Appeal No. EAT/1113/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	          On 14 October 2002
Judgment delivered on 29 November 2002

Before
THE HONOURABLE MR JUSTICE WALL
MS N AMIN
MR D SMITH

MRS Y HOSSACK	APPELLANT

KETTERING BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P McGRATH
(of Counsel)
Instructed by:
Wood Shawe & Co
Solicitors
16-18 Station Road
Kettering
Northamptonshire
NN15 7HH	
For the Respondent	MISS E MELVILLE
(of Counsel)
Instructed by:
Toller Hales & Collcutt
Solicitors
2 Castilian Street
Northampton
NN1 1JX	

MR JUSTICE WALL

1	This appeal raises questions relating to part IVA and section 103 A of the Employment Rights Act 1996 (ERA), which deal with Protected Disclosures.  

2	Pursuant to the ERA section 43A, a “Protected Disclosure”:
“means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with sections 43C to 43H.”

3	The ERA section 43B defines a “qualifying disclosure” as:-
“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, 
(c)  that a miscarriage of justice has occurred, is occurring or is likely to occur,
(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 within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”

4	The Employment Rights Act section 43C to G provide a number of examples of different types of qualifying disclosure.  For current purposes, it is unnecessary for us to set out the provisions of these sub-sections in detail, as it is common ground between the parties and accepted by the Tribunal, that the critical disclosure made by the Appellant in this case was
 “protected” within section 43A.  

The Appeal
5	Mrs Yvonne Hossack (the Appellant) appeals against the Decision of the Employment Tribunal held at Leicester on five consecutive days between 12 and 16 February 2001, with the Decision being sent to the parties on 14 August 2001.  The unanimous Decision of the Tribunal was to reject the Appellant’s complaint of unfair dismissal pursuant to section 103A of  ERA made against her employer, Kettering Borough Council (the Respondent).  The Tribunal also rejected the Appellant’s complaint that she was subjected to a detriment, pursuant to section 47B of ERA. Further complaints of indirect sex discrimination and breaches of the European Convention on Human Rights were withdrawn.  The Tribunal also found that the Respondent was in breach of contract in unilaterally varying the Appellant’s hours of work: that Decision was subject to a cross-appeal by the Respondent which, in the event, was not pursued before us and which we formally dismiss.  Finally, the Appellant’s complaint of direct sex discrimination was rejected.  

The Facts
6	The facts are of critical importance in the instant case, and we accordingly need to set them out in some detail.  We take them largely from the Tribunal’s Extended Reasons.  

7	On 1 September 1999, the Appellant was appointed to the position of Policy Research Officer to the Conservative Group on the Respondent Council.  Her employment was made pursuant to section 9 of the Local Government and Housing Act 1989, which makes an exception to the  rule which makes it unlawful for an employing authority to have regard to a person’s political activities or affiliations in determining whether he or she should be appointed to any paid office or employment by a local authority.  To qualify, the appointment must be made for the purpose of providing assistance in the discharge of any of their functions as members of a relevant authority, to the members of any political group to which members of the authority belong.  

8	The Appellant’s contract of employment provides that the Appellant’s appointment was
“for the purpose of providing assistance, in the discharge of any of their functions, to members of the Conservative Group on Kettering Borough Council.”
It also specified that although local authority employees:
“….are not allowed to talk to the media except through the Press Officer, Police Research Officers may give political statements to the media at the request of and on behalf of the Conservative Group.”

The Appellant’s line manager was defined in the contract as being “The Leader of the Conservative Group for the time being”.  

9	The Tribunal made the point at the outset of its summary of the facts that the nature of the Appellant’s appointment was as Research Administrative Support to the Conservative Group and its Leader.  It was not as a member of the group or as a politician.  

10	The Appellant had been a member of the Labour Party from 1992 to 1997 and a Labour Borough Councillor on the Respondent Council from 1995 to 1997.  She had then resigned from the Labour Party, and joined the Conservative Party in July 1999, having been approached by the agent for the Kettering Constituency Conservative Association and invited to apply for a job as a Political Research Officer to the Leader of the Conservative Opposition on the Council.  

11	On 5 October 1999, in the course of her employment with the Respondent, the Appellant attended the Conservative Party Annual Conference, as an assistant to Councillor Freer, her line manager and Leader of the Conservative Group on the Council.  During that conference she made a speech from the platform which the Tribunal described as:
 “….clearly in the nature of a political speech designed to criticise the Labour Party and its way of doing things and to “rouse the faithful” at the Conservative Party Conference during a debate on law and order.”

