Mr S Ibrahim v HCA International Ltd: 2200223/2017

EMPLOYMENT TRIBUNALS

Case No 2200223/2017

Between

Mr S IbrahimClaimant

HCA International LtdRespondent

Before

Employment Judge Ayre

In person for claimant

Mr. K Bryant (instructed by Counsel) for respondent

Date 4 November 2024

JUDGMENT

[1]The claimant was not an employee of the respondent.

[2]The complaint of sex discrimination was presented outside the primary limitation period and it is not just and equitable to extend time.

[3]The claimant’s grievances dated 15 and 22 March did not amount to protected disclosures.

[4]The claim for unlawful deduction from wages does not have reasonable prospects of success and is struck out.

[5]As a result of the above conclusions, there are no outstanding substantive issues and the claim is dismissed.

REASONS

[6]By claim form dated 24 January 2017 the claimant brought claims of:- 6.1. unfair dismissal 6.2. wrongful dismissal 6.3. whistleblowing 6.4. breach of contract 6.5. sex discrimination; and 6.6. unlawful deduction from wages.

[7]All of the claims were resisted by the respondent.

[8]A preliminary hearing took place on 4 May 2017 to consider the issues in the case and make case management orders. It was agreed at that preliminary hearing that an open preliminary hearing would take place to consider the issues set out at paragraph 6 above. A second preliminary hearing was therefore listed for 14th and 14th June 2017.

The issues

[9]The issues that fell to be determined at the second preliminary hearing were as follows:- 9.1. Was the claimant an employee for the purposes of the Employment Rights Act 1996 (“the ERA”)? The respondent concedes that the claimant was a worker. 9.2. Is the allegation of sex discrimination relating to an incident on 8 June 2014 out of time? If so, was the complaint presented within such other period as the Tribunal considers just and equitable? 9.3. In his grievances of 15 and 22 March 2016, was information disclosed which in the claimant’s reasonable belief tended to show one of the following? 9.3.1. an unidentified person had failed to comply with a legal obligation to keep patient information confidential; 9.3.2. a miscarriage of justice had occurred in that the claimant had been falsely accused. 9.4. If so, did the claimant reasonably believe that the disclosure was made in the public interest? 9.5. Should the claim for arrears of pay be struck out as having no reasonable prospect of success? 9.6. The parties agreed that if the Tribunal found for the respondent on the above issues, there would be no remaining substantive issues for the Tribunal to consider, and the claim would fail. The proceedings.

[10]There was a bundle running initially to 461 pages, but which was not an agreed bundle. The claimant’s position was that not all relevant documents had been included in the bundle. The respondent’s position was that many of the documents in the bundle had been included at the request of the claimant but were not relevant to the issues to be determined at the preliminary hearing. Additional documents were added to the bundle, by agreement, at the beginning of the preliminary hearing.

[11]At the start of the preliminary hearing the claimant made an application for an order that the respondent disclose additional documents. The Tribunal ordered the respondent to carry out a further search of its HR files to try and find any notes of meetings between the claimant and Lesley Pope on 15 March 2016 and between the claimant and Sheila Johnson on 22 March 2016.

[12]At the beginning of the second day of the hearing Mr. Bryant, on behalf of the respondent, informed the tribunal that searches had been carried out by the respondent and that no notes had been found of the meetings on 15 and 22 March 2016.

[13]The Tribunal heard evidence from the claimant, from Mr. Rashid El Sheikh, who attended pursuant to a Witness Order, and, on behalf of the respondent, from Mr. Troy Coldrick, Head of UK & International Relations at The Wellington Hospital.

[14]At the outset of the preliminary hearing the claimant indicated that he intended to call Ms El Basri, his fiancée and former colleague, to give evidence on his behalf No witness statement had been prepared for Ms Basri and the respondent objected to her giving evidence without a witness statement. The claimant was given time to consider his position, and informed the tribunal that he did not wish to call Ms Basri to give evidence at the preliminary hearing, but that she would be giving evidence at the final hearing.

[15]After lunch on the second day of the preliminary hearing the claimant was accompanied by Mr. Livingston of ELIPS. Mr. Livingston told the tribunal that he had had limited time to speak to the claimant and asked for a short adjournment to enable him to advise the claimant further. An adjournment was granted and following the adjournment, by agreement, Mr. Livingston assisted the claimant with his cross-examination of Mr. Coldrick.

[16]Both parties produced skeleton arguments. At the conclusion of the evidence, given the lateness of the hour, it was agreed that the parties would send in written submissions. Both parties sent in detailed written submissions, for which the tribunal is grateful.

Findings of fact

[17]The respondent is a provider of private healthcare which operates a number of hospitals including the Wellington Hospital in London.

[18]The respondent provides private medical care to patients, including a large number of patients for whom English is not their mother tongue, and who need a translator to be able to understand conversations in English.

[19]The claimant is a fluent Arabic speaker and was engaged by the respondent as a ‘Bank Member’ providing translation services. His title was originally ‘Interpreter’ but subsequently changed to ‘International Patient Co-ordinator’. The respondent engaged a number of Bank Interpreters and also employed a number of employees who were carrying out the same role or a very similar role to the claimant.

[20]There was a dispute as to when the claimant began working for the respondent. The claimant says it was in 2008, the respondent in 2009. The claimant’s start date is not relevant to the questions that the Tribunal has to determine, so the Tribunal makes no findings on that issue. The claimant ceased working for the respondent in October 2016.

[21]The claimant’s managers during the time that he worked for the respondent were Ms Ilham Mohamed and Mr. Troy Coldrick.

[22]In March 2008 the claimant signed a Bank Membership Form which contained statements to the effect that the respondent was not under any obligation to provide employment nor was there any guarantee of regular employment or any entitlement to sickness benefits. The document also stated that membership of the Bank could be terminated at any time by either party.

[23]In September 2012 the respondent sent a number of documents to the claimant including a document headed “Appointment to the HCA Bank (non-Contracted) Terms & Conditions’. The document set out the terms that applied to membership of the HCA Bank, which included the following:- “HCA is under no obligation to offer work to Bank Members and a Bank Member is not obliged to accept any offer of work. Bank membership may be terminated at any stage and without notice by HCA or the Bank Member. Bank Members are not classified as employees of HCA and are not entitled to Company benefits. Bank Members are able to work across all of HCS’s facilities and/or work for other organisations. HCA reserves the right to cancel advanced bookings (i.e. within 2 hours of commencement of the shift) if circumstances are such that additional help is not required… There is no guarantee of regular work as a Bank Member…”

[24]The claimant signed this document on 9th September 2012 agreeing to its terms. On the same day he signed a Confidentiality and Security Agreement. That agreement contained, below the claimant’s signature, a line beginning ‘Status’ and containing a number of options including “Employee”, “Contract” and “Temporary Staff”. The claimant selected the “Temporary Staff” category rather than the “Employee” category when completing the form.

[25]The claimant worked for the respondent regularly and consistently over a number of years. He worked in a team which included employees as well as bank staff. His working hours varied, as did the number of days he worked each week. In 2016 the number of hours he worked each month ranged from 162 in January to 89 in June.

[26]In 2014 the claimant raised the issue of his working hours with his manager, Ilham Mohamed. He told her that he was unhappy that he wasn’t been given the hours that he wanted, as he needed to work at least 30 hours a week. The respondent tried, where possible, to provide him with 30 hours a week, but explained to him consistently that there were no guarantees.

[27]In early 2016 the respondent introduced a policy of allocating overtime shifts to employees in preference to bank staff. This, together with a fall in the number of patients from the Middle East, resulted in a reduction in the amount of work available for bank members such as the claimant.

