United Kingdom Employment Appeal Tribunal

Neutral Citation Number: [2025] EAT 64 

Case Nos: EA-2023-000089-RS

EA-2023-000359-RS

EMPLOYMENT APPEAL TRIBUNAL 

Rolls Building

Fetter Lane, London, EC4A 1NL

 

Date: 12 May 2025

Before :

 

THE HON. LORD FAIRLEY, PRESIDENT

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Between :

 

 

DR JAYPRAKASH GOSALAKKAL

Appellant

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UNIVERSITY HOSPITALS OF LEICESTER NHS TRUST

Respondent

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The Appellant, in person

Mr Richard Powell, of Counsel (instructed by Browne Jacobson LLP) for the Respondent

 

Hearing date: 9-10 April 2025

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JUDGMENT

 

 

SUMMARY

Unfair dismissal

Whistleblowing / protected disclosures

Practice and procedure - new evidence; apparent bias

 

In November 2011, the appellant was dismissed from his position as a Consultant Paediatric Neurologist for the stated reason of gross misconduct. His complaints to the employment tribunal under the Employment Rights Act, 1996 ("ERA") of protected disclosure detriment (section 47B ERA), and of ordinary and automatic unfair dismissal (sections 98 and 103A ERA) did not succeed and were dismissed in a judgment dated 8 January 2015.

Over three years later, the appellant applied for reconsideration of the liability judgment, submitting that a Serious Untoward Incident ("SUI") Report produced in 2012 was new evidence which cast doubt on the true reason for his dismissal. Following a hearing under rule 72(1) of the Employment Tribunal Rules, the judge rejected that contention. The appellant appealed submitting (i) that the judge had erred in concluding that the new evidence did not meet the Ladd v. Marshall test; and (ii) that a comment made by the judge at the start of the rule 72(1) hearing gave rise to apparent bias. The respondent cross-appealed against the judge's decision to extend time to consider the application. The appellant also appealed against a refusal to reconsider a costs order. That appeal was contingent upon success in the liability appeal.

Held:

1)      The judge was correct to reject the contention that anything in the SUI report gave rise to any reasonable prospect of the original decision of 8 January 2015 being varied or revoked.

2)      The comment founded upon in respect of apparent bias, when viewed in its proper context, was no more than an explanation to the appellant of rule 72(1) procedure.

3)      Both the appeal on liability and on costs were dismissed.

4)      The cross-appeal on liability was also dismissed.

 

THE HON. LORD FAIRLEY, PRESIDENT:

Overview

1.                  This case has a very lengthy and somewhat complicated procedural history. This is the third time that it has been before the Employment Appeal Tribunal. The first of these two latest appeals relates to a decision to refuse an application for reconsideration of a liability judgment dated 8 January 2015. The second concerns a refusal to reconsider a costs order made in June 2015.  

 

Procedural history

2.                  The appellant was dismissed from his position as a Consultant Paediatric Neurologist employment with effect from 1 November 2011 for the stated reason of gross misconduct. He presented a claim form to the employment tribunal in which he advanced complaints under the Equality Act, 2010 of race discrimination, and under the Employment Rights Act, 1996 ("ERA") of protected disclosure detriment (section 47B ERA), and of ordinary and automatic unfair dismissal (sections 98 and 103A ERA). The complaint of race discrimination was subsequently withdrawn.

 

3.                  In a reserved judgment dated 8 January 2015 which followed a hearing over 13 days during October and November 2014 before a tribunal at Leicester (Employment Judge Ahmed sitting with members), the tribunal dismissed all of the remaining complaints. The respondent made an application for costs. On 9 June 2015, Employment Judge Heap decided, in principle, that a costs order should be made against the appellant. A detailed assessment of costs was then ultimately made on 13 July 2017.

 

4.                  Thus far the procedural history of the case is not particularly remarkable. On 14 July 2018, however, the appellant made an application to the employment tribunal which he described as an "appeal for reconsideration" in relation to liability. He sought to rely upon what he claimed was new evidence that had come to light since the tribunal hearing in 2014.

5.                  The application for reconsideration was treated as having been made under rule 71 of the Employment Tribunal Rules, 2013. It was referred, in terms of rule 72(1), to Judge Ahmed as the judge who had chaired the original hearing in 2014. He considered it on the papers and refused it on the basis that (i) it was made substantially out of time; (ii) no valid reason had been given for its lateness; and (iii) the material relied upon was not new evidence but merely new allegations. That decision was appealed to the EAT. The appeal succeeded on the basis that the judge was wrong about points (ii) and (iii). On 4 July 2019, therefore, the reconsideration application was remitted to Judge Ahmed for the rule 72(1) decision to be re-taken (Dr J Gosalakkal v University Hospitals of Leicester NHS Trust UKEAT/0223/18/DA).

