Employment Appeal Tribunal and whistle blowing claims

Korashi v Abertawe Bro Morgannwg University Local Health Board

In the case of Korashi v Abertawe Bro Morgannwg University Local Health Board, which went to the Court of Appeal clarification has been provided, through the litigation process, on the options available to the Employment Appeal Tribunal in disposing of appeals in cases with a significant history and on the test claimants must satisfy when raising whistle-blowing claims.

Background

Dr Korashi (Dr K) is an Obstetrician and Gynaecologist. He was employed by the Trust and its predecessor from 1 February 2002, until he was dismissed in March 2008.

Between 2003 and 2008, the employment relationship was fractious and Dr K commenced several claims against the Trust.  The first proceedings were dismissed but in the second claim Dr K was partially successful.  Dr K went on to bring four more claims in 2006 and 2007 prior to his dismissal.  All of Dr K’s claims related to race discrimination, victimisation, and alleged detriment, further to him having made a protected disclosure (blown the whistle).

Employment Tribunal

The Employment Tribunal (ET) dismissed the four claims from 2006/07 in July 2009. Dr K appealed to the Employment Appeal Tribunal (EAT), complaining that the lengthy ET judgment (described by the EAT as being in a ‘slightly unusual form’) was fundamentally flawed and the ET had failed to explain its reasons adequately.

Employment Appeal Tribunal

The EAT chose to adopt the “Burns/Barke procedure”, which involves inviting the ET to clarify its reasoning and findings, before reviewing the case. The parties were therefore ordered to prepare and where possible agree a list of questions to be submitted to the ET.

The  EAT Order envisaged that the EAT would resolve any issues as to the content of the proposed Burns/Barke correspondence to the ET and it would then be for the ET to provide answers, by reference to its notes of evidence at the Hearing and without the need to adduce or allow the adduction of any further oral evidence.  In short, the EAT wanted to understand how the ET had reached its decision, without considering any new evidence.

Dr K opposed the use of the Burns/Barke procedure, contending that it was inappropriate. Instead he wanted to submit fresh evidence to the ET for consideration.  Nonetheless, an approved list of questions was sent to the ET, which subsequently provided its answers.

The EAT with reference to the approved list of questions and answers provided by the ET, dismissed all of Dr K’s grounds of appeal.  Dr K appealed against that decision.   However, the Court of Appeal dismissed Dr K’s appeal.

Court of Appeal

The Court of Appeal acknowledged that the number and scope of questions presented to the ET under the Burns/Barke procedure exceeded anything within its experience.  It also said that the passage of time between the ET’s decision and the Burns/Barke procedure being implemented was an uncomfortable feature.  However, it concluded that “the use of the Burns/Barke procedure was a case management decision taken in a balanced way with an eye on proportionality and the overriding objective of dealing with cases justly.”

Comment

The following points of wider interest arise out of this case:

  • The EAT was prepared to treat the ET’s original judgment and its response to a lengthy set of additional questions under the Burns/Barke procedure as thoroughly and concisely representing its reasons;
  • Guidance was given on the proper approach to be taken to applications to admit fresh evidence in the EAT. The EAT should only “sparingly” grant an application to allow new evidence before it. Before entertaining any such application itself, it expects an application for a review to be made to the ET, and if necessary, will stay proceedings pending the outcome of any such application; and
  • Guidance was provided by the EAT on the meaning of the phrase ‘substantially true’ for the purposes of a whistle-blowing complaint. The EAT confirmed that it is necessary for a whistle-blower to believe not merely the gist of information disclosed to be substantially true, but each individual allegation within it.