Ministry of Justice v Sarfraz [2011] UKEAT 0578_10

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1. The Respondent in this appeal, the Claimant in the substantive proceedings, was employed by the Appellant, the Ministry of Justice, as a legal adviser in the Gloucester Magistrates Court. To avoid confusion I will refer to the parties simply as the Claimant and the Respondent. The Claimant was summarily dismissed with effect from 1 October 2010.

2. In the present proceedings - I should say there are other related Employment Tribunal proceedings in progress - the Claimant claims for unfair dismissal, including a claim of “automatic” unfair dismissal pursuant to section 103A of the Employment Rights Act 1996, which forms part of the so-called whistleblower provisions of the Act. By sections 128 and 129 of the Act an employee who has made a claim of unfair dismissal pursuant to section 103A may seek interim relief in the form of an application that his employment be continued pending the determination of his claim. The Appellant has made such an application, and it came before Employment Judge Sara, sitting alone, in Bristol on 28 October 2010. The hearing lasted a day. The Claimant appeared in person. The Respondent was represented by Mr George Rowell of counsel. The Judge heard evidence from the Claimant and from Mr Andrew Davison, who took the dismissal decision. I have a note of that evidence which is agreed, save in a few respects which are not material for present purposes. The Judge reserved his decision. By a Judgment and Reasons sent to the parties on 5 November he made the order sought.

3. What is before me is the Respondent’s appeal from that decision. Again, the Claimant has appeared in person and the Respondent has been represented by Mr Rowell.

4. The facts can be sufficiently summarised at this stage as follows.

5. The Claimant moved to Gloucester from the Yeovil Magistrates Court in September 2006. From at least late 2008 there were performance concerns about him. At his annual performance review on 27 March 2009 his manager, Mr Akif, gave him an “improvement required” marking and put him on a performance improvement plan. He appealed, and Ms Benbow, the Deputy Justices’ Clerk for Gloucestershire, changed the marking to “effective” on the basis that he had had no adequate warning that a lower marking was being contemplated. However, the performance improvement plan remained in place.

6. The Claimant’s relationship with Mr Akif deteriorated. He was given an informal written warning for his attitude towards him on 9 June. The following day he submitted a formal grievance. The grievance was reviewed by a Ms Joy in the dispute resolution team at the Ministry, who advised the responsible HR manager, Ms Woollaston, that the Claimant should be told that his grievance was not in a form which accorded with the Respondent’s grievance procedures. That advice was passed to Mr Seath, the Justices’ Clerk for Gloucestershire, and no further steps were taken at that point to progress the grievance. The Claimant raised the possibility of taking proceedings in the Employment Tribunal and the Respondent was contacted by his solicitors. However, he also said that he would not need to take matters further as long as he was left alone, an attitude which his managers regarded as an abuse of the grievance procedure.

7. There were further criticisms of the Claimant’s performance in the autumn of 2009.

8. On 13 December the Claimant submitted a grievance which incorporated much of the contents of his grievance of 10 June, though it also complained of subsequent matters. It ran to some 23 pages and contained 85 paragraphs. The main part of it is headed “Harassment / Bullying / Victimisation / Racial / Religious Discrimination / Breach of Human Rights”. It proceeds to a narrative of the conduct, or alleged conduct, complained of on the part of the Claimant’s managers between March and December 2009. Although the incidents as described in the grievance are clearly presented as demonstrating unreasonable behaviour on the part of various managers, there is no attempt to fit them into a legal framework beyond the general heading that I have described. There is, for example, no explicit allegation that the managers in question were motivated by his having done any protected act or by his race or religion - I should say that he is a Muslim of Pakistani origin. Indeed in this last regard the only incidents which ostensibly relate to matters of race or religion are an incident when Ms Benbow is said to have complained of his conducting a loud telephone conversation in Urdu and another incident when Mr Akif, himself apparently a Muslim, is said to have said that the Claimant should be governed more by common sense than by religious rules which were hundreds of years old.

