Chief Constable Of West Yorkshire Police v B & C (Victimisation Discrimination : Whistleblowing) [2016] UKEAT 0306_15_0308

EAT
Chief Constable Of West Yorkshire Police v B & C (Victimisation Discrimination : Whistleblowing)
[2016] UKEAT 0306_15_0308 · 2016-08-03
[43]“43. … liability arises if the protected disclosure is a material factor in the employer's decision to subject the claimant to a detrimental act. I agree with Mr Linden that Igen is not strictly applicable since it has an EU context. However, the reasoning which has informed the EU analysis is that 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.[45]… 45. In my judgment … 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.” 22. The ET continued:
“8.3. It is for the employer to show the ground on which any act or deliberate failure to act was done (ERA s.48(2)). Clearly the reason for any detrimental treatment may not necessarily be overt or overtly expressed such that the Tribunal will look at the mental processes of the decision makers, conscious or unconscious, to determine whether or not the protected disclosure “caused”, in the sense described above, the detrimental treatment.” 23. The ET also noted, in paragraph 8.4 of its Reasons, that it was agreed, when canvassed with counsel, that it was unnecessary and would indeed not necessarily be possible for the ET to link each alleged detrimental act with one or more particular disclosures. Within a longer discussion in paragraph 8.4 the ET said: “The Tribunal recognises further that disclosures made at an early stage may still at a much later stage have a causative effect on decisions taken by/on behalf of the Respondent.” 24. Within section 9 of its Reasons the ET considered in great detail, and with evident care, whether the detriments were materially influenced by the protected disclosure. It built upon findings concerning the detriments which it had set out in section 7 of its Reasons. It is impossible to do justice to the detail of this reasoning without extensive quotation which would overburden this Judgment. What follows is very much a summary. 25. On the question whether the removal of C from Operation 1 was materially influenced by his protected disclosures, the ET noted the close association in time between G’s conviction and C’s protected disclosures: see paragraph 9.29 of its Written Reasons. 26. The ET was sceptical about the significance which the Respondent sought to place on G’s conviction and sentence: see paragraph 9.30 of its Reasons. It said that the reaction of the Respondent’s officers needed to be carefully examined in the period after C raised the April disclosures: see paragraph 9.31 of the Reasons. It began this examination in paragraphs 9.32 to 9.39 of its Reasons. It noted the “lack of active consideration of risk” until after D was informed of the disclosures and complaints which C had made on 5 April. Building on reasons which it set out in those paragraphs it said: “9.40. The Tribunal considers that it is likely that the risk assessment process would have been taken little further forward and certainly that [C] would not have been removed from deployment had an effective accommodation and meeting of minds been achieved at the meeting attended [C] with [H] and [D] on 30 April.” 27. The ET continued its examination in paragraphs 9.41 to 9.48 and in subsequent sections of its Written Reasons. It noted that by 26 June (when the decision to remove C from Operation 1 came into sharp focus) and 1 July 2013 (when it was taken) it was “difficult to ascertain what had changed in terms of senior management intelligence”
. A report had been obtained on G’s computer showing images and video of C; but he had told the Respondent in 2011 that these would exist. 28. The Respondent, having updated its risk assessment, sent it to an officer in another force, X9, for peer review. The ET noted that C had not been involved to any significant extent in the risk assessment process and said (paragraph 9.46):
“There is no evidence that [C’s] protestations of lack of risk or lack of change of risk were seriously considered. The risk assessment prepared comes across as self-serving and whilst the Tribunal casts no doubt on [X9’s] own integrity in his peer review assessment, it does observe that [X9’s] assessment was based on what he was allowed to know and on a particular slant given to the information provided.” 29. The ET addressed the question whether B’s treatment was materially influenced by the protected disclosures in paragraphs 9.65 to 9.81 of its Reasons. The Respondent relied principally on the tattoo as justifying B’s removal from undercover duties. 30. The ET said (paragraph 9.71): “At first blush the issue of [B’s] tattoo appears to be a very real one in circumstances where [B] could be criticised as being extremely foolhardy and exhibiting a lack of judgment in having such a distinctive tattoo in such a distinctive position. However the evidence is of a number of undercover officers having distinctive tattoos and/or certainly in the case of […] being of sufficiently distinctive appearance as to significantly lessen the legitimate reliance which might be placed upon a risk arising out of [B’s] particular tattoo.” 31. Later it said (paragraph 9.76): “The Tribunal has no difficulty linking this detrimental treatment with [B’s] raising protected disclosures. They were a material influence. Again, his treatment has to be seen running in parallel to that of [C] and the fact that the Respondent saw him as working together albeit in a slightly subordinate capacity to [C]. … As already discussed, the tattoo issue could have been easily dealt with if it was such a problem as the Respondent maintains and on the basis of all the evidence of others with tattoos and distinctive features the Tribunal cannot accept that to be the case.”
