skeleton argument which ranged over 40 pages, attacking what are, in effect, about 12 pages of the Tribunal Judgment. It is a scholarly exegesis of the law relating to whistle-blowing and it is complemented, if we may say so, by the skeleton argument which Mr Robinson has adopted before us and argued carefully. There is, however, less to this case than meets the eye. We will deal first with the submissions in relation to the detriments.
- Mr Lewis contends that detriment 10 includes a finding that is, itself, a detriment. The Claimant gets through the procedural hurdle, in that it is conceded or found that she raised three protected disclosures. Good faith is not in issue. The Tribunal's own findings, put as the proximate reason by Mr Lewis and for which a finding is crucial, is that she raised a protected disclosure, and that led to the detriments 10, 11 and 12.
- Mr Lewis accepts there is no issue on the burden of proof in this case and, although not strictly accurate, paragraph 3.11 (we recorded above) represents the gist of a proper direction. The problem is that the Tribunal did not direct itself expressly in relation to whether there was no material influence whatsoever of the disclosures on the decision-makers. Mr Lewis accepts that the language of the statute, ground or reason, and the language in the Judgment contained no material differences.
- The central contention is the Claimant raised a concern and it was a feature of the detriments which she suffered. If an employee is not to be allowed to raise a concern about safety, and is suspended for so doing, it will have a chilling effect across the whole of employment relations.
- It is the content of the disclosure which gave rise to her concern, and for which she was penalised. In respect of the disciplinary suspension, following her refusal to sign a route card, it is accepted that the Tribunal did not find a detriment, but it should have done, he says, because it applied the wrong test. The Claimant did not sign pending advice from her trade union, that was perfectly proper, and then she would be in a position to have a discussion about it. It is, as Mr Lewis says, something which has a bearing on the Tribunal finding, and it would make a difference.
- The 20 December 2007 hearing was aborted. There is a dispute about precisely what happened on that day but the Claimant was not unready for that. In short the Tribunal failed to deal with the essential question, Lord Nicholls' question, as to the reason why - why was the Claimant treated in the way she was? The Tribunal failed to grapple with this issue. Mr Lewis expressly does not contend that the Tribunal could only find that this was a PIDA complaint, whether by virtue of the detriments or the dismissals.
- He does, however contend that the holding in the holistic view, expressed in paragraph 5.33 above, that is that it is inherently unlikely the Respondent would have behaved this way, is an over-narrow view. He further contends that it is open to him to argue that the Tribunal failed to deal with a complaint that there were run together, the disciplinary and the investigatory stages, and this was an error. The decision on the dismissal is perverse and there is a lack of reasons, although realistically he introduced this subject to us by indicating the difficulties that face any advocate in so doing.
- Mr Lewis asks for permission to raise a new ground of appeal, which we agreed to hear before making a decision on it, and to hear from Mr Robinson. This relates to s.98A(1). He contends that to hold a meeting without the Claimant being present is, itself, a breach of step 2. The Tribunal did not expressly mention this and it was bound to do so, dealing with an unfair dismissal where there are criticisms as to the procedure. As a matter of substance, the Claimant was absent, sick, on 15 January 2008 and could not attend, and any hearing without her, in those circumstances, would therefore be a breach.
- As to s.98A(2), he accepts of course that this would not arise if he is correct on s.98A(1) and has permission to argue it, but that the finding is perverse. Dealing with contribution, he contends that this is not available to reduce compensation to zero, when there has been procedural failing by an employer. The breach of contract argument follows the success of the others. He accepts that an employee with an unjustified sense of grievance cannot suffer a detriment, but nevertheless the Employment Tribunal got the test wrong, and did not recognise the detriment when they saw it.
- On behalf of the Respondent, Mr Robinson contends that the Tribunal was correct to regard the Claimant's refusal to accept the instruction to sign the cards as a breach of contract going to the heart of it. It is untrue that the Claimant was, at the time that she was presenting this matter, awaiting her trade union's response and advice because she had been given it, and knew very well that the union's approach was that she should sign and she had provided no reasons why she had not signed.
- It was fair to go straight to a disciplinary stage. Even if it is right to argue that there was a ground in the schedule of complaints about the interlocking of the investigatory and disciplinary stages, it was fair to do what the employer did in this case. Relying on the reasoning of the Employment Tribunal that this dismissal would be fair on 20 December 2007, it could not cease to be fair a month later, the Claimant not appearing there.
- The Respondent cannot be criticised for inviting union representatives to attend, to protect the interests of the Claimant, and for going ahead in the circumstances. The medical evidence presents a conundrum to any employer. The Claimant is suffering from stress and anxiety, as a result of what is going on at work, and it will not be alleviated until the problem is solved. How to solve the problem? Take the bull by the horns, and have a hearing? Resolve the matter one way or another or put it off forever? The evidence in this case, certainly before the appeal hearing, was of no alleviation in the prognosis.
- The Tribunal was right to regard there as being exceptional circumstances for holding a hearing without her. In any event, the appeal for the purposes of ordinary unfair dismissal cured any defects. It was the solicitor's representation that the matter go ahead on written submissions.
- As to s.98A(1), Mr Robinson opposed the application for the issue to be raised. It had not complied with the practice direction. There had been a number of opportunities for amendments to be made and the matter should not be raised now. But if it were, then it was accepted that steps 1 and 3 had been complied with, and step 2, as he put it, had happened, in all respects except that the Claimant was not there. It did not become a failure by the employer when the Claimant did not attend, given that she walked out on her employer and her union in December 2007. The employer looked at the medical evidence available and decided to go ahead.
- As to the protected disclosure in respect of both the dismissing and the appellate officer, there is no evidence before the Employment Tribunal that they knew of the protected disclosures relied on in this case, and therefore the essential element in s.103A is not met. As to the detriments, Mr Robinson seeks to uphold the Tribunal's Judgment. Again a conundrum arises, for the Claimant raised issues about her own health and safety. She was the only employee to do that.
- She was removed from the source of harm while the investigation took place, and a very thorough investigation it was. The Claimant failed, at every stage, to give her explanation. The essential issue before the Employment Tribunal was to determine whether there was linkage between what are said to be detriments and dismissal on the one hand, and the protected disclosure. The content of the disclosure is separable from the making of it.
- The legal principles to be applied in this case arise from the following authorities. As to amendments of Notices of Appeal, the Practice Direction requires notice to be given as soon as this is thought necessary and the guidance given in Khudados v Leggate and others [2005] IRLR 540 applies. Broadly speaking, a more generous approach is taken to amendments to, than initiation of, a Notice of Appeal.
