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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Simpson v Cantor Fitzgerald Europe [2019] UKEAT 0016_18_2106 (21 June 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0016_18_2106.html Cite as: [2020] ICR 236, [2019] UKEAT 0016_18_2106, [2019] UKEAT 16_18_2106 |
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At the Tribunal | |
On 7 February 2019 | |
Before
THE HONOURABLE MR JUSTICE CHOUDHURY (PRESIDENT)
APPELLANT | |
RESPONDENT |
THE HONOURABLE MR JUSTICE CHOUDHURY (PRESIDENT)
Introduction
Factual Background
"19. The tribunal heard a considerable amount of about a practice known as "front-running". Explained simply, a client places an order for $20 million of a certain bond and the trader holds back that order and buys $2 million of the same bond then puts the clients order through. The price will go up because that is what a large order of a certain instrument will do to the price of a bond. The trader has bought a smaller amount in the banks own right. The private knowledge that a larger amount is soon to be acquired makes this analogous to insider dealing. The illustration just given is the simplest paradigm case. There are more subtle variants. The practice is illegal both in the US and the UK, under the respective Securities and Exchange Commission (SEC), and Financial Conduct Authority (FCA) regulatory codes."
The Tribunal's judgment
"56. Disclosure number 6, was a Bloomberg chat on 18 June at 2.30pm UK time. The claimant was upbeat saying he had done another decent trade yesterday and had made $70,000 this week so far, and said it felt good when it started to click. Cortellesi: "I have noticed great job and… gaining traction" (a metaphor much used in this business). 57. The claimant relies on the following passage: "Also not sure the way we are doing things is most efficient but that's a conversation in person". It is stretching the tribunal's credibility beyond breaking point to suggest that the claimant could have been alluding to a regulatory breach by the word "efficient". He then goes on to say: "Just get a bit frustrated with our traders here". In fact there was only one and it was Thomas Blondin because Steve Gooden had not yet got approval. Then he goes on to say: "but hey nothing is 100% perfect. We're moving in the right direction so the future is bright, bring some shades".
58. The claimant seeks to portray to the Tribunal that everything is calm on the surface but beneath it there is this strong undertow of corruption in a way that is non-specific and, to the Tribunal, non-credible…".
"Public Interest Disclosures
163. The tribunal has no hesitation in finding that none of the above alleged protected disclosures are in fact protected disclosures under s 43B of the Employment Rights Act 1996, for the reasons given above. In summary: the claimant's tendency to insinuate and to challenge others, and his hesitation and equivocation when challenged himself, militate against him ever making a disclosure of information (as opposed to allegations or just queries). The tribunal also consider that the origin of the claimant's distrust was a money concern over commission payments. That meant that many of these alleged disclosures could never be in the public interest. Further having heard him giving evidence over a long period at the tribunal, the equivocation suggests that the claimant cannot have held a reasonable belief in what he was alleging. The vestigial evidence the claimant overheard on the account A trade, in which he was not involved, and the lack of a single other trade being disclosed to the respondent would suggest a lack of reasonable belief and the claimant bluffing about "other examples".
Conclusions
164. That could be the tribunal's conclusion on the whole public interest disclosure claim, but we need to comment on the main detriment and dismissal complaints and the money claims. Regarding the claimant's dismissal, in the course of the above narrative, woven through the 37 alleged disclosures, it was clear to the tribunal that it had become utterly impossible for the team to work with the claimant. Thomas Blondin said (and it did not seem an empty threat), that if Mr Cortellesi insisted on keeping the claimant, he might be the only one left on the team. The team was exasperated with the claimant and, despite being told repeatedly, the claimant showed no sign of mending his ways. It would be utterly fanciful to state that the "principal reason" for his dismissal (s 103A Employment Rights Act 1996) was that the claimant had made protected disclosures. The team's dissatisfaction was abundantly well investigated by the respondent and is well documented over a long period, a period which was as long as it was only because Mr Cortellesi kept "pushing back" until it was clear that was no longer an option. The claimant's poor attendance was bad in its own right. Mr Neilly was appalled when he saw the records. But he ultimately found it just one aspect of the claimant being a poor team player. It was the lack of trust which proved most corrosive and was ultimately insuperable.
