Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust (VICTIMISATION DISCRIMINATION - Protected disclosure) [2019] UKEAT 0047_19_2309

EAT
Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust (VICTIMISATION DISCRIMINATION - Protected disclosure)
[2019] UKEAT 0047_19_2309 · 2019-09-23
[29]It is plain that both the purpose of an employer's act or omission (sections 146 and 148) and the reason for dismissal of an employee (section 152) consist in the factors operating on the mind of the relevant decision-maker: see, for example, Baddeley [2014] EWCA Civ 658 , per Underhill LJ at paragraphs 41 and 42. Both under section 146 (see Yewdall ) and section 152 (see Kuzel ), it is for the employee to raise a prima facie case. In the dismissal case it is perhaps more accurate to say that it is for the employee to show "only that there is an issue warranting investigation and capable of establishing the prohibited reason": Simler J (paragraph 52) referring to Maund [1984] ICR 143.[30]If the prima facie case is made out, then it is for the employer to show the purpose of his act or the reason for the dismissal, and therefore to prove what were the factors operating on the mind of the decision-maker. It follows, of course, that in such a case a critical element in the task of the Employment Tribunal consists in their reasoned assessment of the matters, certainly the central matters, advanced by the employer in proof of those factors.[31]In my judgment that was the approach which Simler J followed. She noted at paragraph 49 that at paragraph 17 the Employment Tribunal had observed in relation to Yewdall that "the EAT stated that the burden of proof" (section 146) operated in the same way as in the anti-discrimination legislation, such as section 63A of the Sex Discrimination Act 1975. The burden of proof only passes to the employer after the employee has established a prima facie or arguable case of unfavourable treatment which requires to be explained.[32]Simler J proceeded to observe at paragraph 50:
“The first sentence appears to overstate paragraph 24 of Yewdal l. The mechanism may be similar, but that does not mean that it operates in the same way, and nor is this what the Employment Appeal Tribunal said.” 32. I interpose that, in the passage in the EAT’s decision in Dahou , which refers to the earlier EAT decision in Yewdall v SSWP , UKEAT/0071/05, Simler J went on to draw attention to the fact that, unlike the burden of proof provisions in the Equality Act 2010 (“EqA”), under these provisions of the ERA , a shifting of the burden, and a failure by the employer then to persuade the Tribunal of its innocent explanation does not automatically lead to a finding in favour of the employee. 33. There was no disagreement before me today as to the salient propositions that can be extracted from this body of authority, and I would summarise them as follows. Firstly, it will not necessarily follow, from findings that a complainant has made a protected disclosure, and that they have been subjected to a detriment, alone, that these must by themselves lead to a shifting of the burden under Section 48(2). The Tribunal needs to be satisfied that there is a sufficient prima facie case, such that the conduct calls for an explanation. 34. Secondly, if the burden does shift in that way, it will fall to the employer to advance an explanation, but, if the Tribunal is not persuaded of its particular explanation, that does not mean that it must necessarily or automatically lose. If the Tribunal is not persuaded of the employer’s explanation, that may lead the Tribunal to draw an inference against it, that the conduct was on the ground of the protected disclosure. But in a given case the Tribunal may still feel able to draw inferences, from all of the facts found, that there was an innocent explanation for the conduct (though not the one advanced by the employer), and that the protected disclosure was not a material influence on the conduct in the requisite sense. 35. It was common ground before me, correctly, that material influence is indeed (or one of the synonymous ways it is expressed in some authorities - it is all the same test), the test which the Tribunal should be applying. I add that it needs to be borne in mind that, where the claim is of unfair dismissal, under section 103A of the 1996 Act , as the test there is “reason (or, if more than one, the principal reason)”, there can be mixed reasons, but there cannot be more than one sole or principal reason. (A similar point applies in relation to the detriment test under Section 146 of the 1992 Act considered in Dahou - referring to “sole or main purpose”.) However, where the test in section 47B of the 1996 Act applies, it is possible for the Tribunal to find that more than one matter was a material or contributing influence or ground. In such a case, therefore, where it is argued, or the Tribunal considers, even if it is not any party’s positive case, that one or more of a number of different influences may be at work, it will potentially be open to it to find that more than one of them was a material or contributing influence. The Appeal - Grounds and Arguments 36. I turn to the grounds, and the parties’ arguments, in relation to the main appeal. I take the grounds of appeal and the arguments together, because the original grounds were somewhat discursive, with elements of repetition, and they were brought more into focus by Ms Garner’s written and oral submissions for the hearing of the appeal itself. In each case I have considered all the arguments, but will set out what seemed to me to be the main or most pertinent points. Claimant’s Case 37. I would summarise the headline basis for this appeal as follows. 