9. On 18 December, that is to say less than a week after the grievance had been submitted, Mr Seath suspended the Claimant and notified him that a disciplinary investigation would be initiated. The subject-matter of the investigation was defined as follows:

“The investigation is to determine whether your conduct since March 2009 has amounted to misconduct, specifically at issue is your conduct towards management and whether this has destroyed the relationship of trust upon which the employment contract is based and makes any further working relationship impossible. Also at issue is your repeated and unwarranted allegations and behaviour towards management at any time that your performance or conduct is questioned.”

10. Thereafter two concurrent investigations proceeded, one pursuant to the grievance procedure and one under the disciplinary procedure. The former was conducted by Mr Peter Veits, the Justices’ Clerk for Lincolnshire, and the latter by Mr Davison, who was the Justices’ Clerk for South Yorkshire. Both had HR assistance. In the case of Mr Veits, the HR adviser in question was Ms Woollaston, to whom I have already had occasion to refer.

11. Although the subject-matter of the two investigations overlapped, they were conducted entirely separately. Mr Veits reported in July 2010: he dismissed the Claimant’s grievances. Mr Davison reported on 20 August 2010, recommending disciplinary proceedings. The reports, both of Mr Veits and Mr Davison, were substantial and detailed.

12. A disciplinary hearing took place before, again, Mr Davison on 1 October 2010. At the conclusion of the hearing the Claimant was, as I have already said, summarily dismissed. The decision was formally confirmed by letter dated 8 October. The reason for the dismissal was stated to be that the disciplinary charges against him, which corresponded to the subject-matter of the investigation which I have quoted already, were made good. The relevant passage in the letter of 8 October:

“I was satisfied, based on my findings as set out in my investigation report, that the two allegations of misconduct, namely that:

Ø Your conduct since March 2009 has amounted to misconduct. Specifically at issue is your conduct towards management and whether this has destroyed the relationship of trust upon which the employment contract is based ad makes any further working relationships impossible; and

Ø Your repeated and unwarranted allegations and behaviour against management at any time that your performance or conduct is questioned

are proved.

· In particular I find that your misconduct since March 2009 and culminating in December 2009 has destroyed the relationship of trust on which the employment contract is based, making further working relationships impossible.

· My detailed findings are itemised in my report and I do not propose to repeat them here.”

13. I turn to the relevant law. I need not set out the whole of sections 128 to 129 of the 1996 Act. For present purposes the relevant provision is section 129 (1), which reads:

“This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find

(a) that the reason (or, if more than one, the principal reason) for his dismissal is one of those specified in

(i) section 101(1)(a) and (b), 101A(d), 102(1), 103 or 103A or

(ii) […]

(b) […]”

In this case the relevant provision for the purpose of sub-paragraph (a) (i) is section 103A. This reads:

“An employee who is dismissed shall be regarded for the purpose of this part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

“Protected disclosure” is defined by section 44A as follows:

“In this Act a “protected disclosure” means a qualifying disclosure (as defined by Section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”

“Qualifying disclosure” is defined by section 43B (1) as follows:

“In this Part 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‑

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling with any one of the preceding paragraphs has been or is likely to be deliberately concealed.”

Section 43C (1) reads:

“A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith‑

(a) to his employer or,

(b) […].”

14. Thus in order to make an order under sections 128 to 129 the Judge had to have decided that it was likely that the Tribunal at the final hearing would find five things: (1) that the Claimant had made a disclosure to his employer; (2) that he believed that that disclosure tended to show one or more of the things itemised at (a) to (f) under section 43B (1); (3) that that belief was reasonable; (4) that the disclosure was made in good faith; and (5) that the disclosure was the principal reason for his dismissal.

15. I shall consider how the Judge dealt with each of those five points, but I must first deal with a submission by Mr Rowell that he gave a meaning to the word “likely” which set the bar for the Claimant too low.

