United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0415/12/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

 

 

At the Tribunal

On 22 February 2013

Judgment handed down on 11 July 2013

 

 

Before

THE HONOURABLE MR JUSTICE KEITH

MR D BLEIMAN

MR P GAMMON MBE

 

 

 

 

THE CO-OPERATIVE GROUP LTD APPELLANT

 

 

 

 

 

 

MR S BADDELEY RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR BRUCE CARR (One of Her Majesty’s Counsel) Instructed by: Addleshaw Goddard LLP 100 Barbirolli Square Manchester M2 3AB
For the Respondent	MR IAN WHEATON (of Counsel) Instructed by: Bernard Chill & Axtell Solicitors 8a Carlton Crescent Southampton Hants SO15 2EZ

 

 

SUMMARY

UNFAIR DISMISSAL - Reason for dismissal

 

Tribunal expressing itself in unusually robust language – whether tribunal substituted its own view of what employee had done for that of employer – whether tribunal gave sufficient reasons for its findings of fact – whether tribunal gave any reasons for its finding that disclosures made by employee were protected disclosures.

 

 

 

THE HONOURABLE MR JUSTICE KEITH

Introduction

1. Judgments of an employment tribunal tend to follow a similar pattern these days. That is partly due to an express provision in the rules requiring the tribunal’s reasons to include particular things. It is also due to the advice which employment judges get through courses organised by the Judicial College about how their reasons should be structured. There is therefore a tendency for their reasons to appear formulaic. That is not something which can be said of the judgment to which the present appeal relates. Its language is florid. Its findings are robust. And it has catchy headings like “Wrong place, wrong time?” and “Who will rid me of this meddlesome priest?” There is nothing wrong in any of that, of course. If the judgment grabs the reader, so much the better. The criticism of it here is that it is long on rhetoric and short on legal and factual analysis, and in its laudable endeavour to say things how they really were, the tribunal is said to have lost its objectivity and to have substituted its own view of the rights and wrongs of the case for that of the employer.

 

2. The claimant is Stuart Baddeley. He was employed by the respondent, the Co-operative Group Ltd (“the Co-op”), for three years until he was dismissed for what the Co-op said was his gross misconduct. He said that the real reason for his dismissal was because he was a whistleblower. He had made what are known as “protected disclosures”, and had been subjected to detriments as a result. The principal detriment was his dismissal, which was said to have rendered his dismissal automatically unfair pursuant to section 103A of the Employment Rights Act 1996 (“the Act”). The other detriments consisted of the way he was suspended from work pending the outcome of disciplinary proceedings into what the Co-op said was his gross misconduct, and the prohibition on him during that time from contacting people from work. He also claimed that his dismissal had been unfair under the ordinary law of unfair dismissal.

 

3. The hearing of these claims in the employment tribunal in Stoke-on-Trent (Employment Judge Lloyd presiding) lasted 10 days. All these claims were upheld. He was found to have been dismissed because of the protected disclosures he had made. His dismissal was found not only to have been automatically unfair for that reason, but also unfair under the ordinary law of unfair dismissal on both substantive and procedural grounds. The tribunal rejected the Co-op’s argument that even if Mr Baddeley’s dismissal had been unfair because it had failed to follow a fair procedure when it dismissed him, his compensatory award should be reduced to reflect the fact that a fair procedure would have made no difference to the decision to dismiss him. Moreover, the Co-op had argued that even if his dismissal had been unfair, it would be just and equitable to reduce his award because his conduct had caused or contributed to his dismissal. The tribunal rejected that as well. The Co-op now appeals against all these findings.

 

4. At the conclusion of the hearing of the Co-op’s appeal, we reserved judgment. Before our judgment had been finalised, I happened to hear another appeal with two different lay members which was also an appeal from an employment tribunal presided over by Employment Judge Lloyd. Like Mr Baddeley’s case, it was a case in which the employee had succeeded in their claim against their employer, and the judgment of the tribunal had been expressed in unusually robust language. The language which Employment Judge Lloyd had used in the judgment was the basis of one of the grounds of appeal in that case, and it formed an important part of the appellant’s argument. I thought that it might be appropriate to hand both judgments down at the same time since the Employment Appeal Tribunal might want to say things in both cases about the use of language which might be regarded as intemperate. Unfortunately, the other appeal was not concluded in the time allotted to it. It had to be adjourned part-heard to 17 May. The upshot is that Mr Baddeley and the Co-op have had to wait for some time to know the outcome of this appeal. We regret that, but we hope that they will understand our thinking. It goes without saying that both judgments are entirely separate judgments, and each judgment is based only on the arguments raised in the appeal to which the judgment relates.

 

The tribunal’s judgment

5. We deal here with two other claims which Mr Baddeley made if only to get them out of the way. In his ET1, it was claimed that the Co-op “owe[d] him pay in relation to performance related bonuses and notice. Full particulars to follow.” We have taken the latter of these claims to be a claim for damages for breach of contract, namely the salary he would have received during the period of notice of his dismissal to which he would have been entitled had he not been summarily dismissed.

 

6. When the particulars of Mr Baddeley’s claim were served, they did not cast any further light on his claim for a performance-related bonus. We know from the written closing submissions on behalf of Mr Baddeley that a schedule of loss was prepared, but it was not included in the bundle of documents for use on the appeal. Nor were these claims addressed in either of the written closing submissions, or in the tribunal’s reasons for its judgment, which was sent to the parties on 17 May 2012, save that in para. 2.2 of its reasons, the tribunal said that it had heard no evidence on Mr Baddeley’s claim for a performance-related bonus. Apart from that, the only reference to these claims was in the tribunal’s formal judgment sent to the parties on 4 April 2012 which said: “Breach of contract is proven.” We have taken that to be a reference to the claim for Mr Baddeley’s salary during what should have been his notice period, because that was a claim for breach of contract, whereas the claim for his bonus was not a claim for breach of contract, but a claim for a sum due under his contract. What we do not know is whether the tribunal dismissed Mr Baddeley’s claim for his bonus (because no evidence had been given in support of it), or whether it was deferring consideration of the claim until the remedies stage in the event of liability for any of Mr Baddeley’s other claims being established. We shall have to return to that at the end of this judgment.

 

7. There are two other features of the tribunal’s formal judgment which we should mention. First, the judgment referred to Mr Baddeley’s unfair dismissal – both his automatically unfair dismissal pursuant to section 103A and his unfair dismissal under the ordinary law of unfair dismissal. However, in referring to his automatically unfair dismissal pursuant to section 103A, the judgment said that Mr Baddeley’s dismissal was automatically unfair “in consequence of” Mr Baddeley having made the protected disclosures. Of course, the question whether his dismissal was automatically unfair was dependent on whether the making of the protected disclosures had been “the reason (or, if more than one, the principal reason) for [his] dismissal”. We are entitled to assume that that is what the tribunal meant, though it might have been better if it had stuck to the statutory language, because then there would have been no doubt that it was applying the right test.

