![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Barton v Royal Borough of Greenwich (Victimisation Discrimination: Whistleblowing) [2015] UKEAT 0041_14_0105 (01 May 2015) URL: http://www.bailii.org/uk/cases/UKEAT/2015/0041_14_0105.html Cite as: [2015] UKEAT 41_14_105, [2015] UKEAT 0041_14_0105 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 10 November 2014 and 22 January 2015
Judgment handed down on 1 May 2015
Before
MR
R BARTON
APPELLANT
ROYAL
BOROUGH OF GREENWICH
RESPONDENT
Transcript of
Proceedings
JUDGMENT
APPEARANCES
(Consultant) AJP Employment Law Ltd 20 Claverdale Road London SW2 2DP
|
|
( Instructed by: Legal Services 4th Floor The Woolwich Centre 35 Wellington Street Woolwich London SE18 6HQ
|
SUMMARY
VICTIMISATION DISCRIMINATION - Whistleblowing
UNFAIR DISMISSAL - Automatically unfair reasons
The Claimant was an employee of
the Respondent and had at one
time been an elected shop steward and health and safety representative.
He received a concern from a work colleague that his line manager
had emailed a large number of
documents to her home (“hundreds”) which he
believed contained confidential or personal data about himself and her personal
email was not part
of
a secure system nor encrypted. The Claimant considered
that this was a significant breach
of
the Data Protection Act 1998.
He did not report the matter to his line managers but reported
his concerns to the Information Commissioner’s Office (“ICO”), and thereafter
to his line managers. Having consulted the ICO website, he telephoned the
advice line to clarify his understanding of
the Data Protection Act.
The information he provided was wholly inaccurate. The manager had emailed 11
documents to her home email which was password protected. None
of
the
documents were regarded as inappropriate for her to have sent.
Having established that the Claimant had referred the matter to
the ICO without first referring it to his line manager, the Claimant was
informed that he should have referred the matter to his line managers before
raising concerns with the ICO, and was specifically instructed not to contact
the ICO or other external bodies in relation to the matter without the prior
authority of
his line manager. He was told that the Respondent would
investigate the concerns promptly, as it did.
The Claimant took it upon himself to telephone the ICO to seek
advice as to what he should do about the instruction. The Respondent regarded
the Claimant’s action in contacting the ICO despite having been instructed not
to do so as a serious breach of
duty and he was summarily dismissed. He was at
the time subject to a final written warning in relation to an unrelated matter
and also found to have committed gross misconduct by writing an inappropriate
letter in the course
of
his duties, as a tenancy relations officer, to a member
of
the public.
The Claimant claimed that he had been unfairly dismissed for whistleblowing and relied on the original communication with the ICO and the subsequent telephone call as protected communications.
The Employment Tribunal found that the original referral was a
qualifying disclosure but not a protected disclosure because the Employment
Tribunal did not consider that the Claimant held the requisite reasonable
belief that the information he disclosed tended to show that the Respondent had
failed, or was failing, to comply with its obligations under the Data
Protection Act. The subsequent telephone call was not a qualifying
disclosure because there was no disclosure of
information.
The Employment Tribunal considered that the two disclosures had
to be considered separately. On appeal the Respondent sought to argue that the
two disclosures could be aggregated so that together they constituted a
protected disclosure. On appeal the Claimant sought to argue that the
instruction not to contact the ICO was unlawful, contrary to public policy and
a breach of
Article 10
of
the European Court
of
Human Rights (the illegality
point).
The Employment Appeal Tribunal following Bolton School v
Evans [2007] ICR 641 held that the telephone call could not be treated
as part
of
the original referral and could not on its own constitute a
qualifying disclosure in the absence
of
disclosure
of
“information”. The illegality
point had not been argued below and the Employment Appeal Tribunal, following
the authority
of
Kumchyk
v
Derby City Council [1978] ICR 1116,
declined to entertain the point; but had it done so, it would have rejected the
illegality point on the facts as found by the Employment Tribunal and because
the Employment Tribunal was satisfied that there was a reasonable basis for the
belief by the dismissing officers that the instruction not to contact the ICO
was legitimate and reasonable, there were reasonable grounds for the belief
that the Claimant had breached a legitimate and reasonable instruction.
Appeal dismissed.
HIS HONOUR JUDGE SEROTA QC
Introduction
1.
This is an appeal by the Claimant from a decision of
the Employment
Tribunal sitting at London South (Employment Judge Williams QC, sitting with
lay members Mrs B Currie and Dr R B Fernando). The Judgment is dated 18 September
2013 and was sent to the parties on 2 October 2013.
2.
The Employment Tribunal dismissed the Claimant’s claim for wrongful
dismissal on withdrawal and dismissed further claims as follows: (1) automatic
unfair dismissal pursuant to section 152 Trade Union and Labour Relations (Consolidation)
Act 1992 (“TULRCA”) and section 12(3) of
the Employment Rights Act 1996
(“ERA”) (this particular claim does not feature in the appeal, and I shall say
little more about it); and (2) the Employment Tribunal also rejected whistleblowing
claims under section 47B and section 103A
of
the ERA 1996. For the sake
of
completeness, I note that on 21 January 2013 the Employment Tribunal
(Employment Judge Hall-Smith sitting alone) had rejected an application by the
Claimant for reinstatement pending the hearing. By an order
of
11 November
2014, the Employment Appeal Tribunal made a Burns-Barke request
to the Employment Tribunal which provided a response dated 24 November. I wish
to record my thanks to the Employment Tribunal for its prompt and comprehensive
response.
3.
Before I refer to the factual background and the Judgment of
the
Employment Tribunal, it is helpful to set out certain relevant statutory
provisions to facilitate understanding the significance
of
the matters set out
in the factual background.
4.
Employees are protected from suffering any detriment or from dismissal
by reason of
making “protected disclosures”. In this case there were two
potential protected disclosures on the part
of
the Claimant:
(1) An email sent by the Claimant on 22
December 2011 to the Information Commissioner’s Office (“ICO”): the email
raised issues about alleged breaches of
the Data Protection Act 1998 (“DPA”).
(2) A telephone call by the Claimant to
the ICO made on 11 January 2012: the purpose of
the telephone call was to seek
advice about an instruction given to the Claimant by a manager, Mr John
O’Malley, not to contact the ICO and that he should not contact the ICO or any
other external body in relation to the matters complained
of
in the earlier
email without prior authorisation from his line manager.
5.
In order for a disclosure to be protected there is a two-stage test. Firstly,
it must be established that the disclosure is a “qualifying” disclosure; and
secondly, if the disclosure is a qualifying disclosure, it then must be found
to be “protected”. A disclosure in order to be a qualifying disclosure must be
a disclosure of
“facts” as opposed to the disclosure
of
an allegation without
reference to specific facts; see the decision
of
Slade J in Cavendish
Munro Professional Management
v
Geduld [2010] ICR 325 EAT. The law
applicable to this case has been amended, and so the references that I make are
to the law as it was at the material time. So far as concerns this case,
section 43B(1)
of
the ERA 1996 provides 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, tends to show one or more
of
the following -
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
…”
6.
So far as is relevant to this case, a qualifying disclosure becomes
protected if made in good faith and in the reasonable belief, so far as the
facts of
this case are concerned, that there has been a failure to comply with
the DPA in accordance with section 43F(1)(b). Disclosure must be to a
person prescribed by an order
of
the Secretary
of
State and the informant must reasonably
believe that the relevant failure that he is reporting is within any description
of
matters in respect
of
which that person is so prescribed. So far as
concerns this case, there is no issue that the email
of
22 December 2011 was
potentially a protected disclosure, but the Employment Tribunal concluded it
was not because it was not satisfied that the Claimant “reasonably believed
that the information disclosed … was substantially true”.
7.
So far as concerns this case, there is no issue that the ICO was a
prescribed person and the subject matter of
the email was within the remit
of
the ICO:
“43F. Disclosure to prescribed person
(1) A qualifying disclosure is made in accordance with this section if the worker -
(a) makes the disclosure in good
faith to a person prescribed by an order made by the Secretary of
State for
the purposes
of
this section, and
(b) reasonably believes -
(i) that the relevant failure falls
within any description of
matters in respect
of
which that person is so
prescribed, and
(ii) that the information disclosed, and any allegation contained in it, are substantially true.”
8.
Employees are given protection from suffering detriment by reason of
making protected disclosures. Section 47B
of
the ERA provides:
“Protected disclosures
(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.”
9.
Employees are also protected from dismissal by reason of
having made a protected
disclosure by section 103A
of
the Act:
“Protected disclosure
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.”
10.
As there is reference in the Judgment and in the parties’ submissions to
section 43J, which deals with contractual duties of
confidentiality, I set it
out:
“Contractual duties of
confidentiality
(1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.
(2) This section applies to any agreement between a worker
and his employer (whether a worker's contract or not), including an agreement
to refrain from instituting or continuing any proceedings under this Act or any
proceedings for breach of
contract.”
