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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Western Union Payment Services UK Ltd v Anastasiou (Victimisation Discrimination : Protected disclosure) [2014] UKEAT 0135_13_2102 (21 February 2014) URL: https://www.bailii.org/uk/cases/UKEAT/2014/0135_13_2102.html Cite as: [2014] UKEAT 135_13_2102, [2014] UKEAT 0135_13_2102 |
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At the Tribunal | |
On 20 January 2014 | |
Before
HER HONOUR JUDGE EADY QC
MR P GAMMON MBE
MRS L S TINSLEY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR THOMAS KIBLING (of Counsel) Instructed by: Orrick Herrington & Sutcliffe (Europe) LLP Solicitors 107 Cheapside London EC2V 6DN |
For the Respondent | MR MARTIN FODDER (of Counsel) Instructed by: Archon Solicitors Martin House 5 Martin Lane London EC4R 0DP |
SUMMARY
VICTIMISATION DISCRIMINATION – Protected disclosure
Detriments on the grounds of a protected disclosure:
(1) What has to be shown such as to amount to a disclosure of "information" (s.43(B)(1) ERA 1996) and "any legal obligation" (s.43(B)(1)(b) ERA); Cavendish Munro Professional Risk Management Limited v Geduld [2010] ICR 325, EAT and Fincham v HM Prison Service EAT/0925/01 and EAT/0991/01 applied.
(2) The approach to be adopted to determining whether a detriment is "on the grounds of" a protected disclosure: whether the disclosure "materially influenced the decision or action in question, per Elias LJ in NHS Manchester v Fecitt and ors [2012] IRLR 64, at para. 45.
Employment Tribunal's departure from the agreed list of issues; whether re-casting an issue and adding a further detriment to the list required the ET to permit the parties to make further representations.
HER HONOUR JUDGE EADY QC
Introduction
Background
(1) Sidelining him in respect of the Payshop, Lagardere and DHL accounts.
(2) Making enquiries into his expenses claims.
(3) Referring the results of those enquiries and other alleged financial irregularities to a disciplinary hearing.
(4) Intervening in his bankruptcy petition.
The facts
"40. … on 3 February 2010 there took place an earnings conference call. This was a means by which the Respondent gave information to investment advisers about the company's performance and prospects. Those participating on behalf of the Respondents included Ms Christina Gold, the President and CEO; Mr Scott Scheirman, Corporate Finance Officer and European Vice President; and Mr Hikmet Ersek, the Chief Operating Officer. There also participated nine analysts from investment advisers such as Deutsche Bank, Barclays Capital and Goldman Sachs. In relation to the PSD initiative on which Mr Hanna's team was engaged, Ms Gold said … "as a result of the PSD in Europe we expect to have an additional 10,000 retail agent locations operational by the end of 2010 and believe that we will be able to significantly expand locations and revenues over the next several years". Later in the call Mr Scheirman said: "PSD, as an example, we are going to add 10,000 locations. The ramp up of that will be from a revenue stand point. The latter part of 2010, but, for example, with PSD we believe that's going to add 1% to 2% consolidated revenue growth in 2011."
And:
"42. A further conference call took place on 27 April 2010. The same individuals attended this call on behalf of the Respondent … On this occasion eight external analysts participated. With reference to the PSD initiative, Ms Gold said … "we also made advances on our strategic initiatives. We are signing new retail agents and activating locations in Europe as we move towards our target of an incremental 10,000 retail activations by year end. We have been placing particular emphasis on signing small independent shops, which are located in areas where large immigrant populations work and live. One retail signing we just completed is the Martin McColl convenience store chain in the UK which will provide an additional 700 agent locations". Later Mr Ersek said "with the PSD licence we can also have retail chains and we have targeted 10,000 locations. Additional 10,000 locations by year end in Europe and I think we are on good progress to reach that. We already have a little below 1,000 locations activated…."