 

6.                  Following the remit of the liability reconsideration application to Judge Ahmed, it was again refused in a decision dated 7 February 2020. That decision was again the subject of an appeal to the EAT (EA-2020-000178-BA). That appeal was ultimately disposed of on 24 January 2022. By consent of both parties, the decision of 7 February 2020 was set aside and the liability reconsideration application was remitted to Judge Ahmed for a second time.

 

7.                  On 19 and 20 September and 27 October 2022, evidence and submissions on the remitted liability reconsideration application were heard before Judge Ahmed at a Preliminary Hearing fixed in terms of rule 72(1). The purpose of the hearing was to determine whether the original decision of 8 January 2015 should be the subject of a reconsideration hearing under rule 72(2) before a full panel or, alternatively, refused under rule 72(1).

 

8.                  In a reserved judgment dated 5 January 2023, Judge Ahmed determined, in terms of rule 72(1) that there was no reasonable prospect of the judgment of 8 January 2015 being varied or revoked, and refused the reconsideration application. That decision is the subject of the appeals now before me with reference EA-2023-000089-RS.

9.                  In the meantime, the appellant had also made a further out of time application to EJ Heap for reconsideration of the original costs order of 9 June 2015. In an e mail to the appellant dated 5 April 2023, EJ Heap refused that reconsideration application under rule 72(1). That refusal decision is the subject of the appeal now before me with reference EA-2023-000089-RS and is entirely contingent upon success in the liability appeal.

 

The liability judgment of January 2015

The tribunal's findings of fact

10.              The appellant's appointment by the respondent took effect shortly after the activities of a former consultant had been the subject of a number of internal investigations and inquiries. The appellant believed that the working environment which he joined was one in which there was a dominant "clique" of paediatricians who were hostile to him because of their loyalty to the former consultant. He maintained that some doctors and nurses began a campaign of non-co-operation and discourteous behaviour towards him.

 

11.              In June 2010, the respondent's Medical Director, Dr Alan Cole, was replaced by Dr Keith Harris. The appellant's relationship with Dr Harris was described by the tribunal as "less than ideal". The tribunal also found that relationships between the appellant and his colleagues were poor to begin with but were tolerated until after the appointment of a consultant radiologist, Dr Blanshard. By that stage, relationships had deteriorated to the extent that Dr Blanshard raised the issue with Dr Harris and asked what should be done. Dr Blanshard reported that there had been a number of altercations between the appellant and other members of staff, principally concerning the appellant's style of communication and his perceived lack of engagement with others. In particular, the appellant was

viewed by some as being intolerant of those who disagreed with his views on medical matters and prone to raising serious complaints about them if he was ever in conflict with them.

 

12.              In March 2010 Dr Harris instructed that an internal investigation be undertaken by Dr Robert Gregory, Assistant Clinical Director. Dr Gregory was chosen because he was someone who came from outside the relevant department and had not previously met the appellant. The appellant was unhappy that the internal investigation had been instructed, and ultimately refused to participate in it.

 

13.              Dr Gregory's report highlighted a number of concerns raised by various witnesses about the appellant's personal interaction and communication style. The report recommended that an external specialist review of the paediatric neurology department should be carried out. It also recommended that the appellant should be referred to occupational health to see whether his behaviour was the result of stress caused by overwork. Dr Gregory's investigation and subsequent report led to the appellant making a series of complaints about other individuals within the Trust, some of whom he threatened with defamation proceedings.

 

14.              The appellant refused to engage with Dr Harris about the outcome of Dr Gregory's report. Dr Harris consulted the National Clinical Assessment Service ("NCAS") for advice. NCAS suggested that the matter might be referred to the GMC or treated as a disciplinary issue. Dr Harris wrote to the appellant to ask him to attend a meeting. Before the meeting took place, the appellant wrote several letters to his colleagues claiming that they had made derogatory and dishonest statements about him and threatening legal action. In August 2010, he also posted a message on Twitter which said:

 

"for the welfare of Paediatric and Neurology at Leicester, it is necessary to remove Dr Harris as MD."

 

 

15.              On advice, and to avoid escalating matters, Dr Harris decided to take no further action at that stage about the Twitter post. Instead, he decided that the best way forward was to instruct an external review of the trust by an independent body. He chose to instruct NICHE Health and Social Care Consulting ("NICHE"), a body with no direct links to the respondent.

16.              The NICHE investigation began in August 2010. Its terms of reference were primarily to focus on the paediatric neurology service and to examine a range of cases involving individual consultant neurologists. The interim stage of the NICHE report was published in January 2011. It was critical of the appellant. It noted that concerns about him had been raised by a range of professionals. Two themes which emerged were that (i) he did not perform neurological examinations on patients when this would be expected, relying instead on the examination findings of junior doctors; and (ii) he refused (or was unable) to engage in meaningful communication with key colleagues regarding patient care.

