Korashi v Abertawe Bro Morgannwg University Local Health Board UKEAT/0424/09/JOJ
Appeal against rejection of multiple claims where a doctor had made alleged protected disclosure. Appeal dismissed.
The claimant was a doctor who raised concerns about the performance of colleagues setting in train protracted and extensive litigation encompassing allegations of consequent racial discrimination and victimisation. The case reached the [Court of Appeal ]()when the use of the Burns/Barke procedure was used to glean answers to questions about the ET original conclusions. This hearing in the EAT was the final determination of the claims. The original ET had rejected the claims partly because they found that the initial disclosures had not been made in good faith and so the subsequent claims were not well founded.
In this judgment HHJ McMullen reviews the entire history of the litigation, the ET's conclusion and an application to adduce new evidence. He concludes, among other things, that the ET had not erred in finding that the disclosures had not been made in good faith, and this finding was fatal to the claims, and that the new evidence requested (which arose from satellite proceedings in the GMC) could have been adduced at the original hearing and failed the Ladd v Marshall test.
Appeal No. UKEAT/0424/09/JOJ
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 6, 7 & 8 June 2011
Judgment handed down on 12 September 2011
HIS HONOUR JUDGE McMULLEN QC, MR B BEYNON, MR T STANWORTH
DR I M KORASHI (APPELLANT)
ABERTAWE BRO MORGANNWG UNIVERSITY LOCAL HEALTH BOARD (RESPONDENT)
Transcript of Proceedings
For the Appellant MR ANTHONY KORN (of Counsel)
Instructed by: Irwin Mitchell LLP Solicitors Imperial House 31 Temple Street Birmingham B2 5DB
For the Respondent MR PETER WALLINGTON (One of Her Majesty's Counsel) & MR EDWARD CAPEWELL (of Counsel)
Instructed by: Morgan Cole Solicitors Llys Tawe Kings Road Swansea SA1 8PG**SUMMARY**
VICTIMISATION DISCRIMINATION – Whistleblowing
RACE DISCRIMINATION – Direct
JURISDICTIONAL POINTS – Claim in time and effective date of termination
PRACTICE AND PROCEDURE
New evidence on appeal
The Employment Tribunal correctly dismissed PIDA claims as having failed to meet one or other of the conditions in Employment Rights Act 1996 s 47B 47C 47G and 47H, and further some were presented more than three months after the act of detriment (not the date of disclosure).
It was open to the Employment Tribunal to dismiss claims of discrimination and victimisation under RRA 1976.
The EAT refused to allow new evidence on appeal. For the future, such applications should be made first to the Employment Tribunal.
The Court of Appeal having approved the request for further reasons, and seen the Employment Tribunal's answers, the Employment Tribunal did not overstep the proper ambit and the two sets of reasons were read as one.**HIS HONOUR JUDGE McMULLEN QC**
- This case is about detriment suffered by a medical practitioner as a result of his making protected disclosures; race discrimination; and victimisation for having made a complaint of race discrimination. It is the judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. As we explain below, each of us has been involved in various stages of the complaints made in this case. We will refer to the parties as the Claimant, Dr Ihab Korashi and the Respondent, which is Abertawe Bro Morgannwg University Local Health Board, the successor in title to various NHS bodies and which are generically referred to as the Trust.
- At the outset of the hearing we acceded to a joint application by the parties for an order of anonymity for the object of the Claimant's complaints, a doctor known as Mr A, and patients of the Trust; and for an order sealing the file of the EAT in accordance with the analogous procedure under CPR 5.4C(4). This procedure was adopted in relation to the parties in our case by the EAT on 16 July 2010 and by respectively Eady J and His Honour Judge Peter Clark sitting as a High Court Judge, in related proceedings in the High Court. We gave our reasons referring to the judgment of Underhill P in A v B  ICR 849 and B v A  IRLR 400. It was plainly in accordance with the overriding objective that the confidentiality of patients' records be preserved and that there should be no identification of Mr A. It is important, but not sufficient, to note that the application was made by consent, for there are wider issues relating to the public interest in legal proceedings being available in public. Having considered fully the possible implications for freedom of speech and freedom of the press, for the patients and for Mr A's interest, we made the order as sought.
- It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal chaired by Employment Judge John Thomas sitting at Cardiff over 40 days and spanning some 3 years from 16 October 2006 until the registration of reasons on 17 July 2009. The Claimant was represented by Mr Anthony Korn and the Respondent by Mr Peter Wallington QC, who today leads Mr Edward Capewell.
- The judgment was the subject of a preliminary hearing on appeal involving, unusually, both parties. HHJ Pugsley gave directions on 7 October 2009. Mr Beynon and Mr Stanworth sitting today sat with His Honour Judge Ansell on 15 July and 20 September 2010. The Claimant had raised substantive and procedural grounds of appeal. The procedural grounds included allegations of actual and apparent bias against Employment Judge Thomas which were dismissed by Judge Ansell's EAT and are not pursued. However, the EAT made directions for further questions to be put to the Employment Tribunal. That procedure was itself challenged on appeal to the Court of Appeal for which permission was given by Elias LJ. The judgment of the Court of Appeal dismissing the appeal was given by Maurice Kay LJ (with whom Rimer and Etherton LJJ agreed  EWCA Civ 187) who said:
"1. Dr Korashi is an obstetrician and gynaecologist. He was employed by the respondent (the Trust) or its predecessor from 1 February 2002 until he was dismissed in March 2008. Between 2003 and 2008, the relationship between Dr Korashi and the Trust was fractious. He has commenced several sets of proceedings in the Employment Tribunal (ET). The first was dismissed. The second was partially successful. We are concerned with the third, fourth, fifth and sixth, which were commenced on various dates between July 2006 and August 2007 before his dismissal. It raised issues of race discrimination and detriment by reason of having made protected disclosures ("whistleblowing"). There is also a pending unfair dismissal claim. So far as the present proceedings are concerned, there was an eight week hearing in the ET which ended on 15 December 2008, with further submissions in January 2009. The ET promulgated its judgment, dismissing the claims, on 17 July 2009. Dr Korashi has appealed to the Employment Appeal Tribunal (EAT). Initially, he prepared his own grounds of appeal and these were subsequently revised. However, at various stages in the EAT and now in this Court, Dr Korashi has been represented by Mr Anthony Korn, who had represented him in the ET. The grounds of appeal include "reasons" and "perversity" challenges.
2. The ET judgment is long (55 pages). It was described by the EAT as being "in a slightly unusual form": UKEAT/0424/09/JOJ, at paragraph 8. The case for Dr Korashi is that it is fundamentally flawed. Appeals to the EAT alleging an insufficiency or deficiency of reasons are by no means uncommon. The same is true throughout the tribunal system and, to a lesser extent, in the courts. The general principles applied in the ordinary courts are set out in English v Emery, Reimbold & Strick Ltd  1 WLR 2409. They embrace the possibility that the Court of Appeal may adjourn an application for permission to appeal and remit the case to the trial judge with an invitation to provide "additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings" (per Lord Phillips of Worth Matravers, at paragraph 25). Such a procedure owes more to pragmatism than to purity. As Lord Phillips said (at paragraph 24):
'We are not greatly attracted by the suggestion that a judge who has given inadequate reasons should be invited to have a second bite at the cherry. But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons.'
And, of course, if an original decision is overturned for insufficiency of reasons, there may be no alternative to a lengthy and expensive retrial.
3. The device of remission for an amplification or augmentation of reasons has become particularly developed in relation to appeals to the EAT. It has become known as the Burns/Barke procedure, following Burns v Royal Mail Group  ICR 1103 and Barke v SEETEC Business Technology Centre  ICR 1373. It is mentioned in the EAT Practice Direction 2008, which refers to
'an invitation [to the ET] from the judge or Registrar [of the EAT] to clarify, supplement or give its written reasons.'
5. In due course, an approved list of questions was sent to the ET and the ET, under the signature of the Employment Judge, provided its answers. Two observations are appropriate this stage: (1) Dr Korashi consistently opposed the use of the Burns/Barke procedure, contending that it was inappropriate in this case, and his and Mr Korn's input to the procedure have been without prejudice to his right to appeal the order of the EAT; and (2) ... .
6. The questions and the answers are of unusual length and scope. Indeed, this is part of Dr Korashi's objection to them. […]
16. The number and scope of the questions posed in this case exceed anything within the knowledge of experienced counsel before us and anything previously encountered by the members of the Court (two of whom have substantial EAT experience). I also accept that the passage of time is a discomforting feature. Indeed, if I had been looking at this case in the immediate aftermath of the EAT's order, I would have been seriously concerned as to whether, after this amount of time, too great a burden and expectation were being imposed on the ET by such an extensive request. However, we now have not only the questions but also the answers. It is not for us to expose them to detailed analysis but we are entitled to conclude, as I do, that the risk caused by the passage of time seems not to have eventuated.
17. I have emphasised the word "seems", because it illustrates the confines of our task. The primary submission advanced by Mr Peter Wallington QC on behalf of the Trust is that most, if not all, of the complaints advanced on behalf of Dr Korashi can still be advanced at the three-day hearing of the substantive appeal. There, the EAT will have the full picture including access to the 3000 or so pages of documents produced before the ET and will be in a far better position to see whether the questions posed and the answers given point to unreliable recollection, reconstructed reasoning or tailored fact-finding. In my judgment, this is an important submission and I accept it. I am bound to say that I would have found it more difficult to accept it if we had not had sight of the ET's answers. We have had that opportunity because Elias LJ and later Pill LJ refused to stay the EAT's order. The subsequent development of this appeal disposes me to the view that this Court will usually be in a better position to deal with borderline cases if it has the answers before it.
18. In my judgment, this case is close to the borderline but I am satisfied that it falls on the permissible side of it. … The mere number and extent of the questions posed, even if unique, have to be seen in the context of a long and multi-faceted hearing. The questions do not range across the piece. They relate to particular facts.
19. Nothing I have said will be or should be taken to be dispositive of the substantive appeal. Mr Korn will be able to pursue his critique of the judgment of the ET and of the answers to the questions posed by the EAT in search of legal error. ...."
- We have reproduced the above citation since it encompasses a general overview of the case and it puts in context the document received by the EAT from the Employment Tribunal which we will describe as the further reasons. Both the original and the further reasons, read with the questions which prompted them, are therefore to be regarded as a whole. Mr Wallington submitted, and Mr Korn did not reply, that what was essentially a full frontal "reasons" challenge, and a perversity challenge to the original reasons, and maintained in writing to the further reasons, was by the close of Mr Korn's submissions in the EAT a much more clinical attack in that certain findings by the Tribunal were inadequately reasoned or perverse in the light of the original and further reasons together.
- The Claimant is Egyptian of Arabic descent. Two strands are interwoven throughout the history. These are complaints by the Claimant's colleagues about his treatment of them in 2003, starting with complaints of sexual harassment by two female doctors. The second is the Claimant's opinion that Mr A was not adequate to the task for which he was appointed. In due course, the Claimant's complaints inured into 20 grievances, 11 Employment Tribunal claims and substantial satellite litigation.
