HIS HONOUR JUDGE McMULLEN QC
1.
This case is about detriment suffered by a medical practitioner as a
result of his making protected disclosures; race discrimination; and
victimisation for having made a complaint of race discrimination. It is the
judgment of the court to which all members appointed by statute for their
diverse specialist experience have contributed. As we explain below, each of
us has been involved in various stages of the complaints made in this case. We
will refer to the parties as the Claimant, Dr Ihab Korashi and the Respondent,
which is Abertawe Bro Morgannwg University Local Health Board, the successor in
title to various NHS bodies and which are generically referred to as the Trust.
Anonymity
2.
At the outset of the hearing we acceded to a joint application by the
parties for an order of anonymity for the object of the Claimant’s complaints,
a doctor known as Mr A, and patients of the Trust; and for an order sealing the
file of the EAT in accordance with the analogous procedure under CPR 5.4C(4).
This procedure was adopted in relation to the parties in our case by the EAT on
16 July 2010 and by respectively Eady J and His Honour Judge Peter Clark sitting
as a High Court Judge, in related proceedings in the High Court. We gave our
reasons referring to the judgment of Underhill P in A v B [2010] ICR 849 and B v A [2010] IRLR 400. It was plainly in accordance with
the overriding objective that the confidentiality of patients’ records be
preserved and that there should be no identification of Mr A. It is important,
but not sufficient, to note that the application was made by consent, for there
are wider issues relating to the public interest in legal proceedings being
available in public. Having considered fully the possible implications for
freedom of speech and freedom of the press, for the patients and for Mr A’s
interest, we made the order as sought.
Introduction
3.
It is an appeal by the Claimant in those proceedings against the
judgment of an Employment Tribunal chaired by Employment Judge John Thomas
sitting at Cardiff over 40 days and spanning some 3 years from 16 October 2006
until the registration of reasons on 17 July 2009. The Claimant was represented
by Mr Anthony Korn and the Respondent by Mr Peter Wallington QC, who today
leads Mr Edward Capewell.
4.
The judgment was the subject of a preliminary hearing on appeal
involving, unusually, both parties. HHJ Pugsley gave directions on 7 October
2009. Mr Beynon and Mr Stanworth sitting today sat with His Honour Judge Ansell
on 15 July and 20 September 2010. The Claimant had raised substantive and
procedural grounds of appeal. The procedural grounds included allegations of
actual and apparent bias against Employment Judge Thomas which were dismissed
by Judge Ansell’s EAT and are not pursued. However, the EAT made directions
for further questions to be put to the Employment Tribunal. That procedure was
itself challenged on appeal to the Court of Appeal for which permission was
given by Elias LJ. The judgment of the Court of Appeal dismissing the appeal was
given by Maurice Kay LJ (with whom Rimer and Etherton LJJ agreed [2011] EWCA Civ 187) who said:
“1. Dr Korashi is an obstetrician and gynaecologist. He was
employed by the respondent (the Trust) or its predecessor from 1 February 2002
until he was dismissed in March 2008. Between 2003 and 2008, the relationship
between Dr Korashi and the Trust was fractious. He has commenced several sets
of proceedings in the Employment Tribunal (ET). The first was dismissed. The
second was partially successful. We are concerned with the third, fourth,
fifth and sixth, which were commenced on various dates between July 2006 and
August 2007 before his dismissal. It raised issues of race discrimination and
detriment by reason of having made protected disclosures (“whistleblowing”).
There is also a pending unfair dismissal claim. So far as the present
proceedings are concerned, there was an eight week hearing in the ET which
ended on 15 December 2008, with further submissions in January 2009. The ET
promulgated its judgment, dismissing the claims, on 17 July 2009. Dr Korashi
has appealed to the Employment Appeal Tribunal (EAT). Initially, he prepared
his own grounds of appeal and these were subsequently revised. However, at
various stages in the EAT and now in this Court, Dr Korashi has been represented
by Mr Anthony Korn, who had represented him in the ET. The grounds of appeal
include “reasons” and “perversity” challenges.
2. The ET judgment is long (55 pages). It was described by the
EAT as being “in a slightly unusual form”: UKEAT/0424/09/JOJ, at paragraph 8.
The case for Dr Korashi is that it is fundamentally flawed. Appeals to the EAT
alleging an insufficiency or deficiency of reasons are by no means uncommon.
The same is true throughout the tribunal system and, to a lesser extent, in the
courts. The general principles applied in the ordinary courts are set out in English
v Emery, Reimbold & Strick Ltd [2002] 1 WLR 2409. They embrace the
possibility that the Court of Appeal may adjourn an application for permission
to appeal and remit the case to the trial judge with an invitation to provide
“additional reasons for his decision or, where appropriate, his reasons for a
specific finding or findings” (per Lord Phillips of Worth Matravers, at
paragraph 25). Such a procedure owes more to pragmatism than to purity. As
Lord Phillips said (at paragraph 24):
‘We are not greatly attracted by the suggestion that a
judge who has given inadequate reasons should be invited to have a second bite
at the cherry. But we are much less attracted at the prospect of expensive
appellate proceedings on the ground of lack of reasons.’
And, of course, if an original decision is overturned for
insufficiency of reasons, there may be no alternative to a lengthy and
expensive retrial.
3. The device of remission for an amplification or augmentation
of reasons has become particularly developed in relation to appeals to the
EAT. It has become known as the Burns/Barke procedure, following Burns
v Royal Mail Group [2004] ICR 1103 and Barke v SEETEC Business
Technology Centre [2005] ICR 1373. It is mentioned in the EAT Practice
Direction 2008, which refers to
‘an invitation [to the ET] from the judge or Registrar [of
the EAT] to clarify, supplement or give its written reasons.’
[…]
5. In due course, an approved list of questions was sent to the
ET and the ET, under the signature of the Employment Judge, provided its
answers. Two observations are appropriate this stage: (1) Dr Korashi
consistently opposed the use of the Burns/Barke procedure, contending
that it was inappropriate in this case, and his and Mr Korn’s input to the
procedure have been without prejudice to his right to appeal the order of the
EAT; and (2) ... .
6. The questions and the answers are of unusual length and
scope. Indeed, this is part of Dr Korashi’s objection to them. […]
16. The number and scope of the questions posed in this case
exceed anything within the knowledge of experienced counsel before us and
anything previously encountered by the members of the Court (two of whom have
substantial EAT experience). I also accept that the passage of time is a
discomforting feature. Indeed, if I had been looking at this case in the
immediate aftermath of the EAT’s order, I would have been seriously concerned
as to whether, after this amount of time, too great a burden and expectation
were being imposed on the ET by such an extensive request. However, we now
have not only the questions but also the answers. It is not for us to expose
them to detailed analysis but we are entitled to conclude, as I do, that the risk
caused by the passage of time seems not to have eventuated.
17. I have emphasised the word “seems”, because it illustrates
the confines of our task. The primary submission advanced by Mr Peter
Wallington QC on behalf of the Trust is that most, if not all, of the
complaints advanced on behalf of Dr Korashi can still be advanced at the
three-day hearing of the substantive appeal. There, the EAT will have the full
picture including access to the 3000 or so pages of documents produced before
the ET and will be in a far better position to see whether the questions posed
and the answers given point to unreliable recollection, reconstructed reasoning
or tailored fact-finding. In my judgment, this is an important submission and
I accept it. I am bound to say that I would have found it more difficult to
accept it if we had not had sight of the ET’s answers. We have had that
opportunity because Elias LJ and later Pill LJ refused to stay the EAT’s
order. The subsequent development of this appeal disposes me to the view that
this Court will usually be in a better position to deal with borderline cases
if it has the answers before it.
18. In my judgment, this case is close to the borderline but I
am satisfied that it falls on the permissible side of it. … The mere number
and extent of the questions posed, even if unique, have to be seen in the
context of a long and multi-faceted hearing. The questions do not range across
the piece. They relate to particular facts.
19. Nothing I have said will be or should be taken to be
dispositive of the substantive appeal. Mr Korn will be able to pursue his
critique of the judgment of the ET and of the answers to the questions posed by
the EAT in search of legal error. ....”
5.
We have reproduced the above citation since it encompasses a general
overview of the case and it puts in context the document received by the EAT
from the Employment Tribunal which we will describe as the further reasons.
Both the original and the further reasons, read with the questions which
prompted them, are therefore to be regarded as a whole. Mr Wallington
submitted, and Mr Korn did not reply, that what was essentially a full frontal
“reasons” challenge, and a perversity challenge to the original reasons, and
maintained in writing to the further reasons, was by the close of Mr Korn’s
submissions in the EAT a much more clinical attack in that certain findings
by the Tribunal were inadequately reasoned or perverse in the light of the
original and further reasons together.
The history of the Claimant’s complaints
6.
The Claimant is Egyptian of Arabic descent. Two strands are interwoven
throughout the history. These are complaints by the Claimant’s colleagues
about his treatment of them in 2003, starting with complaints of sexual
harassment by two female doctors. The second is the Claimant’s opinion that Mr
A was not adequate to the task for which he was appointed. In due course, the
Claimant’s complaints inured into 20 grievances, 11 Employment Tribunal claims
and substantial satellite litigation.
Employment Tribunal claims
7.
In the first claim, the Claimant represented himself and reasons were
given after a 7 day hearing by an Employment Tribunal (the first tribunal)
sitting at Cardiff under the chairmanship of Employment Judge Dr Rachel
Davies. It dismissed the Claimant’s claim for race discrimination and ordered
him to pay a fraction of the Respondent’s costs in the sum of £5,600. I sat
with Dr Corby and Mr Worthington and dismissed his appeal on grounds of bias,
made a provisional order of costs and refused permission to appeal: [2005]
UKEAT/0847/04
8.
In the second claim, an Employment Tribunal (the second tribunal) sitting
under the chairmanship of Employment Judge Stuart Williams sitting over four
days at Cardiff, for reasons registered on 22 December 2005 dismissed his claim
for race discrimination but upheld his claim for victimisation. It awarded him
loss of earnings in the sum of £32,600 and by a majority awarded £8,000 by way
of injury to feelings in respect of victimisation. Relevant to what follows in
this case is the depiction that the Claimant failed in his claim of direct race
discrimination but succeeded in his claim that having done a protected act,
that is, made a complaint of race discrimination, he was victimised. In a
technical sense he was not the object of race discrimination, but of
victimisation; but in a general sense he succeeded in a claim under the Race
Relations Act 1976, in the form of victimisation. We will return to what
the first and second tribunals said. He brought four further cases to the
Employment Tribunal which are known as cases 3, 4, 5 and 7, which are the
subject of the current appeal.
9.
Procedural steps were taken in cases 6, 7, 8 and 9 by which they were
withdrawn or struck out or not proceeded with, leaving cases 10 and 11,
essentially unfair dismissal claims pending.
Judicial review
10.
Meanwhile, the Claimant commenced proceedings in the Administrative Court
for judicial review of a decision by the Respondent to refuse him authorisation
to contact patients of Mr A’s with a view to showing that Mr A had treated them
negligently with the result that they were at risk. That was refused by
Stanley Burnton J, as he then was, on 19 January 2007. On appeal to the Court
of Appeal, Keene and Jacob LJJ rejected the Claimant’s contention that Stanley
Burnton J was biased and refused the substantive relief the Claimant had sought
by way of the application for judicial review (citation omitted consistent with
the above orders on anonymity). Consideration of Keene LJ’s judgment reveals
an early example of the Claimant’s complete failure to understand judicial
decision-making as will be apparent in the present case. That a judge takes
and adopts an argument on behalf of a party does not illustrate unfairness but
is a regular judicial technique.
Injunctions
11.
The Trust itself took steps to prevent the Claimant from soliciting
information from Mr A’s patients and an order was made on 7 June 2011 by His
Honour Judge Peter Clark sitting as a judge of the High Court after a three day
hearing in May. The order contained the anonymity orders described above and
granted injunctions to the Trust to prevent disclosure by the Claimant of Mr
A’s name and of patients’ records. Schedule 1 to the order includes a list of
costs orders made by some 10 judges and masters of the High Court against the
Claimant in those proceedings. The schedule of costs which Judge Clark ordered
to be the subject of a detailed assessment itself amounted to £340,000. The
Claimant did not attend those proceedings for he said he was ill and Judge
Clark declined an application to adjourn. He did not attend before us either
but we excused his attendance on presentation of medical evidence by Mr Korn
indicating his unfitness to attend through depression, and through the terminal
illness of his wife.