 

17.              On 26 January 2021, Dr Peter Rabey, who was the appellant's line manager, met the appellant to discuss the NICHE report and summarise its conclusions to the extent that they related to him. The appellant did not react well to the conclusions of the report. Within two hours of his meeting with Dr Rabey, he had reported three of his consultant colleagues to the GMC and made serious allegations about their clinical practice and professional conduct. He also made a complaint to the GMC about one of the authors of the report, Dr Colin Ferrie.

 

18.              On 4 February 2011, Dr Rabey wrote to the appellant to confirm the discussion which had taken place on 26 January 2011, and to request that the appellant undergo a health assessment. The appellant refused, stating that he believed the NICHE report was "corrupt" and "did not have any integrity". Dr Rabey advised the appellant of the date of a follow up meeting on 7 February 2011.

 

19.              On 3 February 2011, a board meeting of the respondent took place. An agenda item was the appellant's behaviour. It was agreed that whilst the appellant was not considered to be a clinical risk, his refusal to engage in constructive discussions about his behaviour and methods was a matter of considerable concern. The board authorised Dr Harris, to take such action as was necessary to address this. Dr Harris decided that unless he received assurances from the appellant that he would address the issues concerning his behaviour, the appropriate action would be to exclude him from the workplace. Dr Harris decided to use the meeting arranged for 7 February 2011 to tell the appellant of that proposal and to see if he was prepared to change.

 

20.              The appellant did not attend the meeting on 7 February 2011. Efforts were made to locate him. Eventually, Dr Harris managed to speak to him on the telephone. During that call, Dr Harris advised the appellant that he was to be excluded from the workplace. The exclusion was confirmed in a letter which explained that the reasons for it were a breakdown in relationships, the appellant's use of social media sites to make defamatory statements, his continued use of e mails in an unacceptable manner, and his refusal to engage with the conclusions of the NICHE report.

 

21.              Dr Rabey was appointed as an investigating officer to consider allegations of misconduct against the appellant. The respondent also commissioned a report from an external consultancy body, Edgecumbe Health. The terms of reference of that report were to identify the state of relationships between clinicians and to consider (i) what changes in behaviour were necessary to develop an effective set of relationships between them; (ii) what characteristics were likely to help or hinder that aim; and (iii) and what course of action should be considered to improve the effective functioning of the team.

 

22.              The Edgecumbe report was carried out and authored by a clinical psychologist, Dr Jenny King. She too was critical of the appellant, noting that:

 

"...any criticism, implied or explicit, appears to have provoked aggression and a desire to match grievance with counter grievance.

 

Whilst I am in no position to comment on his clinical competence, such an evident lack of personal judgment poses a potential threat to the psychological safety of staff and colleagues."

 

23.              Attempts by Dr King to discuss the conclusions of her report with the appellant were ultimately unsuccessful. In the meantime, the appellant made a formal complaint to the GMC about Dr Harris.

 

24.              On 29 July 2021, the appellant was invited to attend a disciplinary hearing to consider the following allegations against him:

"Allegation 1

 

Your behavior has resulted in the breakdown of working relationships with the Trust and with a number of professional colleagues, including paediatric consultants and members of the wider multi-disciplinary team and with your managerial colleagues. This put at risk the provision of high quality, safe care to patients.

 

Allegation 2

 

You have used emails and electronic communications in an unacceptable manner.

 

Allegation 3

 

You have refused to engage with processes deemed fair and necessary by the Trust to ensure the provision of high quality, safe care for all patients.

 

Allegation 4

 

Since your exclusion from the Trust, you have directly contacted the families of patients in a manner that is likely to cause them anxiety and to undermine their confidence in the care and treatment they have received. This has also undermined your clinical colleagues and the Trust.

 

Allegation 5

 

You have accessed Trust premises and used your Trust IT account in direct breach of your terms of exclusion.

 

Allegation 6

 

You have repeatedly refused to comply with reasonable management requests."

 

25.               The disciplinary hearing took place on 20 and 21 October 2011 before a panel. The appellant was accompanied by his BMA representative. The panel was chaired by the respondent's Chief Executive, Mr Malcolm Lowe-Lauri. The other three members of the panel were a non-executive director of the respondent, Mr David Tracy, a pediatric neurologist from a different hospital, Dr Ruth Williams, and the Divisional Director of the respondent's Acute Division Mr Doug Skehan.

 

26.              Following the disciplinary hearing, the unanimous decision of the panel was that allegations 1, 2, 4 and 6 were upheld and amounted to gross misconduct. Allegation 5 was not upheld. Allegation 3 was upheld only as an allegation of misconduct rather than as gross misconduct. The decision of the panel was that the appellant should be dismissed with immediate effect. He was sent a detailed letter dated 24 October 2011 explaining the reasons for his dismissal.

