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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Riley v Belmont Green Finance Ltd (t/a Vida Homeloans) (VICTIMISATION DISCRIMINATION–- Whistleblowing- Perversity) [2020] UKEAT 0133_19_1303 (13 March 2020) URL: https://www.bailii.org/uk/cases/UKEAT/2020/0133_19_1303.html Cite as: [2020] UKEAT 0133_19_1303, [2020] UKEAT 133_19_1303 |
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At the Tribunal | |
On 5 November 2019 | |
Before
MATHEW GULLICK, DEPUTY JUDGE OF THE HIGH COURT
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR CHRISTOPHER RILEY (the Appellant in person) |
For the Respondent | MR JAMES LADDIE (one of Her Majesty's Counsel) Instructed by: Torque Law 2 Maple House Northminster Business Park York YO26 6QW |
SUMMARY
VICTIMISATION DISCRIMINATION – Whistleblowing
PRACTICE AND PROCEDURE - Perversity
The Claimant was a worker employed by the Respondent on a temporary assignment. On 14 March 2017, the Respondent terminated the assignment with immediate effect. There had been a meeting the previous day between the Claimant and one of the Respondent's managers. The Claimant had made several complaints at the meeting. He contended that they amounted to protected disclosures under Part IVA of the Employment Rights Act 1996 and that the Respondent's subsequent actions amounted to unlawful detriments on the grounds of his having made those disclosures. The Employment Tribunal dismissed the Claimant's claim, finding that no qualifying disclosures had been made at the meeting and, in the alternative, on the basis of causation. On appeal, the Employment Appeal Tribunal dismissed the appeal and held that:
MATHEW GULLICK, DEPUTY JUDGE OF THE HIGH COURT
Introduction
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 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,…"
"(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."
Factual background
a. The Claimant and Mr Todd had a conversation in the office, approximately 30 minutes prior to the meeting. Mr Cragg, another Rockstead consultant, was also present. Mr Todd thought that the Claimant had been rude and abrupt in response to a question that he had been asked. He therefore approached the Claimant and asked to have a word in a private office.
b. In the subsequent meeting, the Claimant was angry and frustrated. He made a number of complaints about the Respondent and said that if he was asked to extend his contract with the Respondent again then he would not want to.
c. There was a dispute between the Claimant and Mr Todd as to what was said by the Claimant in the meeting. It was, however, agreed that the Claimant had made some complaints about working for the Respondent. Those complaints included occasions on which work had allegedly been wrongly allocated to the Claimant or to other Rockstead consultants which the Claimant felt would be better dealt with by other consultants. The Claimant also complained about his telephone not working and not being fixed despite him reporting it several times. The Tribunal also found that the Claimant had complained about the Respondent's IT systems and processing. He had experienced problems with the system "freezing", preventing him from processing cases, and he had recorded this in emails on a number of occasions.
d. The Claimant alleged that he had made further complaints to Mr Todd in the meeting. Specifically, the Claimant alleged that he had complained that inexperienced personnel were actively involved in reviewing cases without supervision and that he had reported concerns over the Respondent's lending practices, which he believed were in breach of relevant regulatory requirements. In particular, the Claimant said that he had reported his concern about the Respondent's practice of lending to applicants with a history of arrears or with County Court judgments (CCJs) against them. Mr Todd's evidence was that the Claimant did not raise any concerns about lending procedures, inexperienced personnel, the policy on lending to those with CCJs or the Financial Conduct Authority's (FCA's) "Treating Customers Fairly" principles. Mr Todd also gave evidence that the Claimant did not say in the meeting that he believed the Respondent had breached any regulations, code or policy.
e. The Employment Tribunal preferred the evidence of Mr Todd on these matters. It found on the balance of probabilities that the Claimant had not made the specific complaints about lending procedures, inexperienced personnel or lending to applicants with a poor credit history that he claimed he had done and that he had not raised any allegation that there had been a breach of FCA principles, regulations, code or policy.
"32. In reaching this conclusion we took into account Mr Todd's email summary of 27 March 2017 and the fact that Mr Todd's statement is consistent with this.