- On perversity, everyone, and particularly the members of this constitution of the EAT, know the very high threshold over which a successful Appellant has to mount, laid down by the Court of Appeal in Yeboah v Crofton [2002] IRLR 634. An overwhelming case must be made that the Tribunal was wrong. A Tribunal is of course required to give reasons, which are understandable to the parties and on appeal (see Greenwood v NWF Retail Ltd [2011] ICR 000), applying the old principles set out in Meek.
- It is important to bear in mind that it is the parties who need most to know the reasons, and they have a lot more knowledge than outsiders. The material must be set out in a structured way, so that the reasons are clear to the parties and on appeal. As a matter of substance on unfair dismissal, the approach of the Employment Tribunals is regulated now by the clear guidance given in Fuller v London Borough of Brent [2011] IRLR 414. The language of Mummery LJ is plain, for he said the following in his majority Judgment:
- A unanimous Judgment was given by the Court of Appeal in similar terms in Bowater v Northwest London Hospitals NHS Trust [2011] ICR 000, and most recently in Gayle v Sandwell & West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924, again by Mummery LJ. The simple message is, when a Tribunal has given itself a correct direction, it will be rare indeed that an appellate court is justified in interfering with its findings of fact as to which it is supreme, subject to perversity and reasons challenges.
- Procedural fairness is as much a part of unfair dismissal as the substance and the whole of the procedure must be taken into account when considering unfairness (see Taylor v OCS Group Ltd [2006] IRLR 613). In misconduct dismissals, the guidance given in British Home Stores Ltd v Burchell [1980] ICR 000, should be taken into account, bearing always in mind that the burden of proof changed shortly after that Judgment was written, and it is for the employer to prove a reason and for the Employment Tribunal to make a finding on the scope of the investigation and reasonableness, and then to stand back and see whether the sanction is within the range of reasonable responses.
- Where a Tribunal has made findings for and against an employee, it is important to bear in mind that it is unlikely that a Tribunal would misdirect itself in one place and not in another. See St Christopher's Fellowship v Walters-Ennis [2010] EWCA Civ 252, where a Tribunal made findings of one aspect of race discrimination, but not on others, and the Court of Appeal, Mummery LJ, giving the lead Judgment, indicated the Tribunal could not have mistaken what it found correctly in one place, and got it wrong the next.
- As to PIDA, reassuringly counsel put in front of us the Judgment I gave in Boulding v Land Securities Trillium (Media Services) Ltd UKEAT 0023/06/RN:
- An approach to causation is conveniently set out in the Judgment of the EAT given by HHJ Serota QC on behalf of the EAT in Fecitt & Ors v NHS Manchester [2011] 111, where he said this:
- It is in many cases appropriate, and in this case the correct approach, to consider whether the disclosure is the reason for the action taken by the Respondent. The action taken causes a detriment, and it is in some cases appropriate to sever various aspects of it. This was the Judgment of Underhill P and members in Martin v Devonshires Solicitors [2011] ICR 352:
- In assessing detriment the approach of the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, is to be followed as considered and applied by the House of Lords in Derbyshire & Others v St Helens Borough Council [2007] ICR 841.
- Turning to the statutory procedures, the Judgment of the EAT, HHJ David Richardson in Venniri v Autodex Ltd UKEAT/04/36/07, provides valuable assistance. Looking back from the end of the regime of the 2002 Act in Venniri, he said this:
- It follows that in a dismissal case where procedure is in issue, a Tribunal should have in mind dealing with the matter under s.98A, during the time the regime was in place. Two Judgments on the construction of the Regulations are of assistance. In Peninsula Business Services Ltd v Rees and others UKEAT/047/10, I gave the Judgment of the EAT and said this:
- As to the general requirement set out in that last paragraph, the Judgment I also gave in Dogan v London Borough of Greenwich [2010] UKEAT 0525/09/1503, when a person is not available to attend a meeting, is also of assistance, for we said the following:
- With those principles in mind we turn to consideration of the arguments. We are grateful to both advocates but prefer the arguments of Mr Robinson to Mr Lewis.
- First, as to the amendment, we apply the principles in Khudados and allow the section 98A(1) point to be raised. No criticism can be made of Mr Lewis for the way in which it was raised. He was giving his services at a time when the most mature reflection was not available to him. There is no disadvantage to the Respondent. It is important that, on appeal, all issues which can be resolved by reference to the law alone and the extant findings, be resolved. We will allow the amendment.
- Arguably it is not a new point, either, because there is a reference to s.98A(2) and, since he invites us to apply Venniri, it is logical that the Tribunal had in mind s.98A(1). S.98A(1) trumps 98A(2). In other words, if there has been a breach of the statutory procedure, s.98A(2) cannot arise to reverse Polkey. In our judgment, the Tribunal since it expressly reflected on s.98A(2) and since it is part of the fabric of Employment Tribunal cases, must have decided s.98A(1) in favour of the Respondent. We will return to the substance of that. It follows the point may be argued.
- Our approach to the issues live on appeal, for example the meaning of detriment and the causative link between disclosure and act, is affected by the un-appealed findings in this Judgment. Taking the Walters-Ennis approach, it would be surprising if the Tribunal had made findings which were not the subject of any criticism, and thereby one assumes correctly applied the law, and yet got it wrong in some other parts, applying the same law.
- The first issue is to decide whether or not there has been a disclosure that meets the standards in the Act. This is easy. The disclosure met s.43B, it was a qualifying disclosure under 43C, the Claimant's good faith was not challenged and her reasonable belief was not either. So, the only two issues to arise were whether acts taken by the Respondent constituted a detriment and whether there was a connection between the disclosure and the acts.
- The Tribunal expresses its view about what the necessary standard is on about ten occasions, and all of these point in favour of the correct test: for example, "the incident had nothing whatsoever to do with any earlier disclosure" (see paragraph 5.7). "Nor can we see any connection to any public interest disclosure" (see paragraph 5.9). "There is no evidence of any connection with any disclosure" (see paragraph 5.15). "Not the fact of disclosure" (see paragraph 5.20). "Nothing to do with the Claimant's public interest disclosure" (see paragraph 5.23). "Inconsistent with the Claimant's view that management were determined to penalise her for making a disclosure" (see paragraph 5.24). "We cannot see any detriment to the Claimant at all in the Respondent's actions, nor can we see any connection with her public interest disclosure" (paragraph 5.26).
- When standing back and looking holistically, the Tribunal formed the view that the allegations were inherently implausible. Those un-appealed findings, therefore, cast some light on the appealed findings. The 10th, 11th and 12th are the subject of the first contentions. In our judgment the Tribunal addressed what was a detriment in paragraph 5.16 above. Although Mr Lewis contends the Tribunal found there was a detriment, this is inconsistent with the rejection of the Claimant's account, and we hold there was no detriment. It follows that causation is not relevant.