16. The meaning of “likely” in the context of these sections, and of the analogous provisions of earlier legislation dealing with dismissal by reason of trade union membership or activity, has been the subject of a certain amount of authority. The leading case is Taplin v C Shippam Limited [1978] ICR 1068 (see also [1978] IRLR 450). In the judgment of the Tribunal in that case Slynn J recited the self-direction by the industrial tribunal chairman as follows (taking the paragraph numbers from the IRLR report):

“13. In his decision, the Chairman of the Tribunal directed himself as to the meaning of ‘likely in s.78(5). He referred to a previous decision of the Industrial Tribunal of which he had been Chairman in the case of Johnson v Great Clowes Discount Warehouse Ltd (unreported). In that case the Tribunal had drawn a distinction between ‘possible’ (where the Tribunal considered that there would be a less than 50% chance of success), ‘probable’, which was regarded as being more likely than not, when the chance of success would be more than 50%, and ‘likely’, where the Tribunal said that this meant ‘that the chances have to move a degree nearer certainty than would be the case if the word “probable” had been used’. They referred to the Shorter Oxford Dictionary definition of ‘likely’ as ‘seeming as if it would prove to be as stated’. They concluded that the word ‘likely’ is a degree nearer certainty than would be the case if only the word ‘probable’ had been used.”

On the basis of that direction the industrial tribunal had refused the application for interim relief. The applicant argued on appeal that the approach taken by the tribunal involved imposing too high a standard and that “likely” should be treated as equivalent to “having a reasonable prospect of success”. After setting out that submission Slynn J proceeds:

“21. Having considered all these matters which have been urged before us we are unanimously of the view that the test proposed by Mr Hands of a ‘reasonable prospect of success’ is not one which should be adopted. The phrase can have different shades of emphasis, the lowest of which we do not think is sufficient. We do not consider that Parliament intended that an employee should be able to obtain an order under this section unless he achieved a higher degree of certainty in the mind of the Tribunal than that of showing that he just had a ‘reasonable’ prospect of success. The employee begins with a certificate from the trade union official certifying that there appear to be reasonable grounds for supposing that the reason for his dismissal was the one alleged. We consider that the Tribunal is required to be satisfied of more than that before it can appear ‘that it is likely’ that a Tribunal will find that a complainant was unfairly dismissed for one of the stated reasons.

22. On the other hand we are not persuaded that there is a dichotomy between ‘probable’ and ‘likely’ as expressed by the Chairman of the Industrial Tribunal. We find it difficult to envisage something which is likely but improbable or probable but unlikely and we observe that the Oxford Dictionary definition does define ‘likely’ as ‘probable’. Nor do we think that it is right in a case of this kind to ask whether the applicant has proved his case on a balance of probabilities in the sense that he has established a 51% probability of succeeding in his application, as has at one stage been contended before us. Nor do we find Mr Hands’ alternative suggestion of a real possibility of success to be a satisfactory approach. This again can have different shades of emphasis. It seems to us that the section requires that the employee shall establish more clearly that he is likely to succeed than that phrase is capable of suggesting on one meaning. On the other hand it is clear that the Tribunal does not have to be satisfied that the applicant will succeed at the trial. It may be undesirable to find a single synonym for the word ‘likely’ but equally, we think it is wrong to assess the degree of proof which has to be established in terms of a percentage as we have been invited to do.

23. We think that the right approach is expressed in a colloquial phrase suggested by Mr White. The Tribunal should ask itself whether the applicant has established that he has a ‘pretty good’ chance of succeeding in the final application to the Tribunal.

24. Although the Chairman of the Tribunal expressed the burden of proof differently from the way which we have done we do not consider that there is any real difference of emphasis. He thought that ‘likely’ meant more than ‘probable’ and he regarded ‘probable’ as being ‘51% or more’.”

