Appeal No. UKEAT/0448/08/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 May 2009

 
Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR I EZEKIEL
MR A HARRIS

MRS H EL-MEGRISI	APPELLANT

AZAD UNIVERSITY (IR) IN OXFORD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MRS HEIDI EL-MEGRISI
(The Appellant in Person)	
For the Respondent	MS AMANDA HART
(of Counsel)
Instructed by:
Messrs J R Jones Solicitors
58 Uxbridge Road
Ealing  W5 2ST

SUMMARY
VICTIMISATION DISCRIMINATION:  Whistleblowing
Appellant raised concerns with employer about immigration status of staff and students, and other alleged irregularities – Dismissed shortly afterwards – Claim of ‘ordinary’ unfair dismissal but also of detriment and dismissal for making a protected disclosure contrary to ss 47B and 103A of the Employment Rights Act 1996.

Held:

(1)	Tribunal failed to deal with claim under s. 47B.

(2)	On its factual findings as to the reason for the dismissal the Tribunal should have found unfair dismissal contrary to s. 103A – It wrongly focused only on the Appellant’s most recent disclosure, and held that that was not the principal reason for her dismissal, having regard to her previous history of difficulties with the Respondent – That approach failed to take into account that that history itself largely consisted of other protected disclosures.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.	The Respondent (which is in fact a limited company incorporated as Daneshgah Azad Eslami Ltd.) is the UK offshoot of the Islamic Azad University, which is a very large academic institution based in Iran but with subsidiary sites elsewhere throughout the world.  The UK branch, which was established by taking over the premises of a previous academic institution in Oxford called the Oxford Academy, was at the times material to these proceedings only recently established and had very few staff or students.

2.	The Appellant was employed by the Respondent from 18 April 2005 until she was given four weeks’ notice of dismissal on 11 January 2007, ostensibly on grounds of redundancy.  She had a wide-ranging administrative role although latterly her job title was Academic Registrar.

3.	Intermittently throughout her employment, and particularly in the months leading up to her dismissal, there were differences between the Appellant and senior members of the staff arising out of her responsibility for a number of what might be called regulatory matters.  In particular, she was concerned that she might be held responsible for various irregularities, as she believed them to be, with regard to the immigration status of some members of staff and students.  She raised these concerns with her senior colleagues.  We will return to the details in due course.  We note, however, at this stage that only some six weeks before her dismissal, on 21 November, she sent a formal memorandum dealing with a number of such matters to Dr. Baghazardeh, the Pro-Vice Chancellor; and that led to a meeting on 5 December between her, Dr. Baghazardeh and the Vice Chancellor, Dr. Assareh.

4.	Following her dismissal, the Appellant commenced proceedings in the Employment Tribunal raising a number of different claims.  We need not itemise them in full.  For the purpose of this appeal the only relevant claims are for unfair dismissal and for being subjected to an unlawful detriment contrary to section 47B of the Employment Rights Act 1996.  So far as unfair dismissal is concerned, she claimed not only under sections 98 and 98A but also under section 103A of the 1996 Act.  For the purpose of both the section 47 and the section 103A claims she relied on the concerns which she had raised with the Respondent about the matters to which we have already referred, which she said constituted protected disclosures within the meaning of the Act.

5.	The Appellant’s claim was heard by an Employment Tribunal sitting in Oxford, chaired by Employment Judge Barrowclough, over several days in December 2007 and April 2008.  The Judgment was sent to the parties on 3 June 2008, with written Reasons following on 23 June.  She succeeded in her claim for “ordinary” unfair dismissal, not only under section 98A on the basis that the Respondent had not complied with the statutory grievance procedure but also on the basis of section 98, since the Tribunal rejected the Respondent’s case that she had been dismissed for redundancy.  It did so in a number of passages, as follows:

(1)	At paragraph 3.3 of the Reasons it said this:
“We have come to the clear and unanimous conclusion that the reason for the Claimant’s dismissal was not due to redundancy and, indeed, that the professed ‘redundancy situation’ was a manufactured means to disguise the real reason for the Claimant’s dismissal.”

(2)	In giving its detailed reasons for that conclusion the Tribunal said, among other things, at paragraph 3.3(d):
“It is significant in our view that the perceived redundancy situation arose immediately after the latest and perhaps most formal representation by the Claimant of her continuing concerns about staff and student work permits or visas and their immigration status generally in her memorandum of 21st November 2006, giving rise to the meeting on 5th December.”

