United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0136/15/JOJ

EMPLOYMENT APPEAL TRIBUNAL

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

                                                                                                             At the Tribunal

                                                                                                             On 17 & 18 September 2015

                                                                            Judgment handed down on 19 January 2016

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

CROYDON HEALTH SERVICES NHS TRUST                                                  APPELLANT

DR K J BEATT                                                                                                      RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

UNFAIR DISMISSAL - Automatically unfair reasons

VICTIMISATION DISCRIMINATION - Whistleblowing

The Employment Tribunal finding that dismissal was by reason of the Claimant’s whistle blowing and not conduct, as the Respondent employer asserted, was not properly reasoned.  Accordingly, the Respondent’s appeal was upheld and the case remitted to a fresh Employment Tribunal for rehearing.

HIS HONOUR JUDGE PETER CLARK

1.                  In this case, between Dr Kevin Beatt, Claimant, and Croydon Health Services NHS Trust, Respondent, a final hearing took place before the London (South) Employment Tribunal (Employment Judge Sage and members) from 19 May to 2 June and on 7 July 2014.  The Employment Tribunal then spent 10 days deliberating in Chambers before delivering themselves of their Reserved Judgment with Reasons extending to 201 pages, promulgated on 24 October 2014.

Summary

2.                  The Claimant was employed by the Respondent as a Consultant Cardiologist from 1 November 2005 until his dismissal on 14 September 2012 following a 6 day disciplinary hearing, at which he was represented by counsel, before a panel including Mr Richard Parker, Director of Operations, and Professor Beedham, a retired Consultant and former Clinical Director at Barts Hospital.  Professor Beedham was brought into the process following a request by the Claimant for the panel to contain an independent medically qualified member.  The panel concluded that the Claimant should be summarily dismissed for gross misconduct.

3.              An internal appeal against dismissal was heard by a panel consisting of Mr Goulston, Chief Executive of the Trust; Mr Bailey, Consultant Urologist and former Medical Director of St George’s Hospital; and Ms Clarke CBE (Associate Non-Executive Director of the Trust with nursing experience at a high level).

4.                  The original disciplinary panel’s reasons for misconduct dismissal are set out in Mr Parker’s letter of 14 September 2012.  The Claimant faced nine disciplinary charges; the panel upheld charges two, four, six, seven, eight and nine.  Charges one, three and five were not upheld.

5.                  However, it was the Claimant’s case before the Employment Tribunal that the reason or principal reason for dismissal was not misconduct, but the fact that he had made protected disclosures and the disciplinary process prior to dismissal, the dismissal itself, the internal appeal process and acts of post-termination ‘victimisation’ were unlawful, either as being detrimental treatment on the grounds of his having made protected disclosures and/or, in the case of the dismissal, that the reason was as stated above.

6.                  As appears from the Employment Tribunal Reasons (page 8) the Claimant relied on 16 communications said to amount to protected disclosures.  The first and second relate to 18 June 2008 and 8 February 2010 respectively.  Those numbered three to seven, ranging from 23 February 2010 to 28 March 2011, were found by the Employment Tribunal not to amount to protected disclosures.

7.                  On 9 June 2011 a patient (GS) on whom the Claimant was operating, died during the course of that operation.  There then followed protected disclosures by the Claimant, numbered 8 to 11 and 13 to 16, so the Employment Tribunal found.  The Respondent challenges only the finding in relation to disclosure number 14.  Those disclosures are summarised at page 9 of the Reasons.  Numbers 8 to 11 and 13 to 15 cover a period 10 June to 3 August 2011 and thus pre-date the Claimant’s dismissal on 14 September 2012.  The last disclosure, number 16, was made at the coroner’s inquest into the death of GS on 2 and 3 July 2013.  Chronologically, those disclosures were followed by the post-termination victimisation complaints, listed at paragraphs 3, 4 and 5 of the detriments relied upon at page 9 of the Reasons, those taking place on 4, 5 and 30 July 2013.

