Appeal No. EAT/0518/02 ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 March 2003

Before
HIS HONOUR JUDGE J MCMULLEN QC
MS B SWITZER
MR B M WARMAN

MISS J DOUGLAS	APPELLANT

(1) BIRMINGHAM CITY COUNCIL	RESPONDENTS
(2) GOVERNING BODY OF CANTERBURY CROSS SCHOOL
(3) MS A BOYLE

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS S HARRISON
(of Counsel)
Instructed by:
Messrs Bailey Wright & Co Solicitors
3rd Floor
Guildhall Buildings
Navigation Street
Birmingham B2 4BT	
For the Respondents	MR M WATKINS
(of Counsel)
Instructed by:
Birmingham City Council Legal Services
Ingleby House
11-14 Cannon Street
Birmingham B2 5EN	

HIS HONOUR JUDGE J McMULLEN QC

1	This case is about the nature of disclosures made for the purposes of the Public Interest Disclosure Act 1998.  We will continue to refer to the parties as Applicant and Respondents.

Introduction

2	It is an appeal by the Applicant in those proceedings against a reserved decision of an Employment Tribunal sitting at Birmingham, Chairman Mr D Hewitt, over two days in 2001, promulgated with Extended Reasons on 26 February 2002.  The Applicant was represented by a solicitor, today by Ms Harrison of Counsel.  The Respondent was represented by Counsel and today by Mr Watkins of Counsel.

3	The Applicant claimed race discrimination, breach of the Public Interest Disclosure Act 1998 and breach of Articles 9 and 10 of the Human Rights Act 1998.  The three Respondents whom she had cited denied liability.

4	The case as it unfolds will involve a number of difficult principles and at the moment is stayed pending the decision of our Tribunal on the PIDA issue.  So far as is relevant to the PIBA issue, the legislation is as follows.  The Employment Rights Act 1996 Part IVA implements the right to be protected from harmful acts in respect of disclosures which are protected within the meaning of the statute.  Section 47B provides as follows

47B	“Protected Disclosures
(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 done on the ground that the worker has made a protected disclosure.

(2)	… this section does not apply where – 
(a)	the worker is an employee, and
(b)	the detriment in question amounts to dismissal (within the meaning of that Part).
(3)	For the purposes of this section…"worker", "worker's contract", "employment" and "employer" have the extended meaning given by section 43K.”

5	Section 43K provides as follows:

43K	“Extension of meaning of “worker” etc for Part IVA
(1)	For the purposes of this Part "worker" includes an individual who is not a worker as defined by section 230(3) but who-
(a)	works or worked for a person in circumstances in which- 
(i)	he is or was introduced or supplied to do that work by a third person, and
(ii)	the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them”

6	Section 230 is to be considered, for it forms part of the exercise in considering the extended worker definition.  It provides as follows:

230	(3)	“In this Act "worker…means an individual who has entered into or works under…
		(a)	a contract of employment, or
	(b)	any other contract, whether express or implied…whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer…
and any reference to a worker's contract shall be construed accordingly.”

7	Turning to the architecture of Part IVA, the statute defines, first, a protected disclosure and, secondly, disclosures qualifying for protection (those two might well be described as “substance”) and, thirdly, in section 43C onwards, what might be described as “form”.  Sections 43A and 43B therefore deal with the content of the disclosure.  43C and onwards deal with the form in which such disclosure should be made.
43A	“Meaning of “protected disclosure” 
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	Disclosures qualifying for protection
(1)	In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, 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…
43C	Disclosure to employer or other responsible person
(1)	A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith- 
(a)	to his employer, or
(b)	where the worker reasonably believes that the relevant failure relates solely or mainly to- 
(i)	the conduct of a person other than his employer, or
(ii)	any other matter for which a person other than his employer has legal responsibility,
to that other person.
(2)	A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.”

8	The nature of employment was considered by the EAT, Judge Altman presiding with members in Parkins v Sodexho Ltd EAT/1239/00 on 22 June 2001.  Judge Altman gave a wide meaning to the term “legal obligation”, which we have cited.  The Tribunal adopted a passage in the Encyclopaedia of Labour Relations Law Eds Hepple O’Higgins and Upex as follows:

“This includes a breach of any statutory requirement; contractual obligation; common law obligation for example negligence, nuisance, defamation or an administrative law requirement.”

