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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Arjomand-Sissan v East Sussex Healthcare NHS Trust [2019] UKEAT 0122_17_1704 (17 April 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0122_17_1704.html Cite as: [2019] UKEAT 122_17_1704, [2019] UKEAT 0122_17_1704 |
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At the Tribunal | |
On 12 October, 13 & 14 December 2018 | |
Before
THE HONOURABLE MR JUSTICE SOOLE
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR DAVID MITCHELL (of Counsel) Instructed by: Gaby Hardwicke Solicitors 33 The Avenue Eastbourne East Sussex BN21 3YD |
For the Respondent | MS REHANA AZIB (of Counsel) Instructed by: Bevan Brittan LLP Kings Orchard 1 Queen Street Bristol BS2 0HQ |
SUMMARY
VICTIMISATION DISCRIMINATION - Protected disclosure
The Claimant was employed by the Respondent as an Information Management and Technology Manager between December 2005 and February 2016 when he resigned. By his claim presented in August 2015 and subsequently amended, he made complaints of race discrimination, unfair dismissal and whistleblowing. The latter comprised claims of detriments suffered between December 2009 and February 2016 in consequence of protected disclosures made between February 2007 and March 2015. Following a 12-day hearing all claims were dismissed. In respect of the whistleblowing claim the ET found that there were two protected disclosures and a number of detriments, but that there was no connection between the disclosures and the detriments.
Permission was granted to proceed to a Full Hearing of his appeal on some of the grounds relating to the whistleblowing claim. The essential grounds were that the ET (i) for the purpose of section 43B(1) Employment Rights Act 1996 confused the specificity required (a) within the disclosure and (b) in the case before the Tribunal: Blackbay Ventures Ltd v Gahir [2014] IRLR 416 cf. Bolton School v Evans [2006] IRLR 500; and (ii) in holding that certain of the disclosures were not qualifying disclosures within section 43B(1) and therefore were not protected disclosures, reached conclusions which were perverse.
The EAT dismissed the appeal, holding that there had been no error of law or perversity.
THE HONOURABLE MR JUSTICE SOOLE
"… showed the Trust was about the bottom 20% of all Trusts in England for staff engagement; there was a culture whereby staff were afraid to speak out to share their concerns openly; staff are worried about the consequences of speaking out; the data shared with external stakeholders and the board was criticised; there were fears of reprisal; staff were unclear about lines of accountability; concerns about the quality of support from HR and challenging relationships with senior staff with styles of communications being inappropriate in a professional arena. Following the report, the Respondent went through a major reorganisation."
The Statutory Provisions
"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."
"(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][1] 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, or is likely to be deliberately concealed."
"(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 on the ground that the worker has made a protected disclosure."
"(1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.
…
(2) On a complaint under subsection … (1A) … it is for the employer to show the ground on which any act, or deliberate failure to act, was done.
…
(3) An employment tribunal shall not consider a complaint under this section unless it is presented -
(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."
The Pleaded Case
"… First, it is critical (particularly in a case like this when 19 protected disclosures and 33 detriments and different causes of action ranging from whistleblowing to race discrimination to unfair dismissal are relied on across a span of a period of seven years) that the issues are identified in advance. The claim form is the document in which a claimant is expected to set out his claim and to identify his protected disclosures and the detriments on which he relies. In this case, the Claimant had the opportunity to amplify his position in a schedule and in his witness statement. It is neither fair to the respondent nor to the tribunal for a case to proceed on a rolling basis with additional matters emerging halfway through the evidence. The pleaded case is, as the former President said in Chandhok v Tirkey [2015] IRLR 195, the starting and finishing point, and if a matter is not pleaded in the pleaded case a tribunal is entitled to proceed on the basis that it is not relied on."
"6. In respect of each disclosure:
a. Was it made (and to a proper person (s43C-G))?
b. Was it a qualifying disclosure (s.43B(1))?
c. Was it made in good faith (pre-25.06.13) or, thereafter, in the reasonable belief of C, in the public interest?
7. Did C's disclosures materially influence R's treatment of him as set out in the table of detriments below (supposing those detriments took place)?
