Appeal No.UKEAT/0323/06/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 12 December 2006
Judgment handed down on 29 January 2007

Before
HIS HONOUR JUDGE REID QC
MR M CLANCY 
MR T MOTTURE

CUMBRIA COUNTY COUNCIL	APPELLANT

MRS A CARLISLE-MORGAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR TERENCE RIGBY
(of Counsel)
Instructed by:
Cumbria County Council
Legal Services Department
The Courts
Carlisle
Cumbria CA3 8LZ	
For the Respondent	MR SEAMUS SWEENEY
(of Counsel)
Instructed by:
Hayton Winkley Kendal
Solicitors
Stramongate House
53 Stramongate
Kendal
Cumbria LA9 4BH	

Summary

A employed R as a support worker.  R made a number of protected disclosures relating to a fellow worker’s conduct towards a client.  The ET held various detriments were suffered by R on the ground of the disclosures.  On appeal A asserted (1) the ET did not give adequate reasons, (2) the findings were perverse, (3) the ET must have applied the wrong test in law and (4) A will not in law be responsible viciously for detriments suffered as a result of the acts of a fellow employee of R. 

Held: (1) the reasons were adequate, (2) the findings would not be said to be perverse, (3) the ET had not applied the wrong test in law and (4) A could be responsible for the acts of a fellow employee of R.

HIS HONOUR JUDGE REID QC

1.	This is an appeal from a decision of an Employment Tribunal held at Newcastle upon Tyne (Mr MD Malone chairman). After a hearing lasting six days and a day’s deliberation the Tribunal unanimously held that the Claimant, Mrs Carlisle-Morgan, had made protected disclosures (as defined by sections 43A, 43B and 43C of the Employment Rights Act 1996) to the Respondent (the Council) and that in consequence of those protected disclosures the Respondent had subjected the Claimant to detriment contrary to section 47B. The Tribunal further held that the Respondent was vicariously liable for the conduct of a fellow employee of the Claimant who on three occasions respectively abused her, ignored her and made a threatening remark to her. It was held that this conduct was a direct and foreseeable consequence of, and further detriment caused by, some of the detriments to which the Respondent had subjected the Claimant. The Tribunal rejected a number of further complaints by the Claimant. 

2.	The Notice of Appeal (re-amended at the commencement of the hearing) asserted that the Tribunal erred in law, made perverse findings of fact and failed to give adequate reasons for its findings of fact and its conclusions. 

3.	So far as is material for this appeal, the Tribunal found the facts as follows.

4.	The Claimant was employed by the Respondent as a support worker with effect from 8 December 2003. She terminated her employment on 2 November 2005 by a letter of resignation dated 5 October 2005. There are further proceedings between the parties in which she asserts she was constructively dismissed. 
5.	During her employment she was based at 38 Sandgate, Kendal, a supported residential home for two men with severe learning difficulties. One of these men, AM, was aged 39, visually impaired, suffered from epilepsy and had learning difficulties. He was able to carry on simple conversations. In the view of Mr Shaw, the Claimant's supervisor, he could be manipulative but was friendly and sociable. The other man, GL, was 23, epileptic and autistic and had challenging behaviour. He was non-verbal and liable to be upset by sudden noises. When upset he was liable to cause himself physical harm. The Claimant and other staff worked in pairs and on shifts at 38 Sandgate. The Respondent had a larger building with offices at Peat Lane in Kendal. Mr Shaw, and also some of the Respondent's managers, were based at Peat Lane. Mrs Horsman was one of the other support workers at 38 Sandgate, but she and the Claimant did not work together. They met only occasionally during shift handovers. Their working relationship, in their few meetings in December 2003 and January 2004, was completely amicable. The Claimant was off work from 28 January 2004 as a result of injuries until 3 August 2004. These injuries were not work related.

