BLACKBAY VENTURES LTD T/A CHEMISTREE v MS K GAHIR [2014] UKEAT 0449_12_2703

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2014] UKEAT 0449_12_2703

Case No Appeal Nos. UKEAT/0449/12/JOJ UKEAT/0450/12

Between

BLACKBAY VENTURES LTD T/A CHEMISTREEAPPELLANT

MS K GAHIRRESPONDENT

Before

His Honour Judge Serota

Date 27 March 2014

[1]APPEARANCES For the Appellant MR RAD KOHANZAD (of Counsel) Instructed by: ADN Law P O Box 341 Northwood Middlesex HA6 9FH For the Respondent MR FERGUS McCOMBIE (of Counsel) SUMMARY VICTIMISATION DISCRIMINATION Whistleblowing Detriment The Claimant was employed by the Respondent which operates a number of pharmacies on 16 August 2010 as a Responsible Pharmacist. Her responsibilities involved the monitoring and securing compliance with the various statutory requirements and guidance laid upon the Respondent

[2]Her employment commenced on 16 August 2010 and lasted 18 days, 7 of which were induction. She was in post for only 11 days including a Bank Holiday weekend.

[3]The relationship between the Claimant and her superiors was poor because the Respondent resented the fact that the Claimant had questioned the Respondent's practices and procedure and had behaved in an unco-operative manner. She was dismissed on 3 September 2010. During the course of the 11 days she sent emails on 16 August 2010 and 31 August 2010 raising what she said were some 17 separate health and safety concerns and concerns about failures to comply with legal obligation, which she claimed were thus 'qualifying disclosures.' The Respondent responded to the emails at once and agreed to put in hand any necessary changes to its procedures.

[4]It is by no means clear which of these 17 matters can be said to have tended to show either breaches of legal obligations or that the health and safety of an individual had been or was likely to be put at risk.

[5]The Claimant claimed that she had suffered detriment as a result of making protected disclosures and had been dismissed for having done so. Her case on detriment, accepted by the Employment Tribunal, was that by reason of the Respondent failing to address the issues or deal with them adequately, she suffered the stress of having to work in the role of the Responsible Pharmacist despite having serious concerns about numerous areas of the Respondent's practice.

[6]The Employment Tribunal held that the Claimant had been dismissed because the Respondent resented the fact that the Claimant had questioned the Respondent's practices and procedures and went on to find that the dismissal was automatically unfair "the principal reason" for her dismissal was that the making of a protected disclosure.

[7]The Employment Tribunal considered the protected disclosures in a rolled up manner and made inadequate findings as to:a. the source of the relevant obligations.

b. which of the alleged qualifying disclosures were protected.

c. the dates of the acts or deliberate failures to act said to be protected disclosures.

[8]The Employment Appeal Tribunal suggested that when considering claims by employees for victimisation for having made protected disclosures Employment Tribunals might take the following approach:a. Each disclosure should be separately identified by reference to date and content.

b. Each alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered as the case may be should be separately identified.

c. The basis upon which each disclosure is said to be protected and qualifying should be addressed.

d. Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the Employment Tribunal to simply lump together a number of complaints, some of which may be culpable, but others of which may simply have been references to a checklist of legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Unless the Employment Tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered. If the Employment Tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest act or deliberate failure to act relied upon and it will not be possible for the Appeal Tribunal to understand whether, how or why the detriment suffered was as a result of any particular disclosure; it is of course proper for an Employment Tribunal to have regard to the cumulative effect of a number of complaints providing always they have been identified as protected disclosures.

e. The Employment Tribunal should then determine whether or not the Claimant had the reasonable belief referred to in S43 B1 of ERA 1996 under the 'old law' whether each disclosure was made in good faith; and under the 'new' law introduced by S17 Enterprise and Regulatory Reform Act 2013 (ERRA), whether it was made in the public interest.

f. Where it is alleged that the Claimant has suffered a detriment, short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the Claimant. This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the Respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act.

g. The Employment Tribunal under the 'old law' should then determine whether or not the Claimant acted in good faith and under the 'new' law whether the disclosure was made in the public interest.

