Mr C Porter v ABM Technical Services Ltd: 3335015/2018
EMPLOYMENT TRIBUNALS
Case No 3335015/2018
Between
Mr C PorterClaimantABM Technical Services LtdRespondent
Before
Employment Judge MidgleyMr J Chambers (instructed by Solicitor) for respondentDate 31 July 2020
JUDGMENT
[1]The claimant’s claims that he suffered detriments on the grounds of having made protected disclosures are not well founded and are dismissed. The claimant was not subjected to the detriments alleged or, where he suffered a deteriment, it was not on the grounds that he made a protected disclosure.[2]The claimant’s claim that he was automatically unfairly dismissed on the grounds that he made protected disclosures is not well founded and is dismissed. The respondent did not breach the implied term of mutual trust and confidence by subjecting the claimant to detriments on the grounds that he had made protected disclosures.[3]The claimant’s claim for notice pay is not well founded and is dismissed. The claimant resigned and was not dismissed for the purposes of s.95 ERA 1996.[4]The claimant’s claims of harassment related to the protected characteristic of age are not well founded and are dismissed.[5]The claimant’s claims of direct age discrimination, with the exception of the complaint concerning Mr Mundle’s comments on 12 January 2018, are not well founded and are dismissed. The complaint of direct age discrimination relating to Mr Mundle’s comments are well founded, but the Tribunal does not have jurisdiction to hear it as it was presented out of time and it would not be just and equitable for time to be extended. The claim is therefore dismissed. Case No: 3335015/2018[1]The claimant’s application for an anonymization order pursuant to Rule 50 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is dismissed.[2]The claimant’s application for reconsideration of the Judgment sent to the parties on the 4 August 2020 pursuant to rule 71 and 72 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is dismissed.
REASONS
[3]By email dated 14 August 2020 the claimant made the following applications: 3.1. An application for an order pursuant to rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) that his name should be anonymized from the Judgment dated 4 August 2020. 3.2. An application for reconsideration of the Judgment pursuant to Rule 72 of the Rules; 3.3. An application for written reasons in respect of the Judgment.[4]The grounds of the application for the Rule 50 order were sparse indeed. The application simply notes that the claimant was a whistleblower and that status had and would continue to affect his future employment. The application contains no explanation of how the written judgment containing his name would have that effect nor does it set out any basis on which it is argued that the provisions of Rule 50 would apply to his situation.[5]The basis of the application for reconsideration was more extensive. The particular grounds of the application will be set out in the conclusions so that the conclusion on the grounds may be easily referenced to the complaints themselves.[6]The applications were copied to the respondent, but the respondent has not commented on either. The Relevant Law Rule 50
The Relevant Law
[7]It is a fundamental cornerstone of the common law that justice should be open (see Scott v Scott [1913] AC 417 and Global Torch Ltd v Apex Global Management Ltd [2013] 1 WLR 2993). 8. ‘Open justice’ requires the public to be able to attend hearings and enables the press to report on proceedings contemporaneously, including the identities of the parties and witnesses. There have been many higher court iterations of the principle, one of the most seminal of which is that of R v Legal Aid Board (ex parte Kaim Todner) [1999] QB 966 per Lord Woolf MR: “It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.”[9]However, the administration of justice is not merely subject to the common law but also to the Convention rights contained within the European Convention of Human Rights. The relevant rights which are engaged in the current case are as follows: Article 6, Article 8 and Article 10.[10]Article 6 concerns the right to a fair hearing and provides: “In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the public life parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”[11]Article 8 concerns the right to respect for private and family life. It is a qualified right which provides that everyone has the right to respect for his private and family life, his home and his correspondence. The right is qualified by the exception ‘except such as is in accordance with the law and is necessary in a democratic society… For the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedom of others.’[12]Article 10 provides for the freedom of expression and is the article prayed in aid by the broadcast media and written press. The right is qualified in the same manner as the Article 8 right.[13]Those competing rights find their focus in the Tribunal process in the wording of Rule 50. That provides: “(1) A Tribunal may at any stage of the proceedings, on its own motion or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act. (2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression. (3) Such orders may include –(a) an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private;(b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record;(c) an order for measures preventing witnesses at a public hearing being identifiable by members of the public;(d) a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act. (4) Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing. (5) Where an order is made under paragraph 3 (d) above – (a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited is likely to lead to that person’s identification; (b) it shall specify the duration of the order; (c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the noticeboard of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and (d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing. (6) ‘Convention rights’ has the meaning given to it in section 1 of the Human Rights Act 1998.”