Brito-Babapulle v Isle of Wight NHS Trust (Victimisation Discrimination: Detriment) [2016] UKEAT 0090_16_1006

EAT
Brito-Babapulle v Isle of Wight NHS Trust (Victimisation Discrimination: Detriment)
[2016] UKEAT 0090_16_1006 · 2016-06-10
[1]I refer to the parties as the Claimant and Respondent, as below. This is the hearing of the Claimant’s appeal against a Judgment of the Southampton Employment Tribunal (Employment Judge Livesey, sitting with Mr Bird and Mr Holcombe over five days in June 2015 with two further days in chambers; “the ET”), sent out on 25 June 2015. Both parties were represented before the ET by counsel. Ms Mallick did not represent the Claimant below, but Mr Islam-Choudhury represented the Respondent then, as he does now. By its Judgment the ET, relevantly, dismissed the Claimant’s claims of detriment on the grounds of having made a protected disclosure but allowed her claim of unauthorised deductions from wages. The Claimant appealed and, after a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 , I permitted her to do so on the basis of amended grounds. The Background Facts[2]The Respondent is the NHS Trust for the Isle of Wight and operates St Mary’s Hospital, Newport, which has a small haematology department comprising two Consultants, one Clinical Nurse Specialist and two Secretaries. The Claimant is a Consultant Haematologist, having qualified as such in 1995. The ET set out its view of her as follows:
“4.5. … a rather forthright and demonstrative lady. She maintained that she was a person of impeccable character, despite agreeing that she had been dismissed for gross misconduct from one of her previous roles and that she had a criminal conviction for harassment. She was not easily persuaded that her view of things may have been wrong.”
[3]The Claimant was offered a locum position with the Respondent at St Mary’s Hospital in August 2013. There was an issue between the parties as to the length of her fixed term appointment, but the ET found that the initial agreement was for the locum position to last for four months. She was working alongside another locum Consultant Haematologist, Dr Volkova. From early on, others within the Respondent developed concerns regarding the Claimant’s ability to create effective working relationships, and a number of complaints were made about her behaviour and conduct; the ET stating:
“4.19. In general terms, we found the sheer volume of evidence from the Respondents’ witnesses about the Claimant’s damaging behaviour within the Department to have been compelling. The Claimant herself did not appear to have had any insight into the manner in which her interactions had caused upset or offence.”
[4]In September 2013, the Claimant was interviewed for a permanent Consultant’s position but was unsuccessful because of her perceived lack of teamwork and personality (see paragraph 4.21 ET Reasons). Notwithstanding that lack of success, the Claimant continued to work for the Respondent in her locum position.[5]In pursuing her protected disclosure claim before the ET, the Claimant relied on a number of oral and written disclosures. The ET accepted that certain - albeit not all - of the matters relied on amounted to protected disclosures (see paragraph 5.8).[6]As a result of the concerns about the Claimant’s behaviour and conduct and the effect on the functioning of the department, the view was formed that her continued employment could not be sustained. Indeed, by October 2013 it was perceived that there was something of a crisis within the haematology department because of the huge conflict of personality problem between the two locum Consultants. In early October 2013 it was decided the Claimant must be dismissed, and this was communicated to her by the Respondent’s then acting Associate Director for Acute Services, Mrs Kennett, at a meeting on 28 October 2013 (see paragraph 4.35). Although the Claimant’s contract had only been due to end on 19 December, Mrs Kennett explained that because of the irretrievable breakdown in working relationships she was not required to work further, albeit she continued to receive her salary up to 19 December.[7]Had she continued to work, the Claimant would also have continued to undertake on-call duties between 28 October and 19 December 2013. As she was not required to work, she was equally not required to be on-call. Accordingly, the Respondent did not pay the on-call element of the Claimant’s salary. The ET’s Decision and Reasoning[8]By an ET claim dated 27 January 2014, the Claimant made (relevantly) complaints of dismissal and detriment on the ground that she had made protected disclosures, and also of unlawful deductions from wages. The ET dismissed the protected disclosure claims but allowed the unauthorised deduction claim. In relation to the protected disclosure detriment claim the Claimant had complained of eight matters. Relevantly, for present purposes, the ET accepted that the Respondent’s failure to pay on-call hours after 28 October 2013 amounted to a detriment and further allowed the Claimant’s claim of unauthorised deduction of wages in respect of that matter (see paragraphs 5.21 to 5.26). It did not accept, however, that this failure to pay the on-call element of the Claimant’s salary was by reason of any protected disclosure, explaining its reasoning as follows:
“5.9.3. Failure to pay on-call hours after 28 October 2013; The Respondent’s evidence was to the effect that the payment was withheld because it was not policy to pay for on-call time which had not actually been worked. That was the advice given to Mrs Kennett by HR. …”
[9]On the unauthorised deduction of wages claim the ET had reasoned:
“5.25. … the Respondent had had a requirement for the Claimant to have co-operated in the on-call rota. Once she had agreed to undertake a particular evening or weekend, she had a duty to complete that work unless she had been able to swap the shift with another consultant. After 28 October, she did not attend work but was paid for her normal duties until 19 December at £75/hr. She was also due to have undertaken on-call work as shown in the rotas, but it was not paid. We could not see the distinction. We might have seen a distinction if the on-call payments had only been triggered when a consultant had actually been working, rather than standing by to work, but the Respondent’s case changed in that respect. [Original emphasis] 5.26. Mrs Thorne [former General Manager, pathology services] told us that the reason why the Claimant had not been paid for her on-call time was because of the advice that she had received from HR and Mrs Kennett; it had simply not been the Respondent’s policy to have paid on-call time in those circumstances. We could not understand the basis of that advice or policy. There appeared to have been a contractual requirement for the Claimant to have worked a certain amount of on-call time and, since she was not dismissed until 19 December, we concluded that she had suffered unlawful deductions from her wages in respect of the expectation for her to have undertaken on-call duties up until that date. To that extent, her claim succeeded.”
