Chesterton Global Ltd (First Appellant) Neal Verman (Second Appellant) v Mohamed Nurmohamed Public Concern at Work (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Beatson,Lady Justice Black |
| Judgment Date | 10 July 2017 |
| Neutral Citation | [2017] EWCA Civ 979 |
| Docket Number | Case No: A2/2015/1433 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 2017 |
and
and
[2017] EWCA Civ 979
Lady Justice Black
Lord Justice Beatson
and
Lord Justice Underhill
Case No: A2/2015/1433
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Employment Appeal Tribunal
The Hon. Mr Justice Supperstone
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Reade QC (instructed by Doyle Clayton Solicitors) for the Appellants
Mr James Laddie QC and Ms Alice Mayhew (instructed by Teacher Stern LLP) for the Respondent
Thomas Linden QC and Mr Thomas Kibling (instructed by CM Murray Solicitors) for the Intervener
Hearing date: 8 th June 2017
Approved Judgment
INTRODUCTION
Mr Mohamed Nurmohamed, who is the respondent to this appeal, but to whom it is convenient to refer as the Claimant, is an estate agent. From January 2008 until his dismissal on 17 October 2013 he was employed by Chesterton Global Ltd ("Chestertons"), latterly as Director of its Mayfair office. Following his dismissal he brought proceedings in the employment tribunal against Chestertons alleging that he was unfairly dismissed. He claimed that his dismissal was because he had made protected disclosures within the meaning of the Employment Rights Act 1996 – i.e., in the usual shorthand, for being a whistleblower – with the result that it was automatically unfair by reference to section 103A of the Act; but he also claimed for "ordinary" unfair dismissal by reference to section 98. In addition, he claimed to have suffered various detriments, besides his dismissal, because he had made the same disclosures, contrary to section 47B of the Act: the latter claim was made against both Chestertons and its HR Director, Mr Neal Verman. I will refer to Chestertons and Mr Verman as the Respondents, though they are the appellants before us.
Chestertons in its ET3 acknowledged that it was liable for ordinary unfair dismissal, but both it and Mr Verman disputed the claims based on the whistleblower provisions. By a judgment sent to the parties on 4 June 2014 an employment tribunal chaired by Employment Judge Walker upheld both claims. By a judgment handed down on 8 April 2015 the Employment Appeal Tribunal (Supperstone J sitting alone) dismissed the Respondents' appeal. This is an appeal against that decision.
There were issues before the ET as to whether the Claimant made the disclosures that he alleged; whether, if so, they were protected within the meaning of the Act; and whether in any event they constituted the principal reason for his dismissal or a ground for the detriments of which he complained. But only the second of those issues is live before us. More particularly, the issue is whether the ET was entitled to find that the Claimant had made the disclosures in question in the reasonable belief that they were "in the public interest", which is one of the elements in the definition of a protected disclosure. That requirement was introduced by amendment in 2013 and has not previously been the subject of any consideration in this Court. Accordingly the charity Public Concern at Work ("PCaW") has been given permission to intervene.
The Claimant has been represented before us by Mr James Laddie QC and Ms Alice Mayhew; the Respondents by Mr David Reade QC; and PCaW by Mr Thomas Linden QC and Mr Thomas Kibling. In the ET and the EAT the Claimant was represented by Ms Mayhew and the Respondents by Mr Martin Palmer. The quality of the submissions before us was very high.
THE STATUTORY PROVISIONS AND THEIR HISTORY
INTRODUCTORY
The scheme of whistleblower protection was created by the Public Interest Disclosure Act 1998. This introduced into the 1996 Act, as Part IVA, a new concept of a "protected disclosure". Section 47B, introduced into Part V of the Act, gave workers the right to complain to the employment tribunal of being subjected to a detriment, other than dismissal, on the ground that they had made such a disclosure. So far as dismissal is concerned, the 1998 Act introduced into Part X, at section 103A, a new form of unfair dismissal in cases where the reason, or principal reason, for the dismissal of an employee was that they had made a protected disclosure. Establishing a claim of unfair dismissal under this head has three potential advantages: the protection is available from the beginning of the employment, instead of only after a qualifying period; the cap on compensation at section 124 of the Act is disapplied; and in an appropriate case a claim can be made for interim relief.
The term "protected disclosure" is defined in sections 43A-43H of the 1996 Act. The basic structure of those provisions is as follows:
(1) Section 43A defines a protected disclosure as a "qualifying disclosure" which is made by a worker in accordance with any of sections 43C to 43H.
(2) Section 43B defines a qualifying disclosure essentially by reference to the subject-matter of the disclosure: I set it out in full below.
(3) Sections 43C to 43H prescribe six kinds of circumstances in which a qualifying disclosure will be protected, essentially by reference to the class of person to whom the disclosure is made.
Both section 43B and sections 43C to 43H (with the exception of 43D) were amended by the Enterprise and Regulatory Reform Act 2013; but the overall structure remained unchanged.
SECTION 43B: QUALIFYING DISCLOSURE
As originally enacted, section 43B (1) read as follows:
"In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed."
The case-law tends to use the term "wrongdoing" as a shorthand label for the matters listed at (a)-(e), and I will do the same. 1
Those provisions were subject to some exegesis by this Court in Babula v Waltham Forest College [2007] EWCA Civ 174, [2007] ICR 1026. Two points in particular are emphasised in that case, though in truth both are clear from the terms of the section itself:
(1) The definition has both a subjective and an objective element: see in particular paras. 81–82 of the judgment of Wall LJ (pp. 1045–6). The subjective element is that the worker must believe that the information disclosed tends to show one of the six matters listed in sub-section (1). The objective element is that that belief must be reasonable.
(2) A belief may be reasonable even if it is wrong. That is well illustrated by the facts of Babula, where an employee disclosed information about what he believed to be an act of criminal incitement to religious hatred, which would fall within head (a) of section 43B (1). There was in fact at the time no such offence, but it was held that the disclosure nonetheless qualified because it was reasonable for the employee to believe that there was.
Section 43B was amended by section 17 of the 2013 Act, with effect from 25 June 2013, by the insertion of the words which I have italicised into the first part of sub-section (1) as follows:
"In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following —…."
It was common ground before us, and is in any event clear from the Parliamentary materials to which I refer below, that the object of the amendment was to reverse the effect of the decision of the EAT in Parkins v Sodexho [2001] UKEAT 1239/00, [2002] IRLR 109. In that case an employee
was dismissed because he had complained of having to operate a particular machine without supervision, which he said was both a breach of his contract of employment and "a matter of health and safety". One issue was, as Judge Altman put it at para. 14 of his judgment:"Where … one of the possible qualifying disclosure, is described as being the reasonable belief that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, does that term 'legal obligation' refer to legal obligations arising out of the contract of employment?"
The EAT held, at para. 16:
"… we can see no real basis for excluding a legal obligation which arises from a contract of employment from any other form of legal obligation. It seems to us that it falls within the terms of the Act. It is a very broadly drawn provision."
The result was that, whenever an employee made a disclosure about what he reasonably believed was a breach of his contract of employment (and that would include the wide-ranging "trust and confidence" term – see Malik v Bank of Credit and Commerce International SA [1998] AC 20), the disclosure would, without more, "qualify" and accordingly be potentially protected.
It was widely believed that Parkins v Sodexho extended the scope of whistleblower protection beyond what had been intended by Parliament when enacting the 1998 Act. Paras. 102–103 of the Explanatory Notes to the 2013 Act read as follows:
"102. The Public Interest Disclosure Act 1998 ("PIDA 1998") inserted a new Part 4A into the ERA 1996 to provide protection, in certain...
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