(3)	In relation to the Respondent’s submission that a “Polkey deduction” should be made, the Tribunal said this at paragraph 3.4:
“… no Polkey deduction can arise where we find, as we do, that the Respondent dismissed the Claimant because they thought she was a nuisance who would not willingly undertake the questionable tasks, amongst others, that were assigned to her.”

(4)	In deciding to award a 50 per cent uplift under section 1 of the Employment Act 2002, the Tribunal said, at paragraph 3.5:
“In our judgment, the Claimant was dismissed because the Respondents thought that she was an obstructive nuisance and a trouble maker... .”

	It described the description of her having been dismissed for redundancy as “essentially a sham.”  

Notwithstanding those findings, the Tribunal dismissed the claim of unfair dismissal under section 103A for reasons to which we will return in due course.

6.	The Appellant initially appealed to this Tribunal in relation to a number of issues, but at a preliminary hearing on 28 January, at which she had the advantage of being represented by an ELAAS representative, she was given permission to amend her Notice of Appeal to confine her appeal to her claims under sections 47 and 103A – that is, the two claims which depended on her having made protected disclosures.

7.	That appeal is now before us.  The Appellant appears in person, as she did before the Tribunal.  The Respondent is represented by Ms Amanda Hart of counsel, who also appeared below.

8.	Before addressing the particular issues raised by the appeal we should identify the protected disclosures upon which the Appellant relied.  These were specified at paragraph 2.2.2 of the order made at a pre-hearing review on 13 June 2007.  The references in that paragraph are impenetrable but they are helpfully translated at paragraph 58 of Ms Hart’s closing submissions before the Employment Tribunal.  They are five-fold.

(1)	The first is a memorandum dated 21 November 2005 to Dr Assareh and to Dr Fahd, the Academic Pro-Vice Chancellor, in which the Appellant raises concerns about the undermining of her role in dealing with immigration matters.  In that connection, she referred to a recent episode in which she said she had been asked to write a letter for the benefit of the immigration authorities stating, falsely, that Dr Assareh’s son was a student at the University and had refused to do so.  She comments that since that time:
“… I have been considered ‘unhelpful’ and this is the reason that I am being ‘shadowed’ and I believe eventually ‘relieved’ of this duty.  
I would like to add that I have succeeded in obtaining work permits but am not prepared to lie or follow any illegal practice in order to achieve Azad University at Oxford’s aim of recruiting students.”

(2)	The second is an email dated 19 October 2006 to a Dr Goudarzi, another member of staff at the University.  The email was also copied to Dr Baghazardeh.  It raises issues about the work permit issued for Mr Bikdeli, whose role was described as that of Finance Director, and suggests that there were irregularities in relation to it.  The email ends:
“These are, as you know, issues that bring Azad’s reputation into account and cause me great concern because it could be said that he has knowingly obtained entry by deception which is a very serious matter in this country.  Leave to remain can be revoked if the applicant knowingly applied for it with false information.” 

(3)	The third is the memorandum of 21 November 2006 to Dr Baghazardeh to which we have already referred.  This begins:
“As you know I have frequently been given the responsibility of obtaining work permits and dealing with immigration inquiries.  The following issues have come to light and must be dealt with immediately:”

It then proceeds to itemise eight matters.  These include the problems about Mr Bikdeli already referred to but also raise a question about Dr Assareh’s work permit.  Point 6 reads:  
“My biggest concern is that by not properly monitoring and adhering to these rules, Azad is very likely to have its registration with the DFES refused.  If this happens, Azad will close down as it will not be allowed to recruit students from overseas.”  

It ends “I do hope that these matters will be given urgent attention”. 

(4)	The fourth disclosure is said to have occurred at the meeting on 8 December with Dr Baghazardeh and Dr Assareh to which we have already referred.  The Appellant did not believe that her concerns had been taken seriously at that meeting.  However, the disclosures at the meeting and in the memorandum of 21 November appear, so far as the evidence goes, to have been essentially the same; and, in reality this disclosure can be considered the same as the third.

(5)	The fifth disclosure we need not discuss since it post-dated the Appellant’s dismissal.  

Thus, there are in practice three alleged protected disclosures.  It was not suggested before the Tribunal, nor before us, that they did not amount to protected disclosures within the meaning of the Act. 