38. Firstly, the Tribunal wrongly stated the underlying legal test of what it means for treatment to have been on the ground of the complainant having made a protected disclosure; or, alternatively, if it stated the test correctly, it did not apply it correctly. Secondly, the Tribunal failed properly to state and address how the burden of proof works in relation to such a claim, including by failing to cite specifically Section 48(2) of the 1996 Act . Alternatively, it, in any event, took the wrong approach to the burden of proof, wrongly assuming either that the burden lay on the Claimant, or at best for him that the burden was neutral. 39. More specifically, the Tribunal failed, or failed sufficiently, to engage with the mental processes of the individuals said to be responsible for the detrimental treatment. There was an insufficient analysis of whether, in the requisite sense, the reasons for the detrimental treatment were the reasons put forward by the Respondent, the reasons put forward by the Claimant, or other reasons that emerged from the overall constellation of facts; and hence of whether among the reasons, those relied upon by the Claimant did play a material influencing part. There was insufficient analysis of this by reference to each of the detriments separately identified as having been asserted, of which there were some 12 in all. Rather, these were dealt with compendiously in two short paragraphs, 13.4 and 13.5 of the Tribunal’s Decision. 40. The Tribunal had also failed to give sufficient attention to the implications of the fact that the reasons advanced by the Respondent were not found by it entirely to hold good. These were briefly mentioned in paragraph 4.8, where it was said that it was because of patient care issues that the Claimant was subject to an investigation, but were not mentioned again in paragraphs 8.1 or 13.1. 41. The Tribunal had also not paid sufficient attention to the fact that there were two incidents in December which the Respondent was relying on, as having given rise to genuine performance concerns and, in turn, the investigation. The first was the one that led to Mr Hodgkinson emailing Sister Taylor encouraging her to take up her concerns with the Clinical Director, and the second was the one involving the complaint by Ms Nevin. The Tribunal had only specifically referred to the second of these (assuming that that was what it had in mind when it spoke of the last incident). The Tribunal had also not engaged with its own findings, in particular that Mr Hodgkinson and Mr Clarke between them had withheld from the investigation the statement of another colleague, Mr Sorial, that was favourable to the Claimant, and that they had omitted him from the list of witnesses who might be interviewed. 42. The Tribunal had found that Mr Hodgkinson may have “seized on” the complaints of Ms Taylor and Ms Nevin, but had not considered why he had chosen to seize on them, and to escalate matters into an investigation procedure, in the way that he had. The Tribunal had also misled itself by referring to the Claimant’s actions having put the new rota “in jeopardy”, because ultimately the new rota was adjusted to ensure that, on occasions when consultants were on call for emergencies, elective procedures were confined to those that could be carried out by Registrars or more junior doctors. 43. The real point, said Ms Garner, was that, by raising his concerns about the rota, and in particular by referring to RCS Guidance, the Claimant had embarrassed Mr Hodgkinson in relation to this new rota, which was Mr Hodgkinson’s project. Also, said Ms Garner, the Tribunal had failed to address the implications of its own findings in paragraph 12.6, that there was an appalling lack of recordkeeping, in paragraph 12.8 that the Tribunal was not clear why Mr Hodgkinson and Mr Clarke thought they should “meddle” in the investigation, and in paragraph 12.9, about the withholding of Mr Sorial’s statement, and that the failure to review the restrictions on the Claimant’s practice over the months of the investigation, causing him to be deskilled, and the failure to review his sickness absence, were “astonishing”. 44. There was a further strand to the appeal, to the effect that the Tribunal had wrongly assumed that there was a legal requirement for a finding of collusion in respect of the allegations that involved Mr Clarke and Mr Welch, together with Mr Hodgkinson. However, in her submissions to me today Ms Garner, whilst not resiling from that proposition, did not particularly rely on it. Rather, she said, the point in relation to this observation in paragraph 13.5, which supported her main grounds of appeal, was that the Tribunal had found that Mr Hodgkinson, Mr Clarke and Mr Welch had been involved in mutual discussions and decisions; and so had not sufficiently explained why its observation about the need for collusion caused it to reject the complaints of detriment to which it was referring in that paragraph. Respondent’s Case 45. Ms Belgrove’s main points were as follows. 