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In Westminster Drug Project v. Ms C O’Sullivan (UKEAT/0235/13/BA), the EAT took into account the way in which the party originally ran the case, in deciding whether the judgment was legally sound, despite the Westminster Drug Project being able to point to a potential legal error.
As Suzanne Staunton of Guildhall Chambers reports, this is a cautionary tale which shows the importance of advancing all legal arguments in the Tribunal at first instance, even if they seem to conflict with each other.
The Westminster Drug Project company was commissioned by the London Borough of Enfield Drug and Alcohol Action Team (DAAT) to provide support to drug users within the criminal justice system.
Ms O’Sullivan was a qualified social worker, but worked as a community care assessor (CCA) at the Westminster Drug Project. Ms O’Sullivan forwarded on an email thread to DAAT, between herself and the husband of a client named “CO”, concerning the state of mind of CO. Mr Welsh of the Westminster Drug Project took issue with this because, in his view, DAAT should not have been contacted about CO via email. Mr Welsh and Ms O’Sullivan had an argument about this matter, and on the same day, Mr Welsh told Ms McLean (his line manager) about Ms O’Sullivan’s poor punctuality. A few days later, Ms O’Sullivan turned up to work late, and advanced a reason for this. Mr Welsh found this reason to be false.
Consequently, Ms O’Sullivan and Mr Welsh exchanged some emails. Ms McLean considered that the matter was closed, but a few days later Mr Welsh wrote an email to Ms O’Sullivan, which she replied to. Later Ms McLean dismissed Ms O’Sullivan due to a break down in the working relationship between her and Mr Welsh. Ms O’Sullivan brought a claim in the Tribunal, that she had been subjected to a detriment for having made a protected disclosure, pursuant to s.47B ERA 1996 (namely, sending the email thread to DAAT). She could not bring a s.103A unfair dismissal claim, because she was a “worker” rather than an “employee”.
At first instance, the Tribunal found that Ms O’Sullivan had made a protected disclosure, and that the Westminster Drug Project subjected her to a detriment for which they were liable under section 47B ERA 1996.
The Westminster Drug Project, at the Tribunal, did not take issue that Ms O’Sullivan’s disclosures were made in good faith. However, they contended that the fact Ms O’Sullivan made the protected disclosures was not the reason why she was “dismissed”. It was argued that Ms McLean (the dismissing officer) was unaware of the protected disclosure, and it could not therefore have been the reason for her dismissal.
The Tribunal rejected that contention. The Tribunal instead considered that Mr Welsh and Ms McLean must have discussed Ms O’Sullivan’s behaviour, including the information passed to DAAT, before the date of her dismissal, and that the decision to dismiss Ms O’Sullivan was materially influenced by the protected disclosure. The claim was upheld, and the Westminster Drug Project appealed to the EAT.
At the Employment Appeal Tribunal (“EAT”), the Westminster Drug Project contended that the Tribunal had erred in failing to draw the legal distinction between detriment because of the fact of making a qualifying protected disclosure, and the manner in which the disclosures were made. It had not considered whether the reason for the detriment (consisting of Ms O’Sullivan’s “dismissal”), was the manner in which she had made her disclosures, despite having made findings of fact that would have supported that argument.
The EAT accepted that it may have been possible for the Westminster Drug Project to run a case that, in so far as the Claimant’s dismissal was related to any protected disclosure, it was caused by the manner of the disclosure and associated conduct about which Mr Welsh was legitimately concerned.
However, this was an argument advanced at the EAT for the first time, and not how the Westminster Drug Project’s case was run at first instance. Further, the argument was entirely contrary to the Westminster Drug Project’s original case that the relevant decision maker (Ms McLean) had no idea about the protected disclosure. This was compounded by the fact that the Westminster Drug Projects accepted that the original protected disclosures were made in good faith, out of concern of the health and safety of clients.
The EAT concluded that, on that basis, it was right for the Tribunal not to turn its mind to the legal distinction between the grounds and the manner of the protected disclosure. This was in spite of the Tribunal’s finding that Mr Walsh was troubled by DAAT being CC’d in an email about the matter, when it the information should have been communicated to DAAT at a CCA Panel.
This case provides a salutary lesson that all arguments should be advanced at the Tribunal at first instance, where possible and/or considered tactically appropriate.
The Tribunal may even make findings of fact which are contrary to the primary submission, but which may be supportive of a secondary argument. However, there is no obligation for the Tribunal to consider a potential secondary legal argument for itself, if it has not been raised by either of the parties. Parties should be wary that if the secondary argument is not advanced at the Tribunal, but findings of fact are made that would have been supportive of it; the new argument cannot be advanced on appeal. Therefore, when it is practical, all legal arguments should be raised at first instance.
It is appreciated that if a seemingly incompatible auxiliary argument is presented to the Tribunal, this is likely to require very careful cross examination of witnesses, and a deft approach to closing submissions. However, if presented skilfully, this would either increase a party’s chances of success, or at least give rise to possible appeal
Sometimes this approach could potentially undermine the thrust of the primary submissions however. Consequently, in some circumstances it may be prudent to
disregard secondary submissions when they conflict with the party’s principal position so as to maintain the overall coherence and persuasiveness of the case. But, if the subsidiary argument is not advanced, that party should do so in the knowledge that they are unlikely to be able to revisit the argument at appeal stage. This is obviously a judgment call for the client and legal team in the case.
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