…
17. Are C's unauthorised deductions, protected disclosure detriment and race victimisation claims brought in time (s.23(2) & (4) ERA, s.48(3) ERA & s.123(1) & (3) EqA?"
The Judgment
"28. Given the period of time between these disclosures and taking into account where the Claimant was working at the time they were made (he was working for the Therapies Department when the first disclosure was made and under different management in the Operations Department when the second disclosure was made) the Tribunal does not find that them [sic] to be part of a continuing act. The time span is too great to make any meaningful link between them. The Tribunal finds that once the Claimant moved from the Therapies department in January 2010 all matters that happened before this time ceased in that the new management team he was working under were unaware of the protected disclosure or his complaints of race discrimination. This is considered further below."
"33. During his employment the Claimant worked in various departments with different managers. In each department there was a separate management structure and once the Claimant had moved to a different department any involvement with his previous managers ceased. The tribunal has found that there was no collusion between the management of the different departments."
The Tribunal's Approach
Ground 3: Misapplication of section 43B(1) ERA
"79. It is also, I think, significant that section 43B(1) uses the phrase "tends to show" not "shows". There is, in short, nothing in section 43B(1) which requires the whistle-blower to be right. At its highest in relation to section 43B(1)(a) he must have a reasonable belief that the information in his possession "tends to show" that a criminal offence has been committed: at its lowest he must have a reasonable belief that the information in his possession tends to show that a criminal offence is likely to be committed. The fact that he may be wrong is not relevant, provided his belief is reasonable, and the disclosure to his employer made in good faith (section 43C(1)(a))[2].
80. … The purpose of the statute, as I read it, is to encourage responsible whistle-blowing. To expect employees on the factory floor or in shops and offices to have a detailed knowledge of the criminal law sufficient to enable them to determine whether or not particular facts which they reasonably believe to be true are capable, as a matter of law, of constituting a particular criminal offence seems to me both unrealistic and to work against the policy of the statute."
See also Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979 per Underhill LJ at paragraph 8.
"… it is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality (as whistleblowers sometimes are) to cloud its judgment about whether the disclosures in question do in fact have a reasonable basis or are made (under the old law) in good faith or (under the new law) in the public interest. Those questions will ultimately be judged by a tribunal, and if the employer proceeds to dismiss it takes the risk that the tribunal will take a different view about them. I appreciate that this state of affairs might be thought to place a heavy burden on employers; but Parliament has quite deliberately, and for understandable policy reasons, conferred a high level of protection on whistleblowers. …"
Ground 3: Disclosure 9
"… first raised concerns to management of the access rights to all users of the Tiara system. [A]ll users of the Tiara system have total access to the system which can lead to an abuse of the system whether deliberate or intentional. This concern has been ignored.
[Nasser] has tried to raise a concern with the management team that he had about the Tiara team having access to a delete button on their screens when data inputting. The organisation needs to ask ETHITEC whether there are any deleted patient data files. The need to understand this is that the patient data is being lost, which may impact on full patient history being recorded incorrectly. This may have an impact should there be a complaint or litigation. It has been ignored.
[Nasser] has informed management that the waiting list figures have been manipulated. The impact of this is not only is this masking the length of the waiting list, but there is a potential loss of income. This can be explained further but in principle it is where a patient has been seen, the correct procedure to process the payment has not been completed. No action or explanation has been given to Nasser as to why this is not being addressed."
"84. The Tribunal considered whether this was the type of case where a Claimant need not set out the legal obligation on which he or she relies. These cases apply as set out in above [sic], where it is clearly apparent from reading the document what is being alleged. In particular, the Tribunal notes that there is no reference to data protection within this letter and nothing within the letter which could lead the reader of the letter to appreciate that this is what was being said. In the Claimant's witness statement paragraph 72 he says that the letter raises a protected disclosure, including "that the widespread nature of the access rights of all users of the Tiara system could lead to the abuse of the system and data protection breaches". The Tribunal accepts that the letter does refer to potential abuses of the system. However, it does not refer explicitly or implicitly to breach of data protection legislation. For example, the Claimant doesn't say that the users of the system are not authorised.
