1. These are addressed at paras. 3/55-57. The parts of those paragraphs relevant to the issues before us read as follows:

"55. Having found that the Claimant's oral evidence to the Coroner was a protected disclosure, the tribunal have concluded that the press release issued by Mr Burden on 4 July 2013 was a detriment because the decision to refer to the Claimant in the press release was materially influenced by the Claimant's protected disclosure in his written and oral communications to the coroner. The Claimant raised these concerns in the public interest and we have found as a fact that what he was said in both the written report and in the hearing was substantially true. The Press release contained an untrue statement of fact as we have found as a fact above … and therefore it was incorrect to state in the press release that the dismissal was for matters that were unrelated to the death. The tribunal heard no evidence from the Respondent as to why Mr Burden chose to issue a press release straight after the coroner's inquest. The tribunal have concluded that the Respondent did so in order to subject the Claimant to a detriment and was materially influenced by the evidence he gave to the coroner's hearing which was consistent with the concerns that he had raised with the Respondent and which had been categorised by the Respondent as being "unproven" "misleading" and "inaccurate" ….

1. The tribunal have also made extensive findings of fact about the Respondent's referral of the Claimant to the GMC on 5 July. The tribunal conclude that the timing of that referral was no coincidence and was reported in the press release. The tribunal were not wholly convinced that the Claimant had been reported to the GMC in October 2012 as the GMC appeared to have no record of the letter and the Respondent did not chase the matter up until the day after the coroner's hearing. Mr Goulston similarly, when he heard the appeal, felt no compulsion or obligation to report the outcome of the appeal to the GMC even though this is what the October letter was purported to have said. The tribunal were not wholly convinced by the Respondent's evidence that, even if there were a letter of October 2012, the tribunal did not find the evidence of the Respondent as to the reason why the press release should refer to the GMC referral or as to why the GMC were informed on 5 July.⁵ The tribunal concluded therefore that the referral to the GMC itself was a detriment because it resulted in the Claimant facing a further investigation into his professional conduct, we conclude that Mr Burden's decision to make the referral that day was materially influenced by the Claimant's evidence of an unsafe service and his version of the events of the 9 June to the coroner's inquest which was a protected disclosure. We also concluded that reference to the GMC referral in the press release resulted in a detriment.

1. The tribunal similarly concluded that the report produced to the Board Meeting containing a full reference to the wording of the press release also amounted to a detriment as it represented a further publication of the misleading press release to a wider medical audience. This would again subject the Claimant to a detriment and would be a further personal and professional embarrassment to the Claimant and this would impact the claimant detrimentally in the eyes of his professional colleagues."

1. The reference in para. 3/55 to an earlier finding that the press release was untrue is to a finding at para. 2/409 in the following terms:

"… the press release was an inaccurate statement of fact as it was conceded by [Mr Goulston in cross-examination] that the Claimant was dismissed for reasons that related to the death of the patient in that he was dismissed for the contents of the written report to the coroner and for discussion he had with the GP Commissioner (allegation 6 and 7) and for matters in relation to allegation 4 and 8. It cannot be said that these matter were 'unrelated to the death', they were inextricably linked to the death."

1. The Trust challenged the decision of the ET as regards liability on a number of grounds which I need not itemise here. It also challenged the two decisions – on Polkey and contributory fault – going to the remedy for the unfair dismissal claim.

1. The judgment of Judge Clark is as short as that of the ET was long. His dispositive reasoning appears in only three paragraphs, as follows:

"19. The flaw in the Employment Tribunal's reasoning, in my judgment, is that instead of determining 'the set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee', to adopt the timeless definition of the reason for dismissal formulated by Cairns LJ in Abernethy v Mott, Hay and Anderson [1974] ICR 323, the Employment Tribunal has embarked on its own assessment of the conduct charges upheld, first by the Parker panel and then by the appeal panel chaired by Mr Goulston; found them less than compelling and then moved to the conclusion that conduct was not the reason for dismissal but the protected disclosures. What is signally missing from these extensive Reasons is an analysis leading to the conclusion that the evidence of both Mr Parker and Mr Goulston, representing their respective panels, was false and a deliberate attempt to mislead the Employment Tribunal as to the true reason for dismissal.

1. This error in approach was further compounded by the Employment Tribunal linking, factually, disclosures 8, 9, 11, 13 and 15 to allegations 4, 8 and 9 in the dismissal letter. I accept the submission of Ms McNeill … that at paragraph 53 … the Employment Tribunal wrongly thought that the fact that these disciplinary charges were 'related to' the substance of the disclosures referred to was sufficient to decide the reason question. That is not the correct causation test.