 

8. Secondly, the formal judgment said nothing about Mr Baddeley’s claim that he had been subjected to other detriments as a result of the protected disclosures he had made. The tribunal’s reasons for its judgment had referred to this claim. In para. 19.2.1 of its reasons, the tribunal said that Mr Baddeley had been subjected to “a detriment” by the Co-op “prior to and by virtue of his dismissal on the grounds that he had made those protected disclosures”. There are two problems with this. The tribunal referred to the detriment in the singular, and it did not identify what the detriment was. The words “prior to” suggest that it had a detriment other than Mr Baddeley’s dismissal in mind, but what that detriment was when Mr Baddeley’s case had been that he had been subjected to two such detriments (the way he was suspended and the prohibition on him contacting people from work) is not clear.

 

9. That feeds into another point. In the closing written submissions of counsel then appearing for the Co-op, the point was taken that the ET1 had not been presented until 15 March 2011. Accordingly, it was argued that any claim in respect of acts or omissions earlier than 16 December 2010 which were alleged to have constituted detriments to which Mr Baddeley had been subjected would have been time-barred, unless either the acts or omissions were “part of a series of similar acts or failures” within the meaning of section 48(3)(a) of the Act, or it had not been reasonably practicable for Mr Baddeley to present his claim in respect of those acts or omissions before the end of the period of three months from when they took place or did not take place. The tribunal did not address this point at all. We shall come back to that at the end of this judgment as well, but it should be noted that the point made by Mr Bruce Carr QC who appeared for the Co-op on this appeal was that the tribunal’s approach to Mr Baddeley’s contractual claims and his claim to have been subjected to detriments other than his dismissal as a result of making protected disclosures reveal a slapdash approach on the part of the tribunal.

 

The parties’ respective cases

10. Mr Baddeley’s role. Mr Baddeley had a background in the pharmaceutical industry. He went to work for the Co-op on 16 November 2007. His role changed over time, but from about June 2009 he was based at the Co-op’s national distribution centre at Meir Park in Stoke-on-Trent (“the site”). He had by then been appointed the quality assurance manager for a joint venture in China relating to the manufacture of pharmaceutical products in China for sale in the UK. This role required Mr Baddeley to spend much of his time in China. All the dates referred to in the remainder of this judgment relate to dates in 2010 unless otherwise stated.

 

11. The first protected disclosure. At the beginning of 2010 when Mr Baddeley had briefly returned to this country from China, he became aware of the Co-op’s proposal to return to the site various pharmaceutical products which had been for sale at its many retail outlets, but which were either not selling or were approaching their expiry date. Products of that kind were known as “amnesty stock”. Mr Baddeley was concerned that the site did not have the necessary licence from the Medicines and Healthcare products Regulatory Agency (“the MHRA”) to accept and store amnesty stock. He claimed that he raised his concerns about that with local managers, and that was the first of the protected disclosures he claimed to have made. His case was that he had been told that this was outside his remit, and that he should “mind his own business”. For its part, the Co-op denied that Mr Baddeley had raised these concerns with anyone. Its case was that it did not need a separate licence from the MHRA to accept and store obsolete products at the site.

 

12. The second protected disclosure. On Mr Baddeley’s next visit to the UK, he conducted an audit of the amnesty stock on the site. That was on 18 February. Mr Baddeley claimed that the audit had identified a number of breaches of the relevant regulations which could have triggered the immediate suspension of the Co-op’s licence. He had prepared a report following this audit which had been sent to various members of the Co-op’s management. That was the second of the protected disclosures he claimed to have made. The Co-op’s case was that the audit had merely identified a number of things which needed to be done if the site was to accept products from China, though in the event no products from China had ever been received onto the site.

 

13. The third protected disclosure. On his next return to the UK, Mr Baddeley discovered that amnesty stock was still being stored on the site and was being sold by the staff there at a discounted rate. He claimed that he was to discover shortly after that that the stock included pharmacy only items and prescription only medicines which could not be bought over the counter. He raised these concerns with management, and that was the third protected disclosure he claimed to have made. The Co-op did not dispute that amnesty stock was being sold at a discounted rate. Its case was that this stock was only sold to its staff, and that it did not get into “the supply chain”. It also denied that the stock included pharmacy only items or prescription only medicines. Any such stock would be incinerated according to the Co-op’s waste management procedures.

 

14. The events of 24 July. A significant event occurred on 24 July. There was a sale that day in the car park on the site of amnesty stock for the Co-op’s staff and their families and friends. The Co-op accepted that Mr Baddeley had not been involved in the decision to hold the sale or in the planning of the event as he had been in China at the time. Mr Baddeley said that he had been asked to go to the sale by his sister who also worked for the Co-op. She wanted him there to ensure that the stock did not include pharmacy only items and prescription only medicines. When Mr Baddeley got there, he noticed that some of the stock included pharmacy only items and prescription only medicines. He asked for the sale to be stopped while they were removed, but his request was refused. He proceeded to inspect the stock. He was helped in that process by members of management. Mr Baddeley was eventually satisfied that none of the stock which he had checked contained pharmacy only items or prescription only medicines, but he could not vouch for the rest.

 

15. For its part, the Co-op denied that Mr Baddeley had attended the sale because of concerns that pharmacy only items and prescription only medicines might be sold. It claimed that his sister had simply asked him to go to the sale to help out, and it denied that he had raised with management any concerns about the stock or had requested that the sale be stopped. Its case was that the stock had not included pharmacy only items and prescription only medicines, and that the stock which remained unsold at the end of the day had been sold off by Mr Baddeley to Tim Jackson, a trader unconnected with the Co-op, even though, on Mr Baddeley’s case, he could not vouch for all the stock being over-the-counter stock.

 

16. The MHRA inspection. The story then shifts to September. Mr Baddeley was back from China for a short break. The site was due to be inspected by officers of the MHRA on 21 September. The Co-op accepted that it had wanted the amnesty stock removed from the site before the inspection took place. Mr Baddeley’s case was that the Co-op had been concerned about the effect which the presence of that stock would have on its licence from the MHRA if it was found there and it had wanted the stock sold off. The Co-op denied that. Its case was that it had intended to dispose of this stock through normal means, i.e. by incineration if any of the stock included pharmacy only items or prescription only medicines, though in the meantime Mr Baddeley had offered to find a buyer for the over-the-counter stock. He had said that the person he hoped would buy the stock was away until 19 September. He had been referring to Mr Jackson.

 

17. It was not in dispute that on 17 September Mr Baddeley had been provided with a van to remove the stock from the site by Dan Pemberton, the customer services manager on the site. Mr Baddeley’s case was that the van had already been loaded when he was provided with the keys for it. Since Mr Jackson was away, and since the stock could not remain on the site because of the inspection due to take place on 21 September, Mr Baddeley hired a lock-up in which the stock could be stored. His case was that he had done that at Mr Jackson’s suggestion, Mr Jackson having agreed to reimburse Mr Baddeley for the cost of the storage, and that what he was doing had been known to management on the site. The Co-op’s case was that it had known nothing of that, and that there had not in truth been a problem with the stock remaining on the site until the pharmacy only items and prescription only medicines which it included could be incinerated, and the over-the-counter stock could be disposed of to the buyer Mr Baddeley had in mind. The only reason why Mr Pemberton had provided the van for Mr Baddeley was because Mr Baddeley had said that he had found a buyer for the stock.