[28]The claimant was not guaranteed any work or particular hours. At times more work was available for bank staff than at others. The respondent explained to the claimant on several occasions that he could not be guaranteed particular hours. For example, on 26 April 2016 Ilhan Mohammed wrote to the claimant “Thank you for your email regarding the additional hours. We will try to accommodate your request where possible, but cannot guarantee the availability of these hours on a regular basis…”

[29]In May 2016 Lesley Pope told the claimant in an email “As I explained when we met, the hours available to bank staff has reduced with the drop in Middle Eastern patients throughout the hospital.”

[30]The claimant was free to take time off as and when he wanted to and often chose to do so at short notice. He was not required to submit holiday requests, or to seek permission to take time off – he merely had to inform the respondent that he would not be working, so that the respondent could find someone else to work.

[31]There were numerous examples in the bundle of emails sent by the claimant to the respondent informing the respondent that he would not be at work at short notice. For example:- 31.1. On 28 March 2016 the claimant wrote to Mr. Coldrick that “I would like to inform you that I will be away for one week from Tues 29th March 2016 until Mon 4th April 2016, due to unforeseen circumstances.” 31.2. On the evening of 31 May the claimant informed Ilham Mohamed by email that he would not be able to work a shift the very next day – 1st June and also that he would be away from a week beginning on 2nd June. 31.3. On the afternoon of Sunday 12 June 2016 the claimant sent an email to Ilham Mohamed informing her that he would not be able to work on the 13th or 14th June. The response from Ms Mohamed was “Thank you for your email yesterday and have a nice two days off...”

[32]The claimant was able, to some degree, to specify the hours that he would work. For example, on 19th June 2016 he wrote to the respondent stating that he would only be able to do certain days and hours that week and would not be able to work on other days or times. The respondent replied, asking him to let them know when he was available to work by Wednesday each week.

[33]Ms Mohamed wrote to the claimant again on 22 June asking him to tell her what days he was available for the following week, so that the respondent could finalise the rota. The claimant responded that he was unable to tell the respondent what days he would be available because he did not yet know.

[34]At 21.50 on the evening of Sunday 17 July the claimant sent an email to Ms Mohamed telling her that he would not be able to work on Monday 18th or Tuesday 19th July. Two weeks later on Sunday 31 July he wrote to Ms Ilham to tell her that he was not able to work on the following 2 days.

[35]On Saturday 1 October the claimant wrote to Ilham Mohammed asking why he had been rostered to work in Rehab rather than ‘Hospital Bleeps’ and why he had not been given certain shifts. When Ms Mohamed did not reply by Sunday 2 October the claimant wrote to her telling her that as she had not replied, he was not able to work on Monday or Tuesday.

[36]The claimant was free to accept or decline work as he saw fit.

[37]In late 2015 the respondent advertised for two permanent International Patient Co-ordinators who would be employees of the respondent. The claimant was encouraged to apply for the roles as his performance had, to date, been very good and he was well regarded.

[38]The claimant applied and was interviewed for the roles. His application was successful and he was offered one of the roles. The claimant did not accept the offer because the salary of £25,000 was, in his view, too low and below what he was earning as a bank worker. The claimant wanted a salary of £36,000 a year, and when the respondent did not offer him that much, he declined the offer and chose to remain working for the respondent as a member of the bank.

[39]Mr. El Rashed gave evidence to the Tribunal. He works for the respondent as an Arabic interpreter. He was originally engaged as a bank worker but subsequently became an employee.

[40]He gave evidence, which the Tribunal accepted, that after he moved onto an employment contract with the respondent:- 40.1. he had regular hours of work; 40.2. he was paid a fixed salary; 40.3. his hourly rate was lower than that of bank staff; 40.4. he was provided with benefits such as health insurance, childcare vouchers, cycle to work scheme and travel insurance; 40.5. he was provided with access to the respondent’s pension scheme; 40.6. he had a set holiday entitlement (as opposed to when he was a bank worker and could take as much time off as he wanted)

[41]Mr. El Rashed also gave evidence that when he was a member of bank staff he was not required to get express approval for holidays, although in practice he would tell his manager when he would be off.

[42]He also told the tribunal that as a member of bank staff he could say ‘no’ to work and was not obliged to accept it when it was offered to him. He accepted that on occasions he had turned down the offer of work, and that there were no penalties except that if he turned down work too often the respondent may not call him and ask him to work as often.

[43]On 15th March 2016 the claimant met with Lesley Pope, the Director of Rehabilitation. The claimant asked her to investigate two issues that he was concerned about. The first was his belief that there were rumors that he (the claimant) had been involved in a breach or breaches of patient confidentiality, and the second was that that Ilham Mohammed had behaved in an unprofessional manner towards him.

[44]On 16th March the claimant sent an email to Lesley Pope to follow up on their meeting the previous day. In that email he wrote:- “…I would like you to launch a formal investigation into the following two matters, which might be linked to each other or totally different matters, only an investigation will tell! First, to investigate into the rumors among the International patients and their families about my confidentiality and performance (I informed you before that I was blamed by some families for disclosing patients confidential information, but unfortunately they refused to make a complaint against me, although I tried with them to do so. I explained to you that I cannot accept this as a settlement and I need to clear my name otherwise I will not be able to do my work properly. Second, I told you that I had a feeling that I was ‘kicked out of my office’ and as the time passes my feeling gets stronger and stronger. I accused Ilham of a major misconduct i.e. She took an action against me without giving me the chance to defend myself, and that she has been slandering me to my colleagues”

[45]Lesley Pope referred the matter to the respondent’s HR team. On 22nd March Sheila Johnson, Chief Human Resources Officer, met with the claimant and Nezha Elbassri. The claimant told Ms Johnson that he felt degraded, humiliated, shocked and confused, and that he believed there were rumors among patients and their families that he had been leaking patients’ confidential information. He told her he wanted to clear his name and restore his reputation. Ms Johnson asked the claimant to prepare a document setting out the concerns that had been raised, and told him that she would then start an investigation.

[46]The claimant wrote to Ms Johnson on 28th March summarising his main concerns as being– “the rumors around the hospital accusing me of breaching the patient confidentiality policy” and “my relationship with my line manager – Ilham”. He went on to describe Ilham’s behaviour and actions as “totally unacceptable”, and to allege that “she showed me very clearly that I am no longer welcome in the International Relations Office” and “I was treated as if I were a disgrace to my department”.

[47]The claimant ended his email to Lesley Pope by saying that he wanted to raise a formal grievance.

[48]David McIntosh, Consultant Liaison Manager, was appointed to investigate the claimant’s complaint. The complaint was not upheld. Complaint of sex discrimination

[49]In June 2014 the claimant became concerned that he was not being given enough hours. On 8 June 2014 he sent an email to his line manager Ilham Mohamed complaining that a female bank worker, Zainab Abdulrahim, had been given more hours than him in the rota for that week. In his email he said that “…I would have accept 30 hours had you not provided much more hours to Mrs Zainab, no need to mention Mr. Rashid. Please double check the rota and see how many hours you have given to Zainab, they are more than 40 hours. My question is why you can allocate 44 hours to Zainab but cannot do that for Samir?”

[50]Ms Mohamed replied the same day suggesting that the claimant arrange a meeting with Mr. Coldrick to discuss his concerns and explaining that “Zainab is covering a female interpreter position with the rehab unit”. The claimant responded to Ms Mohamed’s email writing “Is it my fault I was not a female?.”

[51]Some of the respondent’s female patients ask to be treated by female staff, and to have female interpreters. The respondent ‘s policy is to accommodate these requests and allocate female staff. Whilst there were some occasions when Zainab worked more hours than the claimant in a particular week, there were also weeks when the claimant worked more hours than Zainab.

[52]In his claim form the claimant described his complaint of sex discrimination as Ilham having discriminated against him in favour of Zainab on 8 June 2014 by giving her more hours than him.