1. Separately, I can discern no clear reasoning leading to the expressed conclusion that Mr Goulston and his panel members determined the appeal on the basis of the protected disclosures found by the Employment Tribunal, as opposed to the conduct grounds put forward."

1. That conclusion meant that the issues of liability both for unfair dismissal and in respect of the post-termination detriments had to be remitted for re-hearing in their entirety (save that a single finding as to whether disclosure 14 was protected was allowed to stand): Judge Clark directed that they be heard before a differently-constituted tribunal. It also followed that it was unnecessary for any decision to be made on the two remedy issues.

1. The Appellant contends that the EAT's reasoning in the three paragraphs quoted above is plainly bad and that the decision of the ET should be restored. The Trust seeks to defend Judge Clark's reasoning but in its Respondent's Notice it repeats other challenges to the ET's reasoning which had been advanced in its original Notice of Appeal to the EAT but on which Judge Clark had expressed no view. It also, if the finding of unfair dismissal is restored, repeats its challenge to the Tribunal's conclusions on Polkey and contributory fault. I will deal in turn with the unfair dismissal claim, taking separately the issues of liability and the two points going to compensation, and the detriment claim.

1. I will deal in turn with the issues raised by the appeal itself and the further points on which the Trust relied under its Respondent's Notice.

1. Since there is now no dispute that the Appellant made protected disclosures, the only question is whether the ET was right, or in any event entitled, to find that that was the principal reason why he was dismissed.

1. The essential submission advanced by Mr Stilitz was that that question is answered unequivocally by the terms of the dismissal letter itself. Of the six charges which were found proved, four consisted explicitly of the making of the disclosures which the Tribunal had held to be protected. To spell it out:

• Charge 4 was that the Appellant made "various unsubstantiated and unproven allegations of an unsafe service within the interventional cardiology service at Croydon Health Services NHS Trust".

• Charge 6 is that he "made unsubstantiated and unproven allegations of an unsafe service and unsafe staffing levels within the interventional cardiology service" in his initial report to the Coroner.

• Charge 7 is that he made the same "unsubstantiated and unproven allegations" to Dr Fernandes.

• Charge 9 is that he made "persistent claims that the Cath Lab is unsafe due to [Ms Riddle's] presence/management".

There are of course the other two charges, to which I will return presently; but if they are put to one side for the moment the Trust is, Mr Stilitz submitted, straightforwardly saying "we are dismissing you because you made these disclosures". That submission is entirely consonant with the reasoning of the ET: see para. 63 above.

1. Mr Stilitz acknowledged that by saying explicitly that the Appellant was being dismissed for making the disclosures the Trust was not automatically rendering itself liable for unfair dismissal. What it was in substance saying in the letter (albeit not using the statutory language) was that the disclosures were not protected (principally, though not only, because they were made in pursuit of personal antagonism against Ms Riddle and others and so not in good faith). But that meant that if it lost on that issue, as it did, it was condemned out of its own mouth on the "reason" issue. It was adopting, as he put it, a high-risk strategy.

1. Mr Stilitz pointed out that the fact that in this case the disclosures were (subject to the question of the other two charges) the express reason for the Appellant's dismissal meant that the present case was different from the kind of whistleblowing case which is more commonly encountered in practice, where a dismissal is ostensibly for a legitimate reason but it is said that that is not the true reason. The kinds of problem about the burden of proof considered in Kuzel and other such cases simply do not arise here. He accepted that the ET appears not fully to have appreciated this point and had taken a long way round to reach its conclusion; but he submitted that that had not prevented it from eventually asking and answering the right question.

1. Ms McNeill's principal answer to those submissions was that they departed from the "Abernethy approach" which is fundamental in all unfair dismissal cases. The decisive issue was not whether the Tribunal found the disclosures to be protected but whether Mr Parker believed that they were – or, to put the same thing another way, whether they would have been protected if the facts were as he believed them to be. Take the paradigm case of a dismissal for misconduct falling for consideration under section 98. If an employer believes that an employee has stolen from the till, the "reason" for the consequent dismissal is misconduct even if it is subsequently proved that the theft was carried out by someone else. The only issue at the "reasons" stage of the enquiry is whether the employer's belief is genuine – though of course if the belief is unreasonable he will fail at the second stage under section 98. It made no difference that the particular reason in play in the present case was the making of a protected disclosure: the same approach is required. Section 103A had been incorporated into Part X of the 1996 Act and must be interpreted in conformity with the general principles of unfair dismissal law.