 

18. The meeting on 14 October. On 14 October, Mr Baddeley met Paul Berne, the Co-op’s international development manager. Mr Berne’s evidence was that the only thing they had talked about was Mr Baddeley’s complaint that he was earning a lot less than John McGhee, the manager of the site. Mr Baddeley’s case was that their discussion had been about much more than that. He claimed that he had raised concerns about the joint venture in China and the changes which the Co-op wanted to make to the manufacturing processes in China. This was the last protected disclosure which Mr Baddeley claimed to have made.

 

19. The discovery at Winsford market. On 19 October, it was brought to the attention of the Co-op that a trading standards officer had discovered that some of the Co-op’s pharmacy only items and prescription only medicines were being sold at Winsford market, a local market. Its asset and profit protection team therefore interviewed a large number of its staff between 20 and 26 October including Mr Baddeley on two occasions. It was only in the second interview that Mr Baddeley revealed that he had hired a lock-up to store the stock recovered from the site on 17 September pending its sale, and the Co-op then retrieved the stock from the lock-up. Mr Baddeley was suspended on full pay on 26 October, and the asset and profit protection team prepared a report about what had happened dated 28 October.

 

20. The disciplinary proceedings. On 8 November, the Co-op wrote to Mr Baddeley inviting him to a disciplinary hearing on 16 November. The letter set out the allegations against him. They were that (a) Mr Baddeley had failed to inform management of his concern that the stock being sold at the sale on the site on 24 July had included pharmacy only items and prescription only medicines, and despite knowing that, he had sold the unsold stock which included pharmacy only items and prescription only medicines to Mr Jackson, and (b) Mr Baddeley had concealed a significant amount of the Co-op’s stock in the lock-up, having failed to tell management what he was doing. As a result of this conduct, it was said that there were grounds for thinking that the trust and confidence which the Co-op had to have in Mr Baddeley no longer existed. The letter enclosed a summary of the report prepared by the asset and profit protection team, as well as recordings of Mr Baddeley’s two interviews.

 

21. The disciplinary hearing could not go ahead on 16 November because Mr Baddeley was unwell. It took place on 16 December. The hearing was conducted by David Atkinson, the Co-op’s divisional operations manager. The Co-op’s case was that at the end of the hearing Mr Atkinson had believed that Mr Baddeley had behaved in the way alleged against him, that it had amounted to gross misconduct and had led to an irreversible breach of the mutual trust and confidence which had to exist between Mr Baddeley and the Co-op if their working relationship was to continue, and that the only appropriate disciplinary sanction had been summary dismissal. An appeal against that decision was subsequently dismissed by Christian Logue, the Co-op’s head of central operations.

 

22. Mr Baddeley’s case was that this had not been the real reason for his dismissal. He had been dismissed because of the various protected disclosures he had made, in particular the ones he had made to Mr Berne at their meeting on 14 October. That was when the Co-op’s management had decided that he had to go, and the discovery of pharmacy only items and prescription only medicines sold to members of the public at a market which could be attributed to his sale of them to Mr Jackson had given the Co-op the pretext to dismiss him. He also claimed that in various respects the disciplinary process had been conducted unfairly.

 

The headings in the tribunal’s reasons

23. Rule 30(6) of the Employment Tribunals Rules of Procedures in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 requires the written reasons for the judgment of an employment tribunal to include the following information (so far as is relevant for present purposes):

 

“(a) the issues which the tribunal … has identified as being relevant to the claim; …

(c) findings of fact relevant to the issues which have been determined;

(d) a concise statement of the applicable law;

(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues …”

 

The tribunal helpfully provided headings to the various parts of its reasons to indicate where that information was contained, but unfortunately some of these headings turned out to be inaccurate. There were seven headings before the tribunal came to its findings of fact on the evidence, and four of them did not accurately describe what followed:

 

(i) The heading “Background and issues”. Under this heading, the tribunal summarised the history of Mr Baddeley’s employment with the Co-op, and set out the material parts of the Co-op’s letter of 20 December confirming Mr Baddeley’s dismissal and the material parts of the conclusion reached when Mr Baddeley’s appeal against his dismissal was dismissed. However, it did not set out at all what the issues which the case raised were, although the heading suggests that that was what it was going to do.

 

(ii) The heading “The Parties’ cases: ET1 & ET3”. Under this heading, the tribunal summarised Mr Baddeley’s case. However, it did not say anything about the Co-op’s case at all.

 

(iii) The heading “Evidence”. Under this heading, the tribunal dealt with only three aspects of the evidence: the sale on 24 July, the discovery of pharmacy only items and prescription only medicines on sale at Winsford market, and the investigation which followed that discovery. It is not clear why the tribunal dealt with these three aspects of the evidence here, nor is it clear whether it was making findings of fact about them. For example, one of the things it said was: “To assist his sister and because of his professional concern he attended the sale and took an active role in searching the sale stock for ‘contamination’ by way of [pharmacy only items and prescription only medicines]”. If the tribunal thought that that part of Mr Baddeley’s case was not in dispute – and it looks as if that was what it thought since it referred to the “essential factual chronology of [Mr Baddeley’s] story” not being in dispute – it was wrong: the Co-op’s case was that Mr Baddeley had gone to the sale simply to help out.

 

(iv) The heading “Issues”. Under this heading, the tribunal purported to give the information required by rule 30(6)(a). The parties had each prepared a document setting out the issues which the case raised. They were almost identical. Mr Baddeley’s list of issues included whether the Co-op’s conduct had been so unreasonable so as to warrant an additional award in the form of aggravated damages. The Co-op’s list of issues did not include that. Its list included whether Mr Baddeley’s whistle-blowing claims were out of time. Mr Baddeley’s list did not include that. It was common ground what all the other issues were. It is not contended that in this section of its reasons, the tribunal did not give the information required by rule 30(6)(a), but at the same time the tribunal did not really spell the issues out in a structured way. It set out what the Co-op’s case was, namely that the reason for Mr Baddeley’s dismissal had been a potentially fair one, and it said that in that context the issues of the genuineness of the Co-op’s belief in Mr Baddeley’s guilt and the quality and adequacy of its investigation and of the evidence which the investigation had revealed would inevitably arise. But it then repeated what it had said under the heading “The Parties’ cases: ET1 & ET3” about what Mr Baddeley’s case was, and set out what had to be proved if the disclosures which Mr Baddeley claimed to have made were to amount in law to protected disclosures.

 

None of this undermines the tribunal’s decision, but it is said to show again that the tribunal approached its task in a slapdash manner and to exemplify what is said to be the chaotic way in which the tribunal’s reasons are structured. We see where Mr Carr was coming from when he made this point, but a mismatch between headings in a judgment and the passages which follow is not that uncommon. We do not want to be seen to be minimising inelegant drafting, but we do not think that the point significantly advances the Co-op’s case on this appeal.