11.
For the sake of
completeness I shall also set out section 58
of
the DPA
1998:
“Disclosure of
information
No enactment or rule of
law prohibiting or restricting the
disclosure
of
information shall preclude a person from furnishing the
Commissioner or the Tribunal with any information necessary for the discharge
of
their functions under this Act [or the Freedom
of
Information Act 2000].”
The Factual Background
12.
I now turn to the relevant factual background, which I have taken
largely from the decision of
the Employment Tribunal. There is no need to
address the Claimant’s employment history in any detail, nor investigate his
complaints
of
suffering dismissal on the grounds
of
trade union activities nor
of
exercising a right to accompany a fellow employee in grievance or disciplinary
proceedings, because these have played no part in the appeal.
13.
At the material time the Claimant was employed by the Respondent
(“Greenwich
”) as a tenancy relations officer. He was dismissed summarily on 19
December 2012, but the terms
of
the dismissal were varied on appeal to
dismissal on 12 weeks’ notice. At the time
of
his dismissal the Claimant was
an elected shop steward as well as a health and safety representative. The Respondent
had a whistleblowing policy for staff, and its general rules and procedures
contained fairly standard terms in relation to misconduct and gross
misconduct. In particular, employees were required to carry out their duties
in a conscientious manner and were to not wilfully neglect their duties. All
employees were required to comply with legitimate instructions, procedures and
codes
of
conduct. Misconduct was stated to include:
“Misconduct of
any kind which may have an adverse effect on
the working
of Royal Greenwich
or subject it to unfavourable criticism.”
14. Misconduct also included failure to carry out reasonable duties or obey reasonable instructions. In the section dealing with gross misconduct the following example was given:
“Deliberate actions, omissions or negligence which cause or
may cause loss, damage or injury to Royal Greenwich
or its staff, operations,
reputation or property …”
15.
On 8 June 2009 the Claimant was placed on a written warning for
disrespectful behaviour towards a manager. His appeal was dismissed. The
disciplinary hearing relating to his disrespectful behaviour had been conducted
by Mr O’Malley, the head of Greenwich
’s community housing services. Mr O’Malley
on that occasion imposed a written warning on the Claimant.
16.
On 22 December 2011 the Claimant was contacted by Jen Oree, a manager in
the homeless-persons unit, whom the Claimant had previously represented in a
number of
workplace matters. Mr Oree expressed concern that his line manager,
Dorothy Thomas, had emailed a large number
of
documents to her home using the Respondent’s
facilities, and Mr Oree believed that these documents contained confidential or
personal data about himself and that Ms Thomas’ personal email was not part
of
a secure system. He said that he believed there were “hundreds
of
documents
and emails attached”. He was concerned that Ms Thomas’ private email was not
encrypted nor secure. The Claimant then consulted the ICO website and
telephoned the advice line to clarify his understanding
of
the DPA. He
followed this with an email headed “Advice please” (Tribunal Decision,
paragraph 33):
“I am a representative for my workplace colleague who has
just provided evidence from discarded printed material that shows a manager who
has been involved in disciplining him has sent large amounts of
material to her
home e-mail address.
…
We have an excellent Data Protection Officer, Graeme James at this council but he is away … and there is no other person I can contact at the council to discuss this with. … [This may not have been altogether correct because he was able immediately afterwards to send the email I refer to in the next paragraph.]
There appears [sic] to be hundreds of
e-mails and documents
attached which are
of
a private nature sent to the manager’s personal e-mail
address, which is not part
of
a secure ‘work at home’ or encrypted system.
The person I represent believes this may be a police matter,
but I thought it best to get some general advice from you as well as reporting
it to the senior management here at Greenwich
Council. He would like to know
if there is any urgent action that may be taken to retrieve this material and
the [sic] prevent the ability
of
this person to access the material.
An urgent response would be appreciated given the holiday period is about to begin. …”
17. Later that day the Claimant emailed Mr O’Malley and Mr Corbett, Mr James’ deputy, copying in Mr Oree, suggesting that Mr Oree had provided information:
“… which appears to show that Dorothy has sent personal information from her council email to her own personal email address. …
It appears that many hundreds of
documents have been sent
without his permission to her home email address. There it may be accessed or
read by anyone she chooses to allow to read or even forward it on further.
Jen has asked the matter is dealt with as quickly as possible
and on his behalf I have contacted the Office of
the Data Commissioner to see
if police involvement may be an option.
They as you know are particularly concerned by the lax standards at many local authorities.”
18.
The Claimant informed Mr O’Malley that the Council should deal with the
matter with urgency and a caseworker from the ICO would contact him soon. He
also reported that he had spoken to Mr Corbett as the person with the
responsibility for data protection issues in Mr James’ absence. Attached to
the email appears to be an email to Mr O’Malley from Mr Oree. I do not know if
this is the “evidence” referred to by the Claimant. This email suggests that
the complaint was not only about a serious breach of
the seventh principle
of
the DPA but was also a complaint about Dorothy Thomas:
“… I want the information recovered; deleting the files will not just do because ID theft is rife these days. …”
19.
He also refers to another complaint against Dorothy Thomas about the
loss of
a personal file (a physical file) referring to capability issues, that
had occurred in August 2011. There is nothing in that email which in any way
might constitute evidence showing that Ms Thomas had sent personal information
from her Council email to her own personal email address. On 23 November Mr O’Malley
sent an email to the Claimant and enquired if the Claimant had discussed his
concerns with his line manager and sought authorisation before contacting the
ICO. The Claimant responded by saying:
“Please do not be silly about this. I do not need to seek authorisation for anyone [sic] before speaking to the ICO for advice.”
20. He referred to the fact that he had contacted Mr Corbett and went on to say:
“At the moment there is no official complaint to the Commissioner but that will depend on what happens in the next few hours. At the moment there has been no union involvement in the matter. …”
21.
The Claimant said he had spoken to Mr Corbett who had told him he needed
Mr O’Malley’s agreement so he could access Ms Thomas’ emails and confirm whether
or not a potential breach had occurred. Mr O’Malley invited the Claimant to a
meeting and made it clear that he should have sought advice from his line
manager as a first step. Mr O’Malley made clear he would be investigating all
aspects of
the issue and would take whatever actions were appropriate:
“… Given that I am arranging for the matter to be
investigated as soon as practicable, I am instructing you that you do not
contact the Office of
the Information Commissioner or any other external body
in relation to this issue without prior authorisation from your line manager.”
22.
As the Employment Tribunal pointed out, it was that last sentence that
formed the basis of
the subsequent disciplinary action against the Claimant. Despite
this instruction, on 11 January 2012 the Claimant telephoned the ICO and sought
advice as to what to do, and the ICO confirmed to him that
Greenwich
had no
authority to tell him not to contact them. The Claimant informed Mr O’Malley
and Mr Oree and copied in Mr Corbett and Mr James (the corporate information
and compliance officer) who was responsible for investigating the alleged
breach
of
the DPA.
23.
On 9 January 2012 Mr James’ investigations had revealed that Ms Thomas
had emailed 11 documents in total to her own personal email account. None of
these documents were described as confidential. Four related to annual leave,
and one was from the post master about an email that was undeliverable. It
does not appear that any
of
the documents were inappropriate to be sent. He
expressed disappointment that the Claimant had felt the need to go directly to
the ICO rather than await his return, because he and the Claimant had debated
many other matters together over the years.
24.
On 3 February 2012 Mr O’Malley set out his conclusions in an email to
the Claimant, Mr Oree and other interested persons, in which he concluded there
had not been a breach of
the DPA because Ms Thomas had sent the limited
documentation to her own email account, which was password protected and not
accessed by others. On 11 January 2012 the Claimant emailed Mr O’Malley and Mr
Oree and mentioned that he had spoken to the ICO for advice on what to do and
that the ICO had confirmed that
Greenwich
had no authority to tell him not to
contact them. Mr O’Malley on 12 January 2012 emailed Ms Mills
of
Human Resources
forwarding the Claimant’s email. Mr O’Malley wanted to discuss this because he
had informed the Claimant not to contact the Information Commissioner, but he
had nonetheless done so. It was suggested that Mr O’Malley had not contacted
HR promptly. The Employment Tribunal at paragraph 42 said:
“In so far as an issue is raised over it, we accept that the e-mail is a genuine one and that Mr O’Malley did raise the matter with human Resources from as early as 12 January 2012. …”
Mr Barton
wishes me to record that he had never questioned the
authenticity
of
the email and had not alleged that it was a forgery.
25.
On 6 February 2012 the Claimant represented Mr Oree at an appeal in
relation to a stage 1 warning imposed by Ms Thomas under the capability
procedure. Mr Oree was not a trade union member at the time, and so the
Claimant accompanied him on the basis of
Mr Oree’s right to be accompanied. Mr
O’Malley presented the management case because Ms Thomas was on sick leave.