165. So far as account allocation is concerned, work had to be found for Russell Scott when he joined. After a long analysis, the tribunal could find nothing in the respondent's allocation of accounts which could be criticised at all, let alone interpreted as a reprisal for the claimant making protected disclosures. At one stage (see above) Steve Gooden and Thomas Blondin agreed to give in to the claimant's demands for certain accounts, against their better judgment, just to shut him up (the "noise"). The claimant was spending more time complaining about what he did not have than working with the (substantial) accounts he did have. Account allocation as a whistle-blowing detriment is a far-fetched claim.
166. The claimant claims that his rightful commissions were underpaid from as early as April 2015. It is a contractual claim, and a claim for unlawful deductions from pay as well as a claim for whistle-blowing detriments. Detailed accounts were produced by the claimant and the respondent to show the amounts due when he was at work. There was in fact little variance. Many variations were due to the US Dollar / GBP exchange rate, deductions of fixed percentage overheads from profits, and calculation dates (the trade date or the date paid). The claimant, as stated throughout the above narrative, was never slow in complaining if he was underpaid to any extent. His main complaint was that he was forced to trust Thomas Blondin to accurately report the trades which determined the amount of sales commissions, as these were not fully visible to the claimant on the system. The respondent would always listen to any query on commissions.
167. Now the claimant's commission claims as put in these tribunal proceedings amount to a total of £4.6m underpayment based on the claimant's suspicions about trades being systematically under-reported by the traders since April 2015. That was clearly an unwarranted claim. The fact it was so large undermined its own credibility as a claim.
168. In witness evidence the claimant raised 9 trades on which he stated he "knew" he had been underpaid although he did not quantify the amounts. There was enough detail there for the respondent to respond, as they did in a witness statement from Phillip Wale. He is the new London Head of DCM (Debt Capital Markets). He produced the Bloomberg trade tickets for all the named trades and explained to the tribunal how to read them. It was an exhaustive painstaking exposition to which no effective challenge was made by or on behalf of the claimant. On more than one of these trades, for instance, he stated it was arguable that the claimant had been overpaid. On one (17/06/2015), the tribunal saw a later commission adjustment had been made in the claimant's favour.
169. The claimant, who has the burden of proof, here has come nowhere near to proving a single underpayment of commission, either contractually or as a whistle-blowing detriment. The origin of the claim in these tribunal proceedings is fundamentally derived from the claimant's distrust of the traders. Ironically, that is what the claimant was ultimately dismissed for too.
170. So the tribunal rejects all the claimant's claims and his claim is dismissed."
Legal framework
"43A Meaning of "protected disclosure".
In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.
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, 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."
"30. I agree with the fundamental point made by Mr Milsom, that the concept of "information" as used in section 43B(1) is capable of covering statements which might also be characterised as allegations. Langstaff J made the same point in the judgment below at [30], set out above, and I would respectfully endorse what he says there. Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between "information" on the one hand and "allegations" on the other. Indeed, Ms Belgrave did not suggest that Langstaff J's approach was at all objectionable.
31. On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision.
32. In my view, Mr Milsom is not correct when he suggests that the EAT in Cavendish Munro at [24] was seeking to introduce a rigid dichotomy of the kind which he criticises. I think, in fact, that all that the EAT was seeking to say was that a statement which merely took the form, "You are not complying with Health and Safety requirements", would be so general and devoid of specific factual content that it could not be said to fall within the language of section 43B(1) so as to constitute a qualifying disclosure. It emphasised this by contrasting that with a statement which contained more specific factual content. That this is what the EAT was seeking to do is borne out by the fact that it itself referred to section 43F, which clearly indicates that some allegations do constitute qualifying disclosures, and by the fact that the statement "The wards have not been cleaned [etc]" could itself be an allegation if the facts were in dispute. It is unfortunate that this aspect of the EAT's reasoning at [24] is somewhat obscured in the headnote summary of this part of its decision, which can be read as indicating that a rigid distinction is to be drawn between "information" and "allegations".
33. I also reject Mr Milsom's submission that Cavendish Munro is wrongly decided on this point, in relation to the solicitors' letter set out at [6]. In my view, in agreement with Langstaff J below, the statements made in that letter were devoid of any or any sufficiently specific factual content by reference to which they could be said to come within section 43B(1). I think that the EAT in Cavendish Munro was right so to hold.