1. Applying that approach to the present case, Ms McNeill submitted that it was the Trust's case throughout, and his own evidence, that Mr Parker genuinely believed that the Appellant made the disclosures in question in pursuit of his personal antagonism against (primarily) Ms Riddle and with a view to securing the reinstatement of Sister Jones; in which case the disclosures would plainly have been made in bad faith and would not be protected. The question was (at the first stage) whether that was indeed his belief. The Tribunal had made no finding about that, or in any event none that was sustainable. Mr Stilitz's submissions side-stepped that question altogether.

1. In my view Mr Stilitz's approach to this issue is plainly right and Ms McNeill's plainly wrong. It is necessary in the context of section 103A to distinguish between the questions (a) whether the making of the disclosure was the reason (or principal reason) for the dismissal; and (b) whether the disclosure in question was a protected disclosure within the meaning of the Act. I accept that the first question requires an enquiry of the conventional kind into what facts or beliefs caused the decision-maker to decide to dismiss. But the second question is of a different character and the beliefs of the decision-taker are irrelevant to it. Parliament has enacted a careful and elaborate set of conditions governing whether a disclosure is to be treated as a protected disclosure. It seems to me inescapable that the intention was that the question whether those conditions were satisfied in a given case should be a matter for objective determination by a tribunal; yet if Ms McNeill were correct the only question that could ever arise (at least in a dismissal case) would be whether the employer believed that they were satisfied. Such a state of affairs would not only be very odd in itself but would be unacceptable in policy terms. It would enormously reduce the scope of the protection afforded by these provisions if liability under section 103A could only arise where the employer itself believed that the disclosures for which the claimant was being dismissed were protected. In many or most cases the employer will not turn his mind to the question whether the disclosure is protected at all. Even where he does, most often he will be convinced, human nature being what it is, that one or more circumstances are present that mean that the disclosure is unprotected – for example, that it was unreasonable for the employee to believe that the relevant "section 43B matter" was engaged; or that the disclosure was made in bad faith or was not in the public interest; or, in the case of disclosure under 43G, that one or more of the additional requirements for protection was not satisfied. I do not believe that Parliament can have intended employees to be unprotected in such cases. In my view it is clear that, where it is found that the reason (or principal reason) for a dismissal is that the employee has made a disclosure, the question whether that disclosure was protected falls to be determined objectively by the tribunal.

1. I do not believe that that approach involves any inconsistency with the general approach to establishing the reason for a dismissal adopted in cases under section 98. The fact that a "subjective" approach is necessary to deciding whether the reason for dismissal relates to capability or conduct under heads (a) and (b) of sub-section (2) does not mean that the same approach is required to any questions of legal classification that might arise in the context of other potential reasons for dismissal. In fact, that can be seen in the context of section 98 itself. Sub-section (2) (d) covers the case where the employee's continued employment would be in breach of a statutory requirement. It is well established that in such a case the question is not whether the employer believed that that would be the case but whether it was in fact so: see Bouchaala v Trust House Forte Hotels Ltd [1980] ICR 721, per Waterhouse J at p. 725 B-H.⁶

1. It is true that Ms McNeill's submission would have no application in the case of "whistleblower detriment" other than dismissal, i.e. under section 47B: that is because her case depends specifically on the fact that Parliament has chosen to provide for protection against dismissal within the general framework of unfair dismissal law, whereas section 47B falls another part of the Act. In this connection she referred us to the decision of this Court in NHS Manchester v Fecitt [2011] EWCA Civ 1190, [2012] ICR 372. That was a case under section 47B. One of the issues was whether, in order to decide whether a detriment should be treated as having occurred "on the ground that" the claimant had made a protected disclosure, it was sufficient that the making of the disclosure was a significant part of the employer's motivation or whether it was necessary that it be the only or principal reason. Counsel for the employer argued for the latter approach, in order to avoid the anomaly of different approaches applying to detriment claims under section 47B and dismissal claims under section 103A. The Court rejected that submission. As to the anomaly, Elias LJ said, at para. 44 (p. 384 C-D):

"… it seems to me that that is simply the result of placing dismissal for this particular reason into the general run of unfair dismissal law."