33. In relation to the claimant's account, we noted first that at a meeting on 31 January 2017 with Mr Weatherill, the claimant said that the respondent had a nice culture and when asked about whistleblowing, he said there was nothing of concern. His account of the meeting itself was not consistent; new elements were introduced in his witness statement when compared with the account he gave of the meeting in his ET1 and the account he gave Mr Weatherill. Further, his evidence about other aspects of the meeting changed, including the date on which it took place, and the timing/location of the exchange with Mr Cragg.
34. We also took into account the evidence of Mr Weatherill as to what he was told by Mr Todd and by the claimant about what was said at the meeting. He discussed this with them both (separately) the following day. We noted the reference in his note on page 303 to having been told by Mr Todd that the claimant had made 'derogatory comments about [the respondent's] processes, practices and handling of regulatory matters'. However, Mr Weatherill's evidence, which we accept, was that Mr Todd did not mention any discussion regarding the respondent's lending practices specifically and that the claimant said his complaints about the respondent were about not meeting service standards (turnaround times) and his broken phone.
35. In addition, we took into account the fact that Mr Todd followed up after the meeting on complaints the claimant made. An email giving more detail about the work allocation complaint was sent by the claimant after the meeting at Mr Todd's request and was promptly responded to by Mr Todd in a manner that was supportive of the claimant's point of view. Similarly, immediately after the conversation with the claimant, Mr Todd went to the IT department to try to resolve the problems with the claimant's phone.
36. Against that background, it seems very likely that if other serious issues have been raised as alleged by the claimant, Mr Todd would have asked the claimant for more details about them, followed them up or try to deal with them in some way, as he did the complaints about work allocation on the phone, but there is no evidence of this.
37. Equally, it is clear that the claimant was comfortable following up after the meeting by sending an email with details of his complaint about work allocation to Mr Todd. If he had made other complaints as well, we might have expected it would mention them in the email, or to email Mr Todd separately about them. However, there was no such follow-up in writing by the claimant.
38. For these reasons, we conclude on the balance of probabilities that the claimant did not make specific complaints about lending procedures, inexperienced personnel or lending to applicants with a history of CCJ's and did not say that he believed that there had been breaches of any FCA principles, regulations, code or policy."
"46. We find that the reason the respondent decided to terminate the claimant's assignment was because of the claimant's attitude and manner in the meeting with Mr Todd on 13 March 2017 at which had been generally negative and dismissive about the respondent, including saying he would not want to extend his assignment with them, and because Mr Todd and Mr Botting were unhappy with the way in which the claimant had dealt with staff (Mr Cragg and two others).
47. If the respondent decided to dismiss the claimant because of protected disclosures made during the meeting on 13 March 2017, it seems unlikely that Mr Todd would have followed up after the meeting on the work allocation and IT issues raised by the claimant."
"67. However, we also need to consider whether the claimant made a qualifying disclosure within the meaning of section 43B. The claimant said he disclosed information which was in the public interest which tended to show that the respondent had failed, was failing was likely to fail to comply with any legal obligation to which it was subject. He referred to Financial Conduct Authority principles for business and responsible lending rules.
68. For the reasons set out above and on the balance of probabilities, we have found that the claimant did not make specific complaints to Mr Todd about lending procedures, inexperienced personnel or lending to applicants with a history of CCJs and did not say that he believed that there had been breaches of any FCA principles, regulations, code or policy.
69. We have found that the claimant did make complaints to Mr Todd but that these concerned working practices and procedures more generally, such as problems of the system freezing, occasions on which work been wrongly allocated to him or to Rockstead consultants and the fact that the claimant's phone was not working and had not been fixed.
70. The information which we have found that the claimant disclosed to Mr Todd did not tend to show the respondent had failed, was failing was likely to fail to comply with any legal obligation to which it was subject. The complaints made by the claimant were complaints about problems he had experienced when working for the respondent arising from IT and systems issues and work allocation. These did not amount to qualifying or protected disclosures. In reaching this conclusion we have had in mind that it is for the claimant to prove on the balance of probabilities that he made a protected disclosure. We do not consider that he has done so."
"77. We found these decisions were taken by Mr Todd and Mr Botting not because of any information provided by the claimant in the meeting on 13 March 2017 but because of the claimant's manner in the meeting which was generally negative and dismissive about the respondent and because Mr Todd and Mr Botting were unhappy with the way in which the claimant had dealt with staff (Mr Cragg and two others).
78. Therefore, if we had found the claimant had made any protected disclosures on 13 March 2017, we would not conclude that he was subjected to any detriment by the respondent on the ground of those disclosures."
