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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ibrahim v HCA International Ltd [2018] UKEAT 0105_18_1309 (13 September 2018) URL: https://www.bailii.org/uk/cases/UKEAT/2018/0105_18_1309.html Cite as: [2019] IRLR 690, [2018] UKEAT 0105_18_1309, [2018] UKEAT 105_18_1309 |
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At the Tribunal | |
Before
HER HONOUR JUDGE STACEY
(SITTING ALONE)
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APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS ELIZABETH GRACE (of Counsel) Bar Pro Bono Scheme |
For the Respondent | MR KEITH BRYANT QC (of Counsel) Instructed by: HCA International Limited 242 Marylebone Road London NW1 6JL |
SUMMARY
VICTIMISATION DISCRIMINATION - Whistleblowing
In a whistleblowing claim the issue was whether the Tribunal had correctly interpreted and applied section 43B(1)(b) Employment Rights Act 1996 in two respects; (1) what amounts to an allegation of a breach of a legal obligation and (2) the public interest element in light of the guidance from the Court of Appeal in Chesterton Global Limited (T/A Chestertons) v Nurmohamed [2017] EWCA Civ 979.
The Tribunal erred in concluding that a complaint by an employee that others are falsely blaming him for breaches of confidentiality, of such seriousness that he has to "clear his name", is not a complaint that those others have failed to comply with a legal obligation to which they are subject in accordance with section 43B(1)(b). The provision is broad enough to include tortious duties, including defamation and breach of statutory duty such as those contained in the Defamation Act 2013. It is immaterial that he did not use the legal terminology of defamation when making his disclosure.
However, the Tribunal did not err in its analysis that the disclosure did not meet the public interest test. The Tribunal has to ask itself (a) whether the worker believed at the time that he was making it that the disclosure was in the public interest and (b) if so, whether that belief was reasonable. The Tribunal found that the Claimant did not have a subjective belief in the public interest element of his disclosure - his concern was only that false rumours had been made about him, and the effect of those rumours on him. Those facts were the Tribunal's to make and open to it on the evidence before them. Since the Claimant did not have a subjective belief in the public interest of his disclosure, the Tribunal's enquiry ended there and there was no error in the conclusion that the Claimant had not made a protected disclosure.
Chesterton Global Limited (T/A Chestertons) v Nurmohamed [2017] EWCA Civ 979 followed and applied.
HER HONOUR JUDGE STACEY
"(a). First, this elides the two stages of the public interest test which are, first, whether the worker genuinely believed that the disclosure was in the public interest and, secondly, whether that belief was reasonable. The Tribunal incorrectly applied a different test, namely whether the disclosure was in fact in the public interest.
(b). Secondly, the Tribunal was wrong to rule that the public interest test was failed because the Claimant's motive was to clear his own name. The worker's belief that his disclosure is in the public interest need not form any part of the worker's motivation for making the disclosure: see Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979 at paragraph 30."
"It is reasonably arguable that a complaint by an employee that others are falsely blaming him for breaches of confidentiality, of such seriousness that he has to "clear his name", is a complaint that those others have failed to comply with a legal obligation to which they are subject. It is reasonably arguable that duties which are recognised by the law of tort, such as the duty not to defame, are within the purview of section 43B(1)(b).
Although the Employment Judge correctly summarised the principles in Chesterton Global Limited v Nurmohamed [2017] IRLR 837, it is reasonably arguable that she did not apply them at the point of decision. There does not appear to be a finding whether the Claimant believed the disclosure to be in the public interest or whether it was reasonable to hold this belief. The fact that his motive was to clear his name does not answer these questions. The bare finding that the disclosure was not in the public interest does not on the face of it address the correct questions."
The Tribunal Judgment
"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 there had been a miscarriage of justice in that the claimant had been falsely accused of breaching patient confidentiality."
The Respondent conceded that if the disclosure amounted to a protected disclosure within the meaning of section 43B, it would also have been a qualifying disclosure under section 43C since it had been made to his employer. If the Claimant had been successful at the Preliminary Hearing, the case would have proceeded to a Substantive Hearing to consider if he had been subjected to a detriment on grounds of the protected and qualifying disclosure in accordance with section 47B ERA 1996.
43. On 15th March 2016 the clamant 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 Ilham Mohammed had behaved in an unprofessional manner towards him.
44. On 16 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 and investigation with 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 22 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."
"98. In his written submissions the claimant submits that he made two protected disclosures, the first to Lesley Pope on 15 March 2016 and the second to Sheila Johnson on 22 March 2016.
99. He says that he complained of rumours accusing him of breaching patient confidentiality and that he was 'kicked out' of the International Relations Office.
100. The claimant submits that patient confidentiality is a matter of public interest and the fact that his intention in raising the complaint was to clear his name does not affect this. He referred to MS v Sweden [1999] 28 EHRR 313 as authority for the proposition that the protection of personal data, particularly medical data, is of fundamental importance to a person's enjoyment of his/her right to respect for private and family life, and that respecting the confidentiality of health data is a vital principle.
101. He also submits that the respondent failed to investigate a serious breach of its legal obligation to maintain patient confidentiality.
102. The respondent submits that it is only the first disclosure (15 March 2016) that can be relied on by the claimant.
102. It further submits that the claimant's complaint, in essence, was that there were rumours amongst patients and their families that he had breached patient confidentiality but that he had not done so, and wanted to clear his name and restore his reputation. This does not, in the respondent's submission, amount to disclosure of information tending to show that someone had breached a legal obligation.
104. The respondent says that a rumour, even if untrue, is incapable of tending to show a miscarriage of justice, and that before there can be a miscarriage of justice there must be a judicial determination of a criminal or civil right.
105. The respondent also says that the claimant did not have a reasonable belief that the information he disclosed tended to show a breach of a legal obligation or a miscarriage of justice because what he was clearly saying was that he had not done anything wrong.
106. Finally the respondent submits that the disclosure was not in the public interest as it was made purely for the claimant's benefit and his wish to clear his name. The respondent reffered in support of this submission to Chesterton Global Ltd v Nurmohamed [2015] IRLR 614. That decision has subsequently been appealed and the Tribunal has considered, in reaching its decision, the conclusions of the Court of Appeal which are at Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979."
"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."
"129.1. the tribunal has to determine (a) whether the worker subjectively believed at the time that the disclosure was in the public interest and (b) if so, whether that belief was objectively reasonable.
129.2. Belief in the public interest need not be the predominant motive for making the disclosure, or even form part of the worker's motivation.
129.3. There are no hard and fast rules about what it is reasonable to view as being in the public interest.
129.4. In a whistle-blower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter in which the worker has a personal interest) there may 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. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case.
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."
The Grounds of appeal
New points on appeal
43((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."
In the Public Interest?