"51. The material points of difference concerned what Mr Anastasiou said about whether the goal of 10,000 locations was achievable, and whether the McColl outlets should be counted towards that. On the first point, Mr Falleck's evidence, supported by his note, was that Mr Anastasiou said that there was "only a 70% chance" of achieving that. The Respondents' case was that this mean that it was more likely than not that the target would be achieved, so that Mr Anastasiou had not said anything that contradicted the statement made in this regard in the conference call. Mr Anastasiou's evidence, supported by his note, was that he said there was a 70% chance if sales were outsourced and a 30% chance if the Respondents remained with the current sales force. In other words, he was saying that it was unlikely that the target would be achieved without a change of approach.
52. The Tribunal preferred Mr Anastasiou's evidence on this point. This view was consistent with the concerns that Mr Hanna had expressed. Also, an opinion that there was a better than evens chance of achieving the target, without any qualification, as recorded by Mr Falleck, seemed inconsistent with what he recorded Mr Anastasiou as saying immediately before that, i.e. "we would not have made the goal because lack of testing, training/resources at local level, I don't believe so" … The Tribunal found that Mr Falleck had recorded only the first part of what Mr Anastasiou said at this point.
53. In relation to whether the McColl accounts should be included, Mr Falleck's evidence, supported by his note, was that Mr Anastasiou said that this was "a tricky issue". Mr Anastasiou's note, and evidence, related that he said that the McColl UK accounts should not be counted towards the target. The Tribunal concluded as a matter of probability that he said both things, that he recorded the element that seemed most important to him …
54. Taken overall, however, and even allowing for the differences in what Mr Falleck and Mr Anastasiou recorded, it was apparent that the latter was supporting the stance taken by Mr Hanna, and was in essence agreeing with him that what was said in the conference call should not have been said."
"101 … The Tribunal was satisfied that Mr Anastasiou had disclosed information, namely that when the conference calls were made, it was in fact unlikely that the 10,000 locations target would be achieved, and that the 700 McColl locations should not be taken into account."
"56. On 21 September 2010 Mr Anastasiou made a complaint against Mr Crawford to the effect that the latter was excluding him from working with one of his best agent prospects, namely Payshop … a Mr David Lester, who worked in Madrid and reported to Mr Crawford, had told [the Claimant] that Mr Crawford had instructed him on occasions to bypass Mr Anastasiou and to make contact directly with the CEO of Payshop, and that subsequently Mr Lester had indeed made that contact directly without involving Mr Anastasiou. This complaint was not relied upon as containing a protected disclosure but it was relevant to the complaint of detriment in the form of Mr Crawford seeking to undermine and take over Mr Anastasiou's relationships. Additionally, Mr Anastasiou complained that Mr Crawford caused a colleague, Mr Stanley Wachs, to become involved with other accounts that he dealt with (Lagardere and DHL) and that this was also an example of his being sidelined.
57. Mr Crawford's evidence was that he asked Mr Lester to get involved because he thought that the deal was progressing slowly. He said that he was not aware that Mr Lester had contacted the CEO of Payshop directly and that he did not ask him to do that. … In relation to Lagardere, Mr Crawford's explanation was that Mr Wachs became involved because he spoke French. He said that he never gave him any authority to take over the DHL account and he was simply asked to give help on these. He denied that the Claimant was being squeezed out of the business and that he said that no-one told him to push him out."
58. The Tribunal concluded that Mr Crawford was trying to sideline Mr Anastasiou. It seemed likely that, had the explanations for these events been as maintained by Mr Crawford, he would have discussed what he was doing with Mr Anastasiou, or at least would have told him what was happening. Instead Mr Anastasiou found out about these matters without being told. Furthermore, the Tribunal found, on balance of probability, that the reason why Mr Crawford acted in this way was what Mr Anastasiou had said about 10,000 locations and McColl issues. The Tribunal made this finding because:
58.1 This was a plausible explanation for why Mr Crawford would want to sideline him: the Respondents would not want members of the relevant sales team saying that the projections they had made public were unrealistic.
