Update: employment

Sometimes tribunals are asked to consider what appear to be well-settled principles, only to find that there is a potential juridical gap. It is well established that an employee who successfully complains of discrimination will usually be entitled to an award for injury to feelings. One is generally thought to follow the other.

However, in Taylor v XLN Telecom and others UKEAT/0385/09, the employer successfully persuaded the employment tribunal at first instance that such an award did not lie unless the claimant could show that any injury he suffered resulted from knowledge of the act of discrimination. The employer relied on the observation by Lawton LJ in Skyrail Oceanic Ltd v Coleman [1981] ICR 864 that 'any injury to feelings must result from the knowledge that it was an act of sex discrimination that brought about a dismissal'. In Taylor, the tribunal made findings that there was evidence of both injury to feelings and actual psychiatric injury but not that they flowed from the discriminatory act of dismissal, not least because they appeared to pre-date it. Therefore, the tribunal reluctantly decided that it was bound by the decision in Skyrail Oceanic and could not make an award.

The EAT (President presiding) allowed the appeal. First, it held that, under normal principles of tortious liability, the claimant should be able to recover for his actual injury irrespective of whether he knew or did not know about the motivation of the respondents in reaching the decision to dismiss him. The issue was whether objectively he had been made ill by the discrimination which had been found by the tribunal. Second, it went on to hold that the same reasoning applied to an award for injury to feelings.

The court held that if in a discrimination case a claimant could only recover compensation for injury to feelings if and to the extent that he could prove that he knew of the particular factor that rendered the act complained of unlawful, that would be an exception to the general approach in tort as we have outlined it above. And it would be surprising if different rules governed the recoverability of compensation for injury to feelings and injury to health, particularly where they commonly overlap.

This decision probably makes it easier for claimants to obtain awards for injury in discrimination cases, although the facts were unusual.

Whistleblowing

The ambit of whistleblowing as a statutory tort remains uncertain. One recent case shows that the protection is wider than previously thought. In BP plc v Elstone UKEAT/0141/09, the EAT (Langstaff J presiding) held that an employee/worker who complains of detriment from his current employer on the ground that he had made a protected disclosure while employed by a previous employer is protected. The court held that the wording of section 47B of the Employment Rights Act 1996 should be read purposively to ensure proper protection for employees who blow the whistle and there was no sufficient contrary implication in the statute.

The facts are not yet decided, but it appears that Mr Elstone had been employed by a company called Petrotechnics as a senior employee. That company provided safety services to clients including BP. According to Mr E, while so employed he had made a series of protected disclosures to BP in respect of safety issues. He was subsequently engaged as a consultant by BP. The consultancy arrangements were then terminated when BP learned that he had been dismissed by Petrotechnics for gross misconduct for disclosing P's confidential information, presumably being the protected disclosures. It was in that context that he brought his novel claim against BP and, if the case now goes on to a full hearing, we will know something more about the rather unusual facts alleged.

The case of Goode v Marks and Spencer PLC UKEAT 442/09 (Wilkie J presiding), also provides some welcome guidance, this time about what amounts to a qualifying or protected disclosure within the meaning of section 43 of the ERA 1996 where that disclosure is made to a third party. In the earlier case of Cavendish Munro Professional Risk Management v Geduld UKEAT/0195/09, the EAT (Slade J presiding) held that allegations in a solicitor's letter did not amount to conveying of 'information' and therefore did not amount to protected disclosures. In that case, the communication was made to the employer and company of which the individual was a minority shareholder. In Goode, the claimant was dismissed summarily for sending an email and supporting documents to The Times newspaper, criticising the employer's proposal to change its discretionary redundancy payments scheme. He claimed that the disclosure to The Times was protected and that accordingly his dismissal was automatically unfair under section 103A of ERA. The tribunal disagreed and the EAT turned down his appeal. He failed for two reasons. First, the disclosure to The Times was not such that the claimant could 'reasonably believe it to have a tendency to show that the respondent was likely to fail to comply with any legal obligations'. It merely showed that the employer was considering changes and consulting about them. Second, the disclosure to The Times was not in fact 'substantially the same' as the previous disclosure to the employer. The latter expressed the claimant's disgust at what was going on; the former merely enclosed documents.

Stress at work and public bodies

In Connor v Surrey County Council [2010] EWCA Civ 286, the court had to consider the ambit of the employer's duty of care to protect its employees from injury. Mrs Connor was the head teacher of the New Monument Primary School, a maintained secular state primary school the majority of whose pupils came from a Muslim background. It appears that a small but vociferous proportion of the school's governors decided to embark on a thoroughly nasty campaign apparently aimed at capturing the school for that particular faith. In so doing, they caused great upset to the school and the head teacher and, when challenged, accused her of racism and Islamophobia.

Under sections 14 and 16A of the School Standards and Framework Act 1998, as amended by the Education Act 2002, the county council could have removed the problematic governors and replaced the school's governing body with an Interim Executive Board (IEB). It delayed doing so.

In addition, instead of supporting the head teacher and staff, it embarked on a process designed to mediate the situation and then to investigate the allegations of the problem governors. As a result, the head teacher went off with stress and depression and never returned from sick leave. The question for the court was whether the council had been negligent and therefore in breach of its duty of care towards the employee both in failing to use its public law powers and also in choosing to try to mediate and then to investigate the complaints of the problem governors. The first instance judge found that both the failure to use its public law powers and also the decision to instate to a mediation and investigation process of the complaints amounted to failures in the duty towards the head teacher.

This decision was upheld by the Court of Appeal. As to the power to replace the governing body, the clear pre-existing duty towards Mrs Connor should have led the council to exercise its discretion differently. There was nothing unlawful in public law terms in the requirement that the council should have acted to invoke its public law powers in a timely fashion and removed the governors. This did not breach the standard tests of legality, rationality and fairness. It was not a disproportionate result given the problem. It would be an unusual case in which damages for negligence consisting in the use or non-use of a public law power were available.

However, this was such a case. The head teacher's stress and the subsequent injury to her had two closely linked causes: the conduct of a few governors and the council's failure to provide her with support to protect her from such conduct. The court stressed that it would be unusual for the court to find a breach of a private duty in what may be sensitive and difficult decisions, including policy decisions, of public authorities.

As to the second head of negligence, the finding of the court will be potentially of relevance to any employer, whether it is a public body or not. The campaign conducted against the staff and specifically the head teacher was vicious. The decision first to try mediation and then to embark on an inquiry into those allegations was a lamentable failure of support. It appeared to give credence to the accusations against her or at least to show neutrality where the correct course of action would have been clear expressions of support.

This is clearly a very unusual case, but, especially given the increasing use of mediation in the workplace, it does sound a note of warning to employers that they must exercise judgement in the face of complaints against members of their staff.