The Claimant's claims of whistleblowing were dismissed as was a review of that decision which expressly referred to her "extended application". In 2015 the Court of Appeal allowed an appeal against the EAT's refusal of the Claimant's Rule 3(10) application in respect of the review decision. It was subsequently discovered that the ET had by error not had the Claimant's extended application before it at the review hearing nor when subsequently considering its decision. The Claimant added a free-standing ground of appeal that this was a serious procedural irregularity; that a different conclusion might otherwise have been reached; and that the application should be remitted for a rehearing. The Respondent submitted that the extended application added nothing of substance to the documents and oral submissions which the ET had considered; and that the same conclusion would have been reached in any event.

The EAT allowed the appeal on the basis that it was satisfied that a different conclusion might have been reached if the irregularity had not occurred.

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Appeal No. UKEAT/0311/15/RN

UKEAT/0312/15/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 10 & 15 May 2017

Before

THE HONOURABLE MR JUSTICE SOOLE

(SITTING ALONE)

CLARKE (APPELLANT)

**

**

ABERTAWE BRO MORGANNWG

UNIVERSITY HEALTH BOARD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR PATRICK GREEN (One of Her Majesty's Counsel)
and
MS CHLOE CAMPBELL (of Counsel)
Direct Public Access

For the Respondent
MR JULIAN ALLSOP (of Counsel)
Instructed by:
Hugh James Solicitors
Hodge House
114-116 St Mary Street
Cardiff
CF10 1DY

PRACTICE AND PROCEDURE - Bias, misconduct and procedural irregularity

VICTIMISATION DISCRIMINATION - Whistleblowing

VICTIMISATION DISCRIMINATION - Protected disclosure

The Appellant's whistleblowing claim was dismissed by the Employment Tribunal in 2012. Her application dated 7 September 2012 for a review under Rule 34(3) of the 2004 Rules was permitted to proceed to a hearing in terms which expressly referred to her "extended application", which was contained in a document dated 1 October 2012. Before the hearing she supplied a number of further written submissions and a skeleton argument. The hearing proceeded and the review was dismissed by the Employment Tribunal in 2013.

In 2015 the Court of Appeal allowed an appeal against the Employment Appeal Tribunal's refusal of the Appellant's Rule 3(10) application in respect of the Review Decision. In 2016 it was discovered that the Employment Tribunal had by error not had the extended application before it at the Review Hearing nor when subsequently considering its Decision. The Appellant added a free-standing ground of appeal that this was a serious procedural irregularity; that a different conclusion might otherwise have been reached; and that the application should be remitted for a rehearing. The Respondent submitted that the extended application added nothing of substance to the documents and oral submissions which the Employment Tribunal had considered; and that the same conclusion would have been reached in any event. The appeal was allowed and the application remitted to the same Employment Tribunal constitution for the review to be heard.

1. This is an appeal by the Appellant (Miss Clarke) against the Decision of the Employment Tribunal (Employment Judge Powell, Mr A Fryer, Mr H C Hamilton) dated 4 June 2013 following a Review Hearing in respect of the previous Decision, sent to the parties on 23 August 2012, whereby it upheld its conclusion that her claim against the Respondent Health Trust ("the Trust") of detriment contrary to the whistleblowing provisions of sections 47B and 48(1A) of the Employment Rights Act 1996 should be dismissed. Miss Clarke also appeals against the Employment Tribunal's subsequent Order dated 16 October 2013 that she pay £4,000 towards the Trust's costs of the review.

1. The striking distance in time from the Orders under appeal is explained by the subsequent procedural history which has included: (1) a successful appeal to the Court of Appeal in 2015 against the Employment Appeal Tribunal's refusal of Miss Clarke's applications for permission to appeal these Decisions under Rule 3(10); and (2) the subsequent discovery in 2016 that a document prepared by Miss Clarke (hereafter the "extended application") in support of her successful application for the Employment Tribunal to carry out a review had not been before the Tribunal at the 1-day Review Hearing or in its subsequent deliberations. This was confirmed by Employment Judge Powell's letter to the EAT dated 12 May 2016.

1. In consequence of this discovery, Miss Clarke added a free-standing ground of appeal on the basis that this amounted to a serious procedural irregularity which requires the case to be remitted for the review to be carried out afresh. In addition, there are independent grounds of appeal against the two Decisions.

