“In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”
“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.”
“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”
“RE: Update on SCAS internal student paramedics undertaking the 1 year FdSc at Oxford Brookes As you may be aware, SCAS staff have been attending Oxford Brookes University’s FdSc since 2008. Recently, Oxford Brookes, Health Education Thames Valley and SCAS have agreed to slightly alter the way in which SCAS staff achieve their hours. This recognises their existing operational experience and also supports the additional opportunities being afforded to staff. This September’s 1 year cohort will therefore undertake the following: 1) Attendance of all University teaching days. 2) Supernumerary Hospital placements circa 84hours 3) Supernumerary ambulance placements circa 225 hours 4) Supervised ambulance placements (1:1 with a registrant) circa 446 hours 5) Study time The Curriculum laid out by the College of Paramedics states; “The College of Paramedics accepts that any employing organisation during the transition (2015-2019) period to level 6/SCQF level 10 may continue to develop “in-house” staff to paramedic status. These individuals may not require 100 percent supernumerary placements due to their existing clinical experience. A guide of 225 hours supernumerary per year of clinical practice development will be deemed as sufficient, this equates to 30% of the 750 of a full-time HEI student paramedic”
“Please find attached documents pertinent to concerns raised following a meeting with South Central Ambulance Service managers on30 July 2015 . I am referring this matter to you under Section 7.7.1 of the Trust's Whistleblowing Policy. I have a more than reasonable belief that proposed changes to practice placements of Internal Student Paramedics this year are inappropriate, pose a threat to patients and the reputation of the Trust. Students have been informed that the Health and Care Professions Council have not been notified and have not approved major changes to their degree programme. In failing to inform the HCPC, I believe that the trust is failing to meet it's legal obligations. Further obligations to respond to the cohorts individual and collective concerns have also not been met. Attempts have been made to conceal the events of the past month or so. Ignorance of the concerns of staff that failing to notify the HCPC poses a risk to the public, is, in my view, unethical at best. Before completing and forwarding an 'Education Provider Concern Form' to the Director of Education at the HCPC, I must exhaust internal procedures. Practice Placements begin in October. I would be grateful if you could investigate and respond to all these concerns comprehensively as a matter of urgency. I have enclosed relevant documents to assist you with your investigation. A swift response would be appreciated so that I may be able to determine the Trust's final position on this matter. Please be advised that any undue delay will leave me with no option but to notify the Education Committee so they can assess the changes and ensure protection of the public, my colleagues and I. I look forward to hearing from you soon.”
“28. On29 March 2017 , the claimant sent a letter to Ms Judith Macmillan (HR Manager, Northern Operations) appealing the outcome of the first formal review meeting on18 March 2017 . The claimant’s letter stated that he had made a protected disclosure under the whistleblowing policy in August 2015. In his letter the claimant asked a number of questions about that issue. This was brought to the attention of Ms Dymond (Assistant Director of HR Operations). 29. In his letter dated29 March 2017 the claimant had asked four specific questions about his protected disclosures, Ms Dymond states that she did not know the information to answer the questions in detail. Ms Dymond discovered that the claimant had raised concerns, that an independent investigation had been commissioned, that Professor Williams had considered the contents of the investigation report and relayed the outcome to the claimant. Ms Dymond’s understanding was that the claimant had received, over two years previously, answers to his concerns relating to the reduction in supernumerary hours for Student Paramedic’s practice placements from September 2015. The whistleblowing investigation had concluded 2 years ago and given the time lapse Ms Dymond considered that it was inappropriate to reopen dialogue on this matter. 30. The claimant successfully appealed against the first formal review in April 2017. 31. In November 2017 the claimant again raised issues referring to the letter of29 March 2017 making it clear that he was expecting a response from Ms Dymond who he had been told was looking into the matters raised in the letter. 