The appeal succeeded. The Claimant maintained that Mr O’Malley was resentful
about this and initiated disciplinary proceedings in revenge.
26.
At a meeting on 28 February 2012 the Employment Tribunal was satisfied
that the Claimant was told he would be subject to a disciplinary investigation
in relation to his failure to comply with the direction not to contact the
ICO. The Claimant asserted that he was told there would be a disciplinary
investigation as to whether he was disrespectful to Mr O’Malley at the meeting
on 6 February 2012; again, this is an allegation rejected by the Employment
Tribunal. The complaint against the Claimant was investigated by Ms Rennie (I
am not certain of
what her position was at
Greenwich
). She concluded that the
Claimant had a case to answer for breaches
of
the Respondent’s disciplinary
rules. She considered there were four ways in which
Greenwich
’s disciplinary
rules appeared to have been broken: Firstly, the Claimant had not carried out
his duties in a conscientious manner and had wilfully neglected his duties so
as not to cause any waste
of
time or productivity: she considered that the
Claimant was given a reasonable explanation by Mr Corbett that the matter would
be dealt with as soon as practicable but he had nevertheless contacted the
ICO. She also considered that the Claimant had not complied with a legitimate
instruction; she considered it had been a reasonable request in the
circumstances for the Claimant not to contact the ICO, given that senior
management had undertaken to deal with the matter as soon as was practically
possible and that no further breaches could occur in the interim. She also
noted the Claimant had not used the Council’s own internal whistleblowing
policy and had admitted in his email
of
11 January that he had breached Mr O’Malley’s
instruction not to contact the ICO. Finally, Ms Rennie considered that the
Claimant had undertaken an act that could, among other things, bring
Greenwich
into disrepute and that the evidence pointed to the Claimant escalating matters
to outside bodies with unreasonable haste in a way that could have caused reputational
damage to the Respondent.
27.
In early April 2012 in the course of
his duties as a tenancy relations
officer the Claimant responded to a complaint
of
homophobic behaviour received from
a team leader in the registrar’s department, Brendan Lanegan, in relation to a
boundary dispute with his neighbour, Mr Harrington. The Claimant wrote a
letter to Mr Harrington that was received by Mr Harrington’s son, who lodged a
formal complaint. When Mr O’Malley saw the letter, it caused him genuine and
serious concerns. The Claimant in due course accepted that the letter was
unbalanced and wrote to Mr Harrington to apologise. However, the sending
of
this letter led to a further disciplinary investigation.
28.
The Claimant gave an explanation for the letter (which, he conceded,
should not have been sent out in the terms in which it was written) to excuse
himself, but the explanation was rejected by the Respondent’s project director
- Mr Baigent - and other decision-makers. On 14 May 2012 the Claimant was
suspended on full pay, pending an investigation. The matter was investigated
by the head of
income maximisation - Mr McAuley - and Mr Baigent conducted a
disciplinary hearing on 17 December 2012. Mr Baigent was assisted by Ms
Armstrong
of
HR. Mr McAuley found a charge
of
bullying, with which I have not
been concerned, not proved but found the other complaints proven, including in
particular having contacted the ICO contrary to an instruction not to do so.
Mr Baigent concluded that as the Claimant was already subject to a final
written warning his conduct constituted gross misconduct, and he was summarily
dismissed on 19 December 2012. I have already mentioned that this was varied
on appeal to dismissal on 12 weeks’ notice.
The Decision of
The Employment Tribunal
29.
The Employment Tribunal set out the facts as I have briefly summarised
them and then directed itself as to the law. The Employment Tribunal directed
itself in relation to unfair dismissal by reference to section 98(4) of
the ERA
1996. It reminded itself
of
the need to consider the range
of
reasonable
responses as set out in British Home Stores Ltd
v
Burchell [1980] ICR 303 and the more recent decision
of
the Court
of
Appeal in Turner
v
East
Midlands Trains [2012] EWCA Civ 1470. The Employment Tribunal noted at
paragraph 88:
“Where the misconduct relied upon by the employer involves
failure to comply with a manager’s instruction, the Tribunal’s assessment
usually includes consideration of
whether the instruction in question was
legitimate, whether it was a reasonable instruction and, if so, the
reasonableness
of
the employee’s refusal in the circumstances.”
30.
It also reminded itself it was inappropriate in an unfair-dismissal
claim for the Employment Tribunal to look behind an earlier final written
warning providing that warning had been issued in good faith and there were prima
facie grounds to support it. The Employment Tribunal then went on to consider
the claims under section 152(1) TULRCA and section 12(3) ERA 1996,
to which is it not necessary to refer further. The Employment Tribunal then
considered the law relating to “whistleblowing detriment and dismissal”. I
have already referred to the relevant statutory provisions. The Employment
Tribunal reminded itself of
the decision in Bolton School
v
Evans
[2007] ICR 641 in which it was emphasised that where an employee had made a
protected disclosure, a Tribunal should examine with care any argument on the
part
of
the employer that the dismissal was not because
of
the protected
disclosure but because
of
a separable act related to it. The Employment
Tribunal also reminded itself
of
the decision
of
Slade J in Geduld,
to which I have already referred. There has been no challenge to the
Employment Tribunal’s self-direction.
The Conclusions of
the Employment Tribunal
31.
The Employment Tribunal rejected any link between the disciplining of
the Claimant and his trade union activities or representing a colleague at a
disciplinary hearing. The Employment Tribunal then turned to the question as
to whether the communications between the Claimant and the ICO constituted
protected disclosures. In considering whether the two communications
constituted qualifying disclosures, the Employment Tribunal rejected a
submission by the Claimant that it should consider the combined nature and
effect
of
the email and subsequent telephone conversation. The Employment
Tribunal considered that the two communications had to be approached
individually for the purposes
of
assessing whether the statutory criteria for
protection were met. The Employment Tribunal considered that the email
of
22
December 2011 did convey a disclosure
of
“information”, although it conveyed
allegations and assertions as well. There is no challenge to this finding.
The Employment Tribunal then went on to consider whether the information
contained in that email, in the reasonable belief
of
the Claimant, tended to
show that the Respondent had failed or was failing to comply with its
obligations under the DPA. The Employment Tribunal accepted that is
what the Claimant believed at the time, but whether the belief was a reasonable
one in the circumstances gave the Employment Tribunal more pause for thought.
The Employment Tribunal had this to say:
“122. The Claimant’s belief was based on what Mr Oree had
told him. Apparently Mr Oree showed him one example of
the emails Ms Thomas
had sent to her personal account. However, the belief that there were
“hundreds”
of
documents involved stemmed from what he had been told by Mr
Oree. The Claimant did not seek to verify this at the time before contacting
the ICO. On the account that Mr Corbett gave during Ms Rennie’s investigation
… which we have no reason to doubt, the Claimant was made aware on the day that
there was no immediate urgency and that the matter could await Mr James’
return.
123. However, balanced against that the Claimant had a long
association with Mr Oree acting as his representative and on the face of
it he
had no reason to doubt Mr Oree’s complaint, who presented to him as very
concerned about the matter. Furthermore section 43B(1) requires that the
information “tends to show” the failure to comply with the legal obligation in
question, not that the worker must reasonably belief [sic] that the information
is true and/or proves that a breach has occurred.
124. Accordingly, we consider, that the Claimant’s belief was a reasonable one in the circumstances, albeit the point is quite finely balanced.”
32.
Accordingly the Employment Tribunal concluded that the email of
22 December
2011 was a qualifying disclosure.
33.
The Employment Tribunal then proceeded to consider the telephone call of
11 January 2012. The Employment Tribunal then went on to accept that the
Claimant “genuinely believed” (something
of
a tautology) that the Respondent
did not have the power to issue the instruction that Mr O’Malley had given
him. The Employment Tribunal also accepted that the telephone call on 11
January 2012 conveyed the information that he had been given this instruction
(in the context
of
asking for advice as to its legality).
“128. However, on balance, we do not consider that this was a
reasonable belief on the part of
the Claimant. In response to questions from
the Tribunal, the Claimant told us that he had not taken any steps to evaluate
the legality
of
this instruction - for example by taking advice from his union
or from employment law sources - before he called the ICO on 12 January 2012.
When he did call them, there was no immediate urgency to the matter.
Furthermore, the Claimant did not suggest that anyone had told him or suggested
to him that the instruction was a breach
of
his contract; it was simply that he
felt this must be the case and so he wanted to check his suspicion with the
ICO. He said that he called them for advice on this point, but did not ask to
speak to someone with legal expertise in employment matters when he did so.”
34.