9	The question posed by Judge Altman’s Tribunal was this:

14	“…where in Section 43B, one of the possible qualifying disclosures, is described as being the reasonable belief that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, does that term ‘legal obligation’ refer to legal obligations arising out of the contract of employment?”

The EAT considered that construction of section 43B should be wide.

10	Onto that regime, for the purposes of this appeal, are to be grafted provisions relating to education, although as we shall see the grafting is imperfect.  The School Standards and Framework Act 1998 provides, broadly speaking, for delegation of the powers of a local education authority to a school governing body.

54	“Staffing of community… schools
(1)	Schedule 16 has effect in relation to the staffing of community…schools.
…
(3)	The number of teachers and non-teaching staff to be employed at the school shall be determined by the local education authority.
(4)	The authority may appoint, suspend and dismiss teachers and other staff at the school as the authority think fit.
(5)	The authority shall, in connection with the exercise of their functions under subsection (4), consult the governing body to such extent as the authority think fit.”

11	Schedule 16 provides for the staffing of community schools and gives a detailed regime for the appointment of a head teacher, deputy head teacher, other teachers and non-teaching staff.  Our case concerns the last.  By paragraph 20 it is provided as follows:

20	(1)	“Where the governing body desire the appointment of a person to work in a non-teaching post at the school, they may recommend a person to the local education authority for appointment to the post.”

There are specific requirements within the recommendation.  See paragraph 20 (2) and (3).

21	(1)	“The local education authority shall appoint a person recommended to them under paragraph 20 unless he does not meet any staff qualification requirements which are applicable in relation to his appointment.”

12	There then follow paragraphs dealing with discipline (paragraph 22) and procedures relating thereto.  These require the Governing Body to establish disciplinary rules and procedures and to deal with issues also of capability and grievance.  Suspension of a person in this position is regulated by paragraph 24 where both the Governing Body and head teacher have power to suspend where it is thought appropriate.  As to dismissal, paragraph 25 provides that the Governing Body may determine that a person should cease to work there and must then notify the authority of the determination and their reasons for it. Rights given by paragraph 27 for the opportunity for such a person to make representations.

13	The reference to a community school includes one to which a delegated budget has been given.  Section 81 (1) provides:

81	(1)	“The Secretary of State may by order make such modifications in any enactment relating to employment, and in particular in any enactment – 
		(a)	conferring powers or imposing duties on employers,
		(b)	conferring rights on employees, or
		(c)	otherwise regulating the relations between employers and employees,
as he considers necessary or expedient in consequence of the operation of sections 54 and 57(1) to (3), Schedule 16…”

14	Regulations have been made under that power.  They are the Education (Modification of Enactments Relating to Employment) Order 1999 SI 1999/2256.  Article 3 (1) is relevant:

3	(1)	“In their application to governing bodies having a right to a delegated budget, the enactments set out in the Schedule shall have effect as if – 
(a)	any reference (however expressed) to an employer, a person by whom employment is offered, or a principal included a reference to the governing body acting in the exercise of their employment powers and as if that governing body had at all material times been such an employer, person or principal.”

15	The Schedule sets out provisions of a number of employment statutes; so far as is relevant to our case protection against one form of victimisation, that is dismissal in respect of the making of a protected disclosure, is covered, since the Employment Rights Act 1996 Part X is within the Schedule.  A number of other sections are included but critically for our purposes sections 43 and 47 are not.

16	It will be noted that included are various provisions of, for example, the Sex Discrimination Act 1975, and the Race Relations Act 1976 dealing with what would be broadly comparable to a detriment under the PIDA regime.  The question arises: why is a detriment not protected for the purposes of the Employment Rights Act 1996, whereas it is for the purposes of other anti-discrimination measures and the more extreme form of detriment, dismissal?  That is the issue to which we will return.