[9]The Respondent's appeal against the decision that the Claimant had suffered detriment was allowed but the Employment Appeal Tribunal dismissed its appeal against the decision that the dismissal was automatically unfair because the Employment Tribunal had found that the 'principal reason' for the dismissal was the making of a protected disclosure. HIS HONOUR JUDGE SEROTA QC Introduction The relevant facts The decision of the Employment Tribunal "[…] admits that, in these circumstances, causation would very rarely be proven as it involved the unlikely factual situation that the matters would have been satisfactorily addressed if the employee had kept quiet about them but were not addressed because of the whistleblowing." "They found that liability will arise if the protected disclosure materially influences (in a sense of being more than a trivial influence) the employer's treatment of the whistleblower)." "The Claimant maintains that the protected disclosures were clearly more than a trivial influence on the Respondent's decision to terminate her employment." "A worker risks losing protection of the statutory provisions if he or she unreasonably persists in making disclosures about concerns that have been addressed by the employer. This is particularly so where the disclosure relates to a matter such a [sic] health and safety breach of legal obligation and where steps have subsequently been taken by the employer to address fully the employee's concerns." "Her claim that as a result of raising these concerns she suffered a detriment under section 47B in that she suffered the stress of having to continue in the role of Registered Pharmacist [sic] despite raising serious concerns about numerous areas of the Respondent's practice is well founded and succeeds." Applying the test in Fecitt we are unanimously of the view that the protected disclosures made by the Claimant materially influenced (in the sense of being more than a trivial influence) the Respondent's treatment of the Claimant to her detriment. The Respondent resented the fact that the Claimant had questioned the Respondent's practices and procedures and the Claimant has discharged the burden of proof on her to show that this was the principal reason for her dismissal. The claims under Section 47B and Section 103A of the Employment Rights Act 1996 are well founded and succeed." The Notice of Appeal and submissions in support The Respondent's case on detriment short of dismissal "We are satisfied that the Claimant was acting in good faith. Her claim that as a result of raising these concerns she suffered a detriment under section 47B in that she suffered the stress of having to continue in the role of Registered Pharmacist [sic] despite raising serious concerns about numerous areas of the Respondent's practice is well founded and succeeds." "Although there is nothing wrong in principle with the argument that an omission by an employer can subject an employee to a detriment or can in and of itself amount to a detriment, in this case for the Claimant to have succeeded the Tribunal were obliged to find that the reason why the Respondent failed to address the Claimant's [concerns] was because the she raised the concerns in the first place. That is, the Respondent failed to resolve the matters that the Claimant brought to their attention in her letters because she brought the matters to their attention. Although logically not impossible, the argument and implied reasoning of the Tribunal borders on the absurd." The Respondent's submissions on unfair dismissal "The Respondent resented the fact that the Claimant had questioned the Respondent's practices and procedures and the Claimant has discharged the burden of proof on her to show that this was the principal reason for her dismissal." "(a) that there was no monitoring of the fridge temperatures; (b) best practice was that CD stock balances should be recorded in the CD register; (c) that there is no alarm system within the depot; (d) there was not a security entrance to the depot; (e) there was no fire alarm; (f) the keys for the pharmacy should be locked in a cabinet in the lobby area with a security number for the key cabinet and should be signed for when taken, rather than merely left with a member of staff; (g) the requested two high chairs for the depot; (h) the SOP was deficient because it failed to comply with some of the statutory requirements; (i) the BPO System was in breach of the Data Protection Act 1998; (j) the Respondent did not have a Responsible Pharmacist in the depot in the mornings; (k) a driver is not permitted to take drugs for delivery without the presence of a pharmacist; (l) checked and dispensed drugs should not leave the depot without the presence of a responsible pharmacist; (m) mixed batches of medicines should not be stored in the one box on the shelves; (n) where drugs are packaged in blisters, they should not be stored loosely; (o) that HP was making decisions on whether prescriptions were urgent or not; which was a decision of a pharmacist and not a dispenser; (p) HP must not ask delivery drivers to dispense medication; (q) the failure to allow the Claimant to take TOIL; (r) she had been required to provide her personal mobile telephone number, and (s) she was not prepared to be contacted out of hours." The Claimant's submissions The Claimant's case of detriment short of dismissal The Claimant's case on unfair dismissal The Claimant's submissions on remedy The law "It is well established, and has been said many times, that one ought not to take too technical a view of the way an employment tribunal expresses itself, that a generous interpretation ought to be given to its reasoning and that it ought not to be subjected to an unduly critical analysis." "The question of the principal reason for the dismissal is a question of fact for the Tribunal with which, in the absence of perversity, this Tribunal should not interfere." "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— […] (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject […]." "[…] that the health or safety of any individual has been, is being or is likely to be endangered […]." " 43L Other interpretative provisions […] (3) Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention." " 47B Protected disclosures (1) 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." "A deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected do the failed act if it was to be done." "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." "53. The point is allied to the question of whether, assuming that there was discrimination under section 2(1), Mr Khan was subjected to "detriment" within the meaning of section 4(2) (c). Being subjected to detriment (or being treated in one of the other ways mentioned in section 4(2)) is an element in the statutory cause of action additional to being treated "less favourably" which forms part of the definition of discrimination. A person may be treated less favourably and yet suffer no detriment. But, bearing in mind that the employment tribunal has jurisdiction to award compensation to injury to feelings, the courts have given the term "detriment" a wide meaning. In Ministry of Defence v Jeremiah