46. Firstly, the Tribunal plainly understood the underlying legal test that they had to apply, referring in terms at paragraph 13.1 to the test of whether the disclosure was more than a trivial element in the decision to initiate capability proceedings, and again in paragraph 13.3 to whether it had a material influence on the behaviour of Mr Hodgkinson, and/or other members of the team. Further, the Tribunal had plainly applied that test, because in paragraphs 13.4 through to 13.6 it rejected any matters to do with the Claimant’s concerns about the new rota as having had any influence on the treatment complained of. It said in terms in paragraph 13.6 that the treatment was not as a result of his disclosures. 47. On the question of the burden, whilst acknowledging that the Tribunal had not cited Section 48(2), Ms Belgrove submitted that it was nevertheless clear that it was aware of the appropriate approach to take, given its citation from paragraph 51 of Fecitt in its summary of the law, and its findings as to the positive reasons for the detriments, and to the effect that it was satisfied as to what these were. 48. As to the point about there having been two incidents in December, Ms Belgrove said they were all of a piece, because the general concern of the Sister was about the Claimant’s interactions with nurses for whom she was responsible, and the complaint by Ms Nevin was a specific example of this, that was said to involve a particularly confrontational encounter, which brought this issue to a head. 49. Nothing of significance could be read into the Tribunal’s reference to the question of whether Mr Hodgkinson had been motivated by the Claimant having put the rota in jeopardy, as that was simply a shorthand for the Claimant’s acts of whistleblowing as found. Generally, submitted Ms Belgrove, the Tribunal’s findings were sufficiently detailed and clear in its concluding section, which consisted not just of paragraphs 13.4 and 13.5 but began at paragraph 13.1, and needed to be read as a whole, and set against the background of the various earlier detailed findings of fact, on which it drew. 50. In particular, those findings set out clearly the factual background for the Tribunal’s conclusions that the Claimant had come into a hostile environment and a fractured department, that there had been some concerns raised about performance issues, and friction between him and Mr Hodgkinson, from the outset, and dating from well before the time when he made the first of his protected disclosures. Further, the Tribunal reasonably grouped the multiple detriments into those that involved the role of Mr Hodgkinson in raising various matters that led to the investigation process getting under way, and then those that related to the unfolding of that process itself, once Mr Clarke and others became involved. Further, the Tribunal had made a clear finding as to why all of these detriments occurred, and that it was because of the background which owed nothing to his protected disclosures, and was an established feature of the situation before those disclosures were made. 51. The Tribunal was also entitled to refer to the fact that, insofar as Messrs Clarke and Welch were said to be implicated, that would have to have involved some collusion, and to conclude that there was no sufficient reason to conclude that there was such collusion, having regard to what it found to be the true explanation, which focused on the Claimant’s relationship with Mr Hodgkinson. Discussion and Conclusions 52. I start with the question of whether the Tribunal sufficiently stated the law in terms of the basic legal test to be applied by it. I agree with Ms Belgrove that the Tribunal correctly and fairly stated the test, as such, as being whether the disclosures were more than a trivial element, or had a material influence on the conduct complained of. Various phrases have been used in the authorities over the years, but they all mean the same thing, and the Tribunal clearly had the correct test in mind when it used these phrases. 53. However, what the Tribunal did not specifically remind itself of was that, in order to decide this question, consideration has to be given to the mental processes of the individual or individuals concerned. This is important particularly in a case where, as I have said, it is possible that there may have been a number of influences, and more than one material influence, on the mind of the individual or individuals concerned. The Tribunal did not say anything that incorrectly stated the law on this point, and therefore this omission is not necessarily fatal to the integrity of its decision; but it means that, in reviewing its decision, I have to decide whether I can be sufficiently confident that it had this aspect properly in mind, without having the reassurance of a clear statement that the Tribunal reminded itself of it. 54. Similarly, in relation to the burden of proof, in a decision on a section 47B claim, a