85. The Tribunal also referred to the witness statement of Ms Rose. However, as with the Claimant's witness statement, although she makes mention of various breaches, on a reading of the letters itself the Tribunal does not accept that the Claimant has raised issues of fraud, breach of legal obligation, health and safety of patients being ultimately affected or deliberate concealment."
Conclusion on Ground 3: Disclosure 9
Ground 3: Disclosure 13
Conclusion on Ground 3: Disclosure 13
Ground 3: Disclosure 16
"118. … Even if the Tribunal had accepted this as another disclosure relied on by the Claimant, the Tribunal does not find the email of 15 October 2013 to be a protected disclosure in any event as whilst it provides information, it does not show information that tends to show breach of a legal obligation, that health and safety is being compromised or concealment. It is simply highlighting a problem which needs to be investigated. Similarly, the email dated 16 October 2013 (which was identified as a protected disclosure on the Claimant's schedule) does not refer to any breach of legal duties, fraud, health and safety issues or concealment. As the Respondent submits this is just a narrative of stroke patient data. The Claimant does not expand further in his witness statement about this disclosure and the Tribunal finds that it is not protected."
Conclusion on Ground 3: Disclosure 16
Perversity
Ground 10: Disclosures 1 and 2
"I need to know if in the physiotherapy services we are going to need to register all referrals, regardless of patients having therapy or not.
As it stands in my team we only get the slips come through for patients that have had their treatment started, and those patients that have been referred by GP, consultant or any other source that do not make appointment or don't get a reply to letters sent out to them do not get registered, hence this does not show the true figure of referrals and also I'm not able to give report on what number of patients not ever attending.
I need you to let me know that we should be registering all patients, so I can get the department to listen to me."
"Kathryn this email is absolutely confidential to you only.
I believe you are meeting Robert Jones on Monday 12th.
As IM&T manager of therapy services I do strongly believe that all referrals that therapy services received should be recorded on to tiara in-house system, regardless of if any appointment with first contact comes out of it or not, I have already set up data integrity for capturing all correct data and separating referrals with appointments and ones that never do attend.
This will allow main I-house system (Tiara) provide all information that will be needed by all directorates of the trust, i.e. finance reasons or legal reasons.
My feeling is that Robert and Paul will resist this as they may not want the true figures to be known for some reasons, …"
"Thanks for this - I have said it as part of the report that all referrals should be recorded and that clarification has to be provided on this as both a patient and a financial requirement.
I'm bringing one of my managers with me and I believe he will want to have all referrals recorded also like me. Would you be happy if he came with me to see you after or would you prefer he would not?"
"Hi Kathryn,
Thank you for your reply.
Yes I have seen it on your recommendation and agree totally with it. But as I said, they don't seem to want to keep proper and correct (accurate information on number of referrals that is received also which will end up showing how long it has taken form patients referral received to patient having had their first appointment (treatment) [sic].
If you feel what we may discus can stay confidential, than I don mind if one of your managers comes as well [sic]."
"… In particular on 9 March 2007 I expressed concerns in an email about data integrity and my belief that Robert Jones and Paul Phillips, Superintendent Physiotherapist Out-patients, would resist the true waiting list figures for Therapy Services (including the high number of duplicate referrals where a GP would refer a patient who had not been seen, a second time) from being known."
See also the like terms of the Claimant's witness statement (paragraph 42).
"… The Tribunal first looked to see if there is anything in any these emails [sic] which would tend to show fraud, breach of legal obligation, that the health and safety of patients would ultimately be affected or deliberate concealment. The Tribunal does not find that the emails show this either explicitly or implicitly and therefore find that these emails whether taken individually or collectively cannot amount to a protected disclosure."
Conclusion on Ground 10: Disclosures 1 and 2
Ground 11: Disclosure 5
"… because she was the person who met with the Claimant on 30 August, 2007 and the next day the Claimant sent an email to Ms Green: "I forgot to mention that around 3rd of May 2007 I had a meeting with CHRISTIAN LIPPIATT at conquest site, with regard to my issue with Robert Jones and the Activity Sample Application (database), as I needed some advice. If you like, you can speak to him with regard to this matter. Apologies for forgetting to say this yesterday.""
