![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Meares v. Medway Primary Care Trust [2010] UKEAT 0065_10_0712 (7 December 2010) URL: https://www.bailii.org/uk/cases/UKEAT/2010/0065_10_0712.html Cite as: [2010] UKEAT 65_10_712, [2010] UKEAT 0065_10_0712 |
[New search] [View without highlighting] [Printable RTF version] [Help]
At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF
MR D EVANS CBE
MR J MALLENDER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR PETER KIRBY (of Counsel) |
For the Respondent | MR ROBERT MORETTO (of Counsel) Instructed by: Messrs Capsticks Solicitors LLP 77-83 Upper Richmond Road London SW15 2TT |
SUMMARY
VICTIM DISCRIMINATION – Protected disclosure
CONTRACT OF EMPLOYMENT – Mitigation
An Employment Tribunal held that when the Claimant wrote a letter complaining amongst several other matters in a tirade of vehement comment that staff had been bullied and harassed she had not been making a protected disclosure: because the letter had been written to undermine her line manager, out of feelings of antagonism toward her, it was for an ulterior purpose. The two grounds of appeal against this were dismissed: the first was that the Tribunal should have considered what the relative strengths of the motivations were which caused the Claimant to write the letter. It was held unnecessary that a Tribunal should do more than determine whether a disclosure was made "in good faith" as that phrase had been interpreted in Street v Derbyshire Unemployed Workers Centre. The second was that an allegation of bad faith should have been put specifically to the Claimant not only at the hearing but sufficiently in advance of it so that she was not surprised by it when giving evidence. This was held unnecessary for a fair hearing, where the substance of the allegation was put in circumstances where the Claimant had a proper opportunity to rebut or explain it.
THE HONOURABLE MR JUSTICE LANGSTAFF
"I will not be bullied and harassed by you, or anyone else, for your or their self- aggrandisement."
At a later point the Claimant wrote:
"I think that there is much more to this than meets the eye, by your insinuations, arrogance and just plain nastiness you and other staff have managed to make most of the old Meddoc nurses leave the PCT…the couple of them that are left are easily bullied, manipulated or whatever you want to call it. I AM NOT ONE OF THEM and I have absolutely no intention of becoming a "victim" like the others."
The letter ended:
"You will be hearing from me in the very near future."
"The Tribunal noted that the letter clearly, at one point, refers to bullying and harassment by Mrs Cable. When given the opportunity in cross-examination to explain what she had meant by the letter, the Claimant was unable to produce an explanation. The Tribunal noted that in response to many questions the Claimant's response was that she could not remember these events because they had happened so long ago. She appeared to be fairly indignant that she was being asked about these events. The Tribunal noted that although bullying and harassment is mentioned, it is buried within a tirade of complaints against Mrs Cable and her letter about the claimant being late for a number sessions. The Tribunal found that if the Claimant seriously considered that she was being bullied and harassed by Mrs Cable, she would have complained to Mrs Cable's manager in line with the Respondent's grievance procedure."
We interpose there to note that Mr Moretto, for the employer, says that here the Tribunal was finding that the Claimant did not seriously consider that she had indeed been bullied and harassed: that is certainly a reading of the sentence, and it appears to represent what the Tribunal had in mind.
Paragraph 33 continued:
"The Tribunal considered the case of Street v Derbyshire Unemployed Workers Centre [2004] IRLR 687, produced by the Respondent. The Tribunal considered firstly whether there had been a disclosure of information which in the reasonable belief of the Claimant tended to show that a criminal offence had been committed, that a person had failed to comply with any legal obligation to which he was subject and/or that the Claimant's health or safety was being endangered. Clearly, the Claimant was complaining about the way in which she considered her manager had treated her. It appeared to the Tribunal that the Claimant had a belief that she had been treated badly by Mrs Cable and so to that extent, the Tribunal found that the letter could fall within the definition of a qualifying disclosure, although the Tribunal had some doubts as to whether it was a reasonable belief.
34 The disclosure was made pursuant to Section 43C. It must therefore be made in good faith to the employer. The Tribunal accepted that the Claimant's manager could, for these purposes, be her employer. However, the Tribunal was not convinced that the disclosure was made in good faith. The Tribunal found that, taking the whole of the contents of that letter into account, the disclosure was not made in good faith but was, as in the case of Street, motivated by the Claimant's personal antagonism towards Mrs Cable. Had the complaint been made in good faith because the Claimant genuinely believed that she was being bullied and harassed, the Tribunal found that she would have complained to Mrs Cable's manager and/or would have followed the grievance procedure, again by writing to Mrs Cable's manager.