34. However, with the benefit of hindsight, I think that it can be said that para. [24] in Cavendish Munro was expressed in a way which has given rise to confusion. The decision of the ET in the present case illustrates this, because the ET seems to have thought that Cavendish Munro supported the proposition that a statement was either "information" (and hence within section 43B(1)) or "an allegation" (and hence outside that provision). It accordingly went wrong in law, and Langstaff J in his judgment had to correct this error. The judgment in Cavendish Munro also tends to lead to such confusion by speaking in [20]-[26] about "information" and "an allegation" as abstract concepts, without tying its decision more closely to the language used in section 43B(1).
35. The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a "disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in sub-paragraphs (a) to (f)]". Grammatically, the word "information" has to be read with the qualifying phrase, "which tends to show [etc]" (as, for example, in the present case, information which tends to show "that a person has failed or is likely to fail to comply with any legal obligation to which he is subject"). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). The statements in the solicitors' letter in Cavendish Munro did not meet that standard." (Emphasis added)
Grounds of Appeal
a. Ground 1 – failed properly to direct itself as to the applicable law;
b. Ground 2 – failed to look at the composite picture or to aggregate the separate disclosures identified;
c. Ground 3 – failed properly to direct itself that there is no strict dichotomy between information on the one hand and allegations on the other for the purposes of applying s.43B of the 1996 Act;
d. Ground 4 – failed to consider the "insider" context of the disclosure of information;
e. Ground 5 – failed properly to direct itself as to the requirement that there need only be a reasonable belief that the disclosure of information tends to show the person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
f. Ground 6 – failed properly to direct itself as to the public interest requirement under s.43B of the 1996 Act; and
g. Ground 7 – failed to make clear findings of fact as to the identity of the person making the decision to dismiss and as to the reason or principal reason for that decision.
Ground 1 - Failure to direct itself properly as to the applicable law
Submissions
"48…Whilst we would not condone a Tribunal decision which does not set out the relevant legal position and does not make findings of fact on all the principal submissions made, this does not amount to an automatic ground of appeal. It has to be shown that omitting to set out the legal principles or key submissions made has led to a consequent error of law or incorrect finding of fact. We are unable to intervene in the majority's findings, which although lengthy, set out the grounds for finding discrimination in sufficient detail to allow both parties to understand the reasoning behind the finding of discrimination."
Ground 1 – Discussion
"62. Reasons
the Tribunal shall give reasons for its decision on any disputed issue, whether substantive or procedural …
…
(5) in the case of a judgment the reasons shall: identify the issues which the Tribunal has determined, state the findings of fact made in relation to those issues, concisely identify the relevant law, and state how that law has been applied to the findings in order to decide the issues…"
"25… I do not doubt that in future Employment Tribunals would be well advised to recite terms of rule 30(5) and indicate serially how their Determination fulfils its requirements, if only to avoid unmeritorious appeals. But the rule is surely intended to be a guide and not a straitjacket. Provided it can be reasonably spelled out from the determination of the Employment Tribunal what rule 30(5) requires has been provided by the Tribunal, then no error of law had been committed." (Emphasis added)
Ground 2 – Failure to direct itself to look at the composite picture or to aggregate the separate disclosures
Submissions
"22…An earlier communication can be read together with a later one as "embedded" in it, rendering the later communication a protected disclosure even if taken on their own they would not fall with section 43B(1)(d) (Goode, para 37). Accordingly, two communications can, taken together, amount to a protected disclosure. Whether they do is a question of fact. …"
"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. The argument was supported both by arguments of policy and construction, and by analysis of the facts to bring them within the entire transaction approach.
13. As to construction, Mr Barnett, as I understood him, supported the policy-based approach of the Tribunal, but added to it further arguments based on the terms of the legislation. He reminded us of the long title to the Public Interest Disclosure Act 1998 , the source of the present provisions, which says that they are "to protect individuals who make certain disclosures of information in the public interest"; and he pointed to the use in section 43B(1) of the word "any" disclosure. 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. Indeed the Tribunal itself, in some detail in the passage that we just looked at, pointed to the controlling structures imposed by the 1998 Act. 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. ..."
