United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THOMAS KIBLING (of Counsel) Instructed by: Orrick Herrington & Sutcliffe (Europe) LLP Solicitors 107 Cheapside London EC2V 6DN
For the Respondent	MR MARTIN FODDER (of Counsel) Instructed by: Archon Solicitors Martin House 5 Martin Lane London EC4R 0DP


 


SUMMARY

VICTIMISATION DISCRIMINATION – Protected disclosure

Detriments on the grounds of a protected disclosure:

(1) What has to be shown such as to amount to a disclosure of "information" (s.43(B)(1) ERA 1996) and "any legal obligation" (s.43(B)(1)(b) ERA); Cavendish Munro Professional Risk Management Limited v Geduld [2010] ICR 325, EAT and Fincham v HM Prison Service EAT/0925/01 and EAT/0991/01 applied.

(2) The approach to be adopted to determining whether a detriment is "on the grounds of" a protected disclosure: whether the disclosure "materially influenced the decision or action in question, per Elias LJ in NHS Manchester v Fecitt and ors [2012] IRLR 64, at para. 45.

Employment Tribunal's departure from the agreed list of issues; whether re-casting an issue and adding a further detriment to the list required the ET to permit the parties to make further representations.


 


HER HONOUR JUDGE EADY QC

Introduction

1. This is a whistle-blowing case raising three main questions: (1) whether the Employment Tribunal correctly identified (and defined as such) the protected disclosure in this case; (2) if so, whether the ET nevertheless erred in its approach to the question of causation; and (3) in any event, whether there was a breach of natural justice in the conduct of these proceedings.
2. This is a unanimous Judgment of the Court. Due to lack of time on the day of hearing, we were unable to conclude our deliberations and give Judgment the same day. We have, however, endeavoured to provide this Judgment to the parties as soon as reasonably practicable given the workload of the EAT.
3. For convenience we refer to the parties as the Claimant and the Respondent, as they were before the Employment Tribunal below.

Background

4. This is an appeal by the Respondent in these proceedings, against a Judgment of the London Central Employment Tribunal, chaired by Employment Judge Glennie sitting with members on 11-15, 18-22 and 25 June 2012 and deliberating in chambers thereafter on 26 and 28 June 2012 and on 19 October 2012. The long delay before the final day of deliberations was due to the ill-health of one of the Tribunal members. The parties were represented before the ET by the same counsel as before us on this appeal.
5. The Reserved Judgment of the ET was sent to the parties, with Written Reasons, on 28 November 2012.
6. The Claimant had made claims of unlawful detriment on the ground of having made a protected disclosure and of automatic (qualifying disclosure) unfair dismissal, alternatively, unfair dismissal under s.98 Employment Rights Act 1996.
7. The claims were considered, and the issues to be determined clarified, at an earlier Telephone Case Management Discussion before EJ Glennie on 4 January 2012. At that point, the Claimant was acting in person; the Respondent was represented by Mr Kibling. The issues were agreed to be those set out in a document originally drawn up by Mr Kibling, which was attached to the ET's record of the CMD. At the outset of the full merits hearing, Mr Fodder stated that the issues were not necessarily how he would have put them himself but he did not seek to depart from them. This is relevant as it is part of the Respondent's complaint that the ET itself subsequently departed from that list of issues in reaching its conclusions in this matter.
8. The ET dismissed the complaints of automatic and s.98 unfair dismissal, but found that the Claimant had made a protected disclosure on 15 July 2010, and, on that ground, had been subjected to certain detriments by the Respondent, namely:

(1) Sidelining him in respect of the Payshop, Lagardere and DHL accounts.

(2) Making enquiries into his expenses claims.

(3) Referring the results of those enquiries and other alleged financial irregularities to a disciplinary hearing.

(4) Intervening in his bankruptcy petition.

9. The ET did not, however, consider that it was in a position to determine some of the other issues before it; notably as to whether the non-payment of a bonus in 2010 was a detriment/unlawful deduction and, more generally, whether the detriment claim had been brought in time. It therefore invited proposals from the parties as to how best to proceed in relation to these outstanding matters. In any event, we understand that all further steps in these proceedings were then stayed pending the determination of this appeal.

The facts

10. The ET's findings of facts are set out at paragraphs 23-100 of its Reasons. What follows is a summary derived from that record.
11. The Respondent is a global financial services and communications company employing approximately 8,000 employees worldwide, with around 550 in the UK. Its services are made available to the public through a network of agents, there being some 450,000 of these located in over 200 countries. The Claimant commenced his employment with the Respondent in the US in 2007.
12. In or about 2008, the Respondent was forming a team – identified as "SNBD" - to develop opportunities arising in Europe from the Payment Services Directive ("the PSD"). Essentially, the PSD would enable money transfers via retail outlets as well as via banks. An opportunity was presented to the Respondent to provide terminals with software to facilitate such transfers and thereby earn commission. By the time of the events with which the ET was concerned, the target for the SNBD team was to secure 10,000 agent locations by the end of 2010.
13. On 1 October 2008, the Claimant moved to London as Director of Strategic Network Development, Western Europe. His was effectively a senior sales role and he joined as a senior leader of the SNBD team, which was led by a Mr A J Hanna. On taking up this role, the Claimant moved to London, while his wife remained in the US, living in the matrimonial home, No. 272 Harriman Heights.
14. In the first half of 2010, there were two telephone conference calls, which form the backdrop to the events with which the ET was concerned in these proceedings. The ET's findings in relation to these calls is set out at paragraphs 40 and 42, as follows:

"40. … on 3 February 2010 there took place an earnings conference call. This was a means by which the Respondent gave information to investment advisers about the company's performance and prospects. Those participating on behalf of the Respondents included Ms Christina Gold, the President and CEO; Mr Scott Scheirman, Corporate Finance Officer and European Vice President; and Mr Hikmet Ersek, the Chief Operating Officer. There also participated nine analysts from investment advisers such as Deutsche Bank, Barclays Capital and Goldman Sachs. In relation to the PSD initiative on which Mr Hanna's team was engaged, Ms Gold said … "as a result of the PSD in Europe we expect to have an additional 10,000 retail agent locations operational by the end of 2010 and believe that we will be able to significantly expand locations and revenues over the next several years". Later in the call Mr Scheirman said: "PSD, as an example, we are going to add 10,000 locations. The ramp up of that will be from a revenue stand point. The latter part of 2010, but, for example, with PSD we believe that's going to add 1% to 2% consolidated revenue growth in 2011."

And:

"42. A further conference call took place on 27 April 2010. The same individuals attended this call on behalf of the Respondent … On this occasion eight external analysts participated. With reference to the PSD initiative, Ms Gold said … "we also made advances on our strategic initiatives. We are signing new retail agents and activating locations in Europe as we move towards our target of an incremental 10,000 retail activations by year end. We have been placing particular emphasis on signing small independent shops, which are located in areas where large immigrant populations work and live. One retail signing we just completed is the Martin McColl convenience store chain in the UK which will provide an additional 700 agent locations". Later Mr Ersek said "with the PSD licence we can also have retail chains and we have targeted 10,000 locations. Additional 10,000 locations by year end in Europe and I think we are on good progress to reach that. We already have a little below 1,000 locations activated…."

15. During the course of February 2010 and subsequently, Mr Hanna said that he raised concerns, with Mr Ersek and Mr Rajesh Agrawal, Senior Vice President Finance, about whether the expectation of 10,000 locations being achieved by the end of 2010 was realistic.
16. In June 2010, the Respondent proposed that Mr Hanna should move to a different role in the US. This seems to have triggered a complaint on Mr Hanna's part, with his emailing on 21 June 2010 objecting to the move and asserting that the Respondent was looking for a means to exit or sideline him because (he believed) he had raised concerns about the accuracy of the information being disclosed to the public about the PDS initiative and about levels of risk to the overall business. Mr Hanna's complaint led the Respondent to initiate an investigation, which was conducted by a Mr David Fallek.
17. The Claimant was interviewed as part of the Fallek investigation on 15 July 2010. Both he and Mr Fallek made their own – separate – notes of that interview, which was conducted by telephone. The ET concluded that both notes were an honest record of the conversation by each participant. The differences between them arose from the different weight they each gave to aspects of the exchange. Where there were material differences in the record as to what the Claimant had said, the ET found as follows:

"51. The material points of difference concerned what Mr Anastasiou said about whether the goal of 10,000 locations was achievable, and whether the McColl outlets should be counted towards that. On the first point, Mr Falleck's evidence, supported by his note, was that Mr Anastasiou said that there was "only a 70% chance" of achieving that. The Respondents' case was that this mean that it was more likely than not that the target would be achieved, so that Mr Anastasiou had not said anything that contradicted the statement made in this regard in the conference call. Mr Anastasiou's evidence, supported by his note, was that he said there was a 70% chance if sales were outsourced and a 30% chance if the Respondents remained with the current sales force. In other words, he was saying that it was unlikely that the target would be achieved without a change of approach.

52. The Tribunal preferred Mr Anastasiou's evidence on this point. This view was consistent with the concerns that Mr Hanna had expressed. Also, an opinion that there was a better than evens chance of achieving the target, without any qualification, as recorded by Mr Falleck, seemed inconsistent with what he recorded Mr Anastasiou as saying immediately before that, i.e. "we would not have made the goal because lack of testing, training/resources at local level, I don't believe so" … The Tribunal found that Mr Falleck had recorded only the first part of what Mr Anastasiou said at this point.

53. In relation to whether the McColl accounts should be included, Mr Falleck's evidence, supported by his note, was that Mr Anastasiou said that this was "a tricky issue". Mr Anastasiou's note, and evidence, related that he said that the McColl UK accounts should not be counted towards the target. The Tribunal concluded as a matter of probability that he said both things, that he recorded the element that seemed most important to him …

54. Taken overall, however, and even allowing for the differences in what Mr Falleck and Mr Anastasiou recorded, it was apparent that the latter was supporting the stance taken by Mr Hanna, and was in essence agreeing with him that what was said in the conference call should not have been said."

18. The ET ultimately concluded that it was during these exchanges with Mr Falleck in the 15 July 2010 interview that the Claimant made a protected disclosure. As the ET recorded its conclusion on this point:

"101 … The Tribunal was satisfied that Mr Anastasiou had disclosed information, namely that when the conference calls were made, it was in fact unlikely that the 10,000 locations target would be achieved, and that the 700 McColl locations should not be taken into account."

