United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0272/15/LA

 

 

EMPLOYMENT APPEAL TRIBUNAL

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

 

 

At the Tribunal

On 22 January 2016

 

 

 

Before

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

(SITTING ALONE)

 

 

 

 

 

 

MS A MORGAN   APPELLANT

 

 

 

 

 

ROYAL MENCAP SOCIETY RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	MR CHARLES CROW (of Counsel) Instructed by: Anthony Collins Solicitors LLP 134 Edmund Street Birmingham B3 2ES

 

 

SUMMARY

PRACTICE AND PROCEDURE - Striking-out/dismissal

VICTIMISATION DISCRIMINATION - Protected disclosure

 

1.                  Claims based on protected disclosures were struck out at a Preliminary Hearing without evidence being heard, on the basis that the disclosures, though highly relevant to the Claimant, could not be matters of public interest in the Claimant’s reasonable belief.

 

2.                  The Employment Judge was wrong to strike out the claims.  It is reasonably arguable that the Claimant, even if she is the principal person affected, reasonably believed the complaints she made to have been in the wider interests of employees generally, or in the wider public interest she identified.  Whether that is so is a question of fact.

 

3.                  Accordingly, there are disputed facts on the question of public interest in this case that should not have been determined without hearing evidence.

 

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

 

Introduction

1.                  This is an appeal from a Judgment with Reasons sent to the parties on 8 July 2015 of Employment Judge Downs.  The Employment Judge acceded to an application to strike out claims made by the Claimant based on protected disclosures.  The disclosures were in effect complaints about the conditions in which she was being required to work.  She asserted a belief that they represented a danger to her health and safety, and although the Employment Judge accepted that these matters were highly relevant to her, he concluded that they were not a matter of public interest and could not be so even in the Claimant’s reasonable belief.  It is that conclusion that is sought to be challenged by the Claimant as Appellant on this appeal.

 

2.                  By way of a preliminary matter, the Claimant appears on this appeal by Mr Ogilvy of the Fortitude Group.  He is the author of the Notice of Appeal and skeleton argument.  Yesterday Mr Ogilvy applied for a delay to the start of this hearing, which had been marked as not before 12.00pm, inviting a not before 2.00pm marking.  That application was refused by me because of other matters I had to deal with, and that refusal was communicated to Mr Ogilvy.  Notwithstanding the refusal, at about 11.30 this morning - that is to say, half an hour before the appeal was due to start - Mr Ogilvy sent a message to say that he was delayed.  Attempts were made to contact Mr Ogilvy, and a message was left for him saying that notwithstanding his circumstances the appeal would be heard at 12.00pm.  The appeal started at 12.00pm, and a note was presented by an observer in the courtroom to say that Mr Ogilvy was released from court in Watford at 11.55am, boarding a train at 12.17pm expecting to reach London at 12.47pm and was expecting to arrive at 1.15pm.

 

3.                  It seems to me that Mr Ogilvy has, in those circumstances, simply flouted the direction of the Appeal Tribunal made yesterday that the appeal would start at 12.00pm, notwithstanding the rejection of his application, and has sought to achieve (through the backdoor) the adjournment that was expressly rejected.  That is unacceptable behaviour.  Mr Ogilvy is representing the Claimant, no doubt on a professional basis, as he no doubt represents others.  It is incumbent on him to organise his professional practice in such a way as to ensure that his timetable and commitments are not in conflict, and it was incumbent on him either to be here at 12.00pm if he wished to make submissions orally to support his skeleton argument, or to organise for alternative representation either here or at Watford.

 

4.                  I am quite satisfied that it is within the overriding objective to proceed to hear the appeal in his absence in those circumstances, given that I made absolutely clear yesterday that the appeal would not be delayed.  To delay it in the way that he has sought to do simply causes this court to be inconvenienced and to delay the resolution of other cases.

 

5.                  The appeal is resisted by the Respondent who succeeded before the Tribunal, Royal Mencap Society, represented by Mr Crow of counsel, who has assisted me with a helpful skeleton argument and succinct, focused submissions on the issues.

 

The Facts

6.                  The Claimant was employed by the Respondent from 11 September 2011 until 4 July 2014 when her employment came to an end.  She brought claims of constructive unfair dismissal, contending that she had, in resigning, accepted a repudiatory breach of her employment contract by the Respondent, and that her dismissal was automatically unfair on the basis of public interest disclosures and qualifying complaints about health and safety matters.  She also alleged detriments on those grounds.