12	The Tribunal found that in making that speech she was clearly acting as a politician and not as an assistant to Councillor Freer.  Furthermore, she did not clear the contents of the speech with him or with the Conservative Group on the Respondent Council.  

13	Shortly afterwards, the Appellant was rebuked by Councillor Freer for making a speech without first clearing it with him.  The Tribunal was quite satisfied that Councillor Freer regarded the rebuke he delivered as the end of the matter.  However, following a complaint by the Labour Group on the Respondent Council on 1 February 2000, disciplinary action was instituted by the Respondent against the Appellant in connection with the speech, which ultimately led on 20 April 2000 to a final written warning, and an extension of her probationary period to 1 September 2000.  The Tribunal records that the disciplinary action was imposed on the Appellant for making a political speech which was both a breach of her contract and of the Respondent Council’s code of conduct.

14	Over the autumn and winter of 1999-2000, the Tribunal found that the Appellant, on regular occasions, acted as if she herself was a member of the Conservative Group on the Council, rather than a Research Assistant.  The Tribunal accepted Councillor Freer’s evidence that the Appellant, by her  course of conduct, seemed intent on exceeding her remit as a Policy Research Officer.  The Tribunal commented that having had the opportunity to observe the Appellant, it concluded that she saw herself very much as a campaigner and a politician and had difficulty in taking a back seat.  She was, the Tribunal found: “very much the tail trying to wag the dog”.  

15	The Tribunal found further that as a result of her attitude the Appellant attempted to take a leading role at group meetings.  Not surprisingly, this caused some difficulties with members of the Group.  As a consequence, and partly because he thought the Appellant’s time was better spent on research, Councillor Freer, some time in the autumn of 1999 instructed the Appellant not to attend at Conservative Group meetings unless specifically asked to do so.  In addition, as the Tribunal found, he also instructed her to be at the municipal offices between 10 am and 5 pm rather than 10 am and 3 pm, the times specified in  the Appellant’s contract.  This latter instruction (which Councillor Freer denied giving) formed the basis of the Appellant’s claim for breach of contract, which the Tribunal upheld.

16	We now come to the critical events in the case.  The Conservative Group on the Council had given a manifesto commitment to draw up a report on the sale by the Council of the Cattle Market site in Kettering.  Councillor Freer commissioned the Appellant to research the issue and write a report on his behalf and on behalf of the Conservative Group.  The Appellant duly did so.  The Tribunal found that she undoubtedly worked hard in researching and preparing the report, which was critical of the way in which the site had been disposed of by the Council.  The Tribunal found that, no doubt because of the hard work she had put into the project, her attitude to the report was that it was very much “her baby” despite the fact that it was drawn up for the use of Councillor Freer and for the Conservative Group, with the intention that it should be submitted to the District Auditor, so that he could investigate any possible breaches of the law.  

17	The Appellant handed the report to Councillor Freer in January 2000.  As drafted, the report contained passages which alleged the commission of criminal offences and made suggestions of wrong-doing by certain named officers and Labour Councillors.  Councillor Freer required these references to be deleted before the report was sent to the District Auditor.  

18	The report in its amended form was sent to the District Auditor under cover of a letter dated 24 January 2000 from Councillor Freer.  That letter explained the Conservative Group’s concerns that:
(a)  proper development and control procedures were not followed;
(b)  possible conflicts of interest were not made known;
(c)  the Council had failed to obtain the best value for the land in question by deciding not to sell it on to one of the many interested parties;
and
(d) that a subsequent agreement with a named purchaser was handled in an incompetent manner with the result that the Council would not have any saleable land in their ownership out of an original holding of 7.5 acres. 

Mr Freer asked for correspondence to be addressed to his private address, and concluded that the supporting documentation mentioned in the report had been collated and could be made available.