6.	The matters to which this case relates arise from the relationship between the Claimant and Mrs Horsman starting some two months after her return to work. The first incident was at or about the beginning of October 2004 (although misdated by the Claimant as in August). AM alleged to the Claimant that Mrs Horsman had shouted and sworn at him. He asked the Claimant to speak to Mrs Horsman and she did so. Mrs Horsman was confrontational. She said that AM had spoken to her in a way which she found unacceptable and that he then "got what he gave". Neither Mrs Horsman nor her fellow worker Mr Northcott had made any written record of the incident, but the Claimant reported this incident to Mr Shaw at a supervision meeting on 4 October 2004 because of a genuine concern for the welfare of AM and GL. This was held by the Tribunal to be the first protected disclosure (Disclosure 1).
7.	The Claimant had a further supervision meeting with Mr Shaw on 11 November 2004.   AM had told the Claimant that nothing appeared to have been done about his complaint against Mrs Horsman and the Claimant again raised the issue with Mr Shaw. This was held to be the second protected disclosure (Disclosure 2). He told the Claimant that he had spoken to Mr Greasley, his line manager, but that he had not yet been able to speak to AM or Mrs Horsman because a staff member had been on leave. The Claimant told Mr Shaw that she just wanted Mrs Horsman to be made aware of AM's concerns and feelings. The Tribunal held that in raising the matter again with Mr Shaw she was motivated only by her concern for AM and GL and not by any hostility towards Mrs Horsman.

8.	On 14 November 2004 the Claimant reported for work at 38 Sandgate. She was told by AM that Mr Shaw and Mrs Horsman had had a meeting with him and he was not happy about it. He claimed that Mr Shaw had shouted at him and made him sit at the table and that AM had had no-one there with him. The Claimant explained to AM that she had spoken to Mr Shaw regarding his concerns and said he wanted her to speak to Mr Greasley as well. The Claimant then had a meeting with him on 17 November 2004. She spoke to Mr Greasley about the original incident, a further incident which AM had reported to her and the meeting which Mr Shaw had had with AM with Mrs Horsman on 14 November. She also told Mr Greasley that she had concerns that Mrs Horsman was overly affectionate towards GL and in contrast often ignored AM. She also said that other staff had reported concerns to Mr Shaw. The Tribunal found that when reporting these matters to Mr Greasley the Claimant had no grounds for doubting what AM and the other staff had told her and that she was motivated by genuine concern for AM and GL and not by any hostility towards Mrs Horsman or Mr Shaw. This was held to be the third protected disclosure (Disclosure 3). 

9.	Mr Greasley spoke on the telephone to his own manager Ms Douglas and then promptly fully investigated the matters which the Claimant had raised. He concluded, as a result of his investigations, that AM's version of the incident at or about the beginning of October could not be accepted. There was, however, evidence to suggest more general concerns about Mrs Horsman's approach towards AM. Mr Greasley spoke to Mrs Horsman about these general concerns (in a counselling way, not as a disciplinary matter) when they met on 22 November. Mr Greasley told the Claimant that she should report any further concerns to him and also record any incident in writing. He did not tell her how or where any incidents should be recorded. In December 2004 the Claimant completed her probationary period (the original six month period having been extended by reason of her length of sickness absence in 2004). 

10.	At some time in the last week of November or the month of December 2004 Mr Shaw told Mrs Horsman that it was the Claimant who had made the allegations against Mrs Horsman which had been investigated by Mr Greasley and that these allegations had been documented. Mrs Horsman was left with the impression that it was only the Claimant who had told Mr Greasley that on occasion Mrs Horsman shouted at AM. In addition, during this period Mr Shaw himself was told, presumably (as the Tribunal found) by Mr Greasley, that the Claimant had complained about Mr Shaw's conduct at the meeting with Mrs Horsman and AM on 14 November 2004. Furthermore, Mr Shaw was left with the false impression that the Claimant had accused Mr Shaw of swearing at AM. The Tribunal was unable to determine whether it was Mr Greasley or Mr Shaw himself who was responsible for this misunderstanding.

11.	On 26 December 2004 the Claimant reported for duty at 38 Sandgate and was falsely told by AM that Mrs Horsman had shouted at him on the previous day when he was trying to fix the video. She recorded the incident in the confidential diary at the house, without mentioning Mrs Horsman by name and reported the matter to Mr Greasley by telephone. The Claimant, as the Tribunal found, had no grounds for disbelieving what AM had told her and made the telephone call to Mr Greasley and the entry in the diary from genuine concern for AM and GL, not out of any hostility towards Mrs Horsman. She genuinely believed that the confidential diary relating to AM (rather than the daily log book which was likely to be seen by visitors to the house) was the appropriate document in which to record what AM had told her. The record in writing and the telephone call were held to be the fourth and fifth protected disclosures (Disclosure 4 and Disclosure 5).