Ground 2 - Discussion
a. First, there remains a distinct lack of clarity as to which communications the Claimant expected the Tribunal to consider on a cumulative basis. It is notable in this regard that both the grounds of appeal and the skeleton argument merely seek to suggest that there should have been aggregation in general;
b. Second, although the Tribunal did not refer expressly to Norbrook, it is apparent that it had the question of aggregation in mind. Thus, we see that at [37] of the judgment in relation to Disclosure number 1, the Tribunal refers to a "composite string of disclosures starting on that date". Although that is in the context of a specific disclosure, it is indicative of the Tribunal's openness to considering more than a single communication at a time in determining whether there was a disclosure. Furthermore, we see that even in relation to disclosure number 21, which focused on a communication made on 15 September 2015, the Tribunal refers back to earlier communications such as one on 15 August 2015: see [122]. Similarly, in relation to Disclosure 31, the Tribunal took account of communications under Disclosure 30 as the backdrop to the later disclosure. The suggestion therefore that the Tribunal adopted a hermetically sealed approach to each disclosure is not one that can be accepted;
c. Third, in respect of Disclosures 20, 21 and 23, the Tribunal came to clear conclusions as to why none of them individually amounted to a protected disclosure. The reasons for doing so included the vagueness of the communication in question, the fact that the Claimant had kept quiet about an allegedly blatant example of front-running for a whole month without telling compliance (thereby suggesting to the Tribunal that the reasonable belief requirement of s.43B of the 1996 Act was not met), and the absence of any "hard information" suggesting any breach of any legal obligation. It is far from clear in these circumstances how taking these allegations together could improve the Claimant's case that there was a protected disclosure. The Claimant's case might have had more merit had there been a finding that the earlier of these communications did contain some sort of protected disclosure which could be said to have been embedded in or alluded to in subsequent communications. However, that is not what the Tribunal found. Communications that do not, on their own, amount to a protected disclosure, are unlikely to amount to one when combined. It is certainly hard to see how the Tribunal could be said to have acted perversely in failing to conclude otherwise.
Ground 3 - No strict dichotomy between information and allegation
Submissions
Ground 3 – Discussion
"154. Disclosure number 32 is said to be the Claimant's email of 21 October to Annie Mills. However, it is stated to be an enquiry as opposed to a disclosure of information: "Could you let me know if the following information raises any issues?" The scenario described seems to be the account A trade in which the Claimant was not involved (it was Steve Gooden and Russell Scott). There is again a huge amount of speculation and supposition involved on the Claimant's part. He has constructed a scenario based on overheard conversation, and one-sided telephone calls. That could not support a "reasonable belief" that there was a breach of FCA regulation here.
155. Further, it is indicative that, once again, he provided the specifics of the trade very slowly and piecemeal with Ms Mills having to drag information out of him 8 days later on 29 October. The account A trade is in fact the only trade whose details he did eventually disclose – date, bond, trader, sales, and the reference numbers. In some, however, this cannot count as a disclosure. It fails to satisfy s.43B in 2 ways – information (not just a query), and reasonable belief." (Emphasis added)
"104…Earlier this week we were working an order for a client to sell Kazak bonds. Thomas goes and hits the screen and bids my client lower which of course he hits. There's a name for that practice."
"160. Disclosure number 35 is said to have been in person on 12 November in a meeting with Mr Neilly, just the two of them. Mr Neilly talked to the claimant seriously and critically about his relations with the team. He mentioned 3 points in descending order of importance – confrontational attitude, time keeping and attendance, and the taking of notes. The last was most important because that specifically undermined trust. He said he would have to address the other team members to see if trust could be rebuilt or not. He was having doubts. The claimant did not hand over the notes he had been making, although they were later given to the respondent. There were more than 30 pages, closely typed, reporting on specific trades and general trends. The tribunal cannot see anything said on that day which could possibly have been a protected disclosure. There is no evidence of it. The tribunal accept Mr Neilly's evidence that he never looked at the claimant's notes at any stage before he decided to dismiss the claimant on 1 December. (The claimant was asked to stay home from 16 November until that point)."