 

27.              The appellant exercised his right of appeal. The appeal panel was chaired by the chairman of the Trust, Mr. Martin Hindel, a non-executive director, Mr Prakash Panchal, the divisional director of clinical support, Dr Shona Campbell, and a consultant pediatric neurologist at a different trust, Alastair Parker. The appellant did not attend the appeal hearing in person, but submitted lengthy written submissions dated 29 November 2021 together with a number of other documents. The appeal did not succeed.

 

The appellant's position on protected disclosures

28.              In support of his complaints to the tribunal under sections 47B and 103A ERA, the appellant alleged that he had made various protected disclosures over the period between March 2009 and October 2011. He alleged that that the predominant reason for his dismissal was the making of these disclosures. The tribunal identified 17 separate instances when the appellant alleged that he had made protected disclosures, and 16 allegations of detriment.

 

29.              The tribunal considered each of the 17 allegedly protected disclosures and concluded that none qualified for protection. In two cases (numbers 1 and 11) the tribunal was not satisfied that there had been any disclosure of anything. In some cases (numbered 2, 3, 4, and 8) it concluded that the alleged disclosures were not of information. In the case of numbers 5 to 10, and 12 to 17 it concluded that the appellant had no reasonable belief in the truth of what was disclosed and / or that the disclosure was not made by him in good faith.

 

30.              At ET 2015 § 109 the tribunal made the following finding:

 

"109    In relation to good faith generally there are a number of instances where the Claimant's alleged disclosures are merely tit-for-tat counter allegations in response to some unfavourable event, a challenge to his opinion or an adverse report."

 

The tribunal gave six separate examples of this pattern of behaviour before concluding (at ET 2015 § 110 and 111):

"110    In short it becomes clear that there was a repeating pattern that the claimant escalated complaints and allegations both to the very top of the organisation internally and to external bodies such as the GMC, to Members of Parliament and others when the claimant felt that his views or opinions were under attack.

 

111       We therefore conclude that claimant's allegations do not satisfy the good faith test. Apart from the matters set out above we find... his motive has usually been to advance the aim of retaliation rather than disclosing information to promote or protect the health and safety of patients. The alleged disclosures are in almost every instance an attempt to progress or promote some personal grudge."               

 

31.                At ET 2015 § 113, therefore, the tribunal stated:

 

"113    The absence of good faith and reasonable belief means that the complaint of unfair dismissal by reason of whistleblowing must be dismissed. If we are wrong on that point, we would also have dismissed that complaint on the grounds that his dismissal was wholly unconnected with any alleged protected disclosure and therefore lacks the necessary causation.

 

32.              The tribunal also considered the complaint of ordinary (section 98 ERA) unfair dismissal. It examined each of the five allegations which the appellant had found to be established and concluded, in each case, that the disciplinary panel had reasonable grounds to conclude that the conduct had occurred, and, in the case of allegations 1, 2, 4 and 6 that the conduct amounted to gross misconduct which justified dismissal. It accordingly concluded that the appellant's dismissal was fair.

 

The reconsideration application in 2018

Background

33.               Around 7 days after the exclusion of the appellant in February 2011, a child under the care of the Paediatric Department of the Leicester Royal Infirmary died. The incident received widespread publicity, and the respondent commissioned a Serious Untoward Incident Report into the death ("the SUI report"). A first draft of the SUI report was produced in August 2011, and was subsequently updated in early 2012.

 

34.              The report found that there was no single cause of the death. It identified a series of causes which were potentially indicative of problems in the paediatric department. A doctor within the pediatric department was convicted of manslaughter, but her conviction was subsequently overturned on appeal. The criminal case was widely reported in the press.

 

The application for reconsideration

35.              In his application for reconsideration dated 14 July 2018 the appellant stated that he had not become aware of the SUI report until April or May of 2018. He submitted that it was new evidence which would have a significant, if not critical, effect upon the tribunal's judgment of 8 January 2015. He submitted that it met the Ladd v. Marshall test for new evidence and that the tribunal should therefore reconsider its earlier decision.

 

36.              As noted above, on the second occasion that the reconsideration application was remitted to the employment tribunal, the judge elected not to carry out the rule 72(1) assessment on the papers. Instead, a Preliminary Hearing was held at which both parties attended. At that hearing, the appellant gave evidence about when he had first become aware of the SUI report.

 

37.              The judge was unconvinced by the appellant's evidence that he was not aware of the existence of the SUI report until April 2018. He took account of evidence that, following his dismissal, the appellant had kept up with news stories about what was happening at the Trust, noting (at ET 2023 § 13) that:

"He was evidently doing so in April 2018 to discover the SUI report so it is difficult to believe he was not doing so earlier."

