LONDON BOROUGH OF HARROW v MR M S KNIGHT [2002] UKEAT 0790_01_1811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0790_01_1811Case No Appeal No. EAT/0790/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF HARROWAPPELLANTMR M S KNIGHTRESPONDENT
Before
Mr Recorder UnderhillDate 18 November 2002
[1]APPEARANCES For the Appellant MR BEN PATTEN (of Counsel) London Borough of Harrow PO Box, 2 Civic Centre Station Road Harrow Middlesex HA1 2UH For the Respondent MR M S KNIGHT (the Respondent in person) MR RECORDER UNDERHILL QC This is an appeal against a decision of an Employment Tribunal sitting at London Central that the Respondent to this Appeal (to whom we will refer as Mr Knight) was subjected to a detriment by the Appellant (to whom we will refer as the Council) contrary to s. 47B of the Employment Rights Act 1996, which is part of the so-called "whistle-blower" protection introduced by the Public Interest Disclosure Act 1998. The Council has been represented before us by Mr. Patten, who also appeared below. Mr. Knight has appeared in person and has argued his case with clarity and courtesy.[2]S. 47B (1) provides as follows:
"A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure." "
Protected disclosure" is defined in ss. 43A to 43L of the Act, in terms which we need not set out here.[3]In broad outline, the background to the case is as follows:(1) Mr Knight was employed by the Council as a Technical Officer in its Environmental Services Department. His immediate superior was Mr Dunne, an Environmental Health Officer, who in turn reported to the Chief Environmental Health Officer, Mr Esom.(2) In October 1998 Mr Knight and another officer were investigating apparent breaches of regulations by a food business in the borough ("the business"). The owners of the business alleged that Mr Dunne had known about the breaches for over two years and had condoned them.(3) On 25 th February 1999 Mr Knight made a report to the Council's Chief Executive and Director of Finance, Mr Redmond, in accordance with the provisions of the Council's whistle-blower procedures, raising concerns that Mr Dunne might have been complicit in breaches of regulations by the business. Although this is not clear from the Reasons, it is common ground that the report was also critical of Mr. Esom.(4) Mr Redmond appointed Ms Ney, the Director of Social Services, and Mr Balabanoff, the Borough solicitor, to investigate Mr Knight's allegations. Their investigation overlapped with the conduct of the prosecution of the owners of the business: it was plainly on the cards that they might themselves raise the allegations of complicity by way of defence to the prosecution. It seems from a passage in the Tribunal's Reasons which we set out at(5) below - though it is not elsewhere expressly stated - that in the course of the investigations the owners of the business withdrew their allegations about Mr Dunne. (5) The investigators did not produce a final report for some nine months, although an interim report was produced in June. The Tribunal summarised the eventual conclusion of the report in paragraph 14 of the Extended Reasons as follows:
"(a) That the health risks posed by the premises had been reviewed and were within normal bounds; (b) That the allegations against Mr Dunne (and other officers) were concerning but unlikely to be well-founded. This was in light of the subsequent withdrawal of the allegations. Further investigations were therefore not warranted. (c) That management's response to the allegations when they were first made had been inadequate. (d) That there were concerns about the management of the case and the conduct of some managers. (e) That consideration of management investigations and disciplinary action should await the conclusions of the prosecution."