19. As to the detriments found by the ET, the facts relevant to the first of these ("the sidelining detriment") are set out at paragraphs 56-58 of the Reasons, as follows:

"56. On 21 September 2010 Mr Anastasiou made a complaint against Mr Crawford to the effect that the latter was excluding him from working with one of his best agent prospects, namely Payshop … a Mr David Lester, who worked in Madrid and reported to Mr Crawford, had told [the Claimant] that Mr Crawford had instructed him on occasions to bypass Mr Anastasiou and to make contact directly with the CEO of Payshop, and that subsequently Mr Lester had indeed made that contact directly without involving Mr Anastasiou. This complaint was not relied upon as containing a protected disclosure but it was relevant to the complaint of detriment in the form of Mr Crawford seeking to undermine and take over Mr Anastasiou's relationships. Additionally, Mr Anastasiou complained that Mr Crawford caused a colleague, Mr Stanley Wachs, to become involved with other accounts that he dealt with (Lagardere and DHL) and that this was also an example of his being sidelined.

57. Mr Crawford's evidence was that he asked Mr Lester to get involved because he thought that the deal was progressing slowly. He said that he was not aware that Mr Lester had contacted the CEO of Payshop directly and that he did not ask him to do that. … In relation to Lagardere, Mr Crawford's explanation was that Mr Wachs became involved because he spoke French. He said that he never gave him any authority to take over the DHL account and he was simply asked to give help on these. He denied that the Claimant was being squeezed out of the business and that he said that no-one told him to push him out."

58. The Tribunal concluded that Mr Crawford was trying to sideline Mr Anastasiou. It seemed likely that, had the explanations for these events been as maintained by Mr Crawford, he would have discussed what he was doing with Mr Anastasiou, or at least would have told him what was happening. Instead Mr Anastasiou found out about these matters without being told. Furthermore, the Tribunal found, on balance of probability, that the reason why Mr Crawford acted in this way was what Mr Anastasiou had said about 10,000 locations and McColl issues. The Tribunal made this finding because:

58.1 This was a plausible explanation for why Mr Crawford would want to sideline him: the Respondents would not want members of the relevant sales team saying that the projections they had made public were unrealistic.

58.2 The Tribunal rejected the explanations put forward by Mr Crawford.

58.3 These events followed fairly closely after Mr Anastasiou's interview in July."

20. During the course of October 2010, the Claimant had sought payment of certain expenses. This ultimately triggered an investigation into the Claimant's expense claims, which took place during October and November 2010 and of which he was unaware until these matters were put to him – without warning - at a meeting on 8 March 2011.
21. The ET's findings in respect of this investigation (which constitutes the second detriment found) are summarised at paragraph 70 of the Reasons as follows:

"70. The Tribunal found that the investigation into Mr Anastasiou's expenses, and the meetings in March 2011, took place as a result of what he said to Mr Falleck on 15 July 2010, for the following reasons.

70.1 … Ms Walsh [the HR manager who had dealt with Mr Anastasiou's claims and had triggered the investigation] appeared to have had a change of attitude towards Mr Anastasiou after July 2010.

70.2 If there had been an open-minded enquiry into Mr Anastasiou's expenses, one would have expected Mr Hanna to be asked about them as he had apparently approved them. The fact that he was not asked suggests that there was a wish to find that Mr Anastasiou was compromised.

70.3 Ms Walsh's explanations of why she found the approach to her PA suspicious, and the request for payment "aggressive" were unconvincing.

70.4 As set out above, the Respondent's explanations of the decision to tell Mr Anastasiou that the meeting would be about his appraisal, and of the role played by Mr Williams, were unconvincing.

70.5 All of the above led the Tribunal to conclude that the Respondents were not being frank about the reason for the investigation, and that in reality it was provoked by what Mr Anastasiou said about the content of the conference calls."

22. Subsequently, in early May 2011, the Respondent took the decision to refer the concerns relating to the Claimant's expenses claims to a disciplinary hearing (the third detriment found by the ET).
23. The disciplinary hearing was also to consider a charge relating to the Claimant's filing for Chapter 13 bankruptcy in the US. This matter, and the Respondent's involvement in it, led to the ET's finding of the fourth detriment. The relevant findings of fact in this regard are set out at paragraph 100 of the Reasons:

"100. … The Respondents discovered that Mr Anastasiou and his wife had petitioned for their own bankruptcy in the USA under Chapter Thirteen. Their evidence was that they found that this was the case when making enquiries about Mr Anastasiou in a way that would be routine whenever they anticipated litigation with another party. In June 2011 they intervened in the bankruptcy proceedings … , making reference to the £20,000 hardship payment and Mr Anastasiou's representation that he and his wife owned the Harriman Heights property, which had not been listed as an asset in the bankruptcy petition. The intervention was put on the basis that Mr Anastasiou and his wife were representing that they did not own any real properly for one purpose and were representing that they owned Harriman Heights for another purpose; and on the basis that the Respondents were a creditor of Mr Anastasiou in relation to the £20,000 and the personal expenses that had not been reimbursed."

24. The ET's explanation for finding that this constituted a detriment, on the grounds of the Claimant's protected disclosure, is set out in its Conclusions at paragraph 106:

"106 … the complaint of detriment on the ground of making a protected disclosure is well founded. As indicated, the Tribunal also found that it succeeded in relation to the intervention in the US bankruptcy. The bankruptcy petition had come to light in the course of the Respondent's investigations of Mr Anastasiou: these investigations were only occurring at all because of the making of the disclosure."