12.	Mr Greasley raised issues of concern regarding AM and GL, working practices, team working and staff communications at the next team meeting on 6 January 2005. Mrs Horsman had been told that it was the Claimant who had complained about her in November and she had seen the entry which the Claimant had recorded on 26 December.   She confronted the Claimant about this entry in particular and about the complaints generally. The Claimant stated that other colleagues had also expressed criticism of Mrs Horsman's manner towards AM, but none of the colleagues present at the meeting was prepared to admit to this. Mrs Horsman repeatedly told the Claimant to shut up and at one point told the Claimant to shut up or Mrs Horsman would shut her up. Mrs Horsman said that the Claimant needed sorting out.  Both the Claimant and Mrs Horsman became extremely upset.  Both Mr Greasley and Mr Shaw were present, but neither of them intervened effectively. Mr Greasley also criticised the Claimant over the way in which she had recorded the incident on 26 December.   Mr Shaw recorded in his note of the meeting that "the meeting became disruptive" and, later, that the meeting again became heated "and nothing was resolved".

13.	There were no incidents until 29 January 2005 when at a hand over Mrs Horsman told the Claimant and her colleague Ms Pyke that she was not speaking to "you bitches", called her a liar and then shouted loudly at the Claimant for several minutes, in the presence not only of Ms Pyke but also of AM and GL. As a result the Claimant telephoned Peat Lane and spoke to a supervisor. Subsequently the Claimant and Ms Pyke reported to Peat Lane and made statements. Mrs Horsman and Mrs Smith Hanratty her colleague also made statements, which were taken by Mr Shaw.

14.	Both the Claimant and Ms Pyke told Mr Shaw that they did not wish to be exposed to any further confrontations with Mrs Horsman and asked him to be present during future handovers. He agreed to attend, and did attend, on the following day, 30 January. There were no significant incidents during February (except that on one handover Mrs Horsman ignored the Claimant and on another muttered a threat about watching her back), but the Tribunal found as a fact that the Claimant was caused great distress and anxiety by the prospect of a similar confrontation to that which had occurred on 29 January.

15.	Ms Heather Dixon, who returned from maternity leave on 1 February 2005, had the task of investigating the incident of 29 January. From that date Mr Shaw reported to Ms Dixon (and to Ms Emma Kershaw, who was job sharing with Ms Dixon), not to Mr Greasley. At or about the end of January 2005, there were discussions between Ms Dixon and Mr Greasley and between Ms Dixon and Mr Shaw, in the course of which Ms Dixon was told about issues between the Claimant and Mrs Horsman. Ms Dixon also spoke to Mrs Horsman about the incident on 29 January. As a result of one of these discussions, Ms Dixon formed a hostile view of the Claimant, based mainly on a false belief that the Claimant had been gossiping about sensitive and confidential details of Mrs Horsman's medical history which she had learned from a woman with whom she had worked for a time and who had been a friend of Mrs Horsman. The Claimant did in fact learn of the information, but only in February 2005, and did not speak of the matter to anyone until it was mentioned indirectly in the course of a further confrontation with Mrs Horsman on 13 March 2005. Ms Dixon, however, based on what she had been told by Mr Shaw or Mr Greasley (or possibly by Mrs Horsman), had by about the end of January 2005 formed a belief that the Claimant had been telling members of staff about Mrs Horsman's personal medical history. Ms Dixon was also left with the false belief, following her discussions with Mr Shaw and Mr Greasley, that it was only the Claimant who had ever made any allegations about Mrs Horsman, and that it was the Claimant who was bullying and harassing Mrs Horsman.

16.	No effective action was taken by the Respondent to deal with the Claimant's complaint about the incident on 29 January. Although both the Claimant and Mrs Horsman were given copies of the Respondent's bullying and harassment policy, Ms Dixon and Mr Shaw believed that it was the Claimant who was bullying Mrs Horsman, not Mrs Horsman who was bullying the Claimant. Indeed Ms Dixon said in her witness statement that she "was left with the strong feeling that Deborah Horsman was being emotionally bullied". Ms Dixon and Ms Kershaw then decided to arrange a team meeting to try to find a way forward, but it proved impossible to arrange the meeting earlier than 10 March 2005. 

