THE TRUSTEES OF MAMA EAST AFRICAN WOMEN’S GROUP v MRS J DOBSON [2005] UKEAT 0219_05_2306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0219_05_2306Case No Appeal No. UKEAT/0219/05/ & UKEAT/0220/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE TRUSTEES OF MAMA EAST AFRICAN WOMEN’S GROUPAPPELLANTMRS J DOBSONRESPONDENT
Before
His Honour Judge McMullenDate 23 June 2005
[1]APPEARANCES For the Appellant MR SONAIKE (of Counsel) Instructed by: Messrs Taylor & Emmet Solicitors 20 Arundel Gate Sheffield S1 2PP For the Respondent MR JULIAN DOBSON (Husband, Representative) SUMMARY Unfair Dismissal and Public Interest Disclosure PIDA Employment Tribunal made firm findings of fact connecting dismissal to protected disclosure and its judgment was upheld. Nor did it err in the approach to the assessment of compensation. Respondent could not rely on its own wrongful act in orchestrating opposition to Claimant to reduce or cap her compensation and say she would have been dismissed anyway. HIS HONOUR JUDGE MCMULLEN QC This case is about whistle blowing. What is the correct test to be applied when considering whether an employer, who dismissed an employee following what is accepted to be a protected disclosure, did so for that reason? And what is the correct approach to the assessment of compensation when the employer seeks to limit the compensation for unfair dismissal on the basis of its own failure to protect the employee from the consequences of her disclosure? The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent. Introduction[2]It is an appeal by the Respondents in those proceedings against a Reserved Judgment of an Employment Tribunal, Chairman Mr GR Little, sitting in Sheffield over three days, registered with reasons on 22 December 2004 and its subsequent unreserved judgment on remedy following a further one day hearing registered on 17 February 2005. The Claimant was represented there and here by her husband and the Respondent by Mr Kolarele Sonaike of Counsel.[3]The Claimant claimed unfair dismissal on the ground of having made a protected disclosure and having sought compensation. She also claimed wrongful dismissal; other claims are not relevant for the purposes of the Appeal. The Respondent denied the claim and gave a number of reasons for the admitted dismissal, some raised at the time of the dismissal and others later, none of which was the disclosure. The Judgment[4]The Employment Tribunal decided in favour of the Claimant. So far as is relevant to our issues on appeal she was awarded compensation of £12,035.76 for unfair dismissal and damages of £489.62 for wrongful dismissal. The Respondent appealed against both of those judgments. Directions sending this appeal to a full hearing were given at a hearing conducted under Rule 3(10) by Rimer J. That is a hearing where only the Appellant, in this case through its counsel, attends. We are grateful to the Judge for his considered reasons. The following passages are from his judgment which we adopt:- "2 By a notice of appeal dated 27 January 2005, the Trustees appealed against the decisions of the tribunal on the wrongful and unfair dismissal claims; they do not appeal against the other decisions. On 21 February 2005, the Registrar of this tribunal gave notice to the Trustees under rule 3(7) of the Employment Appeal Tribunal Rules 1993 ( as amended) that His Honour Judge Reid QC had concluded that the notice of appeal amounted to no more than an attempt to relitigate the factual issues in the case and that there was no error of law on the tribunal's part in making the decisions they did that are now under appeal. As this tribunal can only hear appeals based on alleged errors of law, the judge concluded that it followed that the appeal stood no reasonable prospect of success and that no further action was to be taken in relation to it. 3. The matter now comes before me for reconsideration because the Trustees have exercised their right under rule 3(10) to have it so reconsidered. Their case has been put to me by Mr Sonaike, for whose careful and comprehensive skeleton argument I am grateful, and who also appeared for them before the tribunal. 4. The Trustees manage a small charity whose aim is to support Somali women living in Sheffield and to provide them with training in English as a second language ("ESOL"). Mrs Dobson, an ESOL teacher, became the Trustees' employee on 1 October 2003. She performed her teaching duties to the Somali women students at the Sheffield College. Her employment was uneventful until March 2004 when Mrs Dobson dismissed Ms Roda Soulieman from an interpreters' course on which she was a student, she having failed to meet her attendance requirement. Ms Soulieman is the sister of Mrs Amina Soulieman, the manager at the centre. That event did not, of itself, prove to be of materiality in the proceedings. 5. The material events happened in May 2004. The tribunal found that on 10 May Ms Said, another student, informed Mrs Dobson during an ESOL class that Ms Roda Soulieman had mistreated the children at a crèche that the Trustees operated. Mrs Dobson decided that she had to report the matter. In the first instance she relayed what she had been told to Dr Ahmed Gurnah, who was either another employee or an ex-employee of the Trustees, the reason for that choice being her concern that the Centre Manager, Mrs Amina Soulieman, to whom she would ordinarily first have reported the matter, was Ms Soulieman's sister. But Dr Gurnah advised Mrs Dobson to report it to Mrs Soulieman and so she did. 6. Mrs Soulieman investigated the matter. She spoke to her sister, to other students and to parents. She interviewed Ms Said, who denied that she had made any such allegations to Mrs Dobson. The investigations revealed no evidence of any ill-treatment. 