MS J HIBBINS v HESTERS WAY NEIGHBOURHOOD PROJECT [2008] UKEAT 0275_08_0710

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2008] UKEAT 0275_08_0710

Case No Appeal No. UKEAT/0275/08

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS J HIBBINSAPPELLANT

HESTERS WAY NEIGHBOURHOOD PROJECTRESPONDENT

Before

Mr Justice Silber Mr R Lyons Miss S M Wilson

Date 7 October 2008

[1]APPEARANCES For the Appellant MS JANE MCCAFFERTY (of Counsel) under the aegis of the Bar Pro Bono Unit. For the Respondent MISS GEMMA ROBERTS (of Counsel) Instructed by: Messrs Hughes Paddison Solicitors, 10 Royal Crescent Cheltenham, GL50 3DA. SUMMARY VICTIMISATION DISCRIMINATION: Whistleblowing The issue raised on this appeal was whether the whistle blowing provisions contained in section 43A to section 43M of the Employment Rights Act by the Public Information Disclosure Act 1998 afford protection for disclosure that does not reveal any "wrongdoing" or "failure" by the employer or person for whom the employer is responsible? The answer is "yes" as it provides protection for disclosure that reveals a "wrong doing" or "failure" by any person. THE HONOURABLE MR JUSTICE SILBER I. Introduction Miss Joy Hibbins, ("the claimant") brought a claim in the Employment Tribunal at Bristol against Hesters Way Neighbourhood Project ("the respondent") alleging that she had suffered a detriment by a reason of a protected disclosure against the respondent. By a decision dated 25 January 2008, the Employment Tribunal found that the disclosure relied on by the claimant was not a protected disclosure within the provisions of section 43 of the Employments Rights Act 1996 ("the Act"); in consequence, a claim that she had suffered detriment in the way that she was treated by the respondent could not succeed. The Employment Tribunal did not consider other reasons put forward by the respondent as to why the claim should be dismissed.

[2]The claimant now appeals and the issues that are raised are;(a) Whether the whistle blowing provisions contained in section 43A-section 43M of the 1996 Act by the Public Information Disclosure Act 1998 afford protection for disclosure that does not reveal any "wrongdoing" or "failure" by the employer or person for whom the employer is responsible?

(b) Whether the Employment Tribunal erred in relying on the comments of Mummery LJ in ALM Medical Supplies v Bladon

[2002] ICR 1444

as authority for restricting the application of the whistle blowing legislation to disclosures that relate to wrong doing in the work place?

(c) Whether the Employment Tribunal erred in law in failing to appreciate that the claimant made a disclosure related to her employer's wrongdoing, namely an alleged failure to comply with its health and safety obligations towards her?

[3]The claimant contends that each question should be answered in the affirmative while the respondent contends that each question should be answered in the negative. It is common ground first that if the claimant succeeds on issue (a), the case will have to be remitted to a different Employment Tribunal and second that in those circumstances, there would be no point in this Appeal Tribunal considering issues (b) and (c). II. The facts

[4]The relevant facts found by the Employment Tribunal are that:(a) the claimant is a language teacher who was employed by Gloucestershire Neighbourhood Project Network ("Network"), which is an entity loosely connected with the respondent with both bodies being local authority funded voluntary sector organisations;

(b) whilst being employed by Network, the claimant worked on one day per week for the respondent at their premises. She was a competent and well-respected teacher, who had a very good working relationship both with her teaching and her administrative colleagues. She enjoyed her teaching work and was committed to her students;

(c) on 13 December 2006 the claimant read a local press report in which the police were asking for information about the identity and whereabouts of a named suspect in a rape case. The claimant identified the suspect as a student, who had recently applied to join one of the courses run by the respondent;

(d) the claimant was understandably shocked and upset by the prospect that she might have interviewed this potential student in a room alone and so it was seriously upsetting for her that she and her colleagues might be vulnerable in this way;

(e) she therefore telephoned the police and she then provided them with basic information about him. This was a step entirely supported by the Operational and Development Manager of the respondent Mr Kevin Devaney;

(f) very shortly after having telephoned the police the claimant sent an e-mail to Mr Devaney reporting the police report and her disclosure to the police of the mobile telephone number and address of the suspect. The police spoke to the claimant later telling her that they might need to attend the respondent's address to pursue their enquiries which might include requesting access to computer information;

(g) at about 9.30 am on 14 December 2006 the claimant telephoned Mr Devaney and spoke to him. The claimant and Mr Devaney had different recollections of what was said but it was clear that the claimant viewed Mr Devaney as being at best annoyed and at worst angry at the conversation and that the claimant became very upset;

(h) immediately after the conversation the claimant resolved not to work for the respondents any more but as a result first of her commitment to her students, second of the difficulty in finding a replacement for her and third of the persuasiveness of her colleagues, the claimant did return to work as usual at the start of the January 2007 term and continued to work until the expiry of her notice following her resignation in mid-march 2007;