[53]In response to the respondent’s request for further particulars of the discrimination complaint, an in particular whether the claimant was raising any other allegations of unlawful sex discrimination, the claimant replied:- “The claimant raised another issue in his grievance regarding Ilham’s discriminatory statement about women “I don’t want any woman in my office”. It is reasonable for the claimant to believe that he was subject to retaliation and was victimised by Ilham and Troy because he made a protected disclosure. Finally, the claimant is reasonably convinced that Ilham had interest in him as a man, and because he refused to get involved with her in a relationship further than the normal employee-manager work relationship, Ilham abused her power as a manager to interfere into and influence his private life. (More details about this sensible matter will be disclosed in Nezha El Bassri’s witness statement).

[54]The claimant gave no evidence as to the dates of Ms Mohamed’s alleged comment and / or interest in him. Given that his grievance was raised in March 2016 the tribunal can only conclude that the alleged comment if it was made was made before March 2016.

[55]The claimant told the tribunal in cross-examination that he had not raised any complaints of discrimination between June 2014 and January 2017, and there was no evidence of him having raised discrimination in his grievance. The tribunal does not, therefore, find that he did raise a complaint of discrimination in his grievance.

[56]In his witness statement, when dealing with the question of Zainab allegedly being given more hours than him, the claimant stated “This sort of direct sex discrimination started in March 2014 and continued towards mid-September 2014”.

[57]The claimant did not give any evidence to the tribunal as to why he waited until January 2017 to issue a claim of sex discrimination. He did however give evidence to the tribunal that he had taken legal advice in October 2016, and that his fiancée is studying law. He also told the tribunal that he was aware of the respondent’s grievance process and that he had not mentioned discrimination in the complaint that he raised in 2016

[58]In his witness statement the claimant gave evidence that an email sent to Sheila Johnson on 12th October 2016 had been sent on the advice of his solicitor. The tribunal therefore finds that the claimant had taken legal advice by 12th October 2016 at the latest. Claim for arrears of pay

[59]The claimant believes that he is entitled to arrears of pay covering the period from April 2013 through to the termination of his engagement with the respondent in October 2016.

[60]The respondent pays bank workers differently to employees. Bank workers providing translation services are on a much higher hourly rate of pay than employed International Patient Co-Ordinators. In 2013 the hourly rate for bank members was £15.45 during the week and £19.86 at the weekend, whereas the hourly rate for employees was £12.82.

[61]In his claim form he complains that in March or April 2013 permanent employees were offered a new contract as International Patient Co-ordinators (IPCs) with a significant salary increase. He alleges that “We the Bank staff as well became IPC’s and were promised that our pay rate will be reviewed accordingly but this did not happen despite our constant requests.”

[62]In his witness statement the claimant gave evidence that the Bank Interpreters “Were told that our title and responsibilities have also been changed…We, the Bank IPCs were happy and expected to receive pay rate increase sooner rather than later…”

[63]The claimant also gave evidence that in April 2014 he had spoken to Troy Coldrick about the pay for bank IPCs. His evidence was that he had requested a pay rate increase for Bank IPCs and that Troy and Ilham “promised to look into our request.”

[64]In June 2014 in another meeting with Troy and Ilham the claimant asked the managers to update him regarding the pay increase and they responded that they were still looking into it.

[65]The hourly rate for Bank IPCs was increased in 2015 to £16.23 during the week and £20.87 at weekends.

[66]The issue of pay came up again in a meeting in September 2016 when the claimant was given a sheet showing the increase in the Bank rate that had taken place in 2015.

[67]On 7 September 2016, in an email to Sheila Johnson the claimant raised the issue of a pay increase for Bank IPCs. He wrote that “I asked Troy and Ilham to review the Bank IPC pay rate pay accordingly. Troy and Ilham welcomed the idea and promised me to look into it, but nothing happened since that time.”

[68]In a meeting of the International Relations Team on 29 September 2016 the claimant asked a question about pay rates. The minutes of that meeting record “SI asked about when bank rate might increase. AE said that he has contacted head office but has not heard back.”

[69]Mr. Coldrick gave evidence to the tribunal that he had many conversations with the claimant about the claimant’s wish for a pay rise, and that he had promised him he would look into the question, but had not at any time promised the claimant an increase. The tribunal accepts his evidence, which is consistent with the documentary evidence in the bundle, and indeed with the evidence of the claimant himself.

[70]There is no evidence before the tribunal that the claimant has ever been promised a pay increase. All of the evidence is that the claimant asked for a pay increase and was told that management would look into it. He continued to ask about it right up until September 2016, the month before his engagement with the respondent terminated.

The Law

[71]Section 94 of the ERA provides that “an employee has the right not to be unfairly dismissed by his employer”.

[72]Section 230 of the ERA defines an employee for these purposes as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment”. Contract of employment is defined as “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.”

[73]In order for there to be a contract of employment the relationship between the parties must contain what is often termed the "irreducible minimum" of :- 73.1. personal service; 73.2. control; and 73.3. mutuality of obligation.

[74]In addition, all of the other factors defining the relationship must be consistent with there being a contract of employment.

[75]In Autoclenz Ltd v Belcher and others

[2011] IRLR 820

the Supreme Court held that the question to be determined is what the true agreement between the parties is. This is not always what is in the written contract, as there are occasions when the express contractual provisions do not reflect the reality of the situation.

[76]The Supreme Court also concluded that the relative bargaining positions of the parties is a relevant factor when it comes to determining whether the written contract accurately reflects the legal position. The Court recognised that ‘employers’ are often in a position to decide what written terms should be included in the contract, and the individual often has little option but to accept those terms. Limitation period for the sex discrimination complaint

[77]The time limit for presenting a complaint of sex discrimination to the employment tribunal is contained within section 23 of the Equality Act 2010 (“the EA”) which provides as follows:- “Proceedings…may not be brought after the end of –(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable.” Protected disclosures

[78]Section 43A of the ERA defines a 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.”

[79]Section 43B provides that :- “…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,

(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, or is likely to be concealed.”

[80]Section 43C states that “A qualifying disclosure is made in accordance with this section if the worker makes the disclosure…to his employer”.

[81]The respondent admits that if the claimant made a qualifying disclosure falling within section 43A of the ERA, then it was a protected disclosure within section 43C.

[82]Paragraph 37 of the Employment Tribunals (Constitution & Rules of Procedure Regulations 2013 gives the tribunal the power to strike out all or part of a claim or response on a number of grounds, including it if consider that the claim is “scandalous or vexatious or has no reasonable prospect of success.”

[83]Paragraph 37(2) provides that a claim may not be struck out “unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”

[84]The right not to suffer unlawful deductions from wages is contained within section 13 of the ERA which provides that:- “(1) An employer shall not make a deduction from wages of a worker employed by him unless –(a) the deduction is required or authorized to be made by virtue of a statutory provision or a relevant provision of the worker’s contract; or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”

[85]Wages are defined in section 27 of the ERA as “…any sums payable to the worker in connection with his employment, including …any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise.” Submissions

[86]The claimant submits that he was an employee of the respondent as the true nature of the relationship between the parties was one of employer and employee. In support of this submission he says that:- 86.1. He provided personal service in return for weekly remuneration and was not permitted to send a substitute to do the work; 86.2. He worked regularly for the respondent over a period of years; 86.3. He was subject to the control of the respondent in the way in which he provided the services; 86.4. He had to attend mandatory training; 86.5. The conduct of the parties was inconsistent with the written contract such that the contract did not reflect the reality of the situation; 86.6. The respondent had agreed to provide him with a minimum of 30 hours a week; 86.7. There was an obligation on the respondent to provide him with work; 86.8. He was obliged to perform the work that was offered to him; 86.9. There was a mutuality of obligation between the parties; and 86.10. He was provided with equipment by the respondent including a uniform and a name badge.