Mr Redmond wrote to Mr Knight on 6 th December 1999 to inform him of the outcome of the investigations. (6) Towards the end of the investigation Mr Knight became increasingly stressed. He went off sick on 18 th November 1999. There is no finding as to the precise nature of his illness, but it was broadly speaking of a depressive nature: in the course of the hearing before us it was conveniently referred to as - in old-fashioned terminology - a nervous breakdown. He wrote a number of letters to Mr Redmond: the Tribunal does not describe their contents in detail, but it is clear that they were expressing anxiety at the progress of the investigation and also that they alleged that he was suffering victimisation as a result of having made the original disclosure. Mr Redmond failed to respond to any of these letters: he passed them to the investigators, who did not reply to them either.[4]Mr Knight's case is that the report to Mr Redmond on 25 th February 1999 was a protected disclosure within the meaning of s. 47B and that the Council had subjected him to a detriment on the grounds of that disclosure. The Tribunal found in his favour; and in a later decision (which is not the subject of an appeal before us) awarded him £12,918. It is convenient to set out in full paragraph 17 of the Reasons, which gives the Tribunal's conclusions. (The paragraph is long and contains several unnumbered sub-heads: for ease of reference we have identified these as (a) to (e).) "17. We will deal with our conclusions under the following headings. [(a)] Legal Background This has already been dealt with in paragraph 1 above. [(b)] The Applicant's Case The Applicant claims that having made a protected disclosure to the Chief Executive of the Respondent he suffered the following detriments. First he alleges he was deprived of the opportunity to remain in the Department because he had failed to obtain the necessary professional qualification. He did not receive letters from the Respondent's officers setting out the arrangements made for the necessary training to obtain his professional qualification and moreover he had been totally misled by a document headed UNISON which suggested that his job may no longer exist and that he might be transferred to another department. Secondly, the Respondent had made a disclosure to a third party of his personal circumstances which he said had changed the whole course of that particular litigation. He further alleged that officers of the Council had discussed him with a representative of his opponent in litigation over the telephone. Thirdly, he had suffered ill-health as a direct result of the matter needing medical interventions for stress and depression resulting in a period of absence from work that was liable to affect any application for future employment. That he claimed was as a result of his perceived treatment by Mr Redmond, Ms Ney and Mr Esom. The complaint against Mr Redmond was that he failed to respond to letters that he had written to him, that he had failed to keep him posted as to the progress of the matter and that he had taken little or no interest in him at all. Against Ms Ney, he complained that she had advised Mr Esom of the full details of his disclosure including his own identity before she saw him. He strongly believed that Mr Esom was involved in wrongdoing. Furthermore, he claimed that Mr Esom was uncaring as he failed to keep the matter confidential and that his position in the Department became wholly untenable. All these matters he said were detriments which were related to his initial disclosure. [(c)] The Respondent's case The Respondent pointed out that this was the first case that it had had with regard to whistle blowing and that it was on a learning curve. The Chief Executive asked two of the Council's most senior officers to investigate the matter on the basis that they were the most appropriate persons to do so. Ms Ney had to involve Mr Esom immediately because she had a public duty to do so. It was a matter of regret that the Chief Executive ignored the Applicant's letters some containing pleas for help. These had been passed to the investigators who themselves had seen no reason to respond to them. They denied that the Applicant had suffered detriments. If he had, they were not related to the disclosure. Mr Esom acknowledged that following the disclosure he had given the Applicant a wide berth. [(d)] The Evidence We found the Applicant to be a good witness who was clear that as a long serving member of the Council he had done nothing but act out of a sense of public duty. We were taken at length through the information relating to the prosecution including the interviews and accepted that he might have had a rather jaundiced view of the way things were going. Although he was an experienced litigant it was the first such interview in which he had been involved. We accepted from him the sense of anxiety and desperation that he felt as the months went by and he was kept uninformed, his letters unanswered and what he saw was a perceived deterioration in the conduct of his colleagues towards him. We did not accept his evidence on the training failure or indeed that there was anything more sinister with regard to the disclosure to the third party. We were not so impressed by the evidence of Mr Redmond. Although he was the custodian of a paper policy he had no experience of its use and merely assigned his responsibility to the two investigators. He had no answer to the charge that he had wilfully failed to reply to letters from an increasingly anxious Applicant. We were more impressed by the evidence of the investigators, save for the fact that we could not accept that Ms Ney had to involve Mr Esom before she had spoken to the Applicant. There was no reason why the Applicant had to wait a month for the interview. We accepted the evidence of Mr Esom in so far as it related to his attempts to bring home to the Applicant the urgency of his training requirements, but found his reports to the investigators tendentious in view of the disclosure of the name of the whistle blower. He was fully aware of the Applicant's susceptibility to stress and anxiety and we did not accept that he did anything to see that it was not exacerbated. [(e)] Generally It is conceded that there was a protected disclosure to the Respondent pursuant to Section 47B of the 1996 Act. We do not accept that the Applicant's failure to qualify was because his managers did not advise him of the need and the steps that needed to be taken. We do however accept that he was towards the end of 1999 unwell. We do not accept that the disclosure to the third party in litigation with the Applicant was related to the disclosure. We do however find that the exacerbation of the Applicant's medical condition is related to the disclosure. The policy is specific in the steps that should be considered in protecting a whistle blower who has made a protected disclosure. The Applicant was acting in good faith. He did believe on reasonable grounds that his information was accurate. He had not gained the material benefit from the disclosure and he had followed the correct procedure in raising the matter within the Respondent. In the event his Head of Department was made fully aware of the circumstances before his own interview with the investigators and we have no doubt that he would not have been overly pleased by what had happened. We accept that the Applicant suffered over the months especially when his letters were ignored both by the Chief Executive and the investigators. He has not gained from this disclosure rather he has suffered a detriment which is directly related to the protected disclosure that he has made.