Regulator
12.
A further set of proceedings was commenced in the Employment Tribunal
against the General Medical Council (GMC), the regulator. This was struck out,
but not before a statutory questionnaire had been served by the Claimant on the
GMC which is relevant to one of the complaints on appeal. Instead, the
Claimant brought proceedings against the GMC in the Central London County Court;
an appeal in this case was heard on 9 June 2011 i.e. during our appeal. The
Claimant did not attend. We understand, because the Respondent is a second
defendant in those proceedings, that an appeal by the Claimant was dismissed
and he was subjected to an unless order in respect of other parts of the
proceedings. Costs were ordered to be paid.
13.
Further, the Claimant made a complaint to the GMC against Mr A, which was
dismissed.
14.
The Trust also made a complaint to the GMC about the Claimant, and the
evidence given at the resulting hearing of a GMC Fitness to Practice panel is
the subject of an application. Our information about many of the above
proceedings is incomplete, partly because Mr Korn appears only in the instant
proceedings.
Strasbourg
15.
In addition, we understand the Claimant has made an application to the
European Court of Human Rights against the UK Government in respect of a refusal by the High Court to grant
an adjournment of the Respondent’s application for summary judgment, in July
2010.
16.
Since the outcome of the present proceedings was that all his claims were
dismissed, he has succeeded only in the second Employment Tribunal claim. In
all of the legal fora we have cited above, he has accrued very substantial
costs orders and potential costs orders against him following assessment.
Legislation
Protected disclosures
17.
The introduction into the Employment Rights Act 1996 of
protection for whistleblowers by reason of the Public Interest Disclosure
Act 1998 (“PIDA”) provided rights to workers amenable in the Employment
Tribunals. Part IVA and V deal with the law and the procedure. For the
purposes of this case, a “protected disclosure” by section 43A must be a
“qualifying disclosure” for the purposes of s43B: it is a disclosure which in
the reasonable belief of the worker making the disclosure tends to show one or
more of matters such as a criminal offence or a failure to comply with a legal
obligation. It is common ground that the disclosures relevant in this appeal are
qualifying disclosures under s43B.
18.
There is then a cascade of different provisions which provide protection
according to the recipient of the disclosure viz an employer, another
responsible person, a legal adviser, a Minister of the Crown, a person
prescribed by regulations made by the Minister, and a disclosure to other
undefined persons. Finally there is disclosure of “an exceptionally serious
failure”. We are concerned in this case with the following:
“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.
43G Disclosure in other cases
(1) A qualifying disclosure is made in accordance with this
section if -
(a) the worker makes the disclosure
in good faith,
(b) he reasonably believes that the
information disclosed, and any allegation contained in it, are substantially
true
(c) he does not make the disclosure
for purposes of personal gain,
(d) any of the conditions in
subsection (2) is met, and
(e) in all the circumstances of the
case, it is reasonable for him to make the disclosure.
(2) The conditions referred to in subsection (1)(d) are –
(a) that, at the time he makes the
disclosure, the worker reasonably believes that he will be subjected to a
detriment by his employer if he makes a disclosure to his employer or in
accordance with section 43F,
(b) that, in a case where no person
is prescribed for the purposes of section 43F in relation to the relevant
failure, the worker reasonably believes that it is likely that evidence
relating to the relevant failure will be concealed or destroyed if he makes a
disclosure to his employer, or
(c) that the worker has previously
made a disclosure of substantially the same information –
(i) to his
employer or
(ii) in accordance
with section 43F.
(3) In determining for the purposes of subsection (1)(e)
whether it is reasonable for the worker to make the disclosure, regard shall be
had, in particular to -
(a) the identity of the person to whom the disclosure is
made,
(b) the seriousness of the relevant failure,
(c) whether the relevant failure is continuing or is
likely to occur in the future,
(d) whether the disclosure is made in
breach of a duty of confidentiality owed by the employer to any other person,
(e) in a case falling with subsection
(2)(c)(i) or (ii), any action which the employer or the person to whom the
previous disclosure in accordance with section 43F was made has taken or might
reasonably be expected to have taken as a result of the previous disclosure,
and
(f) in a case falling within
subsection 2(c)(i), whether in making the disclosure to the employer the worker
complied with any procedure whose use by him was authorised by the employer.
(4) For the purposes of this section a subsequent disclosure
may be regarded as a disclosure of substantially the same information as that
disclosed by a previous disclosure as mentioned in subsection (2)(c) even
though the subsequent disclosure extends to information about action taken or
not taken by any person as a result of the previous disclosure.
43H Disclosure of exceptionally serious failure
(1) A qualifying disclosure is made in accordance with this
section if -
(a) the worker makes the disclosure
in good faith,
(b) he reasonably believes that the
information disclosed, and any allegation contained in it, are substantially
true,
(c) he does not make the disclosure
for purposes of personal gain,
(d) the relevant failure is of an
exceptionally serious nature, and
(e) in all the circumstances of the
case, it is reasonable for him to make the disclosure
(2) In determining for the purposes of subsection (1)(e) whether
it is reasonable for the worker to make the disclosure, regard shall be had, in
particular, to the identity of the person to whom the disclosure is made.”
19.
It follows that every disclosure must meet the conditions in s43B. It
is conceded that the material disclosed meets the conditions in s43B(1)(a)–(f),
but there is a dispute as to the “reasonable belief” of the Claimant in so
disclosing it. It is also common ground that the conditions in s43B having been
met, the Claimant would also have to show he succeeded in passing through one
of the gateways viz s43C in his disclosure to the Trust, his employer; s43G in
his disclosure to the GMC; or s43G or s43H in his disclosure to the Police.
These are the three disclosures relevant for this part of the appeal.
20.
By ss47B and 48(1A) the Claimant has the right “not to be subjected to
any detriment by any act, or deliberate failure to act, by his employer done on
the ground that the worker has made a protected disclosure”. By s48(2) “it is
for the employer to show the ground on which any act or deliberate failure to
act was done”.
21.
A complaint must be made to an Employment Tribunal within three months
“beginning with the date of the act or the failure to act to which the
complaint relates, or where that act or failure is part of a series of acts or
failures the last of them” (s48(3)(a)). There is provision for where it is not
reasonably practicable to present such a complaint but that is not the subject
of an appeal. A definition of the “date of the act” is provided in s48(4):
“(4) For the purposes of subsection (3) –
(a) where an act extends over a
period, the “date of the act” means the last day of that period, and
(b) a deliberate failure to act shall
be treated as done when it was decided on;
and, in the absence of evidence establishing the contrary, an
employer shall be taken to decide on a failure to act when he does an act
inconsistent with doing the failed act or, if he has done no such inconsistent
act, when the period expires within which he might reasonably have been
expected do the failed act if it was to be done.”
Discrimination and victimisation
22.
The Race Relations Act 1976 provides by s1 for racial
discrimination. What is known as direct discrimination in the authorities
occurs when a person on racial grounds treats another less favourably than he
treats or would treat other persons.
23.
Section 2 protects people who have brought proceedings or done anything
by reference to the Act: discrimination by way of victimisation. Here the
person committing the wrong is described as the discriminator and the wrong
occurs when the discriminator treats the person victimised less favourably than
in those circumstances he treats or would treat other persons, and does so by
reason that the person victimised has done what is described generally in the
authorities as a protected act.
24.
Discrimination in the employment field is outlawed by section 4.
25.
Proceedings must be brought within three months but there is an extension
where a claim is brought out of time but it is just and equitable to extend
time. There is the same provision relating to acts done over a period of time
known as continuing acts in the authorities: see s68.
Reasons
26.
An employment tribunal is required to give reasons in writing when asked
within the relevant period. By rule 30(6) of the Employment Tribunals Rules of
Procedure the reasons should include the following information:
“(6) Written reasons for a judgment shall include the following
information –
(a) the issues which the tribunal or
Employment Judge has identified as being relevant to the claim;
(b) if some identified issues were
not determined, what those issues were and why they were not determined;
(c) findings of fact relevant to the
issues which have been determined;
(d) a concise statement of the
applicable law;
(e) how the relevant findings of fact
and applicable law have been applied in order to determine the issues; and
(f) where the judgment includes an
award of compensation or a determination that one party make a payment to the
other, a table showing how the amount or sum has been calculated or a
description of the manner in which it has been calculated.”
The people in the case
27.
In cogent reasoning extending over several pages of its judgment, the
Tribunal gave its assessment of the credibility of the Claimant. He was
neither credible nor reliable. It gave a number of illustrations for the basis
of this finding. The finding was relevant to the essential Claimant-centred
issues it had to determine under the above statutes such as good faith, belief,
reasonableness and detriment (or less favourable treatment, for it is conceded
that they are the same). The Respondent’s witnesses on the other hand were
candid.
28.
The events took place in the Department of Obstetrics & Gynaecology
at the Trust (O&G). The professional institution to which the actors in
the drama belong is the Royal College of Obstetricians & Gynaecologists
(RCOG). The Trust has access to the Communications Skills Unit (CSU).
a. The
Claimant had a staff grade appointment in O&G from 2 February 2002 until his
dismissal (after these proceedings) in 2008.
b. Mr Peter
Bowen-Simpkins is the retired distinguished consultant in O&G who was
appointed by the Respondent in 2004 to investigate the Claimant’s clinical
allegations against Mr A.
c. Mr A
is a consultant in O&G appointed in December 2002 and was for a brief
period the clinical director of O&G.
d. Mr John
Calvert was at the material time the medical director of the Trust and previously
a consultant in O&G;
e. Mr
Geraint Evans was at the material time a director of human resources.
f. Mr
Freites was at the material time a consultant in O&G who was asked to
mentor Mr A but could not continue to do so as a result of a road accident
which kept him off work between September 2003 and April 2004.
g. Mr
Gasson and Dr Joels were at the material time consultants in O&G;
h. Dr
Matthes was at the material time a consultant paediatrician;
i. Professor
Murdoch is a professor of O&G who together with Mr Oram was appointed by
the RCOG to report on concerns about Mr A and were responsible for the
re-training of Mr A.
j. Professor
John Shepherd is professor of O&G at a different hospital appointed to
investigate and report on four deceased patients referred by the Claimant to
the Police and then again on 10 out of 120 patients named by the Claimant
selected by the Police.
k. MD
is a patient whose husband made a complaint about her treatment by Mr A in May
2006 and LJ is a patient who having made a claim against the Respondent for
negligence by the Trust as a result of treatment by Mr A achieved a settlement
of a claim in negligence.
Our approach to the appeal
29.
Despite careful case management at both levels, this case took 40 days
in the Employment Tribunal and 5 days in the EAT. The EAT bundle runs to 1500
pages and there is an application to adduce a further 300 pages. The Claimant
presented 11 claims to the Tribunal. The judgment and further reasons on four
of them run to 71 pages. A list of issues for appeal arising out of the
Amended Grounds of Appeal identifies 69 issues. Many of those include multiple
questions. Even after bias and other grounds were dismissed at the preliminary
hearing, there are thus 90 issues before us plus the issues relating to new
evidence. The “outline chronology” is 15 pages and the skeleton arguments on
appeal and for the new evidence amount to 150 pages. The new evidence is 300
pages. There are 60 authorities.
30.
In his closing reply Mr Korn made clear that he did not expressly
concede any point, since his client was not in attendance at the EAT and. as he
put it, he has strong opinions. Only a few fell away as a necessary result of
exchanges in court. The tone was set when Mr Korn opened by correcting the
Employment Tribunal’s observation that the “arguments
are sophisticated and voluminous amounting to over 200 pages” to “over 250
pages”.
31.
Our approach to this massive case is informed by the following
principles:
(1) In a discrimination case “drastic pruning ... to
exclude peripheral and minor issues from the list agreed by the parties” is
required at the Employment Tribunal: St Christopher’s v Walters-Ennis
[2010] EWCA 921 at para 14 per Mummery LJ; and we take it a fortiori on
appeal.
(2) A Tribunal is under a duty to
provide adequate reasons for its decision so that the parties and on appeal an
appellate court can understand the findings and reasons: Meek v City of Birmingham District Council [1987] IRLR 250 CA; Greenwood v
NWF [2011] ICR 896 EAT.