[1980] QB 87

, 104 Brightman LJ said that "a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment." "The word "detriment" draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. Res noscitur a sociis. As May LJ put it in De Souza v Automobile Association

[1986] ICR 514

, 522G, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. 35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah

[1980] QB 87

, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment ." "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 […] 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). At 10 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 in a case where a claimant has made multiple disclosures section 103A does not require the contributions of each of them to the reason for the dismissal to be considered separately and in isolation. Where the Tribunal finds that they operated cumulatively, the question must be whether that cumulative impact was the principal reason for the dismissal. That was clearly, on the Tribunal's own findings already referred to, the case here." "21. In order to fall within the statutory definition of protected disclosure, there must be a disclosure of information. There is a distinction between "information" and an "allegation" for the purposes of the Act. The ordinary meaning of giving 'information' is conveying facts. For example, communicating information about the state of a hospital would be stating that:

'The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around'

. However, an allegation about the same subject-matter would be 'you are not complying with the health and safety requirements'. 22. An employee may be dissatisfied with the way he is being treated. He or his solicitor may complain to the employer that if he is not going to be treated better, he will resign and claim constructive dismissal. If the employer then dismisses the employee, the dismissal does not follow from any disclosure of information for the purposes of s.43B of the Act. It follows from a statement of the employee's position. It would not fall within the scope of s.43B. 23. Even if such a letter conveyed 'information' for the purposes of the Act, it does not amount to a 'disclosure'. It is not unusual that solicitors are asked to write on behalf of employees. If an employee is feeling badly treated, the solicitor may write to say that the employer is in breach of contract. There may be allegations over allocation of work or that the employee has been overlooked for a promotion. The solicitor may say 'if the situation does not improve, we have advised our client that he can resign and claim constructive dismissal'. In those circumstances, no protected disclosure is made. Nor would a protected disclosure be made if the employee met the employer without the intervention of the solicitor and made the same points. 24. Further, the ordinary meaning of giving 'information' is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating 'information' would be, 'The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around'. Contrasted with that would be a statement that 'you are not complying with Health and Safety requirements'. In our view this would be an allegation not information. 25. In the employment context, an employee may be dissatisfied, as here, with the way he is being treated. He or his solicitor may complain to the employer that if they are not going to be treated better, they will resign and claim constructive dismissal. Assume that the employer, having received that outline of the employee's position from him or from his solicitor, then dismisses the employee. In our judgment, that dismissal does not follow from any disclosure of information. It follows a statement of the employee's position. In our judgment, that situation would not fall within the scope of the Employment Rights Act s.43. 26. The tribunal based its conclusion that Mr Geduld was dismissed because, through his solicitor's letter of 4 February 2008, he made a protected disclosure. In our judgment the letter sets out a statement of the position of Mr Geduld. In order to fall within the statutory definition of protected disclosure there must be disclosure of information. In our judgment, the letter of 4 February 2008 does not convey information as contemplated by the legislation let alone disclose information. It is a statement of position quite naturally and properly communicated in the course of negotiations between the parties. Disclosure 27. Even if we are wrong in our conclusion that the employment tribunal erred in holding that the letter of 4 February 2008 disclosed information within the meaning of the ERA, we consider whether the employment tribunal erred in considering whether the letter of 4 