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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Boulding v Land Securities Trillium (Media Services) Ltd [2006] UKEAT 0023_06_0305 (3 May 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0023_06_0305.html Cite as: [2006] UKEAT 0023_06_0305, [2006] UKEAT 23_6_305 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR D NORMAN
MR T STANWORTH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR RICHARD BOULDING (The Appellant in Person) |
For the Respondent | MS INGRID SIMLER (of Counsel) Instructed by: Messrs McDermott Will & Emery LLP Solicitors 7 Bishopsgate London EC2N 3AR |
SUMMARY
Practice & Procedure: No case to Answer & Public Interest Disclosure:
The Employment Tribunal erred in acceding to a half-time submission of no case made in a whistle-blowing claim. Whistle-blowing is a form of discrimination claim (see Lucas v Chichester UKEAT/0713/04) and it should normally be heard in full: Logan v The Commissioners of Customs & Excise [2004] IRLR 63 (CA). The question under Employment Rights Act 1996 s43B of the likelihood of the employer not responding to the Claimant's allegation of wrongdoing and stopping uncertified electrical equipment being used did not depend solely on the Claimant's appreciation. The Employment Tribunal should have considered, by examining evidence from the Respondent, what its response was likely to be. Case remitted to same Employment Tribunal to continue the hearing. £10K costs order set aside.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The issues
"12 …
i) Did the claimant made the statements or any of them set out in the agreed schedule?
ii) If he did, was any such statement a protected disclosure, in that –
a) the claimant reasonably believed that the information disclosed tended to show one or more of the matters set out in S43B(1)(a) through (f) save (e), and –
b) it was made in good faith to his employer, as claimed, in accordance with S43C(1)(a)?
iii) If so, was the respondent's reason or principal reason for dismissing the claimant that the claimant made the protected disclosure(s)?"
"On 7 February 2005 the claimant told Rick Murphy that it would be a breach of the Consumer Protection (Electrical Equipment) Regulations to sell the relevant equipment without a CE certificate. The claimant discussed the problem of further breaches of health and safety, in particular the CDM Regulations".
That is a reference to an e-mail, the full terms of which are as follow:
"Please find attached the legal statute I referred to in our conversation.
Sorry its a bit long but you will no doubt see the need for serious contemplation on the implications.
As also discussed I went to the Institute of Directors of which I am a member and have been since 2000 to get the legal advise on my responsibilities (I am entitled to free advice from the 100).
The situation is that we LST can not accept anything that does not comply and neither can we sell it on (i.e. to World Service) without being in breach.
The synchroniser built and designed by IPT does not conform (that is not to say it would not work, but that it has not been tested and certified). As such IPT can pay the money and do the required testing to achieve this or we LST will have to reject it and purchase a proprietary unit which will conform.
Just to document my comments to both you and Tony IPT do not carry design liability Insurance nor does Gerard carry personal Liability or Directors indemnity Insurance. The limit on any claim against him in the event of a disaster would be his assets which may be substantial but possibly a long way short of the £ 10m held by most policy holders".
The judgment
The legislation
"43B Disclosures qualifying for protection
(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".
The wrong doing is connected to the Supply of Machinery (Safety) Regulations 1992 SI No. 3073 of which regulation 12 provides.
"12 Requirements for supply of relevant machinery [or relevant safety components]
(1) The requirements of this regulation are that
(a) the relevant machinery [or relevant safety component] satisfies the relevant essential health and safety requirements;
(b) the appropriate conformity assessment procedure in respect of the relevant machinery [or relevant safety component] has been carried out by the responsible person in accordance with one of the procedures described in regulations 13, 14 and 15 below;
(c) the responsible person, at his election, has issued either
(i) an EC declaration of conformity in accordance with regulation 22 below; or
(ii) in the case of relevant machinery to which regulation 23 below applies, a declaration of incorporation in accordance with that regulation, in respect of the relevant machinery [or relevant safety component];
(d) except in the case of relevant machinery to which regulation 23 below applies, the [CE marking] has been properly affixed by the responsible person to the relevant machinery in accordance with regulation 25 below; and
(e) the relevant machinery [or relevant safety component] is in fact safe".