(3) It is permissible for a
Tribunal in giving its reasons to adopt a submission made orally or in writing
by one of the parties: English v Emery Reimbold & Strick [2003] IRLR 710. This is particularly helpful where submissions are in writing and
made by counsel.
(4) The approach to an
Employment Tribunal’s reasons must be non-fussy, non-pernickety and must not be
hyper-critical: Fuller v London Borough of Brent [2011] ICR 806
per Mummery LJ in the majority.
(5) A judgment will not be
struck down as perverse unless an overwhelming case has been made: Yeboah
v Crofton [2002] IRLR 634 CA per Mummery LJ.
32.
To those general principles can be added the specific approach required
in a case of whistleblowing. It is common ground that the approach Mr
Stanworth and I took in the EAT in Boulding v Land Securities Trillium
Ltd UKEAT/0023/06 is correct.
“24. … The approach in ALM v Bladon is one to be followed
in whistle-blowing cases. That is, there is a certain generosity in the
construction of the statute and in the treatment of the facts. Whistle-blowing
is a form of discrimination claim (see Lucas v Chichester UKEAT/0713/04).
As to any of the alleged failures, the burden of the proof is upon the Claimant
to establish upon the balance of probabilities any of the following.
(a) there was in fact and as a matter of law, a legal
obligation (or other relevant obligation) on the employer (or other relevant
person) in each of the circumstances relied on.
(b) the information disclosed tends to show that a person has
failed, is failing or is likely to fail to comply with any legal obligation to
which he is subject.”
33.
The issues in this case involve very strong feelings extending to the
treatment of vulnerable women patients, babies, relations between healthcare
professionals, the regulator (the GMC), the professional bodies (RCOG),
National Health Service bodies and the Police. We also recognise that
allegations of race discrimination are fact-sensitive and should in a
pluralistic society be vindicated by a full hearing: Anyanwu v South Bank
University Students Union [2001] ICR 391 HL per Lord Steyn. In the
same way as protection is given to whistleblowers, protection against
victimisation of those who make complaints under the RRA is also paramount for
the enforcement of rights in this jurisdiction.
34.
At the outset of his written submissions, Mr Wallington QC acknowledges
that there are imperfections in the writing of the ET judgment and its further
reasons, but given the approach that we take above he contends that the
decision should be left alone. He also submits that many of the issues on
appeal are conditional upon success by the Claimant on certain primary
contentions. For example, the conditions in sections 43B and 43G are
cumulative and a fall at any one of the hurdles means the claim must fail.
35.
We are grateful for the Employment Tribunal for having, no doubt at the
firm insistence of the parties, made decisions on all of the conditional
grounds set out in the statute, but on appeal the position is different. We
take the view that if we uphold the Tribunal on one of its primary findings, it
is not necessary for us to add to the hypothesis what we would decide in
relation to any of the subsidiary conditions. There are also some
jurisdictional points which if they are upheld, or if they succeed here, would
stop some of the complaints at the threshold e.g. that they are out of time.
Nevertheless, we will address these issues where we consider they are necessary
for the decision we make on appeal.
The issues
36.
Doing the best we can, we summarise the issues on appeal in the
following way. There are three PIDA complaints. They all relate to Mr
A’s treatment of patients.
a. On 6
January 2005 the Claimant complained to the GMC about the treatment of six
patients. This is under s43G. (The GMC as a regulator might have been
considered to be a prescribed person under s43F but at that stage it was not so
prescribed.) None had died. Mr Bowen-Simpkins had investigated and on 1
December 2004 the Respondent had told the Claimant no further action would be
taken.
b. On 31 May
2006 the Claimant complained to the Police about four deaths occurring by
September 2004. He included the RRA questionnaire previously served on the
GMC. This is under s43G and 43H.
c. On
26 June 2006 the Claimant disclosed 120 cases relating to patients’ care and
the absence of informed consent to procedures for which they were admitted.
This is under s43C, a disclosure to the Claimant’s employer.
He complains that he suffered detriments as a result of making
these disclosures and complained to the Employment Tribunal within time. Those
claims were dismissed.
37.
Under the RRA, the complaint is made of direct race
discrimination by Dr Joels at one incident on 16 February 2006 in the operating
theatre. The Tribunal did not determine this complaint specifically. But Mr
Wallington submits its answer would be clear in the light of its related
findings.
38.
As to victimisation contrary to s2 of the RRA, the basis is a set
of letters written in July/August 2004 by the consultants in the Claimant’s
department, making complaints about the Claimant following their treatment by
him in the first Employment Tribunal proceedings. The second Employment
Tribunal (the Williams Tribunal) found that he was victimised for raising the
first Tribunal claim but the Thomas Tribunal, in the judgment under appeal,
dismissed the claims of victimisation otherwise.
39.
In short, apart from the Dr Joels complaint, the Claimant failed on all
of his complaints as a result of failure to meet one or more of the essential
ingredients of the relevant statutory provisions e.g. reasonable belief, good
faith, detriment; or was out of time for bringing the claim and discretion was
not exercised in his favour.
40.
In the light of the above we will take what we regard as a proportionate
approach in accordance with the overriding objective to resolving the principal
dispute between the parties.
The facts
41.
On 2 February 2002 the Claimant was appointed at a staff grade post in
O&G. On 2 December 2002 Mr A was appointed as a consultant in O&G
after an unsuccessful attempt by the Respondent to recruit a sub-specialist in
gynaecological oncology. On 6 March 2003 the two men conducted their only
operation together on a patient.
42.
Between 7 March and 16 May 2003 the Claimant was suspended. He was
suspended a second time between 1 September 2004 and 10 August 2005. He was
suspended a third time on 24 July 2006 and thereafter at regular intervals without
a break until 2007 and as we understand it his dismissal in 2008. The first
suspension followed allegations of sexual harassment made by two female junior
doctors. The Claimant’s complaint of race discrimination was dismissed by the
first Employment Tribunal on 22 July 2004. The second suspension followed the
consultants’ letters of July/August 2004. The second Employment Tribunal heard
the Claimant’s complaints of race discrimination and victimisation arising out
of that suspension in August 2005 and gave judgment on 18 October 2005. It
upheld his claim of victimisation and awarded substantial compensation, and
dismissed his claim of race discrimination. The third suspension followed the
Claimant’s complaint to the Police, which constitutes the second protected
disclosure claim in this appeal and it also followed the third disclosure claim
in this appeal, the one made to the Trust on 26 June 2006 (the 120 patients).
43.
On 27 September 2003 Mr A sent the Claimant home following an incident
between them. The Claimant wrote a complaint making allegations about the
treatment by Mr A of his patients and alleged racial harassment against himself.
As to the clinical issues, the Respondent conceded that this is a protected
disclosure but it does not fall within the issues to be decided on appeal. Two
patients had died on 26 and 27 September 2003 and these were the subject of
complaints made by the Claimant on 21 October 2003. These complaints were
investigated and rejected but no report was given to the Claimant. However, in
response to further chasing from the Claimant Mr Bowen-Simpkins was appointed
to investigate clinical issues the Claimant had raised. In the course of that
investigation on behalf of the Trust, on 20 September 2004, whilst suspended,
the Claimant provided details of six patients including patient LJ who had
issued proceedings against the Trust. These are six non-fatal patients. The
Respondent accepts that this is a protected disclosure but again this is not
one of the issues live on appeal. On 3 November 2004 Mr Bowen-Simpkins
reported to the Trust that four of the six cases were correctly treated, a
fifth patient’s notes went missing and he did not investigate LJ since the case
was pending. The Claimant was told no further action would be taken but the
Bowen-Simpkins report was not disclosed to him.
44.
On 6 January 2005 the Claimant reported Mr A to the GMC. This is the
first disclosure relied on by the Claimant in these proceedings. It is relied
upon under s43G. It relates to the six previously investigated patients.
Further information was sent to the GMC on 12 March 2005 from which having
heard argument upon it, as a matter of construction, it appears to us that the
Claimant had read the Bowen-Simpkins report. This is relevant to the
reasonableness of the Claimant’s belief. The Claimant also reported Mr
Bowen-Simpkins and four other consultants, Mr Calvert, Mr Gasson, Dr Joels and
Dr Matthes, to the GMC in early 2005. The Respondent did not know about the
complaint to the GMC until 12 May 2005.
45.
Between January and 10 August 2005 there was a number of meetings relating
to apprehension by consultants about the Claimant’s return to work from
suspension and one solution was for the Claimant to attend the Communication
Skills Unit; and also about Mr A’s competence. As a result of the latter, Mr A
agreed to limit his surgery to benign cases and he should be supervised. A team
from the RCOG would be called in to investigate Mr A. This is the Murdoch/Oram
team, who visited the Trust on 16 August 2005 and recommended a two-year
re-training programme for Mr A. This was subsequently accepted by the Trust
and Mr A and implemented from July 2006. The Claimant was not interviewed nor
did he see a copy of the RCOG report.
46.
Thereafter the second Employment Tribunal found in the Claimant’s favour
on his victimisation claim and on 23 December 2005 awarded him compensation
including aggravated damages. He also issued a number of grievances.
47.
On 7 February 2006 the GMC notified the Respondent and the Claimant that
no action would be taken on complaints he had made against the consultants and
Mr Bowen-Simpkins.
48.
On 16 February 2006 Dr Joels excluded the Claimant from the operating
theatre. This was held not to be a detriment for having made a protected
disclosure but no finding was made on the Claimant’s case that this was also a
detriment contrary to the RRA.
49.
As part of the Claimant’s return to work arrangements, the requirement
that he attend the CSU meeting was not followed through by him and on 24 May
2006 he was warned that his failure to do so would be a disciplinary issue.
50.
On 31 May 2006 he visited Swansea Police station and spoke to DI
Hughes. This is the Claimant’s second disclosure relevant in these
proceedings. It makes allegations that Mr A was associated with the deaths of
four patients as a result of his gross negligence. There was a dispute about
the precise allegation made but it is clear enough that there was association
between Mr A, his competence, and four deaths. These included two who died on
26 September 2003 and two others not previously mentioned by the Claimant to
the Respondent. The Claimant also left the RRA questionnaire which he had
served on the GMC. It is contended that this is protected by s43G and 43H.
The Police met the Respondent’s leaders and on 19 June 2006 Dr Calvert decided
there was no evidence of negligence or reason to suspend Mr A but that an
independent expert should review the four cases. To this end on 22 June Professor
Shepherd was appointed, with the agreement of the Police.
51.
Almost immediately thereafter on 26 June 2006 the Claimant wrote what is
relied on as being his third disclosure, this time under s43C since it was to
his employer, attaching a list of 120 patients. These had been operated on by
or under the supervision of Mr A, 105 of whom were cancer patients. The
Claimant also contended that the patients had been misled into consenting to
their operations since Mr A was not a qualified cancer surgeon. A similar
complaint was made by the Claimant on 20 July 2006. At around this time (30
June 2006) the Claimant presented the first of the claims relevant to this
appeal.
52.
Professor Shepherd reported to the Trust on 17 July 2006 on his
investigation into the four deaths and the Claimant on 20 July 2006 raised the
grievance about the sufficiency of Professor Shepherd’s report.
53.
On 24 July 2006 the Trust concluded that the Claimant’s allegations to
the Police were malicious and that he should be suspended and reported to the
GMC, and the following day Professor Shepherd made his final report to the
Trust. The complaint to the GMC about the Claimant’s going to the Police was
made on 25 July 2006. On 26 July 2006 following the Claimant’s failure to
attend a meeting, he was suspended.
54.
After further contacts between the Claimant and the Police, on 2 August
2006 DI Hughes said no further action would be taken. The Claimant protested
and asked the matter to be referred to DCI Azzopardi. DCI Azzopardi and the
Respondent agreed that Professor Shepherd should be asked to investigate a
sample of the 120 patients revealed by the Claimant in his third disclosure
relevant to these proceedings. On 18 March 2007 Professor Shepherd formally
reported on his investigation of the 10 and found no negligence. He raised
questions about Mr A’s qualifications and training.
55.
The Claimant was suspended for three substantive periods: 7 March-15 May
2003; 1 September 2004-10 August 2005; 24 July 2006 – 4 March 2008 dismissal
An overview of the case
56.
We consider it appropriate to stand back and take an overview of the
Claimant’s campaign. We use this term as it was the term used by Mr Korn to
describe the Respondent’s actions against the Claimant. We have illustrated how
wide spread forensically is his challenge to Mr A’s performance. As to his
employment rights, the Claimant has asserted these before three separate
Employment Tribunals, three divisions of the EAT and one division of the Court
of Appeal. No court has been given as full a picture of the Claimant’s
forensic history as we have.