Tribunal ought to refer to Section 48(2), or what it says; and indeed, without wishing to encouraging excessive or over-complicated citation of authority in this area, to show some awareness of the guidance that has emerged now from the authorities on how Section 48(2) may work in practice. Once again, there is, in this Decision, no incorrect statement of the law on this point, and so the failure of the Tribunal to direct itself about the burden is not necessarily fatal, so long as I can still discern that it did effectively consider and apply it correctly, in so far as it needed to do so. 55. In this case the Tribunal found that the Claimant had made protected disclosures, and had been subject to a large number of detriments over a period of time. Though they clearly all arose out of the same unfolding course of events, these various detriments were not, in their nature, all of a piece. Further, the Tribunal had found that the protected disclosures involved raising concerns and issues about the implications for patient safety of a new rota that had been introduced at the instigation of Mr Hodgkinson, and it had found that almost all of the detriments were by way of conduct on the part of Mr Hodgkinson, and/or of Mr Hodgkinson together with others. Possibly the only detriment, although it is not entirely clear, that was found not to have involved Mr Hodgkinson at all, was the delay in progress and completion of the investigation. 56. The Tribunal had also made the findings, in paragraph 12.6, in which they spoke of an “appalling” lack of record keeping, in paragraph 12.8, that it was “not clear” why Mr Hodgkinson and Mr Clarke thought they should meddle in the investigation, a word that is, at best for the Respondent, ambiguous as to whether it has an entirely innocent connotation, and in paragraph 12.9, about the withholding from the investigation of the evidence of Mr Sorial, the failure to review the restrictions, and the failure to review the Claimant’s sickness absence, the latter two of which the Tribunal described as “astonishing”
. Given all of those strong findings, had the Tribunal addressed the burden of proof in terms, in my judgment it would have been bound to conclude that a prima facie case was made out, which called for some answer. 57. Not all of Ms Garner’s criticisms of the Tribunal’s reasoning struck home. I saw force in Ms Belgrove’s point that the two incidents involving the nurses were similar, the second incident being viewed as illustrative of the concerns raised by the first incident. I agree with Ms Belgrove that the reference to the rota being put in “jeopardy” was simply a shorthand for referring to the potential implications of the Claimant’s whistleblowing, whatever precisely they might be. 58. The Tribunal was also entitled, as such, to consider whether some, or possibly even all, of the explanation for the detrimental treatment found was the hostile and difficult environment into which the Claimant came, and the various issues (unrelated to the protected disclosures) over which he had clashed with Mr Hodgkinson, and the Tribunal’s conclusion that Mr Hodgkinson was generally hostile or unsympathetic towards him for reasons that predated, and had nothing to do with, the protected disclosures. 59. However, I am persuaded by Ms Garner that there are a number of significant shortcomings in the Tribunal’s reasoning. Firstly, it was the Respondent’s case (as mentioned in paragraph 4.8) that Mr Hodgkinson’s conduct, in particular in escalating (or encouraging the escalation of) the matters that were brought to his attention by Sister Taylor, and in relation to Nurse Nevin, into a formal process, was explained wholly and purely by his having had genuine concerns about the Claimant’s performance or capability. 60. The Tribunal, however, did not, or certainly did not wholly, accept that case. In paragraph 13.1 it postulated the question whether (in contrast to the Claimant’s case that Mr Hodgkinson had reacted to his protected disclosures) Mr Hodgkinson’s conduct was explained by his “dislike” of the Claimant (which, in paragraph 12.1, it had found indeed existed), and in paragraph 13.4 appears to have concluded that the explanation was a mixture of his “ongoing concerns” (in response to issues raised by staff) and his “antipathy” towards the Claimant. 61. Having found that what it called “dislike” or “antipathy” (as I read it, the Tribunal regarded these two terms as synonymous) on the part of Mr Hodgkinson was part of the explanation for his conduct, which had not been any part of the Respondent’s case, the Tribunal did not give any consideration to what, if any inference should be drawn from the fact that the Respondent had advanced a case before it that had not, or certainly not wholly, been accepted. 62. Secondly, and related to that, the Tribunal has not, in my judgment, sufficiently explained why it was satisfied that Mr Hodgkinson’s conduct was wholly explained by “his ongoing concerns and antipathy towards the claimant, rather than because of the jeopardy to his new rota”, that is, why, having regard in particular to that findings of “dislike” and “antipathy”, it felt able to exclude the possibility that the Claimant’s whistleblowing in relation to the rota had also at least had a material influence on his conduct. 