Ground Two 32. I will first address ground two, which is in practical terms by far the most important ground. 33. Mr Skelt mounted a root and branch attack against the ET’s findings on the question whether the central detriments concerning both C and B were “on the grounds of” the protected disclosures. He did not suggest that the ET’s Reasons evinced any error of law as such. He said that its conclusions were perverse. 34. In broad terms Mr Skelt’s challenge can be summarised as follows. The ET was not justified in rejecting the evidence of the Respondent on what were essentially policing matters. In respect of C, it was not justified in questioning the Respondent’s concerns relating to G. Those concerns had been expressed from the beginning in 2011; and they increased with the “flow” of further information concerning G after his conviction, eventually leading to the decision that C must be removed from Operation 1. Moreover, he emphasised, the Respondent had sent its eventual risk assessment, on the basis of which it removed C from Operation 1, to X9 for peer assessment. X9 was essentially independent; the Employment Tribunal was not justified in differing from the conclusion he reached. In respect of B, the ET was not justified in questioning the Respondent’s concerns relating to the tattoo. Again there was an independent assessment which supported the Respondent’s concerns in the form of an email from F of the […] Constabulary dated 6 September 2013. The ET did not address it: the email should have been accorded decisive weight. 35. I am conscious that this is a succinct summary of a sustained argument. I will return to some detail later in this judgment. But first I must say a word about an appeal to the EAT on grounds of perversity. 36. A perversity appeal is essentially a complaint about the Tribunal’s findings of fact. Parliament, however, has expressly provided that there is to be an appeal to the Appeal Tribunal only on a question of law: see section 21(1) of the Employment Tribunals Act 1996 . There can only be the most limited scope for an appeal on essentially factual grounds. 37. Thus in the leading case, Yeboah v Crofton [2002] IRLR 634 , at paragraph 93 Mummery LJ said:
“Such an appeal ought only to succeed where an overwhelming case is made out that the ET reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has “grave doubts” about the decision of the ET, it must proceed with “great care”, British Telecommunications PLC v Sheridan [1990] IRLR 27 at para 34.” 38. He explained (paragraphs 94 and 95): “94. Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the Extended Reasons of an ET, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal. 95. Inevitably there will from time to time be cases in which an ET has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal. I am, of course, well aware that this is easier said than done, especially when, as here, neither side was legally represented on the first level of appeal. As the Employment Appeal Tribunal was well aware, unrepresented litigants have understandable problems in separating questions of law from proof of facts and in distinguishing the making of legal submissions from submissions of fact, even giving evidence in the course of submissions.” 39. It is, I think, also important that in assessing whether an ET has made perverse findings the EAT should keep in mind limitations and dangers which apply whenever an appellate court is asked to review the conclusions of a fact-finding tribunal. The appellate court does not have the advantage of seeing and hearing the witnesses; it is difficult, even in a detailed judgment, for a fact-finding tribunal to capture in words all the impressions it will have received from hearing the evidence. The appellate court is likely (as in this case) to see only a fraction of the documents and it will not be immersed in the detail of the case; it will tend to concentrate on particular points chosen by the advocates and must keep in mind that these were part of a bigger picture considered by the ET. 40. Having measured the Respondent’s arguments against the standard set by Yeboah , I reject them. I do not think the ET reached conclusions which no reasonable tribunal on a proper appreciation of the evidence and the law, would have reached. I accept the general thrust of the submissions which Mr Millar made to me. 41. In this case - in contradistinction to most perversity appeals - the challenge is not to a specific finding of fact but to the ET’s overall conclusions on the question whether protected disclosures materially influenced the Respondent in imposing the detriments. The overall conclusions were built upon numerous findings of fact; and the ET’s advantage of seeing and hearing the witnesses is considerable. 