The Employment Tribunal did not therefore consider that the telephone
communication on 11 January 2012 was a qualifying disclosure. The Employment
Tribunal, however, in case a different view were to be taken on that point,
went on to address the question of
whether there was a protected disclosure in
respect
of
both
of
the Claimant’s communications with the ICO. The Employment
Tribunal at paragraph 130 concluded that the telephone communication
of
11 January
would fall at the first hurdle (if it were a qualifying disclosure) since the
Information Commissioner was only a prescribed person in respect
of
the matters
specified in the schedule to the prescribed persons’ order; this related to DPA
compliance and not to employment law advice on whether the enquirer’s contract
of
employment had been breached.
35.
In relation to the email of
22 December 2011 the Employment Tribunal
accepted that it raised an issue relating to DPA compliance so that the
ICO was a prescribed person for the purpose
of
that communication. The
Employment Tribunal accepted that this had been made in good faith so the
criteria contained in section 43F(1) were satisfied. The Employment Tribunal then
turned to consider section 43F(1)(b) and considered firstly whether the
Claimant reasonably believed the breach he alleged fell within the ICO’s
prescribed role. The Employment Tribunal accepted that he did given that the
focus
of
the concern was upon DPA compliance.
36. The Employment Tribunal then went on to consider whether the Claimant reasonably believed “that the information disclosed and any allegation contained within it are substantially true”. The Employment Tribunal continued:
“133. … This entails a higher threshold than the test of
belief that we referred to when considering whether there was a qualifying
disclosure. Here a reasonable belief in the truth
of
what is said - both in
terms
of
information conveyed and allegations made - is required. Given the
circumstances that we have already highlighted … we do not consider that the
Claimant’s belief was a reasonable one in all the circumstances; put shortly,
he “jumped the gun” in circumstances where he knew and/or could fairly easily
have found out there was no real urgency and that there was time to seek some
verification
of
the allegation made by Mr Oree first.”
37. The Employment Tribunal concluded at paragraph 134:
“Accordingly, we do not consider that either communication with the ICO amounted to a protected disclosure and thus the “whistleblowing” claims fail and, strictly, the fourth issue we identified does not arise.”
38.
The Employment Tribunal then addressed two further matters for the sake
of
completeness. Had it been necessary to decide the causation point, it would
have found that the Claimant was disciplined for breaching Mr O’Malley’s
instruction and not in whole or in part because
of
his original contact with
the ICO in December 2011. The Respondent took no disciplinary steps against
him in relation to that earlier action, although its officers were aware
of
the
communication and the date when it was sent. The Employment Tribunal accepted
that Mr O’Malley’s reason for triggering the formal investigation was
specifically and solely because the Claimant had breached the instruction that
he had given to him; the apparent insubordination that this entailed and the
potential consequences for the Council at the time when they were addressing
the matter internally.
39.
The Employment Tribunal also accepted the evidence of
Mr Baigent (who
had made the decision to dismiss the Claimant) and
of
Mr Matthew Norwell
(director
of
community safety and environment) who had heard the Claimant’s
appeal, that their decisions were not influenced by the Claimant’s original
contact with the ICO but were based upon the Claimant’s insubordination in
failing to follow Mr O’Malley’s instruction.
40.
The Employment Tribunal then turned to consider section 43J(1) of
the ERA,
which I have set out earlier in this Judgment. The Employment Tribunal did not
decide whether this was relevant in determining if the instruction was or was not
a legitimate one and whether the provision had any application outside
of
a
specific agreement between employer and employee. The Employment Tribunal
concluded the point did not require determination, because there was no
protected disclosure. The Employment Tribunal also emphasised that Mr O’Malley’s
instruction was not an absolute prohibition against contacting the ICO. It was
a requirement that he seek the authority
of
his line manager first, in the
context that the Council was intending to address the matter on Mr James’
return. The Employment Tribunal concluded that Mr Baigent and Mr Norwell had
reasonable grounds for finding that the Claimant had breached a legitimate and
reasonable instruction in circumstances where he had no reasonable reason for
doing so (paragraph 141).
41. In relation to the Harrington letter, at paragraph 142 the Employment Tribunal concluded that the decision-makers were entitled to reject the Claimant’s explanation as to why he produced the letter in the terms he did as “lacking credibility” and concluded in all the circumstances there were reasonable grounds for concluding the Claimant acted in a way that brought the Council into disrepute and seriously damaged the trust and confidence relationship.
42.
The Employment Tribunal rejected the contentions that the final written
warning had been imposed in bad faith or was manifestly inappropriate and
accepted that the warning was live at the material time. Although it did not
have to decide the point, it considered that the ICO allegation did involve
similar misconduct as to the 2008 incidents. The crux of
both the ICO
allegation and the 2008 incidents involved the Claimant showing a lack
of
respect for the authority
of
the Respondent’s managers and insubordinate
behaviour on his part. The Employment Tribunal did not consider that the
Harrington letter involved similar misconduct, but the fact that one
of
the two
incidents
of
misconduct now found proven was similar to the conduct that led to
the final written warning provided a sufficient basis for the Respondent’s
decision-makers to take it into account when deciding upon penalty.
43.
The Employment Tribunal then at paragraph 147 concluded that the
decision to dismiss the Claimant was within the band of
reasonable responses
taking into account: (1) there was an extant final written warning and one
of
the two further incidents involved similar misconduct; (2) the Claimant had
committed two further incidents
of
misconduct within a few months
of
one
another; (3) the Claimant had shown no remorse in respect
of
the ICO
allegation, had refused to participate in the investigation and was critical
of
his employer’s actions; (4) the Claimant showed an attitude
of
insubordination
from the outset in response to Mr O’Malley’s instruction (his initial response
of
, “Please do not be silly about this”), the letter to Mr Harrington was
highly inappropriate from start to finish and characterised by Mr Baigent as
“an appalling letter”, with which the Employment Tribunal agreed; and (6) the
Claimant only gave a limited apology to Mr Harrington and during the
investigation and disciplinary and appeal process maintained an incredible
explanation as to how he had come to email the text he had sent and had sought
to downplay the significance and extent
of
his culpability in relation to the
letter and the extent to which it was inappropriate. Both
of
the incidents
of
misconduct had the potential to occasion significant reputational damage to the
Respondent.
44.
The Employment Tribunal took into account the length of
the Claimant’s
service and the fact that the Harrington letter was the first time that such a
problem had arisen with his correspondence. The Employment Tribunal accepted
the Claimant worked long hours and was under a lot
of
pressure in his job.
However, the Employment Tribunal also accepted that both Mr Baigent and Mr Norwell
took account
of
those factors when arriving at their decisions. Accordingly,
it concluded that the decision to dismiss the Claimant was a fair one in all
the circumstances.
45.
On 20 January 2014 HHJ Eady QC referred the Notice of
Appeal to a Full
Hearing.
46.
When the matter came first before me on 11 November 2014, I gave
permission for the Notice of
Appeal to be amended to raise further issues in
relation to the lawfulness or otherwise
of
the instruction not to contact the
ICO. I also referred the matter to the Employment Tribunal under the Burns-Barke
procedure so that the Employment Tribunal could explain the extent to which
arguments had been deployed in the Employment Tribunal as to the effect
of
the
perceived unlawfulness
of
the instruction not to contact the ICO without the consent
of
the Claimant’s line manager.
47.
I refer to the Employment Tribunal’s response. The Employment Tribunal
confirmed that Mr Pullen, the consultant who had appeared for the Claimant
before the Employment Tribunal and appeared before me also, had suggested that
the telephone contact was itself a qualifying disclosure as it contained the
disclosure of
information that, in the Claimant’s reasonable belief, tended to
show that the Respondent had acted in breach
of
his contract
of
employment in
issuing the instruction. Secondly, the legitimacy
of
the instruction was
raised in Mr Pullen’s closing submissions by reference to section 43J ERA
(which
of
course only rendered void provisions in an agreement that
precluded the employee from making a protected disclosure). It was submitted
that the instruction should be equated with an agreement that would be held to
be void, in so far as it precluded the Claimant from making a protected
disclosure. In relation to the case
of
ordinary unfair dismissal the Claimant
had submitted that the instruction was not legitimate and neither was it
reasonable, submissions that had been rejected by the Employment Tribunal.
48.
The Employment Tribunal specifically state that contacting the ICO in
breach of
Mr O’Malley’s instruction was capable as a matter
of
law
of
amounting
to a conduct reason for the dismissal. The only material relied on by the
Claimant in support
of
the submission that the instruction was unlawful, as
opposed to unreasonable, was the analogy Mr Pullen sought to draw with the
position that would apply if there was an agreement pursuant to section 43J
of
the Act. No other authority was cited in the respect
of
the suggestion the
instruction amounted to a breach
of
contract.
The Grounds of
Appeal (as set out in the Amended Notice
of
Appeal) and Submissions in Support
Protected-Disclosure Issue
49.