 

The law which the tribunal applied

24. In the passage which followed the heading “Summary of relevant law”, the tribunal purported to give the information required by rule 30(6)(d).  It made it clear that its summary of the relevant law was intended to include the passages under the previous heading relating to what constituted in law a protected disclosure. Its summary of the law relating to whistle-blowing was entirely adequate. Mr Carr did not contend otherwise. When it came to the law of unfair dismissal, it said:

 

“The ‘ordinary’ unfair dismissal claim rests on standard legal principles which have been routinely cited by both advocates; ss. 94-98 ERA 1996 and the well known tests as evolved from the originating decision of British Home Stores v Burchell [1980] ICR 303, EAT. The individual tests are so well trodden as not to necessitate slavish repetition in this judgment.”

 

25. We do not criticise the tribunal for adopting that form of shorthand, but we make two comments on it. First, when you use language as robust as the tribunal used in this case, you lay yourself open to the criticism that you have lost your objectivity. In those circumstances, it may be sensible to spell out the fact that when it comes to whether the employee behaved in the way the employer claims, it is the employer’s view that counts, not the tribunal’s. The tribunal’s role is to decide whether the view which the employer reached about the employee’s conduct was one which was reasonably open to it to reach following an investigation into the circumstances which was as thorough as the situation demanded. Secondly, bearing in mind that the core issue of fact which the tribunal had to decide was what the real reason for Mr Baddeley’s dismissal had been, it is said that the tribunal should have spelled out what in law amounts to the reason for an employee’s dismissal – namely “a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee” (Cairns LJ in Abernethy v Mott Hay and Anderson [1974] ICR 323 at p. 330B). We do not agree. There are some things which the members of an employment tribunal must be taken to know. Unless there are exceptional circumstances, you would not criticise a judge deciding a civil case in the county court for not spelling out in his judgment where the burden of proof lay, or that the standard of proof was proof on the balance of probabilities.

 

The tribunal’s findings

26. Identifying the tribunal’s findings has been particularly difficult because of the unchronological and unstructured way in which its findings were expressed. The reasons started well enough by describing Mr Baddeley’s role with the Co-op and the concerns he expressed in the early part of 2010 about the amnesty stock. Having found in para. 9.8 that nothing had come of Mr Baddeley’s wish to discuss his concerns about the amnesty stock with Mr Berne, the tribunal then jumped forward in time in the rest of para. 9.8 and in paras. 9.9-10.3 to his meeting with Mr Berne on 14 October and its aftermath. That was where it made its findings about what Mr Berne’s agenda had been, to be followed in paras. 11.1-11.5 by its findings as to why the disciplinary process had been flawed. But in para. 12 it went back in time and made its findings about the sale on 24 July, and then in paras. 13 and 14 it returned to the Co-op’s agenda about getting rid of someone who was a thorn in its side under the headings “The damning of the Claimant” and “‘Who will rid me of this meddlesome priest?’”. Then in a section simply headed “Further findings” it addressed a miscellany of different topics, before going back in time yet again in paras. 16 and 17 where it dealt with the removal of the amnesty stock from the site on 17 September, the circumstances in which Mr Baddeley had hired the lock-up, and how some of the Co-op’s pharmacy only items and prescription only medicines had come to be on sale at Winsford market. Of course, the less structured a judgment is, the less confident you can be that the tribunal has gone through a rational process. But having said all that, it has been possible to identify the tribunal’s findings, even if the structure of its reasons made the reader’s task unnecessarily difficult.

 

27. The tribunal found that in the course of 2010 Mr Baddeley became increasingly concerned about two things. First, he was concerned about the escalating costs of the joint venture in China which were being concealed from the Co-op’s shareholders and some members of the Co-op’s management by what Mr Baddeley thought were creative accounting methods. Secondly, he was concerned that the storage of amnesty stock on the site amounted to breaches of the relevant regulations which put the Co-op’s licence from the MHRA to store pharmaceutical products at the site and to distribute them from there at risk. The first of these concerns was raised by him when he met Mr Berne on 14 October. The second of them was raised by him with various members of management. He first raised his concerns about the storage of amnesty stock on the site with Denise Ormrod, his immediate line manager and the project manager for the joint venture in China, and she told him that she would pass his concerns on to Jonathan Bomphrey, the director of logistics at the site. His concerns about the amnesty stock were raised again in the report he prepared following his audit of the amnesty stock on the site. It was sent to various members of the Co-op’s management. Ms Ormrod initially asked Mr Baddeley not to send a copy of it to John Nuttall, the Co-op’s managing director, but after considering the report herself, she sent a copy of it to him. Indeed, Mr Baddeley repeated his concerns about the storage of amnesty stock on the site when he saw Mr Nuttall in China a week or so later.

 

28. The tribunal found that Mr Baddeley raised his concerns about the amnesty stock being stored on the site for a third time when he was next in the UK, though this time he was additionally concerned that the stock included pharmacy only items and prescription only medicines. He told Mr Bomphrey about his concerns. The tribunal found that Mr Bomphrey had told him to turn a blind eye until the Co-op had got rid of the stock, that the problem was under control, and that anyway it was none of Mr Baddeley’s business. So on the same day Mr Baddeley reported his concerns to Mr McGhee. Mr McGhee told Mr Baddeley that he would speak to Louise Harrison, the compliance manager, about it. In the meantime, Mr Baddeley told Ms Ormrod that he wanted to discuss the matter with Mr Berne, but nothing came of it.

 

29. When the tribunal came to deal with the sale on 24 July, it found that Mr Baddeley had gone to the sale to ensure that the stock did not include pharmacy only items and prescription only medicines. When he got there, he thought that the stock should be inspected for that purpose before it went on sale. He had asked for the sale to be stopped in the meantime, but that request had been refused. So he had proceeded to inspect the stock. That had been a long and arduous process, but Ms Harrison (who had been the member of management who had refused to stop the sale) had helped him. Mr Baddeley had eventually been satisfied that none of the stock which he had initially seen that day contained pharmacy only items and prescription only medicines, but there had been other stock which he had not seen initially, and that stock had included pharmacy only items and prescription only medicines. The tribunal also found that Mr Baddeley had been told by his sister that Deborah Hough, an accountant with the Co-op, had given permission for the unused stock to be sold off to Mr Jackson, but that the stock sold to Mr Jackson had not included any of the pharmacy only items and prescription only medicines subsequently discovered being sold at Winsford market. Indeed, the tribunal found that Mr Baddeley had explained to Mr Jackson the risks posed by the resale of pharmacy only items and prescription only medicines, and that he had told Mr Jackson that if any such items were found in the stock he had bought, he should return them to the Co-op for destruction. So the tribunal found not only that Mr Baddeley had not “knowingly” sold pharmacy only items and prescription only medicines to Mr Jackson, but that the stock he had sold to Mr Jackson had not included such items at all.

 

30. So how did pharmacy only items and prescription only medicines get into the supply chain? The tribunal found that Mr Jackson had received other stock which originated from the Co-op, not from Mr Baddeley but from others, and that some of that stock contained pharmacy only items and prescription only medicines. Not all of that stock had been checked by the time Mr Jackson went on holiday. Some of the stock which had not been checked had inadvertently been removed from Mr Jackson’s storage unit by at least one of the market traders who Mr Jackson would sell items to. The tribunal found that the pharmacy only items and prescription only medicines which were found at Winsford market by the trading standards officer came from this batch. It also found that a more careful investigation by the Co-op would have revealed that.