Ground 4 – Failure to take account of insider knowledge
Submissions
Ground 4 – Discussion
"62. … So in our judgment what is reasonable in s43B involves of course an objective standard — that is the whole point of the use of the adjective reasonable – and its application to the personal circumstances of the discloser. It works both ways. Our lay observer must expect to be tested on the reasonableness of his belief that some surgical procedure has gone wrong is a breach of duty. Our consultant surgeon is entitled to respect for his view, knowing what he does from his experience and training, but is expected to look at all the material including the records before making such a disclosure. To bring this back to our own case, many whistleblowers are insiders. That means that they are so much more informed about the goings-on of the organisation of which they make complaint than outsiders, and that that insight entitles their views to respect. Since the test is their "reasonable" belief, that belief must be subject to what a person in their position would reasonably believe to be wrong-doing."
"114. Later the claimant developed an allegation that strongly resembles front-running which therefore needs to be quoted: "It's about the behaviour I hear. So how does that impact me? How it impacts me is I have stuff like someone comes in a buyer of Ukrainian bond which is super liquid then we're bidding on a screen or to some off screen bookie and its moved against my client, and what happens is…." Cortellesi: "What you're saying is that they are taking the information that you gave them then they're moving their screen against your client". claimant: "Yeah. So what happens is Steve makes a ton of money in Ukraine …. oh yeah he's God now and I am like well fuck man, I fed you guys information I had some orders so it doesn't show up in my numbers because my guys didn't get executed because they are showing preference to other clients so whether they get paid for it or not ….they wanna look like the big guy.
115. The tribunal accepted that the claimant did not retract that statement. The transcript is quite ambiguous. In closing submissions we listened to a voice recording of the Bloomberg chat. But Charles Cortellesi disagrees with his entire assumption here stating: "Okay if they're trying to push the market up then why don't you find buyers and help them push the market up?" Mr Cortellesi had previously said in response: "to think about it because you know this is the model I have been operating under for 10 years". So in other words Mr Cortellesi did not consider that the claimant, with this hypothetical illustration, was actually describing front-running. It did not necessarily involve a regulatory breach and unlawful use of insider knowledge of an impending large purchase of Ukrainian bonds. We stress again it was hypothetical. The claimant was not identifying any particular trade here."
Ground 5 – Misapplication of the reasonable belief test
Submissions
Ground 5 – Discussion
"41. Darnton's case [2003] ICR 615 seems to me clear authority for the proposition that whilst an employee claiming the protection of section 43(1) of ERA 1996 must have a reasonable belief that the information he is disclosing tends to show one or more of the matters listed in section 43B(1)(a) to (f) , there is no requirement upon him to demonstrate that his belief is factually correct; or, to put the matter slightly differently, his belief may still be reasonable even though it turns out to be wrong. Furthermore, whether or not the employee's belief was reasonably held is a matter for the Tribunal to determine. (Emphasis added)."
"36…If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief."
a. Complaint is made of the Tribunal's finding at [66] that "There is nothing here suggesting any regulatory breach", the submission being that by focussing on whether there was a regulatory breach, the Tribunal has failed to consider whether the Claimant had a reasonable belief that the information tended to show such breach. I reject that submission. In stating that there was "nothing" to suggest any breach, the Tribunal was answering in the negative the question of whether the disclosure had sufficient factual content and specificity so as to be capable of giving to rise to the requisite reasonable belief. That was the correct approach;
b. Complaint is then made of the various occasions on which the Tribunal referred to the Claimant's accusations as being "speculative" or "based on assumptions". However, to describe an accusation or belief in these terms is simply another way of stating that belief was not based on reasonable grounds or lacked sufficient factual content and detail. Once again, the Tribunal was in substance applying the correct test;
c. Finally, it is contended that the Tribunal erred in relying upon Mr Cortellesi's views to reject the Claimant's case. I have dealt with this contention already under the previous ground. There is no error of law in the Tribunal having regard to the views of others in the organisation in assessing whether the belief was reasonable.
Ground 6 – Misapplication of the Public Interest test
Submissions
Ground 6 – Discussion
"26. The issue in this appeal turns on the meaning, and the proper application to the facts, of the phrase "in the public interest". But before I get to that question I would like to make four points about the nature of the exercise required by section 43B(1) .
27. First, and at the risk of stating the obvious, the words added by the 2013 Act fit into the structure of section 43B as expounded in Babula's case [2007] ICR 1026 (see para 8 above). The Tribunal thus has to ask (a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and (b) whether, if so, that belief was reasonable.
