EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Judgment handed down on 8 March 2018
DR M PATEL APPELLANT
SURREY COUNTY COUNCIL RESPONDENT
Transcript of Proceedings
Direct Public Access
For Mrs K Metcalf
Royal College of Nursing
Legal Services Department
20 Cavendish Square
For Surrey County Council
MR PETER DOUGHTY
Surrey County Council
VICTIMISATION DISCRIMINATION - Whistleblowing
VICTIMISATION DISCRIMINATION - Dismissal
UNFAIR DISMISSAL - Constructive dismissal
The Employment Tribunal erred in their approach to whether admitted detriments were done on the grounds of admitted protected disclosures within the meaning of section 47B of the Employment Rights Act 1996. They failed to apply the approach explained in Fecitt v NHS Manchester  IRLR 64 of deciding whether the protected disclosure materially influenced the related detriment. Further the Employment Tribunal erred in adopting a 'rolled up' approach to the disclosures and failed to make findings of fact in relation to each. They failed to adopt a structured approach to deciding the claims as recommended in Blackbay Ventures Ltd v Gahir  IRLR 416. They did not relate each disclosure by date and content to each detriment by date and content. Further they erred in observing that no comparators had been advanced when none were needed. These errors also affected their decisions to dismiss the constructive and automatically unfair dismissal claims. Claims remitted to a differently constituted Employment Tribunal.
THE HONOURABLE MRS JUSTICE SLADE DBE
The Relevant Facts in Outline
Dr Patel: Summary of Detriments Alleged
"556.1. 19 September 2013 - adoption of a non-clinician, Mr Pearson, with no experience in clinical matters to investigate the concerns lodged with Expolink.
556.2. 4 October 2013 - Mr Pearson failed to investigate the complaints as required in the Respondent's whistle-blowing policy including a failure to interview the Claimant or review supporting evidence.
556.3. 11 December 2013 - provision of redacted report from Santia. Report confirmed breaches of statutory obligations and poor clinical governance. Respondent still refused to investigate Expolink concerns.
556.4. 20 December 2013 - Respondent declined permission for Dr Patel to provide redacted audit report to NMC.
556.5. Ongoing failure to investigate protected disclosure about Ms Brammer's conduct/ competence. Dr Patel demeaned, harassed and side-lined by failure to take concerns seriously."
"EHBD / Grievance procedure - failure to investigate grievance
564. The complaints about this matter were set out in paragraphs 28 - 30, 31, 32 and 33 of the claim form. The allegations of the Respondent's acts or failures to act in respect of Dr Patel were as follows:
564.1. That on 30 September 2013, contrary to the Respondent's published EHBD Policy, Dr Patel was refused a Route C formal investigation and told to attempt to resolve matters informally.
564.2. That the Respondent continued pressure for informal facilitation discussion on 18 October, 23 October and 12 December 2013 despite requests for a Route C formal investigation.
564.3. Disclosure of personal information to a mediator without consent.
564.4. Continued failure to investigate the EHBD grievance."
"566.1. Mr Reale commissioned from Santia.
566.2. Terms of reference lacked impartiality and objectivity.
566.3. Respondent failed to facilitate a meeting between MP and DR to address protected disclosures in an impartial and objective manner.
566.4. Respondent refused to provide an unexpurgated version of Mr Reale's report until 10 March 2014, after FOI request."
"580.1. Despite recommendation of OH, Respondent continued to fail to commission an investigation under the EHBD policy and Expolink concerns re conduct/competence of Ms Brammer.
580.2. Unreasonable expectation that Dr Patel should return to work without a formal investigation to protect her health and well-being."
"586.1. On 16 January 2014 the response from Respondent only addressed selective aspects of questionnaire. Document not sent to OH Physician.
586.2. Failure to action recommendations from Occupational Health in Dr Tomlinson's report of 26 November 2013.
586.3. Failure to act on stress risk questionnaire and so safeguard health and welfare and take action to mitigate workplace stress."
