Royal Cornwall Hospitals NHS Trust v Watkinson UKEAT/0378/10/DM
Appeal against a decision by the ET that the claimant had been unfairly dismissed as a result of his having made a protected disclosure. Appeal dismissed.
The claimant was the Chief Executive of the respondent when the issue of changing the provision of cancer services in the region was up for discussion. The claimant was strongly in favour of a rigorous consultation process involving interested parties before a final decision was made. The SHA, which supervised the activities of the respondent, believed that a less rigorous approach was sufficient. The SHA heard that the claimant had obtained opinion from counsel that the respondent and the PCT would be acting unlawfully if they did not consult on the proposed changes. This information was described as 'a severe irritant' to the SHA. The claimant was subsequently suspended and was eventually dismissed just before a meeting which, if the claimant had not been dismissed, he would have attended and reiterated the advice that to proceed without consultation was illegal and that would be an obstacle to the wish of the SHA to transfer the service. The Employment Tribunal held that he was dismissed as a result of pressure applied by the SHA to the respondent as a result of his disclosure. The respondent appealed.
The EAT dismissed the appeal for 3 main reasons: i) the disclosure made by the claimant was a protected disclosure within the meaning of s43B(1)(b) of the ERA and it complied with the requirements of that provision in that the respondent and the PCT would be likely to fail to comply with their legal obligations if they did not consult on the changes; ii) there was clear evidence that the SHA had applied pressure on the respondent to dismiss the claimant; iii) the ET had reached the decisions open to them and for which they had given full and adequate reasons.
Appeal No. UKEAT/0378/10/DM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 9 & 10 March 2011
Judgment handed down on 17 August 2011
THE HONOURABLE MR JUSTICE SILBER, MR R LYONS, MISS S M WILSON CBE
ROYAL CORNWALL HOSPITALS NHS TRUST (APPELLANT)
MR J WATKINSON (RESPONDENT)
Transcript of Proceedings
For the Appellant
MR SIMON DEVONSHIRE (One of Her Majesty's Counsel)
Messrs Bevan Brittan LLP
1, Queen Street
For the Respondent
MISS JANE McCAFFERTY (of Counsel)
Messrs Edwin Coe LLP Solicitors
2 Stone Buildings
The Claimant was employed as Chief Executive of the Respondent with effect from 1 January 2007. A major issue was whether Upper GI services, which were then provided at Derriford, which was near Plymouth and Treliske, should thereafter be based solely at Derriford. The controversy was whether there was a need for consultation (which entailed disclosure of proposed changes coupled with provision of sufficient information which would enable interested parties to express their views before a final decision was taken) or public engagement (which was a less rigorous process and which entailed conveying information to the public of a decision which had been taken).
The Claimant was strongly in favour of the need for consultation for this change. The South West Strategic Health Authority ("SHA") supervised the activities of the Respondent and its Chief Executive and Chair believed that consultation was not necessary.
In August 2008 the Claimant informed the Board of the Respondent that an opinion had been obtained from counsel stating that the Respondent and the Primary Care Trust ("PCT") would be acting unlawfully if they did not consult on the proposed changes. This information came to the attention of the SHA for which it was "a severe irritant".
The Claimant was subsequently suspended and was eventually dismissed just before a meeting which, if the Claimant had not been dismissed, he would have attended and reiterated the advice that to proceed without consultation was illegal and that would be an obstacle to the wish of the SHA to transfer the service.
The Employment Tribunal held that he was dismissed as a result of pressure applied by the SHA to the Respondent as a result of the August disclosure.
The Respondent appealed.
The appeal was dismissed because:-
(a) The August disclosure was a "protected disclosure" within the meaning of section 43B(1)(b) of the ERA and it complied with the requirements of that provision as the Claimant's disclosure of counsel's advice showed that the Respondent and the PCT would be likely to fail to comply with their legal obligations if they did not consult on the changes;
(b) There was clear evidence from which the Tribunal could infer that the SHA applied pressure on the Respondent to dismiss the Claimant for the August disclosure especially as the Tribunal found that the Respondent's reason for dismissing the Claimant, namely the breakdown of trust and confidence, was not established and the SHA had a clear motive for having the Claimant dismissed when it did and it supervised the Respondent; and
(c) The Tribunal reached decisions open to them and for which they gave full and adequate reasons.**THE HONOURABLE MR JUSTICE SILBER****Introduction**
- By a decision of the Employment Tribunal dated 4 May 2010, it was decided after a hearing lasting thirteen days that:-
(a) Mr John Watkinson ("the Claimant") had been unfairly dismissed by the Royal Cornwall Hospitals NHS Trust ("the Respondent") as a result of his having made a protected disclosure on 5 August 2008 ("the August Disclosure") and that the dismissal was automatically unfair;
(b) The dismissal was procedurally and substantively unfair;
(c) The Claimant was not subjected to a detriment as a result of having made a protected disclosure on 30 September 2008; and
(d) The claim was adjourned for further consideration of remedies.
- The Respondent now appeals against finding (a). The main issues raised on this appeal relate to first, whether the Claimant on the facts of this case was entitled to take advantage of the whistle-blowing provisions; second, whether the findings of the Employment Tribunal are defective. Regrettably the handing down of this judgment has at the request of counsel been delayed pending the handing down of the decision of the Court of Appeal in [HM Land Registry v Grant]()  EWCA Civ 769, which occurred on 1 July 2011 as this was correctly considered to have great significance on an issue raised by the Respondent. After judgment was handed down we received further skeleton arguments from counsel.
- In order to understand the appeal, it is necessary to explain that the Claimant's case on the protected August disclosure was that his dismissal by the Respondent was a result of pressure from the South West Strategic Health Authority ("SHA") and in particular its Chief Executive, Sir Ian Carruthers. The disclosure relied on by the Claimant was first that the Respondent was under a duty to undertake public consultation with regard to the reconfiguration of services for patients suffering from upper gastro-intestinal cancer ("Upper GI") and second that any failure by the Respondent to do so would be wrongful and illegal. The Claimant considered that the Respondent was likely to fail to agree to a public consultation. The case for the Claimant is that by advising the Respondent of its duty to consult, he was acting contrary to the wishes and intentions of the SHA with the consequence that pressure was applied on the Respondent by the SHA to dismiss the Claimant and indeed he was duly sacked. The Claimant also contended that the dismissal was unfair on ordinary principles because of a failure by the Respondent to follow a fair procedure. In the light of the main issues raised by the Claimant, it is now appropriate to explain the findings of the Employment Tribunal.
(i) The role of different entities and the proposed re-configuration of Upper GI services
- The Respondent is the NHS Trust, which has responsibility for the delivery of health services in Cornwall where it operates several hospitals including Treliske Hospital at Truro, which is where the Claimant was based.
- The Respondent together with another 39 NHS Trusts in the South West of England has its activities supervised and overviewed by the SHA, which is based in Taunton. At the relevant times, the Chief Executive and Chair of the SHA were Sir Ian Carruthers and Sir Michael Pitt respectively. The SHA requires to be assured that the Trusts are operating efficiently and within budget. The SHA's concern for a Trust such as the Respondent was not limited to financial performance, but it also included being concerned with the sufficiency and quality of the services, which it provides to the public.
- Another entity involved in the developments leading to the Claimant's dismissal is the Health Care Commission ("HCC"), which is an independent body set up to monitor the performance of NHS trusts according to a number of standards operating in relation to particular areas. The HHC can carry out inspections of some or all its standards.
- The background to this case concerns the provision of cancer treatment including surgery for patients suffering from Upper GI, which is a rare form of cancer requiring specialist surgical and other treatment and the Respondent provided these services until January 2010. In 2001, a guidance document ("IOG") aimed at improving the outcome and guidance for cancer patients was issued by the Department of Health. It set out guidance for the outcomes, treatment and survival rates for patients who had been suffering from cancer. In respect of Upper GI, there are higher rates of survival and less prospect of infection and other post-operative complications if such services are concentrated in hospitals serving a population of more than a million people. Statistically this population size apparently offers the prospect of a sufficiently high number of cases to enable surgeons and other health care professionals to be able to develop the necessary level of expertise and experience so as to improve the outcome for patients. Provision of such services in an IOG-compliant centre would offer the prospect of 50 or so cases a year so as to enable the development and maintenance of the appropriate level of expertise.
- Upper GI services were provided at Treliske, but the number of patients using those services was normally about 25 a year and this was not regarded as sufficient for the Respondent to be compliant with the IOG. In 2002, the Peninsula Cancer Network ("PCN"), which was an NHS Advocacy Group set up to provide advice on cancer cure in the South-West Peninsular, produced a plan for the reorganisation of Upper GI services. This meant that the services which had been provided at the Royal Devon and Exeter Hospital Foundation Trust, Derriford which is near Plymouth, as well as Treliske would thereafter be based solely at Derriford, which would then become a centre of excellence and would be IOG-compliant. Treliske would thereafter be used for other aspects of the service such diagnostics, radiotherapy and follow-up services.
- The proposal attracted widespread public concern and it was subject to much public debate and consideration by patient groups, cancer support groups and others in the public domain for two reasons. First, there was an issue as to whether or not the clinical evidence supported the proposition that a transfer to Derriford would be IOG-compliant and that it would achieve better outcomes for patients. Second, there was the social concern as to the difficulties which would be experienced by patients having to travel from Cornwall and in some cases a substantial distance from the far west of Cornwall to Plymouth, rather than being treated more locally at Treliske as happened at the time.