7. On 18 May 2004, there was a meeting at which Mrs Dobson, Mrs Soulieman and Ms Said were present. Mrs Soulieman told Mrs Dobson that Ms Said denied making the alleged comments to her. Mrs Dobson read a prepared statement of her account of the incident, after which she was asked to leave the meeting. 8. On 24 May 2004, Mrs Dobson attended a disciplinary meeting with Mrs Soulieman. I quote what the tribunal said of this meeting in paragraph 20 of their reasons:
"…we find that Mrs A Soulieman informed the claimant that she had investigated the allegation which the claimant had reported but had found no substance in it. Ms Soulieman had therefore decided that the claimant had acted unprofessionally and that she was to be dismissed for that unprofessional conduct. "
On the same day Mrs Soulieman wrote to Mrs Dobson explaining the gross misconduct for which she was being dismissed, namely (1) making false allegations against a student and failing to evidence it, (2) failing to follow proper procedures, causing damage to another student and to the reputation of the Trustees and (3) breaching confidentiality by informing Dr Gurnah of the allegations before reporting them to Mrs Soulieman. The police investigated the matter as well, but decided to take no action. 9. Mrs Dobson's application to the tribunal followed on 5 July 2004 and the substantive hearing was in December. As Mrs Dobson had less than a year's continuous employment with the Trustees, she had no conventional claim for unfair dismissal, unless it could be made, as she claimed it could, under section 103A of the Employment Rights Act 1996, ("the ERA") which provides:
" 103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."
The concept of a "protected disclosure" is defined in Part IVA of the ERA in sections 43A-43L. 10. The Trustees' case to the tribunal and on appeal is that section 103A will apply only if the true reason, or principal reason, for the dismissal was that – and Mr Sonaike emphasises the "that" – Mrs Dobson had made a protected disclosure. Mr Sonaike submitted to me, as he did to the tribunal, that a dismissal will only be unfair under section 103A if the reason for it is that the employee made the protected disclosure. It is not enough if the reason for the dismissal was one merely related or connected to such disclosure. He referred to London Borough of Harrow v Knight [2003] IRLR 140 , a decision of this appeal tribunal, in which it was pointed out, in paragraph 15 of the judgment delivered by Mr Recorder Underhill QC, that the phrase "on the ground that" in section 47B of the ERA, also concerned with protected disclosures, equated to "by reason that". 11. That does not appear to me to provide direct guidance for present purposes, since section 103A includes neither of those two phrases. But Mr Sonaike submitted that it was open to the Trustees in this case to prove, if they could, that their reason, or principal reason, for the dismissal of Mrs Dobson was not that she had made a protected disclosure, but was for some other reason. In principle, I agree, and if the Trustees could prove that I would consider that they would have had a defence to her unfair dismissal claim. Their case was in fact that she was dismissed for gross misconduct. 12. The tribunal's findings of fact were that, despite her denials, Ms Said did relate the matters regarding alleged child abuse to Mrs Dobson; that Mrs Dobson had a "reasonable belief" that the information that she then disclosed to Mrs Soulieman tended to show that a criminal offence had been committed; that she made that disclosure "in good faith"; and that she made that disclosure to her "employer", a conclusion not affected by the fact that shortly before doing so she had, for understandable reasons, first disclosed it to Dr Gurnah. These findings by the tribunal meant that Mrs Dobson's disclosure to the Trustees was a "protected disclosure" within Part IVA. 13. The tribunal then turned to the critical question of whether the reason (or, if more than one, the principal reason) for Mrs Dobson's dismissal was the fact that she had made that disclosure. They said there were no notes of the dismissal meeting, but they did have a document headed "Conclusions" that Mrs Soulieman had prepared, and also the dismissal letter categorising the acts of gross misconduct. 