42. I will address what appear to me to have been Mr Skelt’s principal submissions relating to C. 43. Firstly, he fastened upon what he said was a finding by the ET that the risk concerning G did not cause the Respondent any material concern: see paragraph 9.24 of its Reasons. This was truly perverse because it was inconsistent with the ET’s own findings. The risk posed by G had been raised and discussed with C in 2011 - in particular in November 2011; it had been agreed that further meetings would take place if in the course of investigation of G any intelligence impacted on or created any risk for him: see paragraphs 7.3 to 7.6 of the ET’s Reasons. Therefore the Respondent plainly had a material concern about the matter. 44. I do not accept this criticism of the ET’s Reasons. The ET was well aware that the arrest of G had caused concern to C’s superior officers: it said precisely that in paragraph 9.23. What the ET meant by “material concern” is clear from the preceding sentence - the last sentence in paragraph 9.23 - and from the following sentences in paragraph 9.24. C had disclosed that there were likely to be photographs and videos of him with G including at social occasions. Even so there had been no question of him ceasing to deploy as an undercover officer and there had been no formal written risk assessments. This remained the position throughout G’s trial and after his conviction and sentence. These were valid points for the ET to make. I see nothing perverse about them. 45. Secondly, Mr Skelt pointed to the ET’s findings of fact about what he described as the “flow” of further information as explaining why and how the Respondent acted as it did. In summary, following G’s conviction in 2013 D contacted DCI Wallen, who was responsible for G’s case. DCI Wallen was concerned that G would no longer honour past loyalties while in prison. This led to a report by D dated 25 April 2013 which assessed the position of all the undercover officers and in particular set out the close connection between C and G. See paragraphs 7.31 to 7.36 of the ET’s Reasons. By June 2013 it had been established that there were indeed on G’s computer images and video of C. Hence there was a meeting with C on 26 June to discuss the Respondent’s view of the risks to him owing to the G connection. He was asked to consider the matter with his wife and take further security steps. A further risk assessment was undertaken. This led to a decision to temporarily remove from deployment. See paragraphs 7.70 to 7.77 and 7.84 to 7.85. Therefore, Mr Skelt submitted, the Respondent plainly had a proper concern about the matter; it was a policing issue where the ET was bound to give effect to its own primary findings of fact when it decided whether the detrimental treatment was “on the grounds of” protected disclosures. 46. Contrary to this submission, I do not think the ET’s findings of fact about the “flow” of further information bring home a perversity argument. The ET was well aware of the chronology. But the chronology gives rise to substantial questions. Neither H nor D had followed the matter up at all until after D was apprised of the complaints of C. His evidence about his reasons for contacting DCI Wallen was not accepted by the ET - see paragraphs 7.25 and 7.27 - but even if true it would not suggest that D was carrying out a planned risk assessment. C was at this stage left on undercover deployment: DCI Wallen’s information did not lead to C’s removal at a time when (the ET found) D hoped that he would not take his complaints further. Then, however, C did complain to the PSD; and it was after learning about this that he was removed from Operation 1. By this time computer images and video had been found on G’s computer; but the existence of images and video had been made plain by C himself in 2011. It is in my judgment impossible to describe the ET’s findings as perverse. There was evidence upon which the ET was entitled to find that the Respondent’s decisions were materially influenced by the protected disclosures. 47. Thirdly, Mr Skelt relied on the fact that the decision to remove from deployment was sent for peer review to X9. His submission went as follows. As the ET found, X9’s peer review dated 18 July 2013 supported the Respondent’s decision. The ET was not justified in saying, as it did, that the information given to X9 was slanted. This peer review was of central importance to the case, since the opinion of the reviewer was independent operational support for the decisions taken by the Respondent. 