"1. A firm must conduct its business with integrity.
2. A firm must conduct its business with due skill, care and diligence.
3. A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems.
4. A firm must maintain adequate financial resources.
5. A firm must observe proper standards of market conduct.
6. A firm must pay due regard to the interests of its customers and treat them fairly.
7. A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading.
8. A firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client.
9. A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment.
10. A firm must arrange adequate protection for clients' assets when it is responsible for them.
11. A firm must deal with its regulators in an open and cooperative way, and must disclose to the FCA appropriately anything relating to the firm of which that regulator would reasonably expect notice."
The Grounds of Appeal
a. that the Employment Tribunal reached a perverse finding about what the Claimant had disclosed to Mr Todd (Ground 1);
b. that the Employment Tribunal erred in law in failing to consider whether, even on the findings it had made about what the Claimant had disclosed, he had established that this was information which tended to show a failure to comply with a legal obligation (Ground 2);
c. that the Employment Tribunal had erred in law in its approach to the issue of causation (Ground 3).
Ground 1 – perversity
"… We have shared with you today our Clients [sic] view of the situation, including but not limited to the following:-
Objection to you voicing issue with the manner in which they operate; your derogatory comments about their processes, practises [sic] and handling of regulatory matters
Being disruptive in the workplace resulting in a negative impact this has on productivity and performance, coupled with short remaining tenure of their need for your services
Their request that you be removed immediately from the project and their site…"
"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care"…"
Ground 3 – causation
"49. First, as a matter of statutory construction, section 47B of ERA does not prohibit the drawing of a distinction between the making of protected disclosures and the manner or way in which an employee goes about the process of dealing with protected disclosures. A protected disclosure is "any disclosure of information" which in the reasonable belief of the employee tends to show the existence of one of the state of affairs specified in section 43B(1) of ERA, e.g. that a criminal offence has been or is being committed or that a person is failing or is likely to fail to comply with a legal obligation or that a miscarriage of justice has occurred, is occurring or is likely to occur. There is, in principle, a distinction between the disclosure of information and the manner or way in which the information is disclosed. An example would be the disclosing of information by using racist or otherwise abusive language. Depending on the circumstances, it may be permissible to distinguish between the disclosure of the information and the manner or way in which it was disclosed. An employer may be able to say that the fact that the employee disclosed particular information played no part in a decision to subject the employee to the detriment but the offensive or abusive way in which the employee conveyed the information was considered to be unacceptable. Similarly, it is also possible, depending on the circumstances for a distinction to be drawn between the disclosure of the information and the steps taken by the employee in relation to the information disclosed.
50. Secondly, that distinction accords with the existing case law which recognises that a factor which is related to the disclosure may be separable from the actual act of disclosing the information itself. In Bolton School v Evans [2007] ICR 641, the Court of Appeal recognised a distinction between disclosing information – in that case, that the school's computer system was not secure - and the fact that the employee hacked into the computer system in order to demonstrate that the system was not secure. Disciplining the employee on the ground that he had engaged in unauthorised misconduct by hacking into the computer system did not involve subjecting the employee to a detriment on the grounds that he had made a protected disclosure. The conduct, although related to the disclosure, was separable from it. The Court of Appeal noted, however, that a "tribunal should look with care at arguments that say that the dismissal was because of acts related to the disclosure rather than because of the disclosure itself" (see the comments of Buxton LJ at [2007] ICR 641 at paragraph 18).
51. The Employment Appeal Tribunal reached a similar conclusion in Martin v Devonshires Solicitors [2011] ICR 352. That case concerned discrimination contrary to section 4 of the Sex Discrimination Act 1975 (essentially victimisation of a person for doing a protected act) rather than the provisions governing protected disclosures under ERA. The principle is, however, similar. The appellant in that case had made allegations of sex discrimination against two partners in the firm of solicitors involved. The statements were in fact untrue. However, the appellant, who had mental health difficulties, did not appreciate that they were untrue. The fact that the appellant had done protected acts, in that case making complaints of sex discrimination, formed part of the facts leading to her dismissal. The reason why the employer dismissed the appellant, however, was not the making of those complaints but rather the fact that the complaints involved false allegations which were serious, that they were repeated, that the appellant refused to accept that they were untrue and that she had a mental condition which was likely to lead to unacceptably disruptive conduct in future. The reason for the dismissal was that the appellant was mentally ill and the management problems to which that gave rise. The Employment Appeal Tribunal accepted that the reason for the dismissal constituted:
"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."