[87]The respondent accepts that the claimant was engaged under a contract throughout the period of his engagement, but disputes that the contract was a contract for services.

[88]The respondent submits that the claimant knew he was a bank worker and that his status was different from that of employees. His hourly rate of pay was much higher than that of employees and he was not provided with employee benefits. He had been given the opportunity to become an employee but chose not to do so preferring to remain on his existing contract because he was paid more

[89]In the respondent’s submission the question for this Tribunal is whether the claimant worked under a contract of service, and the starting point is to look at the written terms and then consider whether they have been ‘displaced’.

[90]The respondent refers to Arnold v Britton

[2015] AC 1619

as authority for the proposition that the construction of written terms involves the Tribunal identifying the intention of the parties at the time the terms were agreed by reference to what a reasonable person with all the background knowledge that would he been available to the parties at the time, would have understood those terms to mean.

[91]The respondent submits that the terms of the written contract are clear and are consistent with the claimant being a worker rather than an employee .

[92]The key question in this case, in the respondent’s submission, is whether there is a mutuality of obligation between the parties, and the Tribunal is referred on that issue to the case of Clark v Oxfordshire Health Authority

[1998] IRLR 125

. The respondent says that there was no mutuality of obligation between the parties as there was no obligation on the respondent to offer the claimant work, no regular pattern of work, and no obligation on the claimant to accept work that was offered to him. The respondent referred to numerous examples of occasions when the claimant had turned down work, often at very short notice.

[93]The respondent submits that what happened in practice was consistent with the terms of the written agreement. Limitation Period

[94]The claimant submits that it would be just and equitable for the Tribunal to extend time and to consider his complaint of direct sex discrimination. He says that he was not aware that the less favourable treatment he received in 2014 could amount to sex discrimination and was discouraged from discussing the issue.

[95]The claimant referred the tribunal to the cases of Robertsons v Bexley Community Centre

[2003] IRLR 534

and London Borough of Southwark v Afolabi

[2003] IRLR 220

[96]The respondent submits that the primary time limit for the discrimination complaint expired on 7 September 2014 so the ET1 was presented more than 2 years and 4 months out of time.

[97]The respondent further submitted that it would not be just and equitable to extend time for the following reasons:- 97.1. The claimant has not put forward any evidence to explain the significant delay; 97.2. The claimant knew that he had a right to complain as he raised a grievance in March 2016; 97.3. There is nothing to suggest that the claimant did not have access to legal advice from June 2014; 97.4. There is evidence that the claimant had received legal advice by October 2016 yet he did not issue proceedings until 24 January 2017.

[98]In his written submissions the claimant submits that he made two protected disclosures, the first to Lesley Pope on 15 March 2016 and the second to Sheila Johnson on 22nd March 2016.

[99]He says that he complained of rumors accusing him of breaching patient confidentiality and that he was ‘kicked out’ of the International Relations Office.

[100]The claimant submits that patient confidentiality is a matter of public interest and the fact that his intention in raising the complaint was to clear his name does not affect this. He referred to MS v Sweden

[1999] 28 EHRR 313

as authority for the proposition that the protection of personal data, particularly medical data, is of fundamental importance to a person’s enjoyment of his/her right to respect for private and family life, and that respecting the confidentiality of health data is a vital principle.

[101]He also submits that the respondent failed to investigate a serious breach of its legal obligation to maintain patient confidentiality.

[102]The respondent submits that it is only the first disclosure (15 March 2016) that can be relied upon by the claimant.

[103]It further submits that the claimant’s complaint, in essence, was that there were rumors amongst patients and their families that he had breached patient confidentiality but that he had not done so, and wanted to clear his name and restore his reputation. This does not, in the respondent’s submission, amount to disclosure of information tending to show that someone had breached a legal obligation. Instead, it was a complaint that the claimant had not breached a legal obligation.

[104]The respondent says that a rumor, even if untrue, is incapable of tending to show a miscarriage of justice, and that before there can be a miscarriage of justice there must be a judicial determination of a criminal or civil right.

[105]The respondent also says that the claimant did not have a reasonable belief that the information he disclosed tended to show a breach of a legal obligation or a miscarriage of justice because what he was clearly saying was that he had not done anything wrong.

[106]Finally the respondent submits that the disclosure was not in the public interest as it was made purely for the claimant’s benefit and his wish to clear his name. The respondent referred in support of this submission to Chesterton Global Ltd v Nurmohamed

[2015] IRLR 614

. That decision has subsequently been appealed and the Tribunal has considered, in reaching its decision, the conclusions of the Court of Appeal which are at Chesterton Global Ltd (t/a Chestertons) v Nurmohamed

[2017] EWCA Civ 979

[107]The claimant submits that his claim for unlawful deductions does have reasonable prospects of success for the following reasons:- 107.1. His job title was changed from Interpreter to IPC in 2013 and the salaries of employed IPCs were increased at the time by up to 33.5%; 107.2. The respondent agreed that the nature of the claimant’s role would change and that IPCs would no longer be required to perform administrative duties; 107.3. Mr. Coldrik admitted in a meeting on 8 September 2016 that the claimant was entitled to a pay rise due to a change in his title and responsibilities in 2013; 107.4. Mr. Coldrick did not come back to the claimant and dragged the issue of the pay rise out for 2.5 years; and 107.5. The claimant was misled and deceived to make him perform extra duties and responsibilities for free.

[108]The respondent submits that, putting the claimant’s case at its highest, the claimant ‘s claim is that management promised to look into the possibility of a pay rise. The respondent also submits that that the claimant does not say (and has never said) that he was told he would be given a pay rise, and that in order to succeed in this element of his claim, the claimant would have to show that he was entitled to a higher rate of pay.

Conclusions

[109]The terms of the written contract between the parties are consistent with the claimant being a worker and not an employee. The Tribunal has no reason to believe that the written contractual arrangements were a ‘sham’ which did not reflect the reality of the relationship between the parties.

[110]The respondent was not obliged to offer the claimant work, and the claimant was not obliged to accept it. The claimant was free to work as and when he chose, and to decide not to work when it suited him. The claimant was also free to work for other organisations if he wished, and he was not guaranteed any hours by the respondent.

[111]He was not provided with the benefits that were provided to employees and was paid a much higher rate of pay to compensate for this. His contract could be terminated at any time.

[112]Although the translation and interpretation services that the claimant provided were also provided by directly employed employees, the mere fact that the work the claimant carried out was similar to that carried out by employees does not in itself mean that the claimant was an employee.

[113]The claimant chose to have worker status rather than to be an employee because it suited him. As a worker he was paid a higher rate of pay and could work the hours that he wanted to. Although in many employer / employee or employer / worker relationships the bargaining positions between the parties are such that the individual has no choice but to accept the terms offered, this was not the case as far as the claimant was concerned.

[114]The claimant was well aware of the differences between being a Bank worker and being an employer and turned down the opportunity to become an employee when it was offered to him. He chose, voluntarily, to be a Bank worker because he was paid a higher rate of pay as a result.

[115]What the claimant is seeking to do, by claiming after his engagement was terminated that he was in fact an employee, is to have the benefit of employment status, but without the obligations and reduction in hourly rate that went along with it.

[116]It is clear from the evidence before the Tribunal that the claimant was required to provide personal service and was subject to the control of the respondent. There was however no mutuality of obligations between the parties, as evidenced by the fact that the claimant could turn down work whenever he wanted to and was not obliged to work, and by fact that the respondent did not guarantee the claimant worked, and changed his working hours. The claimant could, and often did, turn down work at short notice, without any adverse consequences.