57.
The time has come to be clinical with the court’s time for him. At the
outset of our findings on this appeal we make it clear that where we do not
mention a matter, we accept in full the submissions of Mr Wallington QC in his
written submissions in this case. This is because on the minimal requirements
for the Claimant to succeed, he fails at one or a number of the hurdles placed
in front of him. Given that there are 69 disputes on the appeal, we consider
it appropriate for us to reach for a cicerone and, although we accept the
principal submissions and will reason them through, it follows that we accept
the subsequent submissions without analysing each ingredient for we accept the
substance. We accept that if the Claimant fails on one of the key ingredients
of his claim, it is not necessary for a court on appeal to decide the
hypothetical situation which might arise had the first instance tribunal
decided in his favour on another ingredient. We consider the Claimant can have
no complaint about this given that in every forum in which he has appeared over
the last eight years from his first suspension and claim in March and May 2003
respectively, save for the second Employment Tribunal, he has failed in his
signal campaign against Mr A which is the basis for all of this litigation.
The time has come for the court system to draw a line under Dr Korashi’s ad
hominem complaint. He has told us how bad this is for his health and for that
of his wife. We do not hold out great hopes that this will end his campaign.
The PIDA complaints
58.
It is worth considering that from the outset the Claimant made PIDA
complaints as to Mr A’s clinical practice to the Respondent in 2003 and 2004.
He suffered no detriment as a result of doing so.
Disclosure to the GMC
59.
His first contention in these proceedings relates to the disclosure to
the GMC on 6 January 2005. The Claimant had to satisfy the Tribunal that the
disclosure was protected under s43A by reason of it being a qualifying
disclosure under s43B and 43G. The Employment Tribunal found that he failed
because he was “disingenuous”. It formed the view that he had to show that the
material was objectively reasonable for him to believe. This relates to the
allied complaint by the Claimant about the outcome of the sexual harassment
complaint by others.
60.
The Tribunal found that the Claimant’s failure to take basic steps to
contact the principal vessel for his complaints that is, Mr Bowen-Simpkins,
cast doubts on his motives of good faith. The Tribunal addressed the question
of whether a person could behave reasonably yet be mistaken in accordance with Babula
v Waltham Forest College [2007] IRLR 346 CA. It decided that whether
or not the information disclosed is true is relevant but not definitive as to
the question of reasonableness. It is unclear as to whether or not the
Tribunal found that the Claimant proved that the disclosure was a qualifying
disclosure under s43B since this would have to include a favourable view as to
the reasonable belief of the Claimant.
61.
There seems to be no dispute in this case that the material for the
purposes of s43B(1)(a)-(e) would as a matter of content satisfy the section.
In our view it is a fairly low threshold. The words “tend to show” and the
absence of a requirement as to naming the person against whom a matter is
alleged put it in a more general context. What is required is a belief. Belief
seems to us to be entirely centred upon a subjective consideration of what was
in the mind of the discloser. That again seems to be a fairly low threshold.
No doubt because of that Parliament inserted a filter which is the word
“reasonable”.
62.
This filter appears in many areas of the law. It requires consideration
of the personal circumstances facing the relevant person at the time. Bringing
it into our own case, it requires consideration of what a staff grade O&G
doctor knows and ought to know about the circumstances of the matters
disclosed. To take a simple example: a healthy young man who is taken into
hospital for an orthopaedic athletic injury should not die on the operating table.
A whistleblower who says that that tends to show a breach of duty is required
to demonstrate that such belief is reasonable. On the other hand, a surgeon
who knows the risk of such procedure and possibly the results of meta-analysis
of such procedure is in a good position to evaluate whether there has been such
a breach. While it might be reasonable for our lay observer to believe that
such death from a simple procedure was the product of a breach of duty, an
experienced surgeon might take an entirely different view of what was
reasonable given what further information he or she knows about what happened
at the table. So in our judgment what is reasonable in s43B involves of course
an objective standard - that is the whole point of the use of the adjective
reasonable – and its application to the personal circumstances of the
discloser. It works both ways. Our lay observer must expect to be tested on
the reasonableness of his belief that some surgical procedure has gone wrong is
a breach of duty. Our consultant surgeon is entitled to respect for his view,
knowing what he does from his experience and training, but is expected to look
at all the material including the records before making such a disclosure. To
bring this back to our own case, many whistleblowers are insiders. That means
that they are so much more informed about the goings-on of the organisation of
which they make complaint than outsiders, and that that insight entitles their
views to respect. Since the test is their “reasonable” belief, that belief must
be subject to what a person in their position would reasonably believe to be
wrong-doing.
63.
The finding by the Tribunal that the disclosure was not made in good
faith pursuant to s43G is fatal. It has given its reasons for so finding. The
matter was in the hands of Mr Bowen-Simpkins and the Claimant made no steps to
draw the matters to his attention further than his initial disclosure. The
Tribunal found that this cast doubts on the motives of good faith. It also
regarded the Claimant as disingenuous in disclosing the matters relating to the
sexual harassment when at the same time he asked that they be disregarded. The
Tribunal gave cogent reasons why it found that the Claimant had not acted in
good faith.
64.
It follows that what the Tribunal decided thereafter, and our views upon
it, are not necessary for the decision. If we were to decide we would follow
the reasoning of Mr Wallington QC. The additional layer placed by s43G upon a
disclosure made pursuant to s43B is that the claimant reasonably believes that
“the information disclosed and any allegation contained in it are substantially
true.” The dispute between the parties is as to whether it is sufficient that
the gist of a complaint, here as to the competence of Mr A, qualifies as being
substantially true or whether the information and each allegation must be
reasonably believed to be true. Counsel say that there is no authority on
this. The example given by Mr Wallington is of a disclosure made by scattergun
which includes one point which qualifies under s43G and nine which do not.
This he contends would not mean that each allegation is substantially true.
65.
In this case it is plain that not all the allegations made to the GMC
were believed by the Claimant to be substantially true. Instead, reliance is
placed upon the gist which is that Mr A was not properly qualified. Applying
the direction which is to give a generous approach to whistleblowers, we do not
consider that this subsection would be satisfied. The structure of s43 is to
impose additional obligations the further removed the recipient of the
information is from the worker’s employer. The first place for any worker to
turn is to his employer. Next is the legal adviser (s43D) government minister
(s43E), regulator (s43F) and then any other person (s43G, s43H). At each stage
additional responsibilities are placed upon the discloser. The reason for this
is understandable. You do not go beyond the person who might immediately take
action unless there are special circumstances as set out in each of the
sections. A fairly weak condition is placed upon disclosure to an employer but
strong conditions are placed upon disclosure to those outside the
relationship. That is why s43G(1)(b) requires not only the information but
each allegation under it to be substantially true. It will be recalled that
under s43B allegations are not required to be made. This is the softest
treatment of information provided by the statute; the use of the words “tend to
show” and “reasonable” belief without the requirement of allegations being made
all point in that direction.
66.
However, once one goes outside the immediate confines of the employment
relationship and to an outsider, here the GMC, additional layers of
responsibility are required upon the discloser. The information must in the
reasonable belief of the discloser be substantially true. There is no
obligation to make allegations but if they are made they too must in the
reasonable belief of the discloser be substantially true. Both information and
allegations must fit that criterion. Here on the facts found by the Tribunal
they did not. If we were required to decide this matter it would not be
sufficient to show that a matter was believed to be substantially true when a
number of the allegations were not so believed.
67.
The Employment Tribunal may have placed too heavy a burden of proof upon
the Respondent as to lack of good faith (see Street v Derbyshire
Unemployed Workers Centre [2005] ICR 97 at paragraph 6). But this can
only have been in the Claimant’s favour. The issue of good faith is so much a
matter of impression for an Employment Tribunal that it must be rare indeed for
an appellate court to have jurisdiction to intervene. Subsequent to the
decision in this case the EAT decided Meares v Medway Primary Care Trust
UKEAT/0065/10 in which it was said that a tribunal must decide whether the
disclosure was made in good faith or for another motive but need not decide the
predominant motive where there were mixed motives. Permission to appeal was
refused by Rimer LJ, who emphasised the essentially factual nature of this
question being unassailable on appeal: [2011] EWCA 897. The Tribunal gave
reasons why it felt that the Claimant had not gone through the Bowen-Simpkins
channel and why he had raised allegations of race discrimination. The
Tribunal’s decision that he lacked good faith was one for it to decide. It has
given reasons for its decision. It was open to it so to decide and we see no
error. It must be borne in mind that this is the first condition in s43G. It
is going beyond the requirement of reasonable belief in s43B and requires a
finding by the Tribunal on that specific point. That is enough to decide the
issue against the Claimant on the PIDA disclosure to the GMC
68.
As to reasonable belief, were it necessary for us to decide this, the
Tribunal in its further reasons has given ample basis for its finding that
there was no reasonable belief by the Claimant that the treatment of the other
patients was negligent.
69.
In any event, the Tribunal found that the Claimant suffered no detriment
as a result of this. The Tribunal addressed itself directly as to the meaning
of detriment: see Shamoon v Chief Constable of the RUC [2003] ICR 337 HL. It was accepted by the Claimant that detriment here means the same as
less favourable treatment under the Race Relations Act which will be relevant
later in this judgment. Attendance at the CSU was agreed by the Claimant in
any event. This could not be held to be either perverse or an error of law.
Apart from the CSU matter, all of the other events said to constitute a
detriment arising out of the first disclosure were out of time. The Tribunal
gave reasons why it would not extend time. There appears to be no significant
challenge to those findings.
70.
In summary, we uphold the judgment of the Tribunal that the first
disclosure was not made in good faith, and if necessary that the finding by the
Tribunal as to what the Claimant believed to be substantially true as to the
information and allegations was correct. In any event he suffered no detriment
save for the CSU matter which is one which he agreed and which we consider to
be a sensible managerial approach to his return to work. The others were out of
time. If after the issue of good faith it were necessary for us to decide the
succeeding three issues we would hold in sequence that the Tribunal made
decisions correct in law.
71.
The Employment Tribunal set out its reasoning behind its decision on the
lack of good faith in the following way:
“39. The disclosure to the GMC ON 6 January 2005. This is a
disclosure brought under the provisions of Section 43(g). Dr Korashi did not
just refer to the GMC what was referred to Mr Bowen-Simkin. He referred
additionally to allegations of racism following the dismissal of such by the
first Employment Tribunal. At page 1014 the attention of GMC is drawn to the
penultimate paragraph and refers to racial discrimination and victimisation
related to the unsubstantiated allegations of sexual harassment “mediated” by
Mr A and professional misconduct “mediated” by Mr A leading to three
suspensions. It is disingenuous for him to raise these matters at all even
though he asks the GMC that they be ignored so far as an investigation is
concerned. The fact is that the reference to Mr A’s involvement in the sexual
harassment allegations is wholly without any factual basis. Further his
assertion that Dr Calvert was protecting Mr A gives a misleading view as to the
reason why there was a delay after the appointment of Mr Gasson in the
preliminary investigation. Dr Korashi objected to his appointment which was
one cause of delay. Whether the objection was for good or bad reason. The
inertia of Dr Korashi to take basic simple steps to contact Mr Bowen-Simpkins
by telephone or letter before escalating matters casts doubt on the motives of
good faith. There could not have been anything objectionable in such course
and whilst a hospital cleaner or nurse may well have felt unable to make such
an approach to a retired consultant, such understandable reticence would not in
our view apply in the case of Dr Korashi. If he had done so he would have been
able to test his concern. We come to this conclusion despite the Claimant’s
argument that it is not up to the whistleblower to take such steps. A proper
sensible balance should be recognised. We think that in the circumstances Dr
Korashi did not take that course because the reaction of the Respondent meant
that Dr Korashi’s concerns had not been upheld by Mr Bowen-Simpkins which was a
conclusion not acceptable to Dr Korashi. The Respondent was remiss in failing
to inform the Claimant of the result of Mr Bowen-Simpkins’ investigations with
any detail other than that no action should be taken which was regrettable and
unhelpful in hindsight but not a cause of justifiable suspicions as the remedy
was in the hands of Dr Korashi.