(a) , is in the following terms:

"The issues for the Tribunal were whether the Applicant made statements which constituted protected disclosures within Section 43B of the 1996 Act, (which was acknowledged by the Respondent), whether the Applicant had thereafter suffered a detriment and whether that detriment was related to the protected disclosures."
[5]It will be seen that the part of paragraph 17 - (e) - which contains the Tribunal's reasoning and conclusion is comparatively short, and regrettably its reasoning is far from clearly expressed. In our view it is particularly important in victimisation cases, which are still rather unfamiliar and require careful analysis, that a Tribunal should, in reaching and explaining its conclusions, set out the elements necessary to establish liability and consider them separately and in turn. That was not done in the present case, save in very general terms by the reference back to paragraph 1 made at paragraph 17 (a), which was not a substitute for seeking to address the stated issues as part of the actual reasoning. In order for liability to be established in the present case, the Tribunal had to find:(1) that Mr. Knight had made a protected disclosure (or disclosures);(2) that he had suffered some identifiable detriment (or detriments);(3) that the Council had "done" an act or deliberate failure to act (for short, an "act or omission") by which he had been "subjected to" that detriment; and(4) that that act or omission had been done by the Council "on the ground that" Mr. Knight had made the protected disclosure identified at (1). This analysis is essentially in accordance with Mr. Patten's submissions and was accepted as correct by Mr. Knight.[6]We consider the Tribunal's reasons in relation to each of those steps in turn. It should however be noted that we have in identifying the steps used precisely the language of s. 47B (1). The Tribunal, by contrast, in paragraph 1 of the Reasons used not the statutory language but its own paraphrase: N.B. in particular the omission altogether of step (3) and the substitution of the phrase "related to" for "on the ground that". Paraphrase is always dangerous: we consider below the extent to which it was fatal. (1) Protected Disclosure[7]It was not in dispute before the Tribunal that Mr. Knight's report of 25 th February 1999 was a protected disclosure. It is the only protected disclosure found by the Tribunal. (2) Detriment[8]In paragraph 17 (b) of the Reasons the Tribunal records Mr Knight as having alleged three "detriments" - first, the loss of the opportunity to remain in the Department because he had failed to obtain the necessary professional qualification; secondly, an incident in which the Council had wrongly disclosed confidential information to a third party with whom he was in litigation; and thirdly, his nervous breakdown.[9]We are not concerned with the first two alleged detriments because the claim based on them was dismissed on other grounds - see paragraph 17 (e) - and there is no cross-appeal. As to the third, there is no doubt that Mr. Knight suffered the alleged breakdown in his health; and that is obviously in one sense a "detriment" (though as to this, see paragraph 12 below). (3) The act (or omission) of "subjection"[10]The Tribunal did not expressly address this step. As noted above, in paragraph 1 of the Reasons it asked simply whether Mr. Knight suffered a detriment "related to" his having made a protected disclosure; and in the crucial paragraph 17 (e) it found that "the Applicant's medical condition is related to the disclosure". That elision of the doing by the employer of an act and the suffering by the employee of the detriment meant that the Tribunal never focused on what precisely it was that the Council did or failed to do. That was potentially important, not only because you need to identify the act in order to ask on what ground the employer did it but also - in the present case - because the events which give rise to the present claim straddle the coming into force of the 1998 Act on 2nd July 1999, and only acts done on or after that date were capable of founding a complaint under s. 47B. Sometimes the doing of the act and the suffering of the detriment are for all practical purposes identical: for example, where the victimisation takes the form of disciplining an employee, the imposing of the disciplinary sanction by the employer and the suffering of it by the employee are two sides of the same coin. But that is not always so, and it was not in the present case: the Council did not on any view directly inflict Mr Knight's illness on him - the most that could be said was that their acts or omissions caused or contributed to it.