17.	On 13 March 2005, there was an incident at the handover when the Claimant and Ms Pyke came on duty to relieve Mrs Horsman and Ms Smith Hanratty. The Claimant alleged that during the incident Mrs Horsman assaulted her and she called the police. After investigation the police took no action and the Tribunal did not find it necessary to make any findings as to the truth or otherwise of the Claimant’s assertions. It was, however, common ground that during the verbal exchange in the hall, between the first and second alleged assault, the Claimant made an only slightly veiled reference to the information which she had been given about Mrs Horsman's medical history. 

18.	Ms Dixon, after consultation with Ms Douglas, decided that the Claimant should be transferred to Peat Lane. The reason which she gave for the decision was that the Claimant felt that she was the victim and that at Peat Lane she could be supported and there would be witnesses if anything further should happen. She also told us that if Mrs Horsman continued to work at 38 Sandgate she would always be accompanied and would not be working alone. The Claimant felt that it was unfair that she should be transferred when she was asserting she was the victim of an assault whilst Mrs Horsman remained in post at 38 Sandgate, so on 15 March 2005 the Claimant telephoned Ms Bowman and told her that she had not been protected from victimisation and that she felt it was wrong that she as the victim of an assault should be the person to be transferred. This was the sixth protected disclosure (Disclosure 6).

19.	 Ms Bowman then spoke to Ms Dixon and following discussion Ms Bowman decided that both the Claimant and Mrs Horsman should be suspended on full pay and that there should be a disciplinary investigation. Ms Bowman felt that the incident suggested a lack of self-control on both sides, which gave grounds for doubt as to the suitability of either employee to remain at work in a volatile environment, caring for people with very challenging behaviour. No matter what other matters may have been operating on Ms Bowman’s mind, it is clear that this was the only sensible course any responsible person in her position could have taken.  A Ms Kershaw, supported by Mr Greasley, conducted the suspension meeting. The suspension was confirmed in writing on 24 March 2005.  The Claimant submitted a grievance on 4 April 2005. Ms Eleanor Tindall, a senior personnel officer for Capita, was appointed to carry out an investigation. That investigation was a disciplinary investigation into the conduct of both the Claimant and Mrs Horsman and also an investigation into the Claimant's grievance. The investigation had not been completed when these proceedings were commenced on 10 June 2005. 

20.	The Tribunal held that as a result of Disclosure 4 the Claimant had been subjected to detriment by verbal harassment at work by Mrs Horsman, especially in respect of the incidents on 6 January and 29 January 2005 for which the Respondent was vicariously liable. The Tribunal held in addition that this detriment was caused by Mr Greasley and Mr Shaw informing  Mrs Horsman of the identity of the person who had made the protected disclosure, which was an act done on the ground of Disclosure 3. It also held that the Claimant had suffered a further detriment at the meeting on 6 January 2005 in that she was unfairly sanctioned in public by Mr Greasley. 

21.	The Tribunal then dealt with the remaining alleged detriments and held that the most serious and worrying aspect of the case is the fact that Ms Dixon was given false information about the Claimant and that this false information tainted Ms Dixon's view of the Claimant and all her future dealings with the Claimant. It held that Ms Dixon had discussions with Mr Greasley, Mr Shaw and (following the incident on 29 January) with Mrs Horsman and one or more of those discussions left Ms Dixon with the unfounded belief that the Claimant had been going round giving confidential medical information about Mrs Horsman to other members of staff. In the absence of any explanation accepted by the Tribunal for this false belief by Ms Dixon the Tribunal drew the inference that the person or persons who gave her the information did so on the ground that the Claimant had made “one or more” of the protected disclosures and that the person was one or more of Mr Greasley, Mr Shaw and Mrs Horsman. 

22.	The detriment to which the persons supplying the information to Ms Dixon subjected the Claimant, according to the Tribunal “proved to be extremely serious to the Claimant”. It was, in the view of the Tribunal, the Claimant who was the victim of the incident on 29 January and Mrs Horsman who was the harasser, but because of the false information which Ms Dixon had been given, she regarded the Claimant as the bully and Mrs Horsman as the victim and failed to take any action to protect the Claimant against further harassment. Further detriment was caused to the Claimant, it was held, because the false information which had been given to Ms Dixon influenced the initial decision by Ms Dixon and her colleagues to transfer the Claimant and not Mrs Horsman, contributed to the decision to suspend her, and influenced the evidence given by Ms Dixon to Ms Tindall as part of her investigation.