I do not believe that that observation advances the argument in our case. In the first place, the Court in Fecitt was concerned with a different and lesser anomaly than that which would arise if "protected disclosure" were interpreted objectively for the purpose of section 47B but subjectively for the purpose of section 103A. But, more fundamentally, the anomaly recognised in Fecitt followed inevitably from the language and structure of the statutory provisions. That is not the case here. For the reasons already given, there is no reason to construe section 103A in the way contended for by Ms McNeill.

1. I return to the fact that the reasons for the Appellant's dismissal included the other two charges, which are not directly related to the making of protected disclosures. As to that, Mr Stilitz submitted that the "behaviour communication and attitudes" towards (in particular) Dr Qasim and Ms Riddle which were the subject of charge 8 consisted to a very large extent of the various complaints which he had made about them and was accordingly inextricably intertwined with the protected disclosures. He noted that that was the ET's conclusion too: see the reference in para. 3/53 to the disclosures being relied on for the purpose of "allegations 4, 8 and **9". He acknowledged that charge 2 – that the Appellant had refused to work on 4 August – did not have anything to do with a protected disclosure; but he submitted that on any sensible view this was not the core of the case against him. He submitted that, taking the decision letter as a whole, it was plainly the making of the protected disclosures which constituted the "principal reason" for his dismissal; and in any event that was a conclusion which the ET was entitled to reach.

1. Ms McNeill did not, I think, dispute that the question which of the reasons given in the dismissal letter constituted the principal reason was a matter for the assessment of the ET, or that a decision that the charges based on the protected disclosures were more important than the other two charges was one which was open to it. But she submitted that the making of that assessment by the Tribunal was vitiated by errors in its consideration of Mr Parker's reasoning about charge 8 in the earlier part of the "Decision" section. The relevant paragraphs are 3/43-48. In those paragraphs the Tribunal essentially found that Mr Parker's approach to the evidence was one-sided and that he had uncritically accepted the evidence about the Appellant's conduct given by Dr Qasim, Ms Riddle and Mr Kemp without considering compelling contrary evidence from the Appellant himself and other sources. Ms McNeill submitted that those criticisms of Mr Parker were unfounded and that he could be shown to have reached a balanced conclusion. She referred in particular to an observation by the Tribunal at the beginning of para. 3/46 to the effect that "no evidence was provided to show the basis on which" the Appellant was found to have bullied, harassed and intimidated Ms Riddle. She took us to passages in the transcript of Ms Riddle's evidence at the disciplinary hearing in which she explicitly complained of such treatment and submitted that this demonstrated that the Tribunal's statement was unsustainable. She submitted that if the Tribunal had not made those errors it would, or in any event might, have found that Mr Parker was entitled to find charge 8 proved; and that that conclusion should, or in any event might, have affected its assessment of what was the principal reason for the Appellant's dismissal.

1. I do not accept that submission. I do not in fact believe that in the sentence which Ms McNeill particularly criticised the Tribunal meant to say that there was no evidence before Mr Parker that the Appellant had bullied Ms Riddle. That would be inconsistent with the broader criticism made in these paragraphs, which was, as I have said, that he uncritically accepted the evidence from her and the other Trust witnesses. I think that it meant that Mr Parker gave no evidence to the Tribunal about how he approached the conflict in the evidence before him. But in any event the findings about the fairness of Mr Parker's approach were not central to the decision about which of the reasons given by the Trust for dismissing the Appellant was the principal reason. That depended on looking into his mind and assessing which of the charges were likely to have carried the most weight: for that purpose it was immaterial whether his prior finding that the charges were proved was fair.

1. Against that background I can deal fairly briefly with the bases on which the EAT allowed the appeal. Para. 19 of the judgment of the EAT appears to make two criticisms of the ET's reasoning, though they are possibly related. I take them in turn.

1. The more fundamental criticism in para. 19 appears to be that the ET's finding of liability under section 103A necessarily involved a conclusion that Mr Parker and Mr Goulston had deliberately given false evidence as to their reasons for making the decisions that they did, but that the ET does not give any basis for such a conclusion. That is a rather dramatic way of putting it, which may tend to distract from the real point. Although, as we have seen, the Appellant did in the ET accuse Mr Parker and Mr Goulston of consciously participating in a sham – apparently in the EAT also Ms Iyengar referred to "a conspiracy" – which would indeed necessarily mean that their evidence had been dishonest, liability did not depend on that being established. On the contrary, for the reasons that I have given above, both of them (though I am not sure how relevant Mr Goulston really is in this context) may perfectly honestly (or indeed reasonably) have believed that the Appellant's disclosures had been made in bad faith; and, for what it is worth, I do not read the Tribunal as having found that either Mr Parker or Mr Goulston were lying or consciously participating in a conspiracy – its criticisms go to the reasonableness of that belief rather than its honesty. But none of that matters if the Tribunal, as it did, disagreed with the assessment of the Trust's decision-makers and found that the disclosures were in fact made in good faith and were protected. So the whole of this criticism falls away.