17	Article 10 of the European Convention on Human Rights guarantees the respect for the private life of every person.

The Issues

18	The essential issue was determined by the Employment Tribunal at a Preliminary Hearing.  It was to decide whether or not the Applicant had made a protected disclosure.  The Tribunal found that she had not and dismissed her claim.  The Applicant appeals against the finding on grounds set out in a Notice of Appeal, Skeleton Argument and oral submissions today.  Directions were given in this appeal at a Preliminary Hearing by Judge Clark and members on 26 February 2002.

The Facts

19	The Applicant is Afro-Caribbean.  She was a classroom assistant and part-time special needs/integration assistant at the Canterbury Cross primary school, which is in the Birmingham City Council local education authority.  She began her employment on 15 November 1993 and was appointed in 1999 as a staff governor at the school and became a member of the personnel/staffing committee.

20	By her contractual documents the Applicant is employed by the City Council.  She applied to the Council for her job and was appointed by it and was paid by it.  The Tribunal reflected the assertion made in the Originating Application that her employer was and continues to be the City Council.

21	The relevant actors in this drama are the head teacher Mrs Anne Boyle (the Third Respondent in these proceedings) Mrs Barbara Canning (a fellow governor and a member of the personnel/staffing committee) and Mr Aslam (the Chair of the Governors). 

22	On 15 May at a governors meeting an issue arose as to whether or not a teacher who was leaving should be replaced.  The Applicant was a lone voice in objecting to a recommendation made by Mrs Boyle that there should be no additional staff but the responsibilities vacated by the leaving teacher should be shared amongst the existing members.  The Applicant’s concern was that there should be an external appointment in order to provide an opportunity for persons belonging to ethnic minorities to apply for the post.  None of the other governors accepted that approach.

23	The Applicant continued to express concern at various meetings and on 29 June she spoke to Mrs Canning.  The meeting was intended by the Applicant to be confidential.  She voiced her concerns generally about the appointment, and specifically about the perception of the lack of equal opportunities within the school.  Mrs Canning advised the Applicant to raise the matter at a grievance with Mrs Boyle.  But before the Applicant had a chance to do that, Mrs Canning reported the substance of the discussion to Mrs Boyle that same evening.  The Applicant was bitterly disappointed about the failure by Mrs Canning, as she saw it, to respect the confidentiality.  She thus wrote to Mr Aslam making what is in terms an official complaint about Mrs Boyle and her attitude, and Mrs Canning.

24	The Applicant claimed that both of the disclosures (that is, to Mrs Canning and to Mr Aslam) constituted protected disclosures for the purposes of the legislation which we have set out above.

25	The Tribunal decided only part of the issues it had set out to decide.  It decided that the disclosure to Mrs Canning could not be a protected disclosure because Mrs Canning was not a person about whose conduct the Applicant was complaining; nor did it relate to a matter for which Mrs Canning had legal responsibility.  Thus it dismissed the claim in relation to that.

26	In respect of Mr Aslam, the Tribunal appears to accept that there may well have been substance qualifying within section 43B, but came to the conclusion, after close and detailed consideration, that the complaint was rather about Mrs Boyle’s attitude.  It therefore did not decide whether or not the disclosure amounted to disclosure to another responsible person under section 43C.  The Tribunal directed itself by reference to the relevant provisions of the Employment Rights Act which we have set out above but not to the Order.

The submissions

27	The Applicant’s case is that the Employment Tribunal erred in a fundamental way in that the employment relationship should have been found to have been delegated to the Governing Body; that the correct construction of the Applicant’s complaint was one of an allegation of a breach of a legal obligation and that the recipient of it was her employer.  Initially arguments were addressed in relation to the Human Rights Act 1998 but they were not pursued with any vigour.

28	It was contended that the correct employer is not Birmingham City Council which holds the contract but the Governing Body of the School.  No further argument was addressed indicating that Mrs Boyle was an employer. The argument of Mr Watkins is that there was, at most, favouritism at work here and not an allegation of breach of a legal obligation.

