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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Panayiotou v Kernaghan (Victimisation Discrimination : Whistleblowing) [2014] UKEAT 0436_13_1604 (16 April 2014) URL: https://www.bailii.org/uk/cases/UKEAT/2014/0436_13_1604.html Cite as: [2014] UKEAT 0436_13_1604, [2014] IRLR 500, [2014] ICR D23, [2014] UKEAT 436_13_1604 |
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At the Tribunal | |
On 27 March 2014 | |
Before
THE HONOURABLE MR JUSTICE LEWIS
(SITTING ALONE)
APPELLANT | |
THE POLICE AND CRIME COMMISSIONER FOR HAMPSHIRE |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS KATHERINE APPS (of Counsel) Instructed by: The Bar Pro Bono Unit 289-293 High Holborn London WC1V 6JQ |
For the Respondents | MR ANDREW CLARKE (One of Her Majesty's Counsel) & MR GARY SELF (of Counsel( Instructed by: Hampshire Constabulary Headquarters Romsey Road Winchester Hampshire SO22 5DB |
SUMMARY
VICTIMISATION DISCRIMINATION
Whistleblowing
Protected disclosure
The Appellant was a policeman who was subjected to a series of detriments and was ultimately dismissed by his employer. During the course of his employment, the Appellant made a number of protected disclosures as defined in section 43B of the Employment Rights Act 1996. He contended that the fact that he had made those protected disclosures influenced the employer in acting as it did and was the reason, or the principal reason, for his dismissal. The tribunal concluded that the employer acted as it did because of the Appellant's long term absence on sickness grounds together with the manner in which the Appellant had pursued his complaints. The Appellant would not accept any answer save that which he sought and, if he was not satisfied with the action taken following a complaint, he would pursue the matter to ensure that his view prevailed. As a result, the employer was having to devote a great deal of management time to responding to the Appellant's correspondence and complaints and the Appellant became completely unmanageable. The Employment Appeal Tribunal held that the tribunal was entitled to treat those particular factors as separable from the fact that the Appellant had made protected disclosures and to decide that those factors were the reason why the employer acted as it did. Further, the Employment Appeal Tribunal held that tribunal had not approached the matter on the basis that, as the Appellant had made a number of protected disclosures, there came a time when subsequent disclosures of information could not qualify as protected disclosures; the tribunal had adopted a correct approach.
THE HONOURABLE MR JUSTICE LEWIS
INTRODUCTION
THE DECISION OF THE TRIBUNAL
The Structure of the Employment Tribunal Decision
The Claims
The Facts and Findings Relevant to this Appeal
"However, there are substantial aspects of the treatment of the claimant which cause us great concern. These include the disparity of treatment between the claimant and Sgt Cairns; the claimant's arrest in October 2006 and the (extraordinary in our view) position of the force that working while claiming sick pay should be treated as a criminal offence rather than disciplinary; the refusal of the Chief Constable even to entertain a business interest request in July 2007 for what was a completely different business; and the use of the Police Regulations 2003, which has never happened before (nor since) in any constabulary in the country, including making the decision to dispense with his services – effectively in secret – without involving the claimant. There was a specific police operation - Operation Companionway – set up to investigate the claimant which involved a huge amount of work and resources including taking witness statements from no fewer than 44 people. The claimant had been medically approved for ill-health early retirement on 23rd January 2008, yet the Force continued with its decision to dispense with his services at the hearing on 15th February 2008. We find the use of the Police Regulations 2003 – without precedent in the annals of all 43 police forces – and the manner of its implementation to have been a device to secure the removal of the claimant by avoiding the Conduct Regulations, and the process involved from "Operation Companionway" through to dismissal a series of actions designed to secure the removal of the claimant from his office."
The Tribunal's Summary Reasons
"62. After giving this matter very great thought our conclusion is that the public interest disclosure was the genesis of the matters of treatment about which the claimant complains (all of which are necessarily detriments) but only in the sense of "If I had not taken the M5 and travelled on the A303 instead I would not have had the car crash". It was the actions taken by the claimant subsequent to the disclosures which were the reasons why the Force were hostile to him. Certainly we think they were hostile to him. In addition, there was an exasperation that the claimant had worked so little in the years he had been with them, while seeking to be involved with family businesses while (mostly) being paid for (not) being a police officer. We do not think that the fact that race was the subject of some of the disclosures had anything to do with anything that happened, and we do not think that the fact that the claimant had a mental health disability had any connection with any action that might be criticised. In so far as adjustments were needed, they were made. It has also to be said that the actions of the claimant were sufficient to try and to exhaust the patience of any organisation.