Mrs Metcalf: Summary of Detriments Alleged
"504.1. That on 21 August 2013 a probationary performance review was scheduled contrary to the contract of employment stating that Mrs Metcalf was not subject to a probationary period;
504.2. That on 6 September 2013 a development need was recorded directing Ms Metcalf to raise concerns with her manager rather that (sic) with others in the team;
504.3. That on 18 October 2013 a decision was made to maintain the probationary review and a flawed reason was given; and
504.4. That on 28 November 2013 Mrs Metcalf's probation was extended contrary to the terms of [her contract] and contrary to the Respondent's contract of (sic) employment policy."
"518.1. That on 30 September, contrary to the Respondent's published EHBD Policy and the stated request of Mrs Metcalf, Mr Pearson advised resolution of complaints by informal further facilitated discussion.
518.2. That on 4 October 2013, contrary to Policy, Mr Pearson asserted that he reserved the right to choose the informal option for resolution of the complaint. Further he refused to take any action to address the specific complaints of bullying and harassment if the Claimants declined to engage with Route B, the informal resolution.
518.3. That the Respondent disclosed personal information to a mediator without the Claimant's consent.
518.4. That the Respondent continued to fail to investigate the EHBD grievance."
"530.1. That the Respondent failed to facilitate a meeting between Mrs Metcalf and Mr Reale.
530.2. That there was an ongoing failure by the Respondent to investigate conduct and/or competence concerns about Ms Brammer; and that the Audit was confined to issues of clinical governance.
530.3. That the Respondent disclosed a partial version of Mr Reale's report and failed to provide an unexpurgated version until 10 March 2014, after a Freedom of Information ("FOI") request."
"540.1. Failure to implement OH advice and recommendations dated 26 November 2013;
540.2. Disclosure of partial version of Mr Reale's report on 11 December 2013;
540.3. Failure of Mr Pearson to meet with Ms Metcalf on 13 December 2013 or subsequently to discuss Mr Reale's report;
540.4. Requirement to return to work under Ms Brammer without assurances that concerns would be addressed and any appropriate action taken;
540.5. Refusal of further request for special leave on 6 January 2014;
540.6. Communication to Dr Patel on 8 January 2014 (pp1454-1460) that no further investigation would be carried out into Expolink or EHBD complaints;
540.7. Failure to update Mrs Metcalf on action taken to address concerns about OH Service and management as agreed by 9 January 2014."
"1. In respect of the First Claimant, Dr Patel
1.1. By a majority, all complaints of whistle blowing detriments were not well founded and were dismissed.
1.1.1. The judgment of the minority of the Tribunal (Mr G Henderson) was that the First Claimant's detriment complaint in respect of the failure to formally investigate the EHBD grievances was well founded.
1.1.2. All other complaints of whistle blowing detriments and dismissal were not well founded and were dismissed.
2. In respect of the Second Claimant, Mrs Metcalf
2.1. By a majority, all complaints of whistle blowing detriments were not well founded and were dismissed.
2.1.1. The Judgment of the minority of the Tribunal (Mr G Henderson) was that the Second Claimant's detriment complaints in respect of the probationary review meeting on 22 August 2013, the extension of the probation period on 28 November 2013; and the failure to formally investigate the EHBD grievances were well founded.
2.2. By a majority, the whistle blowing constructive unfair dismissal complaint was not well founded and was dismissed.
2.2.1. The Judgment of the minority of the Tribunal (Mr G Henderson) was that by reason of the imposition of the probation process in August 2013 and the subsequent extension of the probation period in November 2013 respectively as whistle blowing detriments, the Second Claimant was constructively dismissed.
3. In respect of both Claimants, all other complaints ("the money claims") were dismissed on withdrawal."
The Grounds of Appeal
Ground 1 - Failed to make necessary findings about each protected disclosure
"On grounds of proportionality therefore, we only set out the findings of fact which we made in respect of the disclosures, if it was necessary to do so to explain our findings on credibility or on some other substantive issue "
Ms Musgrave submitted that their observation in paragraph 60 that the ET adopted her analysis in paragraphs 15 to 65 of her closing submissions was inconsistent with that in paragraph 57 that "for the most part, the nine disputed disclosures had been made". The ET failed to state, as she had submitted was required, which of the disclosures they found had been made and which had not.