- It is not disputed that there was a duty to consult with "interested parties and stakeholders" about the proposed changes to issues arising under s.242 of the National Health Services Act 2002 which applies to all NHS Trusts such as the Respondent, as well as to the Cornwall and Isles of Scilly Primary Care NHS Trust ("PCT"). A dispute as to whether there was a need for consultation forms the background to this claim.
(ii) The Claimant
- The Claimant commenced service as the Chief Executive Officer of Bromley Hospitals NHS Trust ("Bromley") in May 2003 and he remained in that post until 31 December 2006, when he left to take up his post as Chief Executive of the Respondent on the following day. To understand some subsequent developments, it is necessary to explain that during the Claimant's appointment at Bromley, it had experienced a number of difficulties including a substantial financial deficit, which extended over a period of years.
- When the Claimant commenced his appointment with the Respondent, it was in a poor state as it had been assessed in 2006 to be the worst performing NHS Trust Hospital in England and it also had financial difficulties. On account of its financial problems, a number of non-executive directors resigned including the Chairman, Mr Martin Watts, who resigned on 30 April 2007 explaining in his letter of resignation that he regarded the appointment of the Claimant as being a very serious mistake.
- The Employment Tribunal found that the financial position of the Respondent had improved by July 2008 as a result of much hard work on the part of the Claimant, as well as of the other executive and non-executive directors. The Trust had been subjected to inspection by the NHS Performance Standards Team and in November 2007, it reported that the Respondent had made progress in key areas although there still remained much to be achieved. It also commented favourably on the leadership of the Claimant, the Chairman and the Executive team.
(iii) The attitude of the Respondent towards consultation relating to the proposed re-organisation
- Turning to the developments in relation to the PCN plan to reorganise Upper GI services, the Respondent initially supported the proposal subject to the necessary clinical evidence being made available to justify the transfer of surgery to Derriford. In December 2007, however the Respondent's Medical Director wrote that the matter was to be discussed by the Respondent's Board in January 2008, but that pending that discussion, patients scheduled for Upper GI surgery would have their treatment in Truro. In the letter, it was stated that there were concerns about the loss of specialist surgical skills from the Respondent. On 20 December 2007, the Chief Executive of the PCT confirmed to the Claimant that the PCT supported the PCN plan. In January 2008, the Respondent's board discussed the proposed move of Upper GI services and then it decided that they needed six months to consult the clinical staff and to carry out the review.
- On 8 February 2008, Mr Peter Davies, who was the Chairman of the Respondent from May 2007 until his resignation on 10 July 2008, had a discussion with Sir Ian Carruthers who said first that he was unhappy that the Claimant was not taking the Respondent's down the right path regarding Upper GI and second that the Claimant was "a bullshitter", who promised, but who did not deliver.
- The Respondent's Board met on a regular monthly basis with members being supplied with an agenda in good time before the meeting together with the minutes of the previous meeting. They also received background papers. The matters to be discussed fell into two parts with Part One business, being public and open, and which was discussed in public. Part Two business was confidential and so it was discussed in the absence of the press and the public, but in both cases, the discussions were minuted. Part One minutes would routinely be copied to SHA, to the PCT, to the Health and Adult Care Overview Scrutiny Committee ("OSC"), which was a committee of Cornwall Council discharging obligations to scrutinise local health services and to other organisations. There was a dispute as to which parties received the Part Two minutes but the Employment Tribunal preferred the evidence of the Claimant and it found that on the balance of probabilities, the Part Two minutes were sent to the SHA on a routine basis.
- Upper GI services were discussed at a joint meeting between the Respondent's Board and the PCT Board on 10 March 2008. Ms Anne James the Chief Executive of the PCT made it clear that the planned changes should be implemented, since the service as a whole was working outside the Guidance and it was not IOG-Compliant. The Employment Tribunal inferred from the minutes that the PCT was willing to proceed without consultation or public engagement. Ms James' position was that unless the OSC directed that public consultation should take place, that would not occur and that had been the PCT's position since late 2007. The Employment Tribunal explained that Ms James had drawn a distinction between consultation and public engagement with consultation denoting the disclosure of a proposed change or course of action before a final decision had been made coupled with the provision of sufficient information and time so as to enable interested parties to consider and to present their views, which could then be taken into account before a final decision was made. By way of contrast, public engagement was a less rigorous process involving conveying information to the public of the decision that had been made together with the discussion of the implications and how it would be implemented.
- At this time, the issue of Upper GI was the subject of much public comment with strong views being expressed by a number of patient groups and campaigners. On 25 March 2008, the OSC met and agreed that the implementation of the plan could be deferred whilst there be a period of public engagement and this decision was reported to the Respondent's Board.
- On 31 March 2008, Mr Peter Davis the Chairman of the Respondent wrote to Sir Ian Carruthers prior to a meeting of the Chief Executives on the following day, making the points first that the view of the Respondent was that public consultation was important and second that this view had been formed by the Respondent on the basis of representations from consultants to the effect that it would be wrong to proceed without public consultation. Mr Davis was concerned that although a scheduled meeting had been due to take place with the SHA to discuss the way forward, such a meeting had never taken place and he was concerned to learn from the PCT that the service was to be transferred to Derriford on 1 February 2008. The Respondent had non-executive directors, who on the basis of evidence then presented to them, were not convinced of the clinical case for the transfer but it had been agreed that the matter would be deferred to allow further evidence to be taken and for public consultation to take place.
- On 1 April 2008, a meeting took place at the SHA's office at Taunton, which was attended by Ms James of the PCT, Sir Ian Carruthers, the Claimant and representatives of other NHS trusts. According to the minutes, Sir Ian Carruthers expressed concern about the manner in which the matter of Upper GI had been the subject of public disagreement and continued debate. He stressed the need to put in place a system, which was IOG compliant, and it was proposed that the centres should be consolidated into one by 2010. It was pointed out that the OSC had discussed the matter and that it had agreed that the proposal did not constitute a significant change with the result that it did not require consultation. Sir Ian Carruthers expressed the view that he could not understand why the implementation of the first phase of the plan was in difficulty.
- The Claimant on behalf of the Respondent expressed the view that the Respondent would not be in a position to deliver a compliant service. It supported a plan for a single site but considered that a two-site interim solution would not be IOG-compliant. There was some uncertainty about the move to a single centre, which made it difficult to implement the first phase of the plan and Ms James commented that a period of public engagement of six to eight weeks would allow a further explanation of the facts before the transfer was made. Sir Ian Carruthers reiterated that the transfer had been sanctioned to take place in 2001 and so the outstanding issues needed to be addressed as quickly as possible.
- There was an important development on 2 May 2008, when Sir Ian Carruthers attended a Peninsula Cancer Network meeting at St Mellion conference centre near Plymouth. Notes were taken by Mr Tito Lopez, a consultant surgeon, who attended and Sir Ian spoke at length during which he forcefully made the point that transfer to Derriford was going to take place and that media pressure would make no difference. He criticised the leadership of the Trust. One of the comments Mr. Lopez noted was that Sir Ian Carruthers had said that "whole of Cornwall can sign petition but won't change outcome".
- The Employment Tribunal pointed out that considerable concern was generated by Sir Ian's remarks at the meeting.
- In a letter dated 14 May 2008 from Ms James of the PCT to a representative of "Keep Cancer Care in Cornwall" campaign, it was explained that the view of the PCT was that the NHS were only required to consult on substantial service changes and that the OSC and the PCT both took the view that the proposal in relation to Upper GI (in contrast with that relating to Head and Neck and Gynaecology surgery) was not substantial with the result that there was no requirement to consult but there had been a policy of local engagement. The PCT were proposing to commission Upper GI surgery services at Derriford. The letter was copied to many recipients including the Secretary of State for Health, Mr Ben Bradshaw MP, who was not only an MP for Exeter but also then the Minister of State for Health Services, other local MPs, Sir Ian Carruthers, Sir Michael Pitt and the Claimant.
- The next development referred to by the Employment Tribunal occurred on 3 July 2008, when the Claimant and Mr Davis were told by the SHA that they were required to attend a meeting in Taunton that day before the scheduled meeting of the South West NHS Trust's Chairman and Executives, which was due to be held later that day. When Mr Davis and the Claimant arrived, they had a meeting with Sir Ian Carruthers, Sir Michael Pitt, Mr Andrew Williamson of the PCT as well as Ms James and Mr Gabriel Scally of the SHA. The evidence of Mr Davis was that they were informed by Sir Ian Carruthers that they were to agree a joint statement setting out the position and that they were not to leave the room until this was done and that this statement would be put before the OSC meeting on 15 July 2008. The evidence of Mr Davis was that this was the most unpleasant meeting which he had ever attended in 38 years of public service.