19	The Tribunal found that the Appellant was not satisfied with the form in which the report  was sent to the District Auditor and that she “wished to push matters along herself without any instruction to do so from Councillor Freer”.  Accordingly, she wrote herself to the District Auditor on 18 February 2000 and again on 4 May 2000.  In the second letter, the Appellant wrote:

“To place on record: 
1.  I expressed my perplexity that I had not been asked for the under-lying documentation in this matter.  This has been remedied by your now asking for the files which are enclosed.
2.  I stated that a Report has been compiled for the Labour Group by Terry Grannon dated the 27th January 2000.  The Report contains grave inaccuracies proven by the under-lying files.  I enclose Mr Grannon’s Report and my response to it.
3.  In view of 2 above I was concerned that other Officers may compile Reports which appear on their face to be completely reasonable but which may contain inaccuracies and on which you may rely in coming to a decision whether this matter should be pursued.  I therefore request that any reports sent to you are copied to me so that I may assist you by pointing out any conflicts with the underlying documents.  
Although my Group’s Report is stated to be compiled by the Conservative Group and submitted by Cllr Freer, I am the Author.
The Report took some four and a half months to compile and I have scrutinised all of the documents a number of times.  No member of the Conservative Group has read the underlying documents.
In the circumstances I have suggested to Cllr Freer that it would be helpful to both you and him if I attended any meeting you have with him to decide whether to pursue this matter as I believe that my own knowledge of the file is unsurpassed.  
I would be grateful for your views and am happy to give whatever assistance you may require.”

20	As the Tribunal commented:
“The tone of the letter is clearly such that it seeks to emphasise to the District Auditor that he should consult with the  [Appellant] in relation to the report and any investigation and clearly seeks to minimise the role of Councillor Freer and the Conservative Group”

21	On 8 May a further important incident occurred.  The Appellant met with the Respondent’s Head of Personnel, its interim Chief Executive and the Labour Policy Research Officer.  The purpose of the meeting was to discuss the role of Policy Research Officers and their reporting lines.  The Appellant asked Councillor Freer to attend the meeting, but he refused to do so, indicating that in his view it was inappropriate for a member of the Conservative Group, of which he was the Chairman, to attend such a meeting.  Despite this, the Appellant approached the Deputy Leader of the Conservative Group (Councillor Parks) and asked him to attend.  He refused.  

22	On 9 May 2000, Councillor Freer became aware that the Appellant had, contrary to his ruling, approached Councillor Parks.  He also became aware of the letter of 4 May from the Appellant to the District Auditor.  As the Tribunal found, these events created, against the background of his already somewhat strained relationship with the Appellant, a crisis of confidence on Mr Freer’s part in the Appellant’s ability to perform the role of Policy Research Officer to which she had been appointed.  

23	This led to a meeting taking place between Mr Freer, the interim Chief Executive and the Head of Personnel.  Mr Freer made it clear that he no longer considered the Appellant suitable for the post to which she had been appointed.  The essence of his view was that she simply would not act as an adviser but appeared to want to act as a member of the Conservative Group and as a politician.  He therefore wanted the Respondent to dismiss her.  At the request of the interim Chief Executive he set out the reasons for his views in a letter dated 9 May 2000.  In that letter, Councillor Freer said of the Appellant that:

“She appears to consider that it is her job to give a political lead or steer members and chooses to ignore the fact that she is employed as an Adviser.  Any political lead will be given by me and I cannot have an Assistant who seeks to control and direct the Group.”

24	A further meeting took place on 9 May between the acting Chief Executive, Councillor Freer and the Head of Personnel.  They agreed that the Appellant should be dismissed, and when summoned to that meeting, the Appellant was informed of the decision to dismiss her.  She was told that there were three reasons:
“(i)  lack of judgment;
 (ii)  lack of understanding of her role as a Policy Research Officer, and
 (iii)  her clear intention to ignore the formal reporting relationship between her and Councillor Freer.”

25	The dismissal was confirmed in a letter to the Appellant dated 10 May 2000, and signed by the Head of the Paid Service.  That letter referred back to the previous disciplinary procedure in which the Appellant had been issued with a final written warning.  It then identified additional concerns which had arisen, namely:

“   An allegation that you have made foul and abusive remarks about senior officers of the council.
     Your attempt to invite another member of the Conservative group to the consultative meeting on 8th May having already been told by your group leader that he would not attend because he felt it was not appropriate for a member to be involved in a meeting of that sort;
     The letter from you to the District Auditor of the 4th May regarding the Cattle Market.  The tone and content of the letter makes it absolutely clear that either you don’t understand the role of Policy Research Officer or if you do, you don’t intend to fulfil that role.”

26	The letter terminated the Appellant’s employment by giving her one month’s notice, which she was not required to work, for which she was paid wages in lieu.  The letter stated that the Appellant had a right of appeal against the decision, which she does not appear to have exercised.  