Employment Tribunal claims
- In the first claim, the Claimant represented himself and reasons were given after a 7 day hearing by an Employment Tribunal (the first tribunal) sitting at Cardiff under the chairmanship of Employment Judge Dr Rachel Davies. It dismissed the Claimant's claim for race discrimination and ordered him to pay a fraction of the Respondent's costs in the sum of £5,600. I sat with Dr Corby and Mr Worthington and dismissed his appeal on grounds of bias, made a provisional order of costs and refused permission to appeal:  UKEAT/0847/04
- In the second claim, an Employment Tribunal (the second tribunal) sitting under the chairmanship of Employment Judge Stuart Williams sitting over four days at Cardiff, for reasons registered on 22 December 2005 dismissed his claim for race discrimination but upheld his claim for victimisation. It awarded him loss of earnings in the sum of £32,600 and by a majority awarded £8,000 by way of injury to feelings in respect of victimisation. Relevant to what follows in this case is the depiction that the Claimant failed in his claim of direct race discrimination but succeeded in his claim that having done a protected act, that is, made a complaint of race discrimination, he was victimised. In a technical sense he was not the object of race discrimination, but of victimisation; but in a general sense he succeeded in a claim under the Race Relations Act 1976, in the form of victimisation. We will return to what the first and second tribunals said. He brought four further cases to the Employment Tribunal which are known as cases 3, 4, 5 and 7, which are the subject of the current appeal.
- Procedural steps were taken in cases 6, 7, 8 and 9 by which they were withdrawn or struck out or not proceeded with, leaving cases 10 and 11, essentially unfair dismissal claims pending.
- Meanwhile, the Claimant commenced proceedings in the Administrative Court for judicial review of a decision by the Respondent to refuse him authorisation to contact patients of Mr A's with a view to showing that Mr A had treated them negligently with the result that they were at risk. That was refused by Stanley Burnton J, as he then was, on 19 January 2007. On appeal to the Court of Appeal, Keene and Jacob LJJ rejected the Claimant's contention that Stanley Burnton J was biased and refused the substantive relief the Claimant had sought by way of the application for judicial review (citation omitted consistent with the above orders on anonymity). Consideration of Keene LJ's judgment reveals an early example of the Claimant's complete failure to understand judicial decision-making as will be apparent in the present case. That a judge takes and adopts an argument on behalf of a party does not illustrate unfairness but is a regular judicial technique.
- The Trust itself took steps to prevent the Claimant from soliciting information from Mr A's patients and an order was made on 7 June 2011 by His Honour Judge Peter Clark sitting as a judge of the High Court after a three day hearing in May. The order contained the anonymity orders described above and granted injunctions to the Trust to prevent disclosure by the Claimant of Mr A's name and of patients' records. Schedule 1 to the order includes a list of costs orders made by some 10 judges and masters of the High Court against the Claimant in those proceedings. The schedule of costs which Judge Clark ordered to be the subject of a detailed assessment itself amounted to £340,000. The Claimant did not attend those proceedings for he said he was ill and Judge Clark declined an application to adjourn. He did not attend before us either but we excused his attendance on presentation of medical evidence by Mr Korn indicating his unfitness to attend through depression, and through the terminal illness of his wife.
- A further set of proceedings was commenced in the Employment Tribunal against the General Medical Council (GMC), the regulator. This was struck out, but not before a statutory questionnaire had been served by the Claimant on the GMC which is relevant to one of the complaints on appeal. Instead, the Claimant brought proceedings against the GMC in the Central London County Court; an appeal in this case was heard on 9 June 2011 i.e. during our appeal. The Claimant did not attend. We understand, because the Respondent is a second defendant in those proceedings, that an appeal by the Claimant was dismissed and he was subjected to an unless order in respect of other parts of the proceedings. Costs were ordered to be paid.
- Further, the Claimant made a complaint to the GMC against Mr A, which was dismissed.
- The Trust also made a complaint to the GMC about the Claimant, and the evidence given at the resulting hearing of a GMC Fitness to Practice panel is the subject of an application. Our information about many of the above proceedings is incomplete, partly because Mr Korn appears only in the instant proceedings.
- In addition, we understand the Claimant has made an application to the European Court of Human Rights against the UK Government in respect of a refusal by the High Court to grant an adjournment of the Respondent's application for summary judgment, in July 2010.
- Since the outcome of the present proceedings was that all his claims were dismissed, he has succeeded only in the second Employment Tribunal claim. In all of the legal fora we have cited above, he has accrued very substantial costs orders and potential costs orders against him following assessment.
- The introduction into the Employment Rights Act 1996 of protection for whistleblowers by reason of the Public Interest Disclosure Act 1998 ("PIDA") provided rights to workers amenable in the Employment Tribunals. Part IVA and V deal with the law and the procedure. For the purposes of this case, a "protected disclosure" by section 43A must be a "qualifying disclosure" for the purposes of s43B: it is a disclosure which in the reasonable belief of the worker making the disclosure tends to show one or more of matters such as a criminal offence or a failure to comply with a legal obligation. It is common ground that the disclosures relevant in this appeal are qualifying disclosures under s43B.
- There is then a cascade of different provisions which provide protection according to the recipient of the disclosure viz an employer, another responsible person, a legal adviser, a Minister of the Crown, a person prescribed by regulations made by the Minister, and a disclosure to other undefined persons. Finally there is disclosure of "an exceptionally serious failure". We are concerned in this case with the following:
"43C Disclosure to employer or other responsible person
(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith -
(a) to his employer.
43G Disclosure in other cases
(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.
(2) The conditions referred to in subsection (1)(d) are –
(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,
(b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or
(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.
(3) 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 -
(a) the identity of the person to whom the disclosure is made,
(b) the seriousness of the relevant failure,
(c) whether the relevant failure is continuing or is likely to occur in the future,
(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,
(e) in a case falling with subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and
(f) in a case falling within subsection 2(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.
(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.
43H Disclosure of exceptionally serious failure
(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
(2) 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 the identity of the person to whom the disclosure is made."
- It follows that every disclosure must meet the conditions in s43B. It is conceded that the material disclosed meets the conditions in s43B(1)(a)–(f), but there is a dispute as to the "reasonable belief" of the Claimant in so disclosing it. It is also common ground that the conditions in s43B having been met, the Claimant would also have to show he succeeded in passing through one of the gateways viz s43C in his disclosure to the Trust, his employer; s43G in his disclosure to the GMC; or s43G or s43H in his disclosure to the Police. These are the three disclosures relevant for this part of the appeal.
- By ss47B and 48(1A) the Claimant has the right "not to be subjected to any detriment by any act, or deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure". By s48(2) "it is for the employer to show the ground on which any act or deliberate failure to act was done".
- A complaint must be made to an Employment Tribunal within three months "beginning with the date of the act or the failure to act to which the complaint relates, or where that act or failure is part of a series of acts or failures the last of them" (s48(3)(a)). There is provision for where it is not reasonably practicable to present such a complaint but that is not the subject of an appeal. A definition of the "date of the act" is provided in s48(4):
"(4) For the purposes of subsection (3) –
(a) where an act extends over a period, the "date of the act" means the last day of that period, and
(b) a deliberate failure to act shall be treated as done when it was decided on;
and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected do the failed act if it was to be done."
Discrimination and victimisation
- The Race Relations Act 1976 provides by s1 for racial discrimination. What is known as direct discrimination in the authorities occurs when a person on racial grounds treats another less favourably than he treats or would treat other persons.
- Section 2 protects people who have brought proceedings or done anything by reference to the Act: discrimination by way of victimisation. Here the person committing the wrong is described as the discriminator and the wrong occurs when the discriminator treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has done what is described generally in the authorities as a protected act.
- Discrimination in the employment field is outlawed by section 4.
- Proceedings must be brought within three months but there is an extension where a claim is brought out of time but it is just and equitable to extend time. There is the same provision relating to acts done over a period of time known as continuing acts in the authorities: see s68.
- An employment tribunal is required to give reasons in writing when asked within the relevant period. By rule 30(6) of the Employment Tribunals Rules of Procedure the reasons should include the following information:
"(6) Written reasons for a judgment shall include the following information –
(a) the issues which the tribunal or Employment Judge has identified as being relevant to the claim;
(b) if some identified issues were not determined, what those issues were and why they were not determined;
(c) findings of fact relevant to the issues which have been determined;
(d) a concise statement of the applicable law;
(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues; and
(f) where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sum has been calculated or a description of the manner in which it has been calculated."**The people in the case**
- In cogent reasoning extending over several pages of its judgment, the Tribunal gave its assessment of the credibility of the Claimant. He was neither credible nor reliable. It gave a number of illustrations for the basis of this finding. The finding was relevant to the essential Claimant-centred issues it had to determine under the above statutes such as good faith, belief, reasonableness and detriment (or less favourable treatment, for it is conceded that they are the same). The Respondent's witnesses on the other hand were candid.
- The events took place in the Department of Obstetrics & Gynaecology at the Trust (O&G). The professional institution to which the actors in the drama belong is the Royal College of Obstetricians & Gynaecologists (RCOG). The Trust has access to the Communications Skills Unit (CSU).
a. The Claimant had a staff grade appointment in O&G from 2 February 2002 until his dismissal (after these proceedings) in 2008.
b. Mr Peter Bowen-Simpkins is the retired distinguished consultant in O&G who was appointed by the Respondent in 2004 to investigate the Claimant's clinical allegations against Mr A.
c. Mr A is a consultant in O&G appointed in December 2002 and was for a brief period the clinical director of O&G.
d. Mr John Calvert was at the material time the medical director of the Trust and previously a consultant in O&G;
e. Mr Geraint Evans was at the material time a director of human resources.
f. Mr Freites was at the material time a consultant in O&G who was asked to mentor Mr A but could not continue to do so as a result of a road accident which kept him off work between September 2003 and April 2004.
g. Mr Gasson and Dr Joels were at the material time consultants in O&G;
h. Dr Matthes was at the material time a consultant paediatrician;
i. Professor Murdoch is a professor of O&G who together with Mr Oram was appointed by the RCOG to report on concerns about Mr A and were responsible for the re-training of Mr A.
j. Professor John Shepherd is professor of O&G at a different hospital appointed to investigate and report on four deceased patients referred by the Claimant to the Police and then again on 10 out of 120 patients named by the Claimant selected by the Police.
k. MD is a patient whose husband made a complaint about her treatment by Mr A in May 2006 and LJ is a patient who having made a claim against the Respondent for negligence by the Trust as a result of treatment by Mr A achieved a settlement of a claim in negligence.**Our approach to the appeal**
- Despite careful case management at both levels, this case took 40 days in the Employment Tribunal and 5 days in the EAT. The EAT bundle runs to 1500 pages and there is an application to adduce a further 300 pages. The Claimant presented 11 claims to the Tribunal. The judgment and further reasons on four of them run to 71 pages. A list of issues for appeal arising out of the Amended Grounds of Appeal identifies 69 issues. Many of those include multiple questions. Even after bias and other grounds were dismissed at the preliminary hearing, there are thus 90 issues before us plus the issues relating to new evidence. The "outline chronology" is 15 pages and the skeleton arguments on appeal and for the new evidence amount to 150 pages. The new evidence is 300 pages. There are 60 authorities.
- In his closing reply Mr Korn made clear that he did not expressly concede any point, since his client was not in attendance at the EAT and. as he put it, he has strong opinions. Only a few fell away as a necessary result of exchanges in court. The tone was set when Mr Korn opened by correcting the Employment Tribunal's observation that the "arguments are sophisticated and voluminous amounting to over 200 pages" to "over 250 pages".
- Our approach to this massive case is informed by the following principles:
(1) In a discrimination case "drastic pruning ... to exclude peripheral and minor issues from the list agreed by the parties" is required at the Employment Tribunal: [St Christopher's v Walters-Ennis]()  EWCA 921 at para 14 per Mummery LJ; and we take it a fortiori on appeal.
(2) A Tribunal is under a duty to provide adequate reasons for its decision so that the parties and on appeal an appellate court can understand the findings and reasons: Meek v City of Birmingham District Council  IRLR 250 CA; [Greenwood v NWF]()  ICR 896 EAT.
