Blackbay Ventures Ltd (t/a Chemistree) v Gahir (Victimisation Discrimination : no sub-topic), Court of Appeal - United Kingdom Employment Appeal Tribunal, March 27, 2014, [2014] UKEAT 0449_12_2703

Resolution Date:March 27, 2014
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Blackbay Ventures Ltd (t/a Chemistree) v Gahir (Victimisation Discrimination : no sub-topic)

Copyright 2014Appeal Nos. UKEAT/0449/12/JOJUKEAT/0450/12/JOJEMPLOYMENT APPEAL TRIBUNALFLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE At the Tribunal On 30 May 2013 Judgment handed down on 27 March 2014BeforeHIS HONOUR JUDGE SEROTA QCMS V BRANNEYMRS R CHAPMANBLACKBAY VENTURES LTD T/A CHEMISTREE APPELLANTMS K GAHIR RESPONDENTTranscript of ProceedingsJUDGMENTUKEAT/0449/12/JOJUKEAT/0450/12/JOJUKEAT/0449/12/JOJUKEAT/0450/12/JOJ APPEARANCESUKEAT/0449/12/JOJUKEAT/0450/12/JOJ-39-SUMMARYVICTIMISATION DISCRIMINATIONWhistleblowingDetriment1. The Claimant was employed by the Respondent which operates a number of pharmacies on 16 August 2010 as a Responsible Pharmacist. Her responsibilities involved the monitoring and securing compliance with the various statutory requirements and guidance laid upon the Respondent2. Her employment commenced on 16 August 2010 and lasted 18 days, 7 of which were induction. She was in post for only 11 days including a Bank Holiday weekend.3. The relationship between the Claimant and her superiors was poor because the Respondent resented the fact that the Claimant had questioned the Respondent's practices and procedure and had behaved in an unco-operative manner. She was dismissed on 3 September 2010. During the course of the 11 days she sent emails on 16 August 2010 and 31 August 2010 raising what she said were some 17 separate health and safety concerns and concerns about failures to comply with legal obligation, which she claimed were thus `qualifying disclosures.' The Respondent responded to the emails at once and agreed to put in hand any necessary changes to its procedures.4. It is by no means clear which of these 17 matters can be said to have tended to show either breaches of legal obligations or that the health and safety of an individual had been or was likely to be put at risk.5. The Claimant claimed that she had suffered detriment as a result of making protected disclosures and had been dismissed for having done so. Her case on detriment, accepted by the Employment Tribunal, was that by reason of the Respondent failing to address the issues or deal with them adequately, she suffered the stress of having to work in the role of the Responsible Pharmacist despite having serious concerns about numerous areas of the Respondent's practice.6. The Employment Tribunal held that the Claimant had been dismissed because the Respondent resented the fact that the Claimant had questioned the Respondent's practices and procedures and went on to find that the dismissal was automatically unfair ``the principal reason'' for her dismissal was that the making of a protected disclosure.7. The Employment Tribunal considered the protected disclosures in a rolled up manner and made inadequate findings as to:a. the source of the relevant obligations.b. which of the alleged qualifying disclosures were protected.c. the dates of the acts or deliberate failures to act said to be protected disclosures.8. The Employment Appeal Tribunal suggested that when considering claims by employees for victimisation for having made protected disclosures Employment Tribunals might take the following approach:a. Each disclosure should be separately identified by reference to date and content.b. Each alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered as the case may be should be separately identified.c. The basis upon which each disclosure is said to be protected and qualifying should be addressed.d. Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the Employment Tribunal to simply lump together a number of complaints, some of which may be culpable, but others of which may simply have been references to a checklist of legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Unless the Employment Tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered. If the Employment Tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest act or deliberate failure to act relied upon and it will not be possible for the Appeal Tribunal to understand whether, how or why the detriment suffered was as a result of any particular disclosure; it is of course proper for an Employment Tribunal to have regard to the cumulative effect of a number of complaints providing always they have been identified as protected disclosures.e. The Employment Tribunal should then determine