 

38.                At ET 2023 § 23, the judge recorded:

"I cannot therefore make any determination on when Dr Gosalakkal became aware of the SUI Report with any degree of certainty or confidence. I do not find his evidence reliable and there is no other evidence available to enable me to make a determination."

 

39.              The judge nevertheless went on to consider whether or not to extend the time for bringing the reconsideration application, stating:

"Having regard to the broad discretion contained in rule 5 and notwithstanding the absence of a finding on exactly when Dr Gosalakkal came to know of the SUI Report I consider it be in the interests of justice to extend time to 20 July 2018^[1]."

 

The effect of that finding was that a preliminary examination of the reconsideration application could then take place under rule 72(1).

 

40.              The judge considered, in terms of rule 72(1), whether there was any reasonable prospect of the decision of 8 January 2015 being varied or revoked. That involved consideration of whether there was any reasonable prospect of the appellant being able to satisfy the necessary elements of the Ladd v. Marshall test.

41.              Part of the appellant's argument to the tribunal was that the SUI report showed that the respondent's witnesses Dr Rabey and Nurse Killer had lied under oath. Noting that the SUI Report was signed by both Dr Rabey and Nurse Killer, the judge stated (ET 2023 § 27):

"However, there is no direct connection between the claimant's alleged protected disclosures and the problems in the Children's Ward of the Respondent Trust. Despite extensive opportunities, the Claimant has failed to establish any evidence of a link or connection. In fact, the Claimant had identified Nurse Killer as an 'irrelevant witness' earlier in the proceedings. Dr Gosalakkal fails to establish how her evidence is now a reason why the original decision should be set aside based on anything in the SUI report. There is equally no such connection established with Dr Rabey"

 

42.              In relation to the complaint of unfair dismissal, the appellant's argument was that the respondent was motivated to dismiss him because he had made complaints in 2009/2010 which were similar to the failures identified in the SUI Report. The tribunal noted that:

"This is effectively an argument that the decision to dismiss was made in bad faith" (ET 2023 § 29)

 

43.              The judge rejected the argument that there was any prospect of the SUI report giving rise to such an inference. At ET 2023 § 33, therefore, the judge stated:

"I do not consider that there is any basis to permit this application for a reconsideration to go beyond the preliminary consideration stage. There is nothing to suggest that matters would have been decided differently if the SUI Report had been available earlier. I accept [the respondent's counsel's] submission that the Claimant has not identified how the SUI report might lead the tribunal to conclude that an employee making unsubstantiated and retaliatory complaints against his colleagues would not amount to gross misconduct. I also accept his submission that the Claimant has failed to identify how the Respondents' witnesses were lying and that this 'new evidence' has no prospect of altering any part of the liability judgment. I reject the Claimant's argument that the decision to dismiss him was made in bad faith and or that the SUI Report has any bearing on this. The SUI Report would not have had an important influence on the outcome of the case. This application does not therefore meet the Ladd v. Marshall test.

 

The grounds of appeal

The liability appeal

44.              Following consideration of his proposed appeal under rule 3(10), the appellant was ultimately permitted to advance three grounds. These were that:

                    i.               The tribunal erred at ET 2023 § 33 by premising its decision on the reasons for dismissal previously found, which were the reasons that the claimant was seeking to challenge.

 

                 ii.               The judge exhibited actual or apparent bias by saying to the appellant at the start of the Preliminary Hearing that he "should have no illusions about the outcome"; and

 

               iii.               The tribunal erred in considering that the reconsideration application had no reasonable prospect of success by failing to consider the significance of the SUI report upon the credibility of the testimony of Nurse Killer and Dr Rabey, who had both been asked by the tribunal during the 2014 hearing whether there were any adverse reports about the paediatric department at the relevant time, and both had replied that there weren't.

 

45.              In relation to the bias ground, parties were each invited to submit a statement of truth, and the judge was asked for his comments in accordance with the EAT Practice Direction.

 

46.              The appellant submitted a statement of truth in which he stated:

"The Judge at the beginning of the hearing addressed the appellant by name...and then went to state 'You should have no illusions about the outcome of this appeal'"

 

47.              The Judge had no recollection of making any such statement and, in the absence of any explanation as to the context in which it was said to have been made, did not feel able to comment further.

 

48.              The respondent's counsel lodged a statement of truth in which he noted that he had no record of the alleged comment having been made. His recollection, however, was that at the start of the hearing, the judge had made clear that the Preliminary Hearing would not lead to a new liability hearing because a full panel reconsideration hearing would still have to take place. He also encouraged parties to discuss possible settlement, and this was vouched in contemporaneous e mails between counsel and the appellant that day.