 

7.                  Following her ET1 she provided Further and Better Particulars of her protected disclosure and health and safety claims, in which she set out the dates of the disclosures on which she relied.  At paragraphs 5 to 8 of that document she said that on 9 June 2014 she had done a protected act by raising health and safety concerns with the Assistant Service Manager about her cramped working area adversely affecting her injured knee.  She said that she made a protected disclosure again on the same day repeating those concerns and explaining the discomfort she was in.  On 25 June 2014 she said she informed both managers that her post fracture patella injury and lower back were being strained by cramped working conditions, and she put her health and safety concerns in writing on 25 June 2014 by completing a document entitled “Safeguarding Reporting Form”.  She said that the Respondent had a copy of that document.

 

8.                  There was a case management hearing on 16 March 2015 at which Employment Judge Freer clarified the issues.  The Claimant confirmed that the disclosures identified at paragraphs 5 to 7 of the Further and Better Particulars were made verbally and that the one referred to at paragraph 8 was made by email.  She confirmed that she (Reasons, paragraph 6):

“6. … reasonably believed that they tended to show the health and safety of any individual has been or is likely to be endangered further to [the relevant sections].”

 

9.                  After that hearing she provided additional Particulars pursuant to what became paragraph 1 of the Order made by Employment Judge Freer, which required her to supply in writing to the Respondent (with a copy to the Tribunal) full details on how it was argued in respect of each of the four protected disclosures relied on by the Claimant that she reasonably believed that that disclosure was made in the public interest.  She said, so far as is relevant:

“2. I think it would shock the public to know the working conditions I was subjected to after I had broken my knee while at work.  The attached picture confirms these appalling conditions.  The public would be equally appalled to know that I was victimised for expressing my concerns over my health and safety.  For example, I was denied time off to visit my doctor.  I was put on an improvement performance plan for no reason other than to facilitate my dismissal.

3. The public ought to know about Charities who behave in this manner and operate under a culture of bullying.  Some of them paint a glossy picture on their websites asking for donations, but the public should know exactly how some of these Charities treat its [sic] employees, and the type of Charity they are financially supporting.

4. Regarding the element of my complaint that falls under health and safety legislation (the other being a legal obligation), I will argue that it was made in the public interest since the subject matter also presents a threat to the health and safety of others.  It should be noted that there is support in Hansard for this view.”

 

10.              The claims that the Claimant sought to bring were listed for a three-day hearing in July 2015, but in advance of that hearing the case was listed for a Preliminary Hearing at the Respondent’s instigation to consider a strike out and a Deposit Order application pursued by the Respondent.

 

11.              The Preliminary Hearing took place on 27 May 2015.  Limited oral evidence was heard.  None was heard on the Claimant’s side, the applications proceeding principally by way of submissions, but with the benefit of an agreed bundle of documents and some very short evidence, as the Tribunal described it, from Ms Kinnear, the Employment Relations Case Manager for the Respondent, I have assumed that her evidence was not relevant to the issues with which I am concerned, because, as Mr Crow has submitted, it was incumbent on the Tribunal to take the Claimant’s case at its highest given that no evidence was heard from her. 

 

12.              The Tribunal dealt with the public interest disclosure claims at paragraphs 11 to 18.  The Employment Judge observed that the crucial question is what is the meaning of the phrase “in the public interest” relying heavily on Chesterton Global Ltd and Anor v Nurmohamed UKEAT/0335/14 and the policy reasons for inserting a public interest test into the protected disclosure provisions, he identified as a primary consideration the identification of the belief of the particular worker and the fact that it must be a reasonable belief (see paragraph 14).  He said that the public interest test may be satisfied even where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made, provided that the worker believes the disclosure is made in the public interest.  He said there must be some real public interest in communicating and receiving the information or in having the information in the public domain.  At paragraph 17 and 18 he held:

“17. Turning to the schedule - in essence I think the Tribunal should say this first by way of a preliminary point, anything that I say is not because I am being unsympathetic to the Claimant’s personal predicament.  First of all, no one has denied that she sustained a highly unpleasant injury.  Secondly, if these photographs accurately reflect the work station at which she was expected to conduct her business, then the area was extremely cramped.  However, the disclosure which she made (arguably as some of these matters are contentious) on 9 June, 25 June, orally, and then in writing on 25 June, are, in effect, complaints of having to work in a cramped working area in the context in which she was recovering from damaging her knee.  It is most clearly set out in the written complaint which is at pages 60 and 61 of the bundle of material and the relevant text says this: “Annette [the Claimant] has been undertaking office work at the desk in the sleeping room specified by the assistant service manager on 23 June 2014.  The desk area and seating were uncomfortable for me.  I immediately informed my assistant service manager.  There was no room for my legs.  I was advised that the work was to be carried out in the designated area.  I informed both my assistant service manager and service manager I was experiencing back and knee discomfort on 25 June 2014.” ”

“18. I accept that that is of high order of relevance for the Claimant.  What it is not is a matter of public interest and it could not be so even in her belief - even if I am to qualify that by referring to what is her reasonable belief.  I do not believe that it could be in the Claimant’s reasonable belief that these matters amount to ones within the public interest.”

