Appeal No.	EAT/0891/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 November 2001

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MRS R CHAPMAN
LORD GLADWIN OF CLEE CBE JP

MR G ASPINALL	APPELLANT

MSI MECH FORGE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	ROBIN WHITE
(Of Counsel)
Messrs Richmonds Solicitors
Richmond House
White Rose Way
Doncaster
DN4 5JH	

MR JUSTICE MAURICE KAY
1.	This is the preliminary hearing of an appeal from an Employment Tribunal which sat in Sheffield on 4th May of this year. The point which Mr White seeks to argue is that in this case, the Appellant, when handing a video recording to his solicitor in connection with a personal injury claim, was making a protected disclosure pursuant to Sections 43(a), 43(b) and 43(d) of the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998. That much was accepted by the Employment Tribunal. 

2.	The next question is whether under Section 43(b), it is arguable that the Appellant was subjected to a detriment as a result of making that protected disclosure. Upon that subject the Employment Tribunal found against the Appellant concluding that he had relied on his employment for his own reasons which were unconnected with the protected disclosure. 

3.	It seems to us that if the Appellant is to challenge that finding he has, in one sense, to succeed on a perversity ground relating to the findings of fact. These included a finding that the Appellant had not been threatened with alternative and differential disciplinary sanctions depending on whether he named, or refused to name, the person who had made the video recording. 

4.	We tend to the view that the Appellant may face considerable difficulty in establishing that perversity finding, although it is right to say that the evidence and notes of Mr Turton, upon which the Tribunal relied, do seem to point to the Appellant being told that he would be disciplined one way, or another, with the more serious sanction following upon a failure to name the maker of the video. 

5.	We have unanimously come to the conclusion, with an equally unanimous lack of enthusiasm, that there is sufficient in this case to permit it to go forward for argument. It seems to us to be arguable that the disciplinary sanctions, albeit on the differential basis, were intended to follow the disclosure come what may, and it is arguable, in our judgment, that the Employment Tribunal, in its approach, may have erred when analysing these implications. 

6.	We observe that the disclosure by the Appellant seems to have been in express breach of a confidentiality clause in his agreement. We have been anxious to canvass any implications that may have for the working of Section 47 of the Act. However, with Mr White’s help we have found no provision in the Act that actually addresses any possible connection between breach of contract by the employee and protected disclosure. 

7.	If Mr White’s argument about all this is correct, then we can see how it would, or might, affect both the position in relation to a detriment arising out of a protected disclosure and also the analysis as far as unfair dismissal, and particularly constructive dismissal, goes. Although it does seem to us that the Tribunal made findings in paragraphs 25 to 28 of its decision which, when read as a whole, are probably not accurately described as conjectural, as Mr White seeks to describe them. 

8.	It follows from what we are saying that we have found an arguable, albeit difficult case, for the Appellant to pursue and it is our conclusion that he ought no to be prevented from pursuing it further. Accordingly he may proceed. It will go into listing category B with a two hour estimate and the usual directions as to skeleton arguments.