- The approach to detriment is also revealed by the un-appealed findings. The Tribunal knew what a detriment was. For example, in the second detriment at paragraph 5.3, it was suggested that there was discipline, and there was overbearing application of the rules. The Tribunal did not say this was not a detriment. It said there was no evidence that she was berated. It was fanciful. The Tribunal did not say that berating is not a detriment. Intimidating, barking questions asked of her, the Claimant was ambushed - the Tribunal does not say that those are not capable of being detriments, it is that they were not detriments in this case.
- Her account of the meeting was rejected and nothing detrimental happened. Continuously ignoring, failing to address her issues about revenue collection is simply factually incorrect. Not, however, held to be something that could not be a detriment. There are many other examples. In our judgment the Tribunal was correct in its approach to detriment, an easy talisman is the Tribunal's finding in her favour, that when she was suspended, she was asked to do menial tasks and lost pay. Those are clear detriments, found for her, but no connection.
- So as to the 10th detriment, it was open to the Tribunal to hold that there was no detriment. It did so hold, and there was no causation. Tellingly, in paragraph 5.17, is the chronology, which is that the Tribunal made a disclosure on 19 January 2007, but that was not relied upon for the purposes of these proceedings. Proximate, to use Mr Lewis' term, was the suspension, but it would have to be, in relation to the second disclosure on 20 September 2006.
- It is highly improbable that management would wish to take action four months after the date, this gives support for the submission of Mr Robinson, that the Tribunal's view was that management was addressing simply the safety concern of management for the Claimant herself, but we suppose, perhaps less altruistically, to avoid claims by her if the accident occurred again, and that was the reason. The Tribunal is clear in these findings of what the reason was. It is the ground and the reason for the action which it took in suspending her.
- As to the first detriment found in her favour, which was the 11th complaint viz the Claimant was not managed well at all and given menial jobs, the Claimant succeeded in that. The Tribunal had no doubt that it was viewing the matter through the lens of the Claimant. The Claimant did find it demeaning and humiliating, it is said. That is straightforward application of Shamoon. There has to be some objectivity about it, but that is a clear finding in favour of the Claimant, seeing matters from her perspective. No error of law occurred in that. The problem was causation was missing.
- Similarly, in respect of the 12th complaint, which is the 2nd detriment actually found by the Tribunal in her favour, that she lost income on overtime and commission, it was a detriment but not the result of the disclosure.
- The 19th detriment, therefore the fourth ground of appeal live before us, was that she was subjected to a poorly administered disciplinary process, while she was ill. The Employment Tribunal decided that the Respondent showed considerable forbearance. It was not a detriment to her to allow her to have another hearing, and she had not shown any good cause why she refused to sign the cards. This was not caused by the disclosures, numbers 1, 2 and 3.
- Finally, the Tribunal found in favour of the Claimant that there was a detriment in respect of the requirement that the Claimant attend meetings, and the finding by the Respondent that it was gross misconduct for her not to do so, as the Tribunal showed by reference to its findings on unfair dismissal. This was not the action of a reasonable employer, and it could have well have amounted to a detriment, but it had nothing to do with her disclosure.
- As to the issue of pay, that transformed itself into an unauthorised deductions point, upon which the Claimant succeeded. It follows, therefore, that the careful analysis by the Tribunal, one by one of the detriments and standing back of them in due course, indicated clear self-directions and application of those directions to the facts. We see no error of law.
- We say, as we should have said at the outset, that these Reasons are full, clear, Greenwood compliant. They are an organised way of presenting the very difficult issues facing the Tribunal, and the Tribunal's Reasons should not be upset on the ground of a Reasons challenge.
- Turning then to unfair dismissal, here the Claimant made some headway. She failed under s.103A. The Tribunal made clear findings as to the reason for the dismissal. It was her failure to sign the route cards and that was repudiation by her. It had nothing to do with her PIDA complaint. We see no error.
- As to s.98(4), standing on its own without reference to the statutory procedures, again we see no error. It must be pointed out that the distinction between substantive and procedural errors is well recognised in the employment community, and is recognised in the division between the headings in s.98 and s.98A in the statute. The Tribunal looked at the matter from the perspective of the end date which was the appeal. There being no substantive complaint about the handling of the appeal, it follows that if there were any procedural defects, then looking back as a whole, the Claimant who did not attend on 20 December 2007, 15 January 2008 or at the appeal had no ground to complain of unfair treatment on that account.
- The Tribunal was entitled to take the view that the two grounds charged against her were discrete and upheld the Claimant's case in respect of the failure to attend interviews. That did not put in jeopardy the finding separately made of gross misconduct for repudiation. It is not in dispute that failing to fill in the cards is a breach of contract. It is fundamental to the way in which this train operating company works. The substance of the decision cannot be impugned.
- We bear in mind the majority guidance given by Mummery LJ in Fuller and do not take a pernickety over-fussy approach. Mr Lewis will have to weather whatever comparison there may be between that guidance and a 40 page skeleton. Suffice it to say we do not see, as a whole, an error on s.98(4). The Tribunal most earnestly considered whether there was a fair procedure by the failure of the Respondent to have the Claimant in front of it. In our judgment, the reasons which it gave at paragraph 6.13 are clear. It recognised how exceptional it must be not to have her there. But it accepted the reasons for it.
- In the field of procedural fairness, Employment Tribunals are to be given considerable credit. They are the ones taken from employment experience, both the lay members and the Employment Judge, because of their specialism. Every day they look at criticisms of employers' procedures, and they are the ones who fully understand what standards are to be applied. They apply, of course, objectively, but these are the experts on employment relations procedures in the UK. It is not for us unless there is a plain misdirection in law or perversity, to interfere with their Judgments.
- Substantive decisions may be slightly different, where the words "in the circumstances" give a particular focus on the approach taken by an employer to, for example, misconduct in its own business. In any event, we uphold the Judgment of the Tribunal on the substance and, as to the procedure, it was a matter open to it to decide. Looking back, there had been no failure. The Claimant had misconducted herself, as the Tribunal found, in failing to attend on 20 December 2007.
- There was misconduct in part by her, in respect of 31 October 2007. She had not previously raised the intertwining of the disciplinary and the investigatory matters. That would, of course, require new facts to be found by the Tribunal, and we consider there is no evidence of the point being raised, or of there being any error in the Tribunal's overall conclusion.