An exception to that provision is provided where machinery is incorporated and this is provided for by Regulation 23.
"Supply (except in reference to the electricity supply) includes offering to supply, agreeing to supply, exposing for supply and possessing for supply, and cognate expressions shall be construed accordingly".
These regulations deal with CE Markings, which is a measure relating to goods supplied for use in the European Union. A lesser measure, known as an EC declaration of conformity, is sometimes available and this is provided for by Regulation 10 which says the following:
"EC Declaration of Conformity
10. Subject to regulation 12, the manufacturer of electrical equipment or his authorised representative shall draw up in respect of all electrical equipment to which these Regulations apply a written declaration of conformity which shall comprise-
(a) he name and address of the manufacturer or his authorised representative;
(b) a description of the electrical equipment;
(c) a reference to the harmonised standards;
(d) where appropriate, references to the specifications with which conformity is declared;
(e) identification of the signatory who has been empowered to enter into commitments on behalf of the manufacturer or his authorised representative; and
(f) the last two digits of the year in which the CE marking was affixed".
The facts
"14. The respondent employed the claimant as a senior engineer from 9 August 2004 to 11 February 2005. The respondent is a subsidiary of a large property services firm, Land Securities Trillium Ltd (LST), and was established for the sole purpose of providing services to the BBC. At all times material to this claim, a large project of the respondent was to provide backup generators to the BBC Wor1d Service at Bush House, and the respondent's Construction Management Services department (CMS) had the task of delivering the project. CMS variously sub-contracted the work: -Capita were the designers; IPT were the builders; Mr Rob Fraser, seconded from Currie and Brown, was the project manager; GS Halls were to provide maintenance. The claimant's line-manager was Mr Rick Murphy, the respondent's general manager for Bush House. At the time the claimant was engaged, the project was over budget, so the claimant suggested changes that would bring it within budget, and those were adopted. It was not in dispute that he is a good engineer.
15 Of course, such a project must proceed according to the regulations in force: -building, health and safety, electricity, machinery, etc, are all covered by a multitude of technical regulations to do with processes, tests, lines of authority, permits to do particular work, specifications, procedures, and much more, and compliance must in every instance be recorded in accordance with the regulations. Thus an audit trail is created, and the project cannot legally be handed over to the customer until compliance with the regulations is complete and can be audited. Until handover, liability for failure of the project resides in the main contractor. Thus, in this case, liability for the generator project remained with the respondent until it was fully installed, commissioned, and handed over to the BBC in accordance with the regulations. That did not happen until after the claimant was dismissed.
16 The project consisted, insofar as is relevant, of three main components: -two generators to run in parallel, and a "synchroniser panel" to enable, inter alia, their parallel running. The generators were purchased off-the-shelf, and were delivered by the factory with the documentation to show compliance with the relevant regulations. The synchroniser panel was a bespoke design, and therefore compliance had to be documented by the designers and builders.
17 One of the claimant's significant duties was to monitor compliance with the regulations. He insisted to us that he had no responsibility whatsoever for instructing designers and builders to comply, or telling them how to comply. His responsibility was to monitor the work, and say whether or not the relevant documentation was in place. If it was not, he certainly had the responsibility, and apparently the power under the regulations, to order an operation, including any testing of the equipment, to cease for failure to comply. He told us that, as soon as he felt uncomfortable about an operation, he could stop it. The generator project was initially scheduled for testing in situ on 4 December 2004, but on that occasion the claimant directed that it should not go ahead, and it did not.
18 The testing was rescheduled for the weekend of 5/6 February 2005. In the meantime, the claimant was making enquiries about documentation required under regulations. Certain certificates, 'CE markings', that indicate safety compliance, were missing from some of the equipment; he had not seen a method statement, which instructs builders how to do their work so as to minimise risk; the risk assessment he had seen was inadequate; there was no evidence that the synchroniser panel had been tested in accordance with regulations; there was no design specification; he had not seen a construction and design management file nor a health and safety file; he had discovered that IPT, although it had substantial input into the design of the synchroniser panel, did not have the required design liability insurance.