40. We reject the contention that it was objectively reasonable
to have believed the complaint. We remind ourselves of the principles in Babula
v Waltham Forest College (2007) IRLR 346. We accept that the belief may be
reasonable even if mistaken. The test must be an objective one and whether or
not the disclosure is in fact true is relevant although not definitive of the
issue of reasonableness.
41. We agree with Counsel for the Respondent that Section
43(g)(1)(e) requires that the Claimant must reasonably believe that the
information disclosed and any allegation contained in it is substantially
true. On a simple reading of the words in the Statute, the information is in
reference to all the information and the allegation must be in reference to the
allegations, if any, and not one out of a number. We accept and agree with the
reasons set out by Mr Wallington at paragraphs 48 and 49 of Part 2 of his
submissions that his belief of mistreatment of patients JW and LH formed part
of information which should be objectively reasonable given that Dr Korashi is
experienced and well qualified in his field.
42. The issue of good faith also arises because of the of
cavalier criticism of the way that Mr A dealt with cancer patients as outlined
in the Evidence of Dr Korashi at Para 47 of his statement. This indicates
“ventilation of a sense of grievance “that nothing was to be done following the
Bowen-Simpkins investigations”. Four of the six cases referred to were not
cancer cases.”
72.
It will be noted that the disclosure to the GMC contained more than was
disclosed to Mr Bowen-Simpkins. The Tribunal had already found in respect of
those disclosures on 20 September 2004 that they were sufficient for the
purposes of section 43C for the purposes of good faith. It is plain that the
inclusion of the other materials set out in paragraph 39 of the Tribunal’s
Reasons made the disclosure to the GMC one tainted by lack of good faith. The
Tribunal directed itself correctly in respect of the application of the
judgment of the Court of Appeal in Street v Derbyshire Unemployed Workers
Centre [2004] IRLR 687 and plainly found that the inclusion of the
additional elements in the complaint to the GMC exhibited an ulterior motive.
73.
Further, the Tribunal went on to find that the Claimant did not satisfy
the second condition in section 43G in that he did not have a reasonable belief
that each of the allegations comprised in the information disclosed was
substantially true. The Tribunal found on the basis of substantial evidence
that the Claimant suffered no detriment as a result of this disclosure.
Further, in respect of each of the detriments which the Claimant asserted and
the Tribunal dismissed the claim was made out of time. In our judgment the
Tribunal was entitled as a matter of fact to take the view that these
complaints were out of time and there was no appeal against the finding that it
was reasonably practicable for them to be so presented. Thus the Claimant
failed to sustain his complaints in each of the four respects which are
essential ingredients for a complaint made under the combination of section 43B
and 43G (section 43H was not relied on in this respect).
74.
Mr Wallington accepts that the Tribunal did not make findings under
section 43G(2) and reasonableness under s43G(1)(e) read together with s
43G(3). We accept his submission that unless the Claimant satisfied each of
the four ingredients cited above it would be unnecessary for the Tribunal to
make findings in respect of s43G(2) and 43G(3). We do not consider such
failure to amount to an error of law but if it were, the decision it made in
respect of the Claimant’s failure to prove the other ingredients made its
decision overall unarguably right. See Dobie v Burns International
Security Services UK Ltd [1984] ICR 812 CA.
Disclosure to the Police
75.
The Claimant made a disclosure to the South Wales Police on 31 May
2006. The Tribunal held that this was not a protected disclosure under s43G or
s43H. The disclosure related to the deaths of four patients. It is plain that
the Claimant was making a complaint to the Police that four deaths had occurred
as a result of the negligence or under qualification of Mr A. This was a
finding based on ample evidence coming from the Claimant himself and the report
of DI Hughes. A dispute between the parties as to the precise nature of the
allegation does not obscure the central point we have summarised above. Taking
a shortcut to the final ingredient for protection under s43B, the Claimant did
suffer a detriment in that he was suspended because he made the complaint. And
his complaint to the Tribunal was in time. However, issues of good faith and
reasonable belief arise again in respect of the complaint to the Police as they
did in the complaint to the GMC. The task has been simplified on appeal for Mr
Korn accepted that, at least in respect of one of the four patients, the
Claimant could not have believed the patient died as a result of the gross
negligence of Mr A. But he says that it is not necessary to show that each
example was reasonably believed to be correct provided in substance there was
such belief.
76.
In dealing with the submissions on both of these points, we recall the
example given above as to the standard by which reasonable belief is to be
judged. Dr Calvert and Professor Shepherd formed the view there was no
connection between Mr A’s competence and qualifications and the deaths of the
four patients. He had not operated on three of them. It was Professor
Shepherd’s opinion that the allegation made by the Claimant to the Police was
made without knowledge of the hospital records. The examination of the records
by Professor Shepherd showing that such evidence was not forthcoming against Mr
A, was evidence the Employment Tribunal was entitled to reach. Alternatively,
if the Claimant had not examined the patients’ records, the Tribunal was
entitled to form the view that the Claimant acted without objectively
reasonable belief in the truth of his allegations.
77.
In its findings on this point (paragraph 52 of its Reasons) the Tribunal
makes condign criticisms of the Claimant’s credibility, and his desperate attempts
to bolster a weak case, all of which indicate what the Tribunal found to be “a
visceral personal hostility towards Mr A”. In our judgment the Employment
Tribunal was entitled to conclude that the Claimant did not have a reasonable
belief in the allegation which we find to have been made that Mr A through his
gross negligence was responsible for any one of the deaths. Further, by
reference to its earlier findings in relation to good faith the Tribunal was
entitled to come to the conclusion that the disclosure to the Police was not
made in good faith: see paragraph 52 of the Tribunal’s Reasons, accepting in
full the submissions made on behalf of the Respondent. In our judgment the
combination of the lack of reasonable belief and the personal campaign against
Mr A led inevitably to the Tribunal’s conclusion that there was a lack of good
faith in the making of the disclosure to the Police.
78.
It should also be borne in mind that the finding on reasonable belief is
one which is necessary under s43G(1)(e) i.e. in all the circumstances of the
case it is reasonable for the Claimant to make the disclosure. Reasonableness
of belief is therefore stressed by the requirement for the material to pass
s43B(1), s43G(1)(b) and 43G(1)(e).
79.
Those findings made it unnecessary for the Tribunal to decide the issue
under s43G(2). These are the gateway conditions one of which must be entered
for the purposes of s43G(1)(d). The Tribunal made clear in its judgment and
its further reasons that none of these conditions was satisfied. As we said
above, it is not necessary for us to make decisions about these but in our
judgment the Tribunal was plainly correct. Given the absence of detriment
suffered by the Claimant for his earlier disclosures to his employer, he could
not have believed reasonably that he would suffer detriment by making the
complaint to the Police and there was no evidence of a reasonable belief that
the material would be concealed or destroyed. Further, the disclosure to the Police
was not substantially the same as was previously disclosed to the Respondent
via Mr Bowen-Simpkins, or to the GMC for that matter. Goode v Marks
& Spencer plc UKEAT/0449/09 at paras. 32-45 indicates the scope of
what is substantially the same information. The scope of the previous
disclosure to the Respondent was that two of Mr A’s patients had died on the
same night, the two other cases disclosed to the Police were not the subject of
that earlier disclosure and allegation.
80.
In the circumstances it is not necessary for us to make decisions on the
complaint that the Tribunal did not consider the matters in s43G(3) but we would
be minded to accept Mr Wallington’s submissions on them. The Respondent’s
whistleblowing procedure required the Claimant to operate first through that
and he did not. The Tribunal plainly had in mind the identity of the recipient
– it was the Police.
81.
Finally, in relation to the complaint to the Police, it must be borne in
mind that even if the Tribunal were wrong and the Claimant did reasonably
believe the allegations he there made were true, the disclosure would not be
protected if the motive or the predominant motive in disclosure was for an
ulterior purpose: see Street at paragraphs 56-57 per Auld LJ and
71-75 per Wall LJ.
Disclosure to the Trust
82.
The Claimant wrote letters to the Respondent on 26 June and 20 July
2006. The latter reflects the content of the former. This was the list of 120
patients said to be adversely affected by Mr A. Both were rejected by the
Tribunal as the content was not disclosed in good faith. The task for the
Claimant in relation to these disclosures was made easier since they are made
pursuant to s43B and 43C. The Respondent conceded that within this disclosure
there were items of information which the Claimant reasonably believed tended
to show that patients in the list had some reason to believe they would suffer
adverse consequences as a result of surgery undertaken by Mr A e.g. the patient
LJ.
83.
The additional obligation imposed by s43G of showing that each
allegation and each piece of information was substantially true is not found in
s43C. Good faith is. The Respondent accepted that if some information were
disclosed which was not reasonably believed to be true yet other information
was, the requirements of s43B and 43C were met in respect of reasonable
belief. The Tribunal’s conclusion is as follows:
“57. The fact that there was no attempt by Dr Korashi to seek
confirmation or clarity displays vindictiveness. The tone of the letter
exhibits antagonism towards Mr A. He is the target of personal malice and in
those circumstances we do not regard this letter as being written in good
faith.”
84.
The Tribunal’s reasoning in the judgment and further reasons indicates
the basis for its fact-sensitive finding. It is consistent with its other
findings relating to the good faith and credibility of the Claimant. This was
a permissible option for the Employment Tribunal and we see no reason to
interfere with it.
Detriment
85.
Although not strictly necessary in the light of our upholding the
Tribunal’s primary findings above, we will deal with the submissions relating
to detriment, albeit briefly. The detriments identified by the Claimant are
attendance at the CSU, as a result of a complaint to the Respondent and the
GMC, failure by the Respondent to follow its whistleblowing policy and
suspension. As for the first, the Tribunal make clear findings that his
attendance at the CSU was unrelated to his complaint to the GMC. This was a
finding of fact open to the Tribunal. Any grievance he felt would have been an
unjustified sense of grievance and not therefore a detriment under the
statute. The Claimant refused to attend the CSU which he had agreed to
attend.
86.
The Tribunal directed itself as to PIDA disclosures in the following
paragraphs:
“Detriment in relation to protective disclosures
74. Detriments under Section 47(b)(1) of the Employment Rights
Act 1996 as are set out under the Amended Claimant’s Schedule of Complaints.
There is no statutory definition of detriment but we adopt as we are invited to
do the approach taken by the House of Lords in Shamoon v Chief Constable of the
Royal Ulster Constabulary (2003) ICR 337, namely that “by reason the act or
acts complained of a reasonable worker would or might take the view that he or
she had been disadvantaged in the circumstances in which he or she had
thereafter to work”. We must bear in mind that “an unjustified sense of
grievance” cannot amount to a detriment but we must consider the matter from a
point of view of the complainant. If the complainant’s view that the treatment
he received amounts to a detriment was reasonable then that would be powerful
evidence of it being sufficient to give rise to a detriment. If the treatment
is or would be no different from other employees even if it is conceived to be
caused by the act of making a protective disclosure would be powerful evidence
of not being a detriment suffered.
75. We direct ourselves that in order for liability under
Section 47(b) to be established from the act or deliberate failure to act by
the employer, there is no detriment if treatment pre-dates any protected act.
We accept Mr Korn’s view that a protected act may result in a number of later
detriments, but the later the detriment which is said to have been caused by a
protected act the more difficult it is to establish. As a principle we think
that causation linking one protected act and one detriment is not to prohibit
later detrimental treatment. The tribunal must be satisfied that that a
protected disclosure was made in the first place and that the claimant suffered
a detriment as a result. We need to look at the evidence produced by both
parties in establishing the causal link. Section 48(2) of the Act makes clear
that proving the reason for the employee being subjected to a proven detriment
rests with the employer.”
87.
With respect to Mr Korn, these directions are correct. We reject his
contention that the Tribunal confused “unreasonable behaviour” by a Respondent
with the statutory test for there is no mention in the above paragraphs of such
phrase. As many of the alleged detriments have fallen away on appeal leaving
only four, one would think the principal sequel of the complaint to the GMC is
the requirement that the Claimant attend the CSU. The short answer is that
this claim raised in 2006 relates to matters in 2005 and is out of time as
correctly found by the Tribunal. The reasons given by the Employment Tribunal,
the response of the Respondent to the Claimant’s impending return to work
following his second period of suspension by inclusion of the CSU, and threats
to him if he did not comply, are matters which could not objectively create a
justified sense of grievance – he actually agreed to them in any event – and as
a matter of causation it was not in the Employment Tribunal’s view attributable
to the GMC complaint. However, all of that is by the way since the complaint
to the GMC was not as the Tribunal found and we uphold a protected disclosure.