- That does not close the matter of unfair dismissal, for we now turn to s.98A. As we indicated, the problem for Mr Lewis' submission, based on Venniri is that this Tribunal must have had s.98A(1) in front of it. It did not expressly say that this was a step 2 meeting. It did not say anything about step 1, but there is no challenge to that, nor step 3.
- We consider that the findings of a fair procedure are apt to include a fair procedure in the general sense as we knew it before the 2004 Regulations came in, and still know it, and the far procedure as prescribed by the 2002 Act regime. The Tribunal has found a fair procedure can be a disciplinary hearing without the Claimant. To do so is not difficult (see Dogan).
- Step 1 is that there must be a statement and an invitation to a meeting. Those were both done. Before any action is taken, that is before a meeting, the basis for the case against the Claimant must be given to her. That was, as well, prior to 20 December 2007, and to her union. It is conceded by Mr Lewis that she had a reasonable opportunity to consider her response (see paragraph 2).
- The employee must take all reasonable steps to attend the meeting. She did not, in respect of the 20 December 2007 meeting. She was there with her union. She was being paid to be there. She left without authority. She left without notice. She failed to reply. She did not take reasonable steps to attend the meeting. The meeting did not go ahead. Instead the employer gave her another chance.
- The Tribunal was correct, in our judgment, to hold that the dismissal would have been fair, had it occurred that day. It would have complied with those steps and it would further have complied with paragraph 13, the general requirements, which says "meetings must be conducted in a manner that enables both employer and employee to explain their cases". That meeting was set up to so enable her, and she did not take advantage of it.
- There could not have been an allegation of a breach of step 2, on 20 December. Did it get better for her on 15 January when she was unarguably ill? She was told that she must attend. She did not apply to put the meeting off. The Respondent knew of the medical condition and made an adjustment for it. Given that the union officials are not criticised for their attendance there, acting as representatives of an independent trade union, and were there to represent the Claimant's interests insofar as they understood them, how could it be unfair, then, to conduct the meeting without her?
- As we indicated in the authorities above, a meeting can comply with the statutory regime, absent the Claimant in certain circumstances. Wilful failure to attend is the obvious one. She could not frustrate the meeting by refusing to come. That was, in our view, what happened on 20 December. On 15 January her attitude had not changed. Her condition had. She was sick, but the meeting went ahead in any event.
- This was an exceptional case. We hold that there was no breach of the opportunity being given to the Claimant to attend the meeting and to put her case. The minutes of that meeting, together with what we hold to be assistance by those union officers attending, clearly showed that justice was being done. In our judgment, this last minute attempt to obtain an automatic finding of unfair dismissal must fail.
- We then consider whether paragraph 6.14, which contained these matters, was necessary for the decision. Since the Tribunal found that there was no unfairness and, on our analysis above, no breach of the statute, then s.98A(2) did not arise. The dismissal was not unfair by procedural reasons, but if it were somehow to be so depicted, then s.98A(2) would rescue the Respondent and the Tribunal made a finding which was open to it.
- We turn then to contribution. This does not arise on our findings above. We would be adding hypothesis to hypothesis. We can see no error. It follows from the findings about repudiation that there was a breach of contract. We applied London Ambulance Service NHS Trust v Small [2009] IRLR 563, the Tribunal separated its consideration of unfairness and breach of contract. We see no error.
| For the Appellant | MR JEREMY LEWIS (of Counsel) Bar Pro Bono Unit |
| For the Respondent | MR SIMON ROBINSON (Solicitor) Ford & Warren Solicitors Westgate Point Westgate Leeds LS1 2AX |
SUMMARY
VICTIMISATION DISCRIMINATION – Whistle-blowing
The Employment Tribunal did not err when it found the Respondent did not unfairly dismiss the Claimant, either in the ordinary sense or automatically for breach of the Employment Act 2002 procedures. The dismissal and any detriments were not caused by the Claimant's protected disclosures.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The legislation
"98
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
"103A
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."
"43A
In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.
43B
(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following-
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
(5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).
43C
(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith-
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates solely or mainly to-
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer has legal responsibility, to that other person.
(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer."
"47B
(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."
"48
(2) On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done."
"Step 1: statement of grounds for action and invitation to meeting
(1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: meeting
(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless-
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
(1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting, the employer must inform the employee of his final decision."
"13
(1) Timing and location of meetings must be reasonable.
(2) Meetings must be conducted in a manner that enables both employer and employee to explain their cases."
"Hold a meeting to discuss the problem
14. Where possible, the timing and location of the meeting should be agreed with the employee. The length of time between the written notification and the meeting should be long enough to allow the employee to prepare but not so long that memories fade. The employer should hold the meeting in a private location and ensure there will be no interruptions.
15. At the meeting, the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be allowed to ask questions, present evidence, call witnesses and be given an opportunity to raise points about any information provided by witnesses.
16. An employee who cannot attend a meeting should inform the employer in advance whenever possible. If the employee fails to attend through circumstances outside their control and unforeseeable at the time the meeting was arranged (e.g. illness) the employer should arrange another meeting. A decision may be taken in the employee's absence if they fail to attend the re-arranged meeting without good reason. If an employee's companion cannot attend on a proposed date, the employee can suggest another date so long as it is reasonable and is not more than five working days after the date originally proposed by the employer. This five day time limit may be extended by mutual agreement."
The Employment Tribunal's directions
"2.4 For unfair dismissal, the central issue was whether the Claimant had been unfairly dismissed applying the ordinary test of fairness in Section 98(4) of the Employment Rights Act. It was agreed that she had been dismissed for a reason relating to her conduct. The Tribunal would therefore have to consider, following guidance in the cases on how that test of fairness should be approached: whether when dismissing her the Respondent had an honest belief in the misconduct; whether they had conducted a reasonable investigation into that misconduct; whether that had revealed reasonable grounds for their belief; whether the decision they had come to in dismissing her fell within the range of responses open to a reasonable employer in those circumstances. The Tribunal would also need to consider the procedural aspects of that dismissal, applying the standards of a fair employer as set out, for example, in the ACAS Code of Practice. If the Tribunal were to find the dismissal unfair on procedural grounds, they would need to consider where there was a possibility that had a fair proceeding been followed, the outcome might have been the same in any event. The Tribunal would also need to consider the possibility of a contribution finding: a finding that to some extent at least, Ms Dunster had contributed to her own dismissal and therefore it would be appropriate to reduce her compensation accordingly.
3.1 Secondly, the Tribunal had to consider whether the Claimant had been dismissed by reason that she had made a public interest disclosure, within Section 103 of the Employment Rights Act. That would require us to find whether and when any public interest disclosure had been made and whether it was a principal reason for her dismissal.