1. Judge Clark's other criticism in para. 19 seems, though the reasoning is very compressed, to be that the ET reached its conclusion as to the reason for the dismissal simply by deciding that the case of misconduct against the Appellant was weak and jumping from that to the conclusion that the reason for the dismissal was the making of the protected disclosures. It will have been noted from paras. 3/49 and 3/51 that the ET was indeed unimpressed by the Trust's case of misconduct and that that featured in the first stage of its elaborate reasoning. But it is a travesty to say that that was the whole basis of its conclusion. On the contrary, as I have shown, it repeatedly returned to the fact that the Trust itself relied on the making of the disclosures in the dismissal letter; and that is what matters.

1. In para. 20 of his judgment Judge Clark focuses on the statements in the first two sentences of para. 3/53 (see para. 62 above) that particular disclosures were "related to" particular charges and accepts Ms McNeill's submission that that showed that it had adopted the wrong approach to causation. That is not remotely a fair criticism. The Tribunal had already found in its previous paragraphs that the making of the disclosures was the principal reason for the dismissal of the Appellant, a finding based squarely on the explicit reliance on them in the decision letter. All that it was doing in para. 3/53 was, as it believed was good practice in the light of Blackbay, marrying up the particular disclosures to the particular charges. Although the use of the phrase "related to" can in some cases be a sign of error – we were referred to London Borough of Harrow v Knight [2002] UKEAT 0790/01, [2003] IRLR 140 – in this context it was quite unexceptionable.

1. As for para. 21 of the judgment, I have not in fact been able to identify a passage in the ET's Reasons which is in the terms criticised. But in any event I do not understand the criticism. The whole point of the Appellant's case is that "the conduct grounds put forward" were, principally, the making of the protected disclosures. The basic reason why the ET accepted that case was, as I have said, the terms of the decision letter itself; but, since this criticism focuses on the appeal, it is worth noting that the ET makes the point at para. 3/50 (see para. 56 above) that Mr Goulston's own evidence in cross-examination reinforced its conclusion.

1. In its appeal to the EAT the Trust had contended that a large number of the ET's findings of fact were perverse. The EAT did not find it necessary to address that issue. In its Respondent's Notice the Trust raises the same contentions again by way of fallback (though the case is rather differently pleaded and it may be that not all the original criticisms are pursued).

1. The Respondent's Notice pleads twenty "key findings" by the ET which are said to have been perverse. Ms McNeill did not address most of these in her oral submissions. However, even to the extent that she did so I do not find it necessary to consider them. That is because none of them impinges on the issues which are dispositive of liability. The great majority of the alleged errors (specifically, nos. (ii)-(xii) and (xv)-(xviii)) concern findings by the Tribunal about – broadly speaking – Mr Parker's approach to the disciplinary hearing and the conclusions which he reached about the Appellant. Two (nos. (xix) and (xx)) relate to the appeal. Those might indeed be material if we were concerned with liability under section 98, because the reasonableness of the conclusions reached by Mr Parker would be of central importance at the second stage of the enquiry. But the Appellant succeeded under section 103A; the finding under section 98 in para. 3/54 was made only "for completeness" and has no content if the finding under section 103A stands. None of the allegedly erroneous factual findings about Mr Parker's approach (or that of Mr Goulston) is material to liability under section 103A. The issues which are dispositive of liability on that issue are (a) whether the making of the disclosures in question was the principal reason for the Appellant's dismissal and (b) whether those disclosures were protected, which in practice means whether they were made in good faith. As regards (a), despite the rather convoluted reasoning process which it followed, the conclusion reached by the Tribunal depended primarily on what the Trust itself said in the dismissal letter, which speaks for itself. As for its conclusion on the only other issue, namely the relevance of charges 2 and 8, that depends on an overall assessment of the relative importance of the various charges which could not be affected by errors of the kind alleged. As to (b), the focus here must be on the Tribunal's assessment of the Appellant, but, as I have said, almost none of the factual errors related to the Tribunal's assessment of the Appellant's good faith.