- A draft was prepared which was shown to the Employment Tribunal in which it was stated that during May and June 2008, the PCT had conducted a period of public engagement over the Upper GI issue, which had been fully supported by the Respondent as an opportunity to address the lack of earlier patient engagement. The statement also recorded that the local NHS had a chance to consider the feedback from the process alongside the :-
"Unequivocal clinical evidence of the improved outcomes that will be achieved by centralising Upper GI cancer surgery. Consequently the PCT and [the respondent] agree that the service at Truro should move to Plymouth as soon as possible, as the first phase of the Peninsula plan to establish a single centre for Upper GI cancer surgery by 2010. The PCT and the RCHT are firmly committed working through the Peninsula Cancer Network to ensure the implementation of the 2nd phase of the plan. This will ensure that local patients undergoing curative surgery have the best chance of survival."
- Mr Davis then circulated the draft to the non-executive directors of the Respondent, but none agreed to it and indeed the majority actively declined to accept it. Mr Davis then felt his position as Chairman of the Respondent was untenable and on 10 July 2008, he wrote to Sir Michael Pitt tendering his resignation while making it clear that that he did so because the draft statement did not have the support of the non-executive directors.
- On 15 July 2008, the OSC met and according to the minutes of the meeting the Claimant, Sir Ian Carruthers and Sir Michael Pitt were not listed among the attendees, but the latter two were recorded in the minutes as "notify". Among the people at the meeting were John Mills, who had taken over from Mr Davis as Acting Chair of the Respondent. The issue of consultation over the Upper GI Services was discussed and a report from Ms James was considered. At the end of the meeting, the OSC concluded that the Upper GI proposals as well as the Gynaecological and Head and Neck cancers represented a substantial variation in accordance with the Health and Social Care Act 2001 with the result that the PCT should undertake full public consultation on the principles behind and the provision of each service.
- The Employment Tribunal noted that this was contrary to the position previously expressed by the OSC and the PCT.
- A few days later, Ms James on behalf of the PCT wrote to the Chair of the OSC explaining that there was uncertainty on the basis on which consultation was then to take place and she indicated that the PCT was taking legal advice to examine the basis for the OSC asking them to consult, because there was a need for clarity on which proposals were to be debated and considered. Her letter was copied to the Claimant. It appears that legal advice was obtained by the PCT, but the Employment Tribunal were not told what it said.
- The Respondent also took the view that it would be necessary to obtain legal advice and Mr David Lock of counsel was instructed. His advice was received and it was made available to the Respondent on 30 July 2008. We have seen a copy of the advice in which Mr Lock explains in very clear terms that under section 242 of the Act, each body to which the duty applied was obliged to make arrangements for consultation. His view was that the approach of the PCT was unlawful with the result that both the Respondents and the PCT would be acting unlawfully if they attempted to move the Upper GI services from Truro to Plymouth without prior consultation.
- Mr Lock's advice was presented to the Respondent's Board by the Claimant on 5 August 2008 at their meeting. Prior to the meeting, the papers sent to the directors had included a summary in relation to the process of engagement of consultation in which it was stated that a legal view had been sought. The Part Two papers stated that the Board had been provided with a legal opinion on the issue and it was to be discussed. Indeed it was discussed in a Part Two meeting at which no representative of either the SHA or the PCT was present. The Claimant then explained at that meeting that the advice from counsel imposed on the Respondent a duty to take part in the consultation and a similar duty was imposed on the PCT. This disclosure, which was the "August disclosure", was relied on as being first qualifying disclosure and which, as we have explained, was what the Employment Tribunal regarded as a "protected disclosure". This finding forms a ground of appeal and when we consider it, we will then explain the evidence in relation to it in more detail.
- It is necessary at this point to explain some other matters which were going on concerning the performance of the Respondent, particularly bearing in mind that the HCC had laid down core standards to be met by NHS hospitals. In 2006/2007, the Respondent had declared itself compliant with 13 out of the 43 relevant standards. By 15 March 2008, it declared itself fully compliant with at least 34 out of the 44 relevant standards as in 2007/2008 and stated that it would be fully compliant as at 31 March 2008. In June 2008, the Claimant received a phone call from the HCC inviting him to consider whether the Respondent should reconsider its self-declarations and the Claimant explained in evidence that he did not regard this as a formal request or an indication that all might not be well. So he then took no action on the matter and he did not report this telephone conversation to the Chairman or to any of the non-executive directors.
- Subsequently, the HCC visited and inspected the Respondent's hospital at Truro and concluded that it was not compliant in 4 of the standards in which it had earlier declared itself compliant. This was notified to Sir Ian Carruthers some weeks before it was disclosed to the non-executive directors and there is no evidence that Sir Ian Carruthers immediately communicated the HCC's misgivings to the Claimant or Mr Mills. The non-executive directors were in fact informed by Sir Michael Pitt at a meeting on 25 September 2008 that the standards had been failed. There is apparently an avenue of appeal against the HCC conclusions, but there is no evidence that any appeal was pursued. Both Mr Davis and the Claimant said in evidence to the Employment Tribunal that had they been in post at this time, they would have definitely appealed against the decision.
- On 15 July 2008, the Respondent's Remuneration Committee had agreed to recommend an increase in the Claimant's salary of £25,000 per annum from £145,000 to £170,000, but this increase would be subject to the approval of the SHA. Mr Mills wrote to Sir Ian Carruthers on 26 July 2008 seeking approval for this increase explaining that under the Claimant's leadership, a great deal had been achieved with the Trust moving from the bottom of the Health-Care Commission League to a positive accolade of "Most improved trust", *but no reply was ever received by Sir Ian Carruthers to that letter.*
- On 18 August 2008, Professor Mike Richards, the National Cancer Director, wrote to Sir Ian Carruthers expressing his concern that Upper GI services at the Respondent were not IOG-compliant. He stated that two senior surgeons should undertake an urgent review of Upper GI services at the Respondent and they did so reporting that after careful consideration, they considered that the service was safe but that it was not sustainable in its present form. The Employment Tribunal understood that to mean that there were no unnecessary or avoidable clinical risk to the patients undergoing surgery at Treliske, but as it could not have complied with IOG due to the relatively small throughput of patients, this could not be sustained.
(iv) Developments in Bromley
- In late 2007, the Bromley Hospitals NHS Trust decided to commission a report because its performance had been poor and significantly worse than originally reported to NHS London, which was the local equivalent of the SHA. It was considered that a review of the management and governance was appropriate and the Claimant was invited to attend Bromley for an interview, but he did not do so because certain assurances which he sought were not given. Sir Ian Carruthers knew of this review and according to Mr Davis, Sir Ian Carruthers said on 15 February 2008 that he did not think that "Bromley is an issue".
- On 19 September 2008, Sir Michael Pitt, who had seen the report, spoke to Mr Mills saying the report was serious and suspension was inevitable for the Claimant and another employee of the Respondent, who had moved from Bromley. Sir Michael Pitt explained that the Bromley report was "one of the most damning he had ever seen". Indeed the report was very critical of a number of people including the Claimant, who was criticised for being in breach of the Code of Conduct for NHS Managers and for continuing to exude optimism about the Trust's financial position until his departure at the end of 2006.
- The Respondent's Board were asked to review it and it reached conclusions but Sir Michael Pitt said that suspension would be the minimum appropriate action at that stage. Mr Mills said that he had been left in no doubt by Sir Michael that there was an implied threat of possible sanctions against them as a Board if they did not "show the necessary leadership".
- The Bromley report was made available to the Respondent's Board, who met on 24 September 2008 and the consensus view was that the Claimant was doing a good job and that there were no grounds for taking any action. On 25 September 2008, the Board met Sir Michael Pitt and Sir Ian Carruthers and Sir Michael Pitt said that the minimum appropriate action would be to suspend the Claimant and another former employee of Bromley who was then working for the Respondent. Sir Ian Carruthers expressed the view first that the Respondent might be heading towards a greater corporate failure than Bromley and second that he also believed that the Claimant should be suspended with a review being undertaken into the management and governance of the Respondent to ensure that the problems identified in Bromley were not recurring in Cornwall.
- After Sir Michael Pitt and Sir Ian Carruthers left the meeting, the non-executive directors of the Respondent discussed the way forward feeling very much under pressure from the SHA. After the meeting, Mr Mills spoke to the Claimant explaining the position to him inviting him to take "special leave" for the time being, which he reluctantly agreed to do.
(v) The suspension and dismissal of the Claimant
- During September 2008, various other problems came to light such as the number of MRSA infection cases and possible financial difficulties. The Bromley report was published and the Respondent issued a press release, which the Claimant subsequently considered to be defamatory and of which he was very critical. On 8 October 2008, the Respondent met and formally decided to suspend the Claimant but before this happened, the Claimant had written a letter to Mr Mills on 30 September 2008 in which he referred to the advice that had been given that consultation was required and stating in his letter that:-
"My request for a proper consultation to comply with our legal obligations and support for the initiative for the provision of better cancer care services for the local population supported by the doctors and public that opposed the SHA is, I believe, the real reason for the current action being taken against me."
- On the same day, a meeting was called of all senior medical and dental staff to consider the position of the Claimant, but the Employment Tribunal noted that there was overwhelming support from the clinicians for the Claimant with them expressing concern that he had been suspended.
- The terms of the independent review were agreed by the Board on 3 October 2008 and Professor Ruth Hawker was appointed as the Chairman of the Review Panel. The Claimant attended for an interview with the Review Panel on 7 November 2008.