9.	We turn to the particular issues raised by this appeal.  

10.	The Appellant’s first point is that the Tribunal simply failed to deal with a claim that she had, quite apart from her dismissal, been subjected to a detriment on account of the protected disclosures which she had made.

11.	The position about this claim is not as clear as one would like.  It can be summarised as follows:

(1)	Section 9 of the Appellant’s ET1 - that is, the section dealing with “other complaints” - does set out in some detail various dealings with Dr Assareh and others about the alleged regulatory irregularities, and among other things mentions a threat which he is said to have made in November 2005 (and which the Tribunal indeed found that he did make) that if she was unco-operative he would make life difficult for her.  The pleading in this section is presumably intended to raise a claim under section 48 of the 1996 Act of a breach of the Appellant’s rights under section 47B not to be subjected to a detriment on the grounds that she had made a protected disclosure; but it is not drafted by a lawyer and there is no clear definition of (a) the acts complained of or (b) the detriments said to have been suffered or (c) the damage caused to her as a result - these three elements may well overlap but they are not necessarily co-extensive (see London Borough of Harrow v Knight [2003] IRLR 140). 

(2)	Unfortunately, the opportunity was not taken at the pre-hearing review to clarify matters.  The existence of a “detriment” claim was recognised in the list of issues:  paragraph 2.2.6 of the order which sets out that list identifies one of the issues as being “if there had been a protected disclosure(s) then whether the claimant has been subject to a detriment as a result of any such disclosure(s)”.  But no further particulars of this part of the claim were ordered.  

(3)	Ms Hart tells us that the Appellant’s witness statement repeated her claim to have suffered a detriment.  We have not seen that statement ourselves, but she says that the nature of the claim remained obscure and that the Tribunal was not very receptive to attempts on her part to have the issues clarified at the start of the hearing.

(4)	It was not until the Appellant’s written closing submissions that details of what she said was the detriment she had suffered were put forward.  Page 4 of that document lists fifteen detriments of a somewhat miscellaneous character, but they tend, again understandably in a layman’s document, to blur the acts complained of with the detriment suffered thereby, and they do not spell out what damage is said to have been caused as a result of that detriment.  The Appellant told us in her oral submissions that her principal object was in fact to obtain an award of compensation for injury to feelings caused by the detriments in question, but that is not spelled out in the submissions themselves.

(5)	Ms Hart’s closing submissions were exchanged with the Appellant’s, so she did not have the opportunity to put in written submissions in response.  They only briefly touched on the section 47B claim because, she says (understandably, it seems to us) that it was never clear what the claim really was.  Although in theory she had the opportunity to respond to the Appellant’s fifteen items in her oral submissions, the time available for those submissions was in fact very short, and she tells us that, given that there were other more substantial issues, she did not specifically address them.

12.	The Tribunal in its Reasons does not identify or purport to address any claim under section 47B at all.  Its reasoning on what it describes as the public interest disclosure claim, which is to be found at paragraph 3.9 of the Reasons, focuses entirely on the claim under section 103A ‑ that is to say, for dismissal.  The factual basis of some of the fifteen items raised in the Appellant’s closing submissions was the subject of findings in the narrative section of the Reasons, but they are nowhere analysed as elements in a section 47B claim.  

13.	The Appellant says that this was a plain breach of the Tribunal’s duty to deal with an element of her claim.  Ms Hart in her skeleton argument before us frankly accepts that is so and acknowledges that the case has to be remitted to the Tribunal to address the aspect which had been overlooked.  We are constrained to agree.  In the light of the unsatisfactory history which we have outlined we can quite see how the Tribunal came to overlook the section 47B claim, and it may be that objection could be taken to some, at least, of the Appellant’s fifteen points ‑ not simply on their merits but on the basis that they represented points not previously advanced.  But in circumstances where the Appellant clearly intended a section 47B claim of some kind, and had not been required to particularise it, and had advanced it in her closing submissions, we believe that it was the duty of the Tribunal to consider it.

14.	This aspect will therefore have to be remitted to the Tribunal for decision.  It will be for the Tribunal to decide how it is best addressed.  On the face of it, we can see no need or justification for the Tribunal hearing any further evidence, but we would anticipate that it would feel the need for a further short hearing so that it can consider submissions.  It may well also wish to give directions designed to get the Appellant, in advance of any such hearing, to clarify more precisely what particular acts she says were done on the grounds that she had made the protected disclosures pleaded, what detriment she says she suffered from those acts, and what compensatable loss or damage she says that she suffered as a result: the detriment and the damage may be self-evident once the acts complained of are identified, but that will not necessary be so – see, again, London Borough of Harrow v Knight.  As we understand what the Appellant said to us, the damage in respect of which she claims may simply be a claim for injury to feelings, but if so that needs to be formally confirmed.  

