Wharton v Leeds City Council (Unfair Dismissal: Automatically unfair reasons) [2015] UKEAT 0409_14_0610

EAT
Wharton v Leeds City Council (Unfair Dismissal: Automatically unfair reasons)
[2015] UKEAT 0409_14_0610 · 2015-10-06
[1]This is an appeal against a Decision of the Employment Tribunal (Employment Judge Maidment) at a Preliminary Hearing where the Judge decided that none of the disclosures relied upon by the Appellant could amount to protected disclosures within the meaning of Part IVA of the Employment Rights Act 1996 (“ERA”). In brief, the Appellant was employed as an assistant community curator on 15 April 2013 by the Respondent local authority. The Appellant was dismissed on 4 November 2013. The Respondent says that the Appellant was not confirmed in his post following his probationary period because of concerns about performance. The Appellant disputes this. He was not able to bring a claim for unfair dismissal under section 98 of the ERA 1996 as he had not served for the relevant qualifying period. He did, however, bring a claim alleging automatic unfair dismissal on the grounds that the dismissal was by reason of a protected disclosure. Section 103A of the ERA provides that:
“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.”
[2]A protected disclosure is defined in section 43A of the Act. The relevant provisions for present purposes are section 43B, the material parts of which are as follows:
“(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and 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, … (f) that the information tending to show any matter falling within any one of the preceding paragraphs has been , or is likely to be deliberately concealed.”
[3]The pleadings in this case of the Appellant are unclear. They refer to victimisation, submissions of grievance appeals, whistleblowing complaints and so on. As they were not particularly clear, Employment Judge Burton ordered that the Claimant was to provide concise and clear further details of:(a) what was disclosed;(b) what such disclosure tended to show in the context of the ERA 1996 section 43B(1)(a)-(f);(c) to whom the disclosures were made; and(d) how any such disclosure was alleged to be linked to any detriment and/or the dismissal.[4]In the light of that the Appellant prepared a five-page document seeking to respond to the Order of Judge Burton. That document makes a number of claims, effectively as part of the pleadings, referring to the fact that the museum service was allegedly prioritising the achievement of funding targets at the expense of achieving stated aims and that the museum service was neglecting to utilise available equality data to plan and co-ordinate its engagement work as stipulated in the service’s strategic plan and which plan underpinned the bid to Arts Council England (“ACE”) for funding. There is further text indicating that the disclosures pointed towards a major organisation deliberately and knowingly designing a project that would not meet the relevant achievements, and it indicated that these disclosures tended to show that one or more individuals were failing to comply with their legal obligations. The document then said that to make or accept a significant grant of public money to achieve better services for disadvantaged, marginalised and excluded communities in the sure knowledge that no such improvements would be achieved, and in express contradiction to the service’s own strategic plan, the ACE funding agreement and the Respondent’s own directives, would appear to indicate a significant failure to act with integrity. A number of other comments were made, including that the grant to the relevant museum appeared to be being wasted.[5]The Employment

Judge ordered a Preliminary Hearing on his own motion to determine the following issue:

“1) which, if any, of the disclosures relied upon can amount to qualifying protected disclosures 2) whether this claim has any reasonable prospects of success and whether it should be struck out or a deposit ordered as a condition of permitting the claim to proceed to a full hearing.”
[6]There was no Order dealing with disclosure of documents, and there was no Order dealing with the provision of witness statements. It appears there had been partial disclosure by the time of the Preliminary Hearing but not complete disclosure. At the hearing no oral evidence was received from the Appellant or on behalf of the Respondent.[7]The Employment Tribunal proceeded by looking at the documents that the Appellant had produced and considering whether those documents demonstrated that there had been a protected disclosure. The Tribunal found that there was the provision of information within the disclosures, and that is the subject of a cross-appeal by the Respondent. At paragraph 50, however, the Tribunal concluded as follows:
“50. … in these disclosures the Claimant does not come close to articulating a breach of a legal obligation. There is clearly a dispute regarding the correct approach to the project on which the Claimant is employed but mostly what is complained of is an interpretation of the Respondent’s compliance with its own policy and strategy and best practice. That is not the identification of a breach of legal obligation and there is certainly not information provided which could be construed as tending to show a misuse of funds under a funding agreement.”
