R Kealy v Westfield Community Development Association

This appeal once again demonstrates the vital importance of structured decision making, particularly when dealing with protected disclosure claims. The statutory provisions that deal with protected disclosures are somewhat complex but should not prove problematic if they are analysed carefully and logically. The appeal also demonstrates that things can go wrong if a list of issues is adopted that does not fit properly with the statutory provisions.

The appeal challenges a judgment of Employment Judge Blackwell, sitting with members, after a hearing on 27, 28 and 29 September 2021, with days in chambers on 3 November 2021 and 20 December 2021. The judgment was sent to the parties on 11 January 2022.

The respondent is a charity operating a large community centre providing educational services. It includes a nursery. The claimant began employment with the respondent as an Early Years Co-ordinator on 1 October 2016.

The claimant asserted that she made 9 protected disclosures. Disclosures 1-4 related to Early Years Pupil Premium funds, and Disability Access Funds that the claimant asserted were not being spent (the funds disclosures). It appears that disclosures 1-3 were made to the respondent and disclosure 4 was made externally. Disclosures 5-9 related to a breakdown in the heating at the nursery (the heating disclosures). These disclosures appear to have been made externally, including to Ofsted.

The heating disclosures were also asserted to involve the claimant, in circumstances in which there was no health and safety representative or safety committee at her place of work, bringing to the respondent's attention, by reasonable means, circumstances connected with her work which she reasonably believed were harmful or potentially harmful to health or safety.

The claimant asserted that as a result of the disclosures she was subject to 7 detriments. The claimant asserted that she resigned on 4 December 2019 as a result of having been subjected to detriments 1-6. Detriment 7 post-dated her resignation.

The claimant brought a claim asserting protected disclosure detriment and dismissal, health and safety detriment and dismissal, dismissal for assertion of a statutory right and constructive unfair dismissal.

The employment tribunal dismissed all of the claims.

The claimant submitted grounds of appeal dated 21 February 2022. Judge Keith permitted the appeal to proceed to a full hearing by an Order dated 16 June 2022. On application from the respondent Judge Keith made a Burns/Barke Order sealed on 14 September 2022 requesting that the employment tribunal answer 7 questions. The employment tribunal met on 4 October 2022 and provided their answers to the questions on 6 October 2022. Having considered the response of the employment tribunal the claimant applied to add a further ground of appeal. The application was permitted by an Order of Eady J (P) sealed on 1 March 2023.

On 15 March 2023, the respondent wrote stating that the did not wish “to resist the appeal any further and incur further costs in doing so” but stating that if the appeal was successful, they intended to defend the claim in the employment tribunal. The claimant presented a proposed consent order and asked the respondent to consent to the claimant’s claims being remitted to a differently constituted employment tribunal. The respondent wrote to the EAT on 3 April 2023 stating that the draft was agreed save that the order should state that the judgement was overturned rather than reversed.

The matter was considered by Mathew Gulick DHCJ who refused to make the order because it lacked clarity as to the error of law, if any, the parties agreed had been made and the confusion that this might cause to the employment tribunal on remission. He stated:

“This is, in my view, a paradigm case in which there should be a hearing rather than an endorsement of the proposed consent order on the papers because it is “necessary for the matter to be heard by the EAT to determine whether there is a good reason for making the proposed order” (EAT Practice Direction Para 17.3)

The respondent thereafter stated that they were withdrawing from the appeal process and that it was for the claimant to establish any error of law. The respondent stated that they rely on their response and would not attend the hearing.

Accordingly, I have heard the appeal in their absence but considered their response in reaching my decision.

I consider it helpful to approach the appeal by considering the claim of protected disclosure detriment, health and safety detriment and then constructive unfair dismissal, including the claims that any dismissal was automatically unfair.

There are two essential terms to consider in deciding whether there has been a protected disclosure. There must be a “qualifying disclosure”. The term qualifying disclosure concerns the nature of the disclosure that is made. The qualifying disclosure must become a “protected disclosure”. The term protected disclosure concerns the person to whom the disclosure is made. But it is not quite as simple as that, because there are additional requirements about the disclosure itself if the disclosure is made to certain persons. In every case it is necessary to analyse first whether there is a qualifying disclosure and then ask whether it has become a protected disclosure. The answer to the second question is usually straightforward because the paradigm example of a protected disclosure is one where the disclosure is made to an employer by a worker, in which case there is no additional requirement in respect of the nature of the disclosure. However, where the disclosure is made to others than a worker’s employer the situation can be more complex.