1. For those reasons I do not believe that there was any error of law in the Tribunal's conclusion that the Appellant was unfairly dismissed under section 103A of the 1996 Act, and I would allow the appeal in this regard.

1. I wish to add this. It comes through very clearly from the papers that the Trust regarded the Appellant as a trouble-maker, who had unfairly and unreasonably taken against colleagues and managers who were doing their best to do their own jobs properly. I do not read the Tribunal as having found that that belief was anything other than sincere, even though it found that it was unreasonable. But it is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality (as whistleblowers sometimes are) to cloud its judgement about whether the disclosures in question do in fact have a reasonable basis or are made (under the old law) in good faith or (under the new law) in the public interest. Those questions will ultimately be judged by a tribunal, and if the employer proceeds to dismiss it takes the risk that the tribunal will take a different view about them. I appreciate that this state of affairs might be thought to place a heavy burden on employers; but Parliament has quite deliberately, and for understandable policy reasons, conferred a high level of protection on whistleblowers. If there is a moral from this very sad story, which has turned out so badly for the Trust as well as for the Appellant, it is that employers should proceed to the dismissal of a whistleblower only where they are as confident as they reasonably can be that the disclosures in question are not protected (or, in a case where Panayiotou is in play, that a distinction can clearly be made between the fact of the disclosures and the manner in which they are made).

1. As already noted, at the end of para. 3/54 the Tribunal touched briefly on the question of remedy. The passage reads:

"The Tribunal also make no deduction for Polkey or for contribution as on the facts before us we have seen no consistent evidence that, had a fair procedure been followed, dismissal would have been a likely outcome. As we have found the Claimant's evidence consistent, we do not conclude that he has contributed to the dismissal so no deduction will be made for contribution."

1. Unsurprisingly, Ms McNeill submitted that that is a very summary way of dealing with two issues of great importance. But she developed that submission in more specific terms, and I should take the Polkey and contributory fault issues separately.

1. I start by identifying the nature of the Trust's Polkey case. Mr Scott's written closing submissions in the ET contended that, if the Tribunal found that the Appellant's dismissal for the reason, or in the manner, that he was was unfair, he would nevertheless have inevitably been (fairly) dismissed for one or both of two reasons:

(1) He was refusing to return to work unless and until Ms Riddle and Matron Lynch were "removed". That was a wholly unreasonable stance and one which put the Trust in an impossible position.

(2) On 16 June 2011, when e-mailing to Dr Asif about a forthcoming meeting, he referred to the agreement between them which had been reached as a result of the mediation the previous year. That was confidential, but he copied the e-mail to a number of people who were unaware of it. He was informed on 19 August that he would face disciplinary action in that regard; but as I understand it no further action was taken pending the outcome of Mr Hayward's investigation.

1. As can be seen, neither of those points is referred to by the Tribunal in its single sentence rejecting the Trust's Polkey case. Ms McNeill submitted that that was a manifest failure on the part of the Tribunal to comply with its obligation to give a properly reasoned decision on an important issue. She also submitted that its use of the phrase "had a fair procedure been followed" suggested that it believed that the Polkey issue arose only if the dismissal were unfair for procedural reasons, which would be wrong in law.

1. Mr Stilitz submitted that the Tribunal's conclusion must be read in the light of its findings elsewhere in the Reasons. As regards Mr Scott's point (a), he took us to a number of passages in the "Findings" section, at paras. 2/174, 194, 196, 198 and 243. I need not set them out. In them the Tribunal finds that the Appellant never asked that either Ms Riddle or Matron Lynch be removed from their posts, only that he should not have to work with them in the Cath Lab. There are no clear findings about the extent to which that would impinge on what would otherwise have been their duties. In the case of Matron Lynch the Tribunal notes that she was not herself trained in Cath Lab work. In the case of Ms Riddle, the way that the Tribunal puts it at para. 2/243 is that the Appellant had only required that she be "removed … from the office next to the Cath Lab" (apparently Ms Riddle's office was not in the Lab itself but directly adjacent). The Tribunal also finds that he took the position that he did out of a genuine concern for patient safety. because he believed that their presence in (or, I suppose, immediate proximity to) the unit would have an unsettling effect on the nursing staff in "the clinical area". As regards point (b), Mr Stilitz referred us to para. 2/115, where the Tribunal records and accepts his evidence that he had "hit the wrong button" (i.e., presumably, clicked on "Reply All"); it also records that in his oral evidence he acknowledged that the tone of the e-mail had been inappropriate and apologised. Mr Stilitz submitted that it was plainly those findings that underlaid the Tribunal's conclusion that (fair) dismissal would not have been a likely outcome; and that on the basis of that evidence that was a conclusion that was open to it.