 

31. When the tribunal came to deal with the events of 17 September, it made no finding, as far as we can tell, about why the Co-op wanted the amnesty stock to be removed from the site, and what was to be done with it. It found, though, that Mr Baddeley had only revealed the hiring of the lock-up and the storage of the stock there when he had been interviewed on 22 October, but the tribunal did not think that there had been anything sinister about that, because it found that he had told Mr Pemberton that he might have to store the stock himself until he could get hold of Mr Jackson on his return from holiday. The tribunal went on to consider whether Mr Baddeley had been “on the fiddle”, by which it meant secretly selling Co-op stock to traders and failing to account to the Co-op for the proceeds of sale, but it found no evidence of that.

 

32. When it came to the meeting between Mr Baddeley and Mr Berne on 14 October, the tribunal disbelieved Mr Berne’s account of the meeting. It accepted Mr Baddeley’s evidence that it had been about Mr Baddeley’s “serious concerns about the China project and other MHRA regulatory issues”. Mr Baddeley, it found, knew that the joint venture in China “was heading for failure”. He had realised that “the specification of the manufacturing plant was not correct” for what the Co-op wanted to achieve. The tribunal described him and Mr Berne as having had “a very heated argument”, and it thought that there had been a real “falling-out” between them. The tribunal said that through no actual misconduct on Mr Baddeley’s part, he was “riding for a fall”. This was when, to use the tribunal’s own words, “the die was cast” for Mr Baddeley. Mr Berne “decided to marginalise him at the very least and to get rid of him completely if he possibly could”. The discovery of what was being sold at Winsford market gave Mr Berne “the peg on which to hang that ambition”. The tribunal found that it was an opportunity which arose unexpectedly, but it was “the conduit” through which Mr Baddeley’s “forced exit” from the Co-op could be “engineered”. Mr Berne, said the tribunal, saw it as “his chance to get rid” of Mr Baddeley. He was “in reality asserting his authority to oust someone who had in his view challenged it”. It was “a brutal act of ‘managerial homicide’”.

 

33. The tribunal described the investigation by the Co-op’s asset and profit protection team following the discovery of the Co-op’s pharmacy only items and prescription only medicines on sale at Winsford market as “sadly deficient”. As far as we can tell, the tribunal did not spell out in what way that was, and its report was not included in the bundle of documents for use on the appeal. But the tribunal was particularly scathing about the disciplinary process. Mr Atkinson and Mr Logue were young men who had not been with the Co-op for very long, and the tribunal said that it believed them to be conscientious and well-qualified pharmacists. But it said that Mr Berne was “a much stronger individual than them” and that they had followed Mr Berne’s lead in their dealings with Mr Baddeley. There had been, the tribunal said, “the strong stench of a conspiracy”. Mr Berne, and probably Mr Bomphrey, had been “the protagonists”. Mr Bomphrey had “probably [been] aware” of Mr Berne’s “true agenda”. As for Mr Atkinson and Mr Logue, they had been “pulled in as naive and unwitting bystanders”. But the tribunal found that by the time the disciplinary process had got under way and had gathered momentum, they had realised what the “underlying agenda” was in relation to Mr Baddeley, and had had “no choice but to go along with it”. They had been “place men given the dirty jobs to do, to execute the plan”, and subsequently to be offered to the tribunal as “sacrifices” to the Co-op’s “incompetence and duplicity in its dismissing of an experienced manager of clear record who challenged what he legitimately saw as unacceptable practices” by the Co-op. In short, the tribunal found that Mr Baddeley’s dismissal had been “subtly orchestrated” by Mr Berne, that it was “a one-sided affair which by a combination of incompetence and deliberate targeting” of Mr Baddeley had left the outcome of the process “in no doubt”, and that Mr Baddeley had been “a condemned man” who had had “no adequate chance of demonstrating his innocence” from the moment the trading standards officer had been told what was being sold at Winsford market.

 

34. When it came to Mr Atkinson, the tribunal said that, looking at things as favourably to him as it could, he had taken “a dismissive, broad-brush approach” to the disciplinary hearing, which had been based on a “pre-conception” that Mr Baddeley had been guilty of “malpractice” in the handling of the Co-op’s stock. He had listened to the recording of only Mr Baddeley’s interview by the asset and profit protection team, not the recordings of the other people who had been interviewed. The evidence on which he had based his conclusion that Mr Baddeley had known that the stock sold to Mr Jackson had included pharmacy only items and prescription only medicines had been inadequate. He had made no constructive effort to determine each allegation of misconduct which Mr Baddeley faced. And when he had been cross-examined, Mr Atkinson had admitted that he probably had not had the evidence “to give him a reasonable and genuine belief” that Mr Baddeley had known that the stock sold to Mr Jackson had included pharmacy only items and prescription only medicines.

 

35. As for the appeal, the “clear impression” which the tribunal got from Mr Logue’s evidence was that he had been applying “an extraordinarily high expectation of standards” from Mr Baddeley when compared with other staff at the site. The tribunal thought that he had “probably [been] acting as he did to protect his own position in a very hard-edged business environment”. The appeal had been characterised by his “utter confusion” about how he should handle his role. He seemed just to have looked “in a sweeping and cursory manner” at whether Mr Atkinson had treated Mr Baddeley fairly. Nor had he investigated further evidence brought by Mr Baddeley and inquiries specifically raised by him. In short, the tribunal found that both stages of the disciplinary process had been carried out “in a clumsy and ‘mob-handed’ fashion”. It had been “so flawed as to be useless in ensuring a fair and balanced hearing and a rational judgment”. Mr Atkinson and Mr Logue seemed to have taken “a somewhat generalised view in the decision-making process”, even though the allegations against Mr Baddeley had been very specifically framed. The tribunal “suspect[ed]” that they had both known “in their heart of hearts” that Mr Baddeley was being “singled out apparently over a single incident”.

 

The tribunal’s language

36. As we have said, the language which the tribunal used was unusually robust. That is apparent from our summary of the tribunal’s findings of fact. There are many other instances of it. For example, the tribunal talked of Mr Baddeley becoming “enmeshed” in “a somewhat insidious catalogue of events”, as a result of the Co-op’s “malice” towards him which arose because “of his insistence to speak his mind rather than stay silent on what he saw was wrong”. He was the victim of “Machiavellian intrigue”. He had “challenged … the established order” and had “set himself up” against Mr Berne. He had “paid the price” for his integrity and professionalism: “his dismissal had ‘stitch up’ written all over it”. The tribunal described what it saw as the evidence unfolded as a “rolling juggernaut of allegations” against Mr Baddeley, and it adopted the characterisation suggested by Mr Ian Wheaton (counsel for Mr Baddeley both before the tribunal and on appeal) of Mr Baddeley as “the troublesome priest” who had to be got rid of. He had “put his head above [the] parapet” and had found himself “in the wrong place at the wrong time”. He was a “conveniently available scapegoat”.

