Metcalf v Surrey County Council, Court of Appeal - United Kingdom Employment Appeal Tribunal, March 08, 2018, [2018] UKEAT 0178_16_0803

Resolution Date:March 08, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Metcalf v Surrey County Council

Copyright 2018

Appeal No. UKEAT/0178/16/LA




At the Tribunal

On 17-18 October 2017

Judgment handed down on 8 March 2018











Transcript of Proceedings










UNFAIR DISMISSAL - Constructive dismissal

The Employment Tribunal erred in their approach to whether admitted detriments were done on the grounds of admitted protected disclosures within the meaning of section 47B of the Employment Rights Act 1996. They failed to apply the approach explained in Fecitt v NHS Manchester [2012] IRLR 64 of deciding whether the protected disclosure materially influenced the related detriment. Further the Employment Tribunal erred in adopting a `rolled up' approach to the disclosures and failed to make findings of fact in relation to each. They failed to adopt a structured approach to deciding the claims as recommended in Blackbay Ventures Ltd v Gahir [2014] IRLR 416. They did not relate each disclosure by date and content to each detriment by date and content. Further they erred in observing that no comparators had been advanced when none were needed. These errors also affected their decisions to dismiss the constructive and automatically unfair dismissal claims. Claims remitted to a differently constituted Employment Tribunal.





1. Dr Patel and Mrs Metcalf appeal from dismissal, by a majority in respect of some of these, of their claims of whistleblowing detriment and unfair dismissal against their employer, Surrey County Council, by an Employment Tribunal, Employment Judge Hyde and members (``the ET'') in a Judgment sent to the parties on 2 March 2016 (``the Judgment''). The parties will be referred to as they were before the ET: Dr Patel, the First Claimant, Mrs Metcalf, the Second Claimant and Surrey County Council, the Respondent. Ms Musgrave represented both Claimants before the ET. She represented Mrs Metcalf before the Employment Appeal Tribunal (``EAT''), before whom Dr Patel was represented by Ms Robertson. Mr Doughty represented the Respondent before the ET and the EAT.

2. The hearing before the ET occupied fourteen days with two reading days and six days deliberation in chambers. The ET had in excess of 2,200 pages of documents before them. In addition to their evidence, the Claimants called two witnesses. Seven witnesses gave evidence for the Respondent. The Judgment runs to 110 pages and 597 paragraphs.

3. Counsel for the Claimants produced for the ET a comprehensive Schedule of alleged protected disclosures made by the First and Second Claimants, giving the dates of the disclosure, by whom and to whom it was made. The alleged disclosures were headed: 1. Poor Clinical Governance of the Occupational Health Service and Concerns of Statutory Obligations Breaches, 2. Management of OH (Occupational Health) Department by Ms Brammer, 3. Bullying/harassment/victimisation by Ms Brammer due to raising protected disclosures. The Schedule then showed under the name of each Claimant the detriment alleged to have been suffered giving the date of each alleged detriment. The paragraphs in the ET1 relating to each allegation were shown on the Schedule. The Respondent's counsel produced a colour coded Schedule for the EAT showing the dates of the various events relied upon as disclosures and detriments dividing them into the following periods: pre 21 August 2013, 21 August to 6 September 2013, 7 to 30 September 2013 and 1 October 2013.

The Relevant Facts in Outline

4. The ET set out what were described as ``Outline factual background'' in 455 paragraphs from paragraphs 39 to 494. An overview only will be given in this section of the Judgment, turning to more detailed consideration of the findings of fact as necessary when considering the grounds of appeal. The claims by Dr Patel and Mrs Metcalf were heard together as were their appeals. The two appeals share many common features but some of the grounds of appeal are particular to each Claimant.

5. The Claimants were employed in the Occupational Health Department (``OH Department'') of Surrey Fire and Rescue Service (``SFRS'') for which the Respondent was responsible. The First Claimant was employed by the Respondent in the OH Department as a Consultant Occupational Physician from 3 June 2013 until her dismissal on 1 March 2014. The Second Claimant was employed by the Respondent as an Occupational Health Nurse from 10 June 2013 until her resignation on 10 January 2014.