The principles

29	In order to determine the central issues in this case, it is necessary to take separate approaches to them.

(1)	The Substance of the Disclosure

30	We indicated in argument that the complaint in respect of the relationship with Mrs Canning did not indicate a protected disclosure.  This is because Mrs Canning was being consulted for the purposes only of advice and the Applicant indicated that she would herself pursue the matter and did not want the matter to be handled on her behalf by Mrs Canning.  The relationship was one of confidentiality and thus, at first sight and on close analysis thereafter, a statute which is designed in the public interest to protect disclosures ought not to apply to a private conversation between these two governors of the school.

31	Thus, the Applicant falls at the first hurdle, in our judgment, since what she is disclosing to Mrs Canning is done in a confidential manner and not to her qua employer.  It may also be that some of the substance which she was reporting did not qualify, but we prefer to rest our judgment upon the private relationship between the two of them as not indicating an employment relationship. We uphold the decision of the Tribunal in respect of that disclosure

32	As to the disclosure to Mr Aslam, it is plain that as a matter of substance the Applicant was making a complaint that there was some wrongdoing.  The Applicant had addressed her letter as an official complaint and she expressed her view, referring to the meeting on 15 May where she had a dispute about what she said “was equal opportunities regarding the…post.  I believed that we did not have an experienced teacher within our school that could take on this role.”

33	She then reported the matter to her union.  She again spoke out at the governors meeting and expressed her opinion in summary as follows:

“It seems to me that if you believe and practice equal rights you will get punished for it especially within Canterbury Cross School and if you notice discrimination in the school especially amongst the ethnic minorities you are expected to ignore it.
I believe that as a staff governor you are not only looking out for the best interest of the children’s education but also the staff as well.  To me that must include equal rights.  As a governor I thought I was following the guidelines and should not be disciplined but in Mrs Boyle’s eyes speaking up about equality is worse than discrimination.
This is an official complaint about Mrs Boyle and her attitude and Mrs Canning.  I would like this looked into further.”

34	Taken as a matter of construction only, we consider that the Applicant is there raising a complaint that a senior officer (that is, Mrs Boyle) is not carrying out the policies relating to equal opportunities and equal rights.  No such policy was put before the Employment Tribunal.  Mr Watkins appearing before us on behalf of all three Respondents realistically accepts that Birmingham City Council and the schools within its bailiwick are enjoined to practise fairness and not favouritism and to carry out equal opportunities policies, which no doubt exist and provide for transparent recruitment and other employment matters.

35	Thus it seems to us, the Applicant by reference to that letter only was plainly making a disclosure which related to the matters within section 43B (1) (b).  It will be noted that all that has to happen is that the Applicant should have a reasonable belief and that the disclosure tends to show that there is a failure or a likely failure to comply with a legal obligation.

36	Ms Harrison put it that the duty of trust and confidence requires that persons be not treated differently on account of their ethnic background or be treated unfairly or by way of favouritism.  We agree.  An allegation that a head teacher is engaged in a practice which conflicts with that obligation is, it seems to us, indicating that she is failing to comply or likely failing to comply with a legal obligation – both within the equal opportunities policies, which we have no doubt in so far as they are apt, are incorporated into the contracts of employment; and the anti-discrimination legislation.

37	It will be recalled that the Applicant in her letter to Mr Aslam makes particular reference to her own responsibility as a staff governor and we can well understand that she reasonably believed that in making the complaint she was acting within the protection of the law.  Thus, as a matter of substance, we hold that this document represents a proper complaint.

38	We were concerned during the course of the hearing that a slightly different approach might be appropriate in this case and drew the attention of Counsel to The Housing Corporation v Bryant [1998] ICR 123 CA.  There the Court of Appeal was considering whether or not a claim in an Originating Application had included one for victimisation.  As a matter of construction the court decided that the Tribunal Chairman who had decided the matter was correct in saying that it did not.