February 2008 amounted to or contained a disclosure within the meaning of the section. The natural meaning of the word 'disclose' is to reveal something to someone who does not know it already. However s.43L(3) provides that 'disclosure' for the purpose of s.43 has effect so that 'bringing information to a person's attention' albeit that he is already aware of it is a disclosure of that information. There would no need for the extended definition of 'disclosure' if it were intended by the legislature that 'disclosure' should mean no more than 'communication'." "The question in any claim of victimisation is what was the "reason" that the Respondent did the act complained of: if it was, wholly or in substantial part, that the Claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint. Take the case of an employee who makes, in good faith, a complaint of discrimination but couches it in terms of violent racial abuse of the manager alleged to be responsible; or who accompanies a genuine complaint with threats of violence; or who insists on making it by ringing the Managing Director at home at three o'clock in the morning. In such cases it is neither artificial nor contrary to the policy of the anti-victimisation provisions for the employer to say 'I am taking action against you not because you have complained of discrimination but because of the way in which you did it'. Indeed it would be extraordinary if those provisions gave employees absolute immunity in respect of anything said or done in the context of a protected complaint." "Of course such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had say, used intemperate language or made inaccurate statements. An employer who purports to object to 'ordinary' unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately advanced made in some cases does not mean that it is wrong in principle." "We see the force of Mr McGrath's anxiety that a differentiation between the content of a disclosure and the manner in which it is made could, if not carefully analysed, emasculate the legislation. Plainly, any tribunal approaching a protected disclosure will need to be alert to that danger. In our judgment, however, this tribunal was so alert, and its conclusions are not only, in our view, correct in law, they also accord with common-sense and in no way offend against either the spirit or the letter of the legislation." "It is to be noted that in the dismissal context it is expressly provided that the protected disclosure must be the reason or the principal reason for the dismissal before that dismissal can be found to be automatically unfair. A question which arises in this case is whether the same test should be applied to a worker who is subject to a detriment short of dismissal in order to determine whether he or she can succeed in a claim under s.47B." "In my judgment, the better view is that s.47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower." "It is necessary here to say something about the Code of Practice. Para. 1 of the Code explains what the Code is all about: 'This Code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace. Disciplinary situations include misconduct and/or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the basic principles of fairness set out in this Code should be followed, albeit that they may need to be adapted. Grievances are concerns, problems or complaints that employees raise with their employers. The Code does not apply to redundancy dismissals or the non renewal of fixed term contracts on their expiry.'" "So although there are particular situations to which the Code does not apply – dismissals for redundancy and the non-renewal of fixed-term contracts on their expiry – it is intended to apply to those occasions when an employee faces a complaint which may lead to disciplinary action or where an employee raises a grievance. If the employee faces a complaint which may lead to disciplinary action (whether because of his misconduct or his poor performance), the Code applies to the disciplinary procedure under which the complaint is to be investigated and adjudicated upon. Of course, the outcome of the disciplinary procedure may not result in the employee's dismissal at all. Or it may result in his dismissal which on analysis turns out not to be a dismissal for his misconduct or poor performance but a dismissal for something else. The important thing is that it is not the ultimate outcome of the process which determines whether the Code applies. It is the initiation of the process which matters. The Code applies where disciplinary proceedings are, or ought to be, invoked against an employee. […]" Conclusions: detriment short of dismissal Conclusions: dismissal Conclusions: compensation and the ACAS uplift