23.	The Tribunal rejected the suggestions made by the Claimant that the extension of her probationary period and the alleged assault on 13 March amounted to detriment. In the case of the prolonged probationary period the Tribunal held that the prolongation was due to her absence through her accident. In the case of the incident on 13 March the Tribunal held that “none of the protected disclosures … was a significant cause of the alleged assaults.”  The Tribunal made no finding of detriment as a result of the other protected disclosures.

24.	It is convenient to deal first with the appeal on the ground of lack of adequate reasons. The Council accepted that the Tribunal was entitled to prefer in general the evidence of the Respondent to that of Mrs. Horsman, Mr. Greasley and Mr. Shaw, but submitted that was facile and unsatisfactory: to conclude from such findings that the evidence of the Claimant was to be preferred on every disputed issue. It was submitted that the Tribunal did so without examining the evidence and giving specific reasons in each case for doing so. 

25.	The Tribunal did not in fact accept the Claimant’s evidence in its entirety. It held that the original incident which sparked animosity between the Claimant and Mrs Horsman was in October and not (as the Claimant said) in August. It did not resolve the question of what happened on 13 March. On the other hand it was specifically critical of Mr Shaw’s evidence and described his answers on one point as “evasive and unconvincing”. It also expressly disbelieved the evidence of Mrs Horsman that she had been told by Mr Northcott, a fellow worker who did not give evidence, that the Claimant had told him about her (Mrs Horsman’s) medical history. On this primary issue of fact it preferred the Claimant’s direct evidence that she had not done so.  In general it preferred the Claimant’s evidence to that of Mrs Horsman because it found her evidence consistent and credible whilst Mrs Horsman’s evidence was less so. In particular Mrs Horsman’s evidence was inconsistent with evidence she had given to Mrs Tindall in inquiry. 

26.	So far as Mr Shaw and Mr Greasley were concerned, the Tribunal noted that neither had much recollection of events, save where Mr Greasley was able to refer to his notes, and both had had sickness absences since the events in question. The Tribunal observed that in giving his evidence Mr Greasley was markedly hostile to the Claimant and each had raised a grievance against the other.

27.	The Employment Tribunal sees and hears the witnesses. The Appeal Tribunal does not (though in this instance we had the silent but demonstrative presence of the Claimant throughout the appeal). In our view it is quite possible for the Respondent to see from the Tribunal’s reasoning why it lost. There is no need to spell out the precise reasoning why the evidence of one witness is preferred to that of another in respect of every point of difference. The Tribunal had to make decisions relating to the credibility of those witnesses who were called and it did so.  It is not for the Appeal Tribunal to second-guess those findings, tempting though it may sometimes be.

28.	The perversity ground was put on the basis that the Employment Tribunal found detriments which were not raised by the Respondent as detriments in her originating application or as part of her case and were not therefore properly investigated during the hearing. The detriments complained of were (a) that Mr Greasley and Mr Shaw had told Mrs Horsman of the Claimant’s disclosures about her; (b) that Mr Greasley had told Mr Shaw of the Claimant’s disclosure of his conduct and (c) that someone (unspecified) had given Ms Dixon information that the Respondent was  spreading rumours  about Mrs Horsman's medical history. It was said that it was perverse to find (i) that these were detriments and (ii) to find that they were "on the grounds that...". It was submitted that the Employment Tribunal must have applied the "but for" test as there was no direct evidence of motivation.

29.	In fact two of these detriments were referred to in the ET1: (a) and (b) were spelled out in the letter of grievance which was incorporated into the application. The third (c), which by its nature was unknown to the Claimant at the time of her ET1, was fully dealt with at the hearing and formed a major part of the decision. The Tribunal was entitled to take the view that these matters amounted to detriments in law. The Tribunal found that the revelation by Mr
Shaw to Mrs Horsman, and by Mr Greasley to Mr Shaw respectively, constituted detriments in themselves as they did not do 'anything at all to protect the Claimant against victimisation' and thereby placed the Claimant at the risk of harassment. The Tribunal further found as a matter of fact that Mrs Horsman and Mr Greasley were told of the matters on the ground that the Claimant had made the disclosures. The Tribunal was, in our view, entitled to so conclude from the evidence before it and, in light of the pleaded case that the Claimant had reported her concerns to management, that she was harassed as a result and that nothing had been done to prevent this. Mrs Dixon's attitude to the Claimant was tainted by false information which led her to regard the Claimant, much to her detriment, as being the aggressor and this influenced the decision to transfer the Claimant. 