" this conversation was fairly low level and that Ms Brammer would not have interpreted this as a protected disclosure."
Counsel submitted that it is irrelevant whether Ms Brammer "interpreted" the disclosure as a protected disclosure. Either it was or it was not.
Ground 2 - Erroneously disregarded disclosures made to Dr Patel
Ground 3 - Failed to apply the correct legal test of causation to the claims of whistleblowing detriment and provide adequate reasons (S47B Employment Rights Act 1996)
"51. I entirely accept that where the whistleblower is subject to a detriment without being at fault in any way, tribunals will need to look with a critical - indeed sceptical - eye to see whether the innocent explanation given by the employer for the adverse treatment is indeed the genuine explanation. The detrimental treatment of an innocent whistleblower necessarily provides a strong prima facie case that the action has been taken because of the protected disclosure and it cries out for an explanation from the employer."
On the issue of drawing an inference of detriment being materially influenced by a protected disclosure Ms Musgrave also referred to paragraphs 7, 14 and 25 of Anya v University of Oxford  IRLR 377.
Ground 4 - Misdirected themselves as to the Appellant's case of the breach of the implied term of trust and confidence causing her constructive dismissal (s103A ERA 1996)
" Mrs Metcalf left because she did not believe that she had got the assurance that she would be returning to work in a professional and clinically safe environment, not because she had made the disclosures."
"When Mrs Metcalf and Dr Patel were discussing Ms Metcalf's concerns (the whistle blowing disclosures to Dr Patel), on 10 July 2013 after the meeting between Dr Patel and Ms Brammer, Ms Brammer overheard the conversation. Ms Brammer interpreted the conversation as what she described as "side conversations" that were critical of her management and flexible working arrangements."
Counsel pointed out that the conversation between the First Claimant and Ms Brammer on 10 July 2013 was not pleaded as a protected disclosure. On the findings of fact the "side conversations" overheard by Ms Brammer were about her management. The ET accepted at paragraph 510 that such criticisms could lead to a very dysfunctional team.
" Once an employer satisfies the tribunal that he has acted for a particular reason that necessarily discharges the burden of showing that the proscribed reason played no part in it. "
"Further, while the timing of the review meeting was consistent with Mrs Metcalf's perception that it was triggered by the difficult Clinical Team meeting on 21 August, it was also fully consistent with the Respondent's case. "
The ET referred to additional matters including at paragraph 508:
" The only real difficulty which had arisen between Ms Brammer and Mrs Metcalf by 21 August was the awkward conversation about 'side conversations' on 10 July in Dr Patel's office. "
Accordingly Mr Doughty submitted that the conclusion of the majority of the ET in paragraph 509 that:
"In all the circumstances, the majority of the Tribunal did not consider that Ms Brammer called Mrs Metcalf to a probationary review meeting because she had made protected disclosures."
was consistent with the approach in paragraph 41 of Fecitt. The majority accepted at paragraph 317 that in October 2013 Ms Mills believed as did the Second Claimant that Mr Pearson had stated in a letter of 18 October 2013 to the Second Claimant that she was subject to a probationary period although the letter said that she was not. The majority held the letter was not very clearly worded. It was said that this finding supported the assertion by Ms Brammer that she did not know the Second Claimant was not subject to a probationary period.
" This was an example of the Respondent acting in accordance with the culture of dealing with matters in an informal way in the first instance before progressing to a formal process."
showed their acceptance of the explanation given. Counsel contended that a causation test is a motivation test. As the majority had accepted the innocent motive of the Respondent in refusing the Claimants' choice of using the formal Route C for dealing with their grievances they had not erred in holding that the detriment was not caused by protected disclosures.
"535. that the reason for the Respondent taking the approach they did in terms of commissioning the Santia audit and its remit were appropriate and reasonable in the circumstances. There were no good grounds for looking for another explanation for their actions. We accepted Mr Doughty's closing submissions on this issue at paras 279 and 280."