(3) It is permissible for a Tribunal in giving its reasons to adopt a submission made orally or in writing by one of the parties: English v Emery Reimbold & Strick  IRLR 710. This is particularly helpful where submissions are in writing and made by counsel.
(4) The approach to an Employment Tribunal's reasons must be non-fussy, non-pernickety and must not be hyper-critical: [Fuller v London Borough of Brent]()  ICR 806 per Mummery LJ in the majority.
- To those general principles can be added the specific approach required in a case of whistleblowing. It is common ground that the approach Mr Stanworth and I took in the EAT in Boulding v Land Securities Trillium Ltd UKEAT/0023/06 is correct.
"24. … The approach in ALM v Bladon is one to be followed in whistle-blowing cases. That is, there is a certain generosity in the construction of the statute and in the treatment of the facts. Whistle-blowing is a form of discrimination claim (see Lucas v Chichester UKEAT/0713/04). As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following.
(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on.
(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject."
- The issues in this case involve very strong feelings extending to the treatment of vulnerable women patients, babies, relations between healthcare professionals, the regulator (the GMC), the professional bodies (RCOG), National Health Service bodies and the Police. We also recognise that allegations of race discrimination are fact-sensitive and should in a pluralistic society be vindicated by a full hearing: Anyanwu v South Bank University Students Union  ICR 391 HL per Lord Steyn. In the same way as protection is given to whistleblowers, protection against victimisation of those who make complaints under the RRA is also paramount for the enforcement of rights in this jurisdiction.
- At the outset of his written submissions, Mr Wallington QC acknowledges that there are imperfections in the writing of the ET judgment and its further reasons, but given the approach that we take above he contends that the decision should be left alone. He also submits that many of the issues on appeal are conditional upon success by the Claimant on certain primary contentions. For example, the conditions in sections 43B and 43G are cumulative and a fall at any one of the hurdles means the claim must fail.
- We are grateful for the Employment Tribunal for having, no doubt at the firm insistence of the parties, made decisions on all of the conditional grounds set out in the statute, but on appeal the position is different. We take the view that if we uphold the Tribunal on one of its primary findings, it is not necessary for us to add to the hypothesis what we would decide in relation to any of the subsidiary conditions. There are also some jurisdictional points which if they are upheld, or if they succeed here, would stop some of the complaints at the threshold e.g. that they are out of time. Nevertheless, we will address these issues where we consider they are necessary for the decision we make on appeal.
- Doing the best we can, we summarise the issues on appeal in the following way. There are three PIDA complaints. They all relate to Mr A's treatment of patients.
a. On 6 January 2005 the Claimant complained to the GMC about the treatment of six patients. This is under s43G. (The GMC as a regulator might have been considered to be a prescribed person under s43F but at that stage it was not so prescribed.) None had died. Mr Bowen-Simpkins had investigated and on 1 December 2004 the Respondent had told the Claimant no further action would be taken.
b. On 31 May 2006 the Claimant complained to the Police about four deaths occurring by September 2004. He included the RRA questionnaire previously served on the GMC. This is under s43G and 43H.
c. On 26 June 2006 the Claimant disclosed 120 cases relating to patients' care and the absence of informed consent to procedures for which they were admitted. This is under s43C, a disclosure to the Claimant's employer.
He complains that he suffered detriments as a result of making these disclosures and complained to the Employment Tribunal within time. Those claims were dismissed.
- Under the RRA, the complaint is made of direct race discrimination by Dr Joels at one incident on 16 February 2006 in the operating theatre. The Tribunal did not determine this complaint specifically. But Mr Wallington submits its answer would be clear in the light of its related findings.
- As to victimisation contrary to s2 of the RRA, the basis is a set of letters written in July/August 2004 by the consultants in the Claimant's department, making complaints about the Claimant following their treatment by him in the first Employment Tribunal proceedings. The second Employment Tribunal (the Williams Tribunal) found that he was victimised for raising the first Tribunal claim but the Thomas Tribunal, in the judgment under appeal, dismissed the claims of victimisation otherwise.
- In short, apart from the Dr Joels complaint, the Claimant failed on all of his complaints as a result of failure to meet one or more of the essential ingredients of the relevant statutory provisions e.g. reasonable belief, good faith, detriment; or was out of time for bringing the claim and discretion was not exercised in his favour.
- In the light of the above we will take what we regard as a proportionate approach in accordance with the overriding objective to resolving the principal dispute between the parties.
- On 2 February 2002 the Claimant was appointed at a staff grade post in O&G. On 2 December 2002 Mr A was appointed as a consultant in O&G after an unsuccessful attempt by the Respondent to recruit a sub-specialist in gynaecological oncology. On 6 March 2003 the two men conducted their only operation together on a patient.
- Between 7 March and 16 May 2003 the Claimant was suspended. He was suspended a second time between 1 September 2004 and 10 August 2005. He was suspended a third time on 24 July 2006 and thereafter at regular intervals without a break until 2007 and as we understand it his dismissal in 2008. The first suspension followed allegations of sexual harassment made by two female junior doctors. The Claimant's complaint of race discrimination was dismissed by the first Employment Tribunal on 22 July 2004. The second suspension followed the consultants' letters of July/August 2004. The second Employment Tribunal heard the Claimant's complaints of race discrimination and victimisation arising out of that suspension in August 2005 and gave judgment on 18 October 2005. It upheld his claim of victimisation and awarded substantial compensation, and dismissed his claim of race discrimination. The third suspension followed the Claimant's complaint to the Police, which constitutes the second protected disclosure claim in this appeal and it also followed the third disclosure claim in this appeal, the one made to the Trust on 26 June 2006 (the 120 patients).
- On 27 September 2003 Mr A sent the Claimant home following an incident between them. The Claimant wrote a complaint making allegations about the treatment by Mr A of his patients and alleged racial harassment against himself. As to the clinical issues, the Respondent conceded that this is a protected disclosure but it does not fall within the issues to be decided on appeal. Two patients had died on 26 and 27 September 2003 and these were the subject of complaints made by the Claimant on 21 October 2003. These complaints were investigated and rejected but no report was given to the Claimant. However, in response to further chasing from the Claimant Mr Bowen-Simpkins was appointed to investigate clinical issues the Claimant had raised. In the course of that investigation on behalf of the Trust, on 20 September 2004, whilst suspended, the Claimant provided details of six patients including patient LJ who had issued proceedings against the Trust. These are six non-fatal patients. The Respondent accepts that this is a protected disclosure but again this is not one of the issues live on appeal. On 3 November 2004 Mr Bowen-Simpkins reported to the Trust that four of the six cases were correctly treated, a fifth patient's notes went missing and he did not investigate LJ since the case was pending. The Claimant was told no further action would be taken but the Bowen-Simpkins report was not disclosed to him.
- On 6 January 2005 the Claimant reported Mr A to the GMC. This is the first disclosure relied on by the Claimant in these proceedings. It is relied upon under s43G. It relates to the six previously investigated patients. Further information was sent to the GMC on 12 March 2005 from which having heard argument upon it, as a matter of construction, it appears to us that the Claimant had read the Bowen-Simpkins report. This is relevant to the reasonableness of the Claimant's belief. The Claimant also reported Mr Bowen-Simpkins and four other consultants, Mr Calvert, Mr Gasson, Dr Joels and Dr Matthes, to the GMC in early 2005. The Respondent did not know about the complaint to the GMC until 12 May 2005.
- Between January and 10 August 2005 there was a number of meetings relating to apprehension by consultants about the Claimant's return to work from suspension and one solution was for the Claimant to attend the Communication Skills Unit; and also about Mr A's competence. As a result of the latter, Mr A agreed to limit his surgery to benign cases and he should be supervised. A team from the RCOG would be called in to investigate Mr A. This is the Murdoch/Oram team, who visited the Trust on 16 August 2005 and recommended a two-year re-training programme for Mr A. This was subsequently accepted by the Trust and Mr A and implemented from July 2006. The Claimant was not interviewed nor did he see a copy of the RCOG report.
- Thereafter the second Employment Tribunal found in the Claimant's favour on his victimisation claim and on 23 December 2005 awarded him compensation including aggravated damages. He also issued a number of grievances.
- On 7 February 2006 the GMC notified the Respondent and the Claimant that no action would be taken on complaints he had made against the consultants and Mr Bowen-Simpkins.
- On 16 February 2006 Dr Joels excluded the Claimant from the operating theatre. This was held not to be a detriment for having made a protected disclosure but no finding was made on the Claimant's case that this was also a detriment contrary to the RRA.
- As part of the Claimant's return to work arrangements, the requirement that he attend the CSU meeting was not followed through by him and on 24 May 2006 he was warned that his failure to do so would be a disciplinary issue.
- On 31 May 2006 he visited Swansea Police station and spoke to DI Hughes. This is the Claimant's second disclosure relevant in these proceedings. It makes allegations that Mr A was associated with the deaths of four patients as a result of his gross negligence. There was a dispute about the precise allegation made but it is clear enough that there was association between Mr A, his competence, and four deaths. These included two who died on 26 September 2003 and two others not previously mentioned by the Claimant to the Respondent. The Claimant also left the RRA questionnaire which he had served on the GMC. It is contended that this is protected by s43G and 43H. The Police met the Respondent's leaders and on 19 June 2006 Dr Calvert decided there was no evidence of negligence or reason to suspend Mr A but that an independent expert should review the four cases. To this end on 22 June Professor Shepherd was appointed, with the agreement of the Police.
- Almost immediately thereafter on 26 June 2006 the Claimant wrote what is relied on as being his third disclosure, this time under s43C since it was to his employer, attaching a list of 120 patients. These had been operated on by or under the supervision of Mr A, 105 of whom were cancer patients. The Claimant also contended that the patients had been misled into consenting to their operations since Mr A was not a qualified cancer surgeon. A similar complaint was made by the Claimant on 20 July 2006. At around this time (30 June 2006) the Claimant presented the first of the claims relevant to this appeal.
- Professor Shepherd reported to the Trust on 17 July 2006 on his investigation into the four deaths and the Claimant on 20 July 2006 raised the grievance about the sufficiency of Professor Shepherd's report.
- On 24 July 2006 the Trust concluded that the Claimant's allegations to the Police were malicious and that he should be suspended and reported to the GMC, and the following day Professor Shepherd made his final report to the Trust. The complaint to the GMC about the Claimant's going to the Police was made on 25 July 2006. On 26 July 2006 following the Claimant's failure to attend a meeting, he was suspended.
- After further contacts between the Claimant and the Police, on 2 August 2006 DI Hughes said no further action would be taken. The Claimant protested and asked the matter to be referred to DCI Azzopardi. DCI Azzopardi and the Respondent agreed that Professor Shepherd should be asked to investigate a sample of the 120 patients revealed by the Claimant in his third disclosure relevant to these proceedings. On 18 March 2007 Professor Shepherd formally reported on his investigation of the 10 and found no negligence. He raised questions about Mr A's qualifications and training.
- The Claimant was suspended for three substantive periods: 7 March-15 May 2003; 1 September 2004-10 August 2005; 24 July 2006 – 4 March 2008 dismissal
- We consider it appropriate to stand back and take an overview of the Claimant's campaign. We use this term as it was the term used by Mr Korn to describe the Respondent's actions against the Claimant. We have illustrated how wide spread forensically is his challenge to Mr A's performance. As to his employment rights, the Claimant has asserted these before three separate Employment Tribunals, three divisions of the EAT and one division of the Court of Appeal. No court has been given as full a picture of the Claimant's forensic history as we have.
