Fiona Tiplady v City of Bradford Metropolitan District Council

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLady Justice Rose,Lady Justice Simler,Lord Justice Underhill
Judgment Date11 Dec 2019
Neutral Citation[2019] EWCA Civ 2180
Docket NumberCase No: A2/2018/2684

[2019] EWCA Civ 2180

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the Employment Appeal Tribunal

HHJ Eady QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(Vice-President of the Court of Appeal (Civil Division))

Lady Justice Rose

and

Lady Justice Simler

Case No: A2/2018/2684

Between:
Fiona Tiplady
Appellant
and
City of Bradford Metropolitan District Council
Respondent

The Appellant appeared in person

Mr Simon Lewis (instructed by the Bradford MDC City Solicitor) for the Respondent

Hearing date: 17 October 2019

Approved Judgment

Lord Justice Underhill

INTRODUCTION

1

The Appellant, Mrs Fiona Tiplady, was at the time material to these proceedings a Senior Planning Officer employed by the Respondent, the City of Bradford Metropolitan District Council. Between February 2014 and September 2016 she and her husband had extensive dealings with the Council about problems affecting a property owned by them at Haworth, which is within the Bradford metropolitan district: the property was identified before us simply as “Number Three”. The dealings comprised two episodes, the “sewer episode” in 2014 and the “shed episode” in 2016. In brief:

(1) The sewer episode arose out of the discovery by Mr Tiplady of a sewer running under Number Three which he believed was venting dangerous gases. Although the sewer belonged to Yorkshire Water (“YW”), he and Mrs Tiplady maintained that the Council's responsibilities were engaged because it posed an environmental health hazard. They were extremely dissatisfied both with YW's proposals about what needed to be done about the sewer and with the position of the Council's Environmental Health Department (“EHD”), which did not believe that there was any risk requiring the use of its powers.

(2) The shed episode arose out of a complaint made to the Council that an outbuilding was being constructed at Number Three without planning permission. Mr and Mrs Tiplady did not believe they needed planning permission because the construction constituted permitted development under the GPDO. Council staff were refused access to the property in order to take measurements. The Council eventually applied for and was granted a search warrant, which was executed on 14 September 2016.

It will be apparent that neither episode had, as such, anything to do with the employment relationship between Mrs Tiplady and the Council: they concerned the exercise of the Council's powers as a local authority.

2

Mrs Tiplady was unhappy about what she perceived as the unreasonable way in which the Council and its staff handled both episodes, culminating in the issue and execution of the search warrant. On 16 September 2016 she lodged a formal grievance, and on 21 October she resigned.

3

On 15 February 2017 Mrs Tiplady presented a claim in the Employment Tribunal (“the ET”) complaining of unfair (constructive) dismissal – both “ordinary” unfair dismissal, by reference to section 98 of the Employment Rights Act 1996, and “automatic” unfair dismissal under section 103A, i.e. by reason of her having made protected disclosures (as defined in Part IVA of the Act). She also complained of sixteen detriments occurring between 2014 and 2016, to which she said the Council had subjected her by reason of the same disclosures.

4

As regards the detriment claims, Mrs Tiplady's case was based on section 47B of the 1996 Act. Sub-section (1) reads:

“A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

By sub-section (1A) a worker also has the right not to be subjected to any such detriment “by another worker of [his or her] employer in the course of that other worker's employment”; and by sub-section (1B) the employer will be (in effect) vicariously liable in respect of any such detriment. Mrs Tiplady did not at any stage in the proceedings before the ET specify whether she was relying on sub-section (1) or sub-sections (1A) and (1B), and nothing turns on the point for our purposes. I should note, because it is relevant to points considered below, that section 47B is one of a number of sections falling under Part V of the Act, which is headed “Protection from Suffering Detriment in Employment”. Apart from the making of protected disclosures the protected acts include such matters as doing jury service (section 43), acting as a health and safety representative (section 44) and insisting on the rights accorded by the Working Time Regulations (section 45A).

5

The claim was heard over six days in November 2017 before an ET in Leeds chaired by Employment Judge Davies. Mrs Tiplady appeared in person, and the Council was represented by Mr Simon Lewis of counsel. By a Judgment sent to the parties on 4 December 2017 all Mrs Tiplady's claims were dismissed. A request for a reconsideration was dismissed by EJ Davies on 12 January 2018. I wish to say that the Tribunal's Reasons are admirably clear and thorough (notwithstanding the accidental omission of explicit findings about one of the detriments alleged, which was subsequently corrected under the Burns/ Barke procedure).

