July 2017 - How many witnesses should I call?


Message from the Editors,
Dan Hobbs & Clare Harrington

Welcome back to 'Five from 5', the free employment law bulletin created by the employment team at 5 Essex Court in association with Bloomsbury Law Online.

This month's bulletin contains five short articles on (i) whistleblowing and the public interest criteria; (ii) upcoming employment law training in Cambridge; (iii) analysis of the 'principal purpose' test in relation to staff transferring under TUPE; (iv) discussion of how many witnesses to call at Tribunal; and (v) the vexed question of entitlement to legal representation at internal disciplinary hearings.

The editors continue to draw upon the vast pool of experience and knowledge held by the 5 Essex Court employment law team whose members include Queen's Counsel, part-time employment judges and those appointed by the Attorney General to represent the Crown.



Wishing does not make it so…
An employer’s subjective belief that a whistleblowing disclosure is not ‘protected’ is irrelevant to liability

Alex Ustych

In Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401, the Court of Appeal dealt with an employment law issue arising (unusually) from a life-or-death situation. The Claimant, a cardiologist, was performing an operation when a nurse was suspended. The patient died. The Claimant made disclosures to his employer, including that suspending the nurse during the surgery contributed to the patient’s death (due to a delay in finding a surgical tool).

The hospital determined that the Claimant’s allegations were baseless and motivated by personal antagonism. He was dismissed on the ground that he had made false accusations of poor patient safety. An inquest later found that the nurse’s suspension did cause a delay in the surgery.

The Employment Tribunal found that the dismissal was automatically unfair, as the principal reason for his dismissal was the making of protected disclosures. Appeals followed.

The most interesting issue before the COA was whether the hospital’s belief that the disclosures were not protected (found by the hospital to have been made in bad faith or not in the public interest) meant that there was no automatically unfair dismissal.

The COA found that the belief of the hospital was irrelevant to the question under s. 103A of the Employment Rights Act 1996. As the tribunal found that the disclosures were (objectively) ‘protected’ and the Claimant was dismissed for making them, the finding of automatically unfair dismissal followed.

This judgment confirms that an incorrect analysis (even in good faith) by an employer of whether a disclosure was protected provided no protection against a whistleblowing claim. The determination of whether a disclosure is protected is an objective one, for the tribunal to make, and to hold otherwise would remove much of the protection offered by s. 103A.



Employment Training and Tea at the Tamburlaine

27 - 29 Station Road, Cambridge CB1 2FB
19th September 2017 (2 - 5pm)

Join 5 Essex Court, Birketts & Bloomsbury LawOnline for afternoon tea with three topics:

Investigations, Disciplinaries, Tribunal Hearings

A practical session for HR professionals, management and employment lawyers delivered by employment law specialists experienced in defending Employment Tribunal claims
•Learn what Tribunals expect in terms of best practice from practitioners with over 30 years experience in the Tribunal
•Our expert panel of employment lawyers will provide a legal update and a check list of "do's and don'ts" to help you avoid pitfalls and efficiently manage the disciplinary and hearings process

A half day of training delivered by Employment Law barristers from 5 Essex Court, Dan Hobbs and Clare Harrington and by Lorna Townsend, a legally trained investigations and employee relations consultant from Birketts.


Delegate fee: £35 + VAT

Email: events@5essexcourt.co.uk

Tel: Kate Cousins - 020 7410 2000


The Principal Purpose in Service Provision Changes under TUPE

Alastair Hodge

In order for a service provision change (SPC) to take place under TUPE there needs to be, immediately before the SPC, an organised grouping of employees which has as its principal purpose the carrying out of the activities on behalf of the client.

In Tees Esk & Wear Valleys NHS Trust v. Harland & ors [2017] UKEAT 0173 the client was an individual, known as “CE”, who needed extensive nursing care. The contract for this care was originally provided by the NHS Trust. The employees were part of an organised grouping looking after CE, but as CE’s condition improved, fewer people were needed. The team was retained, and kept its identity, but the Claimants were rostered to provide care for other service users as well.

That was the position when Danshell Ltd took over the contract from the NHS Trust.

During a preliminary hearing, the ET found that there was a change in the provision of the service (i.e. the care given to CE) from the NHS Trust to Danshell. It also held that there was an organised grouping of employees who had been put together to provide that service, and that group maintained its identity.

However, the principal purpose of the grouping had been diluted; the employees did not just work for CE, but for others too. So there was no SPC.

On appeal to the EAT, Judge Eady QC held it was right for the ET to have focused on the situation immediately before Danshell took over the contract. Although “principal purpose” does not have to mean “the only purpose”, the ET was entitled to find that the dominant purpose of the organised grouping was, at the time Danshell took over, the provision of care to a range of service users and not just CE.


How many witnesses should I call?

Clare Harrington

The recent case of Elmore v (1) The Governors of Darland High School (2) Wrexham County Borough Council UKEAT/0209/16/DM demonstrates that it is not always necessary to call the final decision maker to give evidence in an unfair dismissal claim.

In Elmore, despite the absence of a reasoned appeal decision or live evidence from a member of the appeal panel, the Employment Tribunal was entitled to infer that the appeal panel upheld the capability dismissal for the same reasons as those relied on by the dismissal panel itself.

The case concerned a capability dismissal that had the effect of ending the longstanding career of the Claimant, a maths teacher, at a mixed community comprehensive school in Wrexham.

The Claimant qualified as a teacher in 1984. In 2013 an inspection by the Welsh School Inspectorate identified the School’s performance in maths as consistently lower than that in similar schools. In due course, the results of exams in January 2014 showed that the Claimant’s class performed particularly poorly. The Claimant was managed under the School’s capability procedures.

Ultimately, the School was not satisfied with the Claimant’s performance and reached the conclusion that dismissal was appropriate in all the circumstances. The Claimant appealed to an Appeal Panel, which upheld the dismissal on capability grounds.

The Employment Tribunal determined that the dismissal was fair. It found that it was for the employer to set the standard asked of employees of the School and not for the Tribunal to substitute its own view as to the standard or as to the extent to which the employee reached the standard.

The Tribunal looked at the procedure as a whole and reached the conclusion that the decision to dismiss was both procedurally and substantively fair and fell within the band of reasonable responses.

The Tribunal recognised that the decision of the appeal panel did not set out reasons for upholding the original decision to dismiss. Nevertheless, the Tribunal concluded,

…it can be gleaned that by upholding the original decision the appeal panel accepted the decision made and the reasons for the decision made at the earlier stage. …

The Tribunal did observe that it might have been more helpful to have heard oral evidence from a member of the appeal panel but it was satisfied that the process looked at as a whole was a fair process.

In the EAT, Mrs Justice Simler DBE (President) sitting alone, heard arguments from the Claimant that the Employment Judge erred in law in concluding that the dismissal was procedurally fair. In particular it was argued that the decision of the appeal panel provided no reasons for the decision to dismiss the appeal and there was no evidence given by any member of the appeal panel.

The Claimant contended (and it was accepted by the EAT) that an employee must be offered the opportunity to appeal against any formal decision made by his employer and that must not amount to a formality or sham.

It was submitted that there was no material that could enable the Employment Judge to make a proper finding that the appeal was a properly considered appeal rather than a sham or rubber stamping exercise.

Simler J stated that the context was important when looking at the appeal stage in this case. Firstly, there was neither any fresh evidence nor any new or alternative arguments put before the appeal panel that had not been advanced before the original panel. Secondly, the minutes of the appeal hearing were produced and made available to the Claimant and the Tribunal. The discussion reflected in those minutes was inconsistent with any suggestion that the appeal hearing was a mere formality or rubber stamping exercise. Thirdly, the Employment Judge had found that it was implicit that by upholding the original decision, the appeal panel accepted not only the decision made by the capability hearing panel but also its reasons.

Simler J accepted that the EJ had drawn a permissible inference that the appeal panel dismissed the appeal on the same grounds and for the same reasons as those identified by the dismissing panel.

Simler J: ‘I do not accept that there is a legal requirement in every unfair dismissal case where reasons for dismissing an appeal are not given, for the appeal officer to give evidence at a tribunal hearing in order to enable the tribunal to find that the dismissal procedure as a whole is fair. Whether or not an appeal officer is required to give evidence is a fact sensitive question that inevitably depends on the circumstances of that particular case.’


Legal representation at internal disciplinary hearings – a changing tide?

Victoria von Wachter

There has been a slew of cases over the last few years on whether legal representation should be allowed in disciplinaries where the outcome could be career ending rather than limiting.

The starting point is that the Employee Relations Act 1999 created the Statutory right to be accompanied at disciplinary hearing. The persons accompanying are limited to colleagues or Trades Union representatives.

However, in the police force and where an officer faces possible dismissal there is a statutory right to be represented at the misconduct hearing.

In Kulkarni v Milton Keynes 2009 IRLR 829, a trainee doctor was held to be entitled to legal representation mainly on grounds that this right was enshrined in his contract. However Law LJ opined obiter that the right to legal representation could be determined by the severity of the outcome (insofar as outcomes that ended a career were far more likely to attract an argument for legal representation).

This was later developed in R (G) v Governors of X School 2011 IRLR 756 which held that where a career ending outcome could be envisaged, there was the possibility of an Article 6 ECHR argument (right to a fair trial)for legal representation.

The obiter position in Kulkarni was later overturned in Mattu v University Hospitals of Coventry 2012 IRLR 661 and later, on different facts, it was held in an unrelated case that Article 6 could not apply to disciplinaries.

Why then the situation with respect to a police officer whose career is ended if dismissed – is this so different to other professions where a dismissal will end a career? AND - how long will it be before this position is challenged once more?

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