Ground 1 - Causation - Material Influence
Ground 2 - Erroneously adopting a 'rolled up' approach to protected disclosures
14 August 2013 to Liz Mills (re outdated policies) (ET 53.9.2)
21 August 2013 to Ms Brammer (re failure re maintaining medical records) (ET 53.6.2)
21 August 2013 to Ms Brammer (re outdated OH policies) (ET 53.9.2)
23 September 2013 to SCC (the Respondent) (re resulting detrimental treatment by Ms Brammer) (ET 53.13.2)
1 October 2013 to SCC (re inadequate dermatitis and hearing surveillance) (ET 53.2.2)
Ground 4 - Firemen's concerns
"On a complaint under subsection (1) it is for the employer to show the ground on which any act, or deliberate failure to act, was done."
The Respondent has to establish a positive case before they can benefit from the approach in Fecitt paragraph 41 to discharge of the burden of showing that the proscribed reason played no part in their decision. Ms Robertson contended that the ET have to consider the factors relied upon by the Claimant to decide whether an inference should be drawn that a protected disclosure had a material influence on the decision on a detriment.
" informed Dr Patel that she had found her to be overly critical of the department and by inference of her management of the department. "
Disclosures of deficiencies in the operation of the OH Department were perceived as criticism of Ms Brammer. Actions taken against the First Claimant in response could be interpreted as 'protecting Gerry', Ms Brammer. There was, for example, no good explanation for the Respondent not providing the First Claimant with an unredacted Santia report (an audit of the OH Department). The report was critical of the department and also expressly or by inference of Ms Brammer.
"It was notable in this case, that there was no comparator evidence at all put forward by the Claimants in support of their various contentions that their treatment was by reason of having made protected disclosures."
Ms Robertson made the simple but important point that no comparator is required when considering ERA section 47B. All that is required is that detrimental treatment is materially influenced by a protected disclosure. Ms Robertson submitted that the comparator point was applied to all the complaints. This was a fundamental error.
Ground 1 - Material Influence
Ground 2 - Erroneously adopting a rolled up approach to protected disclosures
" It appeared that the Respondent took the responsible line in relation to this"
rather than making a finding as to why they took that action. The ET observed at paragraph 577 that the extension of probation beached the Respondent's policy but the reason for it was genuine, not related to whistleblowing and was not detrimental to the First Claimant. Accordingly the decision should be upheld.
Ground 5 - Considering contemporaneous perception
Ground 6 - Comparators
Grounds 8.8 to 8.10 - Inadequate findings of fact/reasons
Discussion and Conclusion
"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."
All parties agreed that the approach to be adopted to the interpretation and application of section 47B has been explained in Fecitt. Whilst it is the Statute rather than any authority which is to be applied, the guidance in Fecitt is to be followed. Lord Justice Elias held:
"45. s.47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower. If Parliament had wanted the test for the standard of proof in s.47B to be the same as for unfair dismissal, it could have used precisely the same language, but it did not do so."
"41. Once an employer satisfies the tribunal that he has acted for a particular reason - here, to remedy a dysfunctional situation - that necessarily discharges the burden of showing that the proscribed reason played no part in it. It is only if the tribunal considers that the reason given is false (whether consciously or unconsciously) or that the tribunal is being given something less than the whole story that it is legitimate to infer discrimination in accordance with the Igen principles. "
1. Each disclosure should be identified by reference to date and content
2. The alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered or as the case may be should be identified.
4. Each failure or likely failure should be separately identified.
5. It is not sufficient for the employment tribunal to simply lump together a number of complaints Unless the employment tribunal undertakes this exercise it is impossible to know which failures attracted the act or omission said to be the detriment suffered. If the employment tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest of act or deliberate failure to act it is of course proper for an employment tribunal to have regard to the cumulative effect of a [number] of complaints providing always [they] have been identified as protected disclosures.
7. Where it is alleged that the claimant has suffered a detriment, short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the claimant. "
All counsel agreed that Employment Tribunals should adopt the structured approach to claims under ERA section 47B set out in Blackbay.