1. I have not found this aspect of the case easy. It is unfortunate that the Tribunal did not directly address Mr Scott's submissions in terms and explain why it rejected them: these were important issues, capable of making a fundamental difference to the quantum of any award. I accept that it is nevertheless legitimate to look at other parts of the Reasons in order to try to find out what its reasons in fact were. But even if one refers to the passages relied on by Mr Stilitz they do not constitute a fully explicit answer to the Trust's particular case. I have no problem about the sending of the e-mail of 16 June 2011: on the Tribunal's findings this was clearly not something that could have led to the Appellant's dismissal. But I am more troubled about his insistence on the "removal" of Ms Riddle and Matron Lynch. Although the Tribunal clearly found that he was not seeking their dismissal, there is no finding as to how problematic their removal from the Cath Lab would have been; if it was indeed a wholly unreasonable demand, it seems to me that it might indeed have justified his eventual dismissal.

1. However it is necessary to view this point in the wider context of the Tribunal's findings. As I have observed at para. 44 above, in the course of the exhaustive narrative contained in the Findings section the Tribunal consistently found that where the Appellant and the various Trust managers came into conflict it was the Appellant's stance which was the more reasonable. In that context, it seems to me clear that the Tribunal took the view, albeit without condescending to particulars, that the Appellant's stance about Ms Riddle and Matron Lynch also was not one which – however precisely it might have played out – could have led to his dismissal. Although it would have been better if it had said so in terms, I do not believe that the Tribunal was under an obligation to make a specific finding about how exactly the problem might have been resolved. That is not the nature of the Polkey exercise, which is simply to make an assessment, of what will often have to be a fairly broad-brush nature, about what might have happened in a hypothetical situation which never in fact transpired.

1. The passage in Mr Scott's closing submissions in the Tribunal raising the issue of contributory fault under section 123 (6) reads simply:

"The Respondents also respectfully submit that if, contrary to the Respondent's submissions, the claimant is found to have been unfairly dismissed his conduct was such that he contributed substantially to and brought about his own dismissal and any losses should thus be reduced by a very high percentage."

1. In so far as that was intended to invoke compendiously the Trust's allegations that the Appellant had acted unreasonably throughout, the Tribunal was entitled to answer it in equally compendious terms: its statement that "we do not conclude that he has contributed to the dismissal" is amply supported by its previous detailed findings. I suspect that in fact it was intended to pick up on the specific matters relied on in support of the Polkey submission, which immediately preceded it; and that is supported by the fact that the Trust's Notice of Appeal to the EAT on the contributory fault issue (reproduced in the Respondent's Notice) complains specifically only of "the Claimant's approach to lawful management instructions and his insistence that he would not work in the Catheter lab if Ms Riddle or Matron Lynch were present". If so, it is clear from the findings referred to by Mr Stilitz (see para. 99 above) that the Trust did not regard the Appellant as having acted culpably.

1. Ms McNeill in her oral submissions relied in particular on the allegations of bullying that Ms Riddle had made against the Appellant: although Ms Riddle did not give evidence in the ET the transcript of her evidence was, as already noted, before it. That does not appear to be how the case was put below, so the Tribunal cannot be criticised for not dealing specifically with it. But Mr Stilitz in any event referred us to a number of passages in the Findings section in which the Tribunal appears not to accept those allegations. For example, at para. 2/92 it rejected the allegation that at the meeting of 10 June 2011 the Appellant was motivated by any personal antagonism towards Ms Riddle and recorded that, on the contrary, it was she who appeared to have "an unexplained antagonism" towards him.

1. Mr Stilitz submitted that the Tribunal would not in any event have been entitled as a matter of law to make a finding of contributory fault in a case under section 103A. He referred to section 123 (6A), which was inserted into the 1996 Act with effect from 25 June 2013 and permits a tribunal, where an employee has been dismissed for making a protected disclosure but the disclosure was made in bad faith⁷, to reduce the award by no more than 25%. He submitted that the existence of a right to reduce compensation under section 123 (6) in a whistleblower case would be inconsistent with that provision. As at present advised I can see no such inconsistency. But I need not express a final view since section 123 (6A) was not in force at the material time. Under the Act as it stood at the time of dismissal there seems to me no basis for holding that section 123 (6) is inapplicable in whistleblower cases; and I note that the EAT so held in [Audere Medical Services Ltd v Sanderson ]()[2013] UKEAT/0409/12: see per HHJ Serota QC at para. 49.