- The time has come to be clinical with the court's time for him. At the outset of our findings on this appeal we make it clear that where we do not mention a matter, we accept in full the submissions of Mr Wallington QC in his written submissions in this case. This is because on the minimal requirements for the Claimant to succeed, he fails at one or a number of the hurdles placed in front of him. Given that there are 69 disputes on the appeal, we consider it appropriate for us to reach for a cicerone and, although we accept the principal submissions and will reason them through, it follows that we accept the subsequent submissions without analysing each ingredient for we accept the substance. We accept that if the Claimant fails on one of the key ingredients of his claim, it is not necessary for a court on appeal to decide the hypothetical situation which might arise had the first instance tribunal decided in his favour on another ingredient. We consider the Claimant can have no complaint about this given that in every forum in which he has appeared over the last eight years from his first suspension and claim in March and May 2003 respectively, save for the second Employment Tribunal, he has failed in his signal campaign against Mr A which is the basis for all of this litigation. The time has come for the court system to draw a line under Dr Korashi's ad hominem complaint. He has told us how bad this is for his health and for that of his wife. We do not hold out great hopes that this will end his campaign.
- It is worth considering that from the outset the Claimant made PIDA complaints as to Mr A's clinical practice to the Respondent in 2003 and 2004. He suffered no detriment as a result of doing so.
Disclosure to the GMC
- His first contention in these proceedings relates to the disclosure to the GMC on 6 January 2005. The Claimant had to satisfy the Tribunal that the disclosure was protected under s43A by reason of it being a qualifying disclosure under s43B and 43G. The Employment Tribunal found that he failed because he was "disingenuous". It formed the view that he had to show that the material was objectively reasonable for him to believe. This relates to the allied complaint by the Claimant about the outcome of the sexual harassment complaint by others.
- The Tribunal found that the Claimant's failure to take basic steps to contact the principal vessel for his complaints that is, Mr Bowen-Simpkins, cast doubts on his motives of good faith. The Tribunal addressed the question of whether a person could behave reasonably yet be mistaken in accordance with Babula v Waltham Forest College  IRLR 346 CA. It decided that whether or not the information disclosed is true is relevant but not definitive as to the question of reasonableness. It is unclear as to whether or not the Tribunal found that the Claimant proved that the disclosure was a qualifying disclosure under s43B since this would have to include a favourable view as to the reasonable belief of the Claimant.
- There seems to be no dispute in this case that the material for the purposes of s43B(1)(a)-(e) would as a matter of content satisfy the section. In our view it is a fairly low threshold. The words "tend to show" and the absence of a requirement as to naming the person against whom a matter is alleged put it in a more general context. What is required is a belief. Belief seems to us to be entirely centred upon a subjective consideration of what was in the mind of the discloser. That again seems to be a fairly low threshold. No doubt because of that Parliament inserted a filter which is the word "reasonable".
- This filter appears in many areas of the law. It requires consideration of the personal circumstances facing the relevant person at the time. Bringing it into our own case, it requires consideration of what a staff grade O&G doctor knows and ought to know about the circumstances of the matters disclosed. To take a simple example: a healthy young man who is taken into hospital for an orthopaedic athletic injury should not die on the operating table. A whistleblower who says that that tends to show a breach of duty is required to demonstrate that such belief is reasonable. On the other hand, a surgeon who knows the risk of such procedure and possibly the results of meta-analysis of such procedure is in a good position to evaluate whether there has been such a breach. While it might be reasonable for our lay observer to believe that such death from a simple procedure was the product of a breach of duty, an experienced surgeon might take an entirely different view of what was reasonable given what further information he or she knows about what happened at the table. So in our judgment what is reasonable in s43B involves of course an objective standard - that is the whole point of the use of the adjective reasonable – and its application to the personal circumstances of the discloser. It works both ways. Our lay observer must expect to be tested on the reasonableness of his belief that some surgical procedure has gone wrong is a breach of duty. Our consultant surgeon is entitled to respect for his view, knowing what he does from his experience and training, but is expected to look at all the material including the records before making such a disclosure. To bring this back to our own case, many whistleblowers are insiders. That means that they are so much more informed about the goings-on of the organisation of which they make complaint than outsiders, and that that insight entitles their views to respect. Since the test is their "reasonable" belief, that belief must be subject to what a person in their position would reasonably believe to be wrong-doing.
- The finding by the Tribunal that the disclosure was not made in good faith pursuant to s43G is fatal. It has given its reasons for so finding. The matter was in the hands of Mr Bowen-Simpkins and the Claimant made no steps to draw the matters to his attention further than his initial disclosure. The Tribunal found that this cast doubts on the motives of good faith. It also regarded the Claimant as disingenuous in disclosing the matters relating to the sexual harassment when at the same time he asked that they be disregarded. The Tribunal gave cogent reasons why it found that the Claimant had not acted in good faith.
- It follows that what the Tribunal decided thereafter, and our views upon it, are not necessary for the decision. If we were to decide we would follow the reasoning of Mr Wallington QC. The additional layer placed by s43G upon a disclosure made pursuant to s43B is that the claimant reasonably believes that "the information disclosed and any allegation contained in it are substantially true." The dispute between the parties is as to whether it is sufficient that the gist of a complaint, here as to the competence of Mr A, qualifies as being substantially true or whether the information and each allegation must be reasonably believed to be true. Counsel say that there is no authority on this. The example given by Mr Wallington is of a disclosure made by scattergun which includes one point which qualifies under s43G and nine which do not. This he contends would not mean that each allegation is substantially true.
- In this case it is plain that not all the allegations made to the GMC were believed by the Claimant to be substantially true. Instead, reliance is placed upon the gist which is that Mr A was not properly qualified. Applying the direction which is to give a generous approach to whistleblowers, we do not consider that this subsection would be satisfied. The structure of s43 is to impose additional obligations the further removed the recipient of the information is from the worker's employer. The first place for any worker to turn is to his employer. Next is the legal adviser (s43D) government minister (s43E), regulator (s43F) and then any other person (s43G, s43H). At each stage additional responsibilities are placed upon the discloser. The reason for this is understandable. You do not go beyond the person who might immediately take action unless there are special circumstances as set out in each of the sections. A fairly weak condition is placed upon disclosure to an employer but strong conditions are placed upon disclosure to those outside the relationship. That is why s43G(1)(b) requires not only the information but each allegation under it to be substantially true. It will be recalled that under s43B allegations are not required to be made. This is the softest treatment of information provided by the statute; the use of the words "tend to show" and "reasonable" belief without the requirement of allegations being made all point in that direction.
- However, once one goes outside the immediate confines of the employment relationship and to an outsider, here the GMC, additional layers of responsibility are required upon the discloser. The information must in the reasonable belief of the discloser be substantially true. There is no obligation to make allegations but if they are made they too must in the reasonable belief of the discloser be substantially true. Both information and allegations must fit that criterion. Here on the facts found by the Tribunal they did not. If we were required to decide this matter it would not be sufficient to show that a matter was believed to be substantially true when a number of the allegations were not so believed.
- The Employment Tribunal may have placed too heavy a burden of proof upon the Respondent as to lack of good faith (see Street v Derbyshire Unemployed Workers Centre. But this can only have been in the Claimant's favour. The issue of good faith is so much a matter of impression for an Employment Tribunal that it must be rare indeed for an appellate court to have jurisdiction to intervene. Subsequent to the decision in this case the EAT decided [Meares v Medway Primary Care Trust]() UKEAT/0065/10 in which it was said that a tribunal must decide whether the disclosure was made in good faith or for another motive but need not decide the predominant motive where there were mixed motives. Permission to appeal was refused by Rimer LJ, who emphasised the essentially factual nature of this question being unassailable on appeal:  EWCA 897. The Tribunal gave reasons why it felt that the Claimant had not gone through the Bowen-Simpkins channel and why he had raised allegations of race discrimination. The Tribunal's decision that he lacked good faith was one for it to decide. It has given reasons for its decision. It was open to it so to decide and we see no error. It must be borne in mind that this is the first condition in s43G. It is going beyond the requirement of reasonable belief in s43B and requires a finding by the Tribunal on that specific point. That is enough to decide the issue against the Claimant on the PIDA disclosure to the GMC
- As to reasonable belief, were it necessary for us to decide this, the Tribunal in its further reasons has given ample basis for its finding that there was no reasonable belief by the Claimant that the treatment of the other patients was negligent.
- In any event, the Tribunal found that the Claimant suffered no detriment as a result of this. The Tribunal addressed itself directly as to the meaning of detriment: see Shamoon v Chief Constable of the RUC  ICR 337 HL. It was accepted by the Claimant that detriment here means the same as less favourable treatment under the Race Relations Act which will be relevant later in this judgment. Attendance at the CSU was agreed by the Claimant in any event. This could not be held to be either perverse or an error of law. Apart from the CSU matter, all of the other events said to constitute a detriment arising out of the first disclosure were out of time. The Tribunal gave reasons why it would not extend time. There appears to be no significant challenge to those findings.
- In summary, we uphold the judgment of the Tribunal that the first disclosure was not made in good faith, and if necessary that the finding by the Tribunal as to what the Claimant believed to be substantially true as to the information and allegations was correct. In any event he suffered no detriment save for the CSU matter which is one which he agreed and which we consider to be a sensible managerial approach to his return to work. The others were out of time. If after the issue of good faith it were necessary for us to decide the succeeding three issues we would hold in sequence that the Tribunal made decisions correct in law.
- The Employment Tribunal set out its reasoning behind its decision on the lack of good faith in the following way:
"39. The disclosure to the GMC ON 6 January 2005. This is a disclosure brought under the provisions of Section 43(g). Dr Korashi did not just refer to the GMC what was referred to Mr Bowen-Simkin. He referred additionally to allegations of racism following the dismissal of such by the first Employment Tribunal. At page 1014 the attention of GMC is drawn to the penultimate paragraph and refers to racial discrimination and victimisation related to the unsubstantiated allegations of sexual harassment "mediated" by Mr A and professional misconduct "mediated" by Mr A leading to three suspensions. It is disingenuous for him to raise these matters at all even though he asks the GMC that they be ignored so far as an investigation is concerned. The fact is that the reference to Mr A's involvement in the sexual harassment allegations is wholly without any factual basis. Further his assertion that Dr Calvert was protecting Mr A gives a misleading view as to the reason why there was a delay after the appointment of Mr Gasson in the preliminary investigation. Dr Korashi objected to his appointment which was one cause of delay. Whether the objection was for good or bad reason. The inertia of Dr Korashi to take basic simple steps to contact Mr Bowen-Simpkins by telephone or letter before escalating matters casts doubt on the motives of good faith. There could not have been anything objectionable in such course and whilst a hospital cleaner or nurse may well have felt unable to make such an approach to a retired consultant, such understandable reticence would not in our view apply in the case of Dr Korashi. If he had done so he would have been able to test his concern. We come to this conclusion despite the Claimant's argument that it is not up to the whistleblower to take such steps. A proper sensible balance should be recognised. We think that in the circumstances Dr Korashi did not take that course because the reaction of the Respondent meant that Dr Korashi's concerns had not been upheld by Mr Bowen-Simpkins which was a conclusion not acceptable to Dr Korashi. The Respondent was remiss in failing to inform the Claimant of the result of Mr Bowen-Simpkins' investigations with any detail other than that no action should be taken which was regrettable and unhelpful in hindsight but not a cause of justifiable suspicions as the remedy was in the hands of Dr Korashi.
40. We reject the contention that it was objectively reasonable to have believed the complaint. We remind ourselves of the principles in Babula v Waltham Forest College (2007) IRLR 346. We accept that the belief may be reasonable even if mistaken. The test must be an objective one and whether or not the disclosure is in fact true is relevant although not definitive of the issue of reasonableness.