25. For completeness, we note that, although the ET made various criticisms of the disciplinary process, it did not find that the ultimate decision to dismiss the Claimant was due to his protected disclosure. Significantly, the ET observed in relation to the dismissing manager, Mr Wood:

"77. [He] was not challenged on his evidence that he had had no previous interaction with Mr Anastasiou, or any of the other people involved, or with the issues being raised. He said that no one had attempted to influence the outcome of the hearing and that no one had told him to find against Mr Anastasiou, either with or without any explanation of why he should do that."

The appeal

26. The Respondent now appeals against the ET's Judgment on the detriment claims. There is no cross-appeal on the part of the Claimant.
27. The matter having been considered at a preliminary hearing before HHJ Serota QC (sitting with Ms P Tatlow and Mr I Ezekiel), this appeal proceeded on the following three grounds:

(1) The protected disclosure ground.

(2) The causation ground.

(3) The natural justice ground.

The law

28. The relevant statutory provisions are contained within Part IV(A) Employment Rights Act 1996. The right is set out at s.47B, which provides that:

"(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."

29. S.43A defines "protected disclosure" as:

"[…] a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H."

30. S.43B of the Employment Rights Act 1996 provides, so far as is material:

"(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—

[…]

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;

[…]

(2) For the purpose of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory."

31. S.43C provides:

"(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith—

(a) to his employer; …"

32. And s.43L(3), setting out "Other interpretive provisions" provides:

"(3) Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention."

33. Turning to the enforcement of a worker's s.47B right, s.48 provides that such a complaint is to be brought before an Employment Tribunal and that:

"(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. …"

34. Pursuant to s.43B, the disclosure must be "of information". This expression has previously been the subject of consideration by a different division of this court (Slade J presiding) in Cavendish Munro Professional Risk Management Limited v Geduld [2010] ICR 325, in which a distinction was drawn between a "disclosure of information" and "an allegation". The EAT in Cavendish put the matter thus:

"24. […] the ordinary meaning of giving 'information' is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating 'information' would be 'The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around'. Contrasted with that would be a statement that 'you are not complying with Health and Safety requirements'. In our view this would be an allegation not information.

25. In the employment context, an employee may be dissatisfied, as here, with the way he is being treated. He or his solicitor may complain to the employer that if they are not going to be treated better, they will resign and claim constructive dismissal. Assume that the employer, having received that outline of the employee's position from him or from his solicitor, then dismisses the employee. In our judgment, that dismissal does not follow from any disclosure of information. It follows a statement of the employee's position. In our judgment, that situation would not fall within the scope of the Employment Rights Act section 43."

35. In reaching its conclusion in this regard, the EAT in Cavendish noted that a distinction is drawn between "information" and "allegation" elsewhere in the legislation. Thus, at paragraph 20 it was observed:

"That the Employment Rights Act recognises a distinction between 'information' and an 'allegation' is illustrated by the reference to both of these terms in section 43F. […] It is instructive that those two terms are treated differently and can therefore be regarded as having been intended to have different meanings."

36. The EAT in Cavendish also drew support for this distinction from the victimisation provisions of (then) the Sex Discrimination Act 1975 and the Race Relations Act 1976, which made a separate provision in respect of "giving evidence or information" and "making an allegation" (now see s.27(2)(b) and (d) Equality Act 2010). The EAT in Cavendish went on to consider how the interpretive provisions of s.43L of the Employment Rights Act 1996 might impact upon this analysis:

"27. […] The natural meaning of the word 'disclose' is to reveal something to someone who does not know it already. However section 43L(3) provides that 'disclosure' for the purpose of section 43 has effect so that 'bringing information to a person's attention' albeit that he is already aware of it is a disclosure of that information. There would no need for the extended definition of 'disclosure' if it were intended by the legislature that 'disclosure' should mean no more than 'communication'."

37. In Cavendish the claimant - Mr Geduld – had relied on a letter before action from his solicitors as constituting a qualifying disclosure within the meaning of s.43B. The relevant parts of the letter relied on, which did not descend into any detail, stated:

"We have been instructed by Michael Geduld in respect of the recent discussions that have taken place between the parties. We have given full advice to our client regarding his rights as a shareholder, director and employee. Such advice includes the purported agreement between the parties signed immediately before the Christmas break but 'back dated'. There are a number of issues regarding the validity of such an agreement and the unfair prejudice to our client, taking into account the events leading up to and immediately after the signature of the Agreement. Our client's position is fully reserved regarding his rights and claims in this regard and we have advised him that such arguments are significant and are very likely to be successful in Court."

And:

"Our client is putting forward this proposal as a means to bring a swift conclusion to the current position. If it is not accepted in its entirety then our client will take all steps that are necessary to protect his position including issues regarding the purported shareholders agreements; the actions of the company's accountant regarding the purported valuation and the various threats and circumstances surrounding the position our client finds himself in with the remaining two shareholders which has led to unfair prejudice upon our client as a shareholder by the company. Such unfair prejudice does raise the issue as to the future of the company."