[8]Later in the decision the Tribunal said this, at paragraph 55:
“55. Nor if there was any such disclosure of information tending to show a breach of legal obligation in respect of funding is the Claimant able to say that he had a reasonable belief in any such breach of obligation. He had not at the time of making any of these statements seen any funding agreement nor otherwise been given any information as to its terms. He never referred to it, given obviously his lack of awareness. His view was based on his experience of other organisations and as to how he saw best practice in the promotion of museum services and in particular wider participation. He could reasonably have a view on how best to achieve project aims but not that the Respondent was acting in breach of a funding agreement without any knowledge of its terms.”
[9]Against that decision the Appellant sought to appeal. There was a hearing before Simler J. She allowed a number of different grounds of appeal to proceed, but other grounds were not permitted to proceed to a Full Hearing.[10]In my judgment, there are essentially three real issues as far as the Appellant is concerned in this appeal. First, did the information tend to show a breach of a legal obligation? That, broadly, is what is set out in ground 5.7 of the Notice of Appeal. Secondly, did the Employment Tribunal err in finding that the Appellant could not have a reasonable belief that there was a breach of a legal obligation given that he had not seen the contract between the local authority and the ACE? That ground is effectively encompassed in grounds 5.8 and 5.9 of the Notice of Appeal. Thirdly, did the Employment Tribunal err in failing to consider an allegation that the Appellant had provided information tending to demonstrate concealment of the earlier breaches? That, broadly, is ground 5.1 of the Notice of Appeal.[11]Those grounds were argued by Ms Fraser-Butlin on behalf of the Appellant, who has been acting pro bono, and I am extremely grateful to her for her patience and her assistance this morning, as I am sure the Appellant is. In addition, the Appellant himself argued grounds 5.2, 5.14 and 5.15 - I shall return to those - and there was, as I say, a cross-appeal by the Respondent to the effect that the Employment Tribunal was wrong to find that the disclosure conveyed information. Mr Wilson appeared on behalf of the Respondent, and, again, I am very grateful to him for his very carefully considered submissions.[12]Ms Fraser-Butlin submits, in effect, that there was here a package of relevant information or documentation governing the arrangements under which the Appellant was employed by the Respondent. He had his job description, he had seen and been provided with a copy of the bid by the Respondent for ACE funding, and he had seen the Respondent’s strategic plan. Those documents, submitted Ms Fraser-Butlin, were all intended to reflect the obligations in the funding agreement between ACE and the Respondent. There was, she submitted, an implicit link in the sense that the underlying documentation - the job description, the bid and the strategic plan - were the documents that led to the funding agreement. In those circumstances, she submits firstly that it would be wrong to say the Appellant could not have any reasonable belief that there had been a breach of a legal obligation as he had not seen the contract. She submits that it would be sufficient if he could identify the documents that were reflective of the legal obligations included in the contract. Secondly, she submitted that that error had infected the finding of the Tribunal that there was no articulation of a breach of a legal obligation. Finally, she submitted that in fact there was a claim that the failure to pursue the whistleblowing complaint was intended to conceal those earlier breaches and the Tribunal failed to address that issue.[13]Mr Wilson submitted that the Tribunal first determined the question of whether or not the information disclosed did articulate a breach of a legal obligation, then separately and secondly it concluded that there was no reasonable belief in any breach of a legal obligation and that second finding did not infect the first finding.[14]In my judgment, the Employment Tribunal did deal first with the question of whether or not the information in the disclosure did articulate a breach of a legal obligation. That is what it dealt with first in paragraph 50, and it concluded that it did not do so. It considered that there was a dispute about the way in which the project should be undertaken, but there was no identification of a breach of a legal obligation, and nothing that could be construed as tending to show a misuse of funds under a funding agreement. I understand the reasons why the Tribunal came to that conclusion. In my judgment, the case presented by the Appellant, even though he was a litigant in person, was unclear, unfocused and difficult to follow. Even before this Tribunal it has also not been easy to obtain answers to simple factual questions such as what material was before the Tribunal and what was not.[15]Nothing I say therefore is intended to be critical of the Employment Tribunal Decision. However, I am just satisfied that the Tribunal has not addressed the question of whether or not there was an implicit link between the job description, the bid for funding and the strategic plan and the arrangements between the ACE and the Respondent for funding. There is just about enough information to suggest that it was an alleged breach of an obligation in the funding agreement that was being raised, although, as I say, it is no criticism of the Tribunal for them not identifying it; it is largely the result of the very unfortunate way in which the material was presented.[16]If you look at the documents referred to by the Tribunal itself, at paragraph 24 it refers to an email that says:
“My concerns about the job description (which I assume was agreed with ACE) has [sic] been misinterpreted by the Service.”