(i) after the conversation on 14 December 2006 with the claimant Mr Devaney expected the claimant to raise a complaint which she in fact did. The process of investigating and dealing with the complaint was complicated by the fact that the claimant was not employed by the respondent but by Network;

(j) as a result of an exchange of correspondence during January 2007 the claimant lodged a grievance about the matter to Network with the respondent expecting the grievance would be fed across by way of a complaint to the respondent and in that process it would be resolved. In the words of paragraph 8 of the Employment Tribunal's determination there was a certain amount of "to-ing and fro-ing" in this process which was not undertaken with the speed and efficiency which would have been desirable in the circumstances; and

(k) the claimant's grievance was investigated and dealt with by 25 March 2007 which was some 7 days after the claimant had resigned.

[5]The claimant's case is that the disclosure to the police of the mobile telephone number and address of the student applicant is information amounting to a qualifying disclosure falling within the provisions of section 43B of the 1996 Act as is the subsequent disclosure of these facts to the respondent. So the claimant contends that since the conditions set out in section 43H are satisfied, she was entitled to make the disclosure directly to the police without first making it to her employer. The case for the claimant is that she was protected against the respondent as being a worker defined under section 43K of the 1996 Act. The case for the respondent is that any disclosure by the claimant falls outside the protection of the 1996 Act.

[6]The respondent put forward a number of defences and the Employment Tribunal decided that it could dismiss the claim as the claimant had failed to satisfy the requirement for disclosure that it had to reveal a failure by the employer. The Employment Tribunal left the remaining issues undecided. III. The decision of the Employment Tribunal

[7]The decision of the Employment Tribunal on this issue was that:

"11. However, it seems clear to us from a consideration of a number of decided cases on protected interest disclosures and the authoritative commentaries of the editors of Harvey on Industrial Relations and Employment Law and the IDS Employment Law Supplement on the matter that the purpose of the legislation was to give protection to employees who drew attention to the "wrongdoing" or "failure" of their employers under one or more of the specified grounds in s43B of the Act: in other words a worker who "blew the whistle" upon the "wrongdoing" or "failure" of their employer would now be protected against ostracism, criticism, poor appraisals, victimisation, blacklisting and even dismissal. There was never any intention, in our view, for the protection to be extended to circumstances such as the facts of this case where the information disclosed does not reveal (and is not asserted by either the claimant or the respondent as revealing) any "wrongdoing" or "failure" by the respondent falling within the specified categories in s43B of the Act. 12. The respondent directed us to the case of ALM Medical Services Ltd v Bladon [2002] EWCA 1085 in which … Mummery LJ said that "the self evident aim of the provisions [of the Protected Disclosure Provisions of the Employment Rights Act 1996] is to protect employees from unfair treatment (i.e. victimisation and dismissal) for reasonably raising in a responsible way genuine concerns about wrongdoing in the workplace"

. He went on to say that:

"there are obvious tensions, private and public, between the legitimate interest in the confidentiality of the employer's affairs and in the exposure of wrong. The enactment, implementation and application of the "whistle blowing" measures and the need for properly thought out policies in the workplace have received considerable publicity and development in recent years"

. We noted, in this context, that the respondent had such a policy which draws attention to the protection afforded to employees "if they make disclosures about the organisations for which they work". The introduction to the policy, rightly in our view, asserts that:

"the legislation is designed to protect employees from suffering any detriment or termination of employment from whistle blowing "

. IV.

(i) The respondent's case

[8]Miss Gemma Roberts on behalf of the respondent contends that the Employment Tribunal was correct to conclude that the whistle blowing provisions did not apply where the "wrongdoing" or "failure" was by a body which was not the employer of the person who made the disclosure. She accepts that although the legislation is not explicit on this issue, the interpretation adopted by the Employment Tribunal was consistent with the purpose of the whistle blowing provisions and the legislative scheme.

[9]She relies for example on the comment by Auld LJ in Street v Derbyshire Unemployed Workers' Centre

[2005] ICR 97

where he said at page 99 that: "5. The scheme of the "whistle blowing" in the 1996 Act is to encourage and protect employers to and who, report concerns about malpractice in the workplace and elsewhere…".

[10]It is important to appreciate first that the issue raised on that appeal related to the question of whether the employee's disclosure was made in " good faith " and second crucially that in that case the Court of Appeal was not concerned with the issue raised on the present appeal. In the passage that we have quoted, Auld LJ was not seeking to define the boundaries or parameters of the whistle blowing provisions in any respect relevant to the issues raised on this appeal.

[11]Miss Roberts then proceeds to submit that in all the other reported "whistle blowing" cases (such as Darnton v University of Surrey

[2003] ICR 615

, Bolton School v Evans

[2007] ICR 41

and the ALM Medical Services case (supra)) the failure or wrongdoing disclosed had in fact been committed either by the employer or had taken place within the workplace. The difficulty about Miss Robert's submission is that it has not been said in any of the cases that the "whistle blowing" provisions were limited to the disclosure of failures or wrongdoings, which had in fact been committed either by the employer or which had taken place within the workplace.