38. The Employment Tribunal considered that this amounted to a "disclosure of information" for the purposes of s.47B, in that:

"64. The writer of the solicitor's letter does refer to legal obligations with which, they assert, [the other directors of the Respondent] were failing to comply. They state, for example that:

'[…] the position our client finds himself in with the remaining two shareholders which has led to unfair prejudice upon our client as a shareholder by the company.'

The test of being likely to disclose is, therefore, met."

39. As the EAT noted, on appeal:

"The basis for the Tribunal's Judgment that the letter of 4 February 2008 amounted to a qualifying disclosure within the meaning of the legislation, appears to be […] [this] passage from the solicitor's letter […] If there were additional reasons for the Tribunal's conclusion that the letter of 4 February 2008 contained a qualifying disclosure within the meaning of the legislation, with respect, these are not apparent."

40. The approach adopted in Cavendish was subsequently followed in Goode v Marks & Spencer plc EAT/0442/09 (Wilkie J presiding) and in Smith v London Metropolitan University [2011] IRLR 884 (Slade J again presiding).
41. For the Claimant, Mr Fodder accepts the approach laid down in Cavendish provided that this would still permit disclosure of information to include the disclosure of a matter of opinion which is, itself, a matter of fact (as was accepted in Royal Cornwall Hospitals NHS Trust v Watkinson EAT/0378/10 (Silber J presiding); a case involving the disclosure of counsel's opinion showing a likely failure to comply with legal obligations on the part of the Respondent). If Cavendish limits "information" to only information as to primary facts, Mr Fodder would submit that it must have been wrongly decided.
42. Both parties accept that any disclosure of information must further identify, albeit not in strict legal language, the breach of legal obligation relied on. As stated in Fincham v HM Prison Service EAT/0925/01 and EAT/0991/01:

"32. … If an employee complains on various occasions about the conduct of other employees that is not of itself demonstrating any breach of duty of the employer at all. Of course there can be a breach of trust and confidence resulting from a whole series of acts of inattention or carelessness or any inconsiderate behaviour by an employer over time.

33. But there must in our view be some disclosure which actually identifies, albeit not in strict legal language, the breach of legal obligation on which the employers is relying. In this case the Tribunal found none. We have no reason to conclude that they erred in law in reaching that conclusion."

43. For the Claimant, Mr Fodder submits that this is really saying no more than is common sense: an employer obviously has to have some idea of what obligation is being referred to. In assessing that question, however, the context can be all important. Thus, in Bolton School v Evans [2006] IRLR 500, EAT (Elias J presiding), it was observed:

"41. … It is true that the claimant did not in terms identify any specific legal obligation, and no doubt he would not have been able to recite chapter and verse at the time. But it would have been obvious to all that the concern was that private information, and sensitive information about pupils, could get into the wrong hands, and it was appreciated that this could give rise to a potential legal liability"

44. The burden of proof in this regard is on the employee. As observed by HHJ McMullen QC in Boulding v Land Securities Trillium (Media Services) Ltd EAT/0023/06:

"24. … 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.

25. "Likely" is concisely summarised in the headnote to Kraus v Penna plc [2004] IRLR 260, EAT Cox J and members:

In this respect "likely" requires more than a possibility or risk that the employer (or other person) might fail to comply with a relevant obligation. The information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable, or more probable than not that the employer (or other person) will fail to comply with the relevant legal obligation. If the claimant's belief is limited to the possibility or risk of a breach of relevant legislation, this would not meet the statutory test of likely to fail to comply."

45. The burden, however, relates to what the employee reasonably believed – the test is a subjective one, see Babula v Waltham Forest College [2007] IRLR 346, CA – the belief does not have to be proved to be correct.
46. On the question of causation, both parties accept that the test is that laid down by Elias LJ in NHS Manchester v Fecitt and ors [2012] IRLR 64, at para. 45:

"… section 47B will be infringed if the protected disclosure materially influenced (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower."

47. In determining the case against the employer, however, the Respondent notes that the observations of Peter Gibson LJ in Chapman v Simon [1994] IRLR 124, hold good: the ET must "with meticulous care" determine only those issues advanced by the parties and no other: "… it is the act of which complaint is made and no other that the Tribunal must consider and rule upon". In this regard, it is submitted that where there is an agreed list of issues then that will, as a general rule, limit the issues at the substantive hearing to those in the list, see Parekh v The London Borough of Brent [2012] EWCA Civ 1630, per Mummery LJ at para. 31, approving Land Rover v Short [2010] EAT/0496/10.
48. The Claimant does not disagree but observes that members of an ET have "their own duty to ensure that a case is clearly and efficiently presented. Equally the tribunal which hears the case is not required slavishly to follow the list presented to it", see per Carnwath LJ in Price v Surrey County Council EAT/0450/10. Similarly, in Parekh, it was stated: "[the ET] is not required to stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence" (per Mummery LJ at para. 31).
49. In this regard, Mr Fodder notes the approach adopted in Saint Francis Hospice v Burn UKEAT/0486/12/BA (Recorder Luba QC presiding), where it was ruled (at para. 19) that: "If there was, in the circumstances of this case, any expansion or augmentation of the issues by the judge, it can only have been in response to the case as it unfolded before her. The Hospice was represented at the hearing and had the ability to probe, rebut and challenge anything raised. To my mind, it can have suffered no actual prejudice."