48. I am not persuaded by Mr Skelt’s submission that the ET was perverse in its approach to the peer review of X9. The risk assessment sent to X9 had been prepared without showing it to C or giving him any opportunity to comment on it, still less to speak to X9 himself. It presented as a feature adverse to C what he would have emphasised as a feature in his favour: he was close to G, […], and it was (he would have pointed out) inherently unlikely that G would endanger him as an undercover officer. It said that it “transpires” that C had been caught by G on images and video; it did not clearly say that the Respondent had known that this was likely since 2011 and had continued his deployment. I have no doubt that if C had been permitted to comment, and X9 had seen his comments, he would have had a quite different slant on the assessment of risk. 49. Moreover the ET was correct in law to concentrate upon the motivation of those who were responsible for the decisions relating to C. Mr Skelt accepted and indeed submitted that this was the law: he was in my judgment correct to do so. He cited Co-Operative Group v Baddeley [2014] EWCA Civ 658 at paragraphs 40 to 43 and 51; these paragraphs are in fact concerned with the rather different test in section 103A of the Employment Rights Act 1996 applicable to dismissal, but the general proposition is not in doubt. X9’s review was not central to the question the Employment Tribunal had to determine for liability purposes: this depended on those who took the decisions relating to C, not upon X9 who was only responsible for reviewing them on limited information. 50. Fourthly, Mr Skelt criticised the ET’s finding that the refusal of the Respondent to show C the risk assessment information between 26 June and 23 July was materially influenced by his protected disclosures. He criticises in particular its finding that this was “not an ordinary risk assessment but one which took place without any significant involvement from [C] himself”
. He argued that this involved the ET in deciding for itself, impermissibly, what an “ordinary risk assessment” in a case of this kind would involve. He argued that the ET ignored the fact that C had repeatedly been told that he would be shown the information. 51. I reject this submission. The ET, having heard the evidence on both sides, was in a position to make a finding as to what would constitute an ordinary risk assessment. It is indeed surprising that the Claimant was excluded from the process. Despite the promises to show him the information, it was necessary for C to raise the matter with E again on 22 July before he was shown the material - long after the assessment was made, and after the peer review decision. 52. Fifthly, Mr Skelt criticised the ET’s finding that the requirement, on C’s return from sick leave, to work in a civilian role on automatic number plate recognition was materially influenced by his protected disclosures. He submitted that this finding ignored the result of the peer review; and that the ET ignored evidence that the PSD itself had said return to the unit could compromise the PSD investigation. 53. Once again I do not consider that the ET’s reasoning can be described as perverse. It was entitled to find that the requirement was materially influenced by the disclosures. It had, and pointed to, evidence that undercover officers were commonly accommodated between deployments, including for extended periods. The ET had already expressed its misgivings about the peer review process: it was entitled to have those misgivings. The ET was entitled to be sceptical as to what the PSD had said: see paragraph 7.116 of its Reasons, which makes it plain that it was not satisfied on the balance of probabilities about this point. As the ET noted, it would be remarkable if such a point was not noted in writing. 54. I will now address what appear to me to have been Mr Skelt’s principal arguments concerning B. I can take this more briefly, because Mr Skelt’s submissions were less extensive. 55. Firstly, he challenged the ET’s finding that B’s treatment at the meeting on 14 May concerning the tattoo was materially influenced by his protected disclosures. He submitted that a reading of the transcript of the meeting showed that it was friendly in tone, the remarks being designed to assist him and protect him rather than discipline him in any way. The ET was not entitled to say that the issue of the tattoo could have been discussed in a more collaborative and constructive manner, or that the issue could easily have been resolved; nor was it entitled to impose its own assessment of the importance of the tattoo to his continued deployment. This latter point was a theme running through Mr Skelt’s challenge to the whole of the reasoning relating to B. 56. I reject these submissions. It is true that the words used at the meeting were avuncular and friendly; but the ET was entitled to look at the message which was conveyed. B was wrongly told that the tattoo was in breach of force policy and that he would not be able to go back to ordinary policing with the tattoo; further that it might affect him continuing as an undercover officer and that he would not be put forward for other undercover operations. 