"Underlying all of this was the Respondent's investigation into the Activity Database led by SCA, which further contributed to the breakdown in the working relationship between myself and Robert Jones. I was asked to attend a confidential meeting with Monica Green, Jane Darling and Jane Simkins, which took place on 30 August 2007. This meeting was to discuss a number of my disclosures and after it I was thanked for my openness. I was assured that I would be fully protected as a whistleblower and was asked to keep my disclosures confidential whilst the investigation continued. In common with the majority of meetings held with the Respondent to discuss these issues, no notes or minutes were ever taken or if they were they were never circulated to me. No documents have been disclosed to me in response to a Data Subject Access Request submitted on my behalf by my solicitors on 29 May 2015 … despite them expressly being asked for …"
The POC were in virtually the same terms: paragraph 11.5. The ET's findings on disclosure 3 could not be used to convert alleged disclosure 5 into a protected disclosure.
Conclusion on Ground 11: Disclosure 5
Ground 12: Disclosure 6
"On 6 September, 2007 I reported this issue to John Butler, local counter-fraud specialist, at SCA. I was also asked by him to supply data concerning registrations and appointments in the Department (as well as other information) on an ongoing monthly basis."
"… This does not assist the Tribunal in establishing what the Claimant actually said to Mr Butler and whether what was said, could amount to a protected disclosure. Therefore, the Tribunal looked to see if there was any other documentary evidence which could shed light on what was said during the Claimant's meeting with Mr Butler."
"At the time of handover of database, Sissan requested written confirmation of the East Sussex Hospital and the Devon PCT business case approval and what if any financial payment East Sussex Hospital would be receiving for its use.
As Nasser Sissan did not receive the requested approval, he put a time capsule on the database to prevent any long term unauthorised use.
When the time capsule operated in June 2007, there were a number of emails from people within the Devon PCT regarding their denied access.
The emails were not replied to by Nasser Sissan.
These were not followed up or challenged by the subject, which would normally be the expected action of a manager.
The subject stated that it was in April 2007 that he decided not to proceed with the database as originally planned and informed Devon after 8th August 2007 that the database would not be available."
"7. The trust to consider disciplinary action with regard to the breaches of trust policies and use of intellectual property of the Trust for personal gain.
8. Advice to be sought by the Local Counter Fraud Specialist regarding criminal action in connection with the subjects' [sic] private use of intellectual property by way of the trust developed database and or abuse of position."
Conclusion on Ground 12: Disclosure 6
Ground 13: Disclosure 7
Hi John,
As I had mentioned in our meeting the other day, there was query from Jane Morris with regard to business case that Robert Jones has put forward for consultant physiotherapist (conquest hospital proposal), with regard to number of patients and number of contacts that our Eastbourne physiotherapist consultant has seen number of patients and number of contacts, this I believe was in order to justify for need to have the same for Hastings (conquest hospital).
I am forwarding you my reply to Jane Morris query."
"69. The Tribunal considered the contents of Mr Butler's report under the heading "Consultant Post Proposal". However, this did not take the Tribunal any further in establishing whether a disclosure was made. The only conclusion reached on this by Mr Butler was that the figures provided by Dr Jones appeared to be factually incorrect as the true figures were less than half of those stated but no reason for this was attributed i.e. fraud, breach of legal obligation, that the health and safety of patients was ultimately affected or deliberate concealment.
70. The Tribunal's finding is that on the evidence before it, it cannot conclude that this was a protected disclosure. The email to Mr Butler of the 6 September, 2007 is simply supplying information making no assertions of fraud legal obligation, and safety of patients being ultimately affected or deliberate concealment. The Claimant disclosed the email he had sent to Jane Morris (disclosure four), which the Tribunal has found is not a protected disclosure. It was also not a protected disclosure when he sent it to Mr Butler."
Conclusion on Ground 13: Disclosure 7
The Preliminary Objection
Conclusion
Note 1 These words inserted with effect from 25 June 2013, except in relation to a qualifying disclosure made before that date. [Back] Note 2 The requirement of good faith being relevant only to the alleged disclosures before 25 June 2013. [Back]