88.
We then turn to the Claimant’s contention that he suffered a detriment
by reason of the failure of the Respondent to follow its whistleblowing
policy. The simple answer as given by the Employment Tribunal is that it does
not apply to disclosures made maliciously, dishonestly or unreasonably. Nor
had the Claimant attempted to use it. The Tribunal’s findings as to reasonable
belief and good faith would therefore close the policy to the Claimant anyway.
89.
We then turn to the suspension of the Claimant on 26 July 2006 and
continuing through regular reviews until his dismissal in March 2008 (actually
for up to 14 August 2007 the date of the seventh claim).
90.
Insofar as there is a claim about the second suspension from 1 September
2004 to 10 August 2005 the reasons are completely different as the Tribunal
made clear. The first suspension pre-dated the (unprotected) disclosure to the
GMC since the reasons found by the Tribunal to be in the mind of the Respondent’s
officers - personal misconduct - are not in themselves challenged. The Tribunal
found that others would have been treated in the same way. It was right to find
that there was no detriment contrary to the statute. The Employment Tribunal
adopted a shorthand approach to the decision making for detriment and causation
set out in Nagarajan v London Regional Transport [1999] ICR 877
which was to ask per Lord Nicholls at 886 E-F whether the protected act had a
significant influence on the relevant decision. Lord Nicholls recognised that
could be put in different language. The essential question is why was the act
done. As was pointed out in Vivian v Bournemouth Borough Council
UKEAT/0254/10 per Slade J and members at paras. 82-85 and 91-94 it was
important to identify the predominant motive. In any event, whether the
correct test is predominant motive or the absence of any unlawful feature
whatsoever, the Tribunal’s findings are plain. As conceded by the Respondent
the reason was connected to the disclosure to the Police but it was not
protected under the statute.
Direct race discrimination
91.
The sole issue on appeal relates to the exclusion by Dr Joels of the
Claimant from the operating theatre on 16 February 2006. The only evidence
before the Employment Tribunal about this came from the Claimant himself. The
Tribunal did not make a finding under the Race Relations Act in relation to
this complaint and Mr Wallington accepts that the further reasons give only a
partial response. Thus he accepts the Tribunal erred in law in failing to make
a finding on an issue in dispute between the parties necessary to be determined
as part of the proceedings. Nevertheless, he contends that the judgment of the
Tribunal would be clear and it is not proportionate to remit this matter to the
Tribunal for determination. This is because the answer given by the Tribunal
in relation to detriment under PIDA can be read across to detriment or
disadvantage under the RRA. That finding is as follows:
“(v)(b)(iii) Dr Joels ordering Dr Korashi out of the
operating theatre on 16 February 2006. Disagreements between professionals
occur every day within their working practices. We have found Dr Korashi to be
a volatile person. He is at best over-sensitive. We are not satisfied that
this allegation would be anything more than an unjustified sense of grievance
but in particular there is insufficient in our view to conclude that the action
of Dr Joels was retaliatory.”
92.
Subject to a successful perversity challenge below, that is a direct
finding under PIDA provisions and dealing as it does with the essential factual
issue of detriment which is the subject of the complaint under the RRA, it
covers the same territory and must lead to the same result.
93.
The Tribunal was asked for further reasons and said this:
“9. We accepted the evidence given by Mr Evans that he had given
a warning against victimisation to the consultants in the meeting of 11th
August 2004. There is no written record at pages 2705/6 and 2707, but the
clear impression given to the Panel by Mr Evans was that he was a careful
witness, seeking to assist the Tribunal, and prepared to recognise his own
failings. It is likely that he would have given a warning, just as Ms Stamp
confirmed that she had discussed victimisation with Dr Joels, because it was a
basic important issue. We did not conclude that there was any independent
detriment, because it was the grievance procedure which was invoked by Dr
Korashi, pursued by him, and responded to by the Trust. The only evidence
regarding the allegation against Dr Joels was produced by Dr Korashi. At its
highest, what was described by him amounted to very discourteous behaviour by
Dr Joels. We did not think that it was a balanced complaint, because it was
linked with a threat from Dr Korashi to go to the Police. It lacked
credibility. He characterised the treatment as racist, but there was
insufficient information for us to identify the allegations as being race
specific. Dr Korashi did not directly link this matter to victimisation, which
we found improbable, given that the protected act would have been over 2 years
earlier.”
94.
A similar question is answered at paragraph 10 of the further reasons
simply by cross reference to the above. Several points can be noted. The Joels
incident is prefaced by her being alerted to the possibility of victimisation
claims by the Claimant. It accepts the Claimant’s evidence at its highest.
Nevertheless the Tribunal in its earlier findings was critical of the
Claimant’s reliability and credibility. The Tribunal had found that he was
volatile and to find here that the complaint was not balanced was consistent.
The finding in the original reasons is suffused by the Tribunal’s view about
relationships between professionals at the workplace, a view which the unique
constitution of an Employment Tribunal entitles it to give. Further, the
language of Dr Joels is held by the Tribunal not to be racist.
95.
We consider the Tribunal has given a decision under the statute that an
unspecifically racist comment is not capable under Madarassy v Nomura
International Ltd [2007] ICR 867 CA to require the burden of proof to
shift to the Respondent for an answer. The further reasons were given
expressly in relation to a request under the RRA. Mr Korn has not identified
any separate detriment capable of arising reasonably to the complainant as a
result of the action of Dr Joels being categorised as an act of race
discrimination rather than a response to a protected disclosure and so in
practical terms the Tribunal would be bound to make the same decision under the
RRA. If we are wrong about the reasons and further reasons together
constituting a decision which can be inferred under the RRA, we would hold that
the decision was unarguably right and it is not proportionate or just to send
the matter back to the Tribunal.
96.
The second issue is whether the decision was perverse. This allegation
fails to meet the high threshold required for success in such a complaint: see Yeboah
above. As the Tribunal accepts, the evidence came from the Claimant and taking
it at its highest the Tribunal was entitled to conclude the conduct of Dr Joels
was no more than discourteous. As a matter of construction and context it was
also entitled to conclude that it was not specifically racist. It is also
important to note the conclusion of the Tribunal’s findings on race
discrimination as follows:
“114. Stepping back from the evidence it is not possible to
discern a pattern in which Dr Korashi is the recipient of discriminatory
treatment on the grounds of his race. He feels passionately that he has and
has done so from the earliest date. We accept the concessions made by witnesses
that on occasions they could have conducted matters better in retrospect but
instances of inconsistency or unreasonableness do not amount to behaviour based
on racial grounds.”
Victimisation
97.
The Tribunal directed itself in relation to section 2 of the Race
Relations Act 1976 in the following way:
“115. Victimisation. The Claimant’s case is that there has been
a continuing campaign of victimisation. We have to consider the totality of
the evidence apart from the individual cases of victimisation to which we are
referred. We will need to consider whether or not there is evidence of a
conscious or unconscious motive to victimise Dr Korashi.
116. The burden of proof under Section 54(a) does not apply in
victimisation cases and the ‘old’ test applies.
117. Insofar as comparators are concerned we follow the
authority of Shamoon and ask the question why did Dr Korashi receive the
treatment that he complains about.
118. It is accepted that the bringing of the first Employment
Tribunal claim and also the second claim amounts to a protected. We rely on
the amended Schedule of Complaints which was directed as a form of amendment to
the claims as identifying the protected acts. We agree with Mr Wallington when
he says that “the Race Relations Act does not embrace the concept of
victimisation for having been victimised and the fact that Dr Korashi’s
suspension was “as the Tribunal found” an act of victimisation cannot provide
the basis for later acts to be treated as victimisation by a process of
reference back. It seems to us that the statute is clear. What we have to
look for is a protected act, less favourable treatment that others by reason
that he had made the protected act. Victimisation requires conscious or
unconscious motivation by the Respondent to treat the Claimant less favourably
because of the protected act and we have to consider what was the motivation
of those who were involved in the decision to suspend him in September 2004.
119. It is also important to bear in mind that the Claimant has
to be subjected to detriment.”
98.
In a victimisation claim it is not wrong for a Tribunal to focus on the
issue of detriment: Derbyshire v St Helens MBC [2007] ICR 841 at
66-69 per Lord Neuberger. It is also correct to draw a distinction between the
making of a protected act and the manner in which it is done: see Martin
v Devonshires Solicitors [2011] ICR 352 EAT at paras. 22-25. This
distinction is particularly important where the manner reflects upon the
management of the working environment: Vivian v Bournemouth Borough
Council UKEAT/0254/10 at paras. 96-100. The reference to the
Respondent’s submissions in paragraph 118 above is an inelegant way of
expressing the simple proposition that a previous act of victimisation cannot
itself be a new protected act for the purpose of founding new claim of
victimisation.
99.
The Tribunal was aware of the force of the finding of the second
Employment Tribunal which was in favour of the Claimant. The lay member Mr
Westwood sat on both. The Claimant failed in his claim of direct race
discrimination but succeeded in proving that the suspension, his second
suspension on 1 September 2004, was an unlawful act of victimisation for which
he was awarded substantial compensation. The Tribunal expressly acknowledges
that there were protected acts under the statute. What is clear is that the
Tribunal was entitled to and did take account of the finding in favour of the
Claimant of the second Employment Tribunal on victimisation when it considered
the further claims of victimisation which were before it.
100. The nature
of the dispute in this case is that after the first Tribunal made its decision
on 22 July 2004, letters were written by four consultants and a risk assessment
made by Mr A. These were part of a chain which led to the Claimant’s
suspension on 1 September 2004. The Employment Tribunal said this:
“82. We deal now in accordance with the way in which the matter
has been set out in the Claimant’s amended schedule of complaints commencing
with the detriments in claim 3 at page 179(b).
(i) The claimant was subjected to harassment and victimisation
by his work colleagues, requesting his dismissal as set out in paragraphs 2, 9,
11 and 13 of claim no 3. (Including defamatory comments and spurious
allegations of personal and professional misconduct.) This detriment is
evidenced by the surgeon’s hostility shown at the meeting of 11 April 2004 and
4 January 2005. The Claimant was expected to work in a hostile environment
which Human Resources took no steps to control says Mr Korn. This by inference
was because Dr Calvert and Mr Evans were sympathetic to their feelings.
Turning to the pleaded detriments however, the first paragraph at no 10 at
pages 12 and 13 pre-dates the protected disclosures and cannot be relied on as
a detriment. The second involved the writing of the consultant’s letter of a
Risk Assessment prepared by Mr A. This did contribute to the decision to
suspend Dr Korashi, as is admitted. We accept from Mr Evans his evidence that
Dr Mattes’ demand for the termination of Dr Korashi’s employment was not acted
on. This does not support an inference that there was a complete abdication of
responsibility in the Trust dealing with the consultants. Not acting on Dr
Matters suggestion is a clear indication that Human Resources in a very
difficult process was deciding independently what was the best course. The
evidence that has been heard points to the consultants being concerned about
communication problems in the work place, the issue of spreading malicious
gossip and the way that they had been questioned at the second Tribunal hearing
involving allegations against them. The limited evidence of Mr Gasson on this
point was that his concern was patients’ safety. The matter was not explored
further in respect of any other motivation. There is no evidence that Dr
Mattehes or Dr Joels knew of the Claimant’s allegations or that they formed
part of the motivation for writing the letter that they did. Mr A, having been
asked to write the Risk Assessment, did so on the basis of his concerns about
Dr Korashi’s behaviour. The allegations made against Mr A were not recent
whereas Mr A’s fears were current. We agree with Mr Wallington that the
Claimant himself made no complaint of being the subject of an act of revenge or
victimisation at the time or shortly after. We do not think that under the
test we have identified that the predominant motive for Risk Assessment or
letters were written by the authors to avenge themselves. The context of the
documentation speaks for itself when there is no contrary documentation or
evidence from cross-examination which undermines it.”
101. The matter
is now refined on appeal to a challenge to the requirement for returning to
work following his suspension he should attend the CSU, that the Respondent
failed to apologise for the victimisation found to have occurred in the second
tribunal claim and to take disciplinary action against Dr Calvert and Mr Evans
and the exclusion by Dr Joels of the Claimant from the theatre on 16 February
2006. In respect of these complaints the Tribunal found the following:
“Claims in case 3. page 179(e).