- On 30 October 2008, the Respondent's Board considered a number of issues including the position with regard to Upper GI in which the acting chairman said that in principle the Respondent had always supported the single centre in Plymouth. Reviews were also being carried out by Professor Griffin and Mr Allan in Derriford and Exeter, following which it was anticipated there would be a consultative document (which was not a consultation document as we explained in paragraph 17 above) issued in 2009 with the hope and expectation that a single centre would be in place in the Spring. The Acting Chairman said that he wished to be satisfied that a new centre would be IOG-compliant.
- On 27 November 2008, the Claimant issued his first Tribunal claim against the Respondent concerning the August disclosure which, as we have explained was the one, which was subsequently upheld and it will be necessary to consider the nature of it in greater detail when we return to deal with the submissions later in this judgment.
- The SHA were aware of the claim and the appropriate representative of the Respondent (Ms Jo Perry, its Director of Human Resources) assumed that the necessary information would have been passed on to either Sir Michael Pitt or to Sir Ian Carruthers.
- On 22 December 2008, the solicitors to the Review wrote to the Claimant to advise him of their appointment, explaining that he would be given an opportunity to review the relevant sections of the report with regard to their factual content and to comment on them before being given an opportunity at a later stage to read the whole of the report when again he would have a further opportunity of commenting. The process was to be confidential at that stage.
- On 23 December 2008, the Claimant's solicitors wrote to Sir Ian Carruthers indicating the Claimant's intention to claim for libel against him based on the contents of the press release and seeking a retraction, apology and compensation. The allegations were rejected in correspondence and it was contended that the issue was covered by qualified privilege. No proceedings were ever issued.
- On 22 January 2009, the Respondent's Board met to discuss the financial position and this was the date on which the first draft of the Review Panel report was sent to the Claimant's solicitor and a rebuttal letter was sent by the Claimant's solicitors criticising the report and its conclusions, as well as dealing with the criticisms on a paragraph-by-paragraph basis. There was a dispute as to the procedure by which the final report would be made available to the Claimant, but after it was sent to him in draft form on 9 February 2009, his solicitors responded on 17 February 2009 with a rebuttal letter.
- The final report was published on 5 March 2009, and its main finding was first, that the Respondent's Board was in breach of the Code of Accountability; second that although financial improvements had been made, it still failed to meet its financial targets; and finally that it still had a loan of £48,000,000 to the Department of Health. The report also concluded that the Board and the Claimant had not followed the spirit of the Codes of Conduct for Boards and Senior Managers and that there had been an erosion of trust between the Respondent and the PCT over the Upper GI services. It was also explained that there had been a lack of leadership over the Upper GI issue.
- On the day when the report was published, the Respondent's Board held a Part Two extraordinary board meeting to discuss the report at which it unanimously decided to accept the recommendations with a majority voting to accept the conclusions. The Employment Tribunal said that in making the decision to accept the recommendations, there is no evidence that the Board was aware of or had any regard to the letter of rebuttal sent by the Claimant's solicitors dealing with the complaints made against the Claimant.
- Following a meeting of the Board, a decision was made to convene a "trust and confidence meeting" to which the Claimant would be invited. Indeed the Claimant was duly invited and the meeting had to be rearranged for 15 April 2009. The letter informing the Claimant of the meeting had said first that it would be conducted by the two non-executive directors; second that the Board would consider the findings of the review; and third that the report made detailed criticism of the Claimant's leadership but that he would be given an opportunity to comment on those and on other findings in the report together with their conclusions. The Claimant was warned that if the decision taken at the meeting was that trust and confidence had broken down, one option to be considered by the Board would be the termination of the Claimant's employment.
- Prior to the meeting, a number of questions were drafted by Ms Jo Perry for the panel to put to the Claimant, who duly attended the meeting together with a friend and representative. The Employment Tribunal noted that the Claimant responded to the questions being put to him by referring to what had been said in his letter of rebuttal, but that the Claimant was reluctant to expand on his answers.
- At the conclusion of the meeting, neither of the non-executive directors took steps to seek to investigate the points raised by the Claimant, but instead they prepared a report overnight concluding that there was an untenable position as the continued employment relationship between the Claimant and the Respondent's Board as relations had broken down. It recommended that the Claimant's employment should be terminated with contractual notice of six months' pay.
- Although the Claimant did not know this, the Board had arranged to meet on the following day. Normal practice would have been for papers relating to the meeting to be circulated beforehand, but on this occasion, the papers for the meeting were given to those members as they arrived. It was observed the Claimant did not accept the relationship between the parties had broken down or that if it had, that the criticisms of him were correct. The Board concluded that the Claimant should be dismissed forthwith. The Claimant was notified of this decision by a letter of 21 April 2009 when he was told that he would be paid in lieu of his contractual notice of six months and that he had a right of appeal.
- The Claimant duly exercised his right of appeal and a hearing took place on 26 June 2009 when it was heard by a panel of NHS Directors from outside the Respondent. The appeal was said to be by way of a rehearing. At the hearing the Claimant, who was accompanied by a representative, reiterated the points he had raised in his rebuttal letter regarding the Hawker review. During the meeting, Mr Watts who had been appointed Chairman on 17 March 2009 explained that the Board had lost confidence in the Claimant. The Panel produced its report recommending the dismissal be upheld and it set out its findings. It stated that:-
"6.4.4 The panel considers the issue of reconfiguring the provision in Upper GI cancer services in the South West has also contributed to the deterioration in trust and confidence between key stakeholders, (for example the [SHA] and [the respondent]) and consequently, the impact of these damaged relationships has lead to an irretrievable breakdown in trust and confidence between the Board and the [claimant] in his ability to lead an organisation in the South West Health Economy."
- On 27 April 2009, the OSC held a committee meeting and although the Claimant as Chief Executive of the Respondent was not a member of the committee, he would normally have attended. The minutes record that:-
(a) In November 2007, the OSC had decided that the transfer to Derriford did not constitute a substantial change requiring consultation;
(b) In the light of significant public concern, the matter had been reconsidered and the view had been formed that the proposals did represent a substantial change into services and the joint committee had been formed in order to deal with the question of consultation;
(c) Subsequently it had been concluded that the service provided by RCHT was no longer sustainable;
(d) At the conclusion of a lengthy discussion, the OSC concluded that the proposal to establish a centralised Upper GI service at Derriford did not represent a substantial change to services; and that
(e) The committee was satisfied the PCT had undertaken appropriate public engagement and listened to feedback with the result that the decision on the issue was thus reversed.
- The Employment Tribunal upheld the claim of the Claimant based on the August disclosure but it rejected a further claim based on the disclosure on 30 September 2008. The Tribunal referred to the Respondent's failure to call as witnesses Sir Ian Carruthers, Sir Michael Pitt, which was a matter calling for "adverse comment" . The Tribunal also found many of the Respondent's witnesses "unsatisfactory" . This has made the task of the Respondent harder.
- The reasoning of the Employment Tribunal was that:-
(a) The initial view of the Respondent's Board was that if there had been any failure on the Claimant's part at Bromley, there were no grounds for taking any action against him. This stance was reversed "in response to clear and strong pressure from the SHA" . In consequence the Claimant was invited to take special leave before being formally suspended at the beginning of October 2008;
(b) When the Hawker report, which was as we have explained in paragraph 51 above was very critical of the Claimant, was made available to the Respondent at the beginning of March 2009, it was instantly accepted without any reference to the Claimant . The Employment Tribunal concluded that "it is extraordinary and highly unsatisfactory that the conclusion and recommendations were accepted with such alacrity" ;
(c) The Respondent then decided to pursue its issues with the Claimant through the medium of a trust and confidence meeting;
(d) The Claimant was invited to a meeting on 15 April 2009 which led to his dismissal. The Employment Tribunal considered that the procedure was unfair because the Respondent in reaching their decision to dismiss took no account of a rebuttal letter which had been sent by the Claimant;
(e) There was an appeal procedure which in the view of the Employment Tribunal was "a travesty of anything approaching basic concepts of fairness" ;
(f) At a meeting of the OSC due to take place on 27 April 2009 to consider the issue of consultation, the SHA through Sir Ian Carruthers had expressed in very forceful terms its determination to ensure that the transfer of Upper GI services to Derriford went ahead without consultation;
(g) Had the Claimant not been dismissed on 16 April 2009, there is every reason to expect that he would have resumed his post as Chief Executive and attended the OSC meeting and had he done so "he would undoubtedly have reiterated the advice" of counsel that to proceed without consultation would have been illegal "thus presenting a further obstacle to SHA's plan to transfer the services" ;
(h) The Employment Tribunal concluded that the Respondent took the decision to dismiss the Claimant because of pressure brought to bear on it by the SHA to do so because if they had not done so the Claimant would have undoubtedly have attended the OSC meeting on 27 April and reiterated the August disclosure which gave the advice of counsel that to proceed without consultation would be illegal; and that
(i) The decision of the Employment Tribunal was that the Claimant was dismissed as a result of having made the August disclosure which was a "protected interest disclosure" and it was automatically unfair for that reason as well as being unfair under ordinary principles.**The issues**
- Mr Simon Devonshire QC counsel for the Respondent contends that the decision of the Employment Tribunal was flawed and that it erred in:-
(a) Failing to consider adequately or at all whether the August disclosure was in fact a protected disclosure within the meaning of section 43B(1)(b) of the ERA and/or in concluding that it was such a disclosure ("The August disclosure appeal");
(b) Failing to make clear findings about whether the pre-dismissal detriments alleged (namely the Claimant's informal suspension on 25 September 2008, the unfair publicity for him on that day, his continued suspension until 17 April 2009 and the failure of the SHA to confirm the Claimant's salary increase) were acts of whistle-blowing discrimination and/or if insofar as it concluded that they were not, nonetheless concluding that the Claimant was dismissed for whistle-blowing contrary to s103A ERA ("The Pre-Dismissal Detriments Appeal");
(c) Concluding that the SHA orchestrated the Claimant's dismissal and/or the pre-dismissal detriments because of the August disclosure without considering first whether (and if so when and how) the SHA knew of that disclosure ("The SHA Knowledge Appeal");
(d) Failing to distinguish adequately or at all between (i) the August Disclosure relied upon by Mr Watkinson, and (ii) the alleged antipathy of the SHA to Mr Watkinson's general stance on the issue of public consultation on the transfer of Upper GI services, in concluding that the SHA's motivation for the acts of orchestration alleged was the August Disclosure ("The SHA Motivation Appeal");
(e) Failing to consider whether the Trust knew of the SHA's prohibited motivation in subjecting Mr Watkinson to the acts of pre-dismissal detriment alleged (and if so when and how the Trust acquired that knowledge), and/or in concluding that the Trust knew of that prohibited motivation at the point of Mr Watkinson's dismissal, and/or in concluding that the Trust acted for the same prohibited reasons simply by virtue of the fact that they acted under pressure from the SHA ("The Imputed Knowledge Appeal"); and by
(f) Failing to address or take into account matters of central significance to the question of motivation (on the part of both the Trust and the SHA) before concluding that Mr Watkinson was being victimised for his "stance over the issue of consultation" and/or that this was a "severe irritant" to the SHA ("The Unconsidered Evidence Appeal").