[10]The ET also accepted the Respondent’s failure to accord the Claimant a hearing prior to her dismissal amounted to a detriment (see paragraph 5.9.6) but again found this was not due to any protected disclosure. The ET’s reasoning was explained as follows: “5.9.6. The Claimant was not afforded any sort of hearing prior to the decision to terminate her employment; The Respondent conceded that it had not followed its own Disciplinary and/or Dismissal Policy prior to dismissing the Claimant. There was a hearing in the sense that there was a meeting on 28 October at which the Claimant was dismissed, but there was no proper process adopted before, during or after the meeting. Further, that meeting had not occurred prior to the decision having been taken. Dr Al-Bahrani had taken the decision in early October and the meeting on the 28 th was merely a means by which the Claimant was informed of it. …” (Original emphasis)[11]For completeness, I record that the ET further dismissed the Claimant’s complaint that her dismissal was automatically unfair due to any protected disclosure. The ET was clear that the reason for the Claimant’s dismissal was due to her poor interpersonal relationships, her unilateral changes to systems within the department and “ her somewhat belligerent attempts to get her own way on issues ” (see paragraph 5.11). There is no appeal against that finding. The Appeal[12]By her amended grounds of appeal the Claimant challenges the ET’s approach to the reason for the two detriments: the failure to pay for on-call and the failure to afford her a hearing prior to dismissal. The Respondent resists the appeal, relying on the ET’s reasoning but also expanding on that reasoning by reference to the ET’s unchallenged findings of fact. Submissions The Claimant’s Case[13]Reminding me that section 48(2) of the Employment Rights Act 1996 (“ERA”) applies to all detriment claims brought under section 47B and thus imposes a burden of proof on the Respondent, Ms Mallick contends that the ET was thus required to examine the reason provided by the Respondent and to carry out that exercise in respect of each allegation separately; it could not rely on its finding in respect of one allegation to justify its conclusion in relation to another ( Easwaran v St George’s University of London UKEAT/0167/10/CEA). Further, the ET was required to examine the mental processes of the people involved.[14]As for the failure to pay for on-call duty, the ET itself was unable to understand the basis for the Respondent’s advice or policy (see paragraph 5.26) and should therefore have found no satisfactory explanation had been provided. Alternatively, its Reasons were insufficient to explain its conclusion on the Claimant’s detriment claim. It did not demonstrate how it had applied the burden of proof in respect of the erroneous failure to pay the Claimant her on-call entitlement.[15]On the failure to afford the Claimant any hearing or process prior to dismissal, the ET recorded that the Respondent did not follow its own policy or procedure but apparently did not seek explanation from the Respondent as to why it did not do so. That was all the more important given that this was an NHS employer and the Claimant had adduced some positive evidence that the Respondent did apply its policy irrespective of length of employment. Moreover, the dismissal in question was of a Consultant with all the potential repercussions that that might have. Simply referring to the fact of her length of service was inadequate to the task. The ET had been required to look at the mental processes of the relevant decision makers. There was no indication here that its conclusions derived from any evidence from the Respondent as opposed to simply the ET’s own inference drawn from the fact of the Claimant’s lack of sufficient continuity of service. The Respondent’s Case[16]The ET had correctly directed itself on the question of causation for a claim under section 47B ERA 1996 , appropriately referring to Fecitt v NHS Manchester [2011] EWCA Civ 1190 (see paragraph 5.2 of its Reasons).[17]On the on-call payment issue, there was nothing inherently contradictory in the ET’s finding that the Respondent was in breach of contract by not paying the on-call payments and yet that this was not materially influenced by the protected disclosures; that was a permissible finding of fact, the ET was not bound to find the requisite causal connection merely from the existence of protected disclosures and a breach of contract (see London Borough of Harrow v Knight [2003] IRLR 140 EAT). Here, the ET had found the reason for the non-payment was essentially incorrect HR advice on contractual interpretation (the unchallenged evidence of Mrs Kennett as to why she had not made the payments). That did not mean it was required to find the non-payment was materially influenced by any protected disclosure.[18]At most this was an adequacy of reasons appeal, as to which see Rule 62 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 . As such, the appropriate course would be - if the EAT considered the reasons inadequate - to adopt the procedure laid down in Burns v Royal Mail Group plc [2004] ICR 1103 EAT and Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578 (and see per Mummery LJ at paragraphs 26 to 27 of Woodhouse School v Webster [2009] IRLR 568 CA).