6

It is unnecessary that I should summarise at this stage the basis of the ET's reasons for reaching its conclusions. The only point that I need to note is that one of the elements in its reasoning as regards the whistleblower detriment claim was that most of the detriments of which Mrs Tiplady complained concerned how the Council had dealt with the sewer and the shed episodes and had accordingly been suffered by her in her capacity as a householder and not as an employee. This has been referred to before us as the “employment field point”. I discuss it fully below. I should also, in fairness to the Council, record that the ET found no serious criticism of its conduct as regards either episode. It is in fact clear from its findings that Mr Tiplady's conduct towards the Council and its staff in relation to both episodes was unreasonable and his correspondence highly intemperate, and that the same is true of Mrs Tiplady, though not to the same extent.

7

Mrs Tiplady appealed to the Employment Appeal Tribunal (“the EAT”). Her appeal was initially rejected on the papers by HH Judge Peter Clark under rule 3 (7) of the Employment Appeal Tribunal Rules 1993 (as amended). Following a subsequent oral hearing under rule 3 (10), at which Mrs Tiplady again represented herself, HH Judge Eady QC, by a judgment promulgated on 5 November 2018, allowed the appeal to proceed only on a single ground relating to the Tribunal's reasoning as regards constructive dismissal.

8

Mrs Tiplady sought permission to appeal to this Court against the EAT's refusal to allow her appeal in respect of whistleblower detriment to proceed. Henderson LJ gave permission on a single ground relating to the employment field point. That is the appeal before us. As before the ET, Mrs Tiplady appeared in person and the Council was represented by Mr Lewis.

THE DECISIONS OF THE ET AND THE EAT

9

I confine myself to those parts of the reasoning of the tribunals below which are relevant to the employment field point.

10

The ET found that Mrs Tiplady had made some protected disclosures, though not all those that she claimed. The issues then were (a) whether the Council had subjected her to all or any of the alleged detriments and (b), if so, whether it did so on the ground that she had made those disclosures or any of them. The employment field point is relevant to the first of those issues because it is concerned with what kind of detriment is caught by section 47B. At paras. 3.6–3.7 of its Reasons, as part of its self-direction on the applicable legal principles, the ET considered a submission from Mr Lewis for the Council that “the protection afforded by s. 47B is confined to detriments to which a worker is subjected as a worker, rather than in their private or non-work capacity”. After a careful discussion, which I need not reproduce here, it accepted that:

“… the detriment must be in the employment field [original italics]. The mere fact that a person happens to work for the body in question is not enough: the detriment must be in the employment field and does not include detriment in the private or personal capacity.”

11

The Tribunal proceeded to apply that test in reaching its decision on the sixteen detriments in respect of which Mrs Tiplady claimed. At the risk of being over-laborious, I will briefly summarise its reasoning on each:

(1) The first detriment consisted of an e-mail sent by one Council employee to another about how it should handle the sewer episode. The Tribunal found, at para. 4.42 of the Reasons, that the sending of the e-mail did not constitute a detriment. It continued, at para. 4.43:

“In any event, even if this had amounted to a detriment, the Tribunal did not accept that this was in the course of the Claimant's employment. It arose out of and was in the Tribunal's view plainly confined to the private issues relating to the sewer and pipes at Number Three. It had nothing whatever to do with the Claimant's employment.”

(2) This detriment concerned the holding and conduct of a meeting by Mr Pearson, the Deputy City Solicitor. EJ Davies, in her response to the Burns/ Barke request referred to above, said that the Tribunal had found that that did not constitute a detriment but also that, even if it had,

“… [i]t did not fall in the field of employment. It was a step taken to try to resolve the private issues relating to Number Three. The Claimant's involvement was as a householder, not as an employee.”

(3) This detriment consisted of an entry in the log of the Environmental Health Department which Mrs Tiplady said mischaracterised her complaint relating to the sewer episode. The Tribunal found that this too did not constitute a...

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    ...and highlighted to the parties the decision of the Court of Appeal in Tiplady v City of Bradford Metropolitan District Council [2019] EWCA Civ 2180. Whilst that is a Judgment regarding whistleblowing, Underhill provides a detailed analysis and explanation of the way in which claims under th......

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