41. We agree with Counsel for the Respondent that Section 43(g)(1)(e) requires that the Claimant must reasonably believe that the information disclosed and any allegation contained in it is substantially true. On a simple reading of the words in the Statute, the information is in reference to all the information and the allegation must be in reference to the allegations, if any, and not one out of a number. We accept and agree with the reasons set out by Mr Wallington at paragraphs 48 and 49 of Part 2 of his submissions that his belief of mistreatment of patients JW and LH formed part of information which should be objectively reasonable given that Dr Korashi is experienced and well qualified in his field.
42. The issue of good faith also arises because of the of cavalier criticism of the way that Mr A dealt with cancer patients as outlined in the Evidence of Dr Korashi at Para 47 of his statement. This indicates "ventilation of a sense of grievance "that nothing was to be done following the Bowen-Simpkins investigations". Four of the six cases referred to were not cancer cases."
- It will be noted that the disclosure to the GMC contained more than was disclosed to Mr Bowen-Simpkins. The Tribunal had already found in respect of those disclosures on 20 September 2004 that they were sufficient for the purposes of section 43C for the purposes of good faith. It is plain that the inclusion of the other materials set out in paragraph 39 of the Tribunal's Reasons made the disclosure to the GMC one tainted by lack of good faith. The Tribunal directed itself correctly in respect of the application of the judgment of the Court of Appeal in Street v Derbyshire Unemployed Workers Centre  IRLR 687 and plainly found that the inclusion of the additional elements in the complaint to the GMC exhibited an ulterior motive.
- Further, the Tribunal went on to find that the Claimant did not satisfy the second condition in section 43G in that he did not have a reasonable belief that each of the allegations comprised in the information disclosed was substantially true. The Tribunal found on the basis of substantial evidence that the Claimant suffered no detriment as a result of this disclosure. Further, in respect of each of the detriments which the Claimant asserted and the Tribunal dismissed the claim was made out of time. In our judgment the Tribunal was entitled as a matter of fact to take the view that these complaints were out of time and there was no appeal against the finding that it was reasonably practicable for them to be so presented. Thus the Claimant failed to sustain his complaints in each of the four respects which are essential ingredients for a complaint made under the combination of section 43B and 43G (section 43H was not relied on in this respect).
- Mr Wallington accepts that the Tribunal did not make findings under section 43G(2) and reasonableness under s43G(1)(e) read together with s 43G(3). We accept his submission that unless the Claimant satisfied each of the four ingredients cited above it would be unnecessary for the Tribunal to make findings in respect of s43G(2) and 43G(3). We do not consider such failure to amount to an error of law but if it were, the decision it made in respect of the Claimant's failure to prove the other ingredients made its decision overall unarguably right. See Dobie v Burns International Security Services UK Ltd  ICR 812 CA.
Disclosure to the Police
- The Claimant made a disclosure to the South Wales Police on 31 May 2006. The Tribunal held that this was not a protected disclosure under s43G or s43H. The disclosure related to the deaths of four patients. It is plain that the Claimant was making a complaint to the Police that four deaths had occurred as a result of the negligence or under qualification of Mr A. This was a finding based on ample evidence coming from the Claimant himself and the report of DI Hughes. A dispute between the parties as to the precise nature of the allegation does not obscure the central point we have summarised above. Taking a shortcut to the final ingredient for protection under s43B, the Claimant did suffer a detriment in that he was suspended because he made the complaint. And his complaint to the Tribunal was in time. However, issues of good faith and reasonable belief arise again in respect of the complaint to the Police as they did in the complaint to the GMC. The task has been simplified on appeal for Mr Korn accepted that, at least in respect of one of the four patients, the Claimant could not have believed the patient died as a result of the gross negligence of Mr A. But he says that it is not necessary to show that each example was reasonably believed to be correct provided in substance there was such belief.
- In dealing with the submissions on both of these points, we recall the example given above as to the standard by which reasonable belief is to be judged. Dr Calvert and Professor Shepherd formed the view there was no connection between Mr A's competence and qualifications and the deaths of the four patients. He had not operated on three of them. It was Professor Shepherd's opinion that the allegation made by the Claimant to the Police was made without knowledge of the hospital records. The examination of the records by Professor Shepherd showing that such evidence was not forthcoming against Mr A, was evidence the Employment Tribunal was entitled to reach. Alternatively, if the Claimant had not examined the patients' records, the Tribunal was entitled to form the view that the Claimant acted without objectively reasonable belief in the truth of his allegations.
- In its findings on this point (paragraph 52 of its Reasons) the Tribunal makes condign criticisms of the Claimant's credibility, and his desperate attempts to bolster a weak case, all of which indicate what the Tribunal found to be "a visceral personal hostility towards Mr A". In our judgment the Employment Tribunal was entitled to conclude that the Claimant did not have a reasonable belief in the allegation which we find to have been made that Mr A through his gross negligence was responsible for any one of the deaths. Further, by reference to its earlier findings in relation to good faith the Tribunal was entitled to come to the conclusion that the disclosure to the Police was not made in good faith: see paragraph 52 of the Tribunal's Reasons, accepting in full the submissions made on behalf of the Respondent. In our judgment the combination of the lack of reasonable belief and the personal campaign against Mr A led inevitably to the Tribunal's conclusion that there was a lack of good faith in the making of the disclosure to the Police.
- It should also be borne in mind that the finding on reasonable belief is one which is necessary under s43G(1)(e) i.e. in all the circumstances of the case it is reasonable for the Claimant to make the disclosure. Reasonableness of belief is therefore stressed by the requirement for the material to pass s43B(1), s43G(1)(b) and 43G(1)(e).
- Those findings made it unnecessary for the Tribunal to decide the issue under s43G(2). These are the gateway conditions one of which must be entered for the purposes of s43G(1)(d). The Tribunal made clear in its judgment and its further reasons that none of these conditions was satisfied. As we said above, it is not necessary for us to make decisions about these but in our judgment the Tribunal was plainly correct. Given the absence of detriment suffered by the Claimant for his earlier disclosures to his employer, he could not have believed reasonably that he would suffer detriment by making the complaint to the Police and there was no evidence of a reasonable belief that the material would be concealed or destroyed. Further, the disclosure to the Police was not substantially the same as was previously disclosed to the Respondent via Mr Bowen-Simpkins, or to the GMC for that matter. [Goode v Marks & Spencer plc]() UKEAT/0449/09 at paras. 32-45 indicates the scope of what is substantially the same information. The scope of the previous disclosure to the Respondent was that two of Mr A's patients had died on the same night, the two other cases disclosed to the Police were not the subject of that earlier disclosure and allegation.
- In the circumstances it is not necessary for us to make decisions on the complaint that the Tribunal did not consider the matters in s43G(3) but we would be minded to accept Mr Wallington's submissions on them. The Respondent's whistleblowing procedure required the Claimant to operate first through that and he did not. The Tribunal plainly had in mind the identity of the recipient – it was the Police.
- Finally, in relation to the complaint to the Police, it must be borne in mind that even if the Tribunal were wrong and the Claimant did reasonably believe the allegations he there made were true, the disclosure would not be protected if the motive or the predominant motive in disclosure was for an ulterior purpose: see Street at paragraphs 56-57 per Auld LJ and 71-75 per Wall LJ.
Disclosure to the Trust
- The Claimant wrote letters to the Respondent on 26 June and 20 July 2006. The latter reflects the content of the former. This was the list of 120 patients said to be adversely affected by Mr A. Both were rejected by the Tribunal as the content was not disclosed in good faith. The task for the Claimant in relation to these disclosures was made easier since they are made pursuant to s43B and 43C. The Respondent conceded that within this disclosure there were items of information which the Claimant reasonably believed tended to show that patients in the list had some reason to believe they would suffer adverse consequences as a result of surgery undertaken by Mr A e.g. the patient LJ.
- The additional obligation imposed by s43G of showing that each allegation and each piece of information was substantially true is not found in s43C. Good faith is. The Respondent accepted that if some information were disclosed which was not reasonably believed to be true yet other information was, the requirements of s43B and 43C were met in respect of reasonable belief. The Tribunal's conclusion is as follows:
"57. The fact that there was no attempt by Dr Korashi to seek confirmation or clarity displays vindictiveness. The tone of the letter exhibits antagonism towards Mr A. He is the target of personal malice and in those circumstances we do not regard this letter as being written in good faith."
- The Tribunal's reasoning in the judgment and further reasons indicates the basis for its fact-sensitive finding. It is consistent with its other findings relating to the good faith and credibility of the Claimant. This was a permissible option for the Employment Tribunal and we see no reason to interfere with it.
- Although not strictly necessary in the light of our upholding the Tribunal's primary findings above, we will deal with the submissions relating to detriment, albeit briefly. The detriments identified by the Claimant are attendance at the CSU, as a result of a complaint to the Respondent and the GMC, failure by the Respondent to follow its whistleblowing policy and suspension. As for the first, the Tribunal make clear findings that his attendance at the CSU was unrelated to his complaint to the GMC. This was a finding of fact open to the Tribunal. Any grievance he felt would have been an unjustified sense of grievance and not therefore a detriment under the statute. The Claimant refused to attend the CSU which he had agreed to attend.
- The Tribunal directed itself as to PIDA disclosures in the following paragraphs:
"Detriment in relation to protective disclosures
74. Detriments under Section 47(b)(1) of the Employment Rights Act 1996 as are set out under the Amended Claimant's Schedule of Complaints. There is no statutory definition of detriment but we adopt as we are invited to do the approach taken by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) ICR 337, namely that "by reason the act or acts complained of a reasonable worker would or might take the view that he or she had been disadvantaged in the circumstances in which he or she had thereafter to work". We must bear in mind that "an unjustified sense of grievance" cannot amount to a detriment but we must consider the matter from a point of view of the complainant. If the complainant's view that the treatment he received amounts to a detriment was reasonable then that would be powerful evidence of it being sufficient to give rise to a detriment. If the treatment is or would be no different from other employees even if it is conceived to be caused by the act of making a protective disclosure would be powerful evidence of not being a detriment suffered.
75. We direct ourselves that in order for liability under Section 47(b) to be established from the act or deliberate failure to act by the employer, there is no detriment if treatment pre-dates any protected act. We accept Mr Korn's view that a protected act may result in a number of later detriments, but the later the detriment which is said to have been caused by a protected act the more difficult it is to establish. As a principle we think that causation linking one protected act and one detriment is not to prohibit later detrimental treatment. The tribunal must be satisfied that that a protected disclosure was made in the first place and that the claimant suffered a detriment as a result. We need to look at the evidence produced by both parties in establishing the causal link. Section 48(2) of the Act makes clear that proving the reason for the employee being subjected to a proven detriment rests with the employer."
- With respect to Mr Korn, these directions are correct. We reject his contention that the Tribunal confused "unreasonable behaviour" by a Respondent with the statutory test for there is no mention in the above paragraphs of such phrase. As many of the alleged detriments have fallen away on appeal leaving only four, one would think the principal sequel of the complaint to the GMC is the requirement that the Claimant attend the CSU. The short answer is that this claim raised in 2006 relates to matters in 2005 and is out of time as correctly found by the Tribunal. The reasons given by the Employment Tribunal, the response of the Respondent to the Claimant's impending return to work following his second period of suspension by inclusion of the CSU, and threats to him if he did not comply, are matters which could not objectively create a justified sense of grievance – he actually agreed to them in any event – and as a matter of causation it was not in the Employment Tribunal's view attributable to the GMC complaint. However, all of that is by the way since the complaint to the GMC was not as the Tribunal found and we uphold a protected disclosure.