The discussion in Taplin was complicated by Slynn J having to address the unusual way in which the chairman had directed himself. A caviller might also say that “a pretty good chance of success” is not very obviously distinguishable from the rejected formula “a reasonable chance of success”. Nevertheless, the basic message of the judgment read as a whole is clear. In this context “likely” does not mean simply “more likely than not” - that is at least 51 per cent - but connotes a significantly higher degree of likelihood. Slynn J understandably declined to express that higher degree in percentage terms, since numbers can convey a spurious impression of precision in what is inevitably an exercise depending on the Tribunal’s impression.

17. Taplin, so understood, has been applied in a number of decisions of this Tribunal. I was referred in particular to Blitz v Vectone Group Holding Limited UKEAT/0306/09, Dandpat v University of Bath UKEAT/0408/09 and Raja v Secretary of State for Justice UKEAT/0364/09. Dandpat is perhaps the most significant of those three since it expressly addressed and rejected a submission that Taplin should be revisited following the decision of the House of Lords in SCA Packaging Limited v Boyle [2009] ICR 1056, and since permission to appeal was, for somewhat unusual reasons, refused by the Court of Appeal on two separate occasions - first by Arden LJ and secondly by Smith LJ. I was also referred to the decision of Lightman J in Bank of Credit and Commerce International SA v Ali (no.2) [1999] IRLR 508, at paragraph 54 (page 1377). Lightman J made clear his understanding that the effect of Taplin was that a “pretty good chance” meant more than merely a 51 per cent probability, though the issue before him was not concerned with the present provisions.

18. The Employment Judge in the present case set out paragraphs 21 to 23 of the judgment of Slynn J in Taplin and then said this, at paragraph 4 of the Reasons:

“It is probably unwise to comment further on this analysis except to say that it is stronger on what the Tribunal should not do than on what the Tribunal should do and that Slynn J was rejecting the whole concept of assessing the standard of proof in terms of percentages and was not saying that the standard of proof required is higher than the balance of probabilities, but rather that it is different. However, the outcome of the appeal was that the decision by the Industrial Tribunal that “likely” is nearer to certainty than “probable” was not overturned.”

19. Mr Rowell submits that that passage shows that the Judge misunderstood the effect of Taplin. I accept that it is not very well worded. The Judge seems to have found some difficulties with Slynn’s J judgment which, with respect, I do not think are present. To say that Slynn J was saying not that the standard of proof required is “higher” than the balance of probabilities but that it is “different” is a little difficult to understand, but I agree that it could, out of context, suggest that a less than 50 per cent chance of success would, or in any event could, suffice. However, the concluding sentence of the passage seems to me to make clear that the Judge had understood the essential point which emerges from Taplin: “likely” connotes something nearer to certainty than mere probability. I can accordingly see no misdirection on the part of the Judge as regards this point.

20. I turn back, therefore, to the five conditions identified above for the making of an order.

21. As to (1), although there were arguably qualifying disclosures earlier in the story than the Claimant’s grievance of 13 December 2009, he sensibly accepted that that was the only one which mattered for present purposes since, if any qualifying disclosure was the principal reason for dismissal, it could only have been the most recent. Mr Rowell does not dispute that this document constitutes a disclosure - or that it contains a series of disclosures - by the Claimant to his employer.

22. As to (2) - that is, whether the Claimant believed that that disclosure, or those disclosures, tended to show one or more of the things listed at (a) to (f) - this too is not controversial, at least for the purpose of this application. The Judge at paragraphs 22 to 23 of the Reasons says that the allegations disclosed in the grievance appear to show breaches of a number of different legal obligations so as to fall within section 43B (1) (b). He itemised the legal obligations in question as:

· “The obligation not to discriminate on the grounds of race or religion,

· The obligation not to harass an employee in breach of the Protection from Harassment Act 1997, which can be litigated in the civil courts as well as in the criminal courts.