 

The Applicable Law

13.              The legal principles that apply in this appeal are not contentious.  A Tribunal’s power to strike out a claim as having no reasonable prospects of success is contained in Rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.  The threshold is high, as has been emphasised repeatedly and it is an unusual discrimination case where it is appropriate to strike out such a claim without hearing the evidence.  Courts at all levels have stressed the draconian power represented by an Order striking out a claim before the merits have been determined.  Whistleblowing cases have much in common with discrimination cases, involving as they do an investigation into why an employer took a particular action or decision.  As Maurice Kay LJ made clear in the North Glamorgan NHS Trust v Ezsias [2007] IRLR 603 case at paragraphs 30 to 32, Claimants in such cases run up against similar sorts of difficulties as those facing discrimination Claimants.  In the same way that courts have expressed a reluctance to strike out fact sensitive claims of unlawful discrimination in order to avoid injustice, the same or a similar approach has been held to be appropriate in whistleblowing cases.  In Ezsias the Court of Appeal held:

“29. … It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute.  An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. …”

 

14.              There are, of course, cases where taking the central facts at their highest in favour of a Claimant, as they would have to be in circumstances where no evidence is heard, the claim cannot succeed on the legal basis on which it has been advanced.  In such a case the power to strike out a claim can properly be exercised without hearing evidence.  However, where there is a dispute of fact, unless there are very strong reasons for concluding that the Claimant’s view of the facts is simply unsustainable, a resolution of that conflict of fact is likely to be required before the case can be dismissed without a hearing.  As Lord Hope said in the case of Anyanwu v South Bank Students Union [2001] IRLR 305:

“37. … I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence.  The questions of law that have to be determined are often highly fact-sensitive.  The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out.  The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence. …”

 

15.              Against that background the question for me is whether the Employment Judge’s reasoning at paragraphs 11 to 18 discloses an error of law, as the Claimant contends it does.  Section 43B(1) of the Employment Rights Act 1996 was amended by section 17 of the Enterprise and Regulatory Reform Act 2013 with effect from 25 June 2013.  It provides:

“17. In section 43B of the Employment Rights Act 1996 (disclosures qualifying for protection), in subsection (1), after “in the reasonable belief of the worker making the disclosure”, insert “is made in the public interest and”.”

 

16.              In Chesterton Supperstone J, sitting in the EAT, held:

“17. The words “in the public interest” inserted into section 43B(1) of the 1996 Act by the 2013 Act were intended the reverse the effect of Parkins v Sodexho Ltd [2002] IRLR 109 in which it was held that a breach of a legal obligation owed by an employer to an employee under his or her own contract of employment may constitute a protected disclosure.”

 

17.              Supperstone J went on at paragraphs 18 and 19 to discuss the aim and purpose of that amending provision by reference to the debates on the bill as it went through the committee, and he set out in full the Minister’s explanation of the purpose of the clause and why the Government had designed it in such a way as to reverse Parkins v Sodexho.  In particular, the Minister said (as quoted from  paragraph 19 of Supperstone J’s Judgment):

“… It is in the original spirit of the Public Interest Disclosure Act that those seeking its protection should reasonably believe that their raising an issue is in the public interest.  Including a public interest test in the Bill deals with the Parkins … case in its entirety.  Therefore there is no need to disallow claims based on an individual’s contract, as suggested in the amendment.  Indeed, although our aim is to prevent the opportunistic use of breaches of an individual’s contract that are of a personal nature, there are also likely to be instances where a worker should be able to rely on breaches of his own contract where those engage wider public interest issues.  In other words, in a worker’s complaint about a breach of their contract, the breach in itself might have wider public interest implications.”

 

18.              It is common ground that in relation to each of the situations set out at section 43B(1)(a)-(f) for a disclosure to be protected a Claimant whistleblower must establish a disclosure of information that in the reasonable belief of the worker is made in the public interest and tends to show one or more of the situations identified at (a)-(f).  Accordingly, there must be a belief that the disclosure is made in the public interest and a belief that the disclosure tends to show one or more of the relevant situations.  The question is not whether the disclosure is actually in the public interest but whether the worker making it has the belief and whether the belief is reasonable.  Both subjective beliefs must be reasonably held by the worker but yet may be wrong.

 

19.              It is not therefore necessary for a Tribunal to determine the public interest; rather, it is for a Tribunal to determine whether a Claimant’s subjectively held belief that the disclosures were in the public interest was, when objectively viewed, reasonable.  That is a fact sensitive question. That means that what is reasonable in one case may not be regarded as reasonable in another.  The facts in a particular case may show that the worker’s complaint about a matter affecting his or her contract or working conditions may have wider public interest implications.