 

37. Mr Carr said that at times the judgment read like a tirade by a tabloid journalist rather than a measured piece of judicial decision-making. That may be putting it too high, but there are dangers in a tribunal using language which is stronger than would normally be considered appropriate. We have already said that you lay yourself open to the criticism that you have lost your objectivity. It is one thing to want to tell it how it is, but it is quite another to do so in a way which might lead people to think that you have abandoned your detachment, and that you have an agenda of your own. It was, we think, unwise for the tribunal to express itself in a way which was less than judicious. The use of moderate language indicates that you approach things in a measured way. The upshot of it is that the robustness of the language which the tribunal used in this case has caused us to subject the judgment to even greater scrutiny than might otherwise have been justified.

 

Substituting its own view

38. One of the two key criticisms of the tribunal is that it substituted its own view of what Mr Baddeley was supposed to have done for that of the Co-op. In that context, it is necessary to remember the issues which the tribunal had to make findings for itself about. The tribunal had to make findings about (a) whether Mr Baddeley had made the protected disclosures he claims to have made, (b) what the real reason for Mr Baddeley’s dismissal had been, (c) how thorough the investigation into what Mr Baddeley was supposed to have done had been, and (d) how fair and open-minded the disciplinary process had been. In order to make those findings, the tribunal had to decide for itself what had been said on the occasions when Mr Baddeley claimed to have made protected disclosures about the amnesty stock to members of the Co-op’s management, what the Co-op’s attitude had been about the amnesty stock remaining on the site when the inspection by officers of the MHRA was due to take place, what had been said on 14 October at Mr Baddeley’s meeting with Mr Berne, and the course which the investigation and the disciplinary process had taken. Moreover, in order to come to its own conclusion about what the real reason for Mr Baddeley’s dismissal had been, the tribunal had to consider for itself what Mr Berne (who the tribunal found had decided that Mr Baddeley should be suspended) and Mr Atkinson (who decided that he should be dismissed) actually thought (a) about what had happened at the sale on 24 July, (b) about how some of the Co-op’s stock had come to be in the lock-up which Mr Baddeley had hired, and (c) about how some of the Co-op’s pharmacy only items and prescription only medicines had got into the supply chain and were being sold at Winsford market.

 

39. The tribunal was alive, of course, to the test laid down in Burchell for determining whether the dismissal of an employee who is dismissed for misconduct is fair. If it had found that the reason for Mr Baddeley’s dismissal had been what the Co-op said it had been, it would have been necessary for the tribunal to consider whether it had been reasonable for Mr Atkinson to have concluded that Mr Baddeley had indeed behaved in the way he was alleged to have behaved. On that topic, it would have been quite wrong for the tribunal to substitute its own view of what Mr Baddeley had done for that of Mr Atkinson, or its own view of the credibility of the witnesses whose credibility Mr Atkinson had to assess for his view of their credibility: see, for example, Linford Cash & Carry Ltd v Thomson [1989] ICR 518. Moreover, the reasonableness of Mr Atkinson’s belief about Mr Baddeley’s behaviour would have had to be assessed on the basis of what was known to him at the time in the light of such information as a sufficiently thorough investigation would have revealed, rather than on such evidence as the tribunal heard. But the tribunal did not get that far, because it did not accept that Mr Baddeley had been dismissed for the reason asserted by the Co-op. The criticism of the tribunal therefore has to be that in reaching its finding about what the real reason for Mr Baddeley’s dismissal had been, it impermissibly took into account its own views on such topics as what had happened on 24 July, how some of the Co-op’s stock had come to be in the lock-up, and how some of the Co-op’s pharmacy only items and prescription only medicines had ended up on sale at Winsford market.

 

40. It is incontestable that the tribunal made findings of fact of its own on these issues, but we do not think that these findings informed the tribunal’s judgment about what the real reason for Mr Baddeley’s dismissal had been. The tribunal’s finding about what the real reason for Mr Baddeley’s dismissal had been stemmed from its findings about Mr Baddeley’s meeting with Mr Berne on 14 October and its aftermath. We have summarised those findings at para. 32 above. Of critical importance in this context was the tribunal’s finding in para. 17.9 of its reasons that “[f]rom [Mr Berne’s] standpoint, [Mr Baddeley’s] guilt or innocence of the Winsford market events or the lock-up/[Tim Jackson] affair was irrelevant”. So if the tribunal thought that Mr Baddeley’s complicity or otherwise in pharmacy only items and prescription only medicines being sold to the public had been irrelevant to Mr Berne, the tribunal’s exoneration of Mr Baddeley in that respect was equally irrelevant to its view on what the real reason for his dismissal had been.

 

41. So why did the tribunal make findings of fact of its own on these topics if those findings did not affect its conclusion on what the real reason for Mr Baddeley’s dismissal had been? One possibility is that the tribunal was so troubled by the Co-op’s use of a pretext to get rid of Mr Baddeley that it decided to make findings of its own about the events which the Co-op was relying on. The strength of the language which the tribunal used might suggest that. Another possibility is that it fell into the error articulated by Mummery LJ in London Ambulance Service NHS Trust v Small [2009] IRLR 563 at [43]:

 

“It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.”

 

This was a case in which the tribunal really had to beware falling into that error since Mr Baddeley’s sister and Mr Jackson were actually called to give evidence on his behalf. Mr Jackson, for example, had not given evidence in the disciplinary process, and Mr Atkinson had only two short statements from him. His evidence, and that of Mr Baddeley’s sister, could only have been relevant to what had actually happened on 24 July, how some of the Co-op’s stock had come to be in the lock-up, and how some of the Co-op’s pharmacy only items and prescription only medicines had got into the supply chain, rather than to Mr Atkinson’s belief about what had happened in relation to those topics.

 

42. On the other hand, it will be recalled that the Co-op had argued that even if Mr Baddeley’s dismissal had been unfair, it would be just and equitable to reduce his award because his conduct had caused or contributed to his dismissal. That was alleged in terms in para. 41 of the amended grounds of resistance attached to the ET3. It was identified in para. 3 of the Co-op’s list of issues as an issue in the case which the tribunal had to address. And in para. 58 of the Co-op’s counsel’s closing written submissions, Mr Baddeley’s conduct was described as “culpable and blameworthy” so as to justify a reduction in his award. That was the context, therefore, in which the tribunal had to make findings of fact about the correctness or otherwise of the allegations upon which the disciplinary proceedings against Mr Baddeley had been based. If the tribunal had failed to do so, it would not have dealt with an issue in the case which both parties accepted the tribunal had to address if the tribunal found, as it did, that Mr Baddeley’s dismissal had been unfair.

 

43. In this respect, we agree entirely with Mr Carr that an employment tribunal has to take particular care when it is considering a claim of unfair dismissal in which the reason for the employee’s dismissal is said to have been the employee’s misconduct of some kind. The tribunal should ensure that it separates its findings on the question whether the employer’s belief that the employee had done what he was supposed to have done was reasonable from its findings (in the event of it having to consider contributory fault) on the question whether the employee had indeed done what he was supposed to have done. Since the tribunal did not spell out why it was making findings of fact about, for example, what actually happened on 24 July, or how some of the Co-op’s stock had come to be in the lock-up, or how some of the pharmacy only items and prescription only medicines had ended up on sale at Winsford market, we can only guess at what it had in mind. But it is not necessary for us to do so, because whether the tribunal did so for a legitimate or an illegitimate reason, its findings of fact on these topics could not have informed its assessment of what the real reason for Mr Baddeley’s dismissal had been.

