Stolt Offshore Limited V. Robert Miklaszewicz
| Jurisdiction | Scotland |
| Judge | Lord Marnoch,Lord Nimmo Smith,Lord Weir |
| Date | 21 December 2001 |
| Docket Number | XA108/01 |
| Court | Court of Session |
| Published date | 21 December 2001 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Marnoch Lord Nimmo Smith Lord Weir
| XA108/01 OPINION OF THE COURT delivered by LORD NIMMO SMITH in APPEAL under section 37(1) of the Employment Tribunals Act 1996 in the cause STOLT OFFSHORE LIMITED Appellants; against ROBERT MIKLASZEWICZ Respondent: _______ |
Act: Napier; Paull Williamsons
Alt: Grant-Hutchison; Taits, W.S., Kelso
21 December 2001
[1]This is an appeal under section 37(1) of the Employment Tribunals Act 1996 against a decision of the Employment Appeal Tribunal dated 25 April 2001. Leave to appeal to this court was granted by the Tribunal on 16 May 2001. The appeal relates to the proper construction to be placed upon certain provisions of the Employment Rights Act 1996 ("the 1996 Act"), as inserted by the Public Interest Disclosure Act 1998 ("the 1998 Act").
[2]According to its long title, the main purposes of the 1998 Act were to protect individuals who make certain disclosures of information in the public interest and to allow such individuals to bring action in respect of victimisation. The making of such disclosures is frequently called "whistle-blowing". By section 1 of the 1998 Act a new part IVA was inserted into the 1996 Act. It is with the construction of these provisions that this appeal is principally concerned. The provisions of the inserted part IVA, so far as relevant, are as follows. By section 43A the expression "protected disclosure" is defined as meaning a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. By section 43B(1) the expression "qualifying disclosure" is defined as meaning any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of various specified matters. These include (a) that a criminal offence has been committed, is being committed, or is likely to be committed and (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.
[3]Section 43C(1) provides that a qualifying disclosure is made in accordance with that section if the worker makes the disclosure in good faith - (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to - (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. Section 43D relates to disclosures to legal advisers, and section 43E relates to disclosures to Ministers of the Crown. Section 43F provides:
"(1)A qualifying disclosure is made in accordance with this section if the worker -
(a)makes the disclosure in good faith 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.
(2)An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed."
[4]Section 43G(1) provides:
"(1)A qualifying disclosure is made in accordance with this section if -
(a)the worker makes the disclosure in good faith,
(b)he reasonably believes that the information disclosed, and any
allegation contained in it, are substantially true,
(c)he does not make the disclosure for purposes of personal gain,
(d)any of the conditions in subsection (2) is met, and
(e)in all the circumstances of the case, it is reasonable for him to make the
disclosure."
Subsection (2) provides that the conditions referred to in subsection (1)(d) are inter alia:
"(c)that the worker has previously made a disclosure of substantially the
same information -
(i)to his employer, or
(ii)in accordance with section 43F."
Subsection (3) provides that in determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to inter alia (a) the identity of the person to whom the disclosure is made and (b) the seriousness of the relevant failure.
[5]Section 43H provides inter alia:
"(1)A qualifying disclosure is made in accordance with this section if -
(a)the worker makes the disclosure in good faith,
(b)he reasonably believes that the information disclosed, and any
allegation contained in it, are substantially true,
(c)he does not make the disclosure for purposes of personal gain,
(d)the relevant failure is of an exceptionally serious nature, and
(e)in all the circumstances of the case, it is reasonable for him to make the
disclosure."
Subsection (2) provides that in determining for the purposes of subsection (1)(e) whether it is reasonable for a worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made. Section 43K contains provisions relating to the meaning of the words "worker" and "employer" for the purposes of part IVA, which we do not require to repeat.
[6]Section 47B of the 1996 Act, as inserted by section 2 of the 1998 Act, confers on a worker a right not to be victimised by his employer for having made a protected disclosure, and section 48, as amended, provides inter alia for the making of complaints about victimisation to an Employment Tribunal.
[7]By section 5 of the 1998 Act there was inserted into the 1996 Act a new section 103A, which provides:
"An employee who is dismissed shall be regarded for the purposes of this Part [i.e. Part X] as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."
The remedies for unfair dismissal include a compensatory award, which by section 124 of the 1996 Act is unlimited in inter alia the case of a person who is to be regarded as unfairly dismissed by virtue of section 103A. Under sections 128 and 129 of the 1996 Act, as amended by section 9 of the 1998 Act, an employee who presents a complaint to an Employment Tribunal that he has been unfairly dismissed by his employer and that the reason, or, if more than one, the principal reason for the dismissal is that specified in section 103A, may apply to the Tribunal for interim relief, and the Tribunal may make an order for the continuation of his contract of employment.
[8]The 1998 Act was passed on 2 July 1998. Section 18(3) provided that, subject to subsection (4), the Act should come into force on such day or days as the Secretary of State might by order made by statutory instrument appoint. Subsection (4) provided inter alia that section 1 came into force on the passing of the Act, so far as relating to the power to make an order under section 43F of the 1996 Act. On 5 June 1999 two orders were made. The Public Interest Disclosure Act 1998 (Commencement) Order 1999 (SI 1999 No. 1547), made in exercise of the powers conferred by section 18(3) of the 1998 Act, brought into force on 2 July 1999 all the provisions of the 1998 Act which did not come into force on the passing of the Act. The Public Interest (Prescribed Persons) Order 1999 (S.I. 1999 No. 1549), which was made in exercise of the powers conferred by section 43F of the 1996 Act and came into force on 2 July 1999, specified persons and descriptions of persons prescribed for the purposes of section 43F and the descriptions of matters in respect of which each person, or persons of each description, were prescribed. The prescribed persons and descriptions of persons included the Commissioners of the Inland Revenue ("the Inland Revenue"), and the description of matters in respect of which they were prescribed included income tax, corporation tax and national insurance contributions.
[9]On 15 September 2000 the respondent was dismissed from his employment with the appellants as a diving and operations superintendent. He applied to the Employment Tribunal complaining inter alia that he had been unfairly dismissed under section 103A of the 1996 Act. He also made complaints of unfair dismissal (under section 98), breach of contract (at common law) and victimisation under sections 47A (sic; recte 47B) and 48 of the 1996 Act. In his application he set out the grounds upon which his complaints were made which, so far as relevant for present purposes, may be summarised as follows. Between 1990 and 1993 the respondent was employed as a staff diving-superintendent by Seaway (U.K.) Limited. In 1993 that company was merged with another company to form a company called Stolt-Comex-Seaway Limited ("SCS"), who became the respondent's employers. The respondent alleged that SCS purported to change his status to that of a self-employed person, that he was unwilling to accept this, because it was a false and untrue description of his status, and he reported SCS to his Inspector of Taxes. In November 1993 he was dismissed by SCS for reporting to the Inspector of Taxes the attempts by SCS to classify him as self-employed in circumstances in which that designation was untrue and inaccurate. Thereafter, the proceedings by the Inspector of Taxes continued and in or about 1998 SCS were fined a total of £3,000,000 arising out of and in connection with the report made to the Inland Revenue by the respondent. Meanwhile, between 1 March 1995 and 1998 the respondent was employed by McDermott Subsea Constructors Limited. In 1998 there was a transfer of this company's undertaking to ETPM Deep Sea Limited. In or before 1998 a joint venture had been formed between this latter company and two others, one of whom was SCS, the respondent's former employers. In or about December 1999 the undertaking of ETPM Deep Sea Limited was transferred...
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