Shinwari v Vue Entertainment Ltd (Victimisation Discrimination: Whistleblowing) [2015] UKEAT 0394_14_1203
EAT
Shinwari v Vue Entertainment Ltd (Victimisation Discrimination: Whistleblowing)
[2015] UKEAT 0394_14_1203 · 2015-03-12
[45]“… [section] 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 . …” What underlay the views expressed there was what was set out at paragraph 43, that:[43]“ … unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer’s decisions. In my judgment, that principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing. ” The Tribunal in this case referred expressly to Fecitt , and there is nothing to suggest that they applied any other approach. Indeed Mr McNicholas has not suggested that a wrong test was applied. 43. So in addition to establishing that detrimental treatment occurred as a matter of fact, for liability to be established the protected disclosure must have materially influenced the employer’s actions or omissions in the sense suggested by the Court of Appeal in Fecitt . It is insufficient merely to show that, but for the protected disclosure, the act would not have occurred. So far as concerns dismissal, section 103A of the Act provides:
“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.”
It is for the employer to show the reason or, if more than one, the principal reason for the dismissal (see section 98(1) of the Employment Rights Act ). The protected disclosure must accordingly be the reason or principal reason for the dismissal for automatic unfair dismissal under section 103A to be established. The Arguments 44. The Claimant contends that the Tribunal failed to deal properly with a series of detriments to which he was subjected, all of which he submits formed part of a continuum of conduct flowing directly from his protected disclosure and the Respondent’s failure to protect his identity in breach of assurances. Mr McNicholas submits that, to the extent that the Tribunal separated out what Omar Ali did and the consequences that flowed from his actions, that was an error of law. He submits that there is no universal requirement of law or natural justice that an employee must be shown a copy of a witness statement relied on in disciplinary proceedings. There is a range of options open to an employer in these circumstances from withholding the witness statement altogether to redacting the identity of the maker of that statement. Here he submits that a critical factor in what happened to the Claimant was that he was given an assurance of confidentiality that displaced all other policies or protocols and was supported by Mr Pauley’s outcome letter referred to above. That promise or representation of confidentiality is what exposed the Claimant to a series of detriments ultimately resulting in his dismissal. The giving of the confidentiality assurance by Manouk Asatryan, on which the Claimant relied, and the fact that he was not then informed or consulted about the imminent disclosure of his identity before it happened was the principal detriment in this case. This was the catalyst for all that occurred afterwards, and the acts that followed were materially influenced by the protected disclosure, which need only have played a more than trivial part in the Respondent’s reasons. 45. I do not accept that there is any substance in those contentions. My reasons are as follows. 46. First, in my judgment the Tribunal dealt with the detriments relied on fully and appropriately. As I have already indicated, it needed, first, to consider whether the detriments were made out on the facts. It needed to address the question whether the detrimental treatment was treatment by the employer or by others for whom the employer had no vicarious liability and it needed, then, to turn to the question of causation. In my judgment it addressed each of those steps appropriately, and reached conclusions amply supported by the evidence. 47. Dealing with the eight detriments outlined in the Amended Notice of Appeal and relied on by the Claimant here, first, so far as concerns the asserted failure to deal adequately with the protected information during the investigation and disciplinary proceedings, I accept that what is a reasonable disciplinary procedure is fact-sensitive and flexible. There is no universal rule that full disclosure is always required. Whether it is required in a particular case will depend on the nature of the disciplinary charge, the other evidence in the case and the strength of any balancing considerations that support or justify non-disclosure. Here the Tribunal made findings of fact about disclosure including in relation to the statements on the witness statement signed by the Claimant himself, and what he confirmed by signing that statement. It made findings about his own perception, as at 9 July, and the unknown and unanticipated nature of any threat represented by Omar Ali. It made findings about the concerns expressed by the Respondent about the quality of the CCTV evidence showing Omar Ali committing the impugned interaction and it made findings about the importance with which the Respondent viewed the witness statement provided by the Claimant. All of these considerations led to the conclusion that disclosure in this case was reasonable, and was in accordance with and authorised by the Respondent’s policies. 