It is submitted that the Employment Tribunal was wrong or misdirected
itself when it found there was no protected disclosure because the Claimant
lacked a reasonable belief in the truth of
the matters alleged in the email
of
22 December 2011. This seems on first reading to be very much a question
of
fact. This ground
of
appeal runs to some 5 pages, with 9 paragraphs and 11
sub-paragraphs. The Claimant sets out in some detail various factual matters,
and I draw attention to paragraph 6:
“All of
the facts and matters
of
evidence set out above were
ones to which the tribunal should have had regard when considering whether the
appellant reasonably believed that the information disclosed, and any allegation
contained in it, was substantially true. Although all these matters formed
part
of
the evidence before the tribunal, it failed to refer to them when
concluding that the appellant did not have a reasonable belief in the
substantial truth
of
the allegations contained in the disclosure to the OIC
[sic].”
50.
Mr Pullen would have addressed me in detail on all of
that had he been
permitted to do so and in effect was asking me to find the Employment Tribunal
wrong because
of
the strength, or perceived strength,
of
the evidence, in
particular in relation to past failures on the part
of
the Respondent to comply
with the provisions
of
the DPA. There had been previous lapses in
relation to information technology protection and a general lack
of
care about
confidential material.
Whistleblowing Detriment
51.
It was submitted that the Employment Tribunal should have found that the
disciplining of
the Claimant for breach
of
instructions not to re-contact the
ICO amounted to a detriment. The Employment Tribunal should have found that
the detriment (dismissal) related to the original disclosure to the ICO, not
the telephone call. It was argued there was some form
of
associative
connection between the email
of
22 December 2011 and the telephone call
of
11 January
2012.
Automatic Unfair Dismissal: Whistleblowing
52.
It was submitted that the Employment Tribunal erred in law in not
finding that the Claimant had been automatically unfairly dismissed by reason
of
whistleblowing by virtue
of
section 103A ERA 1996.
53.
The concession made before the Employment Tribunal by the Claimant that
if an employee were dismissed for two conduct reasons that weighed equally with
the employer and only one of
the two amounted to a protected disclosure, then
the statutory criterion that the reason or principal reason for the dismissal
was that the employee made a protected disclosure would not be met. It was
submitted that, to the extent that this was a concession made on the Claimant’s
behalf that his dismissal-related whistleblowing claim
of
unfair dismissal must
fail, if he could not show that the principal reason for his dismissal related
to whistleblowing, then the concession was incorrectly given and the Claimant
seeks to withdraw it. I do not recall this point being elaborated upon in Mr Pullen’s
oral submissions. It was then submitted that the burden was on the Respondent
to show the reason for the Claimant’s dismissal was conduct, rather than having
made a protected disclosure.
Ordinary Unfair Dismissal
54.
The final ground is that the Employment Tribunal erred in law in finding
that the Claimant was fairly dismissed in accordance with the ordinary unfair
dismissal provisions of
the ERA 1996. This ground has been the subject
of
significant amendment and seeks to demonstrate that the instruction to the
Claimant not to contact the ICO was unlawful as fettering his right to do so. Reference
was made to sections 51 and 58
of
the DPA and to section 43J
of
the ERA
1996 in support
of
the submission that the Claimant had an unfettered right
to contact the ICO that could not be restricted.
55.
The Claimant drew attention to the functions of
the Commissioner.
Reference was made specifically to section 51(1) (duty
of
the Commissioner to
promote the observance
of
the requirements
of
the Act by data controllers).
Reference is also made to section 51(2) (the duty
of
the Commissioner to
arrange for dissemination
of
information as to the operation
of
the Act and
good practice and other matters within the scope
of
the Commissioner’s
functions). It is provided that the Commissioner “may give advice to any
person as to any
of
those matters”. Reference was also made to section 51(9),
which defined “good practice”. Reference was also made to section 58, which I
have set out earlier in this Judgment.
56.
It was submitted that the Employment Tribunal was wrong to have regarded
the instruction to the Claimant not to contact the ICO as a proper
instruction. It was submitted that it was unfair to rely upon the earlier
final written warning even though not imposed in bad faith nor manifestly
inappropriate because the misconduct was not similar and the misconduct related
to the Harrington letter was not similar misconduct. In his Skeleton Argument
and oral submissions Mr Pullen relied upon the provisions of
section 51 and
section 58
of
the DPA as well as section 43J
of
the ERA as giving
him a right to contact the ICO in order to seek advice relating to data
protection compliance matters. He submitted that the Respondent could not
lawfully fetter that right in the way that it did by instructing him not to
contact the ICO without obtaining prior authorisation and then disciplining and
dismissing him when he ignored that instruction. The instruction should not
have been regarded as a proper instruction. So long as disclosures are to an
appropriate person or body, they are protected, notwithstanding the motive
of
the Claimant; reference was made to the decision
of
Scott J in Re A Company’s
Application [1989] ICR 449.
57.
It was also submitted by reference to Morrish v
Henly’s (Folkestone)
Ltd [1973] ICR 482 that an employer cannot reasonably instruct an
employee to perform an illegal act; it was submitted that the decision is
authority for the proposition that if an employer’s instruction offends the
general public interest, the Court will not allow the fact that the employee
disobeys such an instruction to constitute a potentially fair reason for
dismissal. Reference was made by Mr Pullen to the decision
of
the European
Court
of
Human Rights (“ECHR”) in Matuz
v
Hungary [2014] ECHR 112, in which the ECHR held that a journalist employed by Hungarian state
television had his freedom
of
expression, as guaranteed by Article 10
of
the European
Convention on Human Rights and Fundamental Freedoms (“ECHRFF”),
unjustifiably interfered with when dismissed for breaching the confidentiality
restrictions in his contract
of
employment. Mr Pullen submitted that as a
public employer the Respondent was under a duty to ensure that the reason for
dismissal was not one that unjustifiably interfered with the Claimant’s rights
and freedoms under the ECHR including the right to freedom
of
expression under
Article 10.
58.
It was then submitted that under section 3 of
the Human Rights Act 1998
(“HRA”) domestic Courts and Tribunals were required so far as possible to read
and give effect to UK legislation in a way that was compatible with Convention Rights.
Reference was made to the decision in Pay
v
Lancashire Probation Service
[2004] ICR 187.
59.
Mr Pullen submitted that, although an Employment Tribunal had no
jurisdiction to consider a claim brought directly under the HRA 1998,
any potential breach of
a Convention Right was relevant in considering both the
reason for dismissal and the fairness
of
the dismissal; so, if an employee were
penalised for exercising the right to freedom
of
expression, the fact that the
Respondent is a public authority with a duty to ensure that freedom would be
relevant in assessing whether there had been a potentially fair reason for
dismissal and if so, whether the dismissal was fair or unfair; reference was
made to Hill
v
Governing Body
of
Great Tey Primary School [2013] IRLR 274. Mr Pullen submitted in the circumstances the instruction given to
the Claimant was illegitimate and an impermissible restriction on the
Claimant’s right to contact the ICO about genuine and legitimate issues
of
concern. The Employment Tribunal should therefore have found that the
instruction was unlawful rather than finding that there was a reasonable basis
for the Respondent’s decision-makers to conclude the instruction was a lawful
and reasonable instruction. The Employment Tribunal erred in misdirecting
itself, misapplied the law to the relevant facts, or the decision was perverse
in being one that no reasonable Tribunal could have arrived at.
Reasonableness of
Dismissal for Failing to Follow an Unlawful
Instruction
60.
Mr Pullen submitted that the Claimant was dismissed by reason of
his
conduct in telephoning the ICO and also in relation to the Harrington letter. The
Employment Tribunal in its Decision did not address the question
of
which
of
the two issues was the principal reason for the dismissal.
61.
Mr Pullen again relied upon what he characterised as the “unlawful”
nature of
the instruction given to the Claimant and upon the fact that the
Respondent maintains that the misconduct in relation to the Harrington letter
was more significant than that in contacting the ICO.
The Respondent’s Response and Submissions
The Protected-Disclosure Issue
62.
Ms Omeri submitted that the Employment Tribunal was entitled to conclude
on the facts that the Claimant had not reasonably believed that the information
disclosed, and any allegation contained within it, was substantially true; see
paragraph 132. It was submitted that the test for determining reasonable
belief was partly subjective but also partly objective because of
the use
of
the term “reasonably”; see Babula
v
Waltham Forest College [2007] ICR 1026.
Subjection to Detriment
63.
Ms Omeri submitted that the Employment Tribunal was entitled to find
that the telephone conversation was a separate issue to the email of
22 November
and that neither amounted to a protected disclosure. There was no concept
of
“associative connection”; reference was made to Bolton School
v
Evans.
While it was always the case that an Employment Tribunal should scrutinise with
care an employer’s argument that the dismissal was not because
of
a protected
disclosure but a separate act related with it, that does not mean that the act
of
disclosure should comprehend the entire course
of
the Claimant’s conduct.
Automatic Unfair Dismissal: Whistleblowing
64.