[11]However, the fact that the Tribunal left out a step in its analysis would not necessarily mean that the appeal should be allowed. It did at various points in the Reasons make findings of fact about specific acts or omissions by the Council which might be thought to have caused or contributed to Mr. Knight's breakdown; and if those do in fact support its conclusion it might not matter that they were not expressly identified as the acts giving rise to the claim. The findings in question are:(1) The Tribunal found that immediately on their appointment Ms. Ney and Mr. Balabanoff told Mr. Esom that Mr. Knight had made the allegations which they were investigating (Reasons, paragraph 8). It found that they should have not done so (Reasons, paragraph 17 (e) - sentence starting "In the event, his Head of Department ..."), although it is to be noted that Ms. Ney gave evidence that she believed that she was obliged to tell Mr. Esom of the complaint. However, this is not a relevant act or omission because it occurred prior to the coming into force of the Act, and no claim could be based on it. The Tribunal makes no reference to the start-date of the Act, although it had been expressly identified as an important feature at a directions hearing on 5 th May 2000. Mr. Knight at one stage submitted to us that in the course of the hearing Mr. Patten had conceded that he could rely on "pre-Act" acts and omissions. But it became clear to us when we explored the point that this was a misunderstanding, probably based on Mr. Patten's abandonment of a limitation point which had initially been taken by the Council. It would have been remarkable if Mr. Patten had made such a concession (especially since the point had been expressly considered at the directions hearing). It is not referred to by the Tribunal, and it would not in any event have been binding since it would have gone to jurisdiction.(2) The Tribunal found that on 1 st March 1999 Mr. Esom responded to that information by submitting a "full case review" to the investigators which "roundly criticised" Mr. Knight (Reasons, paragraph 8). In paragraph 17 (d) Mr. Esom's "reports" are described as "tendentious in view of the disclosure of the name of the whistleblower". It is not clear why the reference is in the plural: the only report in relation to which there is a finding is that of 1 st March. That too, however, pre-dated the coming into force of the Act.(3) There was, as noted above, a finding that Mr. Knight had written to Mr. Redmond on several occasions during the course of the investigation but had received no reply: Mr. Redmond had apparently simply passed the letters to the investigators, who had themselves "seen no reason to respond" (see Reasons paragraphs 16 and 17 (c)). In paragraph 17 (d) the Tribunal characterised Mr Redmond's failure to reply as "wilful": why it used that term is not explained, but a "wilful" failure must at least, we think - assuming the Tribunal to have chosen the word advertently - be a "deliberate" failure within the meaning of the Act. No details are given of the dates, but it can reasonably be assumed that some or all of them post-dated 2 nd July. Thus the failure to reply to Mr. Knight's letters is in principle capable of being a relevant act or omission. And it seems that the Tribunal so regarded it: see the express references to it in paragraph 17 (d) and at the end of paragraph 17 (e) (although it is there referred to more as an aggravating feature than as the act or omission on which liability is grounded).[12]It is possible to construe out of the Reasons a more general "act or omission". Mr. Knight is recorded in paragraph 17 (b) as having submitted that "Mr Esom was uncaring and had failed to keep the matter confidential and that his position in the Department became wholly untenable". Mr. Esom is recorded at the end of paragraph 17 (c) as having accepted that "following the disclosure he had given the Applicant a wide berth". (According to his evidence, we were told, this was because he had been told to be "sensitive", but it seems that the Tribunal may not have accepted that that was his real reason or at any rate a good reason.). At the end of paragraph 17 (d), albeit