30.	As to whether the Tribunal applied the correct test, it quoted the salient passage from London Borough of Harrow v Knight [2003] IRLR 140 at para 8 of its Judgment:

"It is thus necessary in a claim under section 47B to show that the fact that the protected disclosure had been made caused or influenced the employer to act (or not act) in the way complained of: merely to show that “but for” the act or omission would not have occurred.  Merely to show that ‘but for’ the disclosure the act or omission would not have occurred is not enough”

It expressly stated that the acts of detriment at (a) and (b) were “on the ground that” the Claimant had made the disclosures. As to (c), the Tribunal held that the false information was given to Ms Dixon  on the ground of the protected disclosure and that because of this Ms Dixon regarded the Claimant as the bully and Mrs Horsman as the victim. In these circumstances it seems to us impossible to suggest that the Tribunal reached its conclusion using the wrong legal test.   

31.	So far as perversity is concerned, the hurdle is a high one. Whether one puts the test as “That cannot be right” or frames it in more legalistic language, it comes to the same thing. The Employment Tribunal is the judge of the facts. The appeal is on points of law only. Given that the Tribunal directed itself correctly on the law, it is quite possible for it to hold that the matters complained of amounted to detriments. The Respondent came nowhere near mounting the “overwhelming case” (to use the expression from Crofton v Yeboah) necessary to succeed in overturning those findings on the basis of perversity.

32.	The remaining point was the Council’s point of law as to vicarious liability. The Council submitted that the Employment Tribunal failed to apply the proper legal test when reaching its conclusions as to whether "the Respondent was subjected to any detriment by any act or any deliberate failure to act by his employer” in relation to its findings that the Appellant was liable for the actions of Mrs Horsman on the 6 and 29 of January 2005.  This ground was limited to those two occasions. The Council did not appeal the finding that it was liable for the acts of Mr Greasely, Mr Shaw and Ms Dixon. The effect of the limitation of this ground of appeal in this way is that in practical terms it seems unlikely, in the light of the Tribunal’s other findings, that the point is of any great importance in financial terms.

33.	The Appellant argued that the principle of vicarious liability had no application in the context of the Employment Rights Act 1996. Counsel noted that paragraph 7 of the speech of Lord Nicholls in Majrowski describes the concept of vicarious liability as a concept of secondary liability and that there is no primary liability placed on fellow employees by section 47B. This, he suggested, meant that the employer could never be vicariously liable for one of its employee’s victimisation of another under section 47B.

34.	Beyond that the Appellant accepted that the test for vicarious liability is authoritatively set out by Lord Nicholls in Majrowski v Guys and St Thomas' NHS Trust  [2006] UKHL 34 at paragraph 10 that  "A precondition of vicarious liability is that the wrong must be committed in the course of his employment", that  "A wrong is committed in the course of employment only if the conduct is so closely connected with acts the employee is authorised to do that for the purposes of the liability of the employer to third parties the wrongful conduct may fairly and properly be regarded as done by the employee while acting in the course of his employment", and  that "The rationale underlying the principle holds good for a wrong comprising a breach of statutory duty or prohibition which gives rise to civil liability provided always that the statute does not expressly or impliedly indicate otherwise". However counsel submitted that rights under the Employment Rights Act 1996 including that under section 47B do not create statutory torts. They are, it was suggested, quasi-contractual rights and that breaches are in effect statutory breaches of contract to which the common law of contract rather than the law of tort applies. The proper test, therefore, it was said, is whether the employee had the express or implied authority to do that which is complained of. 

35.	It was further submitted that unlike the Discrimination Acts the Protection from Harassment Act 1997 is enforced by the Courts with common laws principles rather than by the Tribunal "without access to that resource unless imported in some adapted form", to use the expression of Auld LJ in Majrowski v Guys and St Thomas' NHS Trust [2005] EWCA Civ 251 at para 52. Whilst accepting that the rule was, as indicated by Lord Nicholls in Majrowski in the House of Lords at para 16, that an employer’s vicarious liability arises unless the statutory provision expressly or impliedly excludes such liability, it was submitted that the context of the Act impliedly excluded such liability, although it was accepted that acts of senior employees of the Council could be acts of the Council for the purpose of making the Council liable.