6. The SFRS OH team provided specialist support for fire crews including health surveillance and fitness testing. It was a nurse led team headed by an OH Manager, Geraldine Brammer. Geraldine Brammer was a Registered General Nurse and qualified as an OH Practitioner in 1999. She had been in post for 14 years. Ms Brammer's line manager was Ms Liz Mills who was the SFRS Chief of Staff. Her line manager was Russell Pearson, Chief Fire Officer (``CFO'').

7. The responsibilities of the First Claimant included contributing to the continual development of the OH Services within SFRS, to include advice and development of policy and preparation of reports for the Fire Authority on health issues and to advise on the implementation of legal requirements, regulations and codes of practice. The responsibilities of the Second Claimant included providing advice and support to line managers on OH policy and procedure on cases, to undertake health surveillance and medical examinations, and to undertake risk assessments relating to health matters affecting the staff to ensure that all possible health solutions were explored.

8. The ET recorded at paragraph 58 that the Respondent accepted that there were issues which needed to be addressed in respect of the OH Department including some serious matters relating to statutory breaches.

9. The Respondent admitted that both Claimants raised serious concerns under the three tabulated headings in the Schedule of Disclosures. The Respondent accepted that all but 9 of 47 disclosures relied upon by the Claimants had been made and were protected disclosures. The ET observed that there were no categories of protected disclosures which did not fall to be taken into account.

10. From very early on in their employment the Claimants expressed serious concerns about practices and procedures in the OH Department. The Claimants specified the dates and content of each disclosure. The seriousness of the concerns expressed is illustrated by the categories under which the disclosures fell. These included: lack of a proper framework and policy for health surveillance, lack of adequate dermatitis and hearing surveillance, poor management of Hazmat incidents and management of employees exposed to hazardous agents, lack of policies and procedures for medical risk assessments to ensure Fire Fighter fitness for duty. There was an absence of proper medical benchmarks, lack of night worker surveillance, failure to maintain medical records securely and confidentially, failure to log health surveillance activity and recall process. There was only informal management of OH referrals and OH policies were outdated. There was lack of clarity regarding six-monthly breathing apparatus medicals/procedures, and the spirometer had not been calibrated by staff locally since 30 July 2012.

11. The Claimants expressed concerns about the clinical practice, conduct and competence of Ms Brammer in the light of poor clinical governance.

12. The Claimants made disclosures about alleged bullying, harassment and victimisation by Ms Brammer. Such disclosures were made on 23 September 2013 after both Claimants commenced a period of stress related sick leave on 17 September 2013. It was said, and the OH Physician agreed, that the stress was caused by work related issues. These were principally about failure by Ms Brammer to recognise and rectify their serious concerns about the OH Department and the Second Claimant's belief that she was being victimised for raising complaints about Ms Brammer.

13. On 19 September 2013 the Claimants submitted a joint whistleblowing complaint to Expolink Whistle Blowing.

14. The facts relevant to the detriments alleged to have been materially influenced by the disclosures were detailed on the Schedule before the ET. As with the disclosures, the dates of each detriment were given.

15. The ET set out the detriments alleged by each Claimant. These included an outline of the incidents relied upon.

Dr Patel: Summary of Detriments Alleged

16. At paragraph 556 the ET set out a summary of the detriments of alleged failure to properly investigate the complaints made by the First Claimant:

``556.1. 19 September 2013 - adoption of a non-clinician, Mr Pearson, with no experience in clinical matters to investigate the concerns lodged with Expolink.

556.2. 4 October 2013 - Mr Pearson failed to investigate the complaints as required in the Respondent's whistle-blowing policy including a failure to interview the Claimant or review supporting evidence.

556.3. 11 December 2013 - provision of redacted report from Santia. Report confirmed breaches of statutory obligations and poor clinical governance. Respondent still refused to investigate Expolink concerns.

556.4. 20 December 2013 - Respondent declined permission for Dr Patel to provide redacted audit report to NMC.

556.5. Ongoing failure to investigate protected disclosure about Ms Brammer's conduct/ competence. Dr Patel demeaned, harassed and side-lined...

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