58.2 The Tribunal rejected the explanations put forward by Mr Crawford.
58.3 These events followed fairly closely after Mr Anastasiou's interview in July."
"70. The Tribunal found that the investigation into Mr Anastasiou's expenses, and the meetings in March 2011, took place as a result of what he said to Mr Falleck on 15 July 2010, for the following reasons.
70.1 … Ms Walsh [the HR manager who had dealt with Mr Anastasiou's claims and had triggered the investigation] appeared to have had a change of attitude towards Mr Anastasiou after July 2010.
70.2 If there had been an open-minded enquiry into Mr Anastasiou's expenses, one would have expected Mr Hanna to be asked about them as he had apparently approved them. The fact that he was not asked suggests that there was a wish to find that Mr Anastasiou was compromised.
70.3 Ms Walsh's explanations of why she found the approach to her PA suspicious, and the request for payment "aggressive" were unconvincing.
70.4 As set out above, the Respondent's explanations of the decision to tell Mr Anastasiou that the meeting would be about his appraisal, and of the role played by Mr Williams, were unconvincing.
70.5 All of the above led the Tribunal to conclude that the Respondents were not being frank about the reason for the investigation, and that in reality it was provoked by what Mr Anastasiou said about the content of the conference calls."
"100. … The Respondents discovered that Mr Anastasiou and his wife had petitioned for their own bankruptcy in the USA under Chapter Thirteen. Their evidence was that they found that this was the case when making enquiries about Mr Anastasiou in a way that would be routine whenever they anticipated litigation with another party. In June 2011 they intervened in the bankruptcy proceedings … , making reference to the £20,000 hardship payment and Mr Anastasiou's representation that he and his wife owned the Harriman Heights property, which had not been listed as an asset in the bankruptcy petition. The intervention was put on the basis that Mr Anastasiou and his wife were representing that they did not own any real properly for one purpose and were representing that they owned Harriman Heights for another purpose; and on the basis that the Respondents were a creditor of Mr Anastasiou in relation to the £20,000 and the personal expenses that had not been reimbursed."
"106 … the complaint of detriment on the ground of making a protected disclosure is well founded. As indicated, the Tribunal also found that it succeeded in relation to the intervention in the US bankruptcy. The bankruptcy petition had come to light in the course of the Respondent's investigations of Mr Anastasiou: these investigations were only occurring at all because of the making of the disclosure."
"77. [He] was not challenged on his evidence that he had had no previous interaction with Mr Anastasiou, or any of the other people involved, or with the issues being raised. He said that no one had attempted to influence the outcome of the hearing and that no one had told him to find against Mr Anastasiou, either with or without any explanation of why he should do that."
The appeal
(1) The protected disclosure ground.
(2) The causation ground.
(3) The natural justice ground.
The law
"(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."
"[…] a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H."
"(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—
[…]
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
[…]
(2) For the purpose of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory."
"(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith—
(a) to his employer; …"
"(3) Any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention."
"(2) On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done. …"
"24. […] the ordinary meaning of giving 'information' is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating 'information' would be 'The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around'. Contrasted with that would be a statement that 'you are not complying with Health and Safety requirements'. In our view this would be an allegation not information.
25. In the employment context, an employee may be dissatisfied, as here, with the way he is being treated. He or his solicitor may complain to the employer that if they are not going to be treated better, they will resign and claim constructive dismissal. Assume that the employer, having received that outline of the employee's position from him or from his solicitor, then dismisses the employee. In our judgment, that dismissal does not follow from any disclosure of information. It follows a statement of the employee's position. In our judgment, that situation would not fall within the scope of the Employment Rights Act section 43."
"That the Employment Rights Act recognises a distinction between 'information' and an 'allegation' is illustrated by the reference to both of these terms in section 43F. […] It is instructive that those two terms are treated differently and can therefore be regarded as having been intended to have different meanings."
