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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ibrahim v HCA International Ltd  EWCA Civ 2007 (19 November 2019)
Cite as:  EWCA Civ 2007,  IRLR 224
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HER HONOUR JUDGE STACEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BAKER
LORD JUSTICE DINGEMANS
| SAMIR IBRAHIM
|- and -
|HCA INTERNATIONAL LIMITED
Keith Bryant QC (instructed by HCA Healthcare) for the Respondent
Hearing date: 7 November 2019
Crown Copyright ©
Lord Justice Bean :
Whistleblowing: section 43B of the 1996 Act
"(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."
"9.3 In his grievances of 15 and 22 March 2016, was information disclosed which in the Claimant's reasonable belief tended to show one of the following?
9.3.1 An unidentified person had failed to comply with a legal obligation to keep patient information confidential;
9.3.2 A miscarriage of justice had occurred in that the claimant had been falsely accused.
9.4 If so, did the Claimant reasonably believe that the disclosure was made in the public interest?"
The events of March 2016
"43. On 15th March 2016 the claimant met with Lesley Pope, the Director of Rehabilitation. The claimant asked her to investigate two issues that he was concerned about. The first was his belief that there were rumours that he (the claimant) had been involved in a breach or breaches of patient confidentiality, and the second was that that Ilham Mohammed had behaved in an unprofessional manner towards him.
44. On 16th March the claimant sent an email to Lesley Pope to follow up on their meeting the previous day. In that email he wrote:-
"…I would like you to launch a formal investigation into the following two matters, which might be linked to each other or totally different matters, only an investigation will tell!
First, to investigate into the rumours among the International patients and their families about my confidentiality and performance (I informed you before that I was blamed by some families for disclosing patients confidential information, but unfortunately they refused to make a complaint against me, although I tried with them to do so. I explained to you that I cannot accept this as a settlement and I need to clear my name otherwise I will not be able to do my work properly.
Second, I told you that I had a feeling that I was 'kicked out of my office' and as the time passes my feeling gets stronger and stronger. I accused Ilham of a major misconduct i.e. She took an action against me without giving me the chance to defend myself, and that she has been slandering me to my colleagues"
45. Lesley Pope referred the matter to the respondent's HR team. On 22nd March Sheila Johnson, Chief Human Resources Officer, met with the claimant and Nezha Elbassri. The claimant told Ms Johnson that he felt degraded, humiliated, shocked and confused, and that he believed there were rumours among patients and their families that he had been leaking patients' confidential information. He told her he wanted to clear his name and restore his reputation. Ms Johnson asked the claimant to prepare a document setting out the concerns that had been raised, and told him that she would then start an investigation.
46. The claimant wrote to Ms Johnson on 28th March summarising his main concerns as being– "the rumours around the hospital accusing me of breaching the patient confidentiality policy" and "my relationship with my line manager – Ilham". He went on to describe Ilham's behaviour and actions as "totally unacceptable", and to allege that "she showed me very clearly that I am no longer welcome in the International Relations Office" and "I was treated as if I were a disgrace to my department".
47. The claimant ended his email to Lesley Pope by saying that he wanted to raise a formal grievance.
48. David McIntosh, Consultant Liaison Manager, was appointed to investigate the claimant's complaint. The complaint was not upheld."
The findings of the ET
"124. The matters complained of by the claimant were that:-
124.1. He was the subject of false rumours that he had breached patient confidentiality; and that
124.2. Ilham Mohamed had behaved badly towards him.
125. In relation to the first allegation, the Tribunal accepts the respondent's submissions that complaining that false rumours have been made does not amount to a disclosure of information tending to show that someone has breached a legal obligation or that there has been a miscarriage of justice. The claimant has not identified any legal obligation that may have been breached when the false rumours were made, if indeed they were made.
126. The Tribunal does not consider that false rumours are capable of amounting to a miscarriage of justice in the circumstances of this case.
127. In relation to the second allegation, a suggestion that a manager has behaved badly could potentially amount to a disclosure of information tending to show that the manager has breached a legal obligation, but in this case it does not. As the claimant was not employed by the respondent there was no implied duty of trust and confidence and the claimant's contract could have been terminated at any time without notice.