· The breach of the mutual obligation of trust and confidence and

· The provisions of the Human Rights Act 1998 (Article 8 of the 1st Schedule - the right to a private life)”

Those broadly correspond to the terms of the headings which I have quoted from the Claimant’s grievance. Although I have observed that the grievance does not contain any real characterisation of the Claimant’s complaints in legal terms, it is certainly true that the allegations in it would, if they presented a fair picture, show unreasonable behaviour on the part of the Respondent and that such behaviour would be capable of constituting a breach of the so-called Malik term, with which I shall deal more fully below. That would be a sufficient basis for a finding that the Claimant genuinely believed that the matters disclosed constituted a breach of one or more legal obligations on the part of the Respondent. At paragraph 25 of the Reasons, which I set out below, the Judge found that it was indeed likely that the Claimant would establish that much, and it is accepted on this appeal that that conclusion was open to him in law, though Mr Rowell made it clear that he made no concession for the purpose of the final hearing.

23. Question (3) is whether the Claimant’s belief that the matters disclosed tended to show breaches of a legal obligation was reasonable. It is at this point that the Respondent first takes issue with the Judge’s reasoning. The relevant paragraph in the Reasons is paragraph 25, which reads as follows:

“It seems to me without question that, on the basis of the Sodhexo definition of a qualifying act, the bulk of that grievance amounts to a qualifying disclosure. It is true that the disclosure must be “in the reasonable belief of the worker making the disclosure”, but the grievance investigation concludes that “Shahzad feels aggrieved at his treatment at Gloucester”. In these circumstances I feel bound to conclude that he had a reasonable belief in the allegations he made.”

(The reference is to the decision of this Tribunal in Parkins v Sodhexo Limited [2002] IRLR 109, but I need not refer to that authority further for present purposes.) The problem with that paragraph is that it rolls up the question of whether the Claimant genuinely held the relevant belief with the separate question of whether that belief was reasonable and, further, that the only reason given for the Judge’s conclusion is one that goes to the former and not the latter question. The only reason given for the Judge’s conclusion is that the “grievance investigation”, that is Mr Veits’ report, appeared to treat the Claimant’s grievances as genuinely felt. That, of course, says nothing about whether they were reasonable. I am, therefore, bound to find that the Judge, who did not address the question of reasonableness at any other point in his Reasons, failed to deal with an indispensable question. I return to the consequences of that failure in due course, but I should, for completeness, refer to the other two requirements for the making of an order.

24. As to question (4) - namely whether the Claimant made his disclosure in good faith - the Judge first poses this question at paragraph 26 of the Reasons, but the immediately following paragraphs digress on to the different issue of the principal reason for the dismissal, to which I will come presently. At paragraph 33, however, he returns to the question of good faith and refers to the leading case of Street v Derbyshire Unemployed Workers’ Centre [2005] ICR 97, quoting in particular an observation by Auld LJ that the purpose of the whistleblower provisions:

“[…] is not to allow persons to advance personal grudges, but to protect those who make certain disclosures in the public interest”.

The Judge concludes that the Claimant is likely to establish that he acted in good faith, essentially for two reasons.

25. The first reason, expanded at paragraph 34 of the Reasons, is that Mr Veits’ report described the Claimant essentially as immature rather than malicious. I should read the whole of the paragraph since I shall rely on it in part at a later stage of this judgment. It reads as follows:

“There are two factors here which help the Claimant. The first is the conclusion of the Grievance Investigation which is very far from suggesting that the allegations were the result of a personal grudge.

‘Almost all [people interviewed] like Shahzad as an individual but many highlighted that his behaviour at times could be inappropriate and at times even challenging.

My conclusion is that Shahzad cannot assess his own performance accurately and when management has tackled poor performance issue he has reacted badly.’