- We then turn to the Claimant's contention that he suffered a detriment by reason of the failure of the Respondent to follow its whistleblowing policy. The simple answer as given by the Employment Tribunal is that it does not apply to disclosures made maliciously, dishonestly or unreasonably. Nor had the Claimant attempted to use it. The Tribunal's findings as to reasonable belief and good faith would therefore close the policy to the Claimant anyway.
- We then turn to the suspension of the Claimant on 26 July 2006 and continuing through regular reviews until his dismissal in March 2008 (actually for up to 14 August 2007 the date of the seventh claim).
- Insofar as there is a claim about the second suspension from 1 September 2004 to 10 August 2005 the reasons are completely different as the Tribunal made clear. The first suspension pre-dated the (unprotected) disclosure to the GMC since the reasons found by the Tribunal to be in the mind of the Respondent's officers - personal misconduct - are not in themselves challenged. The Tribunal found that others would have been treated in the same way. It was right to find that there was no detriment contrary to the statute. The Employment Tribunal adopted a shorthand approach to the decision making for detriment and causation set out in Nagarajan v London Regional Transport  ICR 877 which was to ask per Lord Nicholls at 886 E-F whether the protected act had a significant influence on the relevant decision. Lord Nicholls recognised that could be put in different language. The essential question is why was the act done. As was pointed out in [Vivian v Bournemouth Borough Council]() UKEAT/0254/10 per Slade J and members at paras. 82-85 and 91-94 it was important to identify the predominant motive. In any event, whether the correct test is predominant motive or the absence of any unlawful feature whatsoever, the Tribunal's findings are plain. As conceded by the Respondent the reason was connected to the disclosure to the Police but it was not protected under the statute.
- The sole issue on appeal relates to the exclusion by Dr Joels of the Claimant from the operating theatre on 16 February 2006. The only evidence before the Employment Tribunal about this came from the Claimant himself. The Tribunal did not make a finding under the Race Relations Act in relation to this complaint and Mr Wallington accepts that the further reasons give only a partial response. Thus he accepts the Tribunal erred in law in failing to make a finding on an issue in dispute between the parties necessary to be determined as part of the proceedings. Nevertheless, he contends that the judgment of the Tribunal would be clear and it is not proportionate to remit this matter to the Tribunal for determination. This is because the answer given by the Tribunal in relation to detriment under PIDA can be read across to detriment or disadvantage under the RRA. That finding is as follows:
"(v)(b)(iii) Dr Joels ordering Dr Korashi out of the operating theatre on 16 February 2006. Disagreements between professionals occur every day within their working practices. We have found Dr Korashi to be a volatile person. He is at best over-sensitive. We are not satisfied that this allegation would be anything more than an unjustified sense of grievance but in particular there is insufficient in our view to conclude that the action of Dr Joels was retaliatory."
- Subject to a successful perversity challenge below, that is a direct finding under PIDA provisions and dealing as it does with the essential factual issue of detriment which is the subject of the complaint under the RRA, it covers the same territory and must lead to the same result.
- The Tribunal was asked for further reasons and said this:
"9. We accepted the evidence given by Mr Evans that he had given a warning against victimisation to the consultants in the meeting of 11th August 2004. There is no written record at pages 2705/6 and 2707, but the clear impression given to the Panel by Mr Evans was that he was a careful witness, seeking to assist the Tribunal, and prepared to recognise his own failings. It is likely that he would have given a warning, just as Ms Stamp confirmed that she had discussed victimisation with Dr Joels, because it was a basic important issue. We did not conclude that there was any independent detriment, because it was the grievance procedure which was invoked by Dr Korashi, pursued by him, and responded to by the Trust. The only evidence regarding the allegation against Dr Joels was produced by Dr Korashi. At its highest, what was described by him amounted to very discourteous behaviour by Dr Joels. We did not think that it was a balanced complaint, because it was linked with a threat from Dr Korashi to go to the Police. It lacked credibility. He characterised the treatment as racist, but there was insufficient information for us to identify the allegations as being race specific. Dr Korashi did not directly link this matter to victimisation, which we found improbable, given that the protected act would have been over 2 years earlier."
- A similar question is answered at paragraph 10 of the further reasons simply by cross reference to the above. Several points can be noted. The Joels incident is prefaced by her being alerted to the possibility of victimisation claims by the Claimant. It accepts the Claimant's evidence at its highest. Nevertheless the Tribunal in its earlier findings was critical of the Claimant's reliability and credibility. The Tribunal had found that he was volatile and to find here that the complaint was not balanced was consistent. The finding in the original reasons is suffused by the Tribunal's view about relationships between professionals at the workplace, a view which the unique constitution of an Employment Tribunal entitles it to give. Further, the language of Dr Joels is held by the Tribunal not to be racist.
- We consider the Tribunal has given a decision under the statute that an unspecifically racist comment is not capable under Madarassy v Nomura International Ltd  ICR 867 CA to require the burden of proof to shift to the Respondent for an answer. The further reasons were given expressly in relation to a request under the RRA. Mr Korn has not identified any separate detriment capable of arising reasonably to the complainant as a result of the action of Dr Joels being categorised as an act of race discrimination rather than a response to a protected disclosure and so in practical terms the Tribunal would be bound to make the same decision under the RRA. If we are wrong about the reasons and further reasons together constituting a decision which can be inferred under the RRA, we would hold that the decision was unarguably right and it is not proportionate or just to send the matter back to the Tribunal.
- The second issue is whether the decision was perverse. This allegation fails to meet the high threshold required for success in such a complaint: see Yeboah above. As the Tribunal accepts, the evidence came from the Claimant and taking it at its highest the Tribunal was entitled to conclude the conduct of Dr Joels was no more than discourteous. As a matter of construction and context it was also entitled to conclude that it was not specifically racist. It is also important to note the conclusion of the Tribunal's findings on race discrimination as follows:
"114. Stepping back from the evidence it is not possible to discern a pattern in which Dr Korashi is the recipient of discriminatory treatment on the grounds of his race. He feels passionately that he has and has done so from the earliest date. We accept the concessions made by witnesses that on occasions they could have conducted matters better in retrospect but instances of inconsistency or unreasonableness do not amount to behaviour based on racial grounds."**Victimisation**
- The Tribunal directed itself in relation to section 2 of the Race Relations Act 1976 in the following way:
"115. Victimisation. The Claimant's case is that there has been a continuing campaign of victimisation. We have to consider the totality of the evidence apart from the individual cases of victimisation to which we are referred. We will need to consider whether or not there is evidence of a conscious or unconscious motive to victimise Dr Korashi.
116. The burden of proof under Section 54(a) does not apply in victimisation cases and the 'old' test applies.
117. Insofar as comparators are concerned we follow the authority of Shamoon and ask the question why did Dr Korashi receive the treatment that he complains about.
118. It is accepted that the bringing of the first Employment Tribunal claim and also the second claim amounts to a protected. We rely on the amended Schedule of Complaints which was directed as a form of amendment to the claims as identifying the protected acts. We agree with Mr Wallington when he says that "the Race Relations Act does not embrace the concept of victimisation for having been victimised and the fact that Dr Korashi's suspension was "as the Tribunal found" an act of victimisation cannot provide the basis for later acts to be treated as victimisation by a process of reference back. It seems to us that the statute is clear. What we have to look for is a protected act, less favourable treatment that others by reason that he had made the protected act. Victimisation requires conscious or unconscious motivation by the Respondent to treat the Claimant less favourably because of the protected act and we have to consider what was the motivation of those who were involved in the decision to suspend him in September 2004.
119. It is also important to bear in mind that the Claimant has to be subjected to detriment."
- In a victimisation claim it is not wrong for a Tribunal to focus on the issue of detriment: Derbyshire v St Helens MBC  ICR 841 at 66-69 per Lord Neuberger. It is also correct to draw a distinction between the making of a protected act and the manner in which it is done: see [Martin v Devonshires Solicitors]()  ICR 352 EAT at paras. 22-25. This distinction is particularly important where the manner reflects upon the management of the working environment: Vivian v Bournemouth Borough Council UKEAT/0254/10 at paras. 96-100. The reference to the Respondent's submissions in paragraph 118 above is an inelegant way of expressing the simple proposition that a previous act of victimisation cannot itself be a new protected act for the purpose of founding new claim of victimisation.
- The Tribunal was aware of the force of the finding of the second Employment Tribunal which was in favour of the Claimant. The lay member Mr Westwood sat on both. The Claimant failed in his claim of direct race discrimination but succeeded in proving that the suspension, his second suspension on 1 September 2004, was an unlawful act of victimisation for which he was awarded substantial compensation. The Tribunal expressly acknowledges that there were protected acts under the statute. What is clear is that the Tribunal was entitled to and did take account of the finding in favour of the Claimant of the second Employment Tribunal on victimisation when it considered the further claims of victimisation which were before it.
- The nature of the dispute in this case is that after the first Tribunal made its decision on 22 July 2004, letters were written by four consultants and a risk assessment made by Mr A. These were part of a chain which led to the Claimant's suspension on 1 September 2004. The Employment Tribunal said this:
"82. We deal now in accordance with the way in which the matter has been set out in the Claimant's amended schedule of complaints commencing with the detriments in claim 3 at page 179(b).
(i) The claimant was subjected to harassment and victimisation by his work colleagues, requesting his dismissal as set out in paragraphs 2, 9, 11 and 13 of claim no 3. (Including defamatory comments and spurious allegations of personal and professional misconduct.) This detriment is evidenced by the surgeon's hostility shown at the meeting of 11 April 2004 and 4 January 2005. The Claimant was expected to work in a hostile environment which Human Resources took no steps to control says Mr Korn. This by inference was because Dr Calvert and Mr Evans were sympathetic to their feelings. Turning to the pleaded detriments however, the first paragraph at no 10 at pages 12 and 13 pre-dates the protected disclosures and cannot be relied on as a detriment. The second involved the writing of the consultant's letter of a Risk Assessment prepared by Mr A. This did contribute to the decision to suspend Dr Korashi, as is admitted. We accept from Mr Evans his evidence that Dr Mattes' demand for the termination of Dr Korashi's employment was not acted on. This does not support an inference that there was a complete abdication of responsibility in the Trust dealing with the consultants. Not acting on Dr Matters suggestion is a clear indication that Human Resources in a very difficult process was deciding independently what was the best course. The evidence that has been heard points to the consultants being concerned about communication problems in the work place, the issue of spreading malicious gossip and the way that they had been questioned at the second Tribunal hearing involving allegations against them. The limited evidence of Mr Gasson on this point was that his concern was patients' safety. The matter was not explored further in respect of any other motivation. There is no evidence that Dr Mattehes or Dr Joels knew of the Claimant's allegations or that they formed part of the motivation for writing the letter that they did. Mr A, having been asked to write the Risk Assessment, did so on the basis of his concerns about Dr Korashi's behaviour. The allegations made against Mr A were not recent whereas Mr A's fears were current. We agree with Mr Wallington that the Claimant himself made no complaint of being the subject of an act of revenge or victimisation at the time or shortly after. We do not think that under the test we have identified that the predominant motive for Risk Assessment or letters were written by the authors to avenge themselves. The context of the documentation speaks for itself when there is no contrary documentation or evidence from cross-examination which undermines it."