 

Submissions, Discussion and Conclusions

20.              Mr Crow argues that although the Tribunal made one or two comments that might have led to the conclusion that the Tribunal was engaged in an exercise of determining the public interest, the Tribunal did give itself a correct legal direction as to the law.  Having regard to the whole of the reasoning, I accept that submission.  In addition to correctly directing himself on the law he submits the Employment Judge applied the law to the facts taken at their highest and made no error of law in doing so: this case he submits, is one stage removed from the facts in Chesterton, where, although recognising that the person the Claimant was most concerned about was himself, the Tribunal was satisfied that he did have other office managers in mind who also might be affected by his concerns and that this was sufficient to satisfy the public interest requirement.  Here, Mr Crow contends, there was no group of employees involved.

 

21.              I do not accept those latter submissions.  The Tribunal failed to take the facts at their highest.  The Employment Judge rejected the Claimant’s case that she held the subjective belief for which she contended.  While the Claimant’s disclosures were about her own predicament and the fact that she had an earlier injury that made her working conditions dangerous in her view, she also asserted a belief that others might be affected by the working conditions, and made other assertions, as I have recorded them, that were not tested by evidence and should have been accepted at this stage.

 

22.              To the extent that the Tribunal rejected her belief as not held by her, that conclusion cannot stand, as Mr Crow recognises in the context of a strike out.  However, he submits that it is immaterial to the Judge’s ultimate decision and in fact simply underlines the strength of the Judge’s conclusion on the objective question.  I accept the argument that whilst reaching that conclusion in relation to the Claimant’s subjective view, the Judge did go on to deal with the reasonableness of her belief and whether that belief could in law amount to a reasonable belief that the matters amounted to ones within the public interest so that if that conclusion is sustainable the error in relation to the subjective belief may well be immaterial.

 

23.              Mr Crow submits that even taking the Claimant’s case at its highest, the Employment Judge, while bound to accept that the Claimant held the belief she asserted, was nevertheless entitled to conclude that the Claimant had no reasonable prospect of establishing that her genuinely held belief was reasonably held.  He refers to her written complaint, which related to her position only, and says that there was no finding that the workstation was alleged to be a danger to other employees or the public, and he emphasises that the central facts in this case were undisputed and that this was an approach therefore that the Tribunal was entitled to take.  Mr Crow defines the central undisputed facts by reference only to the disclosures about the Claimant’s workstation and that it was causing her difficulties because of her earlier injury.  The additional matters raised by the Claimant at paragraphs 2 to 4 of the additional Particulars provided, he submits, are not central facts to be taken at their highest but are merely submissions and explanations as to why she believed the wider public interest was in play.  I disagree.

 

24.              It seems to me that this submission does not take the Claimant’s case as a whole, at its highest.  Although the Employment Judge referred at paragraph 4 to the Particulars document I have referred to (and identified it as pages 43 to 45) when he came to set out the facts at paragraph 17 no reference whatever is made to the beliefs asserted by the Claimant as to how the public interest was engaged.  There was an assertion by the Claimant that others could be affected by the same or similar working conditions, and she identified a number of ways in which the public interest was in her belief engaged.  Those factual matters might not be established ultimately, but whether they are or not will depend upon the evidence about how other workstations were organised, how other employees might or might not be affected by cramped conditions and what the Claimant’s belief was about all of that.  Those are questions of fact and degree that will be affected by the evidence and might in the particular circumstances of this case demonstrate that the Claimant’s own alleged complaint had wider public interest implications in the context of other members of the workforce or in the other ways that she asserted it was engaged.

 

25.              It seems to me that this is not a case where the Employment Judge took all aspects of the Claimant’s case at its highest.  The Employment Judge omitted altogether the Claimant’s case as to how and why the public interest was engaged in the paragraph that sets out the evidence the Claimant was advancing, and I am unpersuaded for the reasons just given, that this is a case where it can be said that no reasonable person could have believed that the matters the Claimant was raising engaged the public interest as Mr Crow submits.

 

26.              As HHJ Richardson said when dealing with this case on the sift, and as the Minister observed in the course of the debates in Parliament about this amendment to the whistleblowing regime, it is reasonably arguable that an employee may consider health and safety complaints - even where they are the principal person affected - to be made in the wider interests of employees generally.  Whether that is so in a particular case is a question of fact.  In my judgment, there are disputed facts on the question of public interest in this case that were not capable of determination without hearing the evidence and without resolving one way or another those factual disputes.  In all those circumstances, I am driven to conclude that the Employment Judge erred in law in striking out this case on the basis of legal argument only and without resolving the potential factual disputes.

 

27.              The appeal is accordingly allowed, and the case will continue to be dealt with.  Given the strong views identified by Employment Judge Downs at paragraph 18, it would be wise for the case not to be listed in front of Employment Judge Downs.