 

The cross appeal

49.               The respondent was permitted to advance three grounds of cross-appeal against the 2023 reconsideration decision. These were that:

                                            i.            The tribunal erred in adopting 18 April 2018 as the date from which "time ran" for presentation of the reconsideration application despite making findings in fact that

 

a)      the claimant's evidence about the date of discovery of the SUI report was "unreliable"; and

b)      the claimant was likely to have taken an interest in 2015 in the criminal proceedings against his former colleague.

 

                                          ii.            The tribunal erred in concluding that the claimant's delay in submitting his application for reconsideration was "relatively short" despite being unable to identify when the claimant first became aware of the SUI report; and

 

                                        iii.            The tribunal erred (at ET 2023 § 26) in the exercise of its rule 5 discretion by failing to take into account:

 

a)      the respondent's substantial legal costs

b)      the non-availability of witnesses from the 2014 hearing (one having died and others having left employment); and

c)      the inevitable effect of the passage of time upon the recollection of witnesses who would be asked about matters which had occurred between 2009 and 2011.

 

The costs reconsideration appeal

50.               The appeal against EJ Heap's refusal to reconsider the costs award from June 2015 was allowed to proceed to a full hearing only on the basis that if the main appeal were to succeed, it might be necessary to revisit the basis on which that costs order was made. If the main appeal did not succeed, the costs appeal would also fall to be refused.

 

The appeal hearing

51.              On the morning of the hearing, I asked parties to provide me with an unredacted version of the SUI report, as this was not within the papers lodged for the full hearing. A copy of the report was provided to me, and some sections of it were ultimately referred to in the appellant's submissions.

 

Appellant's submissions

52.              On grounds 1 and 3, the appellant submitted that the SUI report amounted to evidence that the true reason for his dismissal was not the one that had been set out in his letter of dismissal and thereafter relied upon by the respondent at the hearing in 2014. As I understood it, there were two components to this argument. The first was that the SUI report allowed an inference to be drawn that the true reason for the appellant's dismissal was a desire by Mr Lowe-Lauri to prevent him from expressing the concerns that he had raised between 2009 and 2011 to a wider audience. The second was a suggestion that the respondent was trying to put the blame on him for the death to which the SUI report related.

 

53.              In common with the position apparently taken before Judge Ahmed, however, the appellant did not seek in his submissions to identify any specific areas of overlap between the SUI report and his allegedly protected disclosures. When pressed on why he said that the SUI report might have led the tribunal to a different factual conclusion as to the reason for his dismissal, the appellant directed my attention to two particular sections of the report. The first, at page 7, noted that due to the complex nature of the incident it had not been possible to identify any single cause of the death of the child. This section of the report then went on to list 6 systemic factors which may have contributed.

 

54.              The appellant then directed my attention to the section of the report at pages 37 to 40 entitled "Lessons Learned" and "Recommendations". His position was that these sections amounted, in effect, to criticisms of the respondent and, by extension, its then CEO, Mr Lowe-Lauri who was responsible for standards in the Trust. The appellant submitted that Mr Lowe-Lauri was the dismissing officer. Had the tribunal known of this report in 2014, it might have concluded that the systemic errors for which Mr Lowe-Lauri was ultimately criticised could have been his motivation for taking action against the appellant and ultimately, therefore, the principal reason for dismissing him. In developing this argument, the appellant submitted that "they decided to kill the messenger - exclude the messenger so that he loses his voice". He submitted that "the more concerns I raised, the more problems Mr Lowe-Lauri had" and that "if the death had not happened it could be speculated that the end result of the investigations into my conduct might have ended differently."

 

55.              In relation to ground 3 and the roles of Dr Rabey and Nurse Killer, the appellant did not seek in his submissions to identify any respect in which the SUI report showed that they had lied to the tribunal or, if they had, what difference that might have made to the tribunal's conclusions. He acknowledged that neither Dr Rabey nor Nurse Killer took the decision to dismiss him.

 

56.              In relation to ground 2, the appellant was adamant that the impression he had formed from the comment was that the judge was biased against him. He submitted that the comment he alleged was made was as set out in his statement of truth.

 

Respondent's submissions

57.              Counsel for the respondent submitted that the line of argument now advanced in the appeal was not one that had been put before Judge Ahmed. Logically, therefore, it could not be said that the judge had erred. The focus on Mr Lowe-Lauri was a new point which also did not feature in the grounds of appeal or in the appellant's skeleton argument. In any event, it was misconceived as Mr Lowe-Lauri was only one member of the dismissing panel.

 

58.              More fundamentally, the appellant had never made any coherent connection between the SUI report and his dismissal. The SUI report did not amount to evidence that anyone had lied, far less that anyone who decided to dismiss the appellant had done so. The contents of the report did not provide any basis for a submission that the tribunal might have reached a different conclusion about the fairness of the appellant's dismissal for the particular acts of gross misconduct which the panel unanimously found had been proved.