- As many of the grounds of the Respondent relate to the reasoning of the Employment Tribunal including contentions that important matters have not been dealt with in its reasons, it is important to bear in mind how the reasons of an Employment Tribunal should be considered by an appellate body and in particular (with our emphasis added) that:-
 "…The ET judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid." (per Mummery LJ in Fuller v London Borough of Brent;*
"57. It is trite law that a Tribunal has to set out with sufficient reason why it decides that one party should lose and the other party succeed. This is both an elementary requirement of justice so far as the parties are concerned, but secondly acts as a necessary discipline for the decision maker, who can double check that his conclusion is justified by his reasoning; and, thirdly, it enables a court of appeal with a review jurisdiction, such as this Tribunal, to see if the conclusion is in error. But this principle does mean that a Tribunal is required to dot every "i" and cross every "t" in relation to every act and submission before it." (per Langstaff J in HM Land Registry v Grant  UKEAT 2010/0232-09-1504);
"57…Selectivity is not only desirable, but a necessary quality of proper decision making. Focus is all - on the principles that matter, the central material disputes of fact, and those matters critical to the analysis by which the principles are applied to the facts"(ibid);
"58. A Tribunal reaching a factual evaluation, and applying legislation to it, is not engaged in quite the same process as a decision maker exercising a discretion, or reaching a judgment which might be amenable to Judicial Review if it failed to take into account relevant considerations. However, where a Tribunal fails to take into account, in its analysis, a matter of central significance, so that the parties do not know why (on that point) the decision has gone against one, and in favour of the other, or simply are left in ignorance whether the point has ever been considered at all as it should have been, there is an error of law. This is true only of matters of central importance: it is well accepted that a Tribunal does not have to deal with the effect of the evidence of every witness" (ibid).;
"59. That said, it is very easy for appeal hearings to focus upon matters which were given no significance in either the conduct of the proceedings or the arguments of the parties below. Therefore any appeal based upon a suggestion that a Tribunal has ignored a central fact, the implications of which it was required to address before it could properly draw its conclusion, is not one lightly to be reached" (ibid); and
Elias LJ giving the only reasoned judgment of the Court of Appeal in the Grant case said of the decision of this Appeal Tribunal that it "32.… correctly recognised that in general a challenge to the reasoning of the Tribunal, particularly where there is as here a conscientious and detailed analysis of all the facts, is difficult to sustain. A tribunal is not obliged to refer to each and every matter in dispute before it but only such matters as are necessary to tell the parties why they have won or lost: Meek v City of Birmingham District Council  IRLR 250. However, the EAT held that it was necessary for a tribunal to analyse any issue of central significance which goes to the heart of its conclusions, whilst recognising that a finding that a tribunal had ignored a central fact was not one which the EAT would reach lightly"**The August Disclosure appeal**
- The case for the Respondent is that what was said by the Claimant in the August disclosure was not a "qualifying disclosure" so as to be a protected disclosure within the meaning of section 43 B(1)(b) of the ERA, which states that:-
"..a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—
(b) That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject…"
- The Claimant's case is that the August disclosure was that made at the Part Two Board meeting on 5 August 2008 and to which we referred in paragraph 32 above was a "qualifying disclosure". Miss Jane McCafferty, counsel for the Claimant, contends first that he told the Respondent's board of the pressure which the SHA/PCT had already applied to close the services without consultation, second that the OSC had recently decided the changes were "substantial" and third that he considered that in the light of counsel's opinion, a failure to consult would put the Respondent in breach of its legal obligations if the Board of the Respondent bowed to pressure from the PCT/SHA. Mr Devonshire contends that first it was not accepted by any of the Respondent's witnesses that the Claimant spoke in those terms and second that the relevant extract of the Part Two Board minutes did not reveal the Claimant making the disclosure alleged, because he simply referred to the Respondent's intention to take part in the consultation process and that was uncontroversial in its terms.
- In support of the contention that the Claimant did not make a protected disclosure, Mr Devonshire relies on the relevant Board minutes, which state (with the Claimant referred to as "the Chief Executive") that:-
"UPPER GI UPDATE
The Chief Executive said that the main priority was to participate in the consultation process. He referred to the appended paper detailing the legal advice relating to the proposed reconfiguration of Upper GI Cancer Surgery. According to this advice it was RCHT's responsibility to take part in the consultation as well as the PCT. RCHT would need to participate as closely as possible in the development of an array of options for the consultation presented to the OSC.
The three sets of surgeons were developing care pathways for patients presenting with particular types of cancer and this would also include multi-disciplinary care teams.
The Chairman said that he and the Chief Executive would be meeting with the PCT Chair and Chief Executive at the beginning of September when the issues would be discussed.
Patrick Wilson, Non-Executive Director, asked when the next review would be once it was agreed and was advised that a peer review took place on a two to three year cycle.
The Chairman said that the OSC wanted assurance that there will not be a drip of services leaving Cornwall. It had been pointed out to them that some patients had to go elsewhere but there should also be patients coming from Exeter and Plymouth to Truro if a model, supported by the clinicians to keep surgeons here could be achieved.
It was noted that the Upper GI surgeons continued to operate and would do so until at least the end of the year.
The Chief Executive said his view was that consultation was the right process and that the proposed option for a virtual centre should be put into the public domain. He suggested that, if the virtual centre was agreed, it could be a national pilot.
The Board noted the legal advice on the proposed reconfiguration of Upper GI surgery and the Acting Director of Strategy agreed to keep Board members informed of progress."
- The Tribunal having heard evidence stated at paragraph 37 of its Reasons that the Claimant had presented to the meeting that:-
"according to the advice which he had received, the [respondent] was under a duty to take part in the consultation as well as the PCT…The claimant explained [at the Part Two meeting of the respondent on 5 August 2008] that according to the advice that had been received [the respondent] was under a duty to take part in the consultation as well as the PCT".
- Mr Devonshire contends that in the light of this finding, the Claimant had not been disclosing information about a present or prospective breach or likely breach of its obligations so as to constitute a "protected disclosure" within the meaning of section 43(B)(1)(b) of the ERA.
- It becomes necessary to see if this statement of the Claimant complies with the requirements of section 43B(1)(b) of the ERA of disclosing information which in the "reasonable belief of the worker [i.e. the claimant] making the disclosure tends to show… (c) that a person is likely to fail to comply with any legal obligation" when he stated that the legal obligation in this case was the obligation to consult before reconfigurating the Upper GI Surgery services.
- The case for the Claimant is that he made a "qualifying disclosure" by the August disclosure because:-
(a) He disclosed the advice of counsel to the Part II board meeting on 5 August 2008;
(b) This disclosure was to the effect that the Respondent and the PCT would be acting unlawfully if they attempted to move the Upper GI services to Plymouth without prior consultation; and that
(c) It was the reasonable belief of the Claimant making the disclosure that the disclosure "tends to show.. that [the respondent and or the PCT] has failed, is failing or is likely to fail to comply with any legal obligation to which [it is] is subject" in relation to the obligation to consult on the proposal to move the Upper GI services to Plymouth.