The reasons for the dismissal
27	 The Tribunal made clear findings about what it perceived to be the real reason for the Appellant’s dismissal.  At paragraph 14 of the Reasons, the Tribunal says this:

“14    We are quite satisfied, on the facts, that the real reason for the dismissal was that which Councillor Freer stated in evidence which was in essence that the applicant was unable to differentiate between her role as a Research Officer employed by the Council to assist the Conservative Group and the role of an Elected Member of the Group or its Leader, as a result of which he lost all confidence in her and could no longer work with her.  Although the letter of 4 May to the District Auditor was a factor in Councillor Freer coming to that conclusion, we are satisfied that it was not the fact of the applicant [Appellant] making disclosures to the District Auditor about the cattle market site sale, but the tone of the letter which emphasised the fact that the applicant saw herself as “the tail wagging the dog”.  We are entirely satisfied that Councillor Freer had no concerns about disclosures concerning the cattle market site.  It was he, after all, who had commissioned the report in the first place and he who had sent it to the District Auditor in January.”
15.     The letter of dismissal made reference to a complaint that had been received that the applicant had used foul and abusive remarks about senior officers of the Council.  This complaint emanated from the Labour Group on 5 May.  Despite the fact that it is referred to in the dismissal letter we are satisfied that it was not a factor in the decision to dismiss the applicant [Appellant].  We find that the respondent decided to dismiss the applicant [Appellant], on the recommendation of and for the reasons set out by Councillor Freer, he made no reference to bad language in his letter of 9 May and it was not discussed at the meeting on 9 May.  Councillor Freer made clear in evidence, which we accept, that alleged bad language by the applicant [Appellant] was not in his eyes a reason for dismissing her.”

The Appellant’s attack on the Tribunal’s reasoning
28	For the Appellant, Mr Paul McGrath submitted that the Appellant had been unfairly dismissed, contrary to the “whistle-blowing” provision of ERA. He argued that, as the Tribunal had found; (1)  there had been a qualifying disclosure (the Appellant’s letter and accompanying documentation sent to the District Auditor on 4 May 2000) and; (2)  that it had been made in the appropriate way.  It was, accordingly, a protected disclosure.  Mr McGrath submitted that once the Tribunal had accepted (as it did) that the disclosure qualified as being a protected disclosure, it was not open to an employer to discipline or dismiss an employee for the “manner” in which the disclosure was made.  To do so, he submitted, would undermine the specific provisions set out by Parliament as to how a disclosure must be made in order to gain protection.  

29	Mr McGrath took us to a number of authorities relating to trade union activities. There is, it appears, no direct authority on Part IVA of ERA.  His argument, accordingly,  proceeded by way of what he submitted were analogous situations which were covered by authority. Thus in Shillito -v- Van Leer (UK) Ltd [1997] IRLR 495, Mr Shillito was employed by Van Leer (UK) Ltd as a fork-lift truck driver.  He was also the senior shop steward of the recognised trade union and the union-appointed safety representative.  He was disciplined for failing to follow agreed procedures and because his actions were not those expected of a responsible trade union representative.  He was found guilty of misconduct.  Both the Employment Tribunal and the Employment Appeal Tribunal dismissed his claim, albeit in the EAT, a constitution presided over by His Honour Judge Peter Clark, the EAT concluded that:
“…the question for the industrial tribunal was whether the appellant was disciplined (that is, subjected to a detriment) on the ground that he was performing the functions of a safety representative, acknowledged by the employer.  If that was the reason for his being disciplined, it is no defence that he intended to embarrass the company in front of external safety authorities, or that he performed those functions in an unreasonable way, unacceptable to the employer.  The complaint is made out.”

30	In Goodwin -v- Cabletel UK Ltd [1997] IRLR 665, the appellant was a construction manager and safety representative.  He had a disagreement with his employers as to the dealings with one sub-contractor.  As a result, he was removed from direct dealings with the firm in question and his job was changed to that of assistant construction manager reporting to a manager who was formerly his equal.  He claimed that he had been constructively dismissed and that his dismissal was automatically unfair in accordance with the provisions of what was then section 57A of the Employment Protection (Consolidation) Act.  The Employment Tribunal dismissed his claim holding that section 57A(1)(A) applied only where the dismissal was because a designated employee carried out health and safety duties, and that it did not apply to the way in which an individual carried out those duties.  The EAT, in a division once again presided over by His Honour Judge Clark, allowed the appeal, holding that the protection afforded to the way in which the designated employee carried out his health and safety activities must not be diluted by too easily finding acts done for that purpose to be a justification for dismissal.  The EAT also relied on the judgment of Phillips J in Lyon -v- St James Press Ltd [1976] IRLR 215 in which the judge had held that the special provision afforded to trade union activities:
“…must not be allowed to operate as a cloak or an excuse for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of the trade union must not be obstructed by too easily finding acts done for the purpose to be a justification for dismissal.  The marks are easy to describe, but the channel between them is difficult to navigate.”
The judge later added:
“We do not say that every such act is protected.  For example, wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal which would not be unfair.”

31.	Thirdly, in Bass Taverns Ltd -v- Burgess [1995] IRLR 596, the Court of Appeal considered a similar provision under section 152(1) of the Trade Union and  Labour Relations (Consolidation) Act 1992.  The appellant had been a “trainer manager” which involved presentations at induction courses.  He was also a shop steward of a recognised trade union.  At the induction course he was also permitted to give a presentation about the union.  At the particular induction course in question the appellant had made disparaging remarks about the company and accepted that he had gone “well over the top”.  The incident ultimately led to his demotion, which he treated as a constructive dismissal. The Tribunal rejected his claim under section 152 and found that the reason for the dismissal related to Mr Burgess’ conduct in abusing the privilege given to him by his employers to use the meeting as a recruitment forum.  The EAT allowed his appeal and substituted a finding that the dismissal was on the grounds of trade union activities.  That decision was upheld by the Court of Appeal.  

32	Mr McGrath accepted that there was no direct authority on section 103A, but submitted that the cases that he had cited were analogous.  Mr McGrath also relied on Smith -v- City of Glasgow City Council, in which Mr Smith had been dismissed on three grounds.  An Employment Tribunal had dismissed his complaint, although they held that one of the three grounds for the dismissal (designated (a) to (c) had not been established.  The EAT dismissed Mr Smith’s appeal. However,  the Court of Session allowed his further appeal,  referring to the EAT’s  decision that in dismissing Mr Smith the Council had taken into account a factor (ground (b))  which was unfounded. Accordingly, it could not asserted with any reasonable authority that had they not taken that factor into account the decision would inevitably would have been the same. The House of Lords dismissed the Council’s appeal.  Mr McGrath relied on a passage in the speech of Lord Mackay of Clashfern, in which he said:

“…The Employment Appeal Tribunal, accepting that the Industrial Tribunal had not commented upon the effect of their conclusion that ground 1(b) had not been established, considered that this did not mean that this had been overlooked.  In my opinion, this was a crucial aspect of the question to which the Industrial Tribunal was required to direct its attention.  If, as I am inclined to think, the correct view is that the matters founded on in conclusion 1(b) constituted a reason for dissatisfaction with Mr Smith’s conduct distinct from the matters founded on in conclusions 1(a) and 1(c) the Industrial Tribunal did not find whether or not 1(b) was the principal reason, and the council must be taken to have failed to show what the principal reason was.  In any event, they have failed to show that the matters founded on in 1(b) did not form, nor form part of, the reason or the principal reason for the dismissal of Mr Smith.  As a matter of law a reason could not reasonably be treated as sufficient reason for dismissing Mr Smith when it had not been established as true nor had it been established that there were reasonable grounds upon which the special committee could have concluded that it was true.  Unless, therefore, the Industrial Tribunal had held that reason 1(b) was not treated by the council as the reason which the council treated as sufficient for dismissing Mr Smith or that it formed no important part of the reason which the council treated as sufficient for dismissing Mr Smith, I am of the opinion that the Tribunal erred in law.”

33	Mr McGrath also relied upon a passage in Whistleblowing: the New Law by John Bowers QC, Jeremy Lewis and Jack Mitchell which reads:
“Further, the approach taken in relation to victimisation for carrying out health and safety or trade union duties suggests that it will be difficult for an employer to argue that the detriment was the result of the manner in which a disclosure was made (for example the intemperate language used) rather than the fact of the disclosure.  In Shillito v. Van Leer (U.K.) Ltd [1997] IRLR 495 the EAT held that it was irrelevant that the health and safety representative acted in an unreasonable manner.  The EAT proceeded to find, relying partly on a finding that Mr Shillito had acted in bad faith with a personal agenda of embarrassing the employer, that his health and safety representative activities were not the reason he was disciplined.  However in other cases, while recognising that there might be some cases where the conduct was so extraneous, malicious or unreasonable as to fall outside the scope of the protection, tribunals and courts have refused to uphold submissions by employers that victimisation was due to the manner in which the safety representative or trade union official carried out their activities rather than the activities themselves.”

34.	Basing himself on this material, Mr McGrath submitted that absent bad faith or malicious conduct, an employer is not entitled to dismiss an employee for the manner in which that employer undertakes their protected activity. He submitted that as there was no evidence or suggestion of  the Appellant acting maliciously or in bad faith, her activity in making the disclosure was a protected act and that her dismissal for the “tone” or “manner” in which she made the disclosure flouted the legislative intention.  The only question which should legitimately be asked was: “did dismissal flow principally from the disclosure itself?” If the answer to that question was “Yes”, as Mr McGrath submitted it was here, the dismissal was automatically unfair.  

35	Mr McGrath further submitted that in allowing the Respondent to dismiss the Appellant on the basis of what he described as a “challenge to authority” the Tribunal had, in effect, enabled a “back door escape” from the protected disclosure provisions of ERA.  The very nature of a disclosure, he submitted, was a challenge to authority.  Indeed, with the whistle blowing provisions, it was even more important to protect employees from disciplinary action associated with matters which are proven to be protected disclosures.  

36	Furthermore, he submitted, the disclosure made by the Appellant was directly to a prescribed person within section 43F.  It was not made as part of her employment duties.  It should not, accordingly, be capable of criticism as a conduct issue.  The Respondent only saw the letter because the Appellant voluntarily sent copies to Councillors Freer, Parker and Unwin.  Mr Freer invited us to consider the position of an employee who made a vitriolic protected disclosure regarding the flouting of health and safety requirements to the Health and Safety Executive.  Could it be open Mr McGrath asked to the employer to discipline or dismiss the employee for the intemperate language used?  Furthermore, could an employee be disciplined or dismissed on the basis that his protected disclosure was made incompetently?

37	Skilfully as these submissions were advanced, we find ourselves wholly unable to accept them as applicable to the facts of this case.  In our judgment, it is not an accurate analysis of the Respondent’s behaviour in this case to assert that the Appellant was dismissed for the manner in which she made the disclosure.  The Tribunal made very clear findings of fact, based on the evidence before them.  They recited a long course of conduct in which the Appellant had acted as if she were herself a member of the Conservative Group on the Council rather than a Research Assistant.  They accepted Councillor Freer’s evidence that the Appellant, as a course of conduct, seemed intent on exceeding her remit as a Policy Research Officer.  They recorded Councillor Freer’s decision that the Appellant should no longer attend meetings of the Conservative Group.  They accepted Councillor’s evidence that the Appellant had gone behind his back in an attempt to ensure that Councillor Parks attended the meeting on 8 May.

38	However, most importantly, in the extracts from paragraph 14 and 15 of the Reasons which we have set out above,  the Tribunal was in no doubt that the reason for the dismissal was the Appellant’s inability to differentiate between her role as a Research Officer employed by the Council and the role of an elected member of the Group or its Leader, resulting in a total loss of confidence on Councillor Freer’s part.  

39	In our judgment, the Tribunal was fully entitled, on the facts of this case, to reach those findings.  The manner in which the Appellant went about the protected disclosure was a manifestation of her inability to understand her advisory role.  

40	As the Tribunal pointed out, Councillor Freer had no difficulty with the disclosure itself.  He himself had commissioned the report, and the underlying documentation had been referred to in his letter to the District Auditor.  There was nothing in the fact of the disclosure which was relevant to the dismissal.  What was relevant was the Appellant’s assertion that it was her report; that the Conservative Group was her group; and that the District Auditor should copy to her any reports sent by him.  All this is a plain manifestation of the underlying allegation made by Councillor Freer that the Appellant was incapable of differentiating between the role of a Research Officer employed to assist the Conservative Group, and the role of an elected member of the Group.  

41	We see the force of Mr McGrath’s anxiety that a differentiation between the content of a disclosure and the manner in which it is made could, if not carefully analysed, emasculate the legislation.  Plainly, any Tribunal approaching a protected disclosure will need to be alert to that danger.  In our judgment, however, this Tribunal was so alert, and its conclusions are not only, in our view, correct in law, they also accord with common-sense and in no way offend against either the spirit or the letter of the legislation.  
42	In these circumstances, we do not think we need to examine Mr McGrath’s second point, which was that the Appellant was to be regarded as unfairly dismissed because the principal reason for her dismissal was the protected disclosure. It plainly was not.  In our view, the Tribunal’s findings of fact are clear and correct.  The protected act was neither the reason, nor the principal reason for the Appellant’s dismissal.  

43	In these circumstances, the appeal will be dismissed.