36.	The argument ran thus: in Woodward v. Abbey National PLC [2006] EWCA Civ 822 the Court of Appeal made it clear at para 59 that section 47B is "dealing with the same concept" as the Discrimination Acts and “all four Acts are therefore dealing with victimisation in one form or another”. This, it was submitted, removed the obstacle to the Appellant's argument that Parliament could not have intended to input vicarious liability into section 47B without express words such as in the Discrimination Acts and without a statutory defence being provided. The Acts had to be looked at together and the absence of any express imposition of liability and any express statutory defence were strong indications that Parliament did not intend to impose vicarious liability on employers.

37.	In response to these submissions Counsel for the Claimant pointed out that no assistance could be gained from the parliamentary proceedings relating to the Act, but that in Woodward v Abbey National plc the Court of Appeal held that the context of the legislative provisions across all the relevant statutes is the same, namely protection of an employee from detriment done in retaliation for their whistle-blowing. “If the common theme is victimisation, it would be odd indeed if the same sort of act could be victimisation for one purpose, but not for the other'” (per Ward LJ at para 59).

38.	The Claimant submitted that to absolve employers of liability for the conduct of their employees would be to weaken the protection afforded under the statutory provisions. It was necessary to consider the public policy ramifications associated with the exclusion of employer liability for employee actions in such cases. Parliament could not have intended to render an employer liable only for an act of the 'employer' and not any of its employees since the concept of an 'employer' is, in many cases, a legal construct. Is the employer to be liable for the acts of its directors (if a company), partners (if a partnership), senior officers (if a local authority) or, in all these cases is the employer liable for the acts of more subordinate employees, and (if so) which? If employers do not assume liability for the actions of their employees, far less effort and resource will be invested in educating employees as to the correct course of conduct under the legislation, thereby reducing its impact. Encompassing principles of vicarious liability allows for consistency of approach across the various employment related victimisation provisions while the approach advocated by the Council would greatly weaken the protection afforded under the legislation.

39.	In our view these arguments overcomplicate the issue. An employer may be liable for the acts of his employee done in the course of his employment whether or not what the employee has done would be actionable against him. The principle of vicarious liability exists not because the employee is liable but because of what he has done: see per Lord Nicholls in Majrowski at para 14 when considering the Australian case of Darling Island Stevedoring & Lighterage v Long (1957) 97 CLR 36.

40.	The liability imposed by section 47B is imposed on the employer not on the employee. It is analogous to an implied contractual term in that the person on whom the liability is imposed is the employer, but it does not seem to us to matter whether the section is regarded as creating a statutory tort or some form of implied contractual term. The Claimant might or might not have had a claim against Mrs Horsman under the Harassment Act 1977 but she had no claim against her under section 47B. The question is whether what Mrs Horsman did can properly be classified as an act of the employer for the purpose of section 47B.

41.	The Appellant accepts that the acts of certain employees can be categorised as having been the acts of the employer for the purposes of the section: hence its acceptance of the findings for these purposes in respect of the acts of Mr Greasley, Mr Shaw and Ms Dixon. The justification of this acceptance was that they were further up the chain of command than the Claimant and Mrs Horsman. The Appellant accepted the acts of anyone in authority over the victim as being the acts of “the employer” but then arbitrarily sought to draw a line and to say that no act by any person below the line is an act of the employer. This is not in our view correct.

42.	In our judgment the Employment Tribunal was right to look to see whether as a matter of “fairness and justice, turning, in the circumstances of each case, on the sufficiency of the connection between the breach of duty and the employment and/or whether the risk of such breach was one reasonably incidental to it”: see per Auld LJ in Majrowski in the Court of Appeal at para 37, (i.e. the “close connection” test). In our judgment there is nothing in the Act which indicates that the acts of certain fellow employees can be regarded as binding the employer for the purpose of the section whereas those of others cannot. On the other hand the absence of words such as those to be found in section 41 of the Sex Discrimination Act 1976, section 33 of the Race Relations Act 1976 and section 58 of the Disability Discrimination Act 1995 may mean that there are cases where under section 47A an argument is open to the employer under the “close connection” test which would not be open in a claim under the Discrimination Acts.     

43.	Be that as it may, we are satisfied that the test used by the Tribunal was the correct test and that the conclusion to which it came so far as the Appellant’s liability for Mrs Horsman’s acts was one which was open to it on the facts.

44.	It follows that the appeal must be dismissed.