[12]Miss Roberts also seeks to rely on passages in Harvey on Industrial Relations and Employment Law Section DIIB and the IDS Employment Law Supplement which refer to the disclosure of failings by the employer. In none of the texts is it stated that the " whistle blowing" provisions do not apply if the disclosure does not relate to a wrongdoing committed by the employer or in the work place or by a person for whom the employer has responsibility. In those circumstances, I have concluded that there is no authority in either decided cases or in the academic writings which support the contentions of the respondent. (ii) The claimant's case

[13]Ms Jane McCafferty counsel for the claimant contends that the Employment Tribunal erred in contending that the wrongdoing had to be by the employer in the light of the statutory provisions which she contends show clearly that a "qualifying disclosure " can relate to failings by someone other than the employer. She points out that in Section 43B (1) of the Employment Rights Act 1996 it is stated (with our underlining added) that:- "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 person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject." (iii) Discussion

[14]We agree with Ms McCafferty that the identification of the wrongdoer as " a person " expands the legislative grasp to include all legal persons without being limited to the employer. In other words, there is no limitation whatsoever on the people or the entities whose wrongdoings can be subject of qualified disclosures. The Schedule to the Interpretation Act 1978 states that "'person' includes a body of persons corporate or incorporate" . This is significant because section 5 of the Act provides that "in any Act, unless the contrary intention appears, the words listed in Schedule 1 to this Act are to be construed according to that Schedule". There is no evidence of a contrary intention appearing in the 1996 Act and so the word "person" has the wide meaning contended for by Ms McCafferty.

[15]There are four further reasons which individually or cumulatively support this conclusion and which we will set out in no particular order of importance. First, the use of the words " a person " in section 43B (1) (b) has to be contrasted with the wording of section 43C (1) of the same Act which states (with my emphasis added) in so far as is relevant that:- "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:- (1) the conduct of a person other than his employer."

[16]If Miss Roberts was right in her submission it would only have been necessary for section 43C (1) (a) to refer to " a person " but the draftsman of the legislation clearly envisaged that the word " a person " would not suffice and thus instead used the words " his employer " to limit the meaning of that provision.

[17]Second, we agree with another submission of Ms McCafferty that where section 43C (1) (b) (1) refers to the conduct of someone other than the employer, it does so on the prior basis that this conduct is capable of forming the subject matter of a qualifying disclosure namely to fall within section 43B (1). If the construction of the Employment Tribunal was correct this could never be the case with the result that section 43C (1) (B) (1) is not only otiose but probably meaningless.

[18]Third, the legislation has to be construed in the light of its aim of encouraging responsible whistle blowing. In Croke v Hydro Aluminium Worcester Ltd

[2007] ICR 1303

Wilkie J giving the judgment of this Appeal Tribunal said in a whistle blowing case that:

"where statutory provisions are explicitly for the purpose of providing protection from discrimination or victimisation it is appropriate to construe those provisions so far as one possibly can to provide protection rather than deny it."

See Woodward v Abbey National PLC

[2006] IRLR 677

at paragraph 68 for a similar approach

[19]A fourth reason why we are encouraged to reach the conclusion that the claimant's submissions were correct is that if this were not so, the approach of the Employment Tribunal would lead to absurd results and there is a presumption that the legislature would not intend to obtain this.

[20]There are obvious cases where the wrong doing by a client or customer of an employer comes to the attention of an employee but the employee would not be entitled to the protection of the "whistle blowing provisions" if the Employment Tribunal and the respondent's submissions were correct. This is particularly disturbing as such an employee is at the least vulnerable to retribution by an employer who fears losing the business of the client as a result of the employee's disclosure of fraud by the client or breaches of health and safety requirements by the client.

[21]Furthermore as is widely known, employees are frequently employed by holding or service companies and in those cases an employee who " blew the whistle " on say market abuse or fraud by the business where he worked but which was not his actual employer would (if the respondent's contentions are correct) be excluded from protection on the basis that the other company in the organisation was a separate legal person from his employing service company. V. Conclusion

[22]Thus we agree with the claimant that the Employment Tribunal erred. We also do not consider that there is any basis for upholding the alternative submission of Miss Roberts that the disclosure permitted by the 1996 Act would include the disclosure of wrongdoing committed either in the workplace or by a person for whom the employer has responsibility. The insuperable obstacle for those submissions is for the reasons which we have sought to explain the stark fact that the use in section 43B (1) (b) of " a person " cannot be limited in this way. No cogent reason has been put forward why this should be so and we are unable to accept her submission on that point.

[23]For those reasons we conclude that the appeal should be allowed. It is common ground between the parties that in those circumstances it is unnecessary to consider the second and third grounds as well as the fact that this matter should be remitted to a different Employment Tribunal so that it can then consider the claim and the other defences put forward by the respondent.