- As to (a) and (b) (whether there had been a disclosure and that it was to the effect that the Respondent and the PCT would be acting unlawfully if they attempted to move the Upper GI services to Plymouth without prior consultation), the conclusion of the Employment Tribunal was first that the Opinion of Mr David Lock of counsel who had advised that "in his view both the [respondent] and the PCT would be acting unlawfully if they attempted the Upper GI services from Truro to Plymouth without prior consultation"  and second that this advice was communicated by the Claimant to the Respondent's Board at the meeting. Indeed the Part Two papers had stated that the Board had been provided with the legal opinion and that it was to be discussed.
- So the Employment Tribunal found that the Claimant had explained at the Part Two board meeting on 5 August 2008 that according to the advice that had been received from counsel and as we explained in paragraph 70 above, the Respondent as well as the PCT was under a duty to take part in the consultation. He advised that each body to whom the duty applied:-
"Must make arrangements for the consultation. His advice, couched in very clear terms was that the PCT's approach was plainly unlawful. He went on to advise that, in his view, both the [respondent] and the PCT would be acting unlawfully if they attempted to move the Upper GI services from Truro to Plymouth without prior public consultation."
- As to requirement (c), (which was that it was in the reasonable belief of the Claimant that the disclosure of information tended to show that the PCT and/or the Respondent had failed or is failing or is likely to fail to comply with any legal obligation to which it was subject), it must be stressed that there can be a "qualifying disclosure" without showing that there has been an actual breach of a legal obligation. This issue has to be considered not in isolation, but in the context of the entire evidence, including the previous history, so as to ascertain the factual matrix against which the disclosure had been made.
- As we have explained, the Respondent's Board and the Claimant knew how determined the SHA and the PCT had been to avoid public consultation on the proposed change as opposed to engagement. We have already explained the long history of opposition on the part of the PCT and the SHA to the need for consultation, such as that:-
(i) On 10 March 2008, there was a joint meeting between the Respondent's Board and the PCT's Board and the Employment Tribunal inferred that the PCT was willing to proceed without consultation;
(ii) On 1 April 2008 (as explained in paragraph 20 above) there was a meeting at which the SHA's office which was attended by Ms James of the PCT, Sir Ian Carruthers, the Claimant and representatives of other NHS Trusts at which it was pointed out the OSC had agreed that the proposed change did not constitute a significant change and did not require consultation;
(iii) On 2 May 2008 there was the meeting at the St Mellion conference centre at which Sir Ian Carruthers had explained that the transfer to Derriford was going to take place and that "the whole of Cornwall can sign the petition but it won't change outcome" . The Tribunal considered this to be "an extraordinary state of affairs" ;
(iv) In a letter dated 14 May 2008 from Ms James of the PCT to a representative of "Keep Cancer Care in Cornwall", it was explained that the OSC and the PCT both took the view that the proposal in relation to Upper GI services was not substantial and so there was no requirement to consult;
(v) On 3 July 2008 the Respondent was asked by the SHA to agree a statement that the transfer of services should move "as soon as possible" and thereby meaning that no consultation was required. The majority of directors of the Respondent refused to agree to it and the non-executive directors unanimously disagreed with it;
(vi) On 15 July 2008 the OSC met without Sir Ian Carruthers and Sir Michal Pitt being listed among those attending and it was agreed the PCT should undertake full public consultation, but a few days later Ms James on behalf of the PCT wrote to the Chair of the OSC explaining that there was uncertainty on the basis on which consultation was to take place. She indicated that the PCT was taking legal advice to examine the basis for the OSC asking him to consult because there was a need for clarity on which proposals were to be debated and considered;
(vii) "Through [Sir Ian Carruthers], the SHA had expressed its determination to ensure that the transfer of Upper GI services to Derriford went ahead come what may. Those views have been expressed in very forceful terms" ; and that
(viii) This tends to show that the Respondent (which was under the supervision of the SHA) was likely to fail to comply with its obligation to consult.
- Against that background and the fact that it has not been and cannot be suggested or shown that the Claimant either did not believe Mr Lock's advice was incorrect or did not have reasonable grounds for not accepting it to be correct, it is clear that in the Claimant's reasonable belief when disclosing the opinion of Mr David Lock, he was making a disclosure tending to show that the PCT and/or the Respondent was likely to fail to comply with the legal obligation to consult and that in the words of paragraph 79 of the Reasons:-
"It amounted to a protected disclosure in that if the [respondent] proceeded without consulting they would, at least, be likely to breach that obligation under the legislation."
- Mr Devonshire also submits that the August disclosure did not fall within section 43B (1) (b) of the ERA as it did not relate to the "disclosure of information" as this Appeal Tribunal stated in Cavendish Munro Professional Risk Management Ltd v Geduld  IRLR 38 that "the ordinary meaning of giving 'information' is conveying facts"  (per Slade J), which contrasts with an "allegation". This statement was applied by this Appeal Tribunal in [Goode v Marks and Spencer Plc]() (UKEAT/0442). In our view, what the Claimant said in the August disclosure was giving information about what had to be done by the Respondent and the PCT to comply with their duty which was to consult on the proposed changes, and it was not making an allegation.
- We therefore reject this ground of appeal.
- Mr Devonshire contends that the Employment Tribunal erred because it failed to make clear findings about whether the pre-dismissal detriments alleged (namely the Claimant's informal suspension on 25 September 2008, the unfair publicity for him on that day, his continued suspension until 17 April 2009 and the failure of the SHA to confirm the Claimant's salary increase) in the words of the Respondent's written skeleton argument "were acts of whistle-blowing discrimination and/or if insofar as it concluded that they were not, nonetheless concluding that the claimant was dismissed for whistle-blowing contrary to s103A ERA".
- He submits that the effect of the judgment of the Employment Tribunal is that the dismissal of the Claimant was an act of whistle-blowing discrimination, but that these pre-dismissal detriments which led to the dismissal were not. He contends that there is a lacuna in the reasoning of the Tribunal in that whilst it made a finding that the pre-dismissal detriments were not causally linked to the September disclosure in any relevant sense, its reasons are unclear as to the part that the August disclosure played in bringing about these detriments.
- Mr Devonshire contends that it is imperative that there should be proper findings about a link shown between the August disclosure and the pre-dismissal detriments so as to explain the reasons for dismissal. It is said by him that it is unlikely that the Claimant was suspended pending an independent review for an "innocent" motivation, but then he was dismissed for a prohibited one.
- He points out that the pre-dismissal detriments were not caused by the September disclosure in the relevant legal sense, but that the conclusions of the Tribunal as to whether those detriments were motivated by the August disclosure are "opaque". Thus it is said that the Tribunal erred in law in failing to make clear its conclusions and its reasons for its decision.
- The case for the Respondent is that by failing to focus and to make clear rulings on the pre-dismissal detriments and the reasons for them, the Employment Tribunal failed to consider all the relevant matters as to whether it could infer that the Claimant had been the victim of a whistle-blowing dismissal contrary to section 103A of the ERA.
- In our view, Mr Devonshire's contentions fail to appreciate that the Employment Tribunal did conclude in paragraph 81 that the pre-dismissal detriments preceded the second protected disclosure in the Claimant's letter of 30 September 2008 and so it rejected the claim based on those detriments. Another reason why there is no merit in this ground as this is not a matter which is what was described in Grant's case as "of central significance which goes to the heart of its conclusions".
- In any event, even if there was any merit in this ground, it should not undermine the findings of the Employment Tribunal in respect of the August protected disclosure.
- We should explain that in paragraph 75 of its Reasons, the Employment Tribunal explains the history in relation to consultation leading to its conclusion that the imposition of "special leave" on the Claimant and his suspension, which were part of the pre-dismissal detriments. It explains that these detriments were imposed as a result of a volte-face on the part of the Respondent, which in turn was in response to "clear and strong pressure from the SHA" . The Employment Tribunal set out the background to the pressure from the SHA and what it described as "an extraordinary state of affairs" , which was the remarks made by Sir Ian Carruthers at the meeting in May 2008 (to which we have referred in paragraph 22 above) which were recorded by a consultant surgeon present as stating that the plan would go ahead in any event irrespective of any action taken over consultation.
- In addition, it was pointed out that at that stage, the OSC and the PCT did not consider that there was any requirement to undertake any significant consultation other than dissemination of information although they did not hold their views as strongly as Sir Ian Carruthers.
- The Tribunal proceeded to say that when the Bromley report was published, that this would have caused the non-executive directors of the Respondent to consider the Claimant's position as an employee of the Respondent because of the criticisms made of him notwithstanding that he disputed them. The initial view of the Board of the Respondent was that if there had been any failings on the Claimant's part at Bromley, that this was not a reason to think that they would be replicated in his employment with the Respondent and therefore that there were no grounds for taking action against him.
- The Employment Tribunal proceeded to say that those views "were reversed immediately and totally following a meeting on 25 September with [Sir Ian]" . The SHA then made it clear that they wished there to be an independent review of the governance of the Respondents, questioning whether the Board had confidence in the Respondent. The Tribunal noted that:-
"The outcome of this was that the claimant was invited to take special leave before formally being suspended at the beginning of October 2008. It is the view of the Tribunal that this volte face on the part of [the respondent's] Board was in response to clear and strong pressure from the SHA" .
- This finding does not undermine in any way the conclusion of the Employment Tribunal that the Claimant's dismissal was contrary to section 103A ERA, which is a finding supported by evidence. Thus we reject this complaint, but we should repeat that even if it was valid, it would not undermine the conclusions in respect of the August disclosure, which explains why the Claimant succeeded below.
- The case for the Respondent is that the Employment Tribunal erred by concluding that the SHA orchestrated the Claimant's dismissal and/or the pre-dismissal detriments because of the August disclosure without considering whether and, if so, when and how the SHA knew of the disclosure.
- These criticisms have to be placed in perspective bearing in mind that no criticism is made of the approach adopted by the way in which the Tribunal explained that it would approach the issue of knowledge (see paragraphs 10 and 11 of its Reasons).
- The Employment Tribunal made findings of fact which were open to it that the SHA was routinely sent copies of the Part Two minutes as explained in paragraph 28 of the Reasons. These documents would have included the papers before the Board on 5 August 2008 which included the advice from counsel which, as we pointed out in paragraph 32 above, explained first the duty on the Respondent and the PCT to consult and second that both the Respondent and the PCT would be acting unlawfully if they attempted to move the Upper GI Services from Truro to Plymouth without prior public consultation. Furthermore, the SHA would have seen the Claimant's recorded comments in the minutes, which have been set out in paragraph 65 above and which together with the summary of the advice from counsel constituted the August disclosure. Indeed all that the SHA needed to know to justify the contention that it applied pressure was the nature of the disclosure as the other requirements of section 43B(1)(b) only had to be satisfied by the entity which took the decision to dismiss the Claimant, namely the Respondent.
- The Employment Tribunal was then entitled to conclude that the Claimant's action in tendering the advice to the Respondents on 5 August 2008 "was a severe irritant to the SHA's intentions" . In our view, the Employment Tribunal were also quite entitled to reach that conclusion which shows why this ground of challenge has to be rejected bearing in mind that:-
(a) Sir Ian Carruthers' hostility to consultation as expressed at the meeting on 2 May 2008 which we have described in paragraph 22 above; and also what occurred in the meeting on 3 July 2008 as described in paragraphs 25 and 26 above;
(b) The clearly held view of the Claimant that consultation was necessary;
(c) The additional unexplained absence of any evidence from Sir Ian Carruthers or Sir Michael Pitt;
(d) The absence of any evidence explaining as to why they could not give evidence at the Employment Tribunal bearing in mind that no request was made for an adjournment so as to enable them to give evidence; and
(e) The consequence was that is as Miss McCafferty correctly says the Respondent "cannot avoid a finding on a relevant factual issue in particular as to acknowledge, simply by failing to call the relevant witnesses and then complaining that the Tribunal was unable to make more detailed findings as to what knowledge these individuals had at the relevant time". So on the evidence adduced, the Tribunal was entitled to conclude that the SHA had the required knowledge.**The SHA motivation appeal**
- Mr Devonshire submits that the critical issue is the discriminator's motivation in deciding the core motive for the matter complained of and he contends that in concluding that the SHA's motivation for the acts of orchestration alleged was the August disclosure, the Employment Tribunal failed to distinguish adequately or at all between, on the one hand, the August disclosure relied on by the Claimant and, on the other hand, the alleged antipathy of the SHA to the Claimant's general stance on the issue of public consultation on the transfer of Upper GI services.
- Mr Devonshire complains that the Tribunal failed to consider the specific link between the August disclosure and the treatment complained of because it proceeded on the basis that it was enough for the Respondent that the SHA objected to the general stance of the Claimant. He relies in support of that submission on the statement of the Employment Tribunal that:-
"…the reasons for the claimant's dismissal was due to pressure brought to bear on [the respondent] by the SHA and the reason for that pressure was the claimant's stance over the issue of consultation." 
- The Employment Tribunal also concluded that the:-
"Underlying motive [for the claimant's suspension] was his stance over the issue of consultation."
- We are unable to accept this criticism which takes these comments out of their correct context and treats the reasons of a Tribunal like a statute and as we have explained in paragraph 62(a) above, it would be one of the forbidden "appellate weaknesses" to focus too much on a particular passage rather than consider all the reasoning of the Employment Tribunal. The Tribunal did properly consider the evidence before it concluded that the August disclosure was the reason why the SHA took steps to ensure that the Respondent dismissed the Claimant.
- First, the Tribunal explained the SHA's position prior to 5 August 2008 in which it was stated that the cancer services would be transferred without public consultation, as was explained by Sir Ian Carruthers at the public meeting on 2 May 2008 and which we have quoted in paragraph 22 above. Second, the Claimant did not agree that public consultation was unnecessary and in the August 2008 disclosure, he made it clear that the Respondent and the PCT were under a duty to take part in prior public consultation in the light of the opinion from counsel; that was the justification and basis for the Claimant's statement that failing to consult would be unlawful. Third, the SHA's opposition to the Claimant's general stance on the need for consultation was a relevant consideration as it provided a background and the reason as to why the SHA regarded the August disclosure as "a severe irritant" as it provided justification for the Claimant's stance and stigmatised the opposing view as illegal. Fourth, the August disclosure made it clear that if the SHA and the PCT prevented public consultation, the PCT and the Respondent was likely to be in breach of legal obligations and the Claimant was not going to permit this breach to happen. Finally, matters were due to come to a head on 27 April 2009, which was just before the Claimant was dismissed when the dispute over the legal requirement for consultation on the proposed move (as distinct from engagement) was to be determined by a decision of the OSC, which the Claimant would normally have attended, as we explained in paragraph 58 above and "reiterated the advice"  (namely the legal requirement for consultation) so "he was to be got rid of" . As we explained in paragraph 58, the minutes of that meeting showed that the decision that there was a need for consultation for the change in the Upper GI services was reversed. In our view, this ground must be rejected.
- Mr Devonshire contends in the words of his skeleton that the Employment Tribunal:-
"Failed to consider whether [the respondent] knew of the SHA's prohibited motivation in subjecting [the claimant] to the acts of pre-dismissal detriment alleged (and if so when, and how [the respondent] acquired that knowledge), and/or in concluding that the respondent knew of that prohibited motivation at the time of the claimant's dismissal and/or in concluding that the respondent acted for the same prohibited reason simply by reason of the fact that they acted under pressure from the SHA."
- The case for the Respondent is that the decision-maker in the present case was the Respondent and not the SHA, and therefore the real question for the Tribunal was the reason why the Respondent acted as it did, especially as it is not alleged that the Respondent had the prohibited motivation but merely that the Respondent succumbed to pressure from the SHA. This, according to Mr Devonshire, would not fix the Respondent with the prohibited motivation of the SHA and certainly could not have done so if the Respondent did not know of the impermissible motivation of the SHA. He says it is not enough for the Employment Tribunal to conclude that the Respondent acted in accordance with the wishes of the SHA "as opposed to some other reason of their own". His case is that the Tribunal had to go further and to find that the Respondent knew of the improper motivation for that pressure not just at the point of dismissal but at the time of the earlier detriments alleged.
- We are unable to accept that criticism because the Employment Tribunal explained the facts that:-
i. The OSC was due to meet on 27 April 2009 to consider the issue of consultation and through Sir Ian Carruthers, the SHA expressed its determination in very forceful terms to ensure that the transfer of Upper GI services to Derriford went ahead come what may and that means without consultation;
ii. The SHA through Sir Michael Pitt and Sir Ian Carruthers had expressed serious criticism of the Claimant and his actions in giving the August disclosure was a severe irritant to the intentions of the SHA;
iii. If the Claimant had not been dismissed on 16 April 2009, there is every reason to expect that he would have resumed his post as Chief Executive and attended the OSC meeting on 27 April 2009 where at which he would undoubtedly have reiterated his advice that to proceed without consultation would be illegal and this would have presented a further obstacle to the plans of SHA to transfer the services;
iv. The Respondent has not established that its reason for dismissing the Claimant was a breakdown in trust and confidence so there is no reason why the Respondent wanted to dismiss the Claimant. There was clear evidence that the SHA supervised the Respondent and it regarded the August disclosure as a "severe irritant";
v. "Having regard to all the circumstances which we have set out we have come to the unanimous conclusion that we could and do draw the inference that the reason for the claimant's dismissal was due to pressure brought to bear on the [respondent] by the SHA and that the reason for that pressure was the claimant's stance over the issue of consultation. We are satisfied that when they took that decision that reason was known to the [respondent's] Board put shortly he was to be got rid" ; and that
vi. It is not open to the Respondent to dispute this inference when it failed to call Sir Ian Carruthers or any other representative of SHA or to give any reason for its failure to do so.
- This reasoning also shows why we cannot accept the next submission of Mr Devonshire which is that the reasoning of the Employment Tribunal showed that it failed to analyse the Respondent's state of mind merely observing that it succumbed to SHA pressure and that it failed to focus on whether the August disclosure (as opposed to the general hostility of the SHA to consultation) was the "causa causans" of the dismissal.
- For the avoidance of doubt, the Employment Tribunal did state in paragraph 80 that it reached its conclusion set out in paragraph 100 (v) above "having regard to all the circumstances which we have set out". Those circumstances included the fact that if the Claimant had not been dismissed before the meeting on 27 April 2009 he would have resumed his post as Chief Executive and attended that meeting and "had he done so he would undoubtedly have reiterated the advice [that had been given by counsel that i.e. the August disclosure]" . It therefore follows that the Tribunal concluded that the "causa causans" of the dismissal was the knowledge of the August disclosure. Thus we conclude that these and the decision of the Employment Tribunal cannot be justifiably criticised on this point.
- The contention of the Respondent is that the Employment Tribunal failed to address or to take into account matters of central significance as to the question of motivation on the part of both the Respondent and the SHA before concluding that the Claimant was being victimised for his "stance over the issue of consultation" and/or that this was a "severe irritant" to the SHA. The basis of this allegation was that this Appeal Tribunal in HM Land Registry v Grant  UKEAT/0232/09 had explained that if a Tribunal reaching a factual evaluation and applying legislation to it failed to take into account in its analysis a matter of central significance so that the parties did not know why on that point the decision had gone against one party or in favour of the other with the consequence that they were simply left in ignorance whether the point has ever been considered at all as it should have been, then this would constitute an error of law. As we have explained this matter was considered by the Court of Appeal and we have set out the applicable legal principles in paragraph 62 above.
- The complaint on this issue by the Respondent is that the Tribunal came to very trenchantly expressed conclusions without considering the totality of the evidence. Mr Devonshire contends that the Tribunal failed to make any findings in respect of the context of the consultation debate during the period when the Claimant was supposedly placed at a disadvantage by reason of the August Disclosure. The case for the Respondent is that the Tribunal ignored what Mr Devonshire describes as "highly significant evidential circumstances", which form part of the Respondent's case.
- Those factors were that by the time of the 5 August 2008 Board Meeting, the Respondent had accepted there had to be public consultation over the proposed transfer and whatever heat had been generated historically, consultation was by then a "given" and this was accepted by one of the Claimant's witnesses, Mr Byrne, the Medical Director, in cross-examination. It is also said that from October 2008, the Respondent was awaiting the result of the Griffin & Allum Reviews of Exeter and Plymouth as ordered by the OSC and recognised at its Board Meeting held on 31 October 2008. Those results were not expected until December 2008. The OSC would then have to decide what to do. Thus it is said from the Respondent's perspective, the status quo had been preserved for the time being. A further fact relied on by Mr Devonshire is that the Respondent had considered a plan from the PCN for Peninsular-wide consultation, including the commissioning of a MORI poll and user group meetings aimed at collecting and understanding the views of the public and patients on cancer services and reconsideration. This was according to Mr Byrne "a constructive document that gave everyone the opportunity to be involved and develop it in the right format".
- This process was pursued and the Claimant accepted that by March 2009, that there had been single-issue focus group meetings with LINK representatives to develop a series of local events followed by four meetings to hear the views and concerns with notices being placed in the press, on the radio and on websites to publicise these events together with personalised letters to Upper GI patients, their families and carers. It is said by Mr Devonshire, but disputed by the Claimant, that consultation was not an outstanding issue when the Respondents took the decision to dismiss and that the Tribunal did not have to decide whether the steps taken before 27 April 2009 exhausted the obligations of the PCT or of the Respondent to consult under sections 242 and 244, although the Respondent considered that as a matter of law that they did fulfil those obligations. Thus it is said that "consultation" was not an outstanding issue and indeed at the Trust and Confidence hearing, the forthcoming OSC hearing was "not even on the radar".
- The case for the Claimant is that all these steps constituted engagement and not consultation and therefore they could not, and would not, have been understood by the decision-makers as addressing the outstanding legal requirements. Mr Devonshire's complaint is that these matters are ignored by the Tribunal notwithstanding that these matters were considered in the decision. He stresses that what happened to the consultation debate after the suspension of the Claimant was relevant to the reason for dismissal and as the Employment Tribunal did not consider it, they were at fault.
- We are unable to accept these complaints particularly bearing in mind that these issues do not relate to the central issues which related to the nature, effect and consequences of the August disclosure. As we have explained, the Court of Appeal in Grant stressed first that the Tribunal is not obliged to refer to every matter in dispute but only such matters as are necessary to tell the party why they have won or lost; second where there is a conscientious and detailed analysis of all the evidence, a challenge to the reasoning of the Tribunal "is difficult to sustain" , and third "a finding that a Tribunal had ignored a central fact was not one which the Employment Appeal Tribunal would reach lightly" .
- In our view, the findings of the Employment Tribunal satisfy the requirements because the Employment Tribunal explained clearly the nature of the ongoing dispute in the debate as to whether or not consultation or engagement was necessary and how the Claimant was involved and affected by this debate. As we have explained, the position was that:-
(a) The implication from the Minutes of the meeting of 10 March 2008 was that the PCT was wishing to proceed without further consultation or public engagement and the difference between the two was made quite clear by Ms James in her evidence who said that unless the OSC directed there would be no public consultation which had been her position until late 2007 ;
(b) On 25 March 2008, the OSC met and agreed that the implementation of the plan should be deferred while there was a further period of public engagement and this was reported to the Respondent's Board ;
(c) On 31 March 2008, Sir Ian Carruthers was told by Peter Davies then Chief Executive of the Respondent that the Respondent considered that public consultation was important and that it would be wrong to proceed without it;
(d) On 1 April 2008 a meeting took place at the SHA's offices in Taunton and Ms James of the PCT considered that a 6-8 week period of public engagement would allow a further explanation of the facts before the transfer could be made and Sir Ian Carruthers stated that outstanding issues needed to be addressed as quickly as possible ;
(e) On 2 May 2008, Sir Ian Carruthers attended a meeting at St Mellion conference centre near Plymouth at which he is quoted as saying "public outcry will not work – waste of effort" and "the whole of Cornwall can sign the petition but won't change outcome" ;
(f) On 14 May 2008 the PCT said that there was no requirement to consult on the proposal referring Upper GI services and there had been a process of local engagement [32;]
(g) A draft statement was prepared on about 3 July 2008 and a meeting took place at which a draft report had been produced explaining that during May and June 2008, the PCT had conducted a period of public engagement and implicitly rejected consultation  but the Respondents objected to this ;
(h) On 15 July 2008, the OSC met and it was agreed that the PCT should undertake full public consultation this was contrary to the position previously adopted by the PCT and the OSC ;
(i) A few days later Ms James wrote to the Chair of the OSC expressing uncertainty as to the basis on what consultation was to take place and that the PCT was taking legal advice. The Respondent also took legal advice which, as we have explained, was "couched in very clear terms was that the PCT's approach was plainly unlawful… both the [respondent] and the PCT would be acting unlawfully if they attempted to move the Upper GI services from Truro to Plymouth without proper consultation" ; and that
(j) Reviews were being carried out by Professor Griffin and Mr Allum by which it was anticipated there would be a consultative document issued in the New Year in the hope that the single centre would be in place by the spring. This finding did not support the position that public consultation was to be part of the timetable .
- There is then the crucial conclusion of the Employment Tribunal (with emphasis added) that:-
"70. On 27 April the OSC held a committee meeting in Truro. Although the Chief Executive of the RCHT was not a member of that committee, he would normally have attended in that capacity, as indeed did PC, the acting Chief Executive. Had he been in post the claimant would have attended. It was anticipated that the issue of Upper GI cancer services would be discussed. The minutes of the meeting record the fact that in November 2007 the OSC had decided that the transfer to Derriford did not constitute a substantial change requiring consultation. The minutes recorded that, in the light of significant public concern, the matter had been reconsidered and the view had been formed that the proposals did represent a substantial change into services and the joint committee had been formed in order to deal with the issue of consultation. Subsequently it had been concluded that the service provided by RCHT was no longer sustainable. At the conclusion of a lengthy discussion, the OSC concluded that the proposal to establish a centralised Upper GI service at Derriford did not represent a substantial change to the services with the services carried out at RCHT and the RD & E being transferred to Derriford. The committee was satisfied that the PCT had undertaken appropriate public engagement and listened to the feedback and the decision on this issue was thus reversed."
- We agree with Miss McCafferty that if, as Mr Devonshire submits consultation was no longer "a live issue", there would have been no need for the OSC to take the decision it did on whether there was a need for consultation on 27 April 2009. Another reason why consultation was apparently still a live issue is shown by the fact that there was a "lengthy discussion" which indicates continuing uncertainty.
- In our view the Employment Tribunal was entitled to conclude in paragraph 71 that there had been a sufficient account of the factual circumstances as the Tribunal had identified the key points during the course of the debate as to whether consultation or engagement was required. No further information was required in the reasons which had adequately dealt with the central issues. It is worthwhile repeating the high threshold required before the Employment Appeal Tribunal will impugn a decision on the basis that a central issue was not considered, namely as we explained in paragraph 108 above that it would not reach such a decision "lightly" and this is a further ground for rejecting the case for the Respondent.
- As will be apparent, the case for the Respondent raised many issues and insofar as we have not expressly commented on any point, we should explain that we have considered them but not accepted it. We cannot leave this case without echoing the views of the Employment Tribunal first that "in many respects, we have found the evidence put forward by the respondent to be unsatisfactory"  and second that the failure of the Respondent to call several important witnesses (including in particular Sir Ian Carruthers, Sir Michael Pitt and John Mills) "is a matter of adverse comment" . Notwithstanding the able submissions of Mr Devonshire in those circumstances, the appeal must be dismissed.
Published: 19/08/2011 15:20