48. So far as Mr Pauley’s statements in the outcome letter are concerned, and in particular the question whether these should have been treated as a concession by the Tribunal that confidentiality had been guaranteed, as Mr McNicholas argued, it seems to me that the following points are relevant. Mr Pauley’s outcome letter came much later and significantly after the Claimant resigned. Accordingly what Mr Pauley said in his letter cannot have had any influence on what the Claimant was thinking at the time. Mr Pauley recognised the Claimant’s sense of grievance but made no factual findings about what exactly happened on 9 July at the meeting where the Claimant gave his witness statement to Manouk Asatryan. Mr Pauley’s task was to adjudicate on the grievance and on whether, in particular, the Claimant was entitled to feel aggrieved about the disclosure of his witness statement. That was not the issue for the Tribunal, and in my judgment Mr Pauley’s outcome letter was in no sense a concession. Mr Pauley’s letter simply formed part of the admissible evidence in the case, and received consideration as such. It was not dispositive of the issues, particularly where the evidence before the Tribunal led it to make findings of fact about what transpired and, in particular, to make findings reflected in the conclusions at paragraphs 73, 74 and 76. 49. The Tribunal, in my judgment, dealt carefully and thoroughly with these points. It found that there was no failure to deal adequately with the so-called protected information. It made important findings, as I have already outlined, at paragraph 53, supported by evidence that no assurance was given to the Claimant, that he raised no concern and made no reference to confidentiality because he was not in fear of Omar Ali when interviewed on 9 July and did not then and could not then have anticipated the reaction of Omar Ali when his statement was ultimately disclosed. It seems to me, in those circumstances, that there was no failure to deal with the protected information allegation. Secondly, in relation to the asserted failure to notify or consult the Claimant before the release of his identity as an informant, the Tribunal found that there was no such obligation and that the facts did not support any basis for the Respondent to inform the Claimant or to consult him before releasing his statement. Accordingly the detriment alleged was not made out on the facts. Thirdly, in relation to the asserted failure to abide by the agreement of confidentiality relating to the informant’s identity, the Tribunal found here that there was no such agreement and accordingly the detriment alleged was not made out on the facts. 50. Fourthly, in relation to the asserted failure to consult the Claimant about the Respondent’s deliberate and/or reckless decision to release the protectively disclosed information, the Tribunal found that there was no such act or failure to act in the sense alleged, and therefore, again, the detriment was not made out on the facts. Fifthly, in relation to the allegation that breaching confidentiality in the protected disclosure resulted in the Claimant being threatened by Omar Ali, this allegation is factually incorrect. The Tribunal found that there was nothing to put the Respondent on notice that Omar Ali would react in the way he did to the knowledge that the Claimant was the informant and that there was no reason accordingly for the Respondent to consider that his identity was to be kept confidential. The release of his identity as the informant led to a threat, but this was not on the grounds of the protected disclosure, as the Tribunal clearly found. Moreover there was no detrimental treatment by the Respondent here. What Omar Ali did was not a detriment within the meaning of the Act for which the Respondent could be held vicariously liable. 51. Sixth, in relation to the allegation of changing the Claimant’s workplace to another location, which arose as a result of the protected act and constitutes a detriment, the way in which this detriment is put in the Notice of Appeal differs significantly from the way in which it was put before the Tribunal. As a matter of fact the detriment relied on by the Claimant in his originating application and before the Tribunal was that there was a failure to move him beyond Shepherd’s Bush rather than a complaint about transferring him to another workplace. As a matter of fact, the Tribunal found that the Claimant wished to move and agreed to the transfer. Further, the Tribunal found that the Claimant chose to move to Shepherd’s Bush rather than further afield. In any event the Tribunal found that there were no changes in his terms and conditions or in the hours that he worked as a result of that change in location. Moreover the Tribunal found that Omar Ali was suspended, banned from the premises and ultimately dismissed so that there was no sense in which the Claimant was regarded as the troublemaker whilst Omar Ali received better treatment. 