- The matter is now refined on appeal to a challenge to the requirement for returning to work following his suspension he should attend the CSU, that the Respondent failed to apologise for the victimisation found to have occurred in the second tribunal claim and to take disciplinary action against Dr Calvert and Mr Evans and the exclusion by Dr Joels of the Claimant from the theatre on 16 February 2006. In respect of these complaints the Tribunal found the following:
**"Claims in case 3. page 179(e).**
120. (a)(i) Dr Korashi was subjected to harassment and victimisation by colleagues requesting his dismissal (including defamatory comments and spurious allegations of personal professional misconduct). We think that the thrust of the finding in favour of Dr Korashi in his successful victimisation claim was in relation to his unlawful suspension and it did not cover the letters which are the subject of this claim of victimisation. The letters themselves do not indicate any victimisation. Any scrutiny of them would indicate that the reason for them being sent whilst highly critical of Dr Korashi gives no hint of victimisation. We have to consider what is the protected act. It is clear that it is the bringing of ET proceedings. We are asked to conclude that the letters were written in reference to a protected act. There is no doubt that the authors were highly disgruntled but that is not a sufficient ground upon which we can infer that the letters were written in reference to a protected act rather than outrage at what they saw was wholly improper behaviour of various kinds inside and out of the Tribunal.
(a)(iii)(c) The Respondent's failure to acknowledge or apologise for the racial discrimination the Claimant had suffered by way of victimisation as upheld by the Employment Tribunal in claim no 2. or take disciplinary or any action against the perpetuators of that discrimination in accordance with the Respondent's Equal Opportunities and Disciplinary procedure. We agree with counsel that this matter has been dealt with at the Remedy Hearing. It has been considered earlier in this judgment. We are not satisfied that in any event that this would amount to a detriment. For the reasons already set out `the Trust were entitled, in the particular circumstances, not to take any disciplinary action and the failure on the part of the Respondents to do so against the wishes of Dr Korashi would not amount to a justifiable sense of grievance or that this failure, in particular, asks to draw the inference that the failure was in reference to the Tribunal proceedings. The decision had been taken by the Chief Executive. It was a corporate failing. This is the evidence of Geraint Evans given on oath in a public Hearing indicating to us that such a view is not going to be contradicted by Mrs Perrins even though she did not attend. We think that he was giving evidence about what was in the mind of Mrs Perrins, something of which he must have been informed.
(a)(v) The Respondent's failure to take the Claimant's complaints against Mr A seriously it failed to suspend Mr A and retaliatory action against the Claimant by Dr Calvert who reported the Claimant to the Clinical Assessment Authority and Mr A who suspended the Claimant from work and Dr Joel excluded the Claimant from the theatre. The Tribunal has made findings of fact in respect of the failure to take the complaint seriously. There is no evidence that the Trust would not suspend a consultant the subject of clinical concerns because the complainer had brought proceedings as a protected act. It would have suspended the consultant if a complainer had been someone who had not brought such proceedings if justified on the grounds.
122. (c)(viiii) and (x) The Trust's failure to acknowledge or apologise for the victimisation of Dr Korashi or to take disciplinary action against those responsible. The Tribunal has made its findings on these matters but additionally find that it could not amount to a pattern to the decision not to discipline or to apologise had been made. It was a single act."
- Both the CSU and the apology point are the subject of detailed findings by the Tribunal as to jurisdiction i.e. they were out of time and further the Tribunal found that the CSU requirement was not a detriment.
- We note the submission of Mr Korn, based upon what the Court of Appeal said in dismissing the Claimant's appeal against the issuing of the further reasons, that we should be alert to any after the event rationalisation by the Tribunal of its earlier decision. It is clear now that the consultants were aggrieved by the way in which the Claimant conducted the first Tribunal hearing. The instant Tribunal found that the consultants were motivated by concern for patients and in response to a breakdown in communications with the Claimant, coupled with the general finding above that the witnesses were candid. It said that their action was not because of the Claimant's protected act. It is now tolerably clear from the further reasons that the Tribunal did connect the consultants' letters to the first Tribunal proceedings, but it was entitled to draw the distinction in Martin v Devonshires between the making of the complaint and the way it was prosecuted in the Tribunal. The Tribunal's depiction of the Claimant's conduct there is not disputed.
- As to the findings in relation to the CSU, these prey upon the findings earlier made and in our view are unimpeachable. The Claimant was treated no differently in relation to the CSU from a person in his position who had not made a complaint. In any event this too is subject to the jurisdiction point that the claim was made out of time.
- As to the failures to provide an apology or to discipline the practitioners, the Tribunal took the view that these were not detriments. In any event it was a single one-off act. Evidence was produced before the second Tribunal of a conscious decision made by the Respondent not to make an apology. That decision had continuing consequences in that there never was an apology but it was a decision made once and for all and reported to the second Tribunal. The Tribunal in its remedy hearing awarded compensation knowing that there was no apology. The same can be inferred of the discipline point.
- The complaint about Dr Joels is subject to the same conclusion as we have made above. The finding as to the candour of the live witnesses before the Tribunal is capable of extending to the written material of Dr Joels. That was a matter of weight for the Employment Tribunal.
- Some of these have fallen away. The Respondent no longer relies on its argument that it was an abuse of process for the Claimant to raise certain complaints in this case which could have been raised earlier. It is not disputed that the claim about Dr Joels of discrimination and victimisation were in time and the Employment Tribunal so found. The Employment Tribunal had no jurisdiction to hear a claim of PIDA detriment as a statutory grievance under Employment Act 2002 s 32 had not been raised.
- We accept the submissions of the Respondent that the Tribunal was correct in upholding its submissions in relation to time points about the consultants' letters written in 2004, disclosed in 2005. The claim was presented in June 2006. The Tribunal's decision on this matter was a question of fact for it and there is no challenge to its decision not to exercise discretion in favour of extending time. Any appeal against these findings is hopeless following Chief Constable of Lincolnshire v Caston  IRLR 327 per Longmore LJ
- Complaints about the CSU and the absence of an apology were correctly dismissed by the Employment Tribunal and so time points did not arise. But if the appeal succeeds on these, the Employment Tribunal would need on remission to address the point. In the light of its other time point findings it seems to us it would be most unlikely to decide otherwise.
- As to the PIDA complaints of detriments occurring before 31 December 2005, the Employment Tribunal was clearly correct to dismiss them Indeed it might have been more expeditious for it, and for us, to decide that point at the outset since it is fatal. Time runs from the act of detriment complained of, not from the date of a protected disclosure: Vivian (above) paras 77-81.
- Mr Korn relies upon his written submissions in respect of the surviving jurisdictional points and so does Mr Wallington. In short, consistent with their realistic approach, we accept the written submissions of Mr Wallington because they are correct. The Tribunal had in mind the chronology in the presentation of claims and there is no appeal against its refusal to exercise discretion beyond the initial three month period. The Tribunal did not err in depicting various acts as one-off and not as continuing. Insofar as the Tribunal may be held elsewhere to have erred in law and but for the jurisdictional points the Claimant would have succeeded, the Tribunal's findings on jurisdiction cannot be challenged.
- We now express the conclusion that the Employment Tribunal's reasons and further reasons, save for those parts we have mentioned and which are not necessary to its decision, are compliant with Meek, Greenwood and Employment Tribunal Rule 30. It had an exceptionally difficult task which it discharged with care and thoroughness. The reasons challenge, made as here with a limited perversity challenge, is dismissed.
- An application was made by the Claimant for the admission of new evidence. Judge Clark who was dealing with procedural matters following the preliminary hearing gave directions. The Claimant did not consent to the matter being dealt with by him on the papers and so he ordered the matter be dealt with at the outset of the full hearing. Both counsel however agreed that our appreciation of the application would be better informed once the Claimant had opened the appeal and so we heard both counsel at the end of the Claimant's submissions, and before the Respondent's, on the substantive appeal. At that stage, the Claimant's case was at its highest. We refused the application reserving reasons.
- PD 8.2 sets out the correct approach of the EAT:
"8.2 In exercising its discretion to admit any fresh evidence or new document, the EAT will apply the principles set out in Ladd v Marshall  1 WLR 1489, having regard to the overriding objective, i.e.
8.2.1 the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing;
8.2.2 it is relevant and would probably have had an important influence on the hearing;
8.2.3 it is apparently credible.
Accordingly the evidence and representations in support of the application must address these principles."
- This direction is of course subject to PD 1.4 which contains the overriding objective set out in EAT Rule 2A. The case must be dealt with in a way which is proportionate to the importance and complexity of the issue. The EAT will where it is appropriate to its jurisdiction and procedure be guided by the CPR (see PD 1.8). There has been a slight liberalisation of the Ladd v Marshall test. The Court of Appeal said in Sharab v Al-Saud  EWCA Civ 353 at para. 52:
"The court must of course seek to give effect to the overriding objective of doing justice but in that respect the pre-CPR cases, including Ladd v Marshall, remain of relevance and indeed of powerful persuasive authority."
- Giving guidance, while expressly not deciding the point in [Adegbuji v Meteor Parking Ltd]() UKEATPA/1570/09, Underhill P said the following:
"7. I should start by making this observation, though it will not be the basis on which I decide the case. In my judgment the right course for a party who seeks to have a decision of an employment tribunal overturned on the basis of fresh evidence will almost always be to apply to the original Tribunal for a review under rules 34 to 36 of the Employment Tribunal Rules of Procedure, relying on rule 34(3)(d). This Tribunal only has jurisdiction to correct errors of law on the part of an employment tribunal: see section 21(1) of the Employment Tribunals Act 1996. As at present advised, I find it hard to see how an employment tribunal which decides a case properly on the evidence before it can be said to have made an error of law simply because evidence is subsequently produced which suggests that its decision was wrong. (Any analogy with fresh evidence appeals in the Court of Appeal on appeals from the High Court seems to me flawed, because the Court of Appeal has in principle jurisdiction to entertain an appeal on an issue of fact: also, there is no review procedure available in the High Court.) This appears however to be a novel point, and I have not however heard argument on it. I am accordingly prepared to assume for present purposes that this Tribunal has jurisdiction to entertain fresh evidence appeals, while flagging it up as a point which may need to be decided on a future occasion. (In some circumstances, where a new evidence point is only part of an appeal also proceeding on other grounds, section 35 of the 1996 Act may give this Tribunal the relevant jurisdiction.) However, even on that basis, the review procedure of the employment tribunal will normally be much more appropriate for deciding a fresh evidence issue. The employment tribunal will normally be better placed to decide at least the second and third questions arising under Ladd v Marshall  1 WLR 1489 - that is, whether the evidence in question would probably have had an important influence on the outcome of the case and whether it is apparently credible. Time limits in the employment tribunal are rather tighter for an application for a review than they are for an appeal to this Tribunal, but there is power to extend time in both cases and in truth, in a genuine fresh evidence case, the tribunal will generally be disposed to grant an extension because if the evidence could genuinely not have been obtained earlier it would not normally be just to refuse it.
8. For those reasons, it is already very common for fresh evidence appeals to be stayed pending a review application made, or to be made, in the employment tribunal."
- That reflected a decision which I had made after full argument in Secretary of State for Health v Rance  IRLR 665 at paragraph 33:
"It is often useful where a party seeks to introduce new evidence, for this matter to be put first to the Employment Tribunal. The questions which arise on appeal are questions of law. Those which arise on a review are much broader. They are the five grounds set out in rule 34(3). They may or may not lead to a question of law. The interests of justice is a very wide category. The grounds for adducing new evidence are less circumscribed than those for new evidence to be allowed in the EAT. This is regulated by para. 8 of the Practice Direction which additionally requires the evidence to be apparently credible and likely to have an important influence on the hearing…..
34. As the Practice Direction makes clear, it is important for case management at the EAT for it to be known whether or not an application has been made for a review, for Notices of Appeal are often stayed pending the outcome of such applications."