…
64. By the time of his dismissal, the claimant had become a one-man industry for the Force, taking up huge amounts of management time, and it was clear from the medical reports that he was not able to function as a detective sergeant. He made many very lengthy complaints – typified by the application for a business interest of 21st June 2007 which ran to 22 pages most of which reiterated his public interest disclosures. When asked about this by the Judge, the claimant could (now) see that this was irrelevant to that application. A brief look through the thousands of pages of documents we have considered shows how many very lengthy discourses there have been from the claimant about his various grievances. There comes a point where the fact of a disclosure is overtaken by the campaign of the discloser to vindicate himself and champion those about whom those grievances were raised, and that point came far into the past. It is why the actions of the Force are in no sense whatsoever connected with the public interest disclosures.
…
66. Our finding of fact, and our decision, is that the Force determined to rid itself of the claimant and did so in a manner that was not fair but was not in any sense whatsoever connected with the public interest disclosures he had made. It was the manner that he pursued them that caused the Force to act as it did. … where he did not agree with the way that the disclosures were handled he complained about that too, as further disclosures. When it got to the point, as it did, where he was critical of HMIC's and the Home Office's handling of the matter (see documents 178 on 26th October 2002 to HMIC and 759-761 on 28th May 2007 to the Home Office in both of which he said so), it is clear that unless the matters are handled as the claimant wished, then they would have been wrongly handled in his view, and he would not rest until he had altered that course of action."
Reasoning in the Narrative History as set out by the Tribunal
"subsequent to October 2006, the Force collectively, had determined that that the claimant was to be allowed no leeway. He had hardly been at work so there was little opportunity for him to have matters about which to complain other than about himself (and in his own cause he was largely repeating what he had already written) but still he campaigned relentlessly and tirelessly for the causes which he championed, including his own wish to take up a role of his own designation within the force. That campaign has, in our considered judgment, nothing to do with disability (other than seeking to design a post to suit himself) nor the public interest disclosures which he had made. It is this reasoning that also leads us to take the same view of the application of regulation 7(6) [the business interest regulation] to the claimant".
"We think the Authority should have refused to approve the decision, and directed the Chief Constable to use the conduct regulations. The Authority followed the advice given to them by their legally qualified clerk, and we think that they should not have regarded that as binding (as in effect they did) and we think that advice flawed, as it was that the claimant had disobeyed a lawful order and continued with a conflicting business interest while saying that he has no such interest. However that opinion does not assist the claimant, as there is no credible evidence that matters of public interest disclosure, disability or race had anything at all to do with the process or decision of the Authority, given also the point above about the representations made to the Authority."
"Subsequently DC's Plummer and Wright were involved in actions which led to the claimant leaving the Force. At paragraphs 429 and 430 the claimant sets out that after his return to work on 02nd May 2006 he had cause to speak to both these detective constables. DC Plummer had behaved inappropriately in a rape investigation where he had arranged for the victim and the suspect to pass one another in a corridor as an informal identity parade. At about the same time he says that he spoke to DC Wright who, he says, referred to those of Asian ethnicity as "rag heads". He indicates that they disliked him as a result, which had unfortunate consequences for him when both went off to join the PSD. As set out earlier, the claims pleaded refer to a 2001 episode about a rape investigation where the claimant had rebuked DC Plummer which the claimant feels led to DC Plummer disliking him. Accordingly, on the claimant's own evidence the actions of DC's Plummer and Wright are motivated by dislike of the claimant for reasons totally unconnected with public interest disclosure of disability, and only tangentially with race."
Reasoning in the Review Section of the Tribunal's Judgment
"189…the use of Reg 7(6) of the 2003 Regs and the way that was implemented by the Force – we have made clear our views on this. It seems to us incumbent on a police force to recognise the rules of natural justice, and the claimant is right in saying that to decide to dismiss an officer without him knowing it was under consideration is unfair. The critical question is why this was done, and have set out that we do not think it was in any sense whatsoever for an unlawfully discriminatory reason. Long absence through sickness from which the claimant would never be returning, and the sheer effort required to deal with the claimant's correspondence and complaint, and exasperation at the way the claimant would never accept any answer save that which he sought, coupled with his tenacity and persistence, as well as the ever burgeoning area of complaint are all specific to the actions of the claimant not related to the PID, disability or race. Those matters are why he was in the situation, but are not relevant to how – the manner or the way – he pursued those matters."
…..