52. Seventh, in relation to the allegation of bullying and ostracism of the Claimant by colleagues, prompted by the breach and not separable from the protected act of the Claimant informing the Respondent of wrongdoing, it is not clear to me that this was an alleged detriment. To the extent that it was, however, two points can be made. Firstly, the Respondent cannot have been and was not held liable for wrongs committed by employees who either bullied him or called him a snitch (see the Tribunal’s findings at paragraph 56), and in any event this was common ground. Secondly, the Tribunal found expressly at paragraph 56 that, to the extent that this occurred, the Respondent’s actions were not grounded in the Claimant having made a protected disclosure. I shall return to the point about separability in a moment. Eighth, in relation to the allegation of acts and/or omissions by the Respondent that made the Claimant’s work relationships so untenable that this culminated in his resignation, the points made above in relation to bullying and ostracism equally apply. 53. That deals with the list of detriments referred to in the Notice of Appeal. The second reason for my conclusion is that the Tribunal’s decision shows clearly that it was satisfied that the reasons given by the Respondent for acting as it did were genuine and demonstrated that the fact that the Claimant made protected disclosures had no influence and played no part in those decisions. This was a case where the Tribunal was amply satisfied, as reflected by its unhesitating conclusion, that the Respondent behaved reasonably and properly in acting swiftly to protect the Claimant within the workplace and by advising him on steps he could take to address any threat outside the workplace, and in addition in suspending, banning and dismissing Omar Ali, offering to transfer him to a location sufficiently far away to separate him from the rumours and ensuring that there was no change to his terms and conditions or any other detrimental treatment found. 54. Further, it seems to me that in the arguments advanced by Mr McNicholas, both here and below, there is confusion between the reasons for the Claimant acting as he did with the reasons the Respondent acted as they did. The two are not the same. Whilst it is right that the Claimant raised a grievance because of the asserted breach of confidentiality in relation to his protected disclosure and the threats, what was in issue in relation to the unfair constructive dismissal claim under section 103A and section 95 was whether the employer acted in fundamental breach of contract or to his detriment by revealing him as the source of the information and whether it did so by reason (or principal reason) of the protected disclosure he made. 55. So far as the former is concerned, whether there was a fundamental breach or detrimental treatment, the Tribunal’s findings are clear in relation to the revealing of his identity as the source of the information, and these have already been summarised above. There was no breach, still less any fundamental breach of contract, nor any detrimental treatment by the Respondent here. In any event the Tribunal found as a fact that the reason why the Claimant’s identity was revealed when his witness statement was provided to Omar Ali was not the protected disclosure but the Respondent’s understanding, based on its longstanding policy set out in handbooks and practice, of providing those who are the subject of disciplinary action with the evidence on which reliance is placed and the finding, combined with that, that the Respondent was not aware of anything to indicate that the Claimant was concerned about his identity being revealed, had not been told of any threat, and had no reason to believe that Omar Ali would react in a threatening way. The Tribunal was plainly satisfied that this was an employer that genuinely acted for reasons other than the protected disclosure. In those circumstances the burden of proving that the prescribed reason played no part in the Respondent’s decision was necessarily discharged. There is nothing to suggest that the Tribunal regarded the reasons given by the Respondent for acting as the various managers did as false or forming only part of the explanation so that there was no room for, nor any basis here, for drawing an adverse inference otherwise. Nor, in my judgment, is there any basis for going behind the Tribunal’s findings of fact as to the reason for dismissal in this case. 56. Finally, to the extent that Mr McNicholas submits that the Tribunal was not entitled as a matter of law or fact to draw a distinction between the fact of making protected disclosures and the consequences that followed after the Claimant’s witness statement was disclosed to Omar Ali, because the fact of making a protected disclosure could not be separated from the continuum of conduct that followed, I do not accept his submission. Mr McNicholas referred me to and relied in particular on the decision of this Appeal Tribunal in Woodhouse v West North West Homes Leeds Ltd [2013] IRLR 773 . In my judgment there is nothing in that authority, nor in section 47B of the Act, that prohibits the drawing of a distinction between the making of protected disclosures and conduct by the Respondent that follows, which although related to those disclosures is separable from them. Of course care must be taken to ensure that an argument to that effect advanced by an employer is properly scrutinised, so that the legislation is not abused. But there is nothing, in my judgment, in principle to suggest that such a distinction cannot be drawn. 