not in the section at (e) which appears to be intended to give its overall analysis, the Tribunal states that Mr. Esom had done nothing to protect the Applicant from the stresses of his position as a whistleblower. It is fair, we think, to read the Tribunal as having found that the Council did nothing to "look after" Mr. Knight, as required by its own whistle-blower policy. It looks - though this is nowhere explicitly stated - as though the Tribunal believed that Mr. Knight was cold-shouldered by Mr. Esom and by other colleagues in the Department when they got to know of his report through Mr. Esom's failure (referred to in passing and not the subject of a distinct finding) to keep it confidential: such conduct is often encountered by whistleblowers and is of course part of the reason why positive steps may be needed to see that they do not suffer more than will be inevitable in a difficult situation. That conduct by Mr Esom and perhaps others in the Department, and the failure by the Council to counter-act it, may have started prior to 2 nd July 1999, but it will certainly have continued after it. There is, however, no finding that it was "deliberate", as opposed to merely insensitive or careless; and it is far from clear that the Tribunal considered its findings on this point as being more than background - they are not referred to in paragraph 17 (e).[13]The upshot of this discussion is that the only clearly actionable act or omission identifiable from the Tribunal's Reasons is Mr. Redmond's failure to answer Mr. Knight's letters, although it may be arguable that a general failure to "look after" him is another. It was necessary for Mr. Knight to show that by "doing" that omission (or those omissions) the Council "subjected" him to the relevant detriment, i.e. to the resulting breakdown. Although the statutory language is arguably not very well-chosen, the position on the current authorities is that an employer subjects an employee to a detriment if he causes or allows the detriment to occur in circumstances where he can control whether it happens or not: Burton v. De Vere Hotels Ltd. [1997] ICR 1, per Smith J. at p. 10 A-B. It seems clear that the Tribunal thought that Mr. Redmond's failure to answer Mr. Knight's letters contributed to his breakdown; and it can also reasonably be inferred that the same is true of the Council's more general failure to look after him, if that be relevant. Those were conclusions which the Tribunal was entitled to reach. (4) " On the ground that "[14]The question for the Tribunal was whether the Council "did" the relevant act(s)/omission(s) - i.e. failing to answer Mr. Knight's letters and (perhaps) failing to look after him - "on the ground that" he had written the report of 25 th February. The Tribunal did not formulate the question in that way. Instead, as noted above, in paragraph 1 of the Reasons it said that the issue was whether the detriment "was related to" the protected disclosures. The same phrase - "related to" - is used more than once in paragraph 17 of the Reasons: the phrase "on the ground that" does not appear anywhere except in the formal "Decision" which precedes the Reasons.[15]Mr. Patten submits that that use of the wrong language betrays a fatal self-misdirection by the Tribunal. We are bound to agree. The authorities clearly establish that the question of the "ground" on which an employer acted in victimisation cases requires an analysis of the mental processes (conscious or unconscious) which caused him to so act. Mr. Patten referred us to the decision of this Tribunal in Nagarajan v. London Regional Transport [1994] IRLR 61, and in particular to Knox J's citation of the well-known passage from the judgment of Cairns LJ in Abernethy v. Mott, Hay & Anderson [1974] ICR 323. Without suggesting that those passages are not apposite as far as they go, we think it is better to rely on the decision of the House of Lords in Nagarajan [1999] ICR 877 , esp. per Lord Nicholls at p. 884 E-G, as further explained in Chief Constable of the West Yorkshire Police v. Khan [2001] ICR 1065 . (The section outlawing victimisation which was in issue in Nagarajan - s. 2 (1) of the Race Relations Act 1976 - used the phrase "by reason that" rather than, as in s. 47B, "on the ground that"; but Lord Nicholls explicitly equated the test to that under s. 1 (1) (a) of the 1976 Act, which uses the very terminology of "grounds" with which we are here concerned.)