In the perspicacious assessment of the Claimant’s character in the Investigation Report Mr Veits describes him as immature and unable to assess his own performance objectively. He never refers to him as bearing a grudge or being devious. This seems to me a very measured and gentle reproof, suggesting that the Claimant is misguided rather than malicious. I might say that my impression, on a much shorter investigation, was rather different. He seemed to me to be intransigent and unable to understand the requirement of employees to provide faithful service and to accept the authority of their managers. However, I am reluctant to make findings which go beyond those made by the senior magistrates’ clerks entrusted with the enquiry.”

26. The Judge’s second reason, which is developed at paragraphs 35 to 37 of the Reasons, is that two of the Claimant’s managers made observations about his religious faith which the Judge thought inappropriate. I am not entirely sure how these bear on the issue of the Claimant’s good faith in making his disclosures, but I need not consider this aspect further.

27. Mr Rowell submits that there was a misdirection in the Judge’s reasoning as so summarised. He says that it is clear that the Judge treated the issue of good faith as turning on the question of whether the Claimant was acting in pursuit of a personal grudge. That was not, he said, how he had put the case below: rather, he had focussed on the question of ulterior motive, his case being that the Claimant was deliberately using the grievance procedure and/or the threat of Employment Tribunal proceedings to deter the Respondent from pursuing their criticisms of his performance. He submitted that on the authorities a motive of this kind would constitute bad faith even if it involved no element of personal grudge or malice. I was referred to Mr Rowell’s written submissions before the Judge which confirmed that that is indeed how the case was put, and I am bound to say that the Judge’s reasons do, on that basis, seem somewhat to miss the point. In view, however, of the plain failure identified in relation to step (3), I need not decide definitively whether this amounts to an error of law sufficient by itself to vitiate the Judge’s decision.

28. I turn finally to question (5), namely whether the disclosures made in the grievance document on 13 December were the principal reason for the Claimant’s dismissal. As I have said, the Judge dealt with this at paragraphs 27 to 32 of the Reasons, and he returns to it at paragraphs 39 to 41. He referred to the burden of proof, citing Kuzel v Roche Products Limited [2008] ICR 799, and held that the close temporal link between the lodging of the grievance and the commencement of the disciplinary investigation clearly put the evidential burden on the Respondent to show that the disclosures were not the principal reason for the Claimant’s dismissal. He then said at paragraph 30:

“I was very impressed by Mr Davison and I am confident that he approached the case in accordance with the allegations and the evidence without being influenced by the inconvenience of having someone pursuing extensive grievances.”

However, he pointed out that the disciplinary charges themselves referred to the “unwarranted” allegations made in the grievance and to the fact that, however unsatisfactory the Claimant’s attitude towards his managers may have been, it was only when the grievance was submitted that disciplinary procedures were initiated. He made essentially the same point at paragraphs 39 to 40. In his view it was likely that the making of the disclosures would indeed be held to have been the principal reason for the Claimant’s dismissal.

29. It may be that at the final hearing the Respondent will be able to disprove the connection between the grievance and the start of disciplinary proceedings or to make some relevant distinctions; but I do not think that I could possibly say that the Judge was not entitled to reach the conclusion that he did on this element.

30. The position, therefore, is that some aspects of the Judge’s reasoning do indeed pass muster but at least one, and possibly two, are legally flawed. Specifically, he failed to address an essential element, namely the question whether the Claimant’s belief that he was disclosing information which tended to show a breach of legal obligations on the part of the Respondent was a reasonable belief. That failure seems to me fatally to undermine his decision.