 

The real reason for Mr Baddeley’s dismissal

44. The tribunal’s key finding, of course, was its finding about what the real reason for Mr Baddeley’s dismissal had been. The route by which the tribunal reached that finding was said by the Co-op to have been flawed. The argument goes like this. Since it was Mr Atkinson who was responsible for the disciplinary process, it was he who made the decision to dismiss Mr Baddeley. But if he was “pulled in” as “a naive and unwilling” bystander who had been “duped” (Mr Carr’s word) into conducting a process which was little more than a charade, he was himself just as much a victim of what the tribunal found to have been Mr Berne’s duplicity as Mr Baddeley. He simply bought the story he was being fed about Mr Baddeley having allowed pharmacy only items and prescription only medicines to get into the supply chain. Accordingly, on the tribunal’s own findings about the real part which Mr Atkinson played, the tribunal should have found that he at least thought that the allegations which Mr Baddeley had faced in the disciplinary process had been proved. That meant that what the Co-op had advanced as the reason for Mr Baddeley’s dismissal must have been the real one.

 

45. We cannot go along with this argument. We entirely agree with Mr Carr that the tribunal found that, initially at any rate, Mr Atkinson had not realised that there was anything untoward behind the invocation of the disciplinary proceedings against Mr Baddeley. But we also think – and here we part company from Mr Carr – that the tribunal found that there came a time when Mr Atkinson had become aware that all was not quite what it seemed. We have already referred to the tribunal’s finding that by the time the disciplinary process had got under way and had gathered momentum, Mr Atkinson had realised what the Co-op’s “underlying agenda” was when it came to Mr Baddeley. He may have had little “choice but to go along with it”, but go along with it was what the tribunal found he did. So the tribunal must have found that Mr Atkinson had eventually realised that there was another reason why the Co-op wanted to be rid of Mr Baddeley, and that he had been prepared to use the sale of pharmacy only items and prescription only medicines on 24 July and the storage of the Co-op’s stock in the lock-up as a pretext for Mr Baddeley’s dismissal. So on the tribunal’s findings, the real reason for Mr Baddeley’s dismissal had been what Mr Berne had wanted to be rid of Mr Baddeley for.

 

46. There is a subsidiary point here. It is said that this finding went further than even Mr Baddeley had claimed. Reliance is placed on two passages in Mr Wheaton’s closing written submissions. They asserted that Mr Baddeley had been “subject to a seriously flawed investigation leading to an inevitable conclusion on the part of [Mr] Atkinson, supplied as he was with incomplete evidence which excluded anything that supported [Mr Baddeley’s] case”, and that “the incomplete facts provided to [Mr] Atkinson were clearly designed to engineer a dismissal”. An allegation that the investigation was flawed and incomplete is very different from an allegation that it was a charade. We agree that these are very different allegations, but the one does not exclude the other. Mr Baddeley’s primary case was that the investigation had been a charade because his dismissal had already been decided upon, but if his primary case was rejected, his secondary case was that the investigation had been flawed, if only because some of the relevant facts had not been brought to Mr Atkinson’s attention.

 

The adequacy of the tribunal’s reasons

47. The second of the two key criticisms of the tribunal relates to the adequacy of its reasoning. It is said that there were critical issues on which it did not make any findings of fact at all, and in respect of many of the findings of fact which it did make, the tribunal failed to explain why it made those findings, many of which were no more than supposition on its part. Both of these complaints are said to apply to the protected disclosures which Mr Baddeley claimed to have made. The tribunal found that he had made a number of such disclosures, but the criticism of the tribunal is that it never identified what those disclosures had been, or on what basis those disclosures had been protected ones.

 

48. We do not think that there is any merit in the first of these complaints. The tribunal made express findings about the disclosures which it accepted Mr Baddeley had made, and we have summarised those findings in paras.  27, 28 and 32 above. It did not say in so many words that those particular disclosures were the protected disclosures which it was finding Mr Baddeley had made. But there is no doubt that these were the disclosures which the tribunal had in mind as having been the protected disclosures which Mr Baddeley had made.

 

49. More concerning is the complaint that the tribunal did not identify on what basis those disclosures had amounted to protected disclosures. This had been identified in the parties’ lists of issues as an issue which the tribunal had to address, and there was a lengthy section in the Co-op’s counsel’s written closing submissions addressing the issue. Mr Baddeley’s case was that the disclosures he had made had been qualifying – and therefore protected – disclosures because they amounted to the disclosure of information which tended to show one or more of the matters set out in sections 43B(1)(a), 43B(1)(b), 43B(1)(d) and 43B(1)(f) of the Act. The tribunal did not state into which category the information which Mr Baddeley had disclosed came.

 

50. More significantly, when it came to Mr Baddeley’s concerns about the amnesty stock, the tribunal did not deal with the Co-op’s argument that Mr Baddeley’s belief that storing it on the site amounted to a breach of the relevant regulations was not reasonable, or its argument that Mr Baddeley’s complaint about the stock being kept on site did not amount to the disclosure of information, i.e. the conveying of facts, but simply the making of an allegation, a critically important distinction in the light of the decision of the Employment Appeal Tribunal in Cavendish Munro Professional Risks Management Ltd v Geduld [2010] ICR 325. And when it came to Mr Baddeley’s concerns about the joint venture in China, the tribunal did not deal with a similar argument that Mr Baddeley was expressing dissatisfaction about what was happening in China rather than disclosing information, nor with an additional argument that Mr Baddeley was raising his concerns “in the context of an attempted salary negotiation and in an attempt to undermine and disparage John McGhee”, so that if the expression of his concerns amounted to the disclosure of information, he had an ulterior motive for raising them, a fact which would have prevented them from being qualified disclosures: see the decision of the Court of Appeal in Babula v Waltham Forest College [2007] ICR 1026 at [83]. The tribunal must have decided these issues in Mr Baddeley’s favour for it to have found that the disclosures had amounted to protected disclosures. But it did not say why. We shall return at the end of this judgment to what should be done about that.

 

51. The tribunal is also criticised for failing at times to spell out what it meant. For example, it said in para. 11.2 of its reasons that it had been left with the impression that Mr Logue was expecting extraordinarily high standards from Mr Baddeley. In para. 13.2, it said that the Co-op’s “senior managers had drawn a conclusion about [Mr Baddeley] before the investigation, disciplinary and appeal processes had been completed”. And in para. 13.4, it talked of Mr Baddeley having to face “a rolling juggernaut of allegations”. It would have been better if the tribunal had explained what it actually had in mind, but when you read the reasons as a whole, it is possible, we think, to see what the tribunal was getting at. In the normal course of events, what Mr Baddeley was supposed to have done would not have warranted the employee’s dismissal. The senior managers who the tribunal had in mind were Mr Berne, and possibly Mr Bomphrey, who wanted to see Mr Baddeley dismissed. And the “rolling juggernaut of allegations” was no more than a colourful description of the allegations which Mr Baddeley faced in the disciplinary process.