[16]It is thus necessary in a claim under s. 47B to show that the fact that the protected disclosure had been made caused or influenced the employer to act (or not act) in the way complained of: merely to show that "but for" the disclosure the act or omission would not have occurred is not enough (see Khan ). In our view, the phrase "related to" imports a different and much looser test than that required by the statute: it merely connotes some connection (not even necessarily causative) between the act done and the disclosure. On any view the failure of Mr Redmond to answer Mr. Knight's letters was related to the protected disclosure: after all, the disclosure was the fundamental subject matter of the letters and they would never have been written but for the fact that the disclosure had been made. Likewise any failure on the part of the Council to look after Mr Knight related to the disclosure: the awkward situation created by the disclosure was the very reason why he needed help. But that does not answer the question whether that formed part of the motivation (conscious or unconscious) of Mr. Redmond or Mr Esom. Mr Redmond, for example, might have failed to answer the letters because he was annoyed by the original report and regarded whistleblowers as disloyal and a nuisance: that would indeed be a deliberate omission "on the ground that" he had made the protected disclosure. But he might in principle equally have failed to do so for one of a number of other reasons.[17]If we were satisfied that, despite using the wrong words, the Tribunal had asked and answered the right question, and done so in Mr. Knight's favour, its finding could stand. But we cannot be so satisfied. Although the Tribunal briefly addressed the question of Mr Redmond's evidence in paragraph 17 (d), and was plainly unimpressed by him, there is no sign that it considered on what ground he acted or failed to act, i.e. his mental processes (conscious or unconscious). In so far as we get any impression from what the Tribunal says, it is not that Mr. Redmond resented Mr. Knight's complaint but rather that he did not take it sufficiently seriously: a large part of the Council's case was that it had never had a whistleblower case before and did not properly understand what was required of it. In the case of Mr Esom, there is an observation in paragraph 17 (e) that "he would not have been overly pleased" by the disclosure; but that by itself is quite inadequate as a finding on what is - so far as his acts and omissions are concerned - the crucial question in the case. (It is fair to Mr. Knight to record that he submitted that it was perfectly apparent at the hearing that the Tribunal believed Mr. Redmond to be lying and that his eventual apology for the mis-handling of Mr. Knight's complaint was belated and insincere. But that is not what the Reasons say.)[18]Mr. Knight in his submissions to us suggested that the phrase "related to" found its way into the Tribunal's thinking because it had been used by Mr. Patten himself, albeit in the different context of whether Mr. Knight was already ill before the acts complained of: Mr. Patten did not accept that and we need not pursue the point. More substantially, he submitted that "related to" was not essentially different in effect from "on the ground that"; and he referred to a sequence of dictionary definitions (of "ground", "circumstance" and "related") to support this point. We fear that we cannot agree: in our view there is a real difference of meaning. He also, understandably, reminded us of Lord Denning's warning to appellate tribunals in Hollister v. National Farmers Union [1979] ICR 542 (repeated in many subsequent cases) not to be too ready to overturn the decision of an Employment Tribunal on the basis of some marginal error or obscurity. We can only say that we do not believe that that is this case. Although it might be said that the appeal is succeeding because the Tribunal's use of a single wrong phrase, that phrase is crucial: its use carries a real risk of producing a different result.[19]Mr. Knight also placed reliance on s. 48 (2) of the Act, which applies to all complaints of victimisation under the numerous heads now covered by Part V of the 1996 Act (e.g. for raising health and safety issues, for insisting on rights under the Working Time Regulations, for taking time off for training). It is in the following terms:
"On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done."