The regime defining protected disclosures is a little complex, but the statute provides a clear map to follow. The destination will be reached safely if none of the waymarks are skipped.

The starting point is section 43A Employment Rights Act 1996 (“ERA”):

The statute makes it clear that whomever the disclosure is made to, one must first consider whether there is a qualifying disclosure. The additional requirements for disclosures to certain persons only need be considered once it has been established that there has been a qualifying disclosure.

The term “qualifying disclosure” is defined by section 43B ERA:

The matters that the disclosure must in the reasonable belief of the worker tend to show, are set out at section 43B(1)(a)-(f) ERA, for example that a criminal offence has been committed, referred to as “wrongdoing” by Underhill LJ in Chesterton Global Ltd v Nurmohamed [2018] ICR 731, is defined rather less elegantly by section 43B(5) ERA as “the relevant failure”.

Section 43B ERA sets out a number of steps that must be taken in deciding whether a qualifying disclosure has been made. The steps were summarised by HHJ Auerbach in Williams v Michelle Brown AM UKEAT/0044/19/OO:

“9.

It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.”

Once a qualifying disclosure is established, the next stage is to consider whether it is a protected disclosure. I shall limit my consideration to the two grounds on which the disclosures in this case were said to have been protected disclosures.

Section 43C ERA provides for disclosure to the worker’s employer:

Section 43G ERA provides, so far as is relevant:

Without wishing to state the obvious, before one considers the additional requirements set out in section 43G ERA there must already have been a determination that there was a qualifying disclosure for the purposes of section 43B ERA, in that there has been a disclosure of information that the worker reasonably believed tended to show a relevant failure and reasonably believed was made in the public interest. Only once a qualifying disclosure has been established does one consider whether it constitutes a protected disclosure pursuant to section 43G ERA.

Section 43G ERA adds a number of requirements in respect of a disclosure in addition to those necessary for it to be a qualifying disclosure including that:

The additional requirement that the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true contrasts with the more limited requirement that the worker reasonably believes that the information tends to show a relevant failure required at the stage of determining whether there was a qualifying disclosure. This point was made by HHJ Serota QC in Darnton v University of Surrey [2003] ICR 615:

It may seem surprising that a higher standard of belief must be held in respect of the relevant failure when making a disclosure to a person other than a worker’s employer. But on analysis, the distinction is not surprising. A worker may not be able to assess whether information that is disclosed tends to show a relevant failure if it came from a third party, and might even doubt it is correct, but feel that if true it is so important it should be disclosed to her employer. It is not surprising that such a worker would fall within the protection if the disclosure was made to her employer but a higher standard, requiring a reasonable belief in the truth of the information and any allegation contained in it may be required when it is made to a third party. In Soh v Imperial College of Science, Technology and Medicine UKEAT/0350/14/DM HHJ Richardson noted:

It is important to note, that the requirement under section 43G ERA is not that the information disclosed, and any allegation contained in it, are substantially true, but that the worker reasonably believes that to be the case.

In this case the list of issues was confused. When dealing with the protected disclosure detriment claims it asked the following questions:

The agreed issues were a bad starting point for the employment tribunal. It gave rise to a number of difficulties:

The list fails properly to identify the issues that arise in considering for each disclosure whether it was a qualifying disclosure and, if so, it a protected disclosure by operation of section 43C or 43G ERA.

The employment tribunal considered Issue 1 as follows:

Despite the breadth of the issue, which appeared to include all of the myriad sub-issues in considering whether there were qualifying disclosures that became protected disclosures, the employment tribunal appears to have limited its consideration to whether there were disclosures of information. Issue 1e was answered although it is no more than a subheading where there was a change from the funds disclosures to the heating disclosures. There is no finding about disclosure 2. There appear to be findings that the disclosures of information relied on for disclosures 3, 7, 8 and 9 were not made. However, the consideration of disclosures 3 and 9 does not appear to relate to the question of whether there were disclosure of information but to the underlying facts. The disclosures of information that appear to have been rejected are not obviously subject of any of the grounds of appeal, but the grounds of appeal are themselves somewhat confused like the list of issues. To the extent there were findings that disclosure of information were not made the determination seems to have been founded on an overall assessment of the credibility of the claimant which I consider is unsafe for reasons to which I shall return.

The employment tribunal considered Issue 2 as follows:

The question of whether the claimant had made a disclosure of substantially the same information to her employer before making it externally is one, but only one, of the requirements for a qualifying disclosure to become a protected disclosure by operation of section 43G ERA. There is no freestanding ground of appeal in respect of this apparent conflation of the various requirements of section 43G ERA.