31. I canvassed with the Claimant and Mr Rowell in the course of the hearing what course I should take if I eventually reached that conclusion. Mr Rowell invited me to reconsider the matter for myself, using my powers under section 35 of the Employment Tribunals Act 1996. The Claimant said that I should remit the question to the Judge. He emphasised in particular that I had not heard the evidence that was before the Judge: although I had a note of it I could not be in as good a position to make decisions which depended on the impression made by the witnesses in giving live evidence. Without at that stage deciding what course I should take, I invited both parties to make submissions on the issues in respect of which the Judge’s finding was, or might be, flawed - that is primarily on the issues of reasonableness and good faith, though out of an abundance of caution I also invited submissions on the issue of the principal reason for the dismissal. They made such submissions. Having heard them I think that I should reconsider the application myself. I do in fact have the Judge’s impression of the two witnesses (see paragraphs 30 and 34 of the Reasons, to which I have referred above) and I can take those into account as far as relevant. However, in truth, although the question of the reasonableness of the Claimant’s belief might be informed to some extent by those impressions, it must depend largely - at least at this interim stage - on an examination of the disclosures themselves in the light of the correspondence and other contemporary and documentary evidence which is available. I am as well-placed to make that assessment as the Judge. For the application for interim relief to be sent back to the Tribunal - which is in fact due in any event to hear the substantial case at the end of March - would in my judgment involve an unnecessary expenditure of time, and thus of costs, for the parties and a waste of the resources of the tribunals. I also take into account the fact that the provisions relating to interim relief make it clear that any such application should be decided as speedily as possible.

32. I have come to the conclusion that it is not likely that the Employment Tribunal will find that the Claimant’s dismissal was unfair by reference to section 103A of the 1996 Act. I will give my reasons only in short form. That is partly because of the very nature of an application under section 129: a tribunal assessing likelihood is not making a final judgment, and its decision is inevitably to a greater or lesser extent one of impression and thus the less susceptible to detailed reasoning - though of course the broad lines of its thinking must be stated. I also wish to say as little as is consistent with my duty to give reasons because I do not wish by saying more than I need in any way to trammel the thinking of the Employment Tribunal which has to make the final decision. It will be its duty to decide the issue under section 103A on the basis of the evidence and submissions then before it. My reasoning on this application, except insofar as I set out any relevant principle of law, will be irrelevant. It may indeed be that the Tribunal has no need to see this judgment at all, but I cannot rule out that that may become necessary for one reason or another; and in those circumstances I do not, as I say, wish the Tribunal to be affected by my view of the facts.

33. In short, therefore, my principal reason for concluding that it is unlikely that the Claimant will not succeed under section 103A is that I cannot say that it is likely, in the Taplin sense, that the Tribunal will conclude that his belief that the grievances disclosed a breach of legal obligations by the Respondent was a reasonable belief.

34. Most of the breaches alleged in the grievance consist, essentially, of alleged unreasonable behaviour by the Respondent’s management. Such unreasonable behaviour is capable of constituting a breach of contract if, but only if, it amounts to conduct which, without reasonable and proper cause, was liable to destroy or seriously damage the relationship of trust and confidence between employer and employee (see Malik v Bank of Credit and Commerce International SA [1997] ICR 606). As I have observed elsewhere (see Amnesty International v Ahmed [2009] ICR 1450), the phrases “without reasonable and proper cause” and “destroy or seriously damage” must be given their full weight. The Respondent’s alleged conduct could also, as the Judge pointed out, constitute harassment within the meaning of the Protection from Harassment Act 1997, but it should be noted that the definition in section 1 incorporates a requirement of reasonableness. In both instances an essential question will be whether the Respondent was acting reasonably. (It might, strictly speaking, be more accurate to say that the question will be whether it was reasonable of the Claimant to believe that the Respondent was acting unreasonably, but in all ordinary circumstances the two questions will largely overlap.)

35. In my judgment it is not likely that the Tribunal will find that the Respondent was acting unreasonably in relation to the matters disclosed by the grievance, or in any event to a sufficient extent to constitute a breach of the Malik term, or to constitute harassment. I base that conclusion on the following points.