39	It was necessary to do that because a point of law must be raised on appeal to the EAT which in that case had overturned the Chairman’s decision.  But in addition, Buxton LJ said this:

“As the Appeal Tribunal said, the words making the necessary causative link between the making of the complaint of discrimination and the dismissal were absent from the application.  But if this is to be taken as a question of construction, as a matter of law, and not merely of the judgment and assessment of the Chairman, the absence from the document of any such linkage must be fatal: because the issue of construction is whether the document makes a claim in respect of victimisation.
I have been forced to express this issue in what may appear to be artificial and technical terms because it is only if it is characterised as a technical issue, of legal construction, that the appeal Tribunal had jurisdiction to consider it at all.  But the reality is that which I expressed earlier: this was not a separate legal issue, but merely part of the Chairman’s assessment of the reality of the claim, an assessment that can only be interfered with by the appeal Tribunal; or by this court, if it was perverse.  There are no grounds to justify such a conclusion.”
[See page 130 F-H]

40	We would thus feel entitled to interfere with the decision of the Tribunal in respect of a decision which it made about the substance of the Applicant’s complaint.  We hold that this is not on analysis a complaint about Mrs Boyle’s attitude but is a direct complaint of a failure to implement equal opportunities policy with the consequent result which we have set out.  We are not dealing with the exercise of discretion by an Employment Tribunal Chairman but by the decision, after evidence, of a full Tribunal, as a matter of construction. We hold that the construction which it offered was incorrect.

(2)	The form of the disclosure 

41	We then turn to the second issue, which is one of form; that is, to whom was the disclosure made?  In order to determine this issue, the relevant employer has to be identified.  For the Respondents Mr Watkins contends that the issue is simple.  Absent the engagement of the Modification Order to this part of the Employment Rights Act 1996, the normal rules of employment relationships apply.  Birmingham City Council appointed the Applicant, paid her and is, he contends, on any normal principles, her employer.  For the Applicant it is contended that she falls within the extended definition of “worker” which we have set out.

42	In our judgment the latter is correct.  There are some practical problems, of course.  We do not know why a provision is missing when it otherwise might appear sensible to put it in.  Thus, if it were within the Modification Order the proceedings would have been commenced solely against the Governing Body.  The Governing Body is the appropriate Respondent for the other parts of the Applicant’s claim; principally the race discrimination claim and, as in due course will occur, her claim relating to the resignation from her employment in 2002.  Why should there be different results?  The answer is suggested by Mr Watkins: there is no deeming provision applicable to this part of the statute.

43	However, under section 43K, it is clear that the Applicant is not a “worker” within the meaning of section 230.  The work which she performs is not for another party to the contract, that is, Birmingham City Council.  The work she performs is for the Governing Body of the School.  The definition of “worker”, therefore, in section 43K (1) applies to her.  She was supplied by a contract of employment, effected by the City Council, to do work for the Governing Body of the School.  The terms on which she was engaged to do that work were in practice determined, not by her, but by the Governing Body or by the Council or by both of them.  She thus fits within section 43K (1) as a “worker” and therefore is entitled to bring proceedings against the person who fits the definition of her “employer”.

44	The contention made on behalf of the Applicant is that a disclosure to the Chair of the Governors is a disclosure to the Governing Body (her employer).  That issue is not substantially contested by Mr Watkins.  A recipient has to be a natural person.  The Chair is the appropriate person since he led the Governing Body. That is the body which employed the Applicant.  In those circumstances, the letter to Mr Aslam constituted a disclosure to the Applicant’s employer.

45	If we are wrong about that, the Applicant raises a second argument that the disclosure to Mr Aslam constituted a disclosure to an authorised person under section 43C (1) (b) (ii), as to another responsible person.  We consider that this submission has merit too and would uphold it.

46	It is thus unnecessary for us to deal with whether or not the disclosure arose in the course of an authorised procedure within section 43C (2).  No oral argument was addressed to us and we say nothing more about it.

47	It was further contended that if our decision were otherwise the Modifications Order was ultra vires since it produced an unreasonable result, in the sense of being partial or unequal, as between classes and was manifestly unjust: Kruse v Johnson [1898] 2 QB 91.  As we say, it is unnecessary for us to deal with that or to deal with contentions made in respect of Article 10 of the European Convention on Human Rights.

48	This appeal is thus allowed.
49	Within 14 days of today witness statements will be exchanged relating to the Race Relations Act and Human Rights Act claims.  A schedule of losses and also, in respect of the consolidated second action, a witness statement, also within 14 days of today to be exchanged.  This is very old.  We do not want any further delays.  The Employment Tribunal will please consider further directions if necessary.