28. Second, and hardly moving much further from the obvious, element (b) in that exercise requires the Tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured. The parties in their oral submissions referred both to the "range of reasonable responses" approach applied in considering whether a dismissal is unfair under Part X of the 1996 Act and to the " Wednesbury approach" ( Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 ) employed in (some) public law cases. Of course we are in essentially the same territory, but I do not believe that resort to tests formulated in different contexts is helpful. All that matters is that the Tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the Tribunal to form its own view on that question, as part of its thinking—that is indeed often difficult to avoid—but only that that view is not as such determinative.
29. Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the Tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a Tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable 6 .
30. Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at para 17 above, the new sections 49(6A) and 103(6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker's motivation—the phrase " in the belief" is not the same as "motivated by the belief"; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it.
31. Finally by way of preliminary, although this appeal gives rise to a particular question which I address below, I do not think there is much value in trying to provide any general gloss on the phrase "in the public interest". Parliament has chosen not to define it, and the intention must have been to leave it to employment Tribunals to apply it as a matter of educated impression. Although Mr Reade in his skeleton argument referred to authority on the Reynolds defence ( Reynolds v Times Newspapers Ltd [2001] 2 AC 127 ) in defamation and to the Charity Commission's guidance on the meaning of the term "public benefits" in the Charities Act 2011 , the contexts there are completely different. The relevant context here is the legislative history explained at paras 10–13 above. That clearly establishes that the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest. This seems to have been essentially the approach taken by the Tribunal at para 147 of its reasons."
"(a) the numbers in the group whose interests the disclosure served…;
(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed—a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;
(c) the nature of the wrongdoing disclosed—disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;
(d) the identity of the alleged wrongdoer—as Mr Laddie put it in his skeleton argument, "the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i e staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest"—though he goes on to say that this should not be taken too far."
a. The first is that at [60], the Tribunal found that "If this disclosure really was about underpaid commission, it could hardly be a qualifying disclosure. It was not in the public interest, but was made for self-interest". It is relevant to note that the Tribunal went on to find that the Claimant, "appears to have lost interest in this listed "disclosure" as it was not mentioned in his witness statement." This disclosure appears, therefore, to have foundered more for evidential reasons than because it failed to satisfy the public interest test. But in any case, a disclosure that is about underpaid commission with no other factors that might indicate a wider public element – such as an allegation that the underpayment of commission affected others or was a deliberate practice designed to conceal unlawful conduct – is unlikely to engage the public interest. There was no error of law in the Tribunal so stating.
b. The second is at [102] where the Tribunal held: "Once again, too, it primarily involves the claimant's own commissions which are never going to pass the 'public interest' test". (Emphasis added). The same considerations apply as in the previous example. There is nothing about this allegation (which the Tribunal found to be "vague" and unexplained: see [102]) which even begins to suggest any public interest element. By stating that this was "never going to pass the 'public interest' test", the Tribunal was not applying a general rule that a disclosure about commission could never engage the public interest, but was merely stating that in the circumstances of this case – where no other factors are identified - it would not do so;
c. The final example is at [163]: "The Tribunal also consider that the origin of the Claimant's distrust was a money concern over commission payments. That meant that many of these alleged disclosures could never be in the public interest". Once again, it cannot be said that the Tribunal was applying a general rule to the effect that disclosures about commission can never be in the public interest; it was merely stating that in respect of "many" (not all) of the disclosures relied upon in this case they would not do so. This was another way of stating that these allegations, viewed objectively, could not have formed the basis of any reasonable belief at the time they were made that they were in the public interest. The Tribunal in fact accepted as probably correct, the Respondent's contention that the Claimant was "trying to pass off his commission concerns as protected disclosures in order to leverage his position": see [153]. That conclusion tends to undermine any suggestion that there was a genuine or reasonable belief that the disclosures were made in the public interest.