3.11 The real question in determining the public interest disclosure claims before us is one of causation: were the detriments which the Claimant subsequently alleged she endured, suffered on the ground that she had made the disclosure (Section 43B)? Similarly, with the unfair dismissal claim under Section 103A: was the protected disclosure the principal reason for her dismissal?
6.3 We turn to consider the ordinary claim for unfair dismissal. We remind ourselves of the test in Section 98(4). We remind ourselves it is not for us to substitute our view of the reasons for the dismissal. Rather we should consider the position from the perspective of a reasonable management in the Respondent's circumstances."
Procedural unfairness
"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –
(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."
The facts
"5.2 In making that finding and preferring the Respondent's evidence, the Tribunal made the general observation that the four Respondent witnesses appeared to the Tribunal as straightforward, largely reciting a factual chronology. By contrast, the Claimant was frequently unconvincing in her answers, particularly when challenged over contradictions in her evidence."
"2006
1 and 4 January 2006 The Claimant states that she suffered two separate accidents at the same spot of track known as the 'Batley Bump'. On the first of these she says she injured her pelvis, though the injury did not become apparent until an x-ray following the second accident: on attending hospital on 6 January, she was told she had broken her pelvis.
6 January 2006 The Claimant telephoned her manager, Mr Gabbay, to report her injury (see 3.6, above).
February 2006 The Claimant was reported medically fit to continue work.
2 June 2006 The Claimant returned to work, working as a Conductor on trains travelling over the site of her accident.
26 June 2006 The Claimant wrote a letter disclosing her health and safety concerns to her Union, the RMT, claiming accident benefit.
31 August 2006 The Claimant had a dispute with Monica Sheridan, a Revenue Collector. Miss Sheridan subsequently complained.
20 September 2006 Mr Gabbay, the Claimant's Manager asked her to prepare a written report of her dispute with Ms Sheridan, which she presented to him dated 20 September 2006. In this she set out the circumstances of her accident in order to explain her part in the altercation with Miss Sheridan.
29 September 2006 The Claimant had an informal discussion with her Line Manager, Mr Gabbay. This ranged over a number of areas of concern, one of which was that the Claimant had indicated to Miss Sheridan that she was not prepared to collect revenue at the bumpy spot of the track, because of her injury to her pelvis.
2007
19 January 2007 The Claimant had a meeting with Mr Gabbay in which he raised two customer complaints and also concerns at her use of the PA system on trains to make announcements. The claimant responded by raising her concerns over the safety of the track where she had had her accident. Subsequently, her managers were advised to suspend the claimant for her own protection and to protect the company from the possibility of litigation, should a further accident occur, while her safety concerns were investigated.
20 January 2007 The Claimant was involved in a dispute with Pete Mills, a fellow Conductor, over rostered duties.
24 January 2007 Mr Gabbay referred the Claimant for a medical report to confirm whether since her injury she was fit to work trains over a rough track.
25 January 2007 Mr Gray and Mr Gabbay asked the Claimant for her personal safety and working cards, the possession of which was necessary for her to continue to do her normal duties. In effect, they suspended her from her normal duties.
26 January 2007 The Claimant attended with Mr Gabbay and Mr Gray to ride over the section of track in question so that she could point out to Managers where the accident had occurred.
1 February 2007 The Claimant wrote her letter to Head of Safety, disclosing, amongst other things, her comment over the safety of that stretch of track. On the same date, 1 February 2007, a medical report was received from BUPA, indicating that there was no risk to the Claimant in continuing with her normal duties on that stretch of track.
16 February 2007 Mr Gabbay sent an email to the Safety Department of the Respondents asking for their assistance in addressing the Claimant's fears over that stretch of track.
19 February 2007 The Claimant had a meeting to discuss safety with Mr Clinch of the Respondents.
20 March 2007 Mr Gabbay realising that the Claimant's suspension had been dragging on, wrote to her to say that he would find work for her.
22 March 2007 Mr Lowe, the Head of Safety, wrote to the Claimant assuring her that her concerns for safety would be taken seriously and that the company was arranging an assessment of that stretch of track. The assessment was subsequently carried out by Delta Rail Ltd, independent consulting engineers.
24 April 2007 The Claimant had a meeting with Ms Hughes, of Human Resources, to address her concerns, including the limited nature of the work that she was asked to do whilst suspended from her normal duties.
13 June 2007 The Claimant, with her union representative, had a meeting with the Respondents' Fleet Standards Engineer to discuss the report and safety assessment from Delta Rail Ltd. The assessment concluded 'At no point is the vibration level considered likely to cause harm by jolts and knocks. At no point is the vibration level high enough to reach legal (at work) limitations.'"
"(i) refusing to sign your route card without a satisfactory explanation resulting in your being unable to fill the full Conductor duties, responsibilities and working arrangements;
(ii) failing to attend numerous investigatory interviews, whilst suspended from duty on basic pay."
"In summary, I believe this patient's anxiety state is a consequence of events at work commencing in August 2007. I do not believe that she was fit to cope with the stresses of a disciplinary procedure. The ongoing stresses have been intense for her and she has been unable to return to any other form of employment because of her level of anxiety. I believe she should ultimately make a recovery."
"5.16 The tenth detriment is: "The Claimant was then removed from all work activities on 25 January 2007. This suspension was administered in a high-handed and over-bearing manner without consideration for the Claimant who was met, unannounced, by Managers Paul Gabbay and Justine Gray at York Station and in front of other members of staff had her route cards removed from her without any proper explanation preventing her from undertaking her work." Having heard from the Claimant, Mr Gabbay and Mr Gray in evidence we reject the Claimant's account of the manner in which her cards were removed and she was told that she was suspended from her normal work duties on 25 January 2007. Specifically, we accept that the Managers did what they could in the circumstances to request her cards from her without causing unnecessary publicity or distress.
5.17 We have also considered the fact of the suspension from her normal duties. We accept the Respondent's evidence that, following a meeting on 19 January 2007 (which incidentally, does not feature in the list of detriments) when the Claimant was challenged about recent customer complaints and her manner in making inappropriate announcements over the train's public address system, the Claimant responded by raising her concerns over the safety of revenue collection on bumpy track, referring again to her accident. Neither Manager was clear how they should handle this situation. They sought advice. They were advised by the safety section that given that the Claimant had raised a specific concern for her own safety relating to a particular stretch of track between Dewsbury and Huddersfield, at which she had suffered a serious accident (the injury to her pelvis a year before) it would not be appropriate for the Claimant to continue to travel on trains until that safety concern was addressed. The Respondent was specifically concerned that should a further accident occur the Claimant would have strong grounds for pursuing a personal injury claim against them. It was on that ground and for that reason, we find, that Mr Gabbay and Mr Gray asked the Claimant for her route cards, effectively preventing her from pursuing her normal duties.