57. In Woodhouse the EAT referred to Martin v Devonshire Solicitors [2011] ICR 352 . That case concerned victimisation rather than protected disclosures but a similar principle applied. There the complainant made allegations of sex discrimination against two partners in the firm of solicitors involved. Those statements were untrue. The complainant did not appreciate that they were untrue, in part because of her mental health difficulties. The fact that she had made protected acts by making complaints of sex discrimination formed part of the facts that led to her dismissal. The reason why the employer dismissed her, however, was not the making of those complaints but rather the fact that the complaints involved false allegations which were serious and were repeated and which she refused to accept were untrue. The reason for the dismissal was that she was mentally ill and that there were management problems to which that gave rise. The Employment Appeal Tribunal accepted that the reason for the dismissal constituted “23. … a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself. Again, no doubt in some circumstances such a line of argument may be abused; but employment tribunals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint.” 58. Both Martin v Devonshire Solicitors and Woodhouse support the conclusion that it is permissible in appropriate circumstances for a Tribunal to separate out factors or consequences following from the making of a protected disclosure from the making of the protected disclosure itself, provided the Tribunal is astute to ensure that the factors relied on are genuinely separable from the fact of making the protected disclosure and are in fact the reasons why the employer acted as it did. Although in the Woodhouse case that principle was accepted, the EAT there suggested that it would be only in an exceptional case that the detriment or dismissal would not be found to be done by reason of the protected act. It seems to me that there is no additional requirement that the case be exceptional. 59. In addressing the question as to whether the reasons are properly and genuinely separable in a particular case, rather than any exceptionality test, a Tribunal must bear in mind the importance of ensuring that the factors relied on are genuinely separable, and it is helpful to repeat the observations made at paragraph 22 in Martin v Devonshire Solicitors :[22]“We prefer to approach the question first as one of principle, and without reference to the complex case law which has developed in this area. 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 [Tribunal’s emphasis]. 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 3 a m. 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. (What is essentially this distinction has been recognised in principle – though rejected on the facts – in two appeals involving the parallel case of claims by employees disciplined for taking part in trade union activities: see Lyon v St James Press Ltd [1976] ICR 413 (“wholly unreasonable, extraneous or malicious acts”: see per Phillips J at p 419C-D) and Bass Taverns Ltd v Burgess [1995] IRLR 596 .) 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 made in some cases does not mean that it is wrong in principle.”60. In the present case the Tribunal did draw a proper distinction between the fact of making the protected disclosures and the consequences which were related but separable from the fact that the Claimant made those protected disclosures. The Tribunal made findings of fact that were supported by the evidence that entitled it to treat the consequences as separable. The material entitled the Tribunal to conclude that the reason why the Respondent acted as it did in disclosing the Claimant’s witness statement to Omar Ali was not the making of the protected disclosure but was the wholly legitimate reason anticipated and authorised by the Respondent’s disciplinary policy that an individual who was to be disciplined should be provided with the evidence upon which that disciplinary action would be based. There was ample evidence available that entitled the Employment Judge to reach the conclusions he did. In my judgment there was no error of law by the Tribunal in reaching those conclusions and in its consideration of why the Respondent acted as they did. Conclusion61. For all those reasons, in my judgment there was no error of law in any of the respects advanced by Mr McNicholas either orally or in writing in the Amended Notice of Appeal, and accordingly this appeal is dismissed.