 

59.              In relation to the bias ground, the respondent had no record of the alleged comment being made by the judge. In any event, it was unlikely that the judge would have used the word "appeal" in the context of a hearing under rule 72. No context had been given for the alleged comment. Whatever subjective views the appellant may have formed, however, an informed and fair-minded observer would not have concluded that there was any possibility of bias.

 

60.              On the cross appeal, the decision to extend time was inconsistent with the tribunal's conclusion that the appellant had not proved the date on which he first became aware of the contents of the SUI report.

 

Summary of relevant law

Reconsideration

61.              At the time to which this appeal relates, rule 72 of the Employment Tribunal Rules, 2013 stated:

72.— Process

(1)  An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked...the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.

 

(2)  If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.

 

(3)  Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision."

 

 

Protected disclosures and good faith

62.              Prior to 26 June 2013, disclosures founded upon for the purposes of a complaint of protected disclosure detriment were required, in terms of section 43G(1)(a) of the ERA, to have been made in good faith. Whilst that requirement was removed by the Enterprise and Regulatory Reform Act, 2013, the amendment of section 43G(1) was not retrospective. Accordingly, the requirement for good faith continued to apply to all disclosures prior to 26 June 2013, including all of the alleged disclosures to which this case relates.

 

63.              As was noted by the Court of Appeal in Street v. Derbyshire Unemployed Workers Centre [2005] ICR 97, the test of good faith for the purposes of section 43G(1)(a), required more than a reasonable belief in the truth of the allegations made. It required the tribunal to consider, as a question of fact, what was the dominant or predominant purpose of making the disclosure. Where that was an ulterior motive unrelated to the statutory objectives, including disclosures would not qualify for protection.

 

New evidence

64.              An application for reconsideration based upon new evidence requires to satisfy the test in Ladd v. Marshall [1954] 1 WLR 1489. As Denning LJ explained (at page 1491):

"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

Bias

65.              The test for apparent judicial bias is the formulation by Lord Hope in Porter v. Magill [2002] 2 AC 357 at para. 103:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

66.              The "fair minded observer" test necessitates a close focus on the facts and the context. Both are critical (Locabail (UK) Limited v. Bayfield Properties Limited [2000] IRLR 96, at para. 25; Resolution Chemicals Ltd v. H Lundbeck AS [2014] 1 WLR 1943 at para. 35).  The fair-minded observer is not complacent but is also not unduly sensitive or suspicious (Resolution Chemicals at para. 25).

 

Analysis and decision

Grounds 1 and 3 - the SUI report

67.              The premise of each of grounds 1 and 3 is that, if the tribunal had known of the contents of the SUI report in 2014, there were reasonable grounds to argue that it might have reached materially different conclusions. Ground 3 focusses specifically upon the issue of the credibility of two witnesses who gave evidence at the hearing in 2014. 

 

68.              It is important to begin by recognising the two different grounds upon which the tribunal rejected the complaint of automatically unfair dismissal. The first was that none of the disclosures founded upon by the appellant qualified for protection. The second was that there was, in any event, no causal connection whatsoever between his dismissal in November 2011 and any disclosures he may previously have made. The tribunal also then considered what was the respondent's reason for dismissing the appellant and concluded that it was his conduct.

 

69.              On the issue of protected disclosures, the tribunal made factual findings that 12 of the 17 disclosures founded upon by the appellant were not made in good faith. Nothing in the SUI report has any bearing upon that issue. Of the remaining 5 disclosures founded upon, the tribunal found that two were not made at all, and three were not disclosures of information. Again, nothing in the SUI report could possibly form a basis on which to re-visit and change those factual findings. 

70.              The SUI report contains no direct evidence about the reason for the appellant's dismissal. On a fair reading of it, it identifies both case-specific and systemic issues which may have led to the death of a child in February 2011. The appellant is not mentioned. The appellant's position seems, however, to be that the SUI report could be seen as a piece of circumstantial evidence from which inferences could be drawn which might have caused the tribunal to doubt the credibility of the reasons given by the respondent for dismissing him. In advancing that argument, he focussed during this appeal almost entirely upon the role of Mr Lowe-Lauri in the dismissal. It is not clear to me that the same position was taken by him at the reconsideration hearing in 2023, but I have nevertheless considered it.

 

71.              The first difficulty with the appellant's argument is that, on the findings of fact made by the tribunal, Mr Lowe-Lauri was only one member of a four-person panel which took the decision to dismiss him. That decision was unanimous. Before there could be any possibility of the inferences which the appellant relies upon being drawn, he would need either to challenge the tribunal's findings of fact as to the identity of the decision-maker or extend the malign intentions which he attributes to Mr Lowe-Lauri to the other three panel members. The SUI does not, however, provide any assistance to him on either of those points.