Submissions

The protected disclosure ground

50. On its first ground of appeal, the Respondent contends that the best that could be said in this case was that the Claimant, in his evidence to the Fallek investigation, was expressing a personal opinion on a business strategy. This was not a case where he had brought to the Respondent's attention some form of wrong-doing. Indeed, it was Mr Hanna (if anyone) who had blown the whistle, not the Claimant. The Claimant, on his own case, was simply expressing his view. It was a disclosure of his opinion not of information and thus failed to meet the requirements of s.43B ERA 1996 (applying Cavendish).
51. Further, the disclosure had to be one which identified (albeit not in strict legal language) the breach of legal obligation (applying Fincham). Accepting that the test was a subjective one, i.e. of what the Claimant reasonably believed (see Babula), the ET was required to identify what the Claimant had believed to be the breach, not simply to find what it believed to be the breach. Moreover, where it was said to be the breach of a non-UK obligation, the ET needed to be particularly careful as to what it found. The burden in this regard was on the Claimant (see Boulding) and paragraph 103 of the ET's Reasons did not demonstrate that he had discharged it.
52. For the Claimant, Mr Fodder contended first that the Cavendish point was not one that had featured as a part of the Respondent's case before the ET. Cavendish had not been referred to in the Respondent's submissions to the ET; it was not a point that had been properly developed before that stage (and was not apparent from the list of issues). It had, moreover, not even been properly identified in the Notice of Appeal before the EAT and that had meant that the opportunity to seek clarification of the ET's reasoning on this issue had been missed. The Respondent should not be permitted to criticise the ET's reasoning on this point when that reasoning fairly reflected the way the case had been put before it.
53. In any event, when regard was had to what the ET had found the Claimant had actually said (see paragraphs 47-54 of the ET's Reasons), it is clear this was not merely an assertion of discontent or an expression of personal opinion but the giving of real and detailed information as to facts within the Claimant's knowledge. If the ET had understood this point to have been in issue, its findings in this regard would no doubt have been buttressed by further references to the investigatory notes and to Mr Fallek's statement. It was, in any event, tolerably obvious that what the Claimant was disclosing was only opinion in the sense that it was providing information as to his opinion and that was sufficient to meet the requirements of s.43B ERA.
54. As for the Fincham point, this case had to be viewed in context. The legal and factual framework for the Claimant's disclosure had been set by the Fallek investigation. Mr Fallek interviewed the Claimant to obtain information as to what was said in the telephone conference call and to assess whether that was in breach of any legal obligation on the Respondent's part. That much was understood by all concerned and, in those circumstances, there was no requirement on the Claimant to specify the legal obligation to Mr Fallek. What Fincham required was that the employer had some idea of what obligation was being referred to. In the present case, the Respondent plainly did. This was a Bolton case: all involved were aware of the legal obligations in issue as a matter of common sense.

The causation ground

55. Under this ground, the Respondent submitted that the starting point was that the person who subjected the complainant to the detriment in issue had to have known of the protected act. If this had been established, then the ET needed to determine whether the protected disclosure had materially influenced (applying Fecitt) that individual in their treatment of the Claimant.
56. In this case, there was no finding of fact in respect of any of the detriments that the actors in question had any knowledge of the protected act. There had been no challenge to the evidence that Mr Fallek had only disclosed his investigation report to a limited number of people (predominantly lawyers and all based in the USA or external counsel). There was simply no finding of any link between his note of the Claimant's disclosure (which, in any event, Mr Fallek had concluded did not support Mr Hanna) and any of those involved in what were found to have been detriments meted out to the Claimant. Indeed, the unchallenged evidence of those concerned was that they were unaware of the Claimant's involvement in the Fallek investigation at the relevant times.
57. The ET's findings on causation failed to identify any evidential basis for concluding that the protected disclosure had materially influenced the relevant actors. It was apparent that the ET had sought to draw inferences from the various findings made adverse to the Respondent but this did not overcome the basic difficulty of the absence of any finding that the individuals in question even knew of the protected disclosure let alone allowed it to materially influence their decision-making.
58. This was to be contrasted with the ET's approach to the decision to dismiss, where it plainly considered it relevant that the decision-taker, Mr Wood, had not been shown to have had any previous interaction with the Claimant or any of the other people involved or the issues being raised. All the ET's observations relevant to Mr Wood could, however, equally have been made in respect of those involved in the actions found to have been unlawful detriments. There was simply no explanation for the difference in approach.
59. Specifically, the third detriment was an entirely new allegation, which had never been articulated as a detriment by the Claimant. And the fourth detriment was expressly found by the ET to be wholly parasitic on its earlier finding, i.e. it was applying a "but for" test that was impermissible for these purposes.
60. For the Claimant, it was submitted that the ET had clearly been satisfied that the acts of detriment had come about because of the Claimant's protected disclosure. The individuals in question did not need to have had direct knowledge of the Claimant's disclosure: the ET's finding was that they did what they did because they were so instructed by someone (unspecified) else. Although accepting that this was not spelt out as well as it might have been in the ET's Reasons, the finding was that Mr Fallek had done more than merely write a report and the ET had plainly concluded that the Respondent had been provoked by the Claimant's protected disclosure. The burden of proof was on the Respondent (s.48(2) ERA) and, although the ET had not referred to this or suggested that its decision arose from an application of the burden of proof, that must have been in mind and the ET was entitled to draw inferences from the various findings it made in each instance adverse to the Respondent.
61. Turning to the specific detriments, in reality the second and third detriments were intertwined: the decision to progress the non-disciplinary investigation into the Claimant's expenses into a disciplinary investigation was all part of an investigation. The question had been put in issue in evidence and the ET was entitled to make a finding on this point. As for the fourth detriment (the Respondent's interference in the Claimant's bankruptcy proceedings), Mr Fodder fairly acknowledged that the ET's reasoning might be viewed as applying a "but for" test and was unable to assist further on this point save to fall back on the ET's Reasons at para. 106.