57. There was an issue before the ET as to the importance of the tattoo to the deployment of B. The ET received substantial evidence about undercover officers with tattoos and distinctive appearance: see paragraphs 7.53 and 9.71 of its Reasons. It was entitled to draw on that evidence and reach conclusions from it. It was not bound to accept the evidence of the Respondent’s witnesses at face value. Undercover officers have to develop “legends” - cover stories - to fit their circumstances; and B was able to do so for the purposes of Operation 1 on which he continued to work. 58. Secondly, Mr Skelt relied on an email from F dated 6 September 2013. She worked in the Operation 1 area. She said she did not think it appropriate to deploy him on any operations other than Operation 1(2) until the tattoo was removed; and that he could not readily be accommodated within Operation 1(2). Mr Skelt submitted that the ET was not entitled to discount this email; it was independent evidence of central importance to the question whether the decision to remove B from undercover duties was materially influenced by the protected disclosures. 59. It is true that the ET did not attach great importance to this email: it mentioned it briefly in paragraph 7.136. I do not think the reasons are hard to find. The email was sent after the decision to remove B from undercover work: see paragraphs 7.134 to 7.135 and paragraph 9.74. The ET was correct to focus on this decision taken by the Respondent rather than a later expression of opinion by F. Moreover the email itself showed that F thought that the tattoo did not of itself prevent his employment within Operation 1(2); other issues - including B’s complaint to PSD - were given as the reasons for not deploying him on Operation 1(2). I do not accept that the email from F demonstrates that the ET’s decision was perverse; I think its reasoning in paragraphs 9.74 to 9.77 cannot possibly be characterised in this way. There is, however, a separate ground of challenge - ground 3 - to which I will return in a moment. 60. Thirdly, Mr Skelt placed emphasis on what he said was the unwillingness of B to have the tattoo removed. But B had recognised he might be required to “get it lasered off” at the meeting on 14 May. The ET was entitled to be critical of the Respondent and to point out that, if it had been as great a problem as the Respondent said, it could easily have been dealt with (paragraph 9.76). This is not a perverse conclusion. 61. I cannot claim to have dealt with every one of the detailed factual points which Mr Skelt made in support of his perversity challenges. I have, however, considered all the points he made in his very full submissions and I have sought to identify and address the main points. I am not persuaded that the Employment Tribunal’s conclusions were perverse. Ground Three 62. It is convenient next to take a short ground of appeal which relates to B alone, and in particular to the decision in September 2013 to take him off the undercover unit. 63. At the hearing Mr Skelt took a pleading point concerning this and subsequent detriments. B had complained to PSD in August 2013; but in his grounds of claim he had not identified the complaints to PSD as protected disclosures. In this respect his position was different from that of C. Mr Skelt submitted to the ET that it could not treat the complaints to PSD as public interest disclosures; so it was not an issue, and could not assist B, if his treatment was materially influenced by complaints to PSD. 64. By ground 3 of the Notice of Appeal the Respondent argues that the ET fell into this error, treating the complaints of B to PSD as protected disclosures when they were not protected disclosures. 65. By the time the decision was taken in September 2013, B had indeed complained to PSD. The ET said the following (paragraph 9.74): “It appears that the decision makers therefore knew that [B] had complained to a PSD by the latter part of August ([E] said they all knew by 4 September) and whilst the disclosures to PSD themselves are not relied upon as pleaded protected disclosures it was also likely to be evident that the disclosures were effectively a continuance and repetition of the disclosures already made and which are relied on in these proceedings.” 