[19]As for the Respondent’s failure to follow its disciplinary policy in dismissing the Claimant, it was to be noted that the ET had found the actual decision to dismiss the Claimant had not been due to her protected disclosures. It had also accepted that the decision was made by the Claimant’s line manager and Head of the chemical pathology department and was simply communicated to the Claimant at the meeting on 28 October 2013. The actual decision to dismiss had been taken at a time when the only protected disclosure (as found by the ET) had been the Claimant’s email of 17 September 2013 (see the ET’s finding at paragraph 5.12); the ET was satisfied that had not tainted the reason for dismissal. Given that a concluded view had been formed, untainted by any consideration of the Claimant’s protected disclosures, it would have been improper for the Respondent to conduct what would have been a sham disciplinary process. It was, more specifically, the Respondent’s case that, as a locum on a temporary contract, there was no disciplinary process in the Claimant’s contract and, as she had less than two years’ service, there was no obligation to fairly dismiss. Reading the ET’s conclusion against this background, it was plainly a permissible finding that did not allow any inference that the Claimant’s protected disclosures had materially influenced the decision to proceed in the way that the Respondent did. The Relevant Legal Principles[20]The Claimant’s claims were, relevant to this appeal, brought under the protection afforded by section 47B ERA 1996 , which, relevantly, provides:
“(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.”
[21]Where a claim is brought under section 47B, section 48(2) ERA then provides:
“(2) … it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”
[22]I approach this provision as self-standing; it does not import the reverse burden of proof found in discrimination law: if an ET disbelieves the employer’s version of the ground on which it acted, it may find the employee’s case made out, but it is not in law obliged to do so ( Kuzel v Roche Products Ltd [2008] ICR 799 CA).[23]It is, further, common ground before me that the correct test is that laid down by Elias LJ in Fecitt : that is, whether the protected disclosure materially influences - in the sense of being more than a trivial influence - the employer’s treatment of the whistleblower. Although “materially influences” allows that the protected disclosure need not be the only, or even the principal, reason for the treatment, it still requires that the disclosure caused or influenced the employer to so act; the fact that it was part of the context is not of itself sufficient ( Knight )[24]As to the degree of explanation that an ET is required to provide, Rule 62 of the ET Rules 2013 explains the requirement, which includes (Rule 62(5)) the identification of the issues, the findings of fact made in relation to those issues, the relevant law and a statement of how the law has been applied to those findings to decide the issues. I do not read those requirements as placing a straitjacket upon the ET, but I do approach the ET’s decision in the light of Rule 62, albeit reading it as a whole, adopting a holistic approach to the reasoning. Discussion and Conclusions[25]I take first the on-call payments detriment. The ET had found, relevant for the unauthorised deduction of wages claim, that the failure to make those payments to the Claimant was a breach of contract. It had further found - on the basis of Mrs Kennett’s unchallenged evidence - that the direct reason for this failure was the erroneous advice of HR. I agree with the Respondent that this was capable of providing a reason other than the Claimant’s protected disclosures, which need not have tainted HR’s advice in any way. That said, looking at the ET’s findings on the unauthorised deductions claim, I note that it records that it was unable to understand the basis of the advice in question.[26]That then brings back into play the question of whether any of the Claimant’s protected disclosures as found by the ET materially influenced HR’s advice. The simple answer to that might be that they did not: the relevant persons within HR might not have known of the protected disclosures in question and/or might simply have been advising as to the application of a general policy (albeit a policy that amounted to a breach of contract in itself), untainted by any particular disclosure made by the Claimant. It might be - as Mr Islam-Choudhury has submitted - that the ET’s statement that it was unable to understand the HR advice or policy simply reflected the confusion on the Respondent’s side as to the approach it should take to on-call payments in such circumstances (as reflected in the ET’s record of the Respondent’s submissions before it). I am, however, unable to conclude that this was in fact so.[27]I can see that that requiring the ET to do more than it did might seem to be asking too much, given that the Claimant’s witness statement had not even covered the detriments she relied on; but the ET did not reject her case on that basis. Having found there was a breach of contract and a detriment, it needed to examine the Respondent’s mental processes and determine whether it had shown the ground on which any act or deliberate failure to act was done. Here, the ET had certainly done that insofar as Mrs Kennett was concerned, but that left open the question as to the ground upon which HR’s advice was based. As I have observed, I can see there might have been a number of easy answers to that question, which the ET might well have accepted, but I cannot be satisfied that it did so. That might be because the ET failed to correctly approach its task by failing to ask whether the Respondent had met the burden upon it. Alternatively, it might simply have been an unfortunate failure to more fully explain the ET’s reasoning in the light of the case before it. In either event, I consider this renders the conclusion unsafe, and I allow the appeal on this basis.