Ms Omeri submitted that the Claimant appears to have accepted his
dismissal was for conduct (both in relation to the telephone call and the
Harrington letter). The Claimant’s telephone call on 11 January was to seek
advice not to provide information and was not in relation to the original
advice he had given. As neither the telephone call of
11 January nor the email
of
22 December was a protected disclosure, there could not be automatically
unfair dismissal.
65.
Under sections 98 and 103A of
the ERA a Respondent only needs to
show that dismissal is for misconduct as being the reason or principal reason
for dismissal. There is no need to identify a particular act if more than
one. Ms Omeri submitted that to construe section 98 as requiring the “principal
reason” for dismissal to connote a particular act
of
misconduct rather than
misconduct simpliciter would produce absurd results and would result in
employers dismissing for a number
of
equally serious instances
of
misconduct
having “artificially” to suggest that one such act is more serious than another
for fear
of
falling foul
of
section 98(1)(a). This would not be conducive to
good and efficient industrial relations.
66.
Ms Omeri also submitted that if the Employment Tribunal concluded that
the Respondent’s reason for dismissal was not accepted, the Claimant must have
been dismissed for the reason put forward by the Claimant. Although the burden
of
proving that the principal reason for dismissal was conduct falls upon an
employer, where an employee positively asserts a different and inadmissible
reason for his dismissal he must produce some evidence to support that case.
Having heard the evidence on both sides relating to the reason for dismissal,
it will be for the Tribunal to consider the evidence as a whole and make
findings
of
primary fact - see Kuzel
v
Roche Products Ltd [2008] ICR 799 - a submission that I accept.
Unfair Dismissal/Unlawful Instruction
67.
If the Claimant was entitled to contact the ICO, it would only be to
provide information not to seek advice. The Employment Tribunal found there
was a reasonable basis for the Respondent believing Mr O’Malley’s instruction
to be legitimate. In essence, therefore, the Claimant’s challenge is on the
grounds of
perversity. No fetter was imposed on the Claimant’s right to
contact the ICO in relation to the carrying-out
of
his statutory duties. The
provision
of
employment advice was outside those duties.
68.
In relation to the new matters raised in relation to the unlawfulness of
the instruction the Claimant had clearly not argued human-rights or
public-policy points before the Employment Tribunal. His argument had been
limited to a submission based upon an analogy with section 43J
of
the ERA,
which made void any provision in an agreement insofar as it purports to prevent
the worker from making a protected disclosure. No public-policy argument was
advanced. The fact that the point now raised by the Claimant may be regarded
as one
of
some importance is not relevant. This point was not taken below; so,
it cannot be raised now. In this regard the Respondent relies upon the
well-known line
of
authorities starting with Kumchyk
v
Derby City Council
[1978] ICR 1116 to the effect that in almost all cases it will be unjust to
allow a point to be raised on appeal that was not argued in the Employment
Tribunal. The question
of
whether or not public policy or the effect
of
Article 10 would invalidate the instruction not to contact the ICO would
necessarily require further factual enquiry, especially into issues
of
proportionality
in relation to Article 10 and as to the ambit
of
duties
of
fidelity, should be
taken into account. These factual matters were not explored before the
Employment Tribunal.
69.
Section 58 of
the DPA was not relevant, as an instruction is not
an enactment or rule
of
law. Neither is section 43J
of
the ERA
of
relevance, because what was in issue in this case was an instruction given by
an employer rather than any provision in an agreement.
70.
The Employment Tribunal at paragraphs 138 to 139 had expressly found the
instruction to be reasonable and within the range of
reasonable responses. As
the Employment Tribunal rejected the only argument that it was an unlawful instruction
by reason
of
section 43J
of
the ERA, it follows the Employment Tribunal
must have been satisfied that the instruction was lawful. Any challenge to the
Employment Tribunal’s conclusions as to the reasonableness
of
the Respondent’s
conclusion that Mr O’Malley’s instruction was legitimate and reasonable can
only be mounted on the grounds
of
perversity, and the Claimant is unable to
raise a perversity challenge.
71.
The instruction was not unlawful in any event; the Claimant did not have
an unfettered right to contact the ICO. His right to contact the ICO was to
make contact in order to assist the ICO in carrying out his statutory duties.
The instruction by Mr O’Malley did not preclude the Claimant from furnishing
the ICO with any necessary information. The Claimant had already furnished the
ICO with all the information he possessed in relation to Mr Oree’s allegations
in his email of
22 December. It was clear from the context
of
his complaint to
Mr O’Malley that he had no further information to disclose either to the ICO or
to the Respondent. It was wholly appropriate for the Employment Tribunal to
consider whether the instruction was reasonable, and the Employment Tribunal
(paragraphs 138 and 139
of
the Reasons) clearly accept that this was the case.
72.
Even if contrary to the Respondent’s principal point that the
instruction was not unlawful, it was open to the Employment Tribunal to find
that the Respondent’s belief that the instruction was legitimate and reasonable
and fell within the range of
reasonable responses. Ms Omeri submitted that
this is akin to the, not unknown, situation where an Employment Tribunal finds
that a Claimant (dismissed because the employer reasonably believed that he had
committed an offence) was wrongfully dismissed because he did not in fact
commit the disciplinary offence alleged against him, but that he was not
unfairly dismissed because it was reasonable for the employer to have believed
that he had committed the offence in question.
73.
Ms Omeri relied upon the decision in Farrant v
Woodroffe School
[1998] ICR 184 in support
of
the proposition that a genuine, even if mistaken,
belief on the part
of
the employer as to the conduct
of
the employee relied
upon will be sufficient to discharge the burden
of
establishing this
potentially fair reason for dismissal (misconduct). The question
of
whether
the instruction was lawful is
of
course critical in cases
of
wrongful dismissal
but is not a decisive point when considering reasonableness
of
a dismissal
under section 98(4) in a case
of
unfair dismissal. The conclusions
of
the
Employment Tribunal at paragraphs 138 and 139 could only be overturned on the
grounds
of
perversity, but the amended Notice
of
Appeal, it was submitted,
disclosed no challenge to the findings or conclusions in those paragraphs.
74.
No explanation has been given as to why the “new” points were not raised
before the Employment Tribunal; if it be the case that they had simply not been
thought of
, that would not be a good reason for permitting them to be raised on
appeal (see Secretary
of
State for Health
v
Rance [2007] IRLR 665).
Claimant’s Response to the Kumchyk Point
75.
Mr Pullen submitted that what he was seeking to raise was not a new
point of
law, rather than an alternative way
of
putting his original case. No
new facts were necessary as to whether the instruction was unlawful.
The Law
76. I have already set out the statutory framework in relation to protected disclosures. It is convenient to refer to Kumchyk. The general rule is not to allow a point to be raised on appeal that was not argued in the Employment Tribunal. Although there is a discretion to allow such points to be taken, it is a discretion that is exercised very sparingly, and it would require a wholly exceptional case where further factual investigation might be required. In Kumchyk Arnold J said:
“Our conclusion upon the matter is this, that there is
nothing in the language of
the statute to exclude the consideration
of
a new
point
of
law but that it would in almost every conceivable case, as the
National Industrial Relations Court said in GKN (Cwmbran) Ltd
v
Lloyd [1972]
ICR 214, be unjust to do so . … It certainly is not enough, in our judgment,
that the point was not taken owing to a wrong, or what turns out in the light
of
after events to have been a wrong, tactical decision by the appellant or his
advocate. It would certainly not be enough that the omission was due to the
lack
of
skill or experience on the part
of
the advocate. It would certainly
not, we think, be enough that the omission could have been made good had the
industrial tribunal chosen to suggest the point for consideration to the
appellant or his advocate. It is well established in these tribunals, and we
hope in this appeal tribunal, that where the representation is a
non-professional representation, or possibly even where it is an inexperienced
professional representation (if such a thing can be conceived), in listening to
an argument put forward by an advocate or evaluating a point
of
law put forward
by an advocate, the tribunal will be as helpful as possible, perhaps by itself
refining and improving the argument, perhaps by suggesting to the advocate that
the argument might be put in a different or more favourable fashion, something
of
that sort. But we think that it is very far from the duty or indeed the
practice
of
the chairman
of
industrial tribunals that they should be expected
to introduce into the case issues which do not figure in the presentation on
the one side or the other … this is a case in which the facts have simply not
been investigated and it would be, even if that narrower rule were the rule
that ought to be applied, quite plainly a case in which the new point would not
be allowed to be raised, and for those reasons, we dismiss the appeal.” (page
1123)
77.
