Karen Kilraine v London Borough of Wandsworth
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Lord Justice Sales |
| Judgment Date | 21 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1436 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/0718 |
| Date | 21 June 2018 |
[2018] EWCA Civ 1436
Lord Justice Kitchin
Lord Justice Sales
Case No: A2/2016/0718
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(LANGSTAFF J)
UKEAT/0260/15/JOJ, [2016] UKEAT 0260_15_2601
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Milsom and Rachel Barrett (instructed by Neves Solicitors LLP) for the Appellant
Susan Belgrave (instructed by Sharpe Prichard LLP) for the Respondent
Hearing date: 13 June 2018
HTML VERSION OF JUDGMENT APPROVED
This is an appeal from the decision of Langstaff J sitting alone in the Employment Appeal Tribunal (“the EAT”) in a case concerning allegations of detrimental treatment of an employee, the appellant, after what are claimed to be protected disclosures were made by her. The principal issue of law in the case relates to the circumstances in which allegations made by an employee may constitute disclosure of “information” by the employee for the purposes of section 43B of the Employment Rights Act 1996 (as inserted by the Public Interest Disclosure Act 1998) and the validity of guidance given about that by the EAT in Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38.
The legislation
Part IVA of the Employment Rights Act 1996 (“the ERA”) sets out a regime for protection of whistleblowers in a work context. Protection is provided for a worker who makes a “protected disclosure”, meaning a qualifying disclosure (as defined in section 43B) in accordance with any of sections 43C to 43H. For present purposes, the relevant provisions on which the submissions focused are sections 43B(1) and 43F(1):
“ 43B.—Disclosures qualifying for protection.
(1) 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.
…
43F.—Disclosure to prescribed person.
(1) A qualifying disclosure is made in accordance with this section if the worker—
(a) makes the disclosure […] 2 to a person prescribed by an order made by the Secretary of State for the purposes of this section, and
(b) reasonably believes—
(i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and
(ii) that the information disclosed, and any allegation contained in it, are substantially true.
…”
Section 43B(1)(b) was interpreted by the EAT in Parkins v Sodexho [2002] IRLR 109 to cover a disclosure made by an employee about what he reasonably believed was a breach of his contract of employment. Since then, the provision has been amended with effect from 25 June 2013 to include in it the phrase, “ is made in the public interest and tends to show etc …”, to impose an additional public interest requirement in order to modify the effect of the decision in Parkins v Sodexho: see Chesterton Global Ltd v Nurmohamed [2017] EWCA CIv 979; [2017] IRLR 837, [9]–[13] (Underhill LJ). This amendment is not material in this case, which concerns events prior to 2013.
Factual background
The appellant commenced employment with the respondent education authority on 1 September 2003 as an Educational Achievement Zone Literacy Advisor Teacher. She subsequently became an Education Achievement Project Manager. This involved her in projects aimed at trying to raise educational standards in schools.
The appellant's relations with other staff and managers at the respondent were not always smooth. Over the years, she made a number of complaints about others. The alleged protected disclosures by the appellant in issue on this appeal occurred in the course of the making of such complaints. Four alleged protected disclosures were in issue in the proceedings below, made on 21 July 2005, 25 January 2008, 10 December 2009 (“the third disclosure”) and 21 June 2010 (“the fourth disclosure”). So far as concerns this appeal, it is only the third and fourth disclosures which remain in issue.
Shortly after the fourth disclosure, the appellant was placed on garden leave. On 1 September 2010 she was formally suspended on full pay pending a disciplinary investigation on charges that she had made unfounded allegations against colleagues on a number of occasions.
In early 2011, the respondent faced a major reduction in government funding for education initiatives. In the light of that loss of funding, the appellant was dismissed on 30 September 2011 on grounds of redundancy. At the hearing before the Employment Tribunal (“the ET”) there was an issue whether the dismissal of the appellant had really occurred because of protected disclosures by her, but the ET found on the evidence it heard from the respondent's witnesses that the ground of dismissal was genuinely redundancy. That finding is not in issue before us.
The appellant commenced proceedings in the ET for unfair dismissal and for relief in respect of detriments to which she claimed she had been subject because of the protected disclosures. The proceedings were protracted. The appellant's claim was poorly focused. Eventually, the ET made directions which resulted in the appellant identifying the four alleged protected disclosures on which she sought to rely in the proceedings and an agreed list of issues being filed on 8 January 2013.
The hearing of the claim was scheduled to take place in June 2013, but was postponed on the application of the appellant because of her ill health. Notice was given that the claim would be heard over 8 days commencing on 9 July 2014.
Unfortunately, there was no agreement on the documents which should be before the ET. On 3 July 2014, the appellant served a witness statement of 377 pages. On 8 July, the appellant's representative delivered 13 lever arch files to the respondent, containing some 4,000 pages of documents for the hearing.
At the opening of the hearing on 9 July, at which the appellant was represented by Ms Iyer of counsel, the ET took the view that the appellant's witness statement was excessively long and the volume of documentation served one day before the hearing was unreasonable. The ET decided to give case management directions to enable the hearing to commence on Monday, 14 July. The appellant was ordered to prepare a shorter witness statement, not exceeding 50 pages, and the documentation was to be reduced. The appellant's revised witness statement and revised bundle of documents were supposed to be provided to the ET and the respondent on Friday, 11 July; but in the event they were only made available on the morning of 14 July, when the hearing resumed.
On the basis of its preparatory reading of the respondent's witness statements, the ET identified an issue whether any of the four alleged protected disclosures qualified as such as a matter of law. It took time on the morning of 14 July to read the relevant parts of the appellant's revised witness statement. The ET then raised with counsel for both parties that it might be sensible for the ET to decide as a preliminary issue, at the outset of the hearing, whether any of the four alleged disclosures qualified as protected disclosures for the purposes of section 43B of the ERA or could be relied upon. Counsel agreed that it would be sensible to proceed in this way. The ET therefore considered at that stage, as a preliminary issue, whether any of the four allegations should be struck out. It decided that three of the four allegations of protected disclosures should be struck out, including those in relation to the third disclosure and the fourth disclosure. Its reasons for this were explained in the final judgment given after the hearing.
Having narrowed the claim down in this way, the ET then proceeded with the substantive hearing in relation to the claims of unfair dismissal, automatically unfair dismissal and the remaining allegation of a protected disclosure (and the detriment in relation thereto). At this stage it heard evidence from the appellant and from the respondent's witnesses and made relevant findings of fact. It found that the appellant had been dismissed on the ground of redundancy (not by reason of any protected disclosure); that the dismissal was unfair, because of a lack of consultation with her; but that no compensation was payable, because it was clear that she would have been dismissed on that ground even had she been consulted. The ET dismissed the appellant's other claims.
It is the appellant's claim in relation to the third disclosure and the fourth disclosure which is in issue on this appeal.
The third disclosure was contained in a letter from the appellant to Mr Johnson of the respondent, dated 10 December 2009. The letter set out a complaint that the appellant had not been included in a meeting of the Performance and Standards Monitoring Group to present an annual report. In the EAT the appellant's claim was refined down to reliance on the following paragraph in that letter, and the sentence in it which I have highlighted:
“I think that it is also important to remind you that what has been achieved over the years has been despite bullying and...
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