[20]We were referred to no authority as to the effect of this sub-section (which does not appear to have any equivalent in the "victimisation" provisions of other statutes: see, e.g. s. 4 of the Sex Discrimination Act 1975, s. 2 of the Race Relations Act 1976 and s. 146 of the Trade Union and Labour Relations (Consolidation) Act 1992). On the face of it, it might seem to be intended to have the same effect as s. 98(1) of the 1996 Act, which requires an employer in a claim of unfair dismissal to prove (a) what the reason for the dismissal was and (b) that it was one of the category of admissible reasons: it is well established that if the employer fails to establish either of those matters the dismissal is, without more, unfair. But in fact the two situations are not wholly analogous. The concept of "unfair dismissal" does not require the Tribunal to be satisfied of anything save that the section has not been complied with: it has in that sense no positive content. The definition of victimisation, on the other hand, requires the ingredient that the employer has acted on the prohibited ground. There is no doubt no reason in principle why the statute could not have provided that the employer be deemed to have so acted where he does not prove any other reason; but one would expect such a provision to be clearly spelt out. Further, if s. 48(2) were construed as having such a deeming effect the result would appear to be that an employer who could not prove his "ground" could be liable to a series of claims under each of the anti-victimisation provisions of Part V: that would no doubt be highly unlikely to happen in practice, but even the theoretical possibility casts doubt on the correctness of the approach. Against that background, Mr. Patten submits that all that s. 48 (2) does is to make it clear to employers that they have to be prepared in the Tribunal to say why they acted in the respect complained of, with the result that if they fail to do so they may find inferences drawn against them (though only if such inferences are justified by the facts as a whole).[21]We find Mr. Patten's submission persuasive, but we do not believe that on this appeal we are obliged to resolve the question of the effect of s. 48 (2). After being briefly referred to in paragraph 1 of the Reasons, it played no part in the Tribunal's expressed reasoning. Any use to which it might legitimately have been put in support of Mr. Knight's case was superseded by the misdirection which we have identified above. Prudent Tribunals in dealing with victimisation claims will no doubt prefer, wherever possible, to make positive findings as to the grounds on which the employer acted rather than to rely on s. 48 (2) until its effect has been authoritatively established. Conclusion[22]The result of the foregoing is that this appeal must be allowed. The case will have to be remitted to be reheard by a fresh Tribunal. The fundamental flaw in the Tribunal's Reasons is the misdirection identified under head (4) above; but it will be apparent from the discussion under head (3) that other aspects of the decision are also unsatisfactory. In truth, this is not a decision which at any point inspires confidence in its reasoning: quite apart from the specific points identified above, there are too many gaps in the detail, and too many obscurities and inconsistencies. We were not surprised that Mr. Patten told us that he did not recognise his submissions as summarised in paragraph 17 (d) of the Reasons. The Tribunal re-hearing the case should approach the claim paying close attention to the statutory words and should not feel bound by any of the findings made by the previous Tribunal even where they are not directly impugned by this judgment.[23]Mr. Knight submitted forcefully that if we were to allow the appeal to succeed it would make the protection intended by Parliament in passing the 1998 Act a dead letter. We agree that if that were indeed the consequence it would strongly suggest that our approach was wrong; but we do not believe that it is. Parliament intended to protect whistle-blowers against action taken against them because of the disclosure which they had made: that is a real and valuable protection. Unfortunately in this case the Tribunal failed to address that question. Our decision does not of course mean that we believe that the Council has acted impeccably in relation to Mr. Knight's complaint. On the contrary, the Council appears to have accepted, at least by the time of the hearing before the Tribunal, that its conduct left a lot to be desired, and we can well understand if Mr. Knight was caused anxiety and distress by the way in which it appears that he was treated. But that is not the issue under s. 47B.[24]All cases where a decision has to be remitted because the Tribunal did not approach its task correctly are regrettable; and that is particularly so in a case like the present, where the original complaint and the subsequent proceedings must have placed a great strain on Mr Knight. But that is mitigated to a considerable extent by the fact that - as we were informed - Mr. Knight has brought further claims against the Council, making complaints which essentially follow on in time from those which are the subject of the present proceedings. Those are to be heard in March 2003. The Regional Chairman has sensibly made provision for a hearing of sufficient length to cover the present claim if remitted; and in fact there seem to us to be positive advantages in the Tribunal on that occasion being able to reach its own conclusions about the entire sequence of events, without being constrained by findings made in relation to the earlier part of the story by a different Tribunal.

Cited in 1 later judgment