"191. … We think the claimant is correct in saying that the events of 06th October 2006, and the use of the regulation 7 procedure in the Police Regulations 2003 (as amended by the Police (Amendment) (Number 2) Regulations 2006) was entirely down to the relentless campaigning of the claimant over the preceding four or five years. These are matters of public interest disclosures, but the reason the Force was so disposed was because of the way the claimant acted rather than the fact of the public interest disclosures. The public interest disclosures themselves were initially welcomed; and we simply do not believe that many members of the Force and of the Authority, including Karen Scipio of the Hampshire Black Police Force Association, Ahmed Ramiz from a neighbouring force, the IPCC and the Home Office all took against the claimant because of those disclosures, or because of his mental health. Throughout, we have asked ourselves the question whether any fact is "in no sense whatsoever" connected with those disclosures, race or disability, and we have dealt with this earlier. Without the disclosures there would not have been the campaign by the claimant, but it is the claimant's campaign to right the wrongs which he considered he had disclosed that was the problem, and not the disclosures themselves. Further disclosures about failure to act properly about the first disclosures simply give us a Russian doll or (as the respondent's counsel suggested) an onion analogy, or perhaps an image of a person standing between two facing parallel mirrors with endlessly repeating images into infinity. The claimant's documents simply built one upon another allegation compounding upon allegation until a total of 50 allegations were reached, and that was before the Authority's hearing of 15th February 2008. We have concluded that it would be perverse to describe this as a causative link. Rather it was a preface to the story about which we have heard."
"…he was "viewed as being "problematic" due to his unwillingness to ignore serious errors being committed by his colleagues in their duties and his persistence in seeking to address those matters at the highest level where necessary."
"…It was this persistence, and addressing those matters in the way that he did, that caused him the problems that he has had. The use of the regulation 7(6) procedure was, we think, a device to get rid of the claimant. It cut off an appeal to the independent panel that would consider the matter quasi judicially which would inevitably follow use of the conduct regulations. However we do not think it was because of public interest disclosures or disability or race for the same reasons we given earlier."
"208. We have great personal sympathy with the claimant, although we have not accepted his evidence in two particular regards, and while we note that there is an extant dishonesty conviction, we found him sincere. We think that he is correct in his beliefs that he was targeted by the Force from the summer of 2006 until his dismissal on 15th February 2008, and that the Authority was a rubber stamp. The difference between his view and ours is that we do not think this was because of his public interest disclosures, or because of his disability (or because his disclosures were about race, in part). It was because of the way he went about matters, and that this may well be because of mental health difficulties does not enable any of the claims to succeed."
"209. Our key finding is that (in short) the claimant had become completely unmanageable, and this was the reason he was treated as he was, and that was causally unconnected with unlawful discrimination or public interest disclosures (and race)."
"184….. – revoking the business interest permission on the claimant's arrest on 06th October 2006 had nothing at all to do with matters connected with race."
"185 The same is true concerning the rest of the allegations in this section. Refusal to consider the application of 25th June 2007 (93.1(g)) was not a fair decision, but it was made not because the claimant had made public interest disclosures, or that such disclosures were partly about race. It was because the senior members of the Force had simply had enough of the claimant telling them how they should be running their Force, how they should deal with matters he raised, and how they should create a role for him though he was simply not able to carry out his duties as a uniformed or CID officer."
THE LEGAL FRAMEWORK
"(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."
"(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and 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,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed."
"it is for the employer to show the ground on which any act, or deliberate failure to act, was done."
"…section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than trivial influence) the employer's treatment of the whistleblower."
"…unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer's decisions. In my judgment, that principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing."
"An employee who is dismissed shall be regarded for the purpose 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".
THE ISSUES
"in finding that the claims of detriment, victimisation and whistleblowing failed because the "fact of a disclosure is overtaken by the campaign of the disclosure"
(1) did the tribunal conclude that, once the employee had made a number of protected disclosures, there came a time when subsequent disclosures of information were not protected disclosures but were part of a campaign so that any actions of the employer influenced by those later disclosures of information would not involve a breach of section 47B of ERA?
(2) was it permissible for the tribunal to conclude that the particular features of the way in which Mr Panayiotou pursued his complaints could be separated from the fact that he had made protected disclosures and to conclude that the actions were done by reason of the former not the latter and so did not involve a breach of section 47B of ERA?
(3) for the purposes of section 2 of the 1976 Act, and particularly having regard to the treatment described in paragraph 60 of the tribunal's reasons, did the tribunal correctly consider why Mr Panayiotou was subjected to the treatment and whether that was in no sense whatsoever connected with the doing of protected acts or did it apply a different, and incorrect test?
(4) for the purposes of section 47B of ERA, did the tribunal apply the correct test, namely that the making of protected disclosures need form only more than a trivial component of the reasons for the employer's actions, or did it apply a different and incorrect test? and
(5) was the decision that the reason, or the principal reason, for the dismissal was not the protected disclosures perverse or otherwise unlawful?
ANALYSIS
The First Issue
The Second Issue
"a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself. Again, no doubt in some circumstances such a line of argument may be abused; but employment tribunals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint."
"Of course such a line of argument is capable of abuse. Employees who bring complaints often do in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had, say, used intemperate language or made inaccurate statements. An employer who purposes to object to "ordinary" unreasonable behaviour as that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases. But the fact that the distinction may be illegitimately made in some cases does not mean that it is wrong in principle."
The Third Issue
The Fourth Issue
The Fifth Issue
ANCILLARY MATTERS
CONCLUSION