"Appeals from the employment tribunal are limited to questions of law. Questions of fresh evidence falling within regulation 11(1)(d) would normally be dealt with more appropriately by an application for a review to the chairman of the tribunal responsible for the original decision reached without that fresh evidence."
- In [Aslam v Barclays Capital]() UKEAT/0405/10 HHJ Richardson, admitting new evidence on appeal and setting aside the judgment below said:
"38. These authorities indeed represent the usual practice of the Appeal Tribunal. As a general rule where there is an application to adduce further evidence an appeal will be stayed, usually at the sift stage, to enable the Tribunal to consider review. This is generally appropriate because an appeal lies only on a question of law; fresh evidence generally relates only to questions of fact; and is therefore best determined by the Tribunal.
39. However, the admission of further evidence may be relevant on appeal to a question of law. It may, for example, give rise to a question of the fairness of the hearing process at Tribunal level. It is part of the task of the Appeal Tribunal to ensure that a hearing at the Tribunal below was a fair hearing, meeting the requirements of the common law and of article 6 of the European Convention on Human Rights both of which guarantee a fair hearing.
40. Generally speaking the mere fact that fresh evidence has come to light will not imperil the fairness of the proceedings. Employment Tribunal procedure, including the power to grant a review, will be able to encompass most circumstances in which fresh evidence has come to light and to deal with any fresh evidence in a way which is both fair and proportionate. Occasionally, however, this will not be possible. Then the Appeal Tribunal must intervene."
- I made similar observations to the President's and applied his observation in Meteor in [Arrowsmith v Nottingham Trent University]() UKEATPA/1708/09, a case where it was not necessary to decide the point. Nevertheless, nothing was said about this by the Court of Appeal which refused permission to appeal against my judgment.
- The point now calls for decision since Mr Wallington contends the application should have been made to the Employment Tribunal and Mr Korn contends the EAT is the proper venue. While it is in the Practice Direction, and was a direction in this appeal, it would be wrong to rule against the Claimant simply because he did not go first to the Employment Tribunal with this material. It might also be said that applying Aslam since the Employment Tribunal had made findings on credibility a review would be inapt.
- There is a restricted window to make applications for review to an Employment Tribunal (14 days) but the logical conclusion of a right to make an application based on new evidence is that it can be made at any time, whereas applications based on the interests of justice arising out of some mishap at the Tribunal will become known at the time or within 14 days thereafter. A preliminary consideration of an application for review is given by the Employment Judge who heard the case and unless he or she forms the view that one of the sub rules is not complied with or there are no reasonable prospects of success the review must be conducted, see rule 35(3) and 36(1).
- The material sought to be adduced consists of extracts from evidence given by Mr Calvert, DI Hughes and Professor Shepherd at a hearing before the GMC's Fitness to Practice Panel (Misconduct) which began on 18 November 2009 and lasted for some 10 days. It led to a determination of charges made under what is known as rule 7. The allegations were made against the Claimant. It is important to distinguish between the determination and the material sought to be adduced. The application is clear and concise. It relates simply to extracts of those three named witnesses. There are references to the determination itself, and the Respondent did at one stage regard the application as including an application to rely on the determination itself. As to that, the Claimant contends that it is a matter of public record and can be adduced. Nevertheless, in its final formulation in the written skeleton argument by Mr Korn before us, the determination is expressed simply by way of background to the application to adduce the above extracts of evidence. We take the view that the determination in itself is not properly before us. In all of the written utterances, the determination is secondary. The extracts from evidence of certain of the witnesses before the GMC is relevant to the application.
- If we are wrong about the interpretation of the application, and the determination itself is before us, we accept the submission of Mr Wallington. This was a hearing before the GMC. It is an entirely different forum from the Employment Tribunal. The parties were different. The Claimant was the respondent. Most important, the Respondent to our proceedings was not a party to the proceedings at the GMC. . The determination of the GMC does not lead in a bright line to the conclusions of the Employment Tribunal. The Claimant gave evidence before both. Each body was charged was different functions, the GMC we think discharging quasi-judicial duties, heard different evidence and came to different conclusions. That is not surprising.
- Lest there be any doubt, we do not accept the simplistic explanation of the findings of the GMC advanced by Mr Korn as vitiating the findings by the Employment Tribunal as to reasonable belief. The Claimant was found by the GMC to have misconducted himself in the lodging of very serious allegations without substantial evidence of sufficient quality or detail to support them and by breaching the fundamental principle of patient confidentiality. The GMC found that such could not be justified by what it accepted to be legitimate concerns as to patient safety or absence of malice. The GMC further found that the Claimant's clinical competence was not in question. The GMC decided that much of the formal complaint against the Claimant was upheld and imposed an immediate order on the Claimant that pursuant to his registration conditions he be subject to a necessary period of 12 months during which conditions must be met. We consider it essential if this matter is to be taken further that the full findings by the GMC we have examined be considered.
- So, as a matter of construction, the Claimant does not rely upon the determination itself for the purpose of advancing his case that new evidence should be considered by the EAT. The new evidence as we determine it to be is the selected extracts from three witnesses who appeared at the GMC.
- The parties agree that this case is to be decided on the lines of Ladd v Marshall as affected by the authorities cited above. There is no dispute as to its credibility. So the issues are whether the material is really new, whether the Claimant could with due diligence have adduced this evidence and whether it would have an important impact on the Employment Tribunal's decision. Undoubtedly the determination itself is wholly new, but that is not true of the extracts of evidence. We will take each piece of evidence separately and then stand back and deal with them holistically.
- It is contended on behalf of the Claimant that the evidence of DI Hughes put in doubt the account which he had given in writing to the Employment Tribunal. In short it is the difference between whether the Claimant alleged that Mr A did by gross negligence or under qualification cause the deaths of four persons or alternatively may have. The Claimant gave his account at the Employment Tribunal of the meeting with DI Hughes on 31 May 2006. It had the written notes of DI Hughes. He was not called on behalf of the Claimant. There was a substantial adjournment. Other witnesses not previously warned were called. The Tribunal made its decision essentially on the basis of the evidence given to it by the Claimant as to what he told DI Hughes. We do not regard it as significant that the account may have been that Mr A was or may have been responsible for the deaths. The simple point about DI Hughes' evidence is a matter of construction. The Claimant does not see the wood for the trees: he was making an allegation as to the professional competence of Mr A and as to his involvement in the deaths of four patients. DI Hughes could have been called. We agree with the Respondent that it is unworthy to suggest that had DI Hughes been called by the Claimant whether by invitation or by summons, he would have been hostile to the Claimant. His evidence passes neither the due diligence nor the important influence tests.
- It follows that the evidence could have been brought before the Employment Tribunal with due diligence and that such evidence as there appears from DI Hughes at the GMC, would not have made any difference to the decision.
- This essentially relates to the competence of Mr A. The Claimant accepts that the same evidence was given by Mr Calvert to the Employment Tribunal and to the GMC. The Claimant contends that the evidence at the GMC was given "with a degree of candour and clarity which was sadly lacking before the Employment Tribunal". The Employment Tribunal found his evidence was given without any lack of candour. This allegation must fail in the light of that clear finding. This it seems to us is an acceptance by the Claimant that Mr Calvert gave the same evidence before the GMC and the Employment Tribunal but what differed was weight, clarity, candour, tone and so on. This is not on its true construction new evidence. There is no fresh evidence in this point. Mr Calvert was available to the Claimant so he could be cross examined on any matter, the Employment Tribunal paying tribute to Mr Korn's exacting cross-examination of him (para 72). Mr Calvert's evidence is not new and passes neither the important influence nor the due diligence test.
- The Claimant was happy for certain parts of Professor Shepherd's opinion as to Mr A to be included viz his letter of 18 April 2007. The Tribunal noted that the evidence of Professor Shepherd being read was objected to by the Claimant but his opinion by letter was not. We consider that the evidence of Professor Shepherd is not new and passes neither the due diligence nor significant influence test. The Tribunal had in front of it the opinion, arguably in favour of the Claimant, of Professor Shepherd to which he did not object.
- This case presents a unique opportunity to consider the rules for admission of new evidence at the EAT. We have read not only the extracts of the GMC but on the invitation of the Respondent the whole of the material. We have also taken account of the determination which is not as the Claimant contends in his favour but redounds to his disadvantage in the full finding of GMC. We have heard the whole of the Claimant's case on appeal. Although the Claimant gave evidence before the GMC, his evidence before the Employment Tribunal was given over 10 days. Eighteen months passed between the evidence which is relied upon before the GMC and the hearing of the appeal. In a case lasting 40 days with thousands of pages of documents and many witnesses, we are diffident about intervening to allow an appeal on the basis of new evidence. It requires a value judgment by us as to the impact of such evidence on the Employment Tribunal which listened to much more material. If we were to allow the admission of the GMC determination, itself made without the advantage of hearing all the relevant issues before the Employment Tribunal on the PIDA claims and the evidence of the Claimant, do we thing the scales would fall from its eyes? Further, Mr Calvert was cross examined; material from Professor Shepherd and in part relied on by the Claimant was adduced; the material in respect of DI Hughes was plainly exposed during the Claimant's cross examination and therefore the Claimant could have called DI Hughes to support his case.
- On the first point in Ladd v Marshall we hold that this material could with due diligence have been adduced before the Employment Tribunal. As to the second point, we hold that this could not have had a significant impact on the Employment Tribunal. But more important, we consider that such judgment ought not to be made by the EAT. It is asking the EAT to come in from the outside to form a judgment on a very narrow aspect of evidence presented to us in writing and with written submissions and orally, material which as we have held was available to the Employment Tribunal and some of it was before the Employment Tribunal. We would be usurping the function of this tripartite industrial jury if we were to say as against its findings that the current material would have so influenced its findings as to set them aside and cause a new hearing. The Employment Tribunal is the adjudicator of the facts, and on any application to the EAT to adduce new evidence it must express considerable diffidence if it were to form the view that on material not before the Employment Tribunal its impact would be so significant as to set aside its judgment formed at an appreciation of the witnesses over 40 days including that of the Claimant.
- In our judgment, the selected extracts from the evidence of DI Hughes, Dr Calvert and Professor Shepherd is not new and meets neither of the tests in Ladd v Marshall.
- We accept Mr Wallington's submission that this application should if at all have been made to the Employment Tribunal which is in a far better position than the EAT to judge these matters. Albeit the Practice Direction allows such applications to be made, we consider that in the future these must be sparingly granted and the EAT will always look to see if an application has been made to the Employment Tribunal and its response, and will stay proceedings in the EAT until the outcome of any such application. The Claimant in this case had an opportunity in December 2009 to make such an application and declined to do so. Such application can be made in tandem with a Notice of Appeal, a Notice of Appeal was outstanding in this case, and yet no application was made to the Employment Tribunal. In short, we would not regard it as a function of the EAT to form a view about what evidence might have a significant impact on an Employment Tribunal which has seen and heard the witnesses unless the new evidence is overwhelming and points to only one conclusion. This is not that case.
- Before this reserved judgment, all counsel asked for permission to appeal in the event that any part of it went against them. The grounds on which any permission is sought by the Claimant should be set out in writing in 14 days and should bear in mind that we would not be minded to grant permission to appeal in respect of any question of law unless it was finally dispositive of the claim, so that permission will not be given for an attack on subsidiary conditions for liability unless there is a reasonable prospect of success on a primary condition. The Respondent may reply in writing 14 days later. **
- We are particularly grateful to all three counsel and their solicitors for their industry and the preparation of the case. We acknowledge with thanks the work counsel did in proof-reading the judgment and making proper suggestions, always a difficult exercise to perform with tact and good grace.
- The application for new evidence is refused and the appeal is dismissed.
Published: 16/09/2011 16:35