32. On18 December 2017 Ms Dymond sent an email to the claimant, attaching a letter in response to his recent communications. In the letter Ms Dymond stated that the claimant’s whistleblowing concerns had been handled by Professor Williams and the Director of HR in 2015; that she had not been involved in that process and had no knowledge of the concerns the claimant had raised until earlier in 2017. The letter included the following “Having reviewed your papers and your most recent letters, I can see that in the letter dated 31 May, you were given responses to the questions that you appear to continue to raise and in addition were offered the opportunity to meet with Melanie Saunders should you have continued to have any remaining concerns. Having consulted with Melanie I understand you did not arrange such a meeting. … Considering the above and the time that has elapsed since the response to your protected disclosure, we consider this matter to be closed.” ” “Having reviewed your papers and your most recent letters, I can see that in the letter dated 31 May, you were given responses to the questions that you appear to continue to raise and in addition were offered the opportunity to meet with Melanie Saunders should you have continued to have any remaining concerns. Having consulted with Melanie I understand you did not arrange such a meeting. … Considering the above and the time that has elapsed since the response to your protected disclosure, we consider this matter to be closed.” ”
“3. The claimant robustly criticises the way that the respondent’s witness statements have been prepared by the respondent’s solicitors and says it is not possible to discern where the personal voice of the witness ends, and the drafting voice of the solicitor begins. Having considered the criticisms that are made of the respondent’s solicitor we have concluded that there is no evidence of any improper conduct by the respondent’s solicitor in the preparation of the witness statements. 4. Further we have not been persuaded that such criticism as can properly be made of the way that the witness statements have been drafted, set against the way that the witnesses gave their evidence, establishes that the witness statements have been prepared in a way that has “infected or distorted the true evidence that the witness was capable of giving.” 5. The claimant makes specific criticisms of the evidence given by the respondent’s witnesses in cross examination he asks us to strike out the response and says that no weight whatsoever should be given to the witness statements produced for the witnesses put forward by the respondent. We do not agree there is either a basis to strike out the claim or disallow the respondent’s witness’s evidence. They are to be assessed critically along with the claimant’s evidence. The application to strike out the response is dismissed.”
“Protected disclosures and detriments”, beginning as follows: “104. For the reasons we set out below, other than in respect of disclosure 2 and disclosure 9, the claimant’s disclosures were not protected disclosures because in all instances, other than the claimant’s asserted belief to that effect, the disclosures are not in the reasonable belief of the claimant made in the public interest.”
“114. The claimant stated that the health and safety of patients is forefront in the minds of all employees. The stated role of the HCPC as regulator is also the safety of patients. The claimant knew that patient safety was in the public interest. Bringing to the attention the Trust a potential failure to ensure HCPC approval was obtained for the ‘major change’ in the course would necessarily therefore have been made in the public interest. The respondent says that the claimant has not established that he had reasonable belief that his disclosure was in the public interest. 115. The information conveyed demonstrates the claimant’s knowledge of the requirement for major changes to be notified to the HCPC. Therefore, the claimant held the subjective belief that agreement of the HCPC was required and viewed objectively he could reasonably have held that belief. The respondent contends that the claimant in fact has made any reference to a legal obligation. 116. The claimant’s case is put as follows: understanding the consequences of the potential failure to ensure paramedics were correctly trained to a standard agreed by the HCPC, he believed the information tended to show that (i) the safety of patients could be endangered and (ii) could lead to a breach of the respondent’s legal duty of care to its patients. The claimant says, given the circumstances and facts, he reasonably believed that there would be such a relevant failure. 117. The respondent takes issue with this analysis making several points as follows. That the letter does not set out any specific legal obligation. The respondent states that the claimant’s rationale that patient safety would be endangered by the change is eccentric. He does not suggest that there is any endangerment during the course of the supervision period. Instead, and notwithstanding successful completion of the Course and annual confirmation that the registrant is fit to practice, he points to the risk that the removal of the additional 525 mandatory supernumerary hours paramedics would be unfit to practice. The respondent says that the Tribunal “has been given thin gruel from the claimant as to the reasonableness of belief necessary for s43B ERA 1996.”