[14]S.10A is ostensibly limited to cases of confidential information as defined in s.10A(1). However, it is now well recognised that a Restricted Reporting Order (“RRO”) can be made in a broad spectrum of cases even where sections 11 or 12 are not engaged (see Fallows v News Group Newspapers [2016] ICR 801 and F v G UKEAT/0042/11/DA where Underhill P, reviewing X v Commissioner of Police for the Metropolis [2003] ICR 1031 and A v B [2010] ICR 849, noted: “.. In a case where anonymisation or restricted reporting orders are sought in order to protect article 8 rights, which will in practice cover most cases caught by rules 49 and 50, the tribunal’s powers do not have to be derived from those rules. On the contrary, it has wide powers to take appropriate steps, unconstrained by their specific terms.”[15]Just because a complaint of party falls into one of the categories does not mean that an order will be justified, even if both sides consent. The question is always whether the balance between the ss. 11 and 12 protection and the principle of open justice actually justifies the making of such an order (see X v Y [1998] ICR 43).[16]The balancing exercise to be conducted in a case involving these conflicting rights was described by Lord Steyn in re S (A Child) (identification: Restrictions on Publication) [2004] 3 WLR 1129 (at paragraph 17) as follows: “… What does, however, emerge clearly from the opinions are four propositions. First, neither article [8 and 10] has, as such, precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the ultimate balancing test. …”[17]Generally, the issue may be straightforwardly determined without the need for a complex or lengthy hearing: “I should add that Lord Steyn’s reference to ‘an intense focus’ [in Campbell v MGN Ltd [2004] AC 457] does not mean that every time a litigant waves an article 8 flag in support of an application for a private hearing there will have to be a protracted and expensive hearing to determine the issue. Often, indeed usually, experience suggests that the application can be determined very quickly. It also shows that, in most cases falling outside the area of recognised exceptional circumstances …, the open justice principle will prevail.” Per Kay LJ in Global Torch, supra.[18]The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence (see Global Torch per Maurice Kay LJ at paragraph 13).[19]An order under Rule 50 interferes both with the principle of open justice and the right to freedom of expression. The principle of open justice was considered by the Supreme Court in A v British Broadcasting Corporation [2014] 2 WLR 1243 in which Lord Reed said at [23]: “It is a general principle of our constitutional law that justice is administered by the courts in public, and is therefore open to public scrutiny. The principle is an aspect of the rule of law in a democracy. As Toulson LJ explained in R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618 , para 1, society depends on the courts to act as guardians of the rule of law. … In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny.”[20]Where the relevant rights are not likely to be vindicated in the trial process because they are not directly relevant the position was addressed by the Supreme Court in Guardian News and Media Ltd (supra) - in general the public “are more than capable of drawing the distinction between mere suspicion and sufficient evidence to prove guilt” (para 60) and more would be needed to justify any derogation of the principle of open justice.[21]However, a distinction may properly be drawn between a party who initiates the proceedings and is thus to be treated as having accepted the embarrassment and reputational damage involved in litigation and a witness who has no interest in the proceedings, who has a stronger claim to be protected by the courts if liable to be prejudiced by publicity (see R v Legal Aid Board, ex parte Todner at 978F) Reconsideration[22]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. [The application was therefore received within the relevant time limit].[23]Under Rule 5 the Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in the Rules or in any decision, whether or not (in the case of an extension) it has expired.[24]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[25]The grounds relied upon by the claimant are detailed in the conclusions below.[26]The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/60 the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. Conclusions Rule 50 application
Conclusions
[27]The claimant has not identified any ground on which the overriding principle of open justice should be set aside. In particular, the claimant has not suggested that the act of publishing the Judgment will disclose confidential information or information relating to his health (not that such matters of themselves provide reasonable grounds for making a rule 50 Order without more).[28]The claimant complains that reporting his concerns to his employer has had and will continue to have any effect on the claimant’s future employment. I note that the complaint does not relate to the inclusion of his name in the Judgment but rather to the disclosures which he made to his employer.[29]Even were the claimant’s argument to be that if the Judgment recording that he made a protected disclosure were to be published the finding that he made a protected disclosure would adversely affect his future employment prospects, that of itself is certainly not enough to displace the principle of open Justice.[30]I suspect that the claimant has made this application at the point at which he has requested written reasons but not before, because of the findings made in the Judgment which were critical of him, and which he does not want published, although that, of course, will be the consequence of the claimant’s request for written reasons unless a rule 50 anonymity order were made.