The authorities were also considered in Jones v
Governing Body
of
Burdett
Coutts School [1998] IRLR 521, a case in which Robert Walker LJ
attached particular importance to the prospect
of
factual issues having to be
determined. He referred to the authorities and at paragraph 20 had this to
say:
“20. These authorities show that although the Employment
Appeal Tribunal has a discretion to allow a new point of
law to be raised (or a
conceded point to be reopened) the discretion should be exercised only in
exceptional circumstances, especially if the result would be to open up fresh
issues
of
fact which (because the point was not in issue) were not sufficiently
investigated before the industrial tribunal. In Kumchyk, the Employment
Appeal Tribunal (presided over by Arnold J) expressed the clear view that lack
of
skill or experience on the part
of
the appellant or his advocate would not
be a sufficient reason. In Newcastle, the Employment Appeal Tribunal
(presided over by Talbot J) said that it was wrong in principle to allow new
points to be raised, or conceded points to be reopened, if further factual
matters would have to be investigated. In Hellyer, this court (in a
judgment
of
the court delivered by Slade LJ which fully reviews the
authorities) was inclined to the view that the test in the Employment Appeal
Tribunal should not be more stringent than it is when a comparable point arises
on an ordinary appeal to the Court
of
Appeal. In particular, it was inclined
to the view
of
Widgery LJ in Wilson
v
Liverpool Corporation [1971] 1 WLR
302, 307, that is to follow:
“The well-known rule of
practice
that if a point is not taken in the court
of
trial, it cannot be taken in the
appeal court unless that court is in possession
of
all the material necessary
to enable it to dispose
of
the matter fairly, without injustice to the other
party, and without recourse to a further hearing below.”
21. In this case the Employment Appeal Tribunal recognised
that the consequence of
allowing Mr Jones’s appeal would be a new hearing with
fresh evidence (so far as that can be an appropriate term for evidence given in
1998
of
events
of
five years ago): [1997] ICR at pp.398-9. It was therefore a
case in which the Employment Appeal Tribunal would have had to have
exceptionally compelling reasons for taking such an unusual course. It is
necessary to consider the course
of
the proceedings to see whether there were
such compelling reasons.
78. The authorities were all considered by HHJ McMullen QC in Rance. I would note that HHJ McMullen QC made clear that the Employment Appeal Tribunal will not permit a new point to be taken where:
“… the issue arises as a result of
lack
of
skill by a
represented party, for that is not a sufficient reason.”
Reasonable Belief by Employer Even if Mistaken
79.
In Farrant it was held that a mistaken but genuine belief
by an employer in the employee’s misconduct may be sufficient to discharge the
burden of
establishing a fair reason for dismissal. HHJ Peter Clark said:
“The first question is whether the reason for dismissal
relates to the conduct of
the employee. A genuine, even if mistaken, belief on
the part
of
the employer as to the conduct
of
the employee relied upon will be
sufficient to discharge the burden
of
establishing this potentially fair reason
for dismissal: see Trusthouse Forte Leisure Ltd
v
Aquilar [1976] IRLR
251; Maintenance Co Ltd
v
Dormer [1982] IRLR 491. …
In our judgment, where the conduct relied upon by the
employer is the employee’s refusal to obey an instruction, the question as to
whether that instruction is lawful, a critical question in a claim of
wrongful
dismissal, is a relevant but not decisive question when considering the
reasonableness
of
the dismissal under section 98(4) in a case
of
unfair
dismissal.” (page 194)
80.
A protected disclosure must be a disclosure of
information; a linked
point is that one cannot convert a disclosure that does not qualify, for
example because it is not a disclosure
of
information, by associating it with
another disclosure that does qualify.
81.
Bolton School v
Evans is authority for the following
propositions:
(1) Disclosure is an ordinary English word and should be given its normal meaning.
(2) The Tribunal should look with care
at arguments suggesting that a dismissal was because of
acts related to the
disclosure rather than because
of
the disclosure itself.
82.
The case concerned a teacher at Bolton School who had hacked into the
Respondent’s computer system to show that it was insecure. He was disciplined
because of
his conduct in entering the computer system without authority but
not for reporting that the computer system was insecure. The Claimant sought
to argue that hacking into the system was part and parcel
of
his protected
disclosure (I note this is also a case where the Employment Tribunal concluded
that the Respondent’s view
of
the facts was based on a mistaken belief that was
nonetheless reasonable). In the Court
of
Appeal Buxton LJ said at page 649:
“12. … The nub of
the argument as presented in this court,
and more particularly as presented in the oral submissions that we have
received this morning, is that the whole course
of
conduct
of
the claimant
should be regarded as an act
of
disclosure, so the hacking was part
of
the
disclosure, and if the claimant was warned because
of
the hacking, as the
school said that he had been, that was in itself an admission that he had been
dismissed for making a protected disclosure. Mr Barnett called this an “entire
transaction” approach to disclosure. …
13. … These factors were said to point to the need to give a
wide meaning of
the concept
of
qualifying disclosure, in the interests
of
the
employee.
14. I am afraid that I was not persuaded by any of
that. The
legislation uses a common word, “disclosure”, and sets out in some detail the
circumstances in which that disclosure will or will not be protected. There is
no reason to think that Parliament intended to add to that machinery by
introducing some special meaning
of
the word disclosure. … The question
of
whether the conduct for which the employee was disciplined was indeed
“disclosure” accordingly remains a question for the normal meaning
of
that
word. …
15. Accordingly, was the whole of
the conduct
of
the employee
an act
of
disclosure? The factual contentions supporting the argument were
that the appeal tribunal had overlooked (as indeed the employment tribunal
itself must have) that: (i) the claimant had not only told Mr Edmundson that he
was going to enter the system, but had also announced to the headmaster his
successful demonstration that the system was insecure. Without that
announcement the employer could not have known that it was the claimant who had
entered the system, because he had been using not his own access codes but
codes belonging to other people that he had abstracted from the system. If he
was disciplined for that act
of
access, as the school said he was, it must
follow that he was disciplined for informing the school that he had access to
them in the first place. (ii) “Disclosure” can be by acts as well as by
words. The claimant’s conduct in entering the system should have been regarded
as an act
of
disclosure in itself …”
83. Buxton LJ was also at pains to point out that:
“The tribunal should look with care at arguments that say
that the dismissal was because of
acts related to the disclosure rather than
because
of
the disclosure itself.”
Restrictions on the Claimant’s Disclosure to Authorities
84.
The Claimant relied on the decision of
Scott J in Re A Company’s Application.
The case concerned an argument as to whether the Claimant should be enjoined
from making disclosures to a financial-services regulator. Scott J said at 455:
“I think it would be contrary to the public interest for
employees of
financial services companies who thought that they ought to place
before F.I.M.B.R.A. information
of
possible breaches
of
the regulatory system,
or information about possible fiscal irregularities before the Inland Revenue,
to be inhibited from so doing by the consequence that they might become
involved in legal proceedings in which the court would conduct an investigation
with them as defendants into the substance
of
the information they were minded
to communicate.”
85.
The Claimant wishes to rely upon Article 10 of
the ECHR set out in the
Schedule to the HRA 1998:
“1. Everyone has the right to freedom of
expression. This
right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless
of
frontiers. This article shall not prevent States from requiring the
licensing
of
broadcasting, television or cinema enterprises.
“2. The exercise of
these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society in the interests
of
national security, territorial integrity
or public safety, for the prevention
of
disorder or crime, for the protection
of
health or morals, for the protection
of
the reputation or rights
of
others,
for preventing the disclosure
of
information received in confidence, or for
maintaining the authority and impartiality
of
the judiciary.”
86.
I will also refer to the decision of
HHJ McMullen QC in Pay.
HHJ McMullen QC said that section 98(4)
of
the ERA would require an
Employment Tribunal when considering the reasonableness
of
a decision to
dismiss an employee by a public-authority employer the Employment Tribunal
should interpret the phrase “reasonably or unreasonably” in section 98(4)
of
the ERA as including the words “having regard to the applicant’s
Convention rights” and that a public-authority employer would not be acting
reasonably under section 98(4) if it violated its employee’s Convention Rights.
The school was not a private litigant but a public authority, and accordingly
it owed the duty directly to secure the freedoms protected by the Convention.
87.
I have also considered the duties of
the Commissioner set out in section
51
of
the DPA, to which I have already referred. The duties generally
relate to promoting good practice and promoting the observance
of
the
requirements
of
the Act. They do not include the giving
of
legal advice.
Conclusions
88.
It is important to bear in mind that it is not necessary for the
Employment Tribunal to make findings on all matters of
dispute before them or
to recount all
of
the evidence. A Tribunal does not go wrong just because it
does not address every argument put to it, even if those putting the arguments
think they are important. While the Employment Tribunal must consider all that
is relevant, it need only deal with the points that were seen to be in
controversy relating to those issues that are significant for their decision.
The essential question in most cases is likely to be whether the Employment
Tribunal’s self-direction as to the law and its application to the facts as
found was correct.
89. I do not propose in this Judgment to deal with every submission made to me but will concentrate on those that I consider are relevant to the issues I have to decide and are sufficient to explain the reasons for my decision.
90.
I shall firstly deal with the Kumchyk point and the
legality of
the instruction given to the Claimant by Mr O’Malley on 23 December.