The natural justice ground

62. Although accepting that it was open to the ET to re-visit the list of issues at any time until closing submissions, the Respondent submitted that, if there was going to be a change in that list, then the parties should be given the opportunity to address any new points. Here the first detriment had been re-worded: from an allegation that the Claimant's client relationships were improperly targeted and subject to interference, with specific accounts (Lagardere and BP) being "taken away" to a finding that the Claimant had been "side-lined" in respect of the Payshop, Lagardere and DHL accounts. The "re-casting" of the complaint had occurred during the ET's deliberations and the parties had not had the opportunity to make submissions about it. Had they been able to do so, the Respondent would have made the point that the chronology made no sense: Mr Crawford (who was held to have "side-lined" the Claimant in respect of the accounts) was only interviewed as part of the investigation into the Claimant's grievances between May-July 2011, a period post-dating all the incidents of "side-lining" in respect of the Payshop, Lagardere and DHL accounts.
63. The third detriment – the referring of the expense inquiries into a disciplinary investigation – was entirely new and had been added by the ET during the course of its deliberations without discussion with the parties. It was not an answer to say that it was merely part of the second allegation: either it was a separate detriment (as the ET found) or not.
64. For the Claimant, Mr Fodder submitted that the ET's findings on the first detriment could be seen as encompassed by the way these complaints had been addressed by the list of issues, by the evidence and by both parties' submissions before the ET. It was simply the ET placing particular emphasis on part of the evidence, not an entirely new matter requiring further opportunity for submission by the parties.
65. As for the third detriment, as previously submitted, this was a natural extension of the second detriment and also addressed in the evidence. There was no prejudice to the Respondent in the ET having made its finding in this regard.

Discussion and conclusions

The protected disclosure ground

66. We follow and apply the approach adopted by the EAT in Cavendish, Goode and Smith: s.43B ERA requires the disclosure to be one "of information", not merely the making of an allegation or statement of position. That said, the distinction can be a fine one to draw and one can envisage circumstances in which the statement of a position could involve the disclosure of information, and vice versa. The assessment as to whether there has been a disclosure of information in a particular case will always be fact-sensitive.
67. In the present case, the Claimant was providing responses to Mr Fallek's investigation. That investigation was concerned with whether the information given in the conference calls of February and April 2010 was correct or whether it had been misleading. To some extent, the Claimant was being asked to provide his opinion but not simply as to whether he considered the statements in the conference calls should have been made but as to the actual sales position as he understood it. Having made its findings as to what the Claimant had said in the Fallek investigation, the ET concluded that he had provided information – obviously derived from his experience and knowledge of what was happening - as to the likelihood of meeting the sales target and as to the appropriateness of including the McColl accounts:

"The Tribunal was satisfied that Mr Anastasiou had disclosed information, namely that when the conference calls were made, it was in fact unlikely that the 10,000 locations target would be achieved, and that the 700 McColl locations should not be taken into account."

68. That was a conclusion that we consider the ET – given its findings as to what had been said by the Claimant to Mr Fallek – was entitled to draw.
69. To the extent that the ET did not spell out in terms the distinction between the nature of the Claimant's disclosure and the mere making of an allegation or statement of position, we consider that reflects the way the case was put below. This had not been flagged-up by the Respondent as a discrete issue and was plainly not the focus of the case as put before the ET. Indeed, we have some sympathy with Mr Fodder's observation that this argument appears to have undergone some development as an issue in the case even since the drafting of the Notice of Appeal before the EAT. In any event, on the findings of fact made by the ET, we would not hesitate to reach our own conclusion that this was a disclosure of information for the purposes s.43B ERA.
70. We turn then to the second question under this ground, i.e. whether the ET correctly identified the breach of legal obligation that was the subject of the Claimant' reasonable belief in this case.
71. We agree with Mr Fodder that this has to be seen in context. The Fallek investigation was concerned with whether there had indeed been breaches of any legal obligation on the Respondent's part, i.e. as to whether misleading information had been provided to investors/potential investors during the conference calls. When the Claimant disclosed information to that investigation to support the view that "what was said in the conference call should not have been said" (ET Reasons paragraph 54), the reason why the Claimant believed it should not have been said would have been readily apparent to Mr Fallek. As the ET concluded:

"102. … In a practical sense, there was no doubt what the nature of the obligation was that was under consideration: Mr Fallek was investigating because Mr Hanna had stated that what was said in the conference calls had been misleading in that it gave a more favourable picture to potential investors than was truly applicable.