[28]On the failure to go through a disciplinary or dismissal process, this was a case where the ET had found that a final decision had been reached that the Claimant should be dismissed in early October 2013. There had been one protected disclosure by that stage, but that did not form the reason or principal reason for the decision to dismiss. Between that decision and its communication to the Claimant on 28 October there had been a number of further protected disclosures. At some point - and I do not know when - it was apparently determined that there should be no process or hearing other than to communicate the decision reached to the Claimant. The ET concluded that was not due to the Claimant’s protected disclosures but because she lacked two years’ service.[29]On its face, that might seem sufficient; after all, that is factually correct and, if right, would be capable of being a reason untainted by the Claimant’s protected disclosures. The difficulty is, however, one of adequacy of reasons. The ET had reached a conclusion, but - given that it had to be a conclusion arrived at after due regard to the burden of proof under section 48(2) - it needed to explain the findings of fact it had made and how it applied the law to those findings to reach its decision. The statement that the Claimant lacked two years’ service is not a finding on the evidence but simply a statement of fact. If the ET had heard evidence from the Respondent that led it to conclude that this was the reason why process was not followed, then its reasons needed to explain that.[30]For the Claimant, it is stressed that this is an NHS employer and that, although Dr Al-Bahrani may have made the decision that she would be dismissed, that was not the same thing as making the decision that no process should be followed. I am also told that the Claimant herself gave some evidence to the ET that the Respondent had followed process in other cases where employees had less than two years’ service. Thus, a finding that the Claimant had no right to be fairly dismissed was not necessarily a complete answer. I can see the Respondent’s point that following a process might just have been a sham in these circumstances, but the ET did not expressly find that was the reason for why the Respondent did not follow this course. I am therefore left with a statement of fact but no indication as to how the ET reached its conclusion that this was the Respondent’s reason for not following process, in particular given the burden upon it. In those circumstances, I do not consider the reasons provided adequate to the task, and I therefore also allow the appeal on that basis. Disposal[31]Having given my Judgment on the appeal I then heard further submissions on the question of disposal, in the light of the guidance laid down in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT.[32]Ms Mallick first suggests that - given that the ET had considered that it needed to have regard to the cumulative impact of the detriments when determining whether the dismissal was by reason of the Claimant’s protected disclosure and given that I have permitted the appeal now on two detriments - my decision must impact upon the ET’s decision on dismissal. I disagree. When looking at the question of the decision to dismiss and each of the detriments, the ET was concerned with the mental processes of the individual decision makers. The two detriments with which this appeal has been concerned did not involve the same decision maker as the decision to dismiss, i.e. Dr Al-Bahrani; it is not suggested that Dr Al-Bahrani was part of HR’s advice on the on-call payments, nor is it suggested that he was the decision maker in respect of the process (indeed, the Claimant’s appeal was expressly founded on the basis that he was not). This is a misconceived submission.[33]I turn then to the order for disposal. As it is possible that there is more than one answer in respect of each of the matters identified as requiring reconsideration, I must remit this case. In large part, the issue is one of adequacy of reasons, although there is a question as to whether or not the ET correctly approached its task in respect of the on-call payment evidence. This is an ET that sat for a number of days and reached findings of fact as to which no challenge was permitted in most respects. It is largely a carefully balanced and reasoned decision; the failings identified are not the most significant of matters and certainly do not suggest this is a wholly flawed decision. Although there has been some passing of time since the ET hearing, the facts are such that it is likely to come back to mind for the ET members fairly quickly. They will have notes of how matters were put before them and that is a major advantage on the two points identified. If it does come down to simply an issue of adequacy of reasons, it is obviously more proportionate and just for the same ET to be charged addressing these issues. Accepting the possible risk that the Claimant might feel prejudiced by the ET not coming to this with a fresh mind, I note there is no reason to doubt the professionalism of this ET and I consider that is not a fear that the Claimant need have. For all those reasons, the appropriate course is for this matter to be remitted to the same ET insofar as that remains practicable.