DR H BRIGHT v HARROW & HILLINGDON HEALTHCARE NHS TRUST [2001] UKEAT 115_01_2607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 115_01_2607Case No Appeal No. EAT/115/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR H BRIGHTAPPELLANTHARROW & HILLINGDON HEALTHCARE NHS TRUSTRESPONDENT
Before
Mr Justice Douglas BrownLord Davies of CoityDate 26 July 2001
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE DOUGLAS BROWN: At the conclusion of the preliminary hearing of the appeal of Doctor Helen Bright –v- Harrow & Hillingdon Healthcare NHS Trust we announced that Doctor Bright's appeal would be dismissed at that stage. We now give our reasons for that decision. The appeal was from a decision from the Employment Tribunal at London Central dated 29 November 2000. The unanimous decision of the Tribunal was that the appellant was not subjected to any detriment by her employer on the ground that she made "protective" disclosures within the provisions of sections 43A to 49 of the Employment Rights Act 1996. The principal respondent was the NHS Trust but the Medical Director, Doctor Peter Jeffries and the Nursing Director, Mr Will Evans, were also respondents.[2]First ground of appeal is that there was bias on the part of at least one member of the Employment Tribunal, Mrs C Messias. Mrs Messias had been a member of Harrow Health Authority from the late 1970s until the early 1990s and before that had been on the Management Committee at Northwick Park Hospital which is the hospital concerned in these proceedings. All this was made clear by the respondent's counsel at the outset of the hearing and Doctor Bright, who had a Consultant representing her, raised no objection to Mrs Messias being a member of the Tribunal.[3]Doctor Bright complained of gross bias exhibited by Mrs Messias towards her during the hearing. This manifested itself in hostile questions and also by reason of the fact Mrs Messias smiled at Doctor Bright excessively compared with the other members of the Tribunal who did not smile at all. Doctor Bright, who is a Consultant Psychiatrist, gave it as her view that she smiled in this way because she knew she was guilty of bias and was making up in her pretences. In psychological terms this is known as reaction formation, that is, being very nice when in fact the real feelings are in the opposite direction. In an affidavit she swore, Doctor Bright also criticised another member of the Tribunal, a Mr Warburton, for unnecessarily aggressive questioning. The Appeal Tribunal has been provided by the Chairman, Ms Jean Laidler, with a full response to these allegations of bias and having heard Doctor Bright's representations we are of the view that she has not begun to make out a case of bias on the part of the Employment Tribunal Doctor Bright had difficulty drawing the distinction between a biased attitude and proper and relevant questions from the fact finding Tribunal. This ground of appeal has no prospect of success.[4]Turning to the other grounds of appeal it is helpful if we set out the statutory frame work within which Doctor Bright's application was made.[5]The sections of the Employment Rights Act 1996 which the Tribunal were concerned with were inserted into the Act by section one of the Public Interest Disclosure Act 1998.[6]The sections are found in Part IVA headed Protected Disclosures. The relevant sections are 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, tends to show one or more of the following:- (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) That the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. (2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. (3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. (4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice. (5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) or subsection (1). 43C Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith:- (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to:- (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility to that other person. (2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer. 43F Disclosure to prescribed person. (1) A qualifying disclosure is made in accordance with this section if the worker:- (a) Makes the disclosure in good faith to a person prescribed by an order made by the Secretary of State for the purposes of this section, and (b) Reasonably believes:- (i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true. (2) An order prescribing persons for the purposes of this section May specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed. 43G Disclosure in other cases. (1) A qualifying disclosure is made in accordance with this section if:- (a) the worker makes the disclosure in good faith, (b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, (c) he does not make the disclosure for purposes of personal gain. (d) any of the conditions in subsection (2) is met, and (e) in all the circumstances of the case, it is reasonable for him to make the disclosure. (2) The conditions referred to in subsection (1)(d) are:- (a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F, (b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or (c) that the worker has previously made a disclosure of substantially the same information:- (i) to his employer, or (ii) in accordance with section 43F. (3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to:- (a) the identity of the person to whom the disclosure is made, (b) the seriousness of the relevant failure, (c) whether the relevant failure is continuing or is likely to occur in the future, (d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person, (e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and (f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer. (4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by an person as a result of the previous disclosure."[7]Helpfully the parties agreed that before the Tribunal there were two relevant disclosures for the purposes of these proceedings. Firstly, there was a disclosure by letter to Sister Bernadette Onwuzurigbo and secondly, disclosure to a journalist employed by the Evening Standard newspaper. The issues for the Tribunal was whether those disclosures amounted to "qualifying disclosures" within the meaning of section 43B.[8]If they were qualifying disclosures the next issue is whether the were made in accordance with the provisions of section 43C to 43H.