[117]The conclusion of the Tribunal is that the claimant was not employed by the respondent, but rather was a worker. Limitation Period

[118]The claimant’s claim of sex discrimination was submitted more than 2 and a half years after the acts that the claimant complains of (taking the 8 June as the date of discrimination) and more than 2 years and 4 months after the alleged discrimination if the claimant’s suggestion that the discrimination lasted until September 2014 is accepted. The complaint is, therefore, significantly out of time.

[119]The Tribunal can extend time and allow the complaint to proceed if it considers it is just and equitable to do so.

[120]The discretion to extend time is a wide one. In deciding whether to exercise it, the Tribunal should consider factors such as:- 120.1. The prejudice to each party as a result of granting or refusing an extension; 120.2. The length of and reasons for the delay; 120.3. The extent to which the cogency of the evidence is likely to be affected by the delay; 120.4. the extent to which the respondent co-operated with any requests for information; 120.5. the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action; and 120.6. the steps taken by the claimant to take advice once he knew of the possibility of taking action.

[121]The key factors in this case are, in the Tribunal’s view, that:- 121.1. The extent of the delay was significant; 121.2. The claimant has provided no evidence as to why he delayed in bringing a claim. He was clearly aware of the facts giving rise to the claim in June 2014, yet did not issue proceedings until January 2017; 121.3. The claimant took legal advice in October 2016 yet did not submit his claim until January 2017; 121.4. There would, in the Tribunal’s view, be prejudice to the respondent in having to defend a claim for discrimination although equally the claimant would be prejudiced by not being allowed to bring a claim. 121.5. There was, in the Tribunal’s view, no cogent reason for the claimant not to have issued proceedings sooner. Time limits exist for a reason and should be respected.

[122]Although not required to make any findings in relation to the merits of the discrimination complaint, the Tribunal notes that on the evidence presented at the preliminary hearing, it does appear that the respondent has a strong defence to the complaint.

[123]The complaint of sex discrimination is, therefore, out of time, and the Tribunal does not have jurisdiction to consider it.

[124]The matters complained of by the claimant were that:- 124.1. He was the subject of false rumors that he had breached patient confidentiality; and that 124.2. Ilham Mohamed had behaved badly towards him.

[125]In relation to the first allegation, the Tribunal accepts the respondent’s submissions that complaining that false rumors have been made does not amount to a disclosure of information tending to show that someone has breached a legal obligation or that there has been a miscarriage of justice. The claimant has not identified any legal obligation that may have been breached when the false rumors were made, if indeed they were made.

[126]The Tribunal does not consider that false rumors are capable of amounting to a miscarriage of justice in the circumstances of this case.

[127]In relation to the second allegation, a suggestion that a manager has behaved badly could potentially amount to a disclosure of information tending to show that the manager has breached a legal obligation, but in this case it does not. As the claimant was not employed by the respondent there was no implied duty of trust and confidence and the claimant’s contract could have been terminated at any time without notice.

[128]In any event, the disclosures that were made by the claimant were not made in the public interest, but rather they were made with a view to the claimant clearing his name and re-establishing his reputation.

[129]The Court of Appeal in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed

[2017] EWCA Civ 979

held that :- 129.1. the tribunal has to determine(a) whether the worker subjectively believed at the time that the disclosure was in the public interest and

(b) if so, whether that belief was objectively reasonable. 129.2. Belief in the public interest need not be the predominant motive for making the disclosure, or even form part of the worker's motivation. 129.3. There are no hard and fast rules about what it is reasonable to view as being in the public interest. 129.4. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter in which the worker has a personal interest) there may be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case.

[130]Whilst the Tribunal accepts that disclosure of information tending to show that patient confidentiality has been breached would be a matter of public interest, the claimant did not disclose information tending to show that patient confidentiality had been breached. Rather, he complained that others had falsely accused him of breaching patient confidentiality.

[131]The disclosures were not made in the public interest, but rather with a view to clearing the claimant’s name.

[132]The claimant’s complaint of unlawful deduction from wages does not have reasonable prospects of success.

[133]In order to succeed in such a claim, the claimant would have to establish that the respondent had unlawfully withheld sums which were due to the claimant.

[134]There is no evidence whatsoever to suggest that the respondent did withhold sums which were due to the claimant.

[135]On the claimant’s case alone, no pay increase was agreed or promised by the respondent. Rather, in response to questions from the claimant, the respondent promised to look into the matter of pay. It did not agree to any pay increases, other than the increase in hourly rate which was paid to the claimant.

[136]Accordingly, the complaint of unlawful deduction from wages is struck out.

Background

[1]By claim form dated 24 January 2017 the claimant brought claims of unfair dismissal, wrongful dismissal, whistleblowing, breach of contract, sex discrimination and unlawful deduction from wages. All of the claims were resisted by the respondent.

[2]Following a preliminary hearing on 14th and 15th June 2017 the claims were dismissed in a reserved judgment with reasons dated 28 September 2017. The reserved judgment should be read alongside this decision.

[3]On 11 October the claimant applied for reconsideration of the judgment and, in support of his application, submitted the following documents:-a. A 20 page application;

b. Witness statements for Nezha El Bassri, Bandar Al Noon and Majid Vaghetian; and

c. A letter dated 25 May 2017 from a Consultant Psychiatrist, relating to Ms El Bassri.

[4]I have read and considered all of the above documents in reaching this decision.

The relevant law

[5]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provide as follows:- Rule 70 Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (‘the original decision’”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Rule 71 Application …an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication of the original decision was sent to the parties…and shall set out why reconsideration of the original decision is necessary. Rule 72 Process (1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked…the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing…

[6]In Trimble v Supertravel Ltd

[1982] ICR 440

the Employment Appeal Tribunal said that on an application for what was at the time a review (and is now reconsideration) if a matter has been ventilated and properly argued during the course of Tribunal proceedings, then any error of law falls to be corrected on appeal and not by way of review.

[7]In his application for reconsideration the claimant’s arguments, in summary are that:-a. He did not present his claims in the way that he wanted to at the preliminary hearing;

b. The new evidence should be allowed in and would make a difference to the outcome; and

c. He was ambushed at the preliminary hearing.

[8]I have considered carefully these arguments and the other issues raised in the application.

[9]The reconsideration process is not designed to allow a party a second chance to present their case if they are not happy with the way in which it was presented in the first place, or to reapply for witness orders that have previously been refused.

[10]The claimant had ample opportunity to argue his case at the preliminary hearing. Although he represented himself for some of the hearing, he had the benefit of legal advice and was able to present detailed legal argument including written submissions. He also had the time, after the conclusion of the hearing, to reflect and take advice if he so chose, before submitting further written submissions.

[11]On the second day of the hearing, and prior to closing submissions, the claimant had the opportunity to take advice from an ELIPS adviser. The hearing was adjourned for a short period to allow the claimant to consult with the ELIPS advisor and the Tribunal permitted the ELIPS adviser to attend the remaining part of the hearing and assist the claimant.

[12]The claimant suggests in his application that the Tribunal “refused to allow for Ms Bassri to give evidence because there was no medical report about her condition.” That is not correct.

[13]At the outset of the preliminary hearing the claimant indicated that he intended to call Ms El Bassri, his fiancée and former colleague, to give evidence on his behalf No witness statement had been prepared for Ms Bassri and the respondent objected to her giving evidence without a witness statement. The claimant was given time to consider his position, and informed the tribunal that he did not wish to call Ms Bassri to give evidence at the preliminary hearing, but that she would be giving evidence at the final hearing.

[14]The Tribunal did not refuse to hear Ms Bassri’s evidence. The claimant chose not to call her. Ms Bassri was present through the preliminary hearing.