1. The Appellant is a nurse with over 20 years' experience. In 2009 she had worked regularly for the Trust's hospitals, which include the Moriston Hospital. She provided her services through an agency, at that time Thornbury. There were no previous complaints about her work or behaviour. In April 2009 she had a dispute with a doctor at Moriston Hospital as a result of her concern at the treatment given by him to a patient who subsequently died. She complained to him about the treatment and subsequently went to the coroner who involved the police. The police attended the hospital on Friday 17 April. They took documents and statements including one prepared by Miss Clarke. The Employment Tribunal's substantive Judgment erroneously records this as Friday 17 May.

1. On 20/21 April the Trust's Tracy Jenkins advised Thornbury that she was suspended. In its Decision, the Employment Tribunal concluded that the Trust had no knowledge of any disclosure by Miss Clarke at that point, and had no such notice until receipt of an email from Thornbury on 22 May.

1. In October 2009 the Trust made her exclusion permanent. However, for about six months from March 2010, Miss Clarke worked for the Trust's hospitals through a different agency (Richmond). The Trust's said this was by mistake. In October 2010 it notified Richmond that she was banned, so ending her work for a second time.

1. On 19 November 2010 Miss Clarke brought this claim contending that she had made a number of protected disclosures in April/May 2009 and November 2010 and had been submitted to a series of detriments between 14 April 2009 and 13 November 2011. The Trust contended that it was the alleged aggressive manner of the 2009 disclosures, not the fact of them, which had led to their decision to exclude her. It also raised a limitation defence on the basis that there was but a single act of detriment, namely the banning in October 2009.

1. At a Preliminary Hearing on 14 March 2011 Employment Judge Ferris ruled that the claim was in time. In his Reasons he also noted that, although the Trust had in October 2009 indicated to Thornbury that Miss Clarke's conduct was to be reported to her regulatory body, the Nursing and Midwifery Council ("NMC"), that had not happened. His Decision was not appealed.

1. Following a case management discussion on 26 September 2011, Employment Judge Beard refused Miss Clarke's application for an Order for evidence from medical and nursing experts on the basis that the issue of whether or not the treatment given to the patient was medically appropriate was not a relevant issue in the case. He then made Orders in respect of the documents to be in the trial bundle, and in particular excluded a document entitled, "Review of Nursing Documentation on patient WO905352" (hereafter "the Nursing Review").

1. The Full Hearing was listed to begin on 10 October 2011. On the first day the Trust successfully applied for an adjournment to obtain expert evidence. In the event no expert evidence was called. Then on 13 October 2011 the Trust referred Miss Clarke to the NMC. The Employment Tribunal's substantive Judgment erroneously records this date as 13 November 2011. The adjourned Full Hearing resumed in 2012.

1. Judgment was given orally on 3 July 2012 and the Written Reasons sent to the parties on 23 August 2012. By that Judgment the Employment Tribunal found that Miss Clarke had made protected disclosures and suffered detriment but accepted that the Trust had so acted because of the manner, not the fact, of her disclosures. However, in respect of some alleged protected disclosures the Tribunal were not satisfied that Miss Clarke had the requisite reasonable belief. Although accepting that she was an honest witness, the Tribunal said that it had considerable concerns about her general reliability as a witness.

1. As potentially material to this appeal, Mr Patrick Green QC, who appears for Miss Clarke pro-bono together with Ms Chloe Campbell, points in particular to the Tribunal's:

(1) errors concerning the dates of 17 April/May 2009 and 13 October/November 2011;

(2) findings on medical issues, in particular that the patient had probably not (and contrary to Miss Clarke's contention) suffered two "large bleeds" through vomiting of blood (paragraphs 54 and 98);

(3) findings that the Trust had no notice of Miss Clarke's protected disclosures until 22 May (paragraph 71);

(4) acceptance of the Trust's account that the delay in referral to the NMC was accidental and unconnected to the adjourned hearing of October 2011 (paragraphs 84 and 105).

1. Mr Green also points to the Employment Tribunal's further conclusion that the 2009 detriments were not a part of a series with the 2010 detriments, and would in any event have been ruled out of time (paragraphs 152 to 154). He contrasts the previous ruling of Employment Judge Ferris that the claim was in time.

1. On 7 September 2012 Miss Clarke applied for a review of the Decision pursuant to Rule 34 of the prevailing 2004 Rules. Rule 34(3) provided, as material, that decisions may be reviewed on the grounds:

"(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or

(e) the interests of justice require such a review."

1. Rule 35(3) provided for the "chairman of the tribunal which made the decision" to consider the application to have a decision reviewed, "and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked".