120. (a)(i) Dr Korashi was subjected to harassment and
victimisation by colleagues requesting his dismissal (including defamatory
comments and spurious allegations of personal professional misconduct). We
think that the thrust of the finding in favour of Dr Korashi in his successful
victimisation claim was in relation to his unlawful suspension and it did not
cover the letters which are the subject of this claim of victimisation. The
letters themselves do not indicate any victimisation. Any scrutiny of them
would indicate that the reason for them being sent whilst highly critical of Dr Korashi gives no hint of victimisation. We have to consider what is the protected act. It
is clear that it is the bringing of ET proceedings. We are asked to conclude
that the letters were written in reference to a protected act. There is no
doubt that the authors were highly disgruntled but that is not a sufficient
ground upon which we can infer that the letters were written in reference to a
protected act rather than outrage at what they saw was wholly improper
behaviour of various kinds inside and out of the Tribunal.
(a)(iii)(c) The Respondent's failure to acknowledge or
apologise for the racial discrimination the Claimant had suffered by way of
victimisation as upheld by the Employment Tribunal in claim no 2. or take
disciplinary or any action against the perpetuators of that discrimination in
accordance with the Respondent's Equal Opportunities and Disciplinary
procedure. We agree with counsel that this matter has been dealt with at the
Remedy Hearing. It has been considered earlier in this judgment. We are not
satisfied that in any event that this would amount to a detriment. For the
reasons already set out `the Trust were entitled, in the particular
circumstances, not to take any disciplinary action and the failure on the part
of the Respondents to do so against the wishes of Dr Korashi would not amount
to a justifiable sense of grievance or that this failure, in particular, asks
to draw the inference that the failure was in reference to the Tribunal
proceedings. The decision had been taken by the Chief Executive. It was a
corporate failing. This is the evidence of Geraint Evans given on oath in a
public Hearing indicating to us that such a view is not going to be
contradicted by Mrs Perrins even though she did not attend. We think that he
was giving evidence about what was in the mind of Mrs Perrins, something of
which he must have been informed.
(a)(v) The Respondent's failure to take the
Claimant’s complaints against Mr A seriously it failed to suspend Mr A and
retaliatory action against the Claimant by Dr Calvert who reported the Claimant
to the Clinical Assessment Authority and Mr A who suspended the Claimant from
work and Dr Joel excluded the Claimant from the theatre. The Tribunal has made
findings of fact in respect of the failure to take the complaint seriously.
There is no evidence that the Trust would not suspend a consultant the subject
of clinical concerns because the complainer had brought proceedings as a
protected act. It would have suspended the consultant if a complainer had been
someone who had not brought such proceedings if justified on the grounds.
122. (c)(viiii) and (x) The Trust’s failure to acknowledge or
apologise for the victimisation of Dr Korashi or to take disciplinary action
against those responsible. The Tribunal has made its findings on these matters
but additionally find that it could not amount to a pattern to the decision not
to discipline or to apologise had been made. It was a single act.”
102. Both the
CSU and the apology point are the subject of detailed findings by the Tribunal
as to jurisdiction i.e. they were out of time and further the Tribunal found
that the CSU requirement was not a detriment.
103. We note the
submission of Mr Korn, based upon what the Court of Appeal said in dismissing
the Claimant’s appeal against the issuing of the further reasons, that we
should be alert to any after the event rationalisation by the Tribunal of its
earlier decision. It is clear now that the consultants were aggrieved by the
way in which the Claimant conducted the first Tribunal hearing. The instant
Tribunal found that the consultants were motivated by concern for patients and
in response to a breakdown in communications with the Claimant, coupled with
the general finding above that the witnesses were candid. It said that their
action was not because of the Claimant’s protected act. It is now tolerably
clear from the further reasons that the Tribunal did connect the consultants’
letters to the first Tribunal proceedings, but it was entitled to draw the
distinction in Martin v Devonshires between the making of the
complaint and the way it was prosecuted in the Tribunal. The Tribunal’s
depiction of the Claimant’s conduct there is not disputed.
104. As to the
findings in relation to the CSU, these prey upon the findings earlier made and
in our view are unimpeachable. The Claimant was treated no differently in
relation to the CSU from a person in his position who had not made a
complaint. In any event this too is subject to the jurisdiction point that the
claim was made out of time.
105. As to the
failures to provide an apology or to discipline the practitioners, the Tribunal
took the view that these were not detriments. In any event it was a single
one-off act. Evidence was produced before the second Tribunal of a conscious
decision made by the Respondent not to make an apology. That decision had
continuing consequences in that there never was an apology but it was a
decision made once and for all and reported to the second Tribunal. The
Tribunal in its remedy hearing awarded compensation knowing that there was no
apology. The same can be inferred of the discipline point.
106. The
complaint about Dr Joels is subject to the same conclusion as we have made
above. The finding as to the candour of the live witnesses before the Tribunal
is capable of extending to the written material of Dr Joels. That was a matter
of weight for the Employment Tribunal.
Jurisdiction points
107. Some of
these have fallen away. The Respondent no longer relies on its argument that it
was an abuse of process for the Claimant to raise certain complaints in this
case which could have been raised earlier. It is not disputed that the claim
about Dr Joels of discrimination and victimisation were in time and the
Employment Tribunal so found. The Employment Tribunal had no jurisdiction to
hear a claim of PIDA detriment as a statutory grievance under Employment Act
2002 s 32 had not been raised.
108. We accept
the submissions of the Respondent that the Tribunal was correct in upholding
its submissions in relation to time points about the consultants’ letters
written in 2004, disclosed in 2005. The claim was presented in June 2006. The
Tribunal’s decision on this matter was a question of fact for it and there is
no challenge to its decision not to exercise discretion in favour of extending
time. Any appeal against these findings is hopeless following Chief
Constable of Lincolnshire v Caston [2010] IRLR 327 per Longmore LJ
109. Complaints
about the CSU and the absence of an apology were correctly dismissed by the
Employment Tribunal and so time points did not arise. But if the appeal
succeeds on these, the Employment Tribunal would need on remission to address
the point. In the light of its other time point findings it seems to us it
would be most unlikely to decide otherwise.
110. As to the
PIDA complaints of detriments occurring before 31 December 2005, the Employment
Tribunal was clearly correct to dismiss them Indeed it might have been more
expeditious for it, and for us, to decide that point at the outset since it is
fatal. Time runs from the act of detriment complained of, not from the date of
a protected disclosure: Vivian (above) paras 77-81.
111. Mr Korn
relies upon his written submissions in respect of the surviving jurisdictional
points and so does Mr Wallington. In short, consistent with their realistic
approach, we accept the written submissions of Mr Wallington because they are
correct. The Tribunal had in mind the chronology in the presentation of claims
and there is no appeal against its refusal to exercise discretion beyond the
initial three month period. The Tribunal did not err in depicting various acts
as one-off and not as continuing. Insofar as the Tribunal may be held
elsewhere to have erred in law and but for the jurisdictional points the
Claimant would have succeeded, the Tribunal’s findings on jurisdiction cannot
be challenged.
Reasons
112. We now
express the conclusion that the Employment Tribunal’s reasons and further
reasons, save for those parts we have mentioned and which are not necessary to
its decision, are compliant with Meek, Greenwood
and Employment Tribunal Rule 30. It had an exceptionally difficult task which
it discharged with care and thoroughness. The reasons challenge, made as here
with a limited perversity challenge, is dismissed.
New evidence
113. An
application was made by the Claimant for the admission of new evidence. Judge Clark
who was dealing with procedural matters following the preliminary hearing gave
directions. The Claimant did not consent to the matter being dealt with by him
on the papers and so he ordered the matter be dealt with at the outset of the
full hearing. Both counsel however agreed that our appreciation of the
application would be better informed once the Claimant had opened the appeal
and so we heard both counsel at the end of the Claimant’s submissions, and before
the Respondent’s, on the substantive appeal. At that stage, the Claimant’s
case was at its highest. We refused the application reserving reasons.
The legal principles
114. PD 8.2
sets out the correct approach of the EAT:
“8.2 In exercising its discretion to admit any fresh evidence or
new document, the EAT will apply the principles set out in Ladd v Marshall [1954] 1 WLR 1489, having regard to the overriding objective, i.e.
8.2.1 the evidence could not have been obtained with reasonable
diligence for use at the Employment Tribunal hearing;
8.2.2 it is relevant and would probably have had an important
influence on the hearing;
8.2.3 it is apparently credible.
Accordingly the evidence and representations in support of the
application must address these principles.”
115. This
direction is of course subject to PD 1.4 which contains the overriding
objective set out in EAT Rule 2A. The case must be dealt with in a way which
is proportionate to the importance and complexity of the issue. The EAT will
where it is appropriate to its jurisdiction and procedure be guided by the CPR
(see PD 1.8). There has been a slight liberalisation of the Ladd v Marshall test. The Court of Appeal said in Sharab v Al-Saud [2009]
EWCA Civ 253 at para. 52:
“The court must of course seek to give effect to the overriding
objective of doing justice but in that respect the pre-CPR cases, including Ladd
v Marshall, remain of relevance and indeed of powerful persuasive
authority.”
116. Giving
guidance, while expressly not deciding the point in Adegbuji v Meteor
Parking Ltd UKEATPA/1570/09, Underhill P said the following:
“7. I should start by making this observation, though it will
not be the basis on which I decide the case. In my judgment the right course
for a party who seeks to have a decision of an employment tribunal overturned
on the basis of fresh evidence will almost always be to apply to the original
Tribunal for a review under rules 34 to 36 of the Employment Tribunal
Rules of Procedure, relying on rule 34(3)(d). This Tribunal only has
jurisdiction to correct errors of law on the part of an employment tribunal:
see section 21(1) of the Employment Tribunals Act 1996. As at present
advised, I find it hard to see how an employment tribunal which decides a case
properly on the evidence before it can be said to have made an error of law
simply because evidence is subsequently produced which suggests that its
decision was wrong. (Any analogy with fresh evidence appeals in the Court of
Appeal on appeals from the High Court seems to me flawed, because the Court of
Appeal has in principle jurisdiction to entertain an appeal on an issue of
fact: also, there is no review procedure available in the High Court.) This
appears however to be a novel point, and I have not however heard argument on
it. I am accordingly prepared to assume for present purposes that this
Tribunal has jurisdiction to entertain fresh evidence appeals, while flagging
it up as a point which may need to be decided on a future occasion. (In some
circumstances, where a new evidence point is only part of an appeal also proceeding
on other grounds, section 35 of the 1996 Act may give this Tribunal the
relevant jurisdiction.) However, even on that basis, the review procedure of
the employment tribunal will normally be much more appropriate for deciding a
fresh evidence issue. The employment tribunal will normally be better placed
to decide at least the second and third questions arising under Ladd v Marshall [1954] 1 WLR 1489 - that is, whether the evidence in question would probably
have had an important influence on the outcome of the case and whether it is
apparently credible. Time limits in the employment tribunal are rather tighter
for an application for a review than they are for an appeal to this Tribunal,
but there is power to extend time in both cases and in truth, in a genuine
fresh evidence case, the tribunal will generally be disposed to grant an
extension because if the evidence could genuinely not have been obtained
earlier it would not normally be just to refuse it.
8. For those reasons, it is already very common for fresh
evidence appeals to be stayed pending a review application made, or to be made,
in the employment tribunal.”
117. That
reflected a decision which I had made after full argument in Secretary of
State for Health v Rance [2007] IRLR 665 at paragraph 33:
“It is often useful where a party seeks to introduce new
evidence, for this matter to be put first to the Employment Tribunal. The
questions which arise on appeal are questions of law. Those which arise on a
review are much broader. They are the five grounds set out in rule 34(3).
They may or may not lead to a question of law. The interests of justice is a
very wide category. The grounds for adducing new evidence are less
circumscribed than those for new evidence to be allowed in the EAT. This is
regulated by para. 8 of the Practice Direction which additionally requires the
evidence to be apparently credible and likely to have an important influence on
the hearing…..
34. As the Practice Direction makes clear, it is important for
case management at the EAT for it to be known whether or not an application has
been made for a review, for Notices of Appeal are often stayed pending the
outcome of such applications.”