[9]The next issue was, that if they were, whether the appellant had been subject to a detriment on the ground that she had made a "protected disclosure".[10]The facts in summary were these. The appellant is a Consultant Psychiatrist and was engaged by the respondent through the Locum Register and took up her appointment on the 7 December 1998.[11]The respondent works closely with the London Borough of Harrow Social Services Department and late September or early October 1999, Sister Bernadette, who is a psychiatric social worker, took up an appointment as a team manager of a community mental health team at a centre run by the Harrow Social Services Department. Sister Bernadette is a nun and wore the modern type short habit and headdress.[12]Sister Bernadette was primarily working in the community visiting patients in their home and only a small percentage of her time was involved in ward visits and attending meetings at the respondent's premises. While Doctor Jeffries and Mr Evans had no concerns about a nun dressed as such, working as a social worker with the mentally ill, Doctor Bright's view was very different and it is Doctor Bright's opinion as to this that lies at the heart of this unhappy dispute.[13]Before Sister Bernadette took up her appointment, but when news of it was available, Doctor Bright spoke to Doctor Jeffries and described the employment of Sister Bernadette wearing her habit as ridiculous.[14]She went to see a Mr Brown of the Community Mental Health Service, to explain her concerns that she had. At this stage her concerns were for the safety and mental health of patients who might resent the presence of a nun.[15]On 15 October Doctor Bright wrote to Sister Bernadette herself as follows:
"Dear Sister Bernadette, Re wearing of uniforms. I should be grateful if you could telephone my secretary to arrange a meeting to discuss this subject. You would have noticed that we do not wear uniforms and I would like to explain why this is the case. I am writing to you in the first instance because I would like you to have sufficient time to prepare your case. You are welcome to bring a friend of yours to the meeting or even your boss if you wish"
[16]Sister Bernadette's manager, Mr Van Brummen, was given a copy of this letter by the Sister and he wrote to the Chief Executive of the respondent expressing concerns as to the contents of the letter which gave the impression that Doctor Bright was intending to discipline Sister Bernadette. Doctor Bright herself wrote to Mr Van Brummen on 26 October 1999. The thrust of that letter was that in psychiatry uniforms are not worn. As a doctor she did not wear a white coat and nurses did not wear nursing uniforms. Not wearing a uniform helps gain the trust of the patients. Some patients had suffered abuse at the hands of various institutions and it was important to display an attitude of open mind by appearing not to make a strong identification with any institution.[17]Doctor Bright repeated her views to others and this led to Mr Evans writing to Doctor Bright a letter of 9 November in these terms. The letter began by telling Doctor Bright that he had been made aware of the letter she had written to the Sister and continued: "I would like to convene a meeting between you, me and either Doctor Harry Doyle as lead Clinician, or Doctor Peter Jeffries as Medical Director, to discuss these issues ". and the suggested date for the meeting was 17 November.[18]A day or two before that meeting the appellant contacted Mr Payne, a reporter with the Evening Standard and as a result of their conversation an article was published in the Evening Standard for 17 November with the headline " Doctor tries to ban nun's habit" . Mr Evans had learned the day before of this projected article and spoke to the appellant on the telephone to discuss it. The appellant told him that she felt she had to protect herself and her good name because since she had raised her concerns about having a nun working in the service she was "beginning to get sideways glances in the corridor". Her views had been ignored and she had no other option but to raise them publicly. She chose not to consult her defence union before going to the press, stating in evidence that it was not their job to decide what was in the public interest but she could decide that.[19]At the meeting on 17 November Doctor Bright enlarged her concerns. Sister Bernadette was at risk of being murdered or attacked because she was wearing her habit and as Harrow had a strong Irish Catholic population frequently unhappy with nuns and priests, this could cause serious problems for the Sister if she came across a patient who had religious delusions.[20]It was agreed at the meeting that the appellant would send an apology by Email for Mr Evans to consider it with the Chief Executive before it was forwarded to Sister Bernadette. This apology in the end was not forthcoming.[21]There was a further meeting on 3 December when the appellant sought to defend her stance in connection with Sister Bernadette by challenging her competence.[22]The question of apology was again left over until 7 December when another and final meeting took place. The Tribunal found that it was obvious by this stage that the respondents had concluded that as the relationship within the team had broken down it would be preferable if the appellant's contract ended early. It was agreed that she would complete her work as of 15 December and be paid up to 5 January 2000. It was agreed that the respondents would give her a reference. On 9 December another article appeared on the front page of the Evening Standard entitled " Doctor in row over nun loses her job" . The appellant was quoted as saying: "I am being dismissed because I have talked to the press".[23]Doctor Jeffries did give a reference dated 16 December which he sent to the Locum Register. The first two paragraphs set out the details of the appellant's responsibilities and described her as " a highly intelligent, well informed psychiatrist who was respected for her clinical skills by colleagues". He then went into considerable detail on how she came to leave the employment of the respondents as a consequence of a breakdown in the working relationship with other team members and Doctor Bright's stance on Sister Bernadette's dress was then mentioned as was her contact with the national press and the reference concluded:
"I very much regret that this Trust would not be prepared to re-employ Doctor Bright as a Locum Consultant Psychiatrist"
. The Tribunal said that they found both Doctor Jeffries and Mr Evans to be extremely straightforward and honest witnesses and wherever it differed from that of the appellant they preferred the evidence given by them. The reasons continue:
"This led us to the conclusion that even if we were to accept, which we do not, the applicant's primary concern was about the health and safety of Sister Bernadette and/or the patients, she did not have "a reasonable belief" for the view within section 43B(1)"
. They contrasted the experience of Doctor Jeffries and Mr Evans working in the psychiatric field. Doctor Jeffries had been a Consultant Psychiatrist at the hospital for many years. They had worked with nuns in the hospital environment who wore habits and they were not aware that there had ever been a problem. The Tribunal completely rejected Doctor Bright's evidence to the contrary. That led them to the view that Doctor Bright had failed to satisfy the Tribunal, that she had made a "protected disclosure". Doctor Bright had no reasonable belief that the health and safety of any individual was likely to be endangered and therefore she did not make a "qualified disclosure". The qualifying disclosure under section 43G fell at the first hurdle. Section 43G(1)(a) provides that qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith. The reasons made reference to the judgment of Lord Denning MR in Central Estates (Belgravia Ltd) –v- Woolgar 1971 3 All England Reports 647. When the question is being considered whether a claim had been made in good faith it must be made: "honestly and with no ulterior motive".[24]The Tribunal found that Doctor Bright did have an ulterior motive, namely, the appointment of Sister Bernadette per se , as evidenced by the statement made by her at the meeting on 2 November 1999 about her competence.[25]If the appellant had succeeded in overcoming (a) subsection (1)(b) required that she:
"reasonably believes that the information discussed and any allegation contained in it are substantially true"
. Basing themselves on the evidence of Doctor Jeffries and Mr Evans the Tribunal found that Doctor Bright's allegations that the health and safety of Sister Bernadette and/or patients was at risk was not substantially true.[26]The Tribunal then found that a disclosure to the press was not reasonable "in all the circumstances of the case" (Section 43G(1)(e)) In order to consider this aspect of the matter the Tribunal had to have regard in particular to the facts and matters set out in Section 43G(3)(a to f). They took into account that the person to whom the disclosure was made was a journalist rather than any of her own professional bodies such as the General Medical Council, her defence union, or as they might have added, the Royal College of Psychiatrists. Subsection (3)(b) was taken together by the Tribunal with (c) that is the seriousness of the relevant failure and whether it was continuing or likely to occur in the future. The Tribunal held that the relevant failure referred to was the wearing of the habit and the respondents failure to deal with that. There was no urgency at this stage about the matter as there was no evidence of any patient complaining or any adverse reaction of any particular patient. No patient reaction in relation to the wearing of the habit had in fact occurred. So far as (d) was concerned the Tribunal accepted that the disclosure was not made in breach of confidentiality.[27]There had been a previous disclosure of substantially the same matter to the respondent (employer). That engaged subsection (3)(e). The employers action was to arrange the meeting on 17 November and it was plain therefore that the respondents were taking steps to deal with the matter and discuss the issues with Doctor Bright. Doctor Bright however, did not wait to see the outcome of that meeting before providing her story to the press.[28]Finally, it was Doctor Bright's case that the detriment she suffered was the nature of the reference given by Doctor Jeffries on 16 December. The Tribunal found that Doctor Bright did not suffer a detriment as a result of disclosure made by her. Doctor Jeffries was under an obligation to provide an accurate reference to the Locum Register because of the relevant code of practice and his general common law obligations. They accepted Doctor Jeffries evidence that the reason for the contents of the letter was the breakdown in the working relationship between Doctor Bright and members of her team. In other words there was no causative link between the disclosure to the press and the letter even though that was mentioned in the letter.[29]In our view the Employment Tribunal came to a correct conclusion in respect of all these matters. Firstly the letter to the Sister on the face of it was not a "qualified disclosure". Next, having heard Doctor Jeffries and Mr Evans and accepted their evidence in preference to Doctor Bright, there was material on which the Employment Tribunal could decide that Doctor Bright had no reasonable belief that the health and safety of any individual was likely to be endangered.[30]The Employment Tribunal also came to a decision which cannot be successfully challenged that the disclosure was not made in good faith. The Employment Tribunal put forward one reason which we think sufficient. In any event however, it is obvious from the facts found that there was other motivation. It is clear from the facts found that Doctor Bright's reason for going to the press was for her own protection, largely her good name as she "was beginning to get sideways glances in the corridors". Question of good faith can be safely left to the experience and judgment of the Employment Tribunal and no error of approach on their part is identified here. The same factual background fully justifies the finding that disclosure to the press was not reasonable in all the circumstances of the case.[31]Finally the conclusion that the "detriment" had not arisen because of the disclosure to the press cannot be successfully challenged. The working relationship had clearly broken down before Doctor Bright thought of contacting the press.[32]In the result none of Doctor Bright's grounds raise an arguable point which should be considered further and the Appeal fails at this stage.