1. Miss Clarke's application was made on two bases. First as "new evidence not previously put before the Tribunal". Secondly, as "serious irregularity in the decision made". The alleged new evidence was the Nursing Review which Employment Judge Beard had refused to admit at the hearing on 26 September 2011. The alleged serious irregularity related to the contrast between the Trust's referral to the NMC and the NMC's subsequent decision that there was no case to answer.

1. On 24 September 2012 Employment Judge Powell responded in a letter which set out Rule 34(3) and stated "It appears that d. & e. could have relevance to your case", set out the three requirements of the Ladd v Marshall [1954] EWCA Civ 1 test for new evidence, and asked for confirmation of his understanding of the 'serious irregularity' part of her request.

1. On 1 October 2012 Miss Clarke responded with the extended application. The first six pages replicated the request of 7 September 2012 (and so dated it). There followed an addendum, dated 1 October 2012, which ran to 16 pages. Amongst many other matters this in particular: (1) responded to the Ladd v Marshall requirements; (2) made further submissions as to (a) the relevance of the Nursing Review to the question of the Trust's concerns in April 2009, and (b) the relevance of Employment Judge Ferris' March 2011 observations on the absence of an NMC referral to the Trust's subsequent explanation of its delay in the referral; (3) included a section headed, "Review on grounds of interests of justice"; (4) under a section headed "Burden of Proof", drew attention to the date error of 17 April/May and challenged the finding that the Trust did not have notice of the disclosures until 22 May.

1. By letter dated 15 October 2012 the Tribunal stated that:

"Employment Judge R Powell, on consideration of the Claimant's extended application for a review has ordered that the application to allow a review is granted and accordingly the merits of the Claimant's application will be determined at a review hearing which will be listed to last for one day."

It is common ground that "extended application for a review" is a reference to Miss Clarke's document dated 1 October 2012 (and which included the first part dated 7 September 2012). In his letter to the EAT dated 12 May 2016 Employment Judge Powell stated:

"The extended application was before me when I made the order dated the 15th October 2012."

1. Miss Clarke then sent further submissions to the Employment Tribunal by letters dated 18 October 2012, 22 October 2012, 14 November 2012 and a skeleton argument dated 12 February 2013. The letter of 18 October 2012 included further reference to the police visit to the hospital of 17 April 2009. A letter of 22 October 2012 supplied a further police document evidencing that visit, she also referred to the Trust's Tracy Jenkins telephoning her agency on 21 April 2009 to ask if it was she (Miss Clarke) who had made the disclosure. A letter dated 14 November 2012 included a further application to adduce new evidence of literature concerning the drug, Terlipressin, which had been prescribed to the patient and, she submitted, was consistent with variceal bleeding.

1. Miss Clarke's skeleton argument, dated 12 February 2013, ran to 18 pages and included references to the inference to be drawn from the events of 17 April and 21 April 2009. Under, "New Evidence" she referred both to Ladd v Marshall and to "the interests of justice". The new evidence included the Nursing Review and the Terlipressin literature. As to the NMC referral, the observations of Employment Judge Ferris were noted again.

1. By email of 19 February 2013 Miss Clarke enclosed a statement (dated 16 October 2012) from a police officer which attached her statement of 17 April 2009.

1. The Employment Judge's notes of the hearing were accidentally destroyed at some time between 2013 and 2016. Mr Fryer's notes are available. The combination of his notes and those taken by counsel, Mr Julian Allsop, suggests that at one point Miss Clarke indicated, in response to questions from the Employment Judge, that her representations were contained in her skeleton argument, the original 7 September 2012 application and the letter dated 18 October 2012. However, other passages record her stating that her complete case was contained in the skeleton argument and all the letters and documents sent by her to the Tribunal. The hearing was part heard to 28 March 2013.

1. The Reserved Judgment was sent to the parties on 4 June 2013. In rejecting the application the Employment Tribunal, in particular, held that: 1) the new evidence (Miss Clarke's statement of 17 April 2009, the Nursing Review, the Terlipressin literature and a further document supplied by her after the hearing) did not meet any of the Ladd v Marshall criteria. As to the third requirement that new evidence will probably have an important influence on the result of the case, the Tribunal (amongst other matters) noted that Miss Clarke had not sought to appeal or review its conclusion that the 2009 detriments were time barred and that:

"12. Accordingly, those aspects of this review which related to acts or deliberate omissions prior to 2010 would not have lead to a materially different conclusion on liability unless they had a material influence on the tribunal's judgment on the conduct of the respondent's employees in 2010-11."

and (2) the reasoning behind the NMC's finding of no case to answer did not concern the merits of the Trust's allegations.