5.18 The Claimant points to the obvious connection with her public interest disclosure to argue that is why she was suspended from duty on that occasion. We do not find her disclosure was the reason. We accept it is part of the factual background, the chain of events leading up to that disclosure: it is true that if the Claimant had not complained about her accident and the bumpy track, she would not have had her cards removed, but to show a link in the chain of causation is not sufficient to establish the employer's reasons, or a material causal connection. We are persuaded that the disclosure was not the reason or a significant reason for the request for the removal of her route cards, having heard from Mr Gabbay and Mr Gray.
5.19 The eleventh detriment complained of: "The Claimant was then left with nothing to do. The suspension process was not managed at all and she had no work at all. The Claimant submits she was being disciplined without any fair hearing. She could and would have worked. The Claimant was then later given menial and administrative tasks such as cleaning out lockers, filling in forms whilst she was suspended, without any proper terms or management. She was also required to report to a Junior Receptionist to sign in and ask for menial duties on a daily basis." We think there is some substance in this complaint and that it is certainly capable of constituting a detriment. The suspension could have been managed better. There is no clear need for the Claimant to be required to attend work during this period; the Respondent was hard put to find any work for her to do; and no doubt the Claimant did find it demeaning and humiliating. However, that was not the Respondent's intention, though it may have been the effect.
5.20 But that suspension from duty, in accordance with our findings in the previous paragraph, was not by reason she had made a disclosure. It was because the company were fearful of their position should a personal injury claim, following a further accident, arise. It is not the fact of the disclosure of the Claimant's safety concerns that led to this period without work, it is the fact that the Respondent took the disclosure seriously. A question about the safety of the track had been raised. The Respondent took appropriate and proper action to address it. Assessing track safety is not a simple matter: the track had already been passed as safe. But track safety is constantly under review; the section of track in question was monitored and had been passed as safe by Network Rail, the responsible body. Nevertheless, the respondent commissioned an additional, expensive, independent test of track safety. Ms Dunster was suspended for the inevitably lengthy period that that took to commission and carry out. The suspension was to protect her and the respondents from the outside chance that there was something amiss with track at that point, not the fact of disclosure. That the suspension was poorly handled was nothing to do with the disclosure.
5.21 The twelfth complaint of detriment is: "As a consequence of the removal of her route cards, the Claimant also lost income on overtime and commission from revenue collections." Again, we find that this was a detriment suffered by the Claimant during the period of removal of her route cards, but it was not by reason that she had made a disclosure, adopting the reasons set out in our previous two paragraphs.
5.28 The nineteenth complaint of detriment is: "The Claimant was then subject to a poorly administered disciplinary process which continued regardless of her deteriorating health and whilst she was certified sick." In one particular aspect, convening a disciplinary hearing in January, while the Claimant was ill, there may be some substance in the Claimant's concern here. We deal with this below in our consideration of her unfair dismissal claim. However, apart from that, we observe that the Respondent showed very considerable forbearance towards the Claimant over the Autumn of 2007, a period when the Claimant was refusing without any good cause, to sign her route cards and thus resume her normal work, while remaining on full pay throughout. If the disciplinary process was poorly administered through this period, it was greatly to the Claimant's benefit.
5.29 The twentieth detriment complained of is: "Disciplinary meetings were scheduled by management while the Claimant was on allocated leave - but management accused the Claimant of failure to attend and reprimanded and disciplined her for this, even though they were incorrect as she had not failed to attend." We find there is substance in this complaint. This may well have amounted to a detriment to the Claimant, for reasons discussed below in connection with the unfair dismissal claim, but we find that detriment had nothing at all to do with her public interest disclosure: there was no causal connection. We therefore dismiss any complaint of detriment for that reason."
"5.31 As we have gone through the 21 complaints of detriment, we have found in relation to each individual complaint that the reason for any detriment (where any was established) was not the making of the disclosure. There is no overt or direct evidence to establish such a reason. We accept that such evidence will rarely be forthcoming, and have therefore also considered the sequence of events as a whole to see if they reveal any pattern of underlying adverse behaviour towards the Claimant, from which we might draw an inference of some underlying, hidden motive, not apparent from simply examining each incident on its own. Indeed, the Claimant's case is that there was here a hidden agenda, in effect a conspiracy amongst the Respondent's employees, to punish her for the disclosure. Such a conspiracy must have been wide reaching, probably including figures such as Monica Sheridan, Pete Mills and the junior receptionist she had to report to at one stage; HR officers such as Alison Hughes; her line managers; the engineers who produced the track safety report (employed by independent consultants) and the engineer who reassured her about train speeds. Whatever the inherent likelihood of such a conspiracy may be, we can see no reason for such a conspiracy. This was not an employer who had reason to fear Ms Dunster's disclosure. They had no intent or motive to cover it up.
5.32 Far from covering it up, the Respondent took Ms Dunster's concerns seriously, and acted appropriately. There was already clear evidence the track was safe. Network Rail, whose responsibility it was, had established safe running speeds. The track was in constant use, with 10 or 20 trains an hour pressing over the 'Batley Bump', without incident. Nevertheless, the company, at considerable expense, commissioned independent consultants to investigate; Ms Dunster was given a copy of the report, and a meeting with an engineer and her union to discuss the report.
5.33 Mr Dunster's allegations are therefore inherently unlikely. We have found that there was nothing in the individual incidents to suggest any causal connection to the disclosures; we also reject any suggestion that collectively, looked at in the whole, they reveal any pattern of adverse or unexplained behaviour towards her, from which we might draw an inference that there is some underlying connection: that management took these steps (or some of them, or any of them) on the ground of her disclosure. On the contrary, there is considerable evidence of forbearance, a reluctance to take any action against the Claimant, even when circumstances indicated clear grounds for such action."
"6.1 We considered first the question of whether the principal reason for that dismissal was the Claimant's public interest disclosure: the complaint of unfair dismissal within Section 103 of the Employment Rights Act. It is quite clear to the Tribunal that the reasons for that dismissal were not influenced to any extent by her disclosure. We accept that the Claimant can point to a chain of causation starting with her disclosure which culminates in her dismissal. Her disclosure certainly had a part in the events leading up to the factual background. If the Claimant had not made her disclosure she would have not been relieved of her duties in the early months of 2007, but we cannot see that has anything to do with her subsequent refusal to sign her route card; or her subsequent health and safety concerns. We note that her health and safety concerns were never raised at the time of her accident directly, or indeed clearly raised until February 2007.