63. In this regard, there is, so far as I can see, almost no express analysis in this Decision, for example, of the evidence given by Mr Hodgkinson or Mr Clarke or Mr Welch, whether in chief or under cross-examination, as to what was going through and influencing their respective minds. There is a reference in relation to Mr Welch, in paragraph 4.17, to what he told the Tribunal as to why he placed the Claimant on restricted duties, and what he said he believed about that, and there is a finding there that this was “not properly thought through”. However, whilst that might, just, be sufficient to point to the Tribunal’s conclusions about the thought processes of Mr Welch , it does not assist in relation to Mr Clarke or Mr Hodgkinson. 64. There is also no engagement by the Tribunal, in the concluding section, with its own earlier findings, in paragraphs 12.6, 12.8, and 12.9. The Tribunal uses strong language in these passages. The finding that the statement of Mr Sorial, and his name as a potential witness, were deliberately withheld, could also potentially be viewed as significant. The case advanced before me (as I understood it) was that the Tribunal was entitled to take the view that the behaviour discussed there was influenced by the animosity that had built up on the part of Mr Hodgkinson towards the Claimant. But I consider that the Tribunal needed to address the reasons for this conduct more fully, having regard for example, to its earlier finding that Mr Hodgkinson had been warned off, and told by Mr Clarke, indeed, to draw a line under matters, but now seemed to have returned to them; and indeed its findings that Mr Clarke was involved, together with Mr Hodgkinson, in these very actions, despite the fact that it was Mr Clarke who had previously warned Mr Hodgkinson off. 65. It may be said that there is a significant difference between this case and Dahou , because in that case the ET had made a finding adverse to the employer without fully reflecting on the employer’s explanations, whereas in this case the finding went in the employer’s favour. I recognise that this Tribunal was in principle potentially entitled to make a finding that the whole explanation was not the one advanced by the Respondent, but a mixture of genuine performance concerns and animosity towards, or dislike of, the Claimant, but that, nevertheless, it was satisfied that the Claimant’s disclosures in relation to the rota were not also among the things that materially influenced the conduct. However, if so, the Tribunal needed, in its reasons, to engage with those features of its findings that I have highlighted, and to set out a far more full account of the reasoning taking it to that conclusion, than it in fact did. 66. The Notice of Appeal as originally framed had included a Meek -compliance argument ( Meek v Birmingham District Council [1987] IRLR 250 ), but, following remarks made by Simler J, as she then was, on the paper sift, Ms Garner did not seek to rely on a freestanding Meek ground. However, in any event the failures that I have described are failures by the Tribunal to take the proper legal approach that was necessary, in a case which presented itself with this particular multi-stranded evidential and factual matrix. This was an error of law, and therefore the appeal succeeds. The Cross-Appeal 67. Ms Belgrove criticised the Tribunal’s findings that there were protected disclosures, as defective, broadly in two respects. Firstly, the Tribunal had not properly identified which sub-limb of Section 43B(1) was being relied upon. It might be sub-limb (b) - failure to comply with a legal obligation, or (d) - health and safety being endangered, but the Tribunal had not said, in terms, which it was. Secondly, the Tribunal had not anywhere made specific findings of fact as to what information the Claimant actually communicated, in terms of what he actually said on the occasions when it found that he did make protected disclosures. These were essential building blocks of a proper finding that there were the elements of a protected disclosure present on each occasion, and without them it could not clearly be understood, for example, why the Tribunal considered that the Claimant had the requisite reasonable beliefs. 68. In reply Ms Garner drew my attention to the fact that the Claimant had provided further and better particulars of his claim in this regard. These appeared in my bundle. They included a specific account of what the Claimant said he had told Mr O’Donoghue in the telephone call on 15 November, to the effect that the new system was causing delays and complications with the start of the elective list, and compromising patient safety, including referring to a more than one specific example, of how he said such problems had arisen. Further, on either the 16 th or 17 th, having sent the RCS recommendations to Mr O’Donoghue, he spoke again, and gave him another example of how this had come about. They also asserted that he had spoken up at the meeting on 17 November, giving supporting information and answering queries about the incidents to which he referred. They also referred to his case as to his reasonable beliefs, drawing on the RCS recommendations, and referring to the explanation given there, of why separating emergency and elective cases had significant benefits for patients. All of this, I was told, was reflected in the Claimant’s witness statement for the hearing. 