1. In his response to the Employment Appeal Tribunal's questions Employment Judge Powell stated that,:

"3(iii) Based on the available notes, examination of the Review hearing documents retained by Mr Fryer and discussion with Mr Fryer, I and Mr Fryer have no recollection of the extended application being before the Employment Tribunal at the Review hearing.

3(iv) The Employment Tribunal did not consider the extended application document but elements of that application were contained within the Claimant's skeleton argument in the bundle presented at the Review Hearing."

1. Mr Green first submits that the absence of the extended application (dated 1 October 2012) from consideration by the Employment Tribunal constituted a serious procedural irregularity which can only be cured by remission of the case to the Tribunal for a completely fresh hearing. In addition to urging the free-standing importance of the point, he submits that the error had the substantive consequence that the Tribunal did not give consideration to the following particular matters as are reflected in the other grounds of appeal:

(1) the fact and significance of the 17 April/May date error and its potential relevance to the Trust's state of knowledge about the protected disclosures and hence to the issue of the reason for the detriment (see ground B);

(2) the fact and significance of the 13 October/November 2011 date error in respect of the NMC referral and the previous March 2011 comments of Employment Judge Ferris. The correct date coincided with the adjourned hearing. The further seven months' delay after Employment Judge Ferris' observations was at odds with the Trust's accepted explanation for the delay in referral (ground C);

(3) as to the Nursing Review/Terlipressin literature, Mr Green rightly accepted that there was no arguable error of law in the Tribunal's conclusion that these documents were known and available to Miss Clarke at the time of the original hearing. However, the Tribunal had not considered the admissibility of this evidence by reference to the distinct 'interests of justice' test under Rule 34(3)(e) or having regard to all of Miss Clarke's submissions.

1. The identified comments in the Nursing Review were relevant in the following particular ways. First, they were at odds with the Trust's account that it had had no concerns about the treatment given to the patient; in this respect see Miss Clarke's reference in the extended review document to Tracy Jenkins' statement that "It has been established that we were more than satisfied with the medical care provided to this patient". Secondly, because (contrary to the expectation arising from Employment Judge Beard's ruling) the Tribunal had made findings on medical issues. Thirdly, that these matters were in turn relevant to the genuineness of the Trust's stated reasons for its treatment of Miss Clarke and to the reasonableness of Miss Clarke's beliefs.

1. On behalf of the Trust, Mr Julian Allsop first submitted that in order for a procedural irregularity to vitiate the findings of an Employment Tribunal, two conditions must be satisfied. First, that it must be seriously irregular and unfair (Stanley Cole (Wainfleet) Ltd v Sheridan [2003] IRLR 885, per Ward LJ at paragraph 28). Secondly, the appellate court must be satisfied that the absence of such irregularity would have made a difference to the outcome (Ward LJ at paragraph 38). He submits that neither requirement is satisfied.

1. The first requirement is uncontroversial as a matter of law. However, Mr Green submits that the second is not a general requirement in cases of serious procedural irregularity. The second requirement identified in Stanley Cole has to be seen in the particular context of that case where the alleged procedural irregularity/unfairness lay in the Tribunal handing down a decision which relied on authorities of which the representatives had been given no prior notice nor therefore the opportunity to make submissions. The failure to consider the very document upon which the application for a review had been granted was not to be equated with the circumstances in that case. Furthermore, the effect of such an additional hurdle would be to require the EAT to substitute its judgment for that of the Employment Tribunal on the issues raised in the review.

1. As to whether there was a serious irregularity, Mr Allsop in particular submitted that:

(1) In response to the Tribunal's questions at the hearing, Miss Clarke had not identified the extended application as one of the documents on which she relied;

(2) In substance that document added nothing to the issues and materials contained in the written oral submissions which were before the EAT; thus

(3) As to the 17 April/May date error, the extended application contained no more than a passing reference. If she had considered it to be a significant point it would have featured prominently in her skeleton argument and oral submissions. As now presented, it was a new point which should not be entertained (Kumchyk v Derby City Council [1978] ICR 1116);

(4) The Employment Tribunal had properly refused to admit Miss Clarke's 17 April 2009 statement to the police on Ladd v Marshall grounds;

(5) As to the NMC referral, the 2½ year delay had been squarely before the Employment Tribunal (see her skeleton paragraph 19). The difference between 13 October and November was of no significance, and the proximity of the referral to the adjoined Tribunal hearing had been argued (see notes at page 119);

(6) As to the Nursing Review and Terlipressin literature, the Tribunal had engaged with that issue and properly rejected the new evidence on Ladd v Marshall grounds;

(7) As to the 'interests of justice' test, this must have been taken into account.