14. The first such act was the making by Mrs Dobson of "false allegations", which the tribunal said they had found to be a protected disclosure, not a false allegation. The second was "failing to follow proper procedure", which Mrs Soulieman had explained as meaning a failure by Mrs Dobson to call in the assistance of an interpreter in order to clarify what Ms Said had said. The tribunal found there was no obligation on Mrs Dobson to do this because she understood perfectly well what Ms Said had said, and that anyway to do so would have breached confidentiality. The tribunal found this alleged act of "gross misconduct" was part and parcel of the protected disclosure. The third alleged act was "breaching confidentiality by reporting the allegation to an ex-employee", a reference to Dr Gurnah. The tribunal found that this did not breach confidentiality and that the seeking of Dr Gurnah's advice was "intimately connected with the protected disclosure". The tribunal were there making the point that Mrs Dobson was rather more sensitive to basic notions of proper disciplinary practice than Mrs Soulieman appeared to be. She apparently regarded it as acceptable for her to investigate an ostensibly serious allegation in which the alleged abuser was her sister. The tribunal concluded that it followed that Mrs Dobson was automatically unfairly dismissed because the reason for her dismissal was that she had made a protected disclosure. 15. Mr Sonaike's submission is that whilst the three categories of reasons were "related to the disclosure" and that "but for" the disclosure Mrs Dobson would not have been dismissed, nevertheless on the tribunal's own findings it cannot be said that the reason for the dismissal was that Mrs Dobson had made the disclosure. The first point made in support of this is that the Trustees' response to the disclosure was not immediately to dismiss Mrs Dobson but to investigate the allegation. With respect, that appears to me to be a point of no substance. Of course the Trustees investigated the allegations – what else could they do? They could not simply there and then decide that there was nothing in it and dismiss Mrs Dobson for making unfounded allegations. My view of that point is that it does not even begin to undermine the tribunal's finding as to the reason for the dismissal after the investigation had been made. 16. The next point is as to the tribunal's finding that the first ground of conduct – "false allegations" – was the protected disclosure itself. What is said about this is that the tribunal have mistakenly concluded that because they found that Mrs Dobson had not in fact fabricated the story relayed by her to Mrs Soulieman, therefore the Trustees could not have dismissed her on the grounds that they in fact believed she had fabricated it. Mr Sonaike referred to the tribunal's findings in paragraph 20, which I have quoted, and said that this was a finding that the , or at least a , ground of dismissal was not the making by Mrs Dobson of the disclosure, but the belief that she had fabricated the allegations so disclosed. 17. Secondly, as to the second ground of misconduct, namely the failure to follow procedure by failing to call in an interpreter, Mr Sonaike said that the tribunal's finding that this was "part and parcel of the protected disclosure" was perverse. It was nothing of the sort: it was an omission to do something which cannot rationally be part of the positive act of disclosure which later followed it. It may have been a reasonable and proper omission; but whether or not it was, the fact remained that it was one of the reasons for the dismissal, being one which could not be characterised as the making by Mrs Dobson of the protected disclosure. 18. Mr Sonaike made the like point in relation to the alleged breach of confidentiality by Mrs Dobson in first disclosing the matter to Dr Gurnah. That disclosure was not itself a protected disclosure and cannot be regarded as part of the disclosure which was protected. In so far as it was a reason for the dismissal, it was one which again cannot be characterised as the making by Mrs Dobson of the protected disclosure. 19. Overall, therefore, Mr Sonaike submitted that the tribunal were in error in finding that the three reasons for the dismissal were either jointly or severally reasons which could be summarised as being "that Mrs Dobson had made a protected disclosure". It is said that, in so concluding, the tribunal misdirected themselves in law, or else had arrived at a perverse decision. Another way of putting the case would be, I suppose, that there was no evidence justifying the tribunal's conclusion that the reason, or principal reason, for Mrs Dobson's dismissal was that she had made the protected disclosure. 20. Having set out and considered Mr Sonaike' careful argument, I find myself in real doubt as to whether His Honour Judge Reid's summary dismissal of the grounds of appeal on the basis that they are merely an attempt to relitigate the facts was justified. I will say no more than that I am satisfied that there is here a real point which deserves to go through to a full hearing by a judge and two members. ..." He also allowed one aspect of the wrongful dismissal claim to proceed – to which we will turn in due course. The Respondent's case[5]The Respondent submitted, arguments in very similar terms to which Rimer J had paid tribute. We have been able to take the judgment as our starting point because Mr Sonaike relies upon only the Notice of Appeal which was before the Judge and has chosen not to submit a Skeleton Argument as his Notice of Appeal is in very full form. On behalf of the Respondent it is contended that the Claimant was dismissed for unprofessional conduct as found by the Tribunal. Particular reliance is placed upon the letter of dismissal and the following finding indicating what might be described as a diametrically opposite approach. "40.9 It is our understanding that it is the tribunal's task to objectively assess whether or not in law and by reference to the evidence and findings a protected disclosure has been made. Clearly the respondents came to a diametrically different conclusion to the one we have reached. Insofar as it is necessary for us to explain why this could have occurred, we think we need say no more than that it was clearly entirely inappropriate for Ms A Soulieman to investigate this serious matter where the alleged abuser was her own sister. There was an inevitable conflict of interest which was likely to give rise to a very high risk of the wrong conclusion being reached and the wrong approach being followed. This is what occurred."