118. In Malkan v West Midlands Regional Health Authority [2002] EWCA Civ 1230 Mummery LJ said:
“Appeals from the employment tribunal are limited to questions
of law. Questions of fresh evidence falling within regulation 11(1)(d) would
normally be dealt with more appropriately by an application for a review to the
chairman of the tribunal responsible for the original decision reached without
that fresh evidence.”
119. In Aslam v Barclays Capital
UKEAT/0405/10 HHJ Richardson, admitting new evidence on appeal and setting
aside the judgment below said:
“38. These authorities indeed represent the usual practice of
the Appeal Tribunal. As a general rule where there is an application to adduce
further evidence an appeal will be stayed, usually at the sift stage, to enable
the Tribunal to consider review. This is generally appropriate because an appeal
lies only on a question of law; fresh evidence generally relates only to
questions of fact; and is therefore best determined by the Tribunal.
39. However, the admission of further evidence may be relevant
on appeal to a question of law. It may, for example, give rise to a question
of the fairness of the hearing process at Tribunal level. It is part of the
task of the Appeal Tribunal to ensure that a hearing at the Tribunal below was
a fair hearing, meeting the requirements of the common law and of article 6 of
the European Convention on Human Rights both of which guarantee a fair hearing.
40. Generally speaking the mere fact that fresh evidence has
come to light will not imperil the fairness of the proceedings. Employment
Tribunal procedure, including the power to grant a review, will be able to
encompass most circumstances in which fresh evidence has come to light and to
deal with any fresh evidence in a way which is both fair and proportionate.
Occasionally, however, this will not be possible. Then the Appeal Tribunal
must intervene.”
120. I made
similar observations to the President’s and applied his observation in Meteor
in Arrowsmith v Nottingham Trent University UKEATPA/1708/09, a
case where it was not necessary to decide the point. Nevertheless, nothing was
said about this by the Court of Appeal which refused permission to appeal
against my judgment.
121. The point
now calls for decision since Mr Wallington contends the application should have
been made to the Employment Tribunal and Mr Korn contends the EAT is the proper
venue. While it is in the Practice Direction, and was a direction in this
appeal, it would be wrong to rule against the Claimant simply because he did
not go first to the Employment Tribunal with this material. It might also be
said that applying Aslam since the Employment Tribunal had made
findings on credibility a review would be inapt.
122. There is a
restricted window to make applications for review to an Employment Tribunal (14
days) but the logical conclusion of a right to make an application based on new
evidence is that it can be made at any time, whereas applications based on the
interests of justice arising out of some mishap at the Tribunal will become
known at the time or within 14 days thereafter. A preliminary consideration of
an application for review is given by the Employment Judge who heard the case
and unless he or she forms the view that one of the sub rules is not complied
with or there are no reasonable prospects of success the review must be
conducted, see rule 35(3) and 36(1).
The material
123. The
material sought to be adduced consists of extracts from evidence given by Mr
Calvert, DI Hughes and Professor Shepherd at a hearing before the GMC’s Fitness
to Practice Panel (Misconduct) which began on 18 November 2009 and lasted for
some 10 days. It led to a determination of charges made under what is known as
rule 7. The allegations were made against the Claimant. It is important to
distinguish between the determination and the material sought to be adduced.
The application is clear and concise. It relates simply to extracts of those
three named witnesses. There are references to the determination itself, and
the Respondent did at one stage regard the application as including an
application to rely on the determination itself. As to that, the Claimant
contends that it is a matter of public record and can be adduced.
Nevertheless, in its final formulation in the written skeleton argument by Mr
Korn before us, the determination is expressed simply by way of background to the
application to adduce the above extracts of evidence. We take the view that
the determination in itself is not properly before us. In all of the written
utterances, the determination is secondary. The extracts from evidence of
certain of the witnesses before the GMC is relevant to the application.
124. If we are
wrong about the interpretation of the application, and the determination itself
is before us, we accept the submission of Mr Wallington. This was a hearing
before the GMC. It is an entirely different forum from the Employment
Tribunal. The parties were different. The Claimant was the respondent. Most
important, the Respondent to our proceedings was not a party to the proceedings
at the GMC. . The determination of the GMC does not lead in a bright line to
the conclusions of the Employment Tribunal. The Claimant gave evidence before
both. Each body was charged was different functions, the GMC we think
discharging quasi-judicial duties, heard different evidence and came to
different conclusions. That is not surprising.
125. Lest there
be any doubt, we do not accept the simplistic explanation of the findings of
the GMC advanced by Mr Korn as vitiating the findings by the Employment
Tribunal as to reasonable belief. The Claimant was found by the GMC to have
misconducted himself in the lodging of very serious allegations without
substantial evidence of sufficient quality or detail to support them and by
breaching the fundamental principle of patient confidentiality. The GMC found
that such could not be justified by what it accepted to be legitimate concerns
as to patient safety or absence of malice. The GMC further found that the
Claimant’s clinical competence was not in question. The GMC decided that much
of the formal complaint against the Claimant was upheld and imposed an
immediate order on the Claimant that pursuant to his registration conditions he
be subject to a necessary period of 12 months during which conditions must be
met. We consider it essential if this matter is to be taken further that the
full findings by the GMC we have examined be considered.
126. So, as a
matter of construction, the Claimant does not rely upon the determination
itself for the purpose of advancing his case that new evidence should be
considered by the EAT. The new evidence as we determine it to be is the
selected extracts from three witnesses who appeared at the GMC.
The scope of the application
127. The
parties agree that this case is to be decided on the lines of Ladd v Marshall as affected by the authorities cited above. There is no dispute as to
its credibility. So the issues are whether the material is really new, whether
the Claimant could with due diligence have adduced this evidence and whether it
would have an important impact on the Employment Tribunal’s decision. Undoubtedly
the determination itself is wholly new, but that is not true of the extracts of
evidence. We will take each piece of evidence separately and then stand back
and deal with them holistically.
The evidence of DI Hughes
128. It is
contended on behalf of the Claimant that the evidence of DI Hughes put in doubt
the account which he had given in writing to the Employment Tribunal. In short
it is the difference between whether the Claimant alleged that Mr A did by
gross negligence or under qualification cause the deaths of four persons or
alternatively may have. The Claimant gave his account at the Employment
Tribunal of the meeting with DI Hughes on 31 May 2006. It had the written
notes of DI Hughes. He was not called on behalf of the Claimant. There was a
substantial adjournment. Other witnesses not previously warned were called. The
Tribunal made its decision essentially on the basis of the evidence given to it
by the Claimant as to what he told DI Hughes. We do not regard it as
significant that the account may have been that Mr A was or may have been
responsible for the deaths. The simple point about DI Hughes’ evidence is a
matter of construction. The Claimant does not see the wood for the trees: he
was making an allegation as to the professional competence of Mr A and as to
his involvement in the deaths of four patients. DI Hughes could have been
called. We agree with the Respondent that it is unworthy to suggest that had
DI Hughes been called by the Claimant whether by invitation or by summons, he
would have been hostile to the Claimant. His evidence passes neither the due
diligence nor the important influence tests.
129. It follows
that the evidence could have been brought before the Employment Tribunal with
due diligence and that such evidence as there appears from DI Hughes at the
GMC, would not have made any difference to the decision.
The evidence of Mr Calvert
130. This essentially
relates to the competence of Mr A. The Claimant accepts that the same evidence
was given by Mr Calvert to the Employment Tribunal and to the GMC. The
Claimant contends that the evidence at the GMC was given “with a degree of
candour and clarity which was sadly lacking before the Employment Tribunal”. The
Employment Tribunal found his evidence was given without any lack of candour. This
allegation must fail in the light of that clear finding. This it seems to us
is an acceptance by the Claimant that Mr Calvert gave the same evidence before
the GMC and the Employment Tribunal but what differed was weight, clarity,
candour, tone and so on. This is not on its true construction new evidence.
There is no fresh evidence in this point. Mr Calvert was available to the
Claimant so he could be cross examined on any matter, the Employment Tribunal
paying tribute to Mr Korn’s exacting cross-examination of him (para 72). Mr
Calvert’s evidence is not new and passes neither the important influence nor
the due diligence test.
Professor Shepherd
131. The
Claimant was happy for certain parts of Professor Shepherd’s opinion as to Mr A
to be included viz his letter of 18 April 2007. The Tribunal noted that the
evidence of Professor Shepherd being read was objected to by the Claimant but
his opinion by letter was not. We consider that the evidence of Professor
Shepherd is not new and passes neither the due diligence nor significant
influence test. The Tribunal had in front of it the opinion, arguably in
favour of the Claimant, of Professor Shepherd to which he did not object.
A holistic conclusion
132. This case
presents a unique opportunity to consider the rules for admission of new
evidence at the EAT. We have read not only the extracts of the GMC but on the
invitation of the Respondent the whole of the material. We have also taken
account of the determination which is not as the Claimant contends in his
favour but redounds to his disadvantage in the full finding of GMC. We have
heard the whole of the Claimant’s case on appeal. Although the Claimant gave
evidence before the GMC, his evidence before the Employment Tribunal was given
over 10 days. Eighteen months passed between the evidence which is relied upon
before the GMC and the hearing of the appeal. In a case lasting 40 days with
thousands of pages of documents and many witnesses, we are diffident about
intervening to allow an appeal on the basis of new evidence. It requires a
value judgment by us as to the impact of such evidence on the Employment
Tribunal which listened to much more material. If we were to allow the
admission of the GMC determination, itself made without the advantage of
hearing all the relevant issues before the Employment Tribunal on the PIDA
claims and the evidence of the Claimant, do we thing the scales would fall from
its eyes? Further, Mr Calvert was cross examined; material from Professor
Shepherd and in part relied on by the Claimant was adduced; the material in
respect of DI Hughes was plainly exposed during the Claimant’s cross
examination and therefore the Claimant could have called DI Hughes to support
his case.
133. On the
first point in Ladd v Marshall we hold that this material could
with due diligence have been adduced before the Employment Tribunal. As to the
second point, we hold that this could not have had a significant impact on the
Employment Tribunal. But more important, we consider that such judgment ought
not to be made by the EAT. It is asking the EAT to come in from the outside to
form a judgment on a very narrow aspect of evidence presented to us in writing
and with written submissions and orally, material which as we have held was available
to the Employment Tribunal and some of it was before the Employment Tribunal.
We would be usurping the function of this tripartite industrial jury if we were
to say as against its findings that the current material would have so
influenced its findings as to set them aside and cause a new hearing. The
Employment Tribunal is the adjudicator of the facts, and on any application to
the EAT to adduce new evidence it must express considerable diffidence if it
were to form the view that on material not before the Employment Tribunal its
impact would be so significant as to set aside its judgment formed at an
appreciation of the witnesses over 40 days including that of the Claimant.
134. In our
judgment, the selected extracts from the evidence of DI Hughes, Dr Calvert and
Professor Shepherd is not new and meets neither of the tests in Ladd v
Marshall.
135. We accept
Mr Wallington’s submission that this application should if at all have been
made to the Employment Tribunal which is in a far better position than the EAT
to judge these matters. Albeit the Practice Direction allows such applications
to be made, we consider that in the future these must be sparingly granted and
the EAT will always look to see if an application has been made to the
Employment Tribunal and its response, and will stay proceedings in the EAT
until the outcome of any such application. The Claimant in this case had an
opportunity in December 2009 to make such an application and declined to do
so. Such application can be made in tandem with a Notice of Appeal, a Notice
of Appeal was outstanding in this case, and yet no application was made to the
Employment Tribunal. In short, we would not regard it as a function of the EAT
to form a view about what evidence might have a significant impact on an
Employment Tribunal which has seen and heard the witnesses unless the new
evidence is overwhelming and points to only one conclusion. This is not that
case.
Permission to appeal
136. Before
this reserved judgment, all counsel asked for permission to appeal in the event
that any part of it went against them. The grounds on which any permission is
sought by the Claimant should be set out in writing in 14 days and should bear
in mind that we would not be minded to grant permission to appeal in respect of
any question of law unless it was finally dispositive of the claim, so that
permission will not be given for an attack on subsidiary conditions for
liability unless there is a reasonable prospect of success on a primary
condition. The Respondent may reply in writing 14 days later.
Disposal
137. We are
particularly grateful to all three counsel and their solicitors for their
industry and the preparation of the case. We acknowledge with thanks the work
counsel did in proof-reading the judgment and making proper suggestions, always
a difficult exercise to perform with tact and good grace.
138. The
application for new evidence is refused and the appeal is dismissed.