1. As to the second requirement in Stanley Cole, there was no basis to conclude that any of the matters now advanced, individually or collectively, would have made a difference to the outcome. In this respect he also pointed to the Tribunal's adverse conclusions on Miss Clarke's general reliability as a witness.

1. Mr Allsop further relied on the Tribunal's observations on the limitation issue. Contrary to Mr Green's submissions, that issue had not been fully determined by Employment Judge Ferris' ruling but had been implicitly open to final consideration in the light of all the evidence and findings of fact at the full trial.

1. Skilled and forceful as were Mr Allsop's submissions, I prefer Mr Green's arguments in every respect.

1. First, I am satisfied that the absence of the extended application document from the Tribunal's consideration constituted a serious procedural irregularity. I have sympathy for the Tribunal because they were faced with a considerable array of other written submissions from Miss Clarke and because her response to their questions made no specific reference to that document. However the extended application had been sent in response to the Employment Judge's letter of 24 September 2012; the grant of permission to proceed was expressly by reference to that document; and Miss Clarke ultimately told the review hearing that her case was in all the documents which she had supplied.

1. Secondly, I am not persuaded that Miss Clarke's full case was contained within her other documents and oral submissions. In particular, I do not accept:

(1) that the reference to the 17 April/May error in the extended application was merely in passing. The surrounding paragraphs show that it was a central argument and was not confined to the fact that she had made a statement to the police on 17 April;

(2) that the full measure of her case on the NMC referral and the significance of the Nursing Review was embraced by the other documents and submissions; or

(3) that the Employment Tribunal took account of the application under the 'interests of justice' ground. As authority makes clear, both under the 2004 Rules concerning review and the 2013 Rules concerning reconsideration, the interests of justice may on occasion permit evidence to be adduced where the requirements of Ladd v Marshall are not strictly met (see, e.g. Outasight VB Ltd v Brown UKEAT/0253/14, HHJ Eady QC at paragraph 50).

1. Thirdly, I do not accept that Ward LJ's formulation in Stanley Cole was intended to impose a universal requirement in cases of procedural irregularity. In my judgment it reflected the particular context of the Employment Tribunal's failure to give prior notice of certain authorities. In the circumstances of this case where the central document on the application for review was not before the Tribunal, I do not think it necessary for the appellate Tribunal to be satisfied that a different conclusion would have been reached. As Mr Green also submitted, that would amount to the appellate Tribunal determining the review as if it were the Employment Tribunal.

1. The wider learning on procedural irregularity and/or natural justice was not further considered by the parties in argument. However, I consider it right for this appeal to proceed on the basis that it is sufficient to be satisfied that a different conclusion might have been reached if the irregularity had not occurred. I am so satisfied. I leave open the possibility of cases where the irregularity or want of natural justice is such as to compel without more a remission and re-hearing.

1. Accordingly, I conclude that the review should be remitted to the Tribunal in order to hear the whole application afresh. In the consolidated grounds of appeal Mr Green and Ms Campbell contended that the remission should be to a freshly constituted Tribunal. In oral submissions Mr Green did not press that aspect. I consider that he was right not to do so. This is simply a case of an unfortunate procedural error. It would be unsatisfactory for the review to be conducted by a Tribunal which had not conducted the substantive hearing; and the original members are all available.

1. Since the object is to have a completely fresh hearing, any further observations must be limited. However, in the light of the argument, I should express acceptance of Mr Green's submission that the limitation issue was determined by the ruling of Employment Judge Ferris. I do not accept Mr Allsop's submission that the issue was implicitly left open for reconsideration at the Full Hearing.

1. Mr Allsop rightly accepted that if the primary ground of appeal succeeded it must follow that the Costs Order should be set aside.

1. As to the substantive grounds of appeal, Mr Green advanced powerful arguments against an Order made on the basis of "unreasonable conduct in the course of review proceedings" and whose background included the Employment Tribunal's grant of permission to proceed with the full review. The Employment Tribunal would have had to refuse such permission if it had considered that there were no grounds for the Decision to be reviewed or no reasonable prospect of the Decision being varied or revoked (Rule 35(3)); see also 2013 Rules, Rule 72(1).

1. However, in the circumstances of an Order for a completely fresh re-hearing and the consequential setting aside of the Order for costs, I make no finding on this ground of appeal.

1. The public interest in the finality of litigation makes it an unattractive course to order the re-hearing of a review conducted in 2013 in respect of a substantive decision in 2012 which concerned disputed events dating back to 2009. However, in all the circumstances I am satisfied that this is the just and appropriate disposal of this appeal.