If you look at paragraph 25, it refers to the Appellant’s belief that the ACE had a duty of care towards him as funders of his post as well as a fiduciary duty to ensure that public funds discharged by them are utilised for their intended purposes. Then, at paragraph 26, it refers to a later email sent by the Appellant that says amongst other things that he believed that the ACE had a duty of care towards him as well as a duty to ensure the funding has been deployed in line with the actual aims of the project. There is just enough information there to raise the possibility that the Appellant was saying in effect that there was an agreement between the ACE and the Respondent and that documents like his job description were intended to reflect that agreement, and there is just enough material to indicate that the Appellant was saying that the failure to comply with the job description therefore further involved a failure by the Respondent to comply with its obligations under the funding agreements.[17]Matters could have been made so much simpler by the Appellant if only he had expressed simply and clearly what it was that he said he was complaining about. In the circumstances, however, it does appear to me that the Tribunal have not addressed a significant issue, namely whether or not there really was such an implicit link between the underlying documentation and any legal obligation.[18]On the second issue - whether or not there was a reasonable belief that there had been breach of a legal obligation - in my judgment the Tribunal has erred here. They reached their conclusion on the fact that the Appellant had not seen the contract. That of itself would not necessarily prevent the employee having a reasonable belief. It is possible that the Appellant may have reached that belief if, rightly or wrongly, he believed that the job description, the funding bid or the strategic policies were incorporated into, or reflected obligations contained within, the funding agreement and therefore, in my judgment, the Tribunal has erred in relation to that second issue.[19]On the third issue - the question of concealment - again I have very considerable sympathy with the Tribunal, and the Appellant has not assisted his case in the way that he put it. It is fairly accepted by Ms Fraser-Butlin on behalf of the Appellant that he did not make any allegation of any alleged concealment by the Respondent of matters relating to the alleged breach of legal obligation in the way it declined to process, allegedly, his whistleblowing complaint. It is not included in the four or five pages of Further Particulars. It is not easy to understand why it was not included. I do accept that the Appellant is a litigant in person and it is not easy for litigants in person to deal with legal matters, but this was not a complicated matter. The Tribunal had ordered the Appellant to set out what the Particulars were; he did so in many pages. It is not easy to understand why he did not refer to this alleged concealment if it was part of his case.[20]However, in the light of the way in which matters proceeded, the matter was raised before the Tribunal. The Appellant had sent in a letter before the Tribunal hearing in which he had said that he was awaiting further disclosure. He did say in that letter that the acts of disclosure would tend to show that wrongdoing had occurred and that it had been covered up, and there is one email dated 13 September 2013 from the Appellant to a Ms McDonald, in which he says:
“… My worry is that the investigation of my complaint will be delayed until the end of the probationary period, and that declining to confirm me in post will be the measure used to manage my whistleblowing complaint.”