 

52. Having said that, the more far-reaching criticism of the tribunal is that there are a number of instances in which the tribunal is said to have failed to explain why it made the findings which it did make. The findings to which that complaint relates are as follows (with the relevant paragraphs in the tribunal’s reasons in brackets):

 

(i) Mr Berne decided “to get rid of [Mr Baddeley] completely if he possibly could”, and the discovery of the Co-op’s pharmacy only items and prescription only medicines on sale at Winsford market “gave the conduit through which [Mr Baddeley’s] forced exit from the [Co-op] was engineered” (para. 9.10).

 

(ii) The events surrounding Mr Baddeley’s dismissal (which had been “subtly orchestrated” by Mr Berne (para. 11.4)) had “‘stitch up’ written all over them”, and there was “the strong stench of a conspiracy”. Mr Bomphrey was “probably aware” of Mr Berne’s “true agenda”, and was “probably” a protagonist himself. Mr Atkinson and Mr Logue had been “pulled in” – presumably by Mr Berne – “as naïve and unwitting bystanders” (para. 10.2).

 

(iii) The investigation by the Co-op’s asset and profit protection team was “deficient” (para. 11.1). Mr Berne took a “close and continuing interest” in the investigation, and he had “probably assisted” in the process by which Mr Baddeley was “earmarked as the guilty party” (para. 14.5).

 

(iv) Mr Atkinson and Mr Logue were “following [Mr Berne’s] lead (express or implied) in their manner of dealing” with Mr Baddeley. Mr Atkinson’s handling of the disciplinary process was “distinctly faulty on a number of levels”, and Mr Baddeley’s dismissal was “badly tainted with major substantive and procedural unfairness” (para. 11.1).

 

(v) Mr Atkinson was “not competent in his conduct of the dismissal hearing”, the disciplinary process had been approached “in a clumsy and ‘mob-handed’ fashion” (para. 11.3), and Mr Atkinson had made “no constructive effort to deliberate” (para. 13.5).

 

(vi) The disciplinary process was marred by “a catalogue of errors” (para. 11.5) and was “so flawed as to be useless”. It was a “one-sided affair”, and was marked by “incompetence” and the “deliberate targeting” of Mr Baddeley (para. 11.4).

 

53. We see entirely where Mr Carr was coming from, but we think that these are just examples of the tribunal resorting to inappropriate hyperbole to get its findings across. The tribunal unnecessarily laid itself open to criticism because of the robustness of its language. But the passages in its reasons which are criticised were really just different ways of saying that Mr Berne, probably along with Mr Bomphrey, wanted Mr Baddeley’s employment to come to an end because of his insistence on speaking his mind – whether that related to the storage of pharmacy only items and prescription only medicines on the site or his concerns over the joint venture in China. The fortuitous discovery of pharmacy only items and prescription only medicines being sold to the public at Winsford market gave Mr Berne the opportunity to get rid of Mr Baddeley without revealing what his real agenda was. We have not been able to discern in what way the tribunal thought that the investigation was deficient, but the disciplinary process was subverted by Mr Atkinson and Mr Logue having been persuaded to implement the outcome which Mr Berne wanted. And to the extent that the real criticism of the tribunal was that this scenario was merely supposition on its part, we disagree. It was the scenario advanced by Mr Baddeley. Having (a) accepted Mr Baddeley’s account of his meeting with Mr Berne on 14 October, and having (b) rejected Mr Atkinson’s claim that the disciplinary process had been a genuine attempt to consider and adjudicate on the allegations made against Mr Baddeley, we think that it was open to the tribunal to reach the conclusions which it did, and that its judgment sufficiently explained how it came to them.

 

Conclusion

54. The upshot of all this is that this appeal cannot be finally disposed of until we know what the tribunal’s reasons were for deciding that the disclosures which Mr Baddeley made amounted to protected disclosures. We therefore request the tribunal to provide us with those reasons. On the assumption that the tribunal addressed those of the Co-op’s arguments referred to in para. 50 of this judgment, we request the tribunal to explain why it rejected those arguments. We hope that it will be possible for the tribunal to provide us with those reasons within 28 days of the handing down of this judgment. But we acknowledge that it may be difficult for the employment judge and the lay members to reassemble in that time, especially as the holiday season is upon us. In the circumstances, we merely request that the tribunal provides us with those reasons as soon as reasonably practicable. The reasons should, of course, be prepared by the employment judge on behalf of the tribunal.

 

55. We regret that this means that the parties will have to wait even longer to know the final outcome of the case. That is unfortunate, but for the reasons given in para. 4 of this judgment, the lapse of time in producing this judgment is not of our making. The structure of the tribunal’s judgment, and the nature of the attack made on it, has made the writing of this judgment a much more time-consuming exercise than should have been the case. However, there is one thing we can say. The reasons which the tribunal gives for its finding that the disclosures which Mr Baddeley made amounted to protected disclosures are relevant only to whether his dismissal was automatically unfair pursuant to section 103A of the Act. We do not see how those reasons could affect the tribunal’s finding that Mr Baddeley’s dismissal was unfair under the ordinary law of unfair dismissal. So whatever these reasons were, Mr Baddeley is not going to be deprived of the tribunal’s finding in his favour that he was dismissed by the Co-op because of the disclosures he had made, whether or not those disclosures amounted to protected ones, and that his dismissal for that reason was unfair.

 

56. Finally, our request to the tribunal for it to give its reasons for its conclusion that the disclosures which Mr Baddeley made amounted to protected disclosures will give the tribunal the opportunity to state

 

(i) whether the tribunal dismissed Mr Baddeley’s claim for his performance-related bonus (because no evidence had been given in support of it) or whether it was deferring consideration of the claim until the remedies stage in the event of liability for any of Mr Baddeley’s other claims being established, and

 

(ii) whether the tribunal’s finding that Mr Baddeley had been subjected to detriments other than his dismissal as a result of the protected disclosures he had made related only to the way he was suspended, or to the prohibition on him contacting people from work, or both.

 

In addition, there were the Co-op’s arguments which we have summarised in para. 9 of this judgment which the tribunal did not refer to at all. On the assumption that the tribunal addressed those arguments (and did not simply ignore them), we request the tribunal to state what its reasons were for concluding that Mr Baddeley’s claim to have been subjected to detriments other than his dismissal as a result of the protected disclosures he had made should be permitted to proceed.

 

57. We cannot leave this case without commenting that this was not the tribunal’s finest hour. The responsibility for that must for the most part be laid at the door of the employment judge because it would have been he who wrote the tribunal’s judgment. The language which he used has understandably caused the Co-op to believe that the tribunal lost its objectivity, and got sidetracked from the real issues in the case by its belief that Mr Baddeley had been very shabbily treated. In the final analysis, we have not attributed the tribunal’s findings to any lack of objectivity on its part, but the tribunal must bear its own share of responsibility for its inappropriate language having given the Co-op that impression. We trust that the employment judge will draft the findings of the tribunal in less exaggerated language in the future.