 

72.              More fundamentally, the second difficulty is that the inferences the appellant says should be drawn from the SUI document do not make sense. There is no obvious link between the contents of the SUI report on the one hand and the appellant's alleged disclosures between 2009 and 2011 on the other. The appellant did not attempt to identify any such link either in his skeleton argument or in oral submissions at this appeal. Even assuming that such a link could be established, the appellant's hypothesis that the Trust (or perhaps Mr Lowe-Lauri) wished to silence him does not address two important problems with that theory. First, it does not explain how dismissing him would have had that effect. Secondly, and more importantly, it does not explain why any such inference might logically be drawn from the terms of a report the express purpose of which was to identify the cause of the death of a child, any systemic issues that may have contributed to that death, and any lessons that could be learned for the future.

 

73.              The appellant's alternative hypothesis - that the SUI report is, in some respect, evidence that the respondent may have been trying to make him a scapegoat - is also illogical. The reasons given by the respondent for dismissing him both in the 2011 dismissal letter and at the hearing in 2014 did no such thing. The first draft of the report was produced by the respondent in August 2021, two months before the appellant was dismissed, and the final version was produced in January 2012, two months after the dismissal. Within the SUI report, the appellant is not blamed or even mentioned. The report does not, in any sense, conflict with the respondent's position that it dismissed him only for his unrelated misconduct.

 

74.              With reference to ground 3, the appellant did not identify any respect in which the SUI report might tend to show that witnesses had lied at the hearing or what the significance of that may have been to the tribunal's conclusions. Notably, he did not suggest that the SUI report was capable of showing that anyone who was part of the panel that dismissed him had lied.

 

75.              In common, therefore, with Judge Ahmed, I see nothing in the SUI report that would give rise to any reasonable prospect of the original decision of 8 January 2015 being varied or revoked. I see no error of law in Judge Ahmed's approach under rule 72(1) to the reconsideration application. It follows that I see no merit in either of grounds 1 or 3.

Ground 2 - bias

76.              The appellant's position is that at the start of the Preliminary Hearing on 20 September 2022 the judge said to him, "'You should have no illusions about the outcome of this appeal".

77.              On balance, it seems to me to be improbable that the employment judge used the word "appeal" to describe the Preliminary Hearing, and I conclude that the appellant is likely to be mistaken in suggesting that he did. I do accept, however, that the judge may have made a comment similar to the one described, but by reference to the outcome of the hearing.

 

78.              The appellant does not identify any context in which the comment was made other than to say that it was at the start of the hearing. That being so, the relevant context is that the comment was made as an introductory remark at a hearing for a preliminary determination to be made under rule 72(1) as to whether or not the reconsideration application should go forward to a further hearing before the full tribunal under rule 72(2). I accept - because it is vouched by contemporaneous e mails between the respondent's counsel and the appellant - that the judge also raised the question of possible settlement. No criticism is made of him for doing so, but the fact that he did so is also relevant context to the comment.

 

79.              An informed and fair-minded observer who understood the limited purpose of the Preliminary Hearing and who had read rule 72(1) would have formed the view that the judge was seeking to ensure that the appellant - as an unrepresented party - understood that even if the reconsideration application passed the judicial "sift" procedure of rule 72(1), it would still have to be considered on its merits at a later date. That conclusion is consistent with the reference to possible settlement, and also with the recollection of the respondent's counsel as to what was said.

 

80.              Whatever subjective views the appellant may have formed, therefore, once the comment is viewed in its proper context, it is not arguable that it is capable of forming the basis for any inference of judicial bias. I accordingly reject the second ground of appeal.

 

The cross appeal

81.              As I have concluded that all three grounds of the principal appeal fail, it is not strictly necessary for me to determine the cross appeal. For completeness, however, I did not find any of the three grounds advanced to be persuasive.

 

82.              I accept that it was an unusual step for the tribunal retrospectively to extend the time for bringing the reconsideration application by more than 3 years from the date of its original decision. It clearly had some doubts about the appellant's evidence as to the date on which he became aware of the SUI report, and was unable to make any clear determination as to when that was. The discretion to extend time under rule 5 is, however, a broad one and it is clear that the tribunal concluded, in the rather unusual circumstances of the case, that fairness required that the merits of the reconsideration application be considered under rule 72(1). I see no error of law by the tribunal in the exercise of that discretion.

 

The costs appeal

83.              The costs appeal is entirely dependent upon success in the main appeal. Since the main appeal does not succeed, it inevitably follows that the cross appeal also fails.

 

Summary of decisions and disposal

84.              For these reasons, I dismiss:

                    i.          the liability appeal EA-2023-000089-RS;

                 ii.          the relative cross appeal; and

               iii.          the costs appeal EA-2023-000359-RS.