[21]The Tribunal said that they went through those documents, which included that one, and they treated those documents as in effect the Particulars of the case that Mr Wharton was seeking to advance. In the circumstances, therefore, I am just persuaded that this ground of appeal is also made out.[22]So, pausing there, the matter will have to be remitted to a differently constituted Tribunal, as I have upheld grounds 5.7, 5.8, 5.9, 5.1 and 5.3 of the Notice of Appeal.[23]I turn then to the other three grounds, which the Appellant dealt with, that were also allowed to go forward to a Full Hearing. The first ground is contained in ground 5.2. It is explained in the addendum to the skeleton argument prepared by the Appellant. He says that his position is that the whistleblowing policy and procedure formed a contract with employees of the Respondent and with the citizens of Leeds and that by failing to respond within the stipulated time the Respondent was in breach of that contract. It was accepted by the Appellant that nowhere did he refer in his pleadings or his response to there being a contract with the people of Leeds or that any of his disclosures or any of the information that he provided referred to any allegations of any breach of a contract between the Respondent and the people of Leeds. None of the documents produced before the Tribunal or even those produced today suggest any such information being conveyed to the Respondent. In the circumstances, in my judgment, this did not form part of his case before the Employment Tribunal, and there was no error in relation to that matter by the Tribunal. I would therefore dismiss the appeal on ground 5.2.[24]The next ground was 5.4, in which the Appellant makes complaints that the museum service was breaching the Respondent’s corporate commitments in respect of citizen participation, and he says that that was dismissed by Judge Maidment at the hearing because he considered that this was a debate about best practice. Again, the Appellant very fairly and very honestly accepted that this claim, that there was a protected disclosure about alleged breaches of corporate commitments, was not part of his case below; certainly, no documents dealing with it appear to have been shown to the Tribunal, and indeed none appear to have been shown to me. As it was not part of the case below, it is hard to see that there can be any error of law on the part of the Tribunal in not addressing it, and I therefore dismiss the ground at 5.4 of the Notice of Appeal.[25]Ground 5.15 deals with allegations that there was unethical behaviour on the part of the Respondent. Again, in his own written document for this hearing, that is the addendum to the skeleton argument, the Appellant very fairly accepts that that was not raised as a specific head of claim in the ET1 or during the Employment Tribunal hearing. In those circumstances, in my judgment, it is very hard to see how it can possibly be said that the Tribunal made an error of law when this was simply never part of the Appellant’s case. I therefore dismiss the appeal on ground 5.15.[26]The remaining matter is the cross-appeal put by Mr Wilson. The thrust of this was that the Tribunal had erred when it found that there was information contained in the complaints. Mr Wilson very fairly and very realistically accepted that at least two of the matters referred to during the course of this hearing did amount to information: that was the reference to allegations that equality data were not allowed to be used as part of the engagement exercise and also statements that particular matters were prioritised over other matters. In all the circumstances, therefore, the cross-appeal is dismissed.[27]Standing back from the details, then, the appeal has been allowed on the three issues that I have indicated. First, the Tribunal did not address the question as to whether or not there was an implicit link between the job description, the bid for funding and the strategic plan and the obligations set out in the funding agreement such that a complaint about a breach of the former was an allegation of a breach of a legal obligation in the funding agreement. Secondly, the Tribunal did not address the question of whether or not there had been a protected disclosure alleging concealment of matters tending to show such a breach. Thirdly, the decision that the Appellant could not have a reasonable belief because he had not seen the contract was flawed. It is for that reason, therefore, that I have allowed the grounds of appeal under 5.1, 5.3, 5.8, 5.9 and 5.7. I have dismissed the other grounds of appeal, and I have dismissed the cross-appeal. The matter will now be remitted to a different Tribunal for them to reconsider matters.[28]I would make two further points. First, this court is not finding that there was or that there was not a protected disclosure within the meaning of the relevant sections of ERA . This Tribunal, lest there be any doubt about it, is finding that the Employment Tribunal has not addressed two arguments: (1), the question of whether or not there was an implicit link between the package of documents - job description, funding bid and strategic plan - and the funding contract; and (2), the question as to whether or not the documents did or did not include allegations of concealment. As those matters have not been considered, they will need to be remitted for reconsideration, and the Tribunal will have to decide how to go about dealing with those matters and could reach a decision that there was, or that there was not, a protected disclosure in relation to one or more of those matters.