I have set out the principle in Kumchyk in my consideration
of
the law. While I can see some force in the argument that the Claimant is
simply seeking to argue a point as to the unlawfulness
of
the instruction on
different and wider grounds than relied on before the Employment Tribunal,
where the only ground relied upon was by analogy with the treatment
of
confidentiality clauses in contracts and the effect
of
section 43J(1)
of
the ERA
1996. However, the introduction
of
arguments in relation to Article 10
of
the ECHR may well require factual analysis - and, in my view, is likely to do
so - going beyond the evidence adduced before the Employment Tribunal. This evidence
of
course has never been placed before the Employment Tribunal. Such evidence
would seem to be highly material in considering (if Article 10 applied) whether
the restriction imposed could be regarded as “necessary” within the meaning
of
Article 10(2). The discretion to permit the point to be raised, as I have
already said, is exercised very sparingly, and it would have to be a wholly exceptional
case where further factual investigation is required. No explanation has been
given as to why the point was not raised below, and, notwithstanding it may be
said the point is a significant one, that is not a reason for permitting it to
be raised on appeal. In the exercise
of
my discretion I decline to deal with
the point. However, in case I am wrong, I would have found that the
instruction was not unlawful; I shall explain why later in this Judgment.
The Protected-Disclosure Issue
91.
The argument that the Employment Tribunal was wrong or misdirected
itself when it found there was no protected disclosure in relation to the email
of
22 December because the Claimant lacked reasonable belief in the truth
of
the allegations seems to me to be very much an argument as to factual matters.
The Notice
of
Appeal runs to some 5 pages, 9 paragraphs and 11 sub-paragraphs;
paragraphs 6 and 7
of
the amended Notice
of
Appeal, to which I have already
referred, make clear that this is simply a complaint about factual findings
made by the Employment Tribunal. Mr Pullen would have addressed me in detail
on all
of
the facts and was in effect asking me to find that the Employment
Tribunal had fallen into error and made impermissible findings because it had
paid insufficient attention to previous lapses in relation to IT security and a
general lack
of
care in relation to confidential material. This is essentially
a perversity argument. The Employment Tribunal saw and heard the witnesses
over three days and was well able therefore to determine the credibility
of
the
witnesses. It was entitled on the evidence to conclude that the Claimant
failed to hold the necessary reasonable belief in the truth
of
the allegations
set out in the email
of
22 December 2011. In my opinion, the Employment
Tribunal was amply entitled to come to the conclusion it did in paragraph 133
that the Claimant’s belief was not a reasonable one in all the circumstances
and that he had “jumped the gun” in circumstances where he knew or could fairly
easily have found out that there was no real urgency and there was time to seek
some verification
of
the allegation by Mr Oree (which as the Employment
Tribunal knew, was wholly misconceived).
Whistleblowing Detriment
92.
The Claimant cannot create a protected disclosure by aggregation of
the
email letter
of
22 December 2011 and the telephone conversation on 11 January
2012, neither
of
which were established as protected disclosures. Each
disclosure must be considered separately in accordance with the decision in Bolton
School
v
Evans, to which I have already referred. This ground
of
appeal therefore must fail.
Automatic Unfair Dismissal “Whistleblowing” Claim
93.
I agree that the Employment Tribunal was required to determine this
matter on the facts; see Kuzel. As neither the telephone call
nor the Harrington letter was a protected disclosure, it is impossible for the
Claimant to make out a case of
automatic unfair dismissal. Neither is it
possible to challenge the Employment Tribunal’s finding that the dismissal
related to the telephone conversation
of
11 January and the Harrington letter,
rather than the original email
of
22 December to the ICO.
94.
The Claimant is unable to demonstrate that the Employment Tribunal fell
into error in finding that the telephone call of
11 January was not a protected
disclosure; it cannot be suggested that the Harrington letter constituted such
a disclosure. This ground
of
appeal must fail also.
95.
The Employment Tribunal found (in terms, and there was material to
justify the finding) that there was a reasonable belief by Mr James and Mr O’Malley
that the instruction given to the Claimant not to contact the ICO was both
legitimate and reasonable, and that Mr Baigent and Mr Norwell had reasonable
grounds to believe that the Claimant had breached a legitimate and reasonable
instruction in circumstances where he had no reasonable reasons for doing so. The
Employment Tribunal therefore clearly found that the Respondent had
demonstrated that the principal reason for dismissal was misconduct in relation
to the breach of
the instruction from Mr O’Malley and the Harrington letter.
Revisiting the Question of
Unfair Dismissal and Alleged
Unlawful Instruction Together with Article 8 EHCR
96.
I have already declined to deal with the grounds alleging that the
instruction by Mr O’Malley to the Claimant not to contact the ICO was unlawful.
However, if I am wrong about that, my view would have been that the instruction
was not unlawful. In the circumstances of
this case I am not satisfied the
instruction was unlawful; it was considered to be a reasonable instruction by
the Employment Tribunal in circumstances where there was no blanket bar on the
Claimant having contact with the ICO but he was not to take the initiative in
contacting them during the course
of
the Respondent’s inquiry into the matter,
which was already underway. The restriction was also not an unqualified
restriction. It was a restriction on contact with the ICO without the consent
of
the Claimant’s line manager, and there was no evidence to suggest that a
request by the Claimant would have been refused, whether unreasonably or at
all. I can see no basis for finding that public policy would impose a blanket
restriction on any limitation
of
contact between an employee and the ICO in all
circumstances. I consider that each case will be required to be considered by
reference to its own facts as to whether the limitation was reasonable. The
instruction to the Claimant in the present case would not, in my opinion, have
prevented him from speaking to the ICO if it were pursuant to his being
contacted by them by telephone. The Claimant had already disclosed all
relevant information to the ICO and was not seeking to supply further
information but was asking for advice; that could not be a protected act. The
Employment Tribunal (see paragraphs 138 and 139) expressly found that Mr O’Malley’s
instruction was reasonable. The Employment Tribunal, having rejected the only
ground put forward as to the perceived unlawfulness
of
Mr O’Malley’s
instruction, clearly therefore was satisfied that the instruction was lawful,
because it rejected the only argument put forward as to its unlawfulness.
97.
The Claimant had made serious and wholly inaccurate allegations, as it
was soon discovered, which were potentially highly damaging. He had sent the
email without having taken the trouble to check the accuracy of
the allegations
or to draw the matters raised by Mr Oree to the attention
of
his superiors, and
it is to be noted that he emailed his managers shortly after sending the email
of
22 December to the ICO. There was no reason why he could not have contacted
them before going to the ICO.
98.
Even if I am wrong in upholding the Employment Tribunal’s decision that
the instruction given to the Claimant was a proper instruction, the Respondent,
following Burchell, needs to show reasonable grounds for its
belief in the Claimant’s misconduct to satisfy the burden of
proof in
demonstrating a substantially fair reason for dismissal. It does not need to
prove that there actually was misconduct. As HHJ Peter Clark said in Farrant:
“A genuine, even if mistaken, belief on the part of
the
employer as to the conduct
of
the employee relied upon will be sufficient to
discharge the burden
of
establishing this potentially fair reason for
dismissal.”
99.
That is what the Employment Tribunal found in the present case.
Further, the question of
whether the instruction that is disobeyed was lawful
is a relevant, as opposed to a decisive, question when considering the
reasonableness
of
the dismissal under section 98(4) in a case
of
unfair
dismissal; see the passage I have cited earlier from Farrant.
100. In
relation to the question as to whether the sanction of
dismissal for breach
of
the instruction and circumstances concerning the Harrington letter was a
reasonable sanction, the Employment Tribunal considered that dismissal was
within the range
of
reasonable responses, and I can see no basis upon which
that conclusion
of
the Employment Tribunal can be challenged.
101. Further,
in relation to the alleged unlawfulness of
the instruction, the Claimant has
not adduced any authority other than the Judgment
of
Scott J in Re A
Company Application, which concerned an attempt to prevent employees
from disclosing information relating to possible breaches
of
the regulatory
system or financial irregularities to the relevant regulatory bodies. That is
not what the Claimant was restricted from doing by Mr O’Malley’s instruction,
which was far more limited in scope and was reasonable in the view
of
the
Employment Tribunal in the particular circumstances
of
the case.
102. I
also consider that the Employment Tribunal was entitled to find that the final
written warning that the Respondent had taken into account when determining
there should be a sanction of
dismissal was not given in bad faith and neither
was it manifestly inappropriate. Further, the Claimant’s conduct in contacting
the ICO contrary to an instruction not to do so was similar, as found by the
Employment Tribunal, to his previous misconduct in that both demonstrated a
lack
of
respect on the part
of
the Claimant for his managers and insubordinate
behaviour.
103. In
all the circumstances, all the grounds set out in the amended Notice of Appeal
fail, and the appeal must be dismissed.
104. I regret the delay in handing down this judgment but I have been indisposed.