[31]In conclusion therefore the claimant has not shown any good ground on which an order should be made under rule 50 and I dismiss the application. Conclusion on the request for reconsideration.[32]The test that I must apply is whether there is any reasonable prospect of the original decision being varied or revoked.[33]I address each of the grounds relied upon in turn: The Judge took into account irrelevant considerations on behalf the respondent which were not supported by evidence 33.1. These were not particularised in the application; I have understood the claimant to be alleging that the Judgment was predicated on findings of fact in respect of matters which the respondent had not adduced evidence to establish. The claimant has neither identified what those findings of fact were, nor the basis on which it is said that there was no evidence to support them, nor the basis on which to suggest that the findings themselves were irrelevant to the issues which I had to address. The Judge failed to make findings of fact on relevant supporting evidence from the claimant 33.2. The findings of fact in question have not been not identified by the claimant in the application, nor have the issues to which they related or the manner in which such evidence have affected my conclusion on any of the issues before me. The claimant did not have the benefit of support from ELIPS during the hearing. 33.3. It is correct that the claimant did not have the benefit of support from ELIPS during the hearing. That is because the hearing occurred shortly after the national lockdown was lifted, and at that stage ELIPS was only offering support by telephone or by video with an appointment. However, the claimant indicated that he was content to proceed with the hearing. The claimant has not identified the basis on which the lack of support from ELIPS had any material impact upon his ability to give evidence or Mrs Porter’s ability to present his case. The Judge prevented fair cross examination of the respondent’s witnesses, without any proper explanation. 33.4. It is correct that I often had to stop and refocus Mrs Porter’s cross examination because she consistently sought to suggest to the respondent’s witnesses that(a) the respondent had breached the claimant’s contract by unilaterally changing his hours of work and location of work, or(b) that the respondent had breached the Working Time Regulations, or(c) that the respondent had breached the National Minimum Wage Regulations or(d) the Health and Safety at Work Act. Employment Judge Livesey had previously refused the claimant’s application to amend to include those claims. I painstakingly explained on numerous occasions to the claimant and Mrs Porter the reason for my actions by reference to the case management summary of Employment Judge Livesey, the issues identified within it, and the decision on the application to amend. 33.5. In particular, I explained that the claimant’s claim of constructive unfair dismissal was only permitted to proceed under section 103A ERA 1996 on the basis that the detriments, said to have occurred because the claimant made protected disclosures, also amounted to a breach of the implied term of mutual trust and confidence. The claimant’s allegations of breach of contract and other allegations were not relevant to the issues that I had to decide. Consequently, it was necessary for me to refocus the Mrs Porter’s cross examination upon the issues. I adjourned the case on several occasions so that the Mrs Porter could review her questions to ensure that she addressed those issues. The Judge failed to prevent unfair and untrue questioning by the respondent of the claimant’s witnesses 33.6. The application does not specify which questions the claimant believes were unfair or why they were unfair. However, I assume that the claimant’s complaint relates to questions asked in respect of the relationship between the claimant, Mrs Porter and Mr Mark Oddy, who was a witness for the claimant. 33.7. Those questions seemed to me to be relevant, given that Mr Oddy was the claimant’s line manager for a significant period of time. It was he who had allocated work and overtime to the claimant. The respondent’s case was that Mr Oddy was in a relationship with Mrs Porter, and he had allocated overtime work to the claimant on a preferential and unfair basis as a consequence of that relationship, and that the work was given to the claimant with his knowledge and consent because of the financial reward connected to it, rather than because the claimant had made a protected disclosure or because of his age. That was their defence to the allegation in issue 13.6.2 (Thursday night work was overtime work which entitled the worker to time off on the Friday). The respondent cross-examined Mr Oddy on the basis that he was the manager who was responsible for that allocation and each of the matters identified in issues 14.1.2 to 14.1.5 and confirmed with him that his decisions were not influenced in any way by the claimant’s age. 33.8. The respondent argued that these matters were relevant both to the issue of whether the detriments had occurred as alleged, and also to the claimant’s general credibility. The claimant denied that there was any relationship beyond a professional working one between himself and Mr Oddy, or that there was any relationship at all between Mr Oddy and Mrs Porter. However, the respondent established during cross examination that the claimant lived in an annex to Mr Oddy’s house, that Mr Oddy had brought Mrs Porter as his ‘plus one’ to a work barbecue and the two had stayed in a hotel provided by the respondent for that purpose, and that Mr Oddy was shown in a photograph with the claimant on holiday in Dubai, which the claimant sought to suggest was merely a coincidence, having previously denied that he had been on holiday with Mr Oddy at all. 33.9. In addition, the respondent quite properly put to Mr Oddy that during the time that he was the claimant’s line manager, he had authorised overtime payments to the claimant for hours which the claimant had not in fact worked, which