[6]It is submitted that what was in the mind of the Respondent, rather than the facts as subsequently found, is relevant for the determination of the reason for dismissal. The Tribunal's judgment in this case was perverse. The correct approach is that given by Lord Nicholls in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 850 at paragraph 29 and also that given by Lord Hoffman relating to his test of causation at paragraph 54 ff .[7]In summary, applying an adaptation of Lord Hoffman's test, if the Respondent having investigated the disclosure would have dismissed the Claimant anyway, there would not have been a dismissal by reason of the disclosure. If the Tribunal had found that the person had told lies then the matter would have been resolved in a different way and if the allegation made by the Claimant in this case was true, she would not have been dismissed.[8]However, having advanced those arguments Mr Sonaike acknowledged that he could not pursue an adaptation of Lord Hoffman's test in this case in the absence of a finding of fact. What he invited us to do was to find the Tribunal had reached a perverse conclusion. Mr Sonaike accepted that there was a protected disclosure meeting all of the terms of Part IVB of the Employment Relations Act 1996 .[9]The question was whether the reason for dismissal was that protected disclosure. Each of the reasons given by the Respondent in its letter of dismissal is different from a reason based upon the disclosure. Reliance was placed on Street v Derbyshire Unemployed Workers Centre [2004] ICR 213 EAT and [2004] EWCA Civ 964 as indicating the approach in these whistle blowing cases. Reliance was also placed upon the judgment of the Employment Appeal Tribunal, Mr Recorder Underhill QC and members in London Borough of Harrow v Knight EAT/0790/01.[10]As to the wrongful dismissal claim, it is contended that as a matter of law that there was a clause in the contract of employment which had been subjected to a change by reason of the conduct of the Respondent and the Claimant. In substitution for a decision to be made by the management committee it was agreed that a decision could be made by Ms Soulieman alone. Alternatively there is an implied power to delegate as the conduct by the actors in this drama shows. It was accepted that the contractual right of appeal was not mentioned due to an oversight.[11]As to the remedy appeal it, was accepted that if the primary grounds in the liability appeal failed then so would the primary ground in the remedy appeal, although Mr Sonaike reserved his position and we acknowledged that he did not need to rehearse the same arguments at different stages of today's proceedings.[12]It was contended that the Respondent would inevitably have taken the view that the relationship between it and the Claimant was no longer tenable. This was in part a Polkey v Leyton Services Ltd [1987] IRLR 503 argument. It was accepted by Mr Sonaike that he did not rely on what was suggested to be a concession of the Claimant. The Claimant's case[13]On behalf of the Claimant, her husband has produced an impressive and reasoned argument and it was not necessary to ask him to add very much. He contends that the entire investigation of the report made by his wife, of an allegation made to her. There were many changes advanced by the Respondent for the real reason for dismissal: a grudge; the Claimant had made it up. Both were rejected by the Tribunal as was a short lived contention that the Claimant's absence was a factor. It was conceded by the Respondent that this was not the case.[14]Mr Dobson argued that Ms Soulieman decided to get rid of the messenger carrying this unpalatable message rather than to deal with it properly. His wife would not have been dismissed in any event, for the investigation by Ms Soulieman systematically excluded all others, including those properly regarded as being relevant to such an investigation by the contractual terms of the relationship. The Legal Principles[15]The legal principles to be applied appear to us to be as follow:-[16]A reason for dismissal is a set of facts known to the employer or at least held by it which causes it to dismiss the employee: Abernethy v Mott Hay and Anderson [1974] IRLR 213 (CA).[17]This calls for examination of the decision making in the mind of the dismissing officer, see the speech of Lord Nicholls in Khan at paragraph 29 which provides as follows:
"29 3) ' by reason that' Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] IRLR 572 , 575-576, a causation exercise of this type is not required either by a 1(1)(a) or s.2. The phrases 'on racial grounds' and 'by reason that' denotes a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact." 18. In certain cases a question of causation is raised in which it is not enough to ask the question "but for" but to go on and consider further matters. In other words, applying that to our case: if it would have been the position of the Respondent that it would have been dismissed the Claimant in any event then that is a matter relevant to the decision as to the reason for dismissal. See Lord Hoffman in Khan . 19. There is a very strong public interest in the vindication of whistle blowers so that their action is protected. This does not mean that all of their claims and allegations have to be supported. They have to be investigated and provided the disclosure meets the terms of the Employment Rights Act 1996, action against them is unlawful. See for the social policy behind the Act and its application in employment cases ALM v Bladon [2002] ICR 1444 Street v Derbyshire above, our judgement in Lucas v The Chichester Diocesan Housing Association EAT/0731/04, and the approach of Dame Janet Smith in the Shipman Enquiry which adopted evidence given to it by Public Concern at Work. 20. In the assessment of compensation the principle is loss: see s123 of the Employment Rights Act . "
Section 123(1) Employment Rights Act 1996 123 Compensatory award (1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."[21]If a dismissal is proved to have been inevitable, either because the employee would have been dismissed fairly, following, for example, a putative fair procedure, or would have been dismissed for some unconnected reason at some later stage; it would not be equitable to award compensation for losses extending beyond that date: see Polkey above. Conclusions Applying those principles, we reject the arguments of the Respondent and have decided that the Appeal should be dismissed. We accept those of the Claimant. We will deal with the issues as they arose. The Reason for Dismissal[22]It must be borne in mind that the Respondent on appeal does not challenge any of the elements leading to, and the culmination in the finding of, a protected disclosure within the terms of the Act. This includes attributing to the Claimant good faith, reasonable belief that she made an allegation of wrongdoing and made it to the right person at the right time. This, therefore, wraps exactly round the contours of Part VIB.[23]The focus then turns to consideration of the connection, if any, between that and the dismissal. Three matters stand out at first sight. The chronology speaks for itself and makes any other conclusion surprising. The Claimant's disclosure took place on 10 May and she was dismissed on 24 May following the steps taken by Ms Soulieman. Secondly, the Respondent put forward a number of different and competing grounds which were rejected at the hearing or conceded to be wrong, both after the dismissal and at the hearing. Thirdly, the Tribunal has made a finding of fact in a highly fact sensitive situation, appreciating what was the reason behind Ms Soulieman's decision, and it was hers and no-one else's, having considered her evidence and appreciation of how it fell.[24]Leaving aside those three impressions, a more rigorous analysis shows that the Tribunal has looked at the reasons advanced in the dismissal letter and has held that they are together the reason for dismissal. It is accepted by Mr Sonaike that, but for the disclosure, none of this would have happened. However, that formulation of the causation test is not the one used by the Employment Tribunal. In our judgment the reasons given by the Tribunal, and provided initially by the Respondent, are aptly described and they are the reason for Ms Soulieman's decision.[25]We accept the submission of Mr Dobson that it cannot be right for an employer to assert a non-tainted reason and yet in the social context of this legislation avoid its connection to the protected activity. The reason or the principal reason the Tribunal found was that the Claimant had raised a disclosure. The only possible weakness in that analysis arises from Mr Sonaike's submission about paragraph 40.9 of the Tribunal's Reasons. (See para 5 above). However, the position which it adopts makes it easy to understand what the Tribunal was adding to its conclusion. It is its firm conclusion made without hesitation that the reason in fact for the dismissal was that the protected disclosure had been made. It must also be recognised that the objective assessment which the Tribunal is making relates to whether or not a protected disclosure had been made and does not detract from its finding on the issue of whether there was a reason for dismissal which was, or principally was, the protected disclosure.[26]It seems to us that the Tribunal is offering from having heard this case an obvious observation which is that there was an obvious conflict, an inevitable conflict of interest, likely to lead to difficult conclusions. The observation about the diametrically different conclusions between the Tribunal and the Ms Soulieman relates in our judgment to the assessment of protected disclosure and does not undermine its firm conclusions in respect of the reason offered by Ms Soulieman and found by the Tribunal to be the reason for the dismissal. The Wrongful Dismissal Claim[27]We turn then to wrongful dismissal. Much has been made of this matter yet it concerns under £500. But what emerged after the rejection by Rimer J of a major part of this case was our analysis of the contract. We reject as wholly misconceived the submission (para 10 above) as to the meaning of this