52. Those authorities demonstrate that, in certain circumstances, it will be permissible to separate out factors or consequences following from the making of a protected disclosure from the making of the protected disclosure itself. The employment tribunal will, however, need to ensure that the factors relied upon are genuinely separable from the fact of making the protected disclosure and are in fact the reasons why the employer acted as it did."
"54. … In the context of protected disclosures, the question is whether the factors relied upon by the employer can properly be treated as separable from the making of protected disclosures and if so, whether those factors were, in fact, the reasons why the employer acted as he did. In considering that question a tribunal will bear in mind the importance of ensuring that the factors relied upon are genuinely separable and the observations in paragraph of 22 of the decision in Martin v Devonshire Solicitors [2007] ICR 352 that:
"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 [sic] 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."
a. the Claimant's tone in the meeting on 13 March 2017 was "angry and frustrated" (paragraph 22 of the Reasons);
b. on 14 March, Mr Todd told Mr Botting that the Claimant had been "derogatory about the Respondent" (paragraph 41 of the Reasons);
c. the Claimant had been "generally negative and dismissive" about the Respondent in the meeting on 13 March (paragraph 77 of the Reasons).
Ground 2 – whether on the Tribunal's findings the Claimant raised qualifying disclosures
a. that work had been wrongly allocated to the Claimant or to other Rockstead consultants which the Claimant considered would be better dealt with by other consultants;
b. that the Claimant's phone did not work and had not been fixed despite his requests;
c. that the Claimant had experienced problems with the Respondent's IT systems, preventing him from processing customer cases.
"46. In my judgment it is not obvious that not informing a client of the identity of the person whom they are dealing if the employee is trading from another person's computer is, as in Bolton, plainly a breach of a legal obligation. That being so, in order to fall within ERA section 43B(1)(b), as explained in Blackbay the ET should have identified the source of the legal obligation to which the Claimant believed Mr Ashton or the Respondent were subject and how they had failed to comply with it. The identification of the obligation does not have to be detailed or precise but it must be more that a belief that certain actions are wrong. Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation. However, in my judgment the ET failed to decide whether and if so what legal obligation the Claimant believed to have been breached.
47. The decision of the ET as to the nature of the legal obligation the Claimant believed to have been breached is a necessary precursor to the decision as to the reasonableness of the Claimant's belief that a legal obligation has not been complied with. Whilst the judgment of the ET has to be read as a whole without applying a fine tooth comb to it to detect faults, in my judgment on a fair reading, this ET failed to identify a legal as opposed to a moral or lesser obligation which the Claimant believed had been broken by Mr Ashton."
The reference to Blackbay is to the judgment of this Tribunal in Blackbay Ventures Ltd v Gahir [2014] IRLR 416 at [98] where it was stated:
"Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation…"
"60. In its section on the law, the ET also correctly noted the authorities which make clear, in respect of section 43B(1)(b), that the disclosure does not need to identify in strict legal language the legal obligation on which the whistleblower is relying; and that the potential legal liability may be obvious and/or a matter of common sense from the information provided: paragraphs 16 to 17 citing Fincham and Bolton School. That the ET took the same correct approach in respect of the other categories in section 43B(1) is apparent e.g. from the 'common sense' approach which it took in reaching its conclusion that disclosures 3 and 18 were protected: paragraphs 49 and 128.
61. These examples equally demonstrate that the ET did not confuse the specificity which is required (i) within the disclosure and (ii) before the tribunal…
62. In any event, I see no basis on which the ET could have come to any different conclusion on the material and case before it. As to section 43B(1)(b), the Claimant's case was that it was 'obvious' that the information tended to show breach of a legal obligation (Schedule) and/or that in his reasonable belief it tended to show data protection breaches (POC and FBP). An assertion of obviousness has to be tested against the ability to identify, before the Tribunal, the legal obligation(s) in question. The ET rightly concluded that the letter did not refer explicitly or implicitly to breach of data protection legislation; nor was any breach of legal obligation obvious. There was nothing in the case before the Tribunal which provided anything more specific."
Conclusion