"27. […] The natural meaning of the word 'disclose' is to reveal something to someone who does not know it already. However section 43L(3) provides that 'disclosure' for the purpose of section 43 has effect so that 'bringing information to a person's attention' albeit that he is already aware of it is a disclosure of that information. There would no need for the extended definition of 'disclosure' if it were intended by the legislature that 'disclosure' should mean no more than 'communication'."
"We have been instructed by Michael Geduld in respect of the recent discussions that have taken place between the parties. We have given full advice to our client regarding his rights as a shareholder, director and employee. Such advice includes the purported agreement between the parties signed immediately before the Christmas break but 'back dated'. There are a number of issues regarding the validity of such an agreement and the unfair prejudice to our client, taking into account the events leading up to and immediately after the signature of the Agreement. Our client's position is fully reserved regarding his rights and claims in this regard and we have advised him that such arguments are significant and are very likely to be successful in Court."
And:
"Our client is putting forward this proposal as a means to bring a swift conclusion to the current position. If it is not accepted in its entirety then our client will take all steps that are necessary to protect his position including issues regarding the purported shareholders agreements; the actions of the company's accountant regarding the purported valuation and the various threats and circumstances surrounding the position our client finds himself in with the remaining two shareholders which has led to unfair prejudice upon our client as a shareholder by the company. Such unfair prejudice does raise the issue as to the future of the company."
"64. The writer of the solicitor's letter does refer to legal obligations with which, they assert, [the other directors of the Respondent] were failing to comply. They state, for example that:
'[…] the position our client finds himself in with the remaining two shareholders which has led to unfair prejudice upon our client as a shareholder by the company.'
The test of being likely to disclose is, therefore, met."
"The basis for the Tribunal's Judgment that the letter of 4 February 2008 amounted to a qualifying disclosure within the meaning of the legislation, appears to be […] [this] passage from the solicitor's letter […] If there were additional reasons for the Tribunal's conclusion that the letter of 4 February 2008 contained a qualifying disclosure within the meaning of the legislation, with respect, these are not apparent."
"32. … If an employee complains on various occasions about the conduct of other employees that is not of itself demonstrating any breach of duty of the employer at all. Of course there can be a breach of trust and confidence resulting from a whole series of acts of inattention or carelessness or any inconsiderate behaviour by an employer over time.
33. But there must in our view be some disclosure which actually identifies, albeit not in strict legal language, the breach of legal obligation on which the employers is relying. In this case the Tribunal found none. We have no reason to conclude that they erred in law in reaching that conclusion."
"41. … It is true that the claimant did not in terms identify any specific legal obligation, and no doubt he would not have been able to recite chapter and verse at the time. But it would have been obvious to all that the concern was that private information, and sensitive information about pupils, could get into the wrong hands, and it was appreciated that this could give rise to a potential legal liability"
"24. … As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following:
(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.
25. "Likely" is concisely summarised in the headnote to Kraus v Penna plc [2004] IRLR 260, EAT Cox J and members:
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."
"… section 47B will be infringed if the protected disclosure materially influenced (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower."
Submissions
The protected disclosure ground
The causation ground
The natural justice ground
Discussion and conclusions
The protected disclosure ground
"The Tribunal was satisfied that Mr Anastasiou had disclosed information, namely that when the conference calls were made, it was in fact unlikely that the 10,000 locations target would be achieved, and that the 700 McColl locations should not be taken into account."
"102. … In a practical sense, there was no doubt what the nature of the obligation was that was under consideration: Mr Fallek was investigating because Mr Hanna had stated that what was said in the conference calls had been misleading in that it gave a more favourable picture to potential investors than was truly applicable.
103. It was true, as submitted by Mr Kibling, that there was no evidence before the Tribunal showing any particular statute or other legal provision that applied to the situation. However, the "legal obligation" that was being asserted was clear; i.e. that a company describing its prospects to potential investors should describe those prospects accurately, so far as possible. …"
The causation ground
The natural justice ground
Disposal