128. In any event, the disclosures that were made by the claimant were not made in the public interest, but rather they were made with a view to the claimant clearing his name and re-establishing his reputation."
After referring to the decision of this court in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed  EWCA Civ 979, which had been handed down since the oral hearing in the ET, EJ Ayre concluded :-
"130. Whilst the Tribunal accepts that disclosure of information tending to show that patient confidentiality has been breached would be a matter of public interest, the claimant did not disclose information tending to show that patient confidentiality had been breached. Rather, he complained that others had falsely accused him of breaching patient confidentiality.
131. The disclosures were not made in the public interest, but rather with a view to clearing the claimant's name."
The appeal to the Employment Appeal Tribunal
"I agree that the Tribunal's conclusions could have been more clearly expressed and it would have been helpful if they had firstly addressed the Claimant's subjective belief by reference to the guidance in paragraphs 26-31 of Chesterton and separately considered if the subjective belief was reasonable, as suggested by Ms Grace. But it is clear from the body of their judgment that they found against the Claimant in relation to his subjective belief in the public interest of his disclosure. That was a decision open to them on the evidence in this case."
The appeal to this court
"It is arguable that the ET did not address satisfactorily the question whether the applicant believed that his disclosure (that he was being accused or suspected of leaking confidential information about patients) was in the public interest or that such belief was reasonable or that the EAT did not remedy that deficiency."
"(a) evidence given on the issue of concerns as to confidentiality and relating to whether disclosure was believed to be in the public interest and/or what he had in mind when making the disclosures;
(b) evidence as to the context, and concerns raised with the Appellant including by patients and their families as to breach of confidentiality and as to whether the matter was being addressed by the hospital.
(c) evidence as to what was said during the meetings on 15 and 22 March 2016 and on the hearing of the Appellant's grievance in relation to the disclosures on 13 April 2016.
(d) evidence given in relation to the emails of 16 March 2016 (referred to at ET Reasons para. 44) and 22 March 2016 (referred to at ET Reasons para. 46)."
The Chesterton case
"27. First, and at the risk of stating the obvious, the words added by the 2013 Act fit into the structure of section 43B…... 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" 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.
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….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 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.
36. ………The statutory criterion of what is "in the public interest" does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be. I am not prepared to rule out the possibility that the disclosure of a breach of a worker's contract of the Parkins v Sodexho kind may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. I would certainly expect employment tribunals to be cautious about reaching such a conclusion, because the broad intent behind the amendment of section 43B (1) is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers – even, as I have held, where more than one worker is involved. But I am not prepared to say never. In practice, however, the question may not often arise in that stark form. The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest.
37. Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B (1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. Mr Reade's example of doctors' hours is particularly obvious, but there may be many other kinds of case where it may reasonably be thought that such a disclosure was in the public interest. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but Mr Laddie's fourfold classification of relevant factors which I have reproduced at para. 34 above may be a useful tool. As he says, the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph."
The parties' submissions in this court
(a) The disclosures were that the Claimant was being defamed by false rumours about a breach of patient confidentiality. They did not concern any actual breach of patient confidentiality, nor did the Claimant express a belief that such a breach occurred.
(b) The ET was entitled to find that the Claimant's only subjective belief, at the time he made the disclosures, was that he wanted to clear his name and restore his reputation. When the ET held that the Claimant made the disclosures "with a view" to clearing his name, it was not confining itself to an assessment of the Claimant's motive, but instead referring to the extent of the Claimant's subjective belief.
Lord Justice Baker:
Lord Justice Dingemans:
IN THE COURT OF APPEAL (CIVIL DIVISION) Case No. A2/2019/0302
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
B E T W E E N:
UPON THE HEARING OF THE APPEAL:
IT IS ORDERED that:
2.1 pursuant to CPR 46.5 and Practice Direction 46 paragraph 3.4, the sum summarily assessed at £950.00 in respect of costs incurred as a litigant in person; and
2.2 the sum of £1,130.00 in respect of disbursements incurred.
Dated this 19th day of November 2019