Failure to apply the correct legal test to whether the detriment was on the ground of making a protected disclosure
First Claimant - Ground 1
Second Claimant - Ground 3
"It appeared to the Tribunal that a number of redactions had been made because the Respondent was sensitive about the possibility of the Claimants seeing information which was critical of their manager in circumstances which were inappropriate. "
The ET held at paragraph 367 that the Santia report showed that the Claimants' clinical concerns were well founded.
" there had been a breakdown in trust and confidence within the Clinical Team stemming essentially from concerns raised about Ms Brammer's practice not being in keeping with the best medical practice and in line with the NMC code of practice and RCN framework on OH Nurse competence development. "
"In her EHBD complaint she alleged that in raising concerns internally about Ms Brammer's role as OH Manager, she had been victimised. "
Matters reported in the complaint were:
"275.1. Not responding to valid concerns raised about clinical issues "
"As stated above, the Respondent had a duty as an employer also towards Ms Brammer, not to breach the mutual trust and confidence between them. They had to balance this with their other duties. "
" There was no evidence from which we could properly conclude that the reason for insisting that this path was followed was because the Claimants had made protected disclosures. "
Failure to make necessary findings about each protected disclosure
First Claimant - Ground 2
Second Claimant - Ground 1
" It was not proportionate to make individual findings about each and every disputed disclosure. "
It is not possible to know which disputed disclosures were not accepted in light of the ET saying that "for the most part, the nine disputed disclosures had been made".
"Having set out our detailed findings of fact above, the facts and conclusions are set out below in relation to each of the complaints."
The ET then in paragraphs 496 to 501 set out the minority opinion of Mr Henderson in relation to the probationary review detriment and constructive unfair dismissal of the Second Claimant and the failure to progress both Claimants' grievances by Route C of the EHBD. That section showed at paragraph 496 that the minority dissenting member adopted the correct test of whether a detriment was materially influenced by the raising of protected disclosures.
" The full report was appropriately used by the Respondent as a basis for supporting Ms Brammer, for an improvement plan and a follow up report. The report was acted upon but not in the way Dr Patel wanted. This had nothing to do with the whistle blowing."
Erroneously disregarded disclosures by the Second to the First Claimant
Second Claimant - Ground 2
First Claimant - Ground 6
"It was notable in this case, that there was no comparator evidence at all put forward by the Claimants in support of their various contentions that their treatment was by reason of having made protected disclosures."
In addition to repeating the error of adopting the unfair dismissal, reason or principal reason, test, the emphasis placed on the absence of a comparator indicates a further error. Consideration of a comparator is not ruled out. They may be of assistance in some cases in deciding whether a detriment was materially influenced by a protected disclosure. However no comparators are required to establish a section 47B claim.
Conclusion on dismissal of ERA Section 47B complaints
Dismissal of claim by First Claimant for unfair dismissal under ERA section 103A
First Claimant - Reliance on grounds of appeal 1 to 8
" Dr Patel was not going to come back to work and it did not appear that she was prepared to accept that the Respondent was working effectively on the issues highlighted "
As the ET erred in concluding that the First Claimant did not suffer detriments which were materially influenced by protected disclosures which criticised Ms Brammer and Ms Brammer was to remain as head of the OH Department, the basis for the dismissal of her Claim under ERA section 103A falls away.
Second Claimant - Ground 4
123. (1) The appeal of the First Claimant from the dismissal of her claims under Employment Rights Act 1996 section 47B succeeds. The decision of the Employment Tribunal to dismiss her claims is set aside.
(2) The appeal of the First Claimant from the dismissal of her claim for automatically unfair dismissal under Employment Rights Act section 103A succeeds. The decision of the Employment Tribunal to dismiss her claim for unfair dismissal is set aside.
(3) The appeal of the Second Claimant from the dismissal of her claims under the Employment Rights Act 1996 section 47B succeeds. The decision of the Employment Tribunal to dismiss her claims is set aside.
(4) The appeal of the Second Claimant from the dismissal of her claim for unfair constructive dismissal under Employment Rights Act section 103A succeeds. The decision to dismiss her claim for unfair constructive dismissal is set aside.