36. First, the complaints in the grievance were all investigated by Mr Veits and were rejected. The section of his report headed “summary conclusions” contains what appears on its face to be a fair and balanced assessment of the Claimant’s behaviour and of the Respondent’s response to it. The section headed “detailed findings” examines and rejects the Claimant’s complaints paragraph-by-paragraph. I would expect a tribunal, other things being equal, to attach considerable weight to his conclusions; and in any event it is reasonable for the purpose of the present exercise for me to take it into account as a guide to how the Tribunal would be likely to assess the same conduct, to the extent that it has to do so. The Claimant challenged the independence of Mr Veits’ report on the basis that he was assisted by Ms Woollaston, who had been involved in, though not ultimately responsible for, the decision not the process his first grievance. However, I do not see that as undermining Mr Veits’ impartiality. He also said that some of the “detailed findings” did not in fact address the substance of the complaints which were ostensibly being considered. There may be some force - I express no final view - in the criticism that some of Mr Veits’ findings were unduly summary. However, in my judgment those would not diminish the overall impression to be gained from the report.

37. Secondly, Mr Davison’s report covers much of the same ground and was equally critical of the Claimant. The Judge was, as I have quoted, impressed by Mr Davison’s integrity.

38. Thirdly, the Judge’s own assessment of the Claimant at paragraph 34 of the Reasons, which I have set out above, makes it the less likely that in any conflict between himself and the management it was he who was reasonable and they who were unreasonable. I have to say that although I did not myself hear the Claimant give evidence I now have experience of his submissions, both written and oral, and the impression that I gained was that, though he is both able and personable, he is someone who finds it difficult to take a rational and proportionate view of criticism of himself.

39. Fourthly, I have read through the grievance and been taken to the documentation underlying some of the particular incidents. My impression is not one of management unreasonableness. though no doubt some points could have been handled better.

40. In addition to this central question of reasonableness, there are also of course generalised allegations of discrimination on the grounds of race and religion, or victimisation, in relation thereto. However, as I have already observed, these are only present in the faintest traces in the specific allegations, and I do not think it likely that the Tribunal will find that the Claimant’s belief that he was the victim of either was reasonable.

41. As regards breach of his human rights, the Judge apparently understood this to be a reference to a breach of his article 8 rights, possibly - though this is not entirely clear - on the basis that Ms Benbow had visited his Facebook page. I do not think it likely that the Tribunal will find that any belief on the part of the Claimant that this amounted to a breach of his article 8 rights was reasonable.

42. Having reached that conclusion, I need not consider whether the Respondent’s contentions on the good faith issue would lead to, or reinforce, the conclusion that the Tribunal was not likely to find that the Claimant was unfairly dismissed contrary to section 103A and, for the reasons that I have already given, I am content to decide this application on the most limited basis properly available.

43. For those reasons I allow the appeal and dismiss the application for interim relief.

44. I should mention two related further points. At the start of the hearing the Claimant applied to strike the appeal out on the basis that Mr Rowell had told the Judge that he had been unable to find any authority on the question of the meaning of “likely” under section 129: it had fallen to him to have to refer the Judge to the decision in Taplin. Mr Rowell candidly, and with suitable mortification, accepted that that was so: he had, in preparing the case, looked in the wrong part of Harvey. That was no doubt a regrettable lapse, which might have led the Judge into error but for the Claimant’s own research. However, I cannot see how it could possibly have justified my striking out the appeal. The Claimant also asked for an adjournment on the basis that he had recently served discrimination questionnaires and that the answers to those questionnaires might strengthen his case. That was plainly not a sufficient reason for an adjournment. Whatever the answers to the questionnaires may be, they could not be material to the question whether the Judge had made an error of law in the decision under appeal.

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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ministry of Justice v Sarfraz [2011] UKEAT 0578_10_0702 (7 February 2011) URL: http://www.bailii.org/uk/cases/UKEAT/2011/0578_10_0702.html Cite as: [2011] UKEAT 578_10_702, [2011] UKEAT 0578_10_0702, [2011] UKEAT 0578, [2011] IRLR 562

United Kingdom Employment Appeal Tribunal