[15]In order to persuade the Tribunal that it would be in the interests of justice to reconsider the judgment and allow the claimant to call additional evidence, the claimant would have to persuade the Tribunal that the evidence -a. could not reasonably have been obtained prior to the preliminary hearing;

b. is relevant and important, such that it is likely to have influenced the outcome of the preliminary hearing; and

c. appears credible.

[16]I am not persuaded that any of the evidence submitted with the claimant’s application for reconsideration could not have been obtained prior to the preliminary hearing. For example, the doctor’s letter is dated 25 May 2017 – more than two weeks before the preliminary hearing.

[17]Having read the additional evidence submitted by the claimant, I do consider that it is likely to have had any influence on the outcome of the preliminary hearing. The statements of Bandar Al Noon and Majid Vaghetian are of very little if any relevance to the issues that fell to be determined at the preliminary hearing, and the same can be said also for large parts of Ms El Bassri’s statement.

[18]I do not consider that the claimant was ‘ambushed’ at the preliminary hearing. He had been given notice of the hearing and of the issues to be determined at the hearing, and was well prepared for the hearing. There were regular breaks during the hearing, including a short adjournment to allow the claimant more time to consult with an ELIPS advisor.

[19]For the above reasons, there is no reasonable prospect of the original decision being varied or revoked, and accordingly the claimant’s application for reconsideration is refused.

Findings of fact

[20]In paragraph 130 of the Judgment at the previous Preliminary Hearing the Tribunal reached the following conclusion, which was not overturned on appeal: “Whilst the Tribunal accepts that disclosure of information tending to show that patient confidentiality has been breached would be a matter of public interest, the claimant did not disclose information tending to show that patient confidentiality had been breached. Rather, he complained that others had falsely accused him of breaching patient confidentiality.” Claimant’s evidence

[21]The claimant has produced three witness statements during the course of these proceedings. The first statement, provided for the Preliminary Hearing in June 2017, contains very limited information about the protected disclosures. It merely says that “On Tuesday 15th March 2016, I met Lesley in her office and I raised my concerns and asked her to investigate into two issues; the rumours involving me in breach of patient confidentiality and Ilham’s unprofessional behaviour and actions against me” [paragraph 34]. This wording repeats what the claimant said about the disclosure in his claim form.

[22]The first witness statement does not specifically say whether the claimant believed the disclosure he made on 15th March was in the public interest. Later on in the statement the claimant does refers to his motivation, albeit in the context of a grievance he subsequently raised about the issues, when he said, in relation to a meeting he had on 22nd March, “I informed Sheila that I want to raise a Formal Grievance, as I felt really degraded, humiliated and was shocked and confused. Moreover, because there were rumours among patients and their families that I had been leaking patients’ confidential information and I wanted to clear my name and restore my reputation…” [ paragraph 38] This evidence was accepted by the Tribunal and is reflected in paragraph 45 of the Reserved Judgment following the June 2017 Preliminary Hearing. It also repeats what the claimant said about the disclosure in his claim form.

[23]The claimant’s second witness statement, dated 19 September 2024 and prepared specifically for this Preliminary Hearing, ran to five pages and 21 paragraphs, and was accompanied by a number of exhibits. At the start of the statement the claimant says, “the Claimant in this supplementary witness statement highlights some important points supporting his argument that he genuinely believed that his disclosures were made in the public interest and that it was reasonable to believe so.”

[24]It is clear from this comment that the claimant understood the issue that he needed to address in the statement. He says very little however about why the protected disclosure about false rumours that he was breaching patient confidentiality was in the public interest. His evidence on the question of public interest was : “the Claimant holds a certificate in Health Interpreting; and in this community health interpreting course a great emphasis is put on patient confidentiality, therefore, it is unlikely that the Claimant did not have the public interest element in his mind when he made his protected disclosures… The Claimant is also a dentist and it is beyond doubt that he was aware of the seriousness of any breach of patient confidentiality, and that investigating such a breach would be in the public interest… The Claimant worked in the health sector for more than two decades, as a dentist in Syria and as an Interpreter in the UK, and anyone works in the health sector no doubt knows that breaching patient confidentiality is illegal and a crime. The Claimant acted based on this fact and reported the leak of patients’ confidential information to the hospital management and chased them to investigate. The Claimant had firm conviction that he was reporting a crime and expected the Respondent to deal with his concerns as such. Reporting a crime can not be anything but in the public interest. The Claimant says that he finds it very awkward to be put in a position where he needs to prove what is considered an axiom in the health sector. Yes as a dentist and an experienced medical Interpreter it would be unreasonable if the Claimant argues that he did not know that breaching patient confidentiality is illegal and a crime, however, our situation is sort of surrealism because the norm is to know the axiom and the exception is not to know it….In our case the Claimant is being challenged to prove that he knew that breaching the patient confidentiality is illegal/ a crime…. The Claimant discussed with the Respondent on several occasions the importance of a thorough investigation into the leak of the patients confidential information and the rumours linking him to those breaches…. The leak of patient confidential information was a matter of fact, but blaming the Claimant for this breach was a false rumour. The patients and their families accused the Claimant of leaking their confidential information; they were very upset because their confidential information was disclosed and spread… The investigation itself, and of course its outcome, is in the public interest. The patients and their families were very keen to know who was responsible for the leak. The hospital also had interest in a thorough investigation to get to the bottom of this matter…. The investigation was in the interest of the Claimant and also in the interest of the patients and their families….The Hospital also had interest in the investigation because as a health provider it has duty by law to maintain high level of patient confidentiality…. …there were three parties that had interest in a thorough investigation, the Claimant, the Respondent and the patients and their families….

[25]The focus of this witness statement is on breaches of patient confidentiality, rather than on the false rumours that the Tribunal found to be the disclosures made by the claimant. The bulk of the evidence on public interest in this statement is on matters which were not part of the disclosures in question. The claimant does however mention, albeit briefly, that patients, their families and the hospital had an interest in an investigation into the false rumours.

[26]The claimant’s third witness statement, dated 8 October 2024 and prepared on the advice of Ms Jabir, runs to 6 pages and 17 paragraphs. It contains the following: “…what concerned me the most was what the mother of the patient staying in the 4th floor said about me. I was very concerned about the leak of patient confidentiality and the rumours linking me to the leak, and this is why my priority was to speak with the patients and their families….”

[27]This evidence contradicts what the claimant said previously, about his main concern being to clear his name and restore his reputation. The statement goes on to state that: “I put my right hand on Al- Quran and sworn that I had nothing to do with the leak of patient confidentiality and that I was totally innocent…I then told the relatives that this was not going to solve the matter, and that they must report their concerns to the hospital management. I explained that it was a very important matter affecting them, the hospital as a whole, and myself as well because I was the one accused of the leak…They were very unhappy because of the leak…. On 15th March 2016, I met with Lesley and informed her that he wanted to go for a formal grievance for two issues, the 1st issue was about the leak of patient confidentiality and the rumours accusing me of the leak, the 2nd issue was about the treatment I was receiving from Ilham….I was very clear that there was a breach of patient confidentiality and that I was blamed by the patients and their families of the leak. I asked Lesley to investigate because I wanted to clear my name so I can work with the patients again. I explained that the patients and their families lost trust in me and that was not good for the hospital reputation as well. I explained that an investigation is a must to address the patients concerns and it will help regaining their trust in me and the hospital….. I was aware that my reputation as an Interpreter is very crucial and that it was in the patients’ interest to clear his name. Working with the patients would be impossible if they did not have trust in the interpreter. I strongly believed that it was in the patients’ interest to identify the person who was responsible for the leak if there was leak, and even if the investigation concluded that there was no leak, the investigation would still be in the patients’ interest….the patients had interest in the investigation, the hospital as a whole had interest in the investigation, I myself had interest as well because I was accused of the leak.”

