www.nhsexpose.co.uk

1). That I am submitting this petition after one month from the date of the order appealed against (CA 3658/05 12^th October), because in the first instance I applied to the Court of Appeal for permission to present a petition of appeal to the House of Lords. The application was dismissed (CA 4161/05 9^th November) and I am therefore seeking permission from the House of Lords to present a petition of appeal within the allowed time limit of three months from the date of the original order. The grounds on which I base my application are as follows: -

2). That this case concerns my dismissal as Director of Finance, Information, Computing, Legal Services and Procurement of one of the largest NHS Trust’s in the United Kingdom. No allegations of specific misconduct, personal, professional or financial, were levied against me, and indeed it was acknowledged throughout by the Respondent that no such allegations could have been levied against me: to the contrary my emphatic insistence on personal and financial probity, rather than producing solutions to the Respondents’ financial problems which were not in accordance with standard accounting practice, told against me. Although I was apparently dismissed on account of my disruptive personality, there was no finding of fact, which identified any event or activity undertaken by me, or indeed not undertaken by me, from which my employers suffered some form of detriment.

3). I had been in post as Finance Director, initially of the hospital and later the Trust, for a period of eleven and a half years, and had worked for St George's for some five years prior to that, with no formal complaints being made against me, or about my style prior to July 29^th 2002 when I was asked to resign without warning by the Respondent. Prior to this I had worked successfully in local government finance as an accountant for over sixteen years again without a single complaint being made against me. I was an award-winning accountant, being awarded on behalf of my department a Best Practice Employers Award in the spring of 2002; I was on several occasions elected by my peers to serve as an NHS representative on the Council of the Chartered Institute of Public Finance & Accountancy. In April 2002, just three months before my dismissal, I was commended by the Chairman of the Trust Miss Mcloughlin at a public board meeting for work I had undertaken as Finance Director for the respondents and in the period 2001 to 2002, I had been invited to carry out two further major functions for the Trust, in addition to my role as Director of Finance, Procurement and Legal Services, when I was asked to take on the management of the Information and Computing functions. At the time of my dismissal my finance department was providing financial services to a greater number of external NHS bodies than any other hospital finance department in the United Kingdom and we had been listed in Hansard (17 Jul 2000 col 71w), as having in the development of the new £60 million St George’s Cardiac/Neuro hospital wing, incurred the lowest external finance costs of any comparable NHS scheme developed under the Government’s Private Finance Initiative, by hundreds of thousands of pounds.

4). Despite all these achievements, on the 29^th July 2002, my first day back in the office after a period of holiday and just two working days after the consequences of my proven Public Interest Disclosure about the misreporting of cancelled operations (ET judgement para 26) had been made public and just three weeks after making a Public Interest Disclosure to PricewaterhouseCoopers (ET judgement para lxi), the Respondents external auditor, that St George’s was in danger of breaching its statutory duty to break even financially, the Chief Executive Ian Hamilton, together with the Director of Human Resources Colin Watts, (prior to any discussion, investigation, or process aimed at resolving any issues concerning my performance in my role) called me to an unscheduled meeting and asked me to resign my post. When I refused to resign, I was told I could no longer attend meetings as a director of the respondents and then some eleven days later I was called to an investigatory meeting, chaired (contrary to the NHS code of conduct) by Mr Hamilton the Chief Executive and attended by Mr Watts the Director of Human Resources, the very individuals who had asked me to resign and who at the end of the investigatory meeting suspended me from my employment. Despite my protests and concerns expressed in writing that she would be biased against me and would not conduct a fair hearing, Miss McLoughlin the respondents Chairman, then inappropriately insisted on conducting a proven biased and unfair internal disciplinary hearing against me, which resulted in me being summarily dismissed from my employment in December 2002.

There are two grounds of appeal:

(i) that the Tribunal erred in law when it concluded that there was a 100% chance that my employment would have been terminated even if an independent person had chaired the disciplinary proceedings.

 

(ii) that the Tribunal erred in law in concluding that by my conduct I was guilty of contributing to my own dismissal to the extent of 100%

 

5). In coming to a conclusion that the 100% Polkey reduction made by the Employment Tribunal was justified, Lord Justice Wall, supported by Lord Justice Mance and Lord Justice Tuckey, stated (CA judgement para 66) that 100%, Polkey reduction is in his judgement, an assessment which depends critically on the facts.

6). Lord Wall then goes on to say at (CA judgement para 67) that the question to be answered is whether the Tribunal was right to find that had the disciplinary proceedings been conducted before a properly constituted and unbiased tribunal then there was a 100% chance that I would have been fairly dismissed and that by my conduct I contributed to my dismissal to the extent of 100%.

7). As Lord Wall states in (CA judgement para 68) the Chairman of the internal disciplinary procedure had only days before made it clear that she wanted me dismissed and that there was plainly no prospect, with her in the chair, that the disciplinary procedure would result in anything other than the confirmation of my dismissal.

8). Having stated the principle governing Polkey reduction, Lord Justice Wall goes on to say that despite on first reading coming to the conclusion that it must have been reasonable to think that a fair procedure and a genuinely independent investigation would –or at the very lowest might- have produced a different result – and certainly not a result which placed the entire responsibility for my dismissal on myself, he has nevertheless been persuaded by what he states were the factual findings of the Employment Tribunal, which he says were very powerful indeed (CA judgement para 69). Essentially he says that those findings were, that while entitled to defend myself, that my attacks on the honesty, financial probity and integrity of my colleagues (and in particular my dogged insistence on maintaining my stance in relation to those attacks were manifestly ill-founded), opened the door to the Tribunal being able to find that any other disciplinary process would have ended with exactly the same result and that this entitled the Tribunal to reach that conclusion that it would have been quite impossible for me to have worked again with Mr Hamilton after I had called him a liar and a bully, notwithstanding that Mr Hamilton had resigned his position with the NHS with immediate effect on the grounds of ill-health several months before the Employment Tribunal had delivered it’s judgement.

9). In Lambe v 186K Ltd ([2004] EWCA Civ 1045) Lord Wall quoted from Lord Prosser in King v Eaton (No 1) in relation to Polkey, "Equally, in broad terms, it appears to us that there will be situations where once can say that an employee has been deprived of ?something of substantive importance? to use a phrase of Lord Coulsfield?s. We see no need to discard entirely terminology of this kind; and whilst in many cases it may be inappropriate to allocate the particular facts to either category, or to do so without enquiry, it seems to us that a distinction between the ?merely ? procedural, and the more genuinely ?substantive? will often be of some practical use, in considering whether it is realistic, or practicable, or indeed ?just and equitable? to embark upon an attempt to construct a hypothesis, enabling one to assess what would have happened, if only it had. If there has been a "merely" procedural lapse or omission, it may be straightforward to envisage what the course of events would have been if procedures had stayed on track. If, on the other hand, what went wrong was more fundamental, or "substantive", and seems to have gone "to the heart of the matter", it may well be difficult to envisage what track one would be on, in the hypothetical situation of the unfairness not having occurred. It seems to us that the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one cannot sensibly reconstruct the world as it might have been [emphasis added]. Lord Wall went on to say that, "The highlighted passage from King v Eaton (No 2) seems to us both practical and to coincide with the approach of this court in O?Dea. It provides Tribunals with a straightforward and sensible yardstick with which to approach such cases, and avoids unnecessary and unproductive debate about whether a particular piece of conduct fits into the "substantive" as opposed to the "procedural" category". 8It is clear from the findings of fact by the Employment Tribunal (ET Judgement para 41, 42, 43 & 44) that the failure of the NHS disciplinary hearing to grant me my basic employment rights and my entitlement to a fair disciplinary hearing by the NHS could not be categorised as anything other than fundamental or substantive and clearly went to the heart of the matter to the point that it was not just and equitable to make a Polkey reduction and certainly not one of 100%. It is self evident that the Employment Tribunal could not possibly have reconstructed the world as it might have been had the proper procedures been followed and I had been subjected to a proper NHS disciplinary hearing and a proper NHS appeal tribunal both of which would have been comprised of individuals who would have had the technical expertise to examine the evidence independently and with an expert knowledge which the Employment Tribunal, although comprised of independent members, could not possibly have brought to bear when considering and weighting the evidence put forward by myself and my many witnesses, against that put forward by the three members of the biased NHS disciplinary hearing who were the only individuals who gave evidence to the Employment Tribunal on behalf of the respondent.

10). Lord Justice Wall also suggests that I was not at the outset of the internal hearing aware of Miss McLoughlin’s unprincipled behaviour and that this further upheld the Employment Tribunal’s right to impose a Polkey reduction.

11). Lord Justice Wall comes to the conclusion that therefore the submissions made by the Respondents are preferred and that the Tribunal’s findings make the Polkey answer ineluctable.

12). This finding amounts to an error of law, because as Lord Justice Wall clearly states, the application of Polkey Reduction relies on critically the facts and yet his analysis and the findings of the Employment Tribunal, and the findings of the Employment Appeals Tribunal have all failed to take account of material and significant findings of fact by the Employment Tribunal that show that the criticisms that I made of my former colleagues were far from unfounded and could not have possibly have been treated in the same way by an independent disciplinary panel, as they were by the proven biased internal NHS disciplinary hearing that was chaired by Miss McLoughlin.

13). Contrary to the statement made by the Respondents QC (CA judgement para 43) when relying on the speech of Lord Hoffman in Piglowska v Piglowska 1999, that the Employment Tribunal had the benefit of seeing all the witnesses give their evidence. The Employment Tribunal, The Employment Appeals Tribunal and the Court of Appeal all failed to take account of the fact that the respondents called only three witnesses to give evidence to the Employment Tribunal, Miss McLoughlin, Mr Hamilton and Mrs Mark and that the majority of my witnesses (Mrs McCarthy, Mr Cumberbatch, Mr Sargeant, Miss Salter and Miss Goulding) had their statements accepted without challenge by the Respondent and did not therefore give their evidence in person. All three of the Respondent’s witnesses, together with the Respondents Director of Human Resources Colin Watts, were the principal participants in a dismissal procedure, which the Employment Tribunal found, as a matter of fact, to have resulted in an unfair dismissal (paras 40, 41, 42, 43, 44). These findings do not show that there were minor infringements of my employment rights, they show, as findings of fact, that every element of basic natural justice that I was entitled to expect from the application of the fair process that the Respondents own Disciplinary Procedure outlined, were absent from the process to which I was subjected.

14). The Employment Tribunal found as a matter of fact that: -

(a). A decision to dismiss had already been taken before any due process had been commenced (ET judgement para 41).

(b). That the NHS disciplinary hearing was chaired by an inappropriate and partial individual, in breach of both the ACAS and NHS rules governing dismissals (ET judgement paras 42 and 43).

That the contractual right, given to every NHS employee, of an internal NHS appeal against a decision to dismiss was denied to me (ET judgement para 43).

That the Respondents had failed to follow the ACAS code of conduct for dealing with dismissal, which the Respondents were bound by their own procedures to follow and that no warning of the likelihood of dismissal was ever issued (ET judgement para 44).

 

15). Given that the Respondents were one of the largest NHS Trusts in the United Kingdom and had a developed sophisticated procedure for dealing with dismissals, it should have raised a concern in the mind of the Employment Tribunal, as to why, if Miss McLoughlin, Mr Hamilton, Mrs Mark and Mr Watts were individuals of unquestionable integrity and honesty that they had all willingly become party to such an abuse of their own properly recorded procedure for dismissing an employee, whom they all claimed was being dismissed for clearly displaying an inappropriate management style in the discharge of his functions of Director of Finance and not as I had claimed because I had made protected disclosures under the Public Interest Disclosure Act, regarding the misreporting of cancelled operations ( ET judgement para 26) and the inability of the St George’s Healthcare NHS Trust to meet its statutory financial break-even duty ( Employment Tribunal Judgement para lxi).

16). If the evidence justifying dismissal was as strong as the Respondents three witnesses claimed and was unrelated to the Public Interest Disclosures, they would have had no need to fail to follow a proper process and instead embark on a process that denied me my rights to basic natural justice and ensured that there was no proper investigation of the matters which I was bringing to their attention and which should have been properly investigated and not left uninvestigated until 2004, when more than a year after the Employment Tribunal judgement was delivered, the NHS finally conducted an investigation into my allegations and the circumstances surrounding the proven Public Interest Disclosure ( ET judgement para 26) . Because of their failure to follow a fair and proper procedure the evidence of Miss McLoughlin, Mr Hamilton and Mrs Mark should have been treated as suspect, particularly, as because of their central inappropriate involvement with the investigatory and disciplinary process, they would all have had a huge incentive to ensure that none of my allegations were fairly investigated, because of the huge damage that would have resulted to their credibility and reputations, if my claim that I had been dismissed for making Public Interest Disclosures had succeeded. This would clearly not have been a concern in the same way to individuals who were part of a properly constituted independent disciplinary panel, who would have been able to consider all matters fairly, without fearing that a particular conclusion would have threatened their own reputations and would have had no difficulty in properly investigating the claims that I was making against my fellow board colleagues, instead of having a vested interest in dismissing them out of hand, as the proven biased tribunal to which I was subjected clearly had. The Employment Tribunal should also have taken into account that by denying me my contractual right to an NHS internal appeal against the decision to dismiss me, prevented the allegations I was making being properly investigated by appropriately qualified independent senior NHS officials, whose findings in relation to my allegations of dishonesty and lack of integrity could have been taken into consideration by the Employment Tribunal. The fact that an internal NHS appeal against my dismissal was improperly refused, resulted in the Employment Tribunal, which was constituted of lay members had to rely on the findings of the biased disciplinary hearing, when they should have had as a matter of basic natural justice the findings of an expert independent NHS panel to consider.

17). The Employment Tribunal should have and did not, in giving weight to the fact that despite the Respondents claiming that the reason for my dismissal was justified because my relationships with a wide range of internal and external partners had broken down, taken into account that they in fact did not call any witnesses other than the three individuals (Mcloughlin, Hamilton and Mark) who were, with Mr Watts, the central players in my proven unfair dismissal hearing (Mcloughlin, Hamilton and Mark). The Employment Tribunal should have and did not take account of the fact that any evidence they gave at the Employment Tribunal hearing was bound to be tainted given that it was drawn from the proven biased disciplinary hearing that they had conducted and could not therefore possibly be seen as impartial evidence. Impartial evidence could only have been given if a properly independent NHS disciplinary hearing had been put in place and the individuals constituting that panel had given evidence to an Employment Tribunal and in turn backed up by evidence given by the individuals who should have conducted the properly constituted NHS appeals hearing. This is particularly the case where their evidence conflicted with that given by myself and the large number of witnesses (all but three of whose evidence was accepted without challenge by the Respondent) that gave evidence on my behalf directly to the Employment Tribunal, including exceptionally my solicitor Mr Quill, who gave evidence in person to the Employment Tribunal to confirm that Mr Watts notes did not properly reflect the substance of the accusations made against me at the investigatory meeting, which had been inappropriately chaired by Mr Hamilton.

18). However, of much more importance the Employment Tribunal had demonstrated to it, at first hand, the very lack of honesty and integrity of Miss McLoughlin and Mr Hamilton, of which I had accused them together with Mr Watts, who as the respondents Director of Human Resources had a professional duty to ensure that a proper and fair process was followed, a duty which on the findings of fact by the Tribunal (paras 40, 41, 42, 43 and 44) he must have singularly failed to fulfil. The criticisms the Employment Tribunal, Employment Appeals Tribunal and Court of Appeal have all in their turn stated justifies the Polkey reduction of 100%, is that I made unfounded allegations of dishonesty and lack of integrity, yet when McLoughlin, Hamilton and Marks gave their evidence under oath, to the Employment Tribunal, they all claimed that they had acted in good faith and that the employment procedure they had followed had been fairly conducted. Miss McLoughlin at paragraph 35 of her witness statement given in evidence to the Employment Tribunal states, "I strenuously deny the suggestion that I attempted to engineer Mr Perkin’s dismal", Mr Hamilton stated at paragraph 53 of his witness statement that, "I was not of course involved at all in the panel’s discussions or in the final decision to dismiss Mr Perkin", while Miss Mark said at paragraph 17 of her witness statement, "As I have said, I have considerable experience of these sort of proceedings. In my view Ms McLoughlin conducted the proceedings entirely properly and fairly and I had no reason to suspect she was prejudiced against Mr Perkin". Miss Mark also stated in paragraph 17 that, "I am satisfied that Mr Perkin was afforded a fair and proper hearing". In addition McLoughlin and Hamilton claimed under cross-examination that they had not had any discussions prior to the internal disciplinary proceedings about dismissing me. The findings of fact by the Tribunal (ET judgement paragraph 41) state that Miss McLoughlin had expressed views to KPMG that an exit package strategy would be in place by the end of July. The KPMG report on which this finding of fact is based was only disclosed to the Employment Tribunal, when, after the Respondents claimed they could not make the report available because they did not own the copyright, Kevin Murphy of KPMG was ordered by the Chairman of the Employment Tribunal to supply the relevant documents. This was done toward the end of the Employment Tribunal hearing and well after Miss McLoughlin, Mr Hamilton and Mrs Marks had given their evidence and showed conclusively that the two individuals who had been the investigator (Hamilton) of the complaints against me and the Chairman of my NHS disciplinary hearing (McLoughlin) had decided to remove me from my post before even the investigation into allegations being made against me had commenced, let alone the disciplinary procedure.

19). The disclosure of the report showed not only, as the Employment Tribunal records as a finding of fact (ET judgement para 41), that my dismissal was unfair, but in addition the Employment Tribunal found, as a further finding of fact that the KPMG report had revealed (ET judgement para 41) that Miss McLoughlin and Mr Hamilton had clearly discussed the matter of my dismissal before any investigatory or disciplinary process had been commenced. What this finding shows beyond any doubt is that Miss McLoughlin and Mr Hamilton had lied when they had given their evidence under oath to the Tribunal, that they had approached the question of my dismissal with an open mind and that a fair procedure had been followed.

20). Even more significantly, Miss McLoughlin and Mr Hamilton had lied under oath when they stated in evidence given under oath that they had not had not discussed the matter of my leaving the Trust with each other or other organisations. The finding of fact by the Employment Tribunal was that Miss McLoughlin had clearly discussed the matter with the Chief Executive and others. The Respondents were invited to ask Miss McLoughlin to return to give further evidence to explain why these clearly untrue statements had been made to the Employment Tribunal and refused to do so. The fact that the Respondents witnesses were prepared to lie under oath and that Miss McLoughlin refused to subject herself to further cross examination to explain the inconsistencies in her evidence to the Employment Tribunal is a material fact that the Employment Tribunal, Employment Appeals Tribunal and Court of Appeal have all failed to take into proper account.

21). I am told that because I "doggedly" continued to accuse my former board colleagues of lack of honesty and integrity, that a Polkey reduction is justified, yet the Employment Tribunal had a clear demonstration of the behaviour of which I was complaining, when evidence given under oath by the Respondents was clearly shown to be false with the disclosure of the KPMG report. It was perverse of the Employment Tribunal not to have taken account of this perjury of the Respondents and not to have given it due weight, when considering whether the accusations that I had made of dishonesty and lack of integrity of my former colleagues was merited. If no account is to be taken of the honesty and integrity of individuals who give perjured evidence under oath, it must raise the question of whether there is any legal force in asking witnesses to take the oath or affirm when giving their evidence to Employment Tribunals.

22). Under Lord Wall’s analysis, that Polkey reduction has to be based critically on the facts, it must follow that it is an error of law if the facts on which the decision to apply the reduction is based, are not properly considered by the Employment Tribunal making that decision and by those higher judicial authorities who in their turn review and uphold that decision.

23). This same principle also applies to Lord Wall’s finding that the Respondents QC was entitled to make the point that I was not aware at the outset of Miss McLoughlin’s unprincipled conduct. This is not born out by the findings of fact by the Tribunal.

24). When disciplinary proceedings were first commenced against me by the Respondents I was informed that Miss McLoughlin would hear the complaints sitting alone. Written submissions were then made on my behalf pointing out that Miss McLoughlin would be biased against me in any hearing and that instead three independent QC’s should be asked to constitute the disciplinary panel.

25). The Respondents refused to accede to my legitimate request for an independent hearing and instead responded by stating that Mrs Mark would sit with Miss McLoughlin. The Employment Tribunal (ET judgement para 42) acknowledges as a finding of fact that not only did the Respondents attempt to deal with my concerns about Miss McLoughlin’s bias, but also found that by appointing Miss Mark to sit with her did not remedy that difficulty. It is therefore not true to state, as Lord Wall does (CA judgement para 70), that it was fair to say that I was not aware at the outset of Miss McLoughlin’s unprincipled conduct. It was found as matter of fact by the Employment Tribunal (ET judgement para 42) that not only were concerns raised about her impartiality at the outset, but that the Respondents made an inadequate attempt to deal with those concerns which I had put to them. Indeed in her witness statement to the Employment Tribunal Miss Mcloughlin at paragraph 32 stated, "In order to reassure Mr Perkin, however (but without accepting his objection) I did agree that Diane Mark should hear the case with me". This clearly demonstrates that I was well aware of how Miss McLoughlin would behave from the outset and that I made clear but abortive attempts to try and ensure that the NHS disciplinary hearing was properly conducted. I also requested that the proceedings be tape recorded (ET judgment para 46), because I knew they would be unfairly conducted and wished to have an accurate record of the proceedings, but this request was also refused.

26). Lord Justice Wall states that if the Polkey 100% reduction is not properly capable of challenge, the concept of 100% contributory fault is of lesser significance. The same arguments that apply to the error of law in terms of the application of 100% Polkey Reduction equally apply to the application of 100% Contributory Fault.

27). In addition, given that actual bias was found by the Employment Tribunal to have been proven and on disclosure of the KPMG it was found that Miss McLoughlin sought to have an exit policy for me on the 29^th July 2002 (ET judgement para 41), no conduct on my part at the subsequent NHS disciplinary hearing or subsequent Employment Tribunal hearing (ET judgement para 49) concerning allegations against my board colleagues could conceivably have contributed to a decision that had been already taken before either hearing had commenced. There was no finding of fact that I made any allegations of dishonesty or lack of integrity against any of my former board colleagues before the commencement of the biased disciplinary proceedings.

28). As it was also proven that I was subjected to a biased and unfair internal disciplinary hearing, it is inconceivable that a reasonable Tribunal could have come to the conclusion that I contributed 100% to my own dismissal and that the proven unfairness of the procedure to which I was subjected played no part at all in the outcome, even though Lord Wall himself states (CA para 68) that there was plainly no prospect, with Miss McLoughlin in the chair, that the disciplinary procedure would result in anything other than confirmation of my dismissal.

29). Additionally Lord Justice Sedley had already stated that the EAT’s reasons for upholding the finding of 100% were shaky and Lord Wall states that the terseness of the Tribunal’s final paragraph is unfortunate. It is indeed unfortunate, because in Parkers Bakeries Ltd v R.E.Palmer (1977) IRLR 215 the same wording used to determine a 10% Contributory Contribution was ruled to be totally inadequate and the following warning was given, "As we have said more than once, Industrial Tribunals must specify the behaviour, action or conduct which they are taking into account under that head. Consider this case, there seems to at first sight to be a complete inconsistency between saying, in one and the same breath, that Mr Palmer was unfairly dismissed but that he contributed to his dismissal to the extent of 10%. It makes it sound as though it is a kind of compromise, which would be wrong. That may be quite unjust to the Industrial Tribunal. It may be - we can only speculate - that the 10% refers to his conduct when the matter was investigated by way of interview, when he took a somewhat inactive and supine part. That may have been what they had in mind, but the mere fact that we are driven to speculate about it indicates the real need for Industrial Tribunals to spell out in their decisions all the basic facts which they have found. This is not merely for the benefit of the Appeals Tribunal. Even in cases where there is no likelihood of there being an appeal, it is essential that the parties should know why they won or lost, and the findings on the various controversial issues". This case shows that the wording used in my case does not follow the reasoning in Parkers Bakeries Ltd v R.E. Palmer [1977] IRLR 215 and should not therefore be allowed to stand.

1). As Lord Mummery supported by Lord Neuberger stated in his judgement in giving leave to appeal. "It is unusual to hold that there was a hundred percent chance that employment would have been terminated, even if the procedure had been fair. It is also unusual, but legally possible; to find a conclusion that an applicant who succeeds in establishing that there was procedural unfair dismissal has contributed to his dismissal to the extent of a hundred per cent. Even more unusual, in my experience, is the situation in this case, in which no misconduct was alleged against him, Mr Perkin was following the disciplinary tribunal, summarily dismissed. There must be a real question as to whether there was here a potentially fair reason for his dismissal, quite apart from the findings in his favour by the Employment Tribunal about the procedural unfairness of the dismissal process". This view should surely be strengthened when the fact that at least two of the respondents only three witnesses were found to have lied when giving their evidence under oath on the disclosure of the KPMG third party document is taken into account. This I believe reinforces the unusual nature of this case would and further reinforces why my appeal should have been upheld.

2). In addition Lord Wall confirmed at (CA judgement para 76) of the Court of Appeal judgment supported by Lords Mance and Tuckey that the facts of this case are highly unusual. The case is indeed unusual because it sets a legal precedent, in that for the first time it has been held by the Court of Appeal that an employee who has otherwise done nothing wrong and has a long and satisfactory service record can be fairly dismissed without warning because of concerns about his personality under the label of Some Other Substantial Reason, notwithstanding that I was successful in proving both that I had made a Protected Disclosure and that the process followed in dismissing me was unfair.

3). I believe that if five Lord Justices come to the conclusion that this is an unusual