6.2 On the contrary, the Respondent had straightforward reasons for her dismissal; her refusal to sign her route card effectively prevented her from carrying out of her normal duties of Conductor. They had no other appropriate work for her. Since there was no good reason for the refusal, they were not prepared to carry her as an employee any longer. We therefore dismiss the claim under Section 103. Her dismissal was not by reason that she had made a public interest disclosure."
"6.7 However, that ground for dismissal does not stand alone. There is a separate, free-standing ground of misconduct alleged: Ms Dunster's refusal to sign her route card."
"6.8 We have referred to Ms Dunster's repeated refusals in August to sign her route card. Nor did she agree to sign them at any subsequent point. That seems to us a fundamental repudiation by her of her obligation to work. It is accepted by both parties that unless a Conductor is willing to sign a route card, the Conductor cannot be asked to work a train. We cannot find any reasonable ground for Ms Dunster's refusal to sign her route card in August 2007 or subsequently. Her health and safety concerns had been fully, fairly and expertly investigated. She had been given the opportunity to ventilate her concerns with an expert Engineer from the Respondents in June. At the time, she appeared to have accepted his explanations. Yet, to this day, she persists before the Tribunal in repeating her safety concerns, largely based on the apparent difference between the speed of 50mph and 70mph, though she has no engineering knowledge herself to contest the experts' findings, nor has she made any attempt to access alternative expert evidence. In evidence at the Tribunal, Mr Donovan, himself an experienced and expert Engineer, again explained to the Claimant why her fears were misplaced. She still is not satisfied by those explanations but cannot explain why. At the time, she persisted in maintaining that her fears had not been properly addressed and therefore she was unable to work."
6.9 A railway track cannot be expected to be entirely smooth; some bumps and sways are to be expected. It is noticeable that the Claimant's colleagues have continued to work the track without protest. It is noticeable that the Claimant's union, the RMT, despite the disclosure to them on 30 June and subsequently, did not take the Claimant's concerns seriously. The advice from her full-time officer, endorsed by her local lay representative, was perfectly clear. She should have signed her route cards. She had no sensible for refusing to do so."
"6.10 In those circumstances, we find that the Respondent had an honest belief in the Claimant's misconduct in refusing without proper cause to sign her route cards, had conducted a more than reasonable investigation, and had reasonable grounds for their belief. Moreover, the decision to dismiss an employee who without good reason is refusing to perform the central obligation of her employment is one which falls squarely within the range of options to a reasonable management. This was potentially a fair dismissal."
"6.11 However, there is a significant question over the procedural fairness of her dismissal. The Claimant was invited to attend a properly convened disciplinary meeting to answer the charges on 20 December 2007. She attended with her union representative. The start of the hearing was delayed. Her union representative was unsure of how to proceed. The Claimant left the premises before the meeting began, thus frustrating the meeting. Had she been dismissed at that meeting, even in her absence, we would have found the dismissal fair. Fairness requires she should be given a proper opportunity to attend the meeting. She had such an opportunity on the 20 December. She chose not to take it. Fairness does not prevent an employer who provides such an opportunity from proceeding in the employee's absence.
6.12 However, the employer chose not to proceed on 20 December, reconvening on 15 January 2008 (another example, we observe of forbearance toward the claimant by the respondents). By that stage the Claimant had submitted two Doctor's certificates indicating that she was unfit to attend work through stress. The Respondents do not challenge the genuineness of her illness. Instead they wrote to her, informing her that despite that medical evidence, they were, in the circumstances, reconvening the meeting and expected her to attend on 15 January 2008. The Claimant did not do so. She did not seek an adjournment. The Union representative who attended to protect her interests confirmed to management that they should proceed with the meeting. They did so, in her absence, and dismissed her.
6.13 We accept that it would normally be a breach of a fair procedure to proceed with a disciplinary hearing which the Claimant is prevented from attending through illness. However, the circumstances here are exceptional. The Respondents had been attempting to address this issue, the Claimant's refusal to sign her route cards, for several months. Meetings had been repeatedly frustrated, though not, we have found, by the Claimant's misconduct, save for the meetings in late October and in December. Nevertheless, given the length delay that had occurred and the absence of any request for adjournment, and the position taken by the union, we find that the decision by management to go ahead in January does, on balance, comply with the obligation on a reasonable management to operate a fair procedure. We find in these exceptional circumstances, this was a fair dismissal."
"6.14 However, lest we are thought wrong on that, we have also considered what the possible outcome would have been had the dismissal hearing been adjourned and re-convened at some later date (which on the evidence might well have been several months later) when the Claimant was fit to attend. We are persuaded that there is no possibility of anything other than the same result being reached, because of the Claimant's persistent inability to provide any persuasive reason for her refusal to sign her route card and thus resume her duties. The Claimant simply asserts that her fears have not been allayed, but is unable to offer any coherent explanation for why she does not accept the independent expert's report and the advice she has repeatedly been given by the union and others who are qualified to address such issues. In those circumstances, applying the provisions of Section 98A(2) of the Employment Rights Act 1996, we would find this a fair dismissal in any event."
The Claimant's case
The Respondent's case
The legal principles
"28. The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee's conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the ET without committing error of law or reaching a perverse decision on that point.
29. Other danger zones are present in most appeals against ET decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.
30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the ET, but then overlooked or misapplied at the point of decision. 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.
31. Ms Price submitted that the ET in this case erred in law in four respects: (i) by substituting its own view for that of the employer in deciding that the dismissal was unfair, an objectionable tendency evidenced by its comments on what constituted a reasonable investigation; (ii) by failing to ask the correct question whether the dismissal was within the range of reasonable responses; (iii) by importing hypothetical mitigating circumstances and factors into the decision and not considering the circumstances faced by the Council at the date of the dismissal; (iv) and by wrongly suggesting that a previous verbal warning was built up into more than it was."
"24. The legal principles appear to us to be as follow. The approach in ALM v Bladon is one to be followed in whistle-blowing cases. That is, there is a certain generosity in the construction of the statute and in the treatment of the facts. Whistle-blowing is a form of discrimination claim (see Lucas v Chichester UKEAT/0713/04). As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following.
(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on.
(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject."
"64. We accept the submission that what amounts to causation in cases of victimisation in discrimination claims is the same as that that should apply to victimisation for whistle-blowing and to other forms of discrimination.