1. Judge Clark allowed the Trust's appeal on the section 47B claim on the basis that his criticisms of the ET's reasoning on the section 103A claim applied to both equally. If the appeal is allowed as to the latter it must apply also to the former, subject only to the points advanced in the Respondent's Notice. Three grounds are advanced there (see para. 7 (i) (a)-(c)).

1. The detriment with which we are here concerned is the sending of the Trust's second letter to the GMC, notifying it of the outcome of the appeal, which the Tribunal found was sent as a result (at least in part) of the Appellant's evidence at the inquest: see para. 3/56, set out at para. 67 above. This ground is based on the Tribunal's observation that it was "not wholly convinced" that the Trust had ever sent the first letter to the GMC, for the reasons which it summarises (and which reflect a fuller discussion in the "Findings" section – see paras. 2/410-412). It is said that it was necessary for the Tribunal to make a firm finding on this one way or the other.

1. If the detriment found by the Tribunal consisted in the sending of the first letter the Trust's point would be obviously correct. But it does not. It consists in the sending of the second letter, as to which there is no dispute. I appreciate that the Tribunal refers to that letter in para. 3/56 as "the Respondent's referral of the Claimant to the GMC", which is inaccurate if there was an earlier referral letter to which this was only a follow-up; and it may be that the Trust's real point is that the Tribunal would not have regarded the letter of 5 July 2013 as a detriment if it was in truth only an update. But I do not read it that way. I think that the Tribunal regarded the sending of the "second" letter as a detriment whether or not there had been an earlier letter, which is why it did not find it necessary to decide the point. I agree that the seriousness of that detriment may well depend on whether the first letter was ever sent: if it was, then it could be argued that the second letter did not add much to the damage already done. That question may have to be resolved at the remedy hearing.

1. Two distinct points are taken about the press release, which I consider in turn.

1. First, it is said that the press release contained nothing "untrue". I have set out at para. 68 above the Tribunal's reason for finding that it was misleading to describe the Appellant's dismissal as "unrelated" to GS's death. I think I can see what the Trust probably meant by that language, namely that the Appellant was not dismissed for any mistake or incompetence in the carrying out of the procedure. But if so it expressed itself badly. For the reasons given by the Tribunal I agree that in the context of the press release the statement gave a misleading impression. Having said that, I am bound to say that I am not sure how important this issue really is. What is likely to have been damaging to the Appellant is not so much the Trust's use of this particular phrase as the public statement that "following a disciplinary procedure" he had "left the Trust" – a rather mealy-mouthed formulation which would however clearly be understood (correctly) to mean that he had been dismissed – and also that he had been "referred to the General Medical Council for further investigation". Even if those statements were literally true, it is not clear why they needed to be made in a press release about the outcome of the inquest (still less if the Trust believed that the Appellant's departure was indeed for unrelated reasons).

1. The second point pleaded under this ground is that the ET should not have made a finding of an unlawful detriment under section 47B without a finding, which it did not make, that the Trust had knowingly issued an untrue press statement with the aim of damaging the Appellant. It is not of course necessary as a matter of law that any detriment should be maliciously motivated; but, as I understand it from the skeleton argument, the Trust's point is that the Appellant had expressly alleged a malicious motive and the ET should have made a finding on that allegation. Ms McNeill did not develop this point in her oral submissions, and I can see nothing in it. As I have already said, the Appellant appears at several points to have put his case unnecessarily high, and a tribunal is not obliged to address every allegation made in a case irrespective of whether it is relevant to legal liability.

1. The Trust treated the report to the Board as a further detriment in as much as it repeated, to a different audience, the points made in the press release. This ground simply repeats in that context the points considered under (2) above; and I dismiss it for the same reasons.

1. For those reasons I do not believe that there was any error of law in the Tribunal's conclusion that the Appellant was subjected to the unlawful detriments which it found, contrary to section 47B of the 1996 Act, and I would allow the appeal in this regard also.

1. I would allow the appeal and restore the findings of the Employment Tribunal on all points. The case will now have to proceed to a remedy hearing unless the parties are able to reach agreement.

Lady Justice King:

1. I agree.

Sir Terence Etherton, MR:

1. I agree that this appeal should be allowed for the reasons given by Underhill LJ.

Notes