35 For all of those reasons, the Tribunal was satisfied that the letter of 11 May 2007 was not a protected disclosure."
The Law
"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 then deals with qualifying disclosures. Headed "Disclosures qualifying for protection", the statute reads:
(1) "In this Part a "qualifying disclosure" means any disclosure of any information which, in the reasonable belief of the worker making the disclosure, 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,
…
(d) that the health or safety of any individual has been, is being or is likely to be endangered..."
The rest of the section is irrelevant for present purposes. Section 43C which, as we have noted, was in issue here, is headed "Disclosure to employer or other responsible person". It reads:
(1) "A qualifying disclosure is made in accordance with this section if the worker makes a disclosure in good faith:
(a) to his employer…"
"In considering good faith as distinct from reasonable belief in the truth of the disclosure, it is clearly open to an Employment Tribunal, where satisfied as to the latter, to consider nevertheless whether the disclosure was not made in good faith because of some ulterior motive, which may or may not have involved a motivation of personal gain, and/or which, in all the circumstances of the case, may or may not have made the disclosure unreasonable. Whether the nature or degree of any ulterior motive found amounts to bad faith, or whether the motive of personal gain was of such a nature or strength as to 'make the disclosure for purposes of personal gain' or 'in all the circumstances of the case' not reasonable, is equally a matter for its assessment on a broad basis."
"On further reflection, it seems more in keeping with the declared public interest purpose of this legislation, fair and a more useful guide to Employment Tribunals in conducting this sometimes difficult, sometimes straightforward, exercise - depending on the facts - to hold that they should only find that a disclosure was not made in good faith when they are of the view that the dominant or predominant purpose of making it was for some ulterior motive, not that purpose."
"'dominant' or 'predominant' purpose of a disclosure when considering whether it was made in good faith."
"…where, as here, the Employment Tribunal was driven on the evidence to conclude, as it did, that none of Mrs Street's disclosures 'could be regarded as made in good faith, but were instead motivated by…[her] personal antagonism toward Mr Hampton', it is plain, as the Employment Appeal Tribunal stated in paragraph 25 of its judgment, that it found that such personal antagonism was her dominant, if not her sole, motive. In my view, the Employment Appeal Tribunal was right not to interfere with that finding. Looked at against the broader public policy interest behind this legislation, protection of such powerfully motivated disclosures could not be said in the circumstances to serve or encourage subversion of the Act's declared overall purpose of the Act of protecting those 'who make certain disclosures of information in the public interest'."
Lord Justice Wall gave, as we have said, a concurring judgment to which we shall come later in the discussion of the arguments addressed to us.
"I am in no doubt at all that, on the facts of this case, the Employment Tribunal was entitled to reach the conclusion that the disclosures made by the Appellant were not made in good faith but were instead motivated by her personal antagonism towards [her line manager]…"
That was a reflection of the particular conclusion of the Tribunal in that case most clearly referred to by quotation at paragraph 29 of the Appeal judgments. The Tribunal in Street had not asked itself, so it appears, what was the predominant motive. It had investigated what was the motive, had decided it was antagonism, and had concluded that did not meet the statutory requirement of good faith.
"Motivation, however, is a complex concept, and self-evidently a person making a protected disclosure may have mixed motives. He or she is hardly likely to have warm feelings for the person about whom (or the activity about which) disclosure is made. It will, of course, be for the Tribunal to identify those different motives, and nothing in this judgment should derogate from the proposition that the question for the Tribunal at the end of the day as to whether a person was acting in good faith will not be: did the Applicant have mixed motives? It will always be: was the Complainant acting in good faith?"
"In answering this question, however, it seems to me that Tribunals must be free, when examining an Applicant's motivation, to conclude on a given set of facts that he or she had mixed motives, and was not acting in good faith."
The expression that a Tribunal must 'be free' is not a requirement that the Tribunal is bound to consider mixed motivation: it is merely that it is not in error of law if it does, despite the need for the focus to be upon the statutory question of good faith or no.
"If that is correct, how is it to be done? I can see no more satisfactory way of reaching such a conclusion than by finding that the Applicant was not acting in good faith because his or her predominant motivation for disclosing information was not directed to remedying the wrongs identified in section 43B, but was an ulterior motive unrelated to the statutory objectives".
"I suggest the letter wasn't a protected disclosure but was to aggressively rebut Mrs Cable's letter and undermine her and to assert your authority over her."
"There is, in general, no procedural unfairness or injustice in the employment tribunal making findings based on evidence before the employment tribunal, if the parties have had a fair opportunity to address submissions to the tribunal on the substance of the evidence and if there is no real possibility that further submissions would have made any difference to the outcome".
Discussion