15.	We note for completeness that some of the detriments identified in the Appellant’s closing submissions, and indeed in the ET1 itself, were more than three (or indeed six) months before the commencement of these proceedings;  but Ms Hart has taken no point on that, presumably recognising that on the face of it any such older detriments would form part of a series of similar acts extending up to the Appellant’s dismissal (see section 48(3)(a) of the 1996 Act).

16.	We turn to the appeal in relation to the claim under section 103A.  So far as that is concerned, the Tribunal’s reasoning appears at paragraph 3.9 of the Reasons, as follows:

“3.9 	In considering, the public interest disclosure claim, we are once again grateful to Ms Hart for succinctly setting out the applicable principles in paragraph 28 and thereafter of her submissions.  For such a claim to succeed, we have to be satisfied on the evidence we have heard that a protected disclosure was the principal reason for her dismissal.  The Claimant is limited to the alleged disclosures identified at the Pre-Hearing Review in this case, which are set out at paragraph 58 of Ms Hart’s submissions.  We are satisfied, on the evidence, that none of those alleged protected disclosures could possibly amount to the ‘principal reason’ for the Claimant’s dismissal with the possible exception of the memorandum sent by the Claimant to Dr Baghazardeh on 21st November, page C36.  We have asked ourselves whether this document and its likely or actual consequences were the principal reason for the Claimant’s dismissal.  We have no doubt that Mr Bigdeli would have become aware of the contents of this memorandum reasonably soon after it’s receipt by Dr Baghazardeh; that they would not have been pleased him; that he would have made his displeasure perfectly plain and might well have sought to influence Drs Baghazardeh, Assareh and others in management against the Claimant.  We heard Mr Bigdeli give evidence, and we did not find him to be a convincing or reliable witness.  Having said that, we do not think it would be right or appropriate to view this memorandum and the likely consequential management discussions thereafter in isolation.  We bear very much in mind, as we have attempted to set out in our findings of fact, that there was a long history of uncomfortable and probably unwelcome expressions of view or communications from the Claimant to the Respondents surrounding the whole issue of visas, work permits, and the legality and/or status within the UK of a number of members of the Respondents’ senior management.  The Claimant had already made plain her unwillingness to assist in obtaining entry documents to the UK for those she considered inappropriate, despite the Respondents requests.  Overall, we have come to the conclusion that the reason for the Claimant’s dismissal was a combination of a number of these factors, cumulatively and over time, rather that the single incident of the 21st November memorandum in isolation.  That memorandum, though doubtless a protected disclosure, was one of the reasons for the Claimant’s dismissal; but not the principal reason.  Accordingly, on balance, we do not accept that dismissal was for a making a protected disclosure.”  
	
17.	It appeared from the Amended Notice of Appeal that the Appellant was intending to argue, among other things, that the recent decision of the Court of Appeal in Kuzel v Roche Products Limited [2008] ICR 799 meant that the Tribunal was wrong to proceed on the basis that the correct question was whether the protected disclosures relied on were the “principal reason” for her dismissal.  But she has helpfully confirmed that that is not her point.  Rather, it is that the Tribunal was wrong to proceed by assessing the relative contributions to the decision to dismiss of, on the one hand, the memorandum of 21 November 2006 (with which can no doubt be taken the follow-up meeting of 8 December) and, on the other hand, all the other respects in which she had, in the Respondent’s eyes, made a nuisance of herself.  Her point was that those other respects included other protected disclosures, specifically those of November 2005 and October 2006.  