65. We also recognise that Igen v Wong was a case that concerned race discrimination (as in fact was Nagarajan) where the European Directive applied. Such cases therefore differ from whistle-blowing cases where the legislation is entirely home-grown. We were, however, impressed by the argument as to the assimilation of the law of victimisation in discrimination cases and victimisation in whistle-blowing cases. Peter Gibson LJ held that the appropriate test required the employer to prove that the treatment [discrimination] and was "in no sense whatever" on the grounds of the Claimant's race or sex as the case may be. The same would apply to detriment suffered on the ground that the Claimant had been (whistle-blowing) and thus done a protected act. As we have noted Peter Gibson LJ held that this test did not differ from Lord Nicholls' formula in Nagarajan; a "significant" influence was an influence which was more than trivial.
66. We bear in mind that, in the legislation relating to whistle-blowing, Parliament has sought to offer protection to whistle-blowers. We consider that we should take a broad view of provisions for their protection. Further, the decision of the Court of Appeal in Igen v Wong is binding upon us. The Court of Appeal considered the relevant earlier authorities and so far as we are concerned its decision is both definitive and binding upon us. Accordingly in our opinion, once a detriment has been shown to have been suffered following a protected act the employer's liability under section 48(2) is to show the ground on which any act or deliberate failure to act was done and that the protected act played no more than a trivial part in the application of the detriment. That is the meaning of the test in Igen v Wong. Put another way, the employer is required to prove on the balance of probabilities that the treatment was in no sense whatever on the ground of the protected act."
"22. We prefer to approach the question first as one of principle, and without reference to the complex case-law which has developed in this area. The question in any claim of victimisation is what was the "reason" that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint. Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence; or who insists on making it by ringing the Managing Director at home at 3 o'clock in the morning. In such cases it is neither artificial nor contrary to the policy of the anti-victimisation provisions for the employer to say "I am taking action against you not because you have complained of discrimination but because of the way in which you did it". Indeed it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint. (What is essentially this distinction has been recognised in principle – though rejected on the facts – in two appeals involving the parallel case of claims by employees disciplined for taking part in trade union activities: see Lyon v St James Press Ltd [1976] ICR 413 ("wholly unreasonable, extraneous or malicious acts" – see per Phillips J at p. 419 C-D) and Bass Taverns Ltd v Burgess [1995] IRLR 596.) Of course such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had say, used intemperate language or made inaccurate statements. An employer who purports to object to "ordinary" unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately advanced made in some cases does not mean that it is wrong in principle.
23. We accept that the present case is not quite like that. What the Tribunal found to be the reason for the Appellant's dismissal was not the unreasonable manner in which her complaints were presented (except perhaps to the extent that Mr Hudson referred to the fact that some of the grievances were repeated). Rather, it identified as the reason a combination of inter-related features – the falseness of the allegations, the fact that the Appellant was unable to accept that they were false, the fact that both those features were the result of mental illness and the risk of further disruptive and unmanageable conduct as a result of that illness. But it seems to us that the underlying principle is the same: the reason asserted and found constitutes a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself. Again, no doubt in some circumstances such a line of argument may be abused; but employment tribunals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint.
25. We conclude, therefore, that the distinction made by the Tribunal in reaching its conclusion as to the Respondents' reason for dismissing the Appellant ought as a matter of principle to be regarded as legitimate."
"34. In our judgment s98A(1) of the Employment Rights Act 1996 is part of the essential fabric of unfair dismissal law as presently enacted by Parliament. Whether there is an applicable procedure, whether there has been "non-completion" of that procedure, and whether that non-completion is wholly or mainly attributable to failure by the employer to comply with its requirements, are matters which the Tribunal should have in mind in every unfair dismissal case. It is not necessary for a claimant to raise s98A(1) explicitly; the Tribunal should have the matter in mind as an issue."
"28. The principle in Taylor v OCS is that one must look at the whole of the dismissal process to see whether it was fair, and that includes what occurred at an appeal. So, defects earlier can be corrected. We see the importance of that principle, and, guided by the industrial experience of the members here, we see force in the argument that it ought to apply to defects in the statutory procedure. Once an employer has breached, let us say, step 1, why should it not try to rectify it by a step 2 meeting or a step 3 appeal if it will be forever condemned for its earlier breach? An employer who does make an elementary mistake in step 1 or step 2 ought to be able to do good for the employee if, standing back from the end of a step 3 appeal, the whole procedure has been fair. But that construction is not available under the clear words of section 98A(2) and as applied in Davies and Alexander.
29. We note that in Wilmot v Selvarajan [2008] ICR 136, the Court of Appeal dealt with the general requirements, which do not come into play until there has been non-compliance with one of the steps. That, however, is different from non-compliance with one of the three statutory steps, and applies only to such matters as the reasonableness of delays."
"32. We turn then to the statutory procedure. Adverse consequences arise only when it is not completed. In our judgment the Employment Tribunal was right to hold that the procedure was completed. It may seem odd that a "meeting" can take place without one of two parties being present. As a matter of ordinary language, that is correct. But since meeting means a hearing (para 14) and since a hearing can be unilateral as well as bilateral the refusal of the Claimant to attend the disciplinary appeal did not vitiate the completion of the statutory procedures. This was an adversarial process with two of the three actors present, the Panel and the management. This was not a case where the Council abandoned the appeal in the light of the Claimant's letter on 9 December 2008. The arrangements remained in place, the three councillors on the Personnel Appeals Committee Panel attended, a manager put the Respondent's case; they presumably read the papers. They came to a conclusion, not challenged before us, that there was no new material upon which the Panel could change the view which had already been reached by the management.
33. Employment Act 2002 Schedule 2 paragraph 3 imposes conditions: notice by the employee, invitation to a meeting, notice of the decision. Paragraph 3(3) requires the employee to take all reasonable steps to attend. Paragraph 13(2) directs that the procedure must enable both parties to explain their cases. If attendance were a condition, these paragraphs would say so. It is implicit there can be circumstances where there is no attendance, such as where the employee does not take reasonable steps to attend, and yet the hearing is not aborted by this failure. The Claimant had been exposed to unreasonable delay but nevertheless was notified in November that the hearing was to take place on 5 December and at the time when he was consulting Mr Medhurst he knew that the postponed hearing would take place towards the end of December. On advice, he decided not to attend. He expressly invoked automatic unfair dismissal. This was opportunistic. The letter acknowledges "the remainder of the disciplinary procedure" is still to come. The reason the procedure had not been completed by 9 December was the unreasonable delay of the Respondent. If contrary to our holding the procedure was not completed on 18 December it was because of the Claimant's reaction to the delay. It is not necessary to decide whose fault that was, but it would seem wrong to us that a delay forever entitled an employee to boycott further proper stages."
Discussion and conclusions