Ground 7 – The Reason for dismissal
Submissions
Ground 7 – Discussion
"160. Disclosure number 35 is said to have been in person on 12 November in a meeting with Mr Neilly, just the two of them. Mr Neilly talked to the Claimant seriously and critically about his relations with the team. He mentioned 3 points in descending order of importance – confrontational attitude, time keeping and attendance, and the taking of notes. The last was most important because that specifically undermined trust. He said he would have to address the other team members to see if trust could be rebuilt or not. He was having doubts. The Claimant did not hand over the notes he had been making, although they were later given to the Respondent. There were more than 30 pages, closely typed, reporting on specific trades and general trends. The Tribunal cannot see anything said on that day which could possibly have been a protected disclosure. There is no evidence of it. The Tribunal accept Mr Neilly's evidence that he never looked at the Claimant's notes at any stage before he decided to dismiss the Claimant on 1 December. (The Claimant was asked to stay home from 16 November until that point)." (Emphasis added)
"… The Claimant's poor attendance was bad in its own right. Mr Neilly was appalled when he saw the records. But he ultimately found it just one aspect of the Claimant being a poor team player. It was the lack of trust which proved most corrosive and was ultimately insuperable." (Emphasis added)
"59…The correct analysis of a "manipulation" case seems to me require some care. It is best to take it in stages, by reference to the status of the manipulator.
60. I take first the case where a colleague with no relevant managerial responsibility for the victim procures his or her dismissal by presenting false evidence by which the decision-taker is innocently (and reasonably) misled. In such a case the dismissal is plainly not unfair within the meaning of the 1996 Act, whether by way of the manipulator's motivation being attributed to the employer for the purpose of section 98(1) (or sections 98B-104G ), or by his knowledge being used to impugn the reasonableness of the decision to dismiss under section 98(4) . The employee has no doubt suffered an injustice at the hands of the Iago figure and may have other remedies (as the Claimant may in the present case – see below); but the employer has not acted unfairly.
61. I take next the position where the manipulator is the victim's line manager but does not himself have responsibility for the dismissal. If the matter were free from authority I could see the force of the argument for attributing the manipulator's motivation to the employer, because it has delegated authority to him or her to manage the employee in question. However, that is precisely the argument that appealed to Sedley LJ in Orr and which the majority rejected, for cogent reasons: see paras. 49-50 above. It is accordingly not open to us to accept it.
62. Neither of those situations is covered by what I said in Baddeley , which referred specifically to the situation where the manipulator is "a manager with some responsibility for the investigation", albeit ex hypothesi not the actual decision-taker. That phrase was chosen, I think, to refer generally to the possible role of Mr Berne, and it was imprecise because no findings had been made about what that role was. But it does in fact have a possible application in cases where someone other than the ultimate decision-taker has a formal role in the decision-making process. For example, in the more elaborate forms of disciplinary procedure manager A is sometimes given responsibility for investigating allegations of misconduct which are then presented to manager B as the factual basis (albeit, typically, challengeable at a hearing) for a disciplinary decision. This is a refinement of a kind which did not fall for consideration in Orr ; and there would in my view be in such a case a strong case for attributing to the employer both the motivation and the knowledge of A even if they are not shared by B. I do not see anything in that view inconsistent with the ratio in Orr : in such a case the conduct of the investigation is part of the deputed "functions under section 98 ". But although in the present case Mr Widmer supplied documents to the HR department which it in turn passed to Ms Vickers, and responded to her query about the TMI complaint, that does not make him an investigator.
63. There was, finally, some discussion before us of the case where someone at or near the top of the management hierarchy – say, to take the most extreme case, the CEO – procures a worker's dismissal by deliberately manipulating, for a proscribed reason, the evidence before the decision-taker. Such a case falls outside Moore-Bick LJ's formulation quoted at para. 47 (4) above, because the CEO, despite his or her seniority, would not have formal responsibility for making the dismissal decision 5 . But the facts in Orr did not raise this issue, and it rather sticks in the throat that even in a case of this particular kind the manipulator's motivation should not be attributed to the employer for the purpose of section of 98(1) . There may well be an argument for distinguishing the case of a manager in such a senior position from those considered in the preceding paragraphs; but the issue does not arise on the facts before us and I prefer not to express a definitive view."
"151. We were urged to read this transcript in some detail by the respondent's counsel. It conveys a reliable authentic view of the intensity of, and the focus of, the team's unhappiness with the claimant, as at 9 October at a time before decisive steps were made. Even then Mr Cortellesi was, as he put it, "pushing back".
Conclusion
Note 1 The term ‘breach of a legal obligation’ is used in this judgment as a convenient shorthand for any of the matters referred to in paragraphs (a) to (f) of s.43B(1) of the 1996 Act. [Back]