69. Ms Belgrove submitted that it was not sufficient to rely on pleadings or, indeed, the Claimant’s witness statement, because none of that was reflected in the Tribunal’s findings in its actual decision. Indeed, she suggested the fact that Ms Garner had had to resort to this material rather made her point. 70. However, I do not agree. Firstly, in its decision the Tribunal, at paragraph 4.7, referred to the Claimant’s concerns about patient safety. In paragraph 4.9 it referred to his opinion that the new system would cause delays and complications with the elective list and compromise patient safety, and that his research revealed that it contradicted RCS Guidance on, “separating emergency and elective surgical care”. In paragraph 4.10 the Tribunal referred to the Claimant informing Mr O’Donoghue of issues he had had the previous day whilst he was the on-call consultant. It referred to in paragraph 4.11 to him telling Mr O’Donoghue he had had cause to leave a patient during a consultation to attend emergency theatre. In 4.12 Mr O’Donoghue was recorded as telling the Claimant he would raise his concerns at the meeting, and raise them with Mr Hodgkinson. In 5.1 the Tribunal posed the question in general terms but in 5.4 it referred to patient safety. 71. Then, in paragraph 10.1, the Tribunal again posed the question of whether there was a disclosure, and went on to identify that the issue was whether the Claimant had made a point in relation to health and safety. In 10.2 it referred to the fact that the Claimant was one of only two people who had been on the rota, and that it was satisfied that he was among those who raised patient safety at the meeting. Thereafter, in 10.4, it concluded that it was not unreasonable for him to be heavily influenced by the RCS Guidelines, and that the Tribunal accepted that he believed that patient safety was a very real issue. In 10.5 it referred to his own experience whilst on the on-call rota and to the issue having been addressed by ensuring that elective lists were now lighter, and reduced to Registrar level. 72. Drawing on all of that, firstly, there was no suggestion, either before the Tribunal nor as a postulated ground of appeal, that Mr O’Donoghue did not know about what the Claimant had raised, why he had raised it, and about the examples that he had given. Secondly, it really is perfectly clear, I think, from all of those passages, that it was understood by the Tribunal, and by the Respondent, that the Claimant was raising concerns over what he saw as the implications for patient safety, and that it was his case that this fell within Section 43B(1)(d). One has to remember, I think, that this whole case has the context of a hospital setting, treatment of patients, and in particular, treatment of patients requiring surgery or surgical care. 73. It is also clear that evidence was given to the Tribunal that the Claimant had spelled out his concerns by reference to actual factual examples from his own experience. True it is that the Tribunal did not reproduce and set out what those examples were, to which he had referred, in its own written Reasons, and true it is that its summary of the issues does not frame in paragraph five the questions for its consideration in precisely the correct legal way. However, one needs to bear in mind that the first audience for the Tribunal’s decision was the parties, who were fully acquainted with the issues, and with the evidence that had been given reflecting those issues. I think it can be inferred that the Tribunal assumed that they would, therefore, know the greater detail behind the matters to which it was referring in this regard. That was, as such, a fair assumption. Further, the real focus of what it had to decide, on the question of whether these were qualifying and protected disclosures, and which it did get to grips with, in its Reasons, was whether the Claimant had genuine concerns and whether they were reasonably held. I add that there was no challenge in this appeal to the Tribunal’s conclusion (or how it was expressed) on the public interest limbs of the definition of a qualifying disclosure. 74. The Tribunal, it must be said, did sail perhaps a little close to the wind by not setting out more precisely the legal tests in this regard, in the statement of issues in paragraphs 5.1 to 5.8, and by not spelling out, for the benefit of all readers of its decision, in more detail, the factual evidence it had, of the examples that the Claimant had given in raising his concerns with Mr O’Donoghue, and in articulating his concerns at the 17 November meeting. I do not encourage the cutting of corners of that sort, relying on the assumption that the parties will know well enough what is being spoken about. However, in this case I do not consider that the failure to set out this aspect was fatal to the robustness of the Tribunal’s findings and conclusions that there was a protected disclosure. Accordingly, the cross-appeal fails.

Cited in 1 later judgment