contract. All of us in the Appeal Tribunal have experience in dealing with voluntary organizations, unincorporated associations and cases involving children. It is fully understandable to us that this organization set out by contract to define who it was who would take disciplinary decisions and have charge of dismissals. And this is set out in clause 15. Being in a contract, it was not capable of change without agreement between the parties. There was no agreement. We reject this contention that there was conduct capable implicitly of changing the terms. All that happened was that Ms Soulieman set herself up to take the decisions of the management committee. The management committee could have delegated to someone else its powers. But it could not take away the contractual right given to the Claimant to have careful consideration of the facts, sufficient to satisfy a committee that an act of gross misconduct has taken place, and that there were no exceptional circumstances. And even then, a decision would be made, not to dismiss, but whether to dismiss, and whether to dismiss in a particular way. In our judgment there was no change in the contractual position. The terms of clause 15 were not followed and therefore the Tribunal was correct to uphold the contractual claim.[28]We turn then to the remedy issue. Again acknowledging Mr Sonaike's reservation of his position, we read across from the reasons that we have given in respect of the liability decision into the remedy decision. The finding by the Tribunal as to the reason for dismissal gives us a very clear view that its decision on remedy is also correct. What the Tribunal has noted is the submission that the compensation should be capped to take account of the fact that there had been a loss of confidence by the students in the Claimant. What the Tribunal said is this:- "We consider that the statutory protection which Parliament has given to an employee who makes a protected disclosure would be entirely illusory if an argument such as that put forward by Mr Sonaike could succeed. Assuming, on the basis of the limited evidence we heard on the point that the respondent's students were not prepared to be taught by the claimant; that in our judgment was caused by the respondent's mishandling of the inquiry following the disclosure. That situation is unlikely to have arisen if the respondent had dealt with the matter properly. Even if it had occurred in any event, it would have been for the employer to manage the situation and it would have had a duty to protect the claimant from suffering any detriment because a disclosure had been made."[29]Thus it is that the employer here argues that its own failure to manage the situation which caused the students to be disaffected with the Claimant's teaching, and lose confidence in her, was a reason for the capping of compensation beyond any particular date. The Tribunal has made a finding in that paragraph critical of Ms Soulieman and has effectively said that the failure to manage properly the protected disclosure has caused the leakage of the information to the students and to lead them to adopt a position that they did. It is effectively allowing the employer to save itself money on compensation by relying upon its own wrongful acts. Can that be right? We hold not.[30]The basis for that finding is well made out for we have examined carefully the evidence given by Miss Catherine Austin who made it clear that it was the view of Dr Gurnah that the women students could not return to classes without Ms Soulieman's agreement. Thus it is that the Tribunal was able to hold that the employer here, through Ms Soulieman, was able to manage the situation and against that finding we cannot see that it was right to stop the clock on the Claimant's losses at the time when it was said there was loss of confidence by the students in the teaching ability of the Claimant.[31]That then is the principal ground of appeal in the remedy hearing and we will dismiss both appeals. We would very much like to thank Mr Sonaike for his measured approach to this matter and Mr Dobson for his most careful attention to both the legal and social issues raised in his wife. Appeal[32]An application has been made for permission to appeal to the Court of Appeal against our judgment. Mr Sonaike does not unpack his arguments again but invites us to find that there is a reasonable prospect of success or simply compelling reasons for submitting that the primary issue of this case, that is, the reason for dismissal should be referred to the Court of Appeal.[33]We are conscious that we have adopted the approach of his HH Judge Reid QC who read this case and made the decision for the purposes of Rule 3(7) and that differs from the judgment of Rimer J at the Rules 3(10) hearing. We are in a much better position than either of them having heard full arguments from both sides and constituted as we are as a three person tribunal. We do not consider that this issue has a reasonable prospect of success; nor do we consider any compelling reason for the matter to be re-investigated by the Court of Appeal coming so hotly on the heels of the Court of Appeal's careful attention to this statue in the cases which we have cited. We consider it would be helpful if this matter were given permission by the Court of Appeal for an opportunity to be given to Public Concern at Work for it to make an intervention.