[28]During his evidence to this hearing the claimant suggested that the disclosures he made in March 2016 were not just about rumours that he had breached patient confidentiality, but rather were also about breaches of confidentiality generally. He acknowledged that there is a difference between the two. I am however bound by my previous findings that the disclosures were about the rumours about the claimant, which the EAT found to be allegations of defamation, rather than about breaches of patient confidentiality per se.

[29]The claimant said in his oral evidence that the false rumours were the core of the problem, that he could not do his work because the trust between the patients and him had gone, and that he wanted to rebuild his relationship with the patients. On two occasions however he said that he did not know whether this was in the public interest or not.

[30]The claimant also told the Tribunal that the public interest was not in his mind when he made the disclosure, and that what he had in mind was to be able carrying on doing his job. The focus of his oral evidence was on the issue of a breach of patient confidentiality, which he said was the most important thing for him, and interlinked with the false rumours that he was responsible for the breach.

[31]Later on in his oral evidence the claimant said that it was in the interests of everyone in the hospital to know whether the rumours about him were true or not and suggested that making the disclosure was in the interests of patients and the hospital’s reputation.

[32]The claimant also gave evidence that the patients were not concerned about the hospital’s reputation, but he was. He suggested that all those working with him and the patients at the hospital had an interest in his reputation.

[33]In response to a specific question from the Judge about whose interests he believed he was making the disclosures for, the claimant replied for himself, the patients and their families and everyone in the hospital.

[34]The claimant’s evidence in relation to whether he believed, at the time of the disclosures about false rumours, has been inconsistent and has changed over time. The most telling evidence, in my view, is the evidence he gave under cross examination at this hearing, that the public interest was not in his mind when he made the disclosures. This evidence is consistent with what little contemporaneous documentary evidence there is from March 2016, namely the emails of 16th March 2016 in which the claimant referred to clearing his name, and the of 22nd March 2016 in which he referred to clearing his name and restoring his reputation.

[35]I therefore find that what was in the claimant’s mind at the time he made the disclosures about false rumours in 2016 was clearing his name and restoring his reputation, and not the public interest in the fact that he was potentially being defamed.

The Law

[36]The relevant statutory provisions are set out in sections 43A and 43B of the Employment Rights Act 1996 as follows: “43A Meaning of “protected disclosure” In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B Disclosures qualifying for protection (1) 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….”

[37]In order for a disclosure to be a qualifying disclosure, the worker must reasonably believe that it tends to show one of the relevant matters. He must also reasonably believe that the disclosure is in the public interest.

[38]The test for ‘reasonable belief’ is both objective and subjective. The Tribunal must focus on what the claimant believed (rather than what a hypothetical reasonable worker may believe) but there must also be some objective basis for the claimant’s belief (Korashi v Abertawe Bro Morgannwy University Local Health Board

[2012] IRLR 4

). In Phoenix House Ltd v Stockman

[2017] ICR 84

, the EAT, endorsing the approach taken in Korashi, held that, on the facts that the claimant believed to exist, a judgment must be made firstly as to whether the belief was reasonable and secondly whether looking at matters objectively, there was a reasonable belief that the facts tend to show one of the relevant matters.

[39]In the leading judgment in Chesterton Global Ltd (t/a Chesterton) v Nurmohamed

[2017] EWCA Civ 979

Underhill LJ held: “27…. 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…. All that matters it 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 if 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…. 30. Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it…. I am inclined to think that the belief does not in fact have to form any part of the worker’s motivation…. 31. Finally by way of preliminary….I do not think there is much value in trying to provide any general gloss on the phrase “in the public interest”. Parliament has chosen not to define it, and the intention must have been to leave it to employment tribunals to apply it as a matter of educated impression…. 37. Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter under section 43B(1) where the interest in question in personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. Mr Reade’s example of doctors’ hours is particularly obvious, but there may be many other kinds of case where it may reasonably be thought that such a disclosure was in the public interest. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case….”

[40]The Court of Appeal also held that when considering whether a disclosure is in the public interest, factors that may be relevant include: 1. The number of people whose interests the disclosure served; 2. The nature of the interests affected and the extent to which they are affected by the wrongdoing that is being disclosed; 3. The nature of the wrongdoing disclosed; and 4. The identity of the alleged wrongdoer. Submissions

[41]I summarise briefly below the submissions made by each party. The fact that a point raised in submissions is not mentioned below should not be taken as any indication that it has not been considered. Respondent

[42]Mr Bryant submitted that the evidence does not support a finding that the claimant subjectively believed that a disclosure that could amount to defamation (as opposed to a disclosure that patient confidentiality was in fact being breached) was in the public interest. Further, even if the claimant did hold such a belief, that belief was not reasonable.

[43]Further, to the extent that the claimant’s case was based on a breach of patient confidentiality, Mr Bryant submitted that it must fail, because of the uncontested conclusions reached in June 2017 that the claimant did not disclose information about a breach of patient confidentiality. The claimant had, he said, repeatedly addressed the question of whether patient confidentiality was in the public interest, rather than the question of whether a disclosure about spreading false rumours was in the public interest.

[44]Mr Bryant referred to Gestmin v Credit Suisse (UK) Ltd and another

[2013] EWHC 3560

and Kogan v Martin and others

[2019] EWCA Civ 1645

which he says suggest that, although it is for the Tribunal to assess all of the admissible evidence when making its findings of fact, it should be cautious about placing much, if any, weight on a witness’s recollection of events some years earlier, and that the better approach may be to rely on inferences drawn from contemporaneous documentary evidence.

[45]The Tribunal should, in Mr Bryant’s submission, be very cautious about accepting what the claimant is now saying for the first time 8 years after the disclosures were made. The most recent witness statement of the claimant was, Mr Bryant submitted, self-serving, and when assessing its credibility, the Tribunal should bear in mind that the claimant had been told by the Court of Appeal and the Regional Employment Judge what will be considered today and had received advice from counsel. Memory is, he says, fallible, and can be sub-consciously changed to suit what the litigation requires.

[46]The evidence, Mr Bryant says, does not support a finding that the claimant was thinking about anything in the public interest at the time he made the disclosures. Even if, the claimant did have a subjective belief that his disclosures were in the public interest, that belief was not reasonable. The claimant is not someone with a highly public profile, but rather wanted to clear his own name and it is ‘neither here nor there’ whether someone was spreading false rumours about him. Claimant

[47]Ms Jabir invited the Tribunal to conclude that, when the claimant made his disclosures in 2016, he had a subjective belief that they were in the public interest and that this belief was reasonable.

[48]Ms Jabir referred to the following extract from Volume 16, Chapter 3, paragraph 3.42 of the IDS Employment Law Handbook: “A tribunal is not tasked with asking itself the objective questions of what the public interest is, and whether a disclosure served it; the legislation poses the altogether more difficult challenge of gauging: i) what the worker considered to be in the public interest, ii) whether the worker believed that the disclosure served that interest, and iii) whether that belief was held reasonably … case law has been clear that, when considering whether a worker has a reasonable belief, tribunals should take into account the worker’s personality and individual circumstances. So, in relation to ‘public interest’, a tribunal might take into account the fact that the average man or woman in the street will have a less clearly defined concept of the ‘public interest’ than a lawyer or civil servant, and will not deprive a worker of protection simply because his or her genuine belief was wrong.”

[49]She also referred to the judgment of the EAT in Okwu v Rise Community Action

UKEAT/0082/19

/00, a case involving disclosures about breaches of data protection legislation, in which the EAT confirmed that making disclosures in the claimant’s own interest did not prevent the disclosures being in the public interest, and that the public interest need not be the only motivation for making the disclosure, and suggested that disclosures about certain subjects are likely to be in the public interest.