103. It was true, as submitted by Mr Kibling, that there was no evidence before the Tribunal showing any particular statute or other legal provision that applied to the situation. However, the "legal obligation" that was being asserted was clear; i.e. that a company describing its prospects to potential investors should describe those prospects accurately, so far as possible. …"

72. We do not read this as the ET substituting its belief as to the potential breach of legal obligation for that held by the Claimant. It was simply stating that, given the context, the legal obligation that it was apparent that the Claimant believed might have been breached was obvious to all. Fincham requires that the employer has some idea of what obligation is in issue. In this case, as in Bolton, the obligation was apparent to all involved as a matter of common sense.

The causation ground

73. Having concluded that the ET was entitled to find that there had been a qualifying protected disclosure in this case, the question raised by the second ground of appeal is whether it then erred in concluding that the Claimant was subjected to detriments on the ground of that disclosure.
74. Allowing that the relevant statutory framework places the burden of proving the reason for any detriments found on the employer (s.48(2) ERA), the question the ET had to grapple with was whether the protected disclosure had materially influenced the employer's treatment of the Claimant in this case (per Elias LJ in Fecitt). We can see that – hypothetically - there may be cases where there is an organisational culture or chain of command such that the final actor might not have personal knowledge of the protected disclosure but where it nevertheless still materially influenced her treatment of the complainant. In such cases, however, it would still be necessary for the ET to explain how it had arrived at the conclusion that this is what had happened.
75. Looking at the ET's findings in the present case, there is no finding that any of the relevant decision-takers/actors (Mr Crawford, Ms Walsh and Mr Williams) had any knowledge of the protected disclosure (or, indeed, of any aspect of the Claimant's investigatory interview with Mr Fallek). The evidence before the ET was that the circulation of Mr Fallek's investigation report was very limited; we have seen no evidential basis to support a conclusion that its content was generally known amongst the Respondent's "senior management". Moreover, on the ET's findings, we have seen nothing that would provide any basis for linking the Claimant's disclosure to the decisions taken by Mr Crawford, Ms Walsh or Mr Williams.
76. Although not expressly stated, it appears that the ET inferred that the decisions involved in the first, second and third detriments were in some way influenced (albeit perhaps indirectly) by the protected disclosure. Whilst it might have been entitled to reject the explanations given by the Respondent (although we below address the possible errors that might have occurred given re-casting of the detriments during the ET's deliberations), the ET's reasons fail to demonstrate how it concluded that the protected disclosure materially influenced those decisions. The ET does not suggest that it simply reached its decision by means of the application of the burden of proof provision at s.48(2) ERA and it is fair to observe that Mr Fodder did not seek to rescue the ET's Judgment on this basis. We are simply left with no understanding as to why the ET felt able to draw a causal link between the disclosure and the detriments in this case. The position is all the more puzzling as, faced with the same lack of knowledge of the disclosure on the part of Mr Wood, the ET felt bound to accept his evidence that this had played no part in his decision that the Claimant should be dismissed.
77. Whether the ET erred by failing to ask whether the protected disclosure had materially influenced the detriments in question or simply reached a conclusion that was perverse on the evidence before it or failed to adequately set out its reasoning, we do not consider that this part of its Judgment withstands scrutiny.
78. Turning specifically to the fourth detriment – the Respondent's intervention in the Claimant's US bankruptcy proceedings – we find it hard to read paragraph 106 of the Reasons as applying anything other than a "but for" test: but for the fact that the Respondent was investigating the Claimant's expenses, it would not have learned of the bankruptcy petition. So far as we can see, the ET simply failed to ask the question whether the protected disclosure materially influenced the Respondent's decision to intervene. As the Respondent would routinely make such inquiries if anticipating litigation and given its interest as a creditor of the Claimant (see paragraph 100 of the ET's Reasons), the fact that this was set against the background of the expenses investigation does not provide a sufficient explanation as to the ET's finding in this regard. Again, in our judgment, this part of the ET's decision cannot stand.

The natural justice ground

79. The Respondent's complaints under this ground relate specifically to (1) the re-casting of the first detriment, and (2) the addition of the entirely new third detriment.
80. Looking at the first detriment found – the Claimant's being side-lined in respect of the Payshop, Lagardere and DHL accounts – this can be seen to have evolved from the issues identified at paragraph 10.2.1-10.2.3 and we have some sympathy for Mr Fodder's argument that this could be seen to be a placing of particular emphasis on part of the evidence rather than an entirely new matter requiring further opportunity for submission by the parties.
81. That said, we can see a distinction between "side-lining" and taking away specific accounts and we are concerned that there is an issue in the chronology in respect of Mr Crawford's knowledge of the Claimant's grievance and the actions said to have constituted "side-lining" in respect of the accounts in question.
82. The third detriment causes us even greater concern. If this was simply, as Mr Fodder suggests, part and parcel of the second detriment, then there would have been no need to make a separate finding in this respect. To the extent that it was – as the ET's Judgment and Reasons suggest – a separate detriment, then both parties should plainly have been given the opportunity to make representations as to this addition to the list of issues.
83. On the first and third detriments, therefore, we consider that the ET erred in failing to allow the parties the opportunity to make representations on the re-casting and/or amendment to the list of issues.

Disposal

84. For the reasons we have given, we allow this appeal in part. The parties are invited to make any representations on the question of disposal and/or any other applications, to be lodged with the EAT within 14 days of this Judgment being handed down. Any further representations and/or applications will be determined by HHJ Eady QC alone, such consideration being on the papers unless either party seeks an oral hearing.