[29]The second point is this. The procedure by which the Tribunal operated was in some respects not likely to lead to a full examination of all of the relevant issues. In deciding preliminary issues, particularly ones that are fact-sensitive, it is very important to have a structured case management process so that there is full disclosure and there are clear arrangements in place for the provision of oral evidence. Unfortunately, for whatever reason, that was not done here. The Tribunal that deals with the question of whether or not there were protected disclosures will need to consider carefully how best to structure any hearing to deal with those issues and indeed whether it is appropriate or sensible to have a Preliminary Hearing on those points rather than hearing everything together. Those are matters that are left for the Employment Tribunal to deal with.[30]I would, however, note that there are a number of documents that were not before the Tribunal. There is a document at page 66 of the bundle that does seem to be an extract from the document prepared by the Appellant for the grievance appeal hearing that does refer to the terms of the ACE contract. The reason that the Appellant gave for not producing that to the Tribunal did not seem to me to be very convincing, but nonetheless there is that document there, and the Tribunal would want to consider, I am sure, that it has regard to any potentially relevant document in considering the question of whether there was or was not a protected disclosure. It is also right to note that there were some documents that the Appellant says were only received after the Preliminary Hearing; in particular, there are extracts from pages 9 to 34 - not all the pages of document are included in the bundle - of what appears to be a transcript of the grievance appeal. The Tribunal cannot be criticised for not looking at documents that the Appellant had but chose not to use and cannot be criticised for not dealing with documents that did not then appear before them but have been prepared subsequently. However, any new Tribunal dealing with the allegations made by the Appellant will need to consider carefully how best to deal with matters, how best to ensure there is disclosure and how witness evidence is to be provided. The Appellant needs to be under no illusion, however; he too bears a responsibility, as the Claimant in the case, and if he wants the Tribunal to look at documents and if they are in his possession, then he will need to produce them. If he does not, that will be a matter for him and will not be the subject of criticism on the part of the Tribunal. But in essence, therefore, this appeal is allowed on the limited grounds indicated, and the matter will be remitted to a differently constituted Tribunal.[31]There is an application by the Appellant for costs pursuant to Rule 34A of the Employment Appeal Tribunal Rules 1993 . Rule 34A(2A) provides as follows:
“If the Appeal Tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying the respondent pay to the appellant an amount no greater than any fee paid by the appellant under a notice issued by the Lord Chancellor.”
[32]The application is for the costs and fees for this appeal, constituting £400 issuing fee and a £1,200 hearing fee. I have allowed the appeal on five grounds, although they in fact refer to three issues. I dismissed three other grounds, and I dismissed the cross-appeal. My starting point is that given there was an appeal and given the Appellant has been successful it would normally be appropriate certainly to order part and often all of the appeal costs sought. In my judgment, the fair, just and proportionate Order in the circumstances is that the Appellant have part but not all of his costs. I reach that conclusion for the following reasons. The Appellant has had to incur costs to come here and overturn the decision of the Tribunal. However, against that I must bear in mind that three of the grounds that the Appellant sought to argue, and that had to be addressed by the Respondent, were dismissed and were frankly of little substance.[33]I also think it right to bear in mind that in relation to two of the successful grounds of appeal, namely the question as to whether or not the documents tended to show a disclosure alleging breach of legal obligation and the question of alleged concealment, the fundamental problem really arose from the way in which the Appellant prepared his case and advanced it in the Employment Tribunal. The documents he produced were unclear. He was ordered to provide Particulars but when he did provide Particulars they were still unclear, and the documents that he actually produced at the Employment Tribunal were only just sufficient to reach this Tribunal to come to the conclusion that there are arguments about implicit link and concealment that should be addressed. On balance therefore, the appropriate Order, in my Judgment, is that the Respondent pay the Appellant £1,000 as part of the costs sought.