[50]Ms Jabir submitted that there is a public interest in defamation, citing paragraph 3.35 of Chapter 3 of Volume 16 of the IDS Employment Handbooks: “Defamation cases have identified a number of matters that may legitimately be regarded as engaging the public interest: the conduct of any person seeking a public office or a position of trust (in so far as that conduct is relevant to the fitness to hold office or perform the duties thereof”

[51]Ms Jabir further submitted that ‘belief’ is a low threshold to meet as it is entirely centred upon a subjective consideration of what was in the mind of the claimant. Circumstances which explain the claimant’s understanding of what is in the public interest, she says, include the following: 1. The claimant is from Syria and only came to the UK in 2005; 2. The claimant is not a legal practitioner and therefore has a less legally precise concept of public interest; 3. Whilst in Syria the claimant worked in the health industry as a dentist; and 4. He was a qualified health interpreter who placed a great emphasis on patient confidentiality.

[52]The claimant was, in Ms Jabir’s submissions, concerned when he made the disclosures about the public at large and not just himself, in particular he was concerned that patients might lose trust in him as a result of the false rumours, and that the rumours would damage the hospital’s reputation. In relation to the four ‘tests’ set out in Chesterton, Ms Jabir submitted that: 1. The disclosure served several people: the claimant, his patients and the hospital; 2. The nature of the interests affected was important: it is important that patients trust their interpreters and that a hospital’s reputation is protected; 3. The wrongdoing disclosed could have been deliberate; and 4. The identity of the alleged wrongdoer was likely to be a member of hospital staff.

[53]There were, in Ms Jabir’s submissions, traces of the evidence that the claimant gave to this hearing throughout, for example his reference to his ability to carry out his work, which relates to the trust between him and the patients.

[54]In relation to the respondent’s submission that the Tribunal should treat with caution evidence given so long after the event, Ms Jabir submitted that the claimant should not be penalised for the delays in arranging this hearing, given that there had been a 5-year delay on the part of the Tribunal.

Conclusions

[55]In reaching my conclusions in this case I have considered carefully the evidence before me, the legal principles summarised above, and the submissions of both parties.

[56]The findings as to what information was disclosed by the claimant on 15th and 22nd March 2016 are not overturned by the Employment Appeal Tribunal or the Court of Appeal. Her Honour Judge Stacey, in her Judgment at the EAT, found that: “16. In the Claimant’s ET1 he listed “damage to reputation/defamation” as a claim which the respondent correctly observed in its ET3 is not a cause of action listed in the Employment Tribunals Act 1996 and the Tribunal has no jurisdiction to consider it. Nonetheless it articulates the Claimant’s allegation that he has been defamed by what he described as “false rumours” about his having breached patient confidentiality. 17…..The concern about him being falsely accused of breaching patient confidentiality …was clearly the root of his concern… 21….It is apparent that the Claimant’s complaint of damaging false rumours about him that he has breached patient confidentiality is clearly an allegation that he is being defamed. The Tribunal has erred in concluding that the Claimant has not identified any legal obligation that may have been breached….”

[57]In the Judgment from the Preliminary Hearing in June 2017, under the heading ‘Qualifying Disclosures’ the Tribunal found that: “124. The matters complained of by the claimant were that:-124.1 He was the subject of false rumours that he had breached patient confidentiality; and that

124.2 Ilhan Mohammed had behaved badly towards him.”

[58]Those findings have not been overturned. Accordingly the disclosures that I have to consider are not ones about breaches of patient confidentiality generally, but rather disclosures that the claimant was the subject of false rumours that he had breached patient confidentiality which are potentially defamatory.

[59]In the Court of Appeal Judgment in this case, handed down on 19 November 2019, Lord Justice Bean commented that “a claimant’s predominant motive in making the disclosures is not the same thing as his subjective belief.” [para 17] and that: “The narrative at paragraphs 43 to 45 of the ET judgment shows clearly that nothing was said by the Claimant at the time about the public interest, nor even about the reputation of the hospital at which he had been working. But, while that is a point to be made against the Claimant’s case on subjective belief, it does not dispose of it altogether.” [ para 26]

[60]In reaching my conclusions on the question of whether the claimant had a subjective belief that the disclosures he made were in the public interest, I have had to weigh up the evidence given by the claimant, which has changed over time. It is clear from the balance of the evidence before me that the claimant’s motivation in making the disclosures about false rumors on 15th and 22nd March 2016 was to clear his name and rebuild his reputation. That however does not prevent the disclosures he made being in the public interest as a disclosure may be made in the public interest even if the public interest does not form any part of the claimant’s motivation for making the disclosure. Motivation for making a disclosure and subjective belief in the public interest of the disclosure are two distinct concepts.

[61]Considering all of the evidence before me, I find that the first time that the claimant suggested in his evidence in any meaningful way that his disclosures about the false rumours were made in the interest of the patients, their families and the hospital, was in his third witness statement and during oral evidence to today’s hearing. His first witness statement does not address the issue and the emphasis in the second witness statement is on the claimant’s belief that disclosures about breaches of patient confidentiality are in the public interest.

[62]His evidence to this hearing that he did not know whether the disclosure about the false rumours was in the public interest, and that it wasn’t in his mind whether it was in the public interest or not is, in my view, telling. It is also consistent with the contemporaneous evidence in terms of the emails he sent in March 2016 that his concern was his reputation and to clear his name. There is no contemporaneous evidence whatsoever to suggest that the public interest was in the claimant’s mind when he made the disclosures.

[63]Nor in there any such evidence in his claim form, which he presented to the Tribunal on 24 January 2017 or the witness statement that the claimant prepared for the Preliminary Hearing in June 2017, that he believed the disclosures he made to be in the interest of patients, their families and the hospital.

[64]Whilst I have no hesitation in finding that disclosures about breaches of patient confidentiality in a hospital would be in the public interest, there is a clear distinction between disclosures about breaches of patient confidentiality and disclosures about false rumours of breaches of patient confidentiality. It is the latter that I have to consider.

[65]In reaching my conclusions I have, as Ms Sabir suggested, taken account of the particular circumstances which might affect the claimant’s understanding of the public interest. The claimant is from Syria but has worked in the medical profession in both the UK and in Syria. He is an intelligent and articulate individual who is able to clearly express his views, obtain legal advice and assert his rights. He was and is familiar with the importance of patient confidentiality and demonstrated through his evidence his understanding of the public interest in patient confidentiality. He also referred in his claim form to defamation. Whilst I accept Ms Jabir’s submission that disclosure of information about defamation can potentially be in the public interest, I find that in this case the public interest was not in the claimant’s mind when he made the disclosures.

[66]It is in my view likely that, if the claimant had a belief at the time of his disclosures, that they were in the public interest, he would have said so. Instead, he referred in the contemporaneous evidence only to his personal interest in making the disclosures.

[67]The references to the public interest came at a much later stage in the proceedings. Whilst I accept in its entirety Ms Jabir’s submission that the claimant should not be penalised for delays in arranging this hearing, the reasons I place less weight upon his third witness statement are that:

Conclusions

[1]The statement was his third attempt at evidence and produced shortly after the second statement on the advice of counsel. It is therefore largely selfserving; and

[2]The statement was directly contradicted by comments made by the claimant in oral evidence during the hearing that the public interest was not in his mind at the time of the disclosures. 68. For the above reasons I find that, at the time of the disclosures about the false rumours in March 2016, the claimant did not subjectively believe that the disclosures he was making were in the public interest. Rather, be believed that they were in his own personal interest, and he did not consider the public interest at the time. The disclosures do not, therefore, fall within section 43B of the Employment Rights Act and, as such, are not qualifying disclosures.