66. In my judgment the ET plainly recognised and accepted that the complaint to PSD was not a protected disclosure. It did not fall into the error which Mr Skelt suggested. It was entitled to find that the original complaints, which were protected disclosures, were still a material influence on the decision makers: the PSD complaint would call to mind the protected disclosures. To my mind the ET was applying what it had said in paragraph 8.4 of its Reasons: disclosures made at an early stage might still have a causative effect on decisions taken by or on behalf of the Respondent. Ground One 67. I turn finally to ground one - a discrete point, best described as a pleading point - which concerns part of the ET’s finding relating to the personal development review in May 2013. 68. The ET found that this was detrimental treatment in part because of the terms of the objectives set - which included the words “safeguard the undercover tactic and the reputation of the unit in any interaction with colleagues”. 69. The ET also found that this was “further borne out and added to in terms of detrimental treatment by the Claimants both being treated differently from other undercover officers in having a 6 month review period rather than the standard 12 month” (paragraph 9.18). So the ET also found that the imposition of a 6 month review rather than a 12 month review was detrimental treatment. Mr Millar questioned whether the ET made this finding; but I do not think paragraph 9.18 can be read any other way. The six month target date was itself a term of the review. 70. Mr Skelt’s argument is that this detriment - the 6 month review rather than a 12 month review - was not pleaded; and it was not open to the ET to make this finding. 71. In the course of Mr Skelt’s submissions it emerged how this point arose. The Claimants had not known prior to the hearing that their review period was shorter than that of other undercover officers. Hence it was not mentioned in the details of their complaints. At an early stage of the hearing, during the Claimants’ case, the Respondent disclosed redacted versions of the personal development review reports relating to other officers, also conducted in May 2013. These showed that the other officers had been given 12 month reviews rather than 6 month reviews. The matter was subject to evidence and cross-examination on both sides. So it was raised fairly and squarely by the time of closing submissions. Mr Millar said in his submissions that both features - the supervision period and the wording of the objective - were clear indications that the Claimants were to stop complaining. Mr Skelt also dealt with the matter in closing submissions. He submitted that the Claimants had changed their case. But he did not take a pleading point as such. 72. Against this background I do not think the ET committed any error of law or procedure in dealing with the matter as it did. It is plain that it did not understand any narrow pleading point to be taken by Mr Skelt: contrast the point about B’s complaint to the PSD (ground 3 above) where Mr Skelt took and the ET recognised a pleading point. That, to my mind, is because Mr Skelt did not take a pleading point. The terms of the PDR were in issue; once the difference between the Claimants and the other undercover officers became plain, the provision for 6 month supervision came into sharp focus. 73. In my judgment the issue had plainly been raised, and was understood by the Respondent to have been raised, during the hearing. The Respondent can have no legitimate complaint that the ET addressed it and dealt with it. If a pleading point had been taken, the case for amendment would have been overwhelming, since the reviews of other officers were only disclosed during the hearing. Mr Skelt submitted that, by saying the Claimants had changed their case, he had sufficiently submitted that the new issue was outside the pleadings and not open to them. I disagree; it is one thing to say that a case had changed (it would have been more accurate to say that the case had been augmented); another to say that the case was not open to the Claimants. To my mind this is not one of the exceptional cases where an appellant should be allowed to take on appeal a point not taken below (see, for a summary of the principles, Secretary of State for Health v Rance [2007] IRLR 665 ). 74. For these reasons the appeal will be dismissed.