18.	That the factual basis for that submission is correct is apparent from the Tribunal’s own findings at paragraph 3.4 to which we have referred (see para. 5(3) above).  The Tribunal found in that passage that the real reason for the Appellant’s dismissal was that the Respondent found her “an obstructive nuisance”, and it expressly says that the reason that they found her such a nuisance was that she “would not willingly undertake the questionable tasks, amongst others, that were assigned to her”.  It is clear from the context that the reference is to her unwillingness to be associated with irregular visa and work permit applications.  Thus, the Appellant submits, the question which the Tribunal should have asked was not whether the memorandum of 21 November but the entire history of her protected disclosures taken together was the principal reason for her dismissal.  If that question was asked, the answer is, she submits, obvious.  Indeed, it was virtually given by the Tribunal itself in the passage to which we have referred from paragraph 3.3(d) of the Reasons (see para. 5(2) above), the clear implication of which is that the principal reason for the Respondent’s dismissal was her memorandum of 21 November, which came as “the latest and perhaps most formal representation by the Claimant of her continuing concerns about staff and student work permits or visas”.  In other words, it was the culmination of a series of past complaints.

19.	We are bound to say that we find those submissions compelling.  Ms Hart reminded us that the question of the principal reason for the dismissal is a question of fact for the Tribunal with which, in the absence of perversity, this Tribunal should not interfere.  That is no doubt correct, but the Employment Tribunal needs to have addressed the correct question.  Here it specifically excluded from its consideration any of the protected disclosures except the most recent.  It did not spell out its reasons for doing so, but presumably it was that the disclosures in question were not sufficiently proximate to the decision to dismiss (although we note that in the case of the email to Mr Goudarzi, it was only about a month before the memorandum of 21 November).  But in a case where a claimant has made multiple disclosures section 103A does not require the contributions of each of them to the reason for the dismissal to be considered separately and in isolation.  Where the Tribunal finds that they operated cumulatively, the question must be whether that cumulative impact was the principal reason for the dismissal.  That was clearly, on the Tribunal’s own findings already referred to, the case here.

20.	Ms Hart also submitted that there were some protected disclosures shown by the evidence which were not identified at the pre-hearing review and that the Tribunal’s findings of fact showed that there were other respects in which the Appellant had, as the Respondent would characterise it, “made a nuisance of herself” which were nothing to do with the alleged irregularities.  As to the former, we have in fact only been able to identify one disclosure found by the Tribunal apart from the three which we have referred to, an episode in June 2005 relating to a visa for a Mr Ghamaschi (see paragraph 2.9 of the Reasons).  If there were more, as there may have been, they would appear to be informal and insignificant and they were not in any event considered sufficiently significant by the Tribunal to be the subject of any finding.  We do not believe that the fact that there was one formal disclosure which was not the subject of the pleading could make any difference to the result on this point.  As to the latter, i.e. the other matters not related to regulatory or immigration irregularities, these involved such matters as the provision of suitable toilets for female staff and the removal of certain offensive graffiti about her and the perceived failure of the Respondent to take sufficient steps against the suspected perpetrator.  The last of these was no doubt not an insignificant matter, but it seems to us quite inconceivable that it can have been the principal reason for her dismissal when weighed against the problems which the Appellant was causing to the Respondent by the concerns which she raised about immigration matters:  the passages which we have quoted from her emails and memorandum, and the subject matter as we have summarised them, make it clear that these were incomparably more serious matters than any other problem areas with which the Appellant may have been associated.  

21.	In those circumstances, it seems to us not only that the Tribunal misdirected itself but that if it had given itself the correct direction there is only one answer to which it could have come on its own findings of fact, namely that the principal reason for the Appellant’s dismissal was that she had made a protected disclosure.

22.	Ms Hart pointed out to us that in the particular circumstances of this case adding a finding of unfair dismissal by reference to section 103A to the finding already made by reference to Sections 98 and 98A makes no practical difference to the Appellant’s remedy.  Since the Appellant fairly shortly after her dismissal obtained alternative employment, her total award from the Tribunal, even taking into account the 50 per cent uplift under the 2002 Act, was only some £16,000.  Thus the question of the application of the statutory cap, which is often a matter of some significance, was immaterial in the present case.  We asked the Appellant what was the advantage to her of pursuing this aspect of the appeal.  She said that it could be of practical importance to her to have a finding made not simply that she had been unfairly dismissed for “being a nuisance” but that the reason why she had been perceived as a nuisance by her previous employer was that she had raised matters of concern about what, if they were established, would be serious irregularities.  We accept that that is indeed a matter of potential practical value.  In any event, it seems to us that the Appellant is entitled as a matter of right to have the totality of her claim adjudicated.  We do not rule out that there may be exceptional cases where for some particular reason it is an abuse for a claimant to pursue an aspect of a claim which can have no conceivable benefit for him or her, but this is not a case of that kind.