“27. First, and at the risk of stating the obvious, the words added by the 2013 Act fit into the structure of section 43B as expounded in Babula (see para. 8 above). The tribunal thus has to ask (a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and (b) whether, if so, that belief was reasonable. 28. Second, and hardly moving much further from the obvious, element (b) in that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured. The parties in their oral submissions referred both to the "range of reasonable responses" approach applied in considering whether a dismissal is unfair under Part X of the 1996 Act and to "the Wednesbury approach" employed in (some) public law cases. Of course we are in essentially the same territory, but I do not believe that resort to tests formulated in different contexts is helpful. All that matters is that the Tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking – that is indeed often difficult to avoid – but only that that view is not as such determinative. 29. Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable.”
“a. The Respondent’s failure to commission a report; b. The Respondent undertook a protracted process; c. The Respondent’s failure to notify the outcome of the report; and d. The Respondent’s failure to take the complaint dated 29 March seriously.”
“a. As a consequence of the meetings orchestrated by Mrs Gregory in November 2018; b. As to the failure of Ms Saunders (head of HR and director of the Respondent) to prevent ongoing victimisation; c. As regards the Respondent’s asking Thames Valley police to locate the Claimant; and d. As regards the failure of the Respondent to follow the grievance policy and not preventing occupational health contacting the Claimant.”
“Whether the tribunal has power to award compensation for non-pecuniary loss in respect of protected disclosure detriments.”
“This allocation is for determination of liability and remedy but it is a matter for the hearing Tribunal whether to deal with these separately.”
“Pursuant to earlier case management orders, the ET was directed to address a question of law, namely whether s49 ERA 1996 enables an ET to make injury to feelings awards. It heard full arguments from both parties. This was the sole head of loss relied upon for the pre-dismissal detriment claims. The EAT is respectfully asked to provide guidance on the question of law which shall prove necessary to revisit should the appeal succeed. The Respondent suggests it is in accordance with the overriding objective for the matter to be determined by the appellate tribunal in any event.”
“Further, in the absence of finding of facts, the cross-appeal is academic.”
“An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal under or by virtue of-”
“Upon a first reading of the words of section 136 (1), we can see that there might well be some force in the argument and that appeals under that subsection could lie to this appeal tribunal on points of law decided by an industrial tribunal in the course of proceedings before them, even though the appellant was not seeking to challenge the ultimate result.”
“Having considered the matter carefully, however, we have come to the conclusion that it is inherent in any appeal that the appellant must be seeking to set aside the decision, judgment or order, whatever it may have been of the tribunal . below, and that it would need very clear words to entitle a party to any proceedings to appeal to an appellate tribunal on the basis that although the decision below was right, nevertheless the reasons for it were wrong. We have come to the conclusion that, notwithstanding that the wording of section 136 (1) is arguably open to a wider construction, the proper view is that it comprehends only appeals which attempt to disturb the order of the industrial tribunal.”
“54. … firstly, that we are being asked to construe a Statutory Instrument deriving from the European Directive on Age Discrimination. In my judgment, the construction and interpretation of material emanating from Parliament is both a matter of public importance, and one of this court’s proper functions. 55. Secondly, although these are private as opposed to public law proceedings, and although there is no immediate lis between the parties, the point is not academic, and if not resolved by this court will lead to a dispute between the company and the union, who do not agree on it. In this respect, the case seems to me to be analogous with Kay . 56. Thirdly, the point is one of some importance, and is likely to affect a large number of people both employed by the company and beyond. Fourthly, the propriety of proceeding has been considered by two judges of the High Court, Bean J and Sir Thomas Morison. The former deemed the Part 8 procedure appropriate: the latter determined the issues before him. There has been no appeal against or challenge to Bean J’s decision. 57. Finally, and I accept that this is a pragmatic point, we are being asked (by both parties) to hear the appeal, and it has been fully argued both before the judge and before us. Both we and counsel have invested a substantial amount of time in it.”
“Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean 'may') be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated.”