19. He told us that, when he made these enquiries, he was advised that he would have all the documentation before the rescheduled testing, and that he never doubted that that would be the case".
"22. … there was to be no further work on the generator project unless the claimant agreed that it could go ahead and the correct permits had been obtained. The claimant agreed in evidence that, once the test was cancelled, the risk of injury or damage was abated".
"(5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1)"..
"39 It appeared from the evidence, in particular the claimant's email to Mr Murphy of 7 February 2005, the information in which was founded on advice from the 100, that the relevant failures would occur if the respondent accepted the equipment without the documentation required by regulation, or if the generator project was handed over to the BBC without that documentation in place, ie, if it could not be shown that the equipment fully complied with regulations when either of those events occurred.
40 We could not agree with the submission of counsel for the claimant that the relevant failures occurred when the respondent took possession of the synchroniser panel; she submitted that the panel had been at that point 'supplied' in accordance with the Supply of Machinery (Safety) Regulations 1992. The breaches we were considering were breaches by the respondent, and the respondent did not .supp~ the equipment by taking possession of it. In any event, by taking possession the respondent did not accept the equipment, but could reject it, ie, could refuse to pay for it and return it, if it did not comply. We took the view most favourable to the claimant, that the soonest a relevant failure by the respondent could occur was when the commissioning process began with the testing of the equipment".
That is a construction of the relevant regulations against the background of what the Claimant reasonably believed was likely to occur. The next passage is important, for the Tribunal concluded as follows:
"41. However, the evidence showed that, from 4 February 2005, ie, from the cancellation of the testing schedule for 5/6 February 2005, no such failure was likely or even a possibility. We took into account in particular that no work could thereafter be done on the generator project unless and until the equipment fully complied with the regulations, and that the claimant himself had to agree that compliance was complete. Mr Fraser's email of 8 February is clear that commissioning cannot begin until the documentation to show compliance is all in place. Further, the respondent's employees and subcontrators were 'running around like headless chickens' to collect the documentation, ie, on the evidence, the respondent certainly intended to obtain it. Thus it was hardly arguable that, from 4 February, when the testing was cancelled, any relevant failures were likely. There was no risk of injury or damage arising from the switching on of the equipment, and there was no likelihood of any breach of regulation".
"43 The tribunal could only conclude, on the basis of the evidence above, that the claimant on 7 February 2005 could not have had a reasonable belief, in accordance with 8438(1), that any breaches of regulation were likely to occur. He could not have believed that the respondent was likely to accept the synchroniser panel, or to hand over the generator project, without the required documentation in place, and he knew there was no further risk of injury or damage. He could not have believed that the respondent was likely to commit fraud as alleged, because he refused to be party to it and, as senior engineer with duties under the regulations, he would have been a necessary component. In any event, he did not aver that he disclosed the alleged intent to commit fraud to anyone other than the tribunal".
Thus, the Tribunal concluded that the information could not amount to a protected disclosure.
The Claimant's case
The Respondent's case
The legal principles
(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on.
(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.
In this respect "likely" requires more than a possibility or risk that the employer (or other person) might fail to comply with a relevant obligation. The information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable, or more probable than not that the employer (or other person) will fail to comply with the relevant legal obligation. If the claimant's belief is limited to the possibility or risk of a breach of relevant legislation, this would not meet the statutory test of likely to fail to comply":".
"(1) There is no inflexible rule of law and practice that a tribunal must always hear both sides, although that should normally be done.
(2) The power to stop a case at "half-time" must be exercised with caution. (3) It may be a complete waste of time to call upon the other party to give evidence in a hopeless case.
(4) Even where the onus of proof lies on the applicant, as in discrimination cases, it will only be in exceptional or frivolous cases that it would be right to take such a course.
(5) Where there is no burden of proof, as under s.98(4) of the Employment Rights Act, it will be difficult to envisage arguable cases where it is appropriate to terminate the proceedings at the end of the first party's case."
Conclusions