argument was evidenced by tracker information from the claimant’s work van and the worksheets in question. It was appropriate that Mr Oddy should have the opportunity to comment upon those very serious allegations given they were to form part of the respondent’s closing arguments. The Judge failed to assist the claimant when he indicated that he did not understand the process during the hearing 33.10. I understand the claimant’s complaint to consist of two key matters. First, the complaints about cross examination, which are addressed above. Secondly, the claimant’s complaint in relation to his witness statement, which is addressed below. Generally, I repeatedly and carefully explained the nature of the issues, the arguments and evidence that might be relevant to those issues, the nature of the decision that I had to make and the process that would be adopted to the claimant and his mother, on many occasions, adjourning the case so that they could consider or review their position or approach in light of my explanations. The Judge failed to review the time allocated for the hearing and the orders made prior to the hearing itself. In consequence the claimant was not on an equal footing. 33.11. The hearing had been listed at the preliminary hearing before Employment Judge Livesey, with the parties’ consent, having regard to the issues, the number of witnesses to be called and the length of witness statements that were then permitted. At the outset of the hearing I discussed the proposed timetable within the case management summary with the parties. It was not possible for me to increase the listing of the case nor was it appropriate having regard to the overriding objective. Mrs Porter believed that the case was a far broader one than it was and wished for longer to cross examine and for her son to give evidence. That was neither necessary nor appropriate given the issues in the case. The Judge instructed the claimant to review the statement and identify, by reference to paragraphs in the statement, which paragraphs were relied upon in respect of which of the issues which have been identified in the case management hearing. The Judge did not permit the claimant sufficient time to conclude that process, and failed to adjourn the hearing to enable the claimant to complete it. 33.12. At the case management hearing before Employment Judge Livesey the claimant was directed to produce a witness statement limited to 5000 words. In the event he produced a statement of approximately 17,500 words. He had not been permitted to do so. At the outset of the hearing I explained that I had approximately three hours reading time and, on the basis that a judge takes approximately a minute to two minutes to read a page of A4, in the circumstances where that I had bundle of 368 pages and five statements, there simply would be insufficient time to read the necessary evidence and all of the claimant’s statement. The statement was itself a mixture or evidence and argument, containing many broad statements of unfairness and discrimination. 33.13. I therefore directed that the claimant should identify which paragraphs in the statement contained the evidence he relied upon in relation to the issues in the case management summary, and indicated that I would read those paragraphs which would be treated as his witness statement for the proceedings. I adjourned the case until 10 AM the following day to enable the claimant to complete that process, for me to read the paragraphs and for the respondent to review its cross-examination in respect of them. The claimant had not completed the process by 3 PM on the first day, and therefore I called the parties into court to discuss the appropriate course. Mrs Porter stated that she would be able to complete the process of cross-referring the paragraphs of the statement with the issues by 3:15 PM. I therefore permitted her to do so. In the event, Mrs Porter sent the document to the tribunal at 3:30 PM. She did not suggest then or the next morning that she had insufficient time to conclude that task. The Judge failed to address the claimant’s complaints which he had raised prior to the final hearing about the respondent’s actions, including the failure to cooperate with joint bundle and to provide information requested. 33.14. On the first day of the hearing, the bundle had been agreed, subject to some additional documents which the claimant wish to be added. The respondent did not object to the inclusion of those documents and accordingly they were added by consent. The claimant did not suggest that any historic failure to agree the content of the bundle or to provide information had the effect that the hearing could not or should not proceed. Accordingly, the case commenced on 27 July 2020 with the claimant’s consent. The Judge made a mistake in the application of the law and/or produced a Judgment which was one which no reasonable tribunal could have reached. 33.15. The claimant does not identify what error of law was made or the basis on which it is said that the judgment was not one which a reasonable tribunal could reach.[34]In my view, none of the grounds relied upon reveals any reasonable basis on which I could conclude that there is any reasonable prospect of the Judgment being varied or revoked. Accordingly, I dismiss the claimant’s application for reconsideration Request for written reasons[35]The claimant has requested written reasons for the Judgment. The Reasons contain findings which are adverse to and, at times, critical of the claimant. As I explained at the hearing, if the claimant requests written reasons those comments and findings will be published to the Tribunal Judgment website, where they will be available in perpetuity for any member of the public, including any prospective employer, to read.[36]Accordingly, in the circumstances where I have dismissed the claimant’s application for an anonymity Order pursuant to rule 50, the claimant must write to the Tribunal within seven days of the date on which this Judgment I is withdrawn.