The employment tribunal considered Issue 3 as follows:

Accordingly, it appears that the employment tribunal accepted that there were disclosures of information that “related to” relevant failures. The issue incorrectly paraphrased the requirement that the worker reasonably believes that the information disclosed tends to show a relevant failure. That important element of determining whether there were qualifying disclosures was not considered.

The employment tribunal considered Issue 4 as follows:

These findings involve two non sequiturs. The employment tribunal held that because the funds disclosures were not true the claimant could not “have had a reasonable belief in the truth of her disclosures”. Section 43G ERA could have been drafted to include a requirement the worker believes that the information disclosed, and any allegation contained in it, are true; but instead Parliament applied a somewhat lower threshold that the worker “reasonably believes that the information disclosed, and any allegation contained in it, are substantially true”. While that is a higher threshold than the requirement in section 43B ERA that the worker reasonably believes that the information disclosed tends to show a relevant failure, it is still based on a reasonable belief in truth rather than objective truth. A person can reasonably believe that something is true even if it proves to be false. Furthermore, insofar as some of the disclosures were to the claimant’s employer (which appears to be the case) 43G ERA did not apply.

The employment tribunal concluded that the heating disclosures were partially true but went on to hold that they were “undermined” by her “statement to Ofsted that nothing was being done with the heating failure”. Whatever the claimant said to Ofsted about remedying the heating defect that did not necessarily prevent her from having areasonable belief that the information disclosed in the heating disclosures, and any allegation contained in it, were substantially true. I shall come back to the safety of the conclusion that the claimant told Ofsted that nothing was being done about the heating problems.

The failures in the analysis of Issue 4 are the basis of the challenge in ground 1 of the Notice of Appeal, which I uphold.

The employment tribunal did not consider Issue 5, whether the claimant reasonably believed that the disclosures were made in the public interest, in the original decision. As explained above that requirement is a component of a disclosure being a qualifying disclosure. However, the employment tribunal did refer to the issue in its answers to one of the questions asked under the Burns/Barke procedure stating that:

That analysis confused the question of whether the claimant had a reasonable belief that the disclosure was made in the public interest with her motive for making the disclosure: see Chesterton at paragraph 30. This is challenged by ground 5 of the Notice of Appeal, which I uphold.

In the light of my above conclusions, I do not consider that the assertion that the decision about disclosures 5 and 6 is not Meek compliant, in ground 4a of the Notice of Appeal, adds anything of significance.

The employment tribunal stated, in respect of the asserted detriment that the respondent failed to respond to the claimant's grievance, that “given that Mrs Kealy had by then resigned, we do not consider Westfield’s failure to respond to her grievance amounted to a detriment”. This also is a non-sequitur. There is no reason why failure to respond to a grievance after employment has ended cannot potentially be detrimental. I also accept that the reasoning is insufficient to be Meek compliant as asserted at ground 4c of the Notice of Appeal.

The employment tribunal made an overarching assessment of the credibility of the claimant that impacted on all of her claims:

One of the key components of this assessment was the conclusion that the claimant had told Ofsted that the respondent had not done anything to resolve the heating issues:

The employment tribunal accepted at paragraph 3.20 that the claimant had submitted a document to Ofsted on 18 November 2019. In that document the claimant had set out steps that had been taken by the respondent to seek to deal with the heating issues. I consider that on the basis of these inconsistent findings on an issue that the employment tribunal found to be of such significance to the totality of its factual findings ground 3 of the Notice of Appeal, that asserts perversity, is made out.

The employment tribunal relied on its findings in respect of the constructive dismissal claim. The reasoning was extremely brief. The employment tribunal held when considering the detriment claim:

When dealing with the dismissal claim the employment tribunal stated:

It thus appears that the employment tribunal accepted, in principle, that the claimant had brought to the respondent's attention, by reasonable means, circumstances connected with her work which she reasonably believed were harmful or potentially harmful to health or safety for the purposes of section 44(1)(c) ERA.

In considering the detriment claim the employment tribunal went on to state:

In respect of the dismissal claim the employment tribunal stated:

I consider that it was insufficient to simply read across the findings from the constructive dismissal claim considering the differing statutory tests and the burden placed on the respondent to show the reason for any act or failure to act by section 48(2) ERA. I consider that ground 2 of the Notice of Appeal and the related Meek ground, 4(b), are made out.

I consider that the matter must be remitted to a newly constituted employment tribunal for a full rehearing. My conclusions in respect of the specific errors of law and the assertions of perversity and lack of Meek compliance are such the facts should be found anew as was accepted by the parties to be the appropriate disposal of the appeal.