The Issue

8.                  The formal list of issues, identified at a Case Management Discussion held on 3 May 2013, is set out at pages 6 to 9 of the Reasons.  I use page numbers because the Tribunal do not use a sequential numbering system throughout their 200 page Reasons.  Rather, one topic is covered in numbered paragraphs, then the next returning to paragraph 1 and then the next and so forth.  If this method of organising a decision is to be used in future, and I hope that it will not, an opening contents page would greatly assist the reader in navigating the document.

9.                  The issues cover unfair dismissal, protected disclosures, a now irrelevant wages claim, the alleged ‘protected acts’; i.e. the protected disclosures and the detrimental treatment relied upon.

10.              However, the overarching question for this Tribunal was which narrative, in whole or in part, did they accept; the Respondent’s case that the Claimant had misconducted himself in circumstances where, following a fair and impartial process, he was dismissed for that reason or the Claimant’s case that the whole disciplinary process was a “sham exercise” (I take that expression from paragraph 7 of Ms Iyengar’s written skeleton argument in this appeal) designed to rid the Trust of a distinguished medical practitioner because he had blown the whistle?

The Employment Tribunal Decision

11.              It is the Claimant’s case before me that effectively the Employment Tribunal accepted the Claimant’s narrative, as I have put the issue in a binary way above.  Certainly, the Tribunal’s conclusion supports that thesis.  Their Judgment, page 1, was (1) that the Claimant was unfairly dismissed and the sole or principal reason for the dismissal was because the Claimant made a protected disclosure.  Pausing there, the Judgment itself does not spell out which disclosure or disclosures, as found, constituted the sole, or perhaps principal reason for dismissal, but plainly that is a finding of automatically unfair dismissal under section 103A Employment Rights Act 1996.  It seems to follow that both the dismissal itself and subsequent appeal process was motivated not by the Claimant’s conduct, as the Respondent asserted, but his whistle blowing.  (2) The Claimant was subjected to a detriment by the Respondent done on the ground that he had made a protected disclosure.  By combing the Tribunal’s Reasons it seems that the three post-termination victimisation allegations were upheld; but not the first two, an unfair disciplinary and appeal process; see pages 188 to 189, paragraphs 31 to 34.  Already, it seems to me, a degree of internal inconsistency is emerging in the Employment Tribunal’s Judgment.

The Employment Tribunal’s Reasoning

12.              This, in my judgment, is the key to this appeal.  Ms Iyengar, in her broad overview, submits that this appeal is no more than a “brazen and misconceived perversity challenge”.  I disagree.  It seems to me that at the heart of the appeal is the proposition that the Employment Tribunal failed to make a sustainable finding as to the reason for dismissal (ground 2) and in its approach to the internal appeal (ground 3).  I propose to examine those two grounds before moving on to the remaining grounds.

13.              At page 190, paragraph 36, under the heading “The Dismissal” the Employment Tribunal say this:

“36. The Respondent has shown a potentially fair reason to dismiss and Mr Parker [chairing the disciplinary panel] stated that he dismissed for conduct which is a potentially fair reason to dismiss.  We have made extensive findings of fact in respect of Mr Hayward’s investigation [leading to the disciplinary hearing] and the resultant investigatory report.  We felt that on the whole the investigation appeared to be balanced … The conduct of the disciplinary hearing itself appeared to be, as described by the Respondent, “quasi judicial in nature” which the Tribunal accept …”

14.              The Employment Tribunal then go on to place their own view of the strength or weakness of the allegations upheld by the Parker panel, paragraphs 38 to 48, and then at paragraph 49 (page 196) say:

“49. The Tribunal therefore conclude on all the evidence before us that the Respondent has not shown that the reason for dismissal was misconduct. …”

15.              They then turn to the appeal conducted by Mr Goulston’s panel (paragraph 50), noting their finding as to how little an understanding of the facts Mr Goulston had.

16.              They then express the conclusion (paragraph 52), having referred themselves to the guidance of Mummery LJ in Kuzel v Roche Products Ltd [2008] IRLR 530, that:

“52. … the Respondent’s evidence of conduct be rejected.  The Tribunal also conclude that the reason put forward by the Claimant, that he was dismissed for making protected disclosures, was the principal factor operating on the decision maker’s mind. The Tribunal reach this conclusion on the basis of the consistency of the Claimant’s evidence in respect of the events of the 9 June and his concerns expressed about patient safety after that date.  We conclude that the Claimant was dismissed for escalating his concerns about health and safety concerns …”

17.              At paragraph 53 the Employment Tribunal link disclosures 10 and 14 to allegations 6 and 7 in the dismissal letter and disclosures 8, 9, 11, 13 and 15 to allegations 4, 8 and 9.  Those disclosures found the reason for dismissal; those reasons operated on the minds of Mr Parker and Mr Goulston.

18.              For completeness, at paragraph 54 (page 199) the Employment Tribunal would have found the dismissal ordinarily unfair had they not made the section 103A finding and would not have made any deduction for contributory conduct on the part of the Claimant nor under the Polkey principle.  They then went on to deal with the post-termination detriments which they upheld.

Analysis

19.              The flaw in the Employment Tribunal’s reasoning, in my judgment, is that instead of determining “the set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee”, to adopt the timeless definition of the reason for dismissal formulated by Cairns LJ in Abernethy v Mott, Hay and Anderson [1974] ICR 323, the Employment Tribunal has embarked on its own assessment of the conduct charges upheld, first by the Parker panel and then by the appeal panel chaired by Mr Goulston; found them less than compelling and then moved to the conclusion that conduct was not the reason for dismissal but the protected disclosures.  What is signally missing from these extensive Reasons is an analysis leading to the conclusion that the evidence of both Mr Parker and Mr Goulston, representing their respective panels, was false and a deliberate attempt to mislead the Employment Tribunal as to the true reason for dismissal.

20.              This error in approach was further compounded by the Employment Tribunal linking, factually, disclosures 8, 9, 11, 13 and 15 to allegations 4, 8 and 9 in the dismissal letter.  I accept the submission of Ms McNeill QC, leading Mr Scott, that at paragraph 53, page 198, the Employment Tribunal wrongly thought that the fact that these disciplinary charges were “related to” the substance of the disclosures referred to was sufficient to decide the reason question.  That is not the correct causation test.

21.              Separately, I can discern no clear reasoning leading to the expressed conclusion that Mr Goulston and his panel members determined the appeal on the basis of the protected disclosures found by the Employment Tribunal, as opposed to the conduct grounds put forward.

Disposal

22.              Having upheld the Respondent’s appeal (grounds 2 and 3) on the basis of the Employment Tribunal’s approach to the reason for dismissal certain consequences necessarily flow.  First, the question of the inadmissible reason for dismissal must be retried.  In my view that question must be determined by a fresh Employment Tribunal.  I am not persuaded by Ms McNeill that the conclusion by the Sage Employment Tribunal is one that I can reverse on the basis that it is perverse.  It also follows that the alternative finding of ‘ordinary’ unfair dismissal falls.  It will arise again before the next Employment Tribunal if it is found that the reason was not automatically unfair under section 103A Employment Rights Act 1996.  Similarly, questions of Polkey and contribution must be left to the next Employment Tribunal.  Also, the question of post-termination victimisation will depend upon the view taken by the next Tribunal as to the Respondent’s motivation in its actions.  Finally, there is now no dispute as to which of the 16 disclosures are protected, save for number 14 which is the subject of ground 1 of the amended grounds of appeal.  As to that, I agree with Ms Iyengar that the Employment Tribunal was entitled to find that this disclosure was substantially true and was made in good faith.  Accordingly, I dismiss ground 1.