whether or not the Claimant had the reasonable belief referred to in S43 B1 of ERA 1996 under the `old law' whether each disclosure was made in good faith; and under the `new' law introduced by S17 Enterprise and Regulatory Reform Act 2013 (ERRA), whether it was made in the public interest. f. Where it is alleged that the Claimant has suffered a detriment, short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the Claimant. This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the Respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act.g. The Employment Tribunal under the `old law' should then determine whether or not the Claimant acted in good faith and under the `new` law whether the disclosure was made in the public interest.9. The Respondent's appeal against the decision that the Claimant had suffered detriment was allowed but the Employment Appeal Tribunal dismissed its appeal against the decision that the dismissal was automatically unfair because the Employment Tribunal had found that the `principal reason' for the dismissal was the making of a protected disclosure.HIS HONOUR JUDGE SEROTA QCIntroduction1. This is an appeal by the Respondent from decisions of the Employment Tribunal at Brighton and Havant presided over by Employment Judge Cowling. The decision on merits is dated 22 February 2012 and that on remedy 3 July 2012.2. The Employment Tribunal found that the Claimant had been unfairly dismissed contrary to section 103A of the Employment Rights Act (ERA) for making protected disclosures. It also found that she had suffered detriment within the meaning of section 47B and was awarded compensation in the sum of £17,520.24. On 24 April 2012 the appeal was disposed of under rule 3(7) of the Employment Appeal Tribunal Rules by HHJ Peter Clark. However, at a hearing under rule 3(10) of 13 July 2012 HHJ David Richardson referred the appeal to a full hearing, which we have heard.The relevant facts3. We take these largely from the Judgment of the Employment Tribunal. The Notice of Appeal and skeleton argument in support are relatively lengthy; we shall keep our summary of the facts as brief as we are able, bearing in mind that appeals to the Employment Appeal Tribunal are on points of law only and not questions of fact. The Respondent operates a number of pharmacies and is subject to the jurisdiction of and regulation by a General Pharmaceutical Council. It operates a number of pharmacies that supply prescribed medication using a monitored dosage system to patients who are unable to attend a pharmacy. The Respondent conducts its business by internet and mail order. It is, therefore, only able to provide services to patients remotely. The Respondent operates some five depots, which are all mail order/internet-only pharmacies, including one in Eastbourne.4. The General Pharmaceutical Council issues guidance to ``Responsible Pharmacists'' who are in charge of regulated pharmacies. All Responsible Pharmacists are obliged to comply with the relevant statutory requirements, including those under the Medicines Act 1968 (MA) and the Medicines (Pharmacies) (Responsible Pharmacists) Regulations 2008 (M(P)(RP)R). Responsible Pharmacists are also obliged to follow the ``Guidance for Responsible Pharmacists'' issued by the General Pharmaceutical Council.5. The Claimant was employed on 16 August 2010 in the Respondent's Eastbourne depot as a part-time assistant occupying the role of Responsible Pharmacist. Her employment as such began on 23 August 2010 after she had undertaken a one-week induction at the Respondent's head office in Park Street outside St Albans.6. She was dismissed on 3 September 2010. Her employment lasted 18 days, of which she was in post for only 7. Those 11 days included a Bank Holiday weekend.7. Prior to the commencement of the Claimant's employment, a Mr Denton, a professional standards inspector of the Royal Pharmaceutical Society of Great Britain, had undertaken a routine inspection at the Eastbourne depot on 19 July 2010 and had prepared a controlled-drugs inspection report form, which raised a number of points that the Respondent attended to, inter alia by issuing a revised standard operating procedure in relation to controlled drugs.8. On 23 August the Claimant attended at the Eastbourne depot and was introduced to staff. On 25 August 2010 the Claimant sent an email to Ms Mwenso, the clinical pharmacist manager, with a copy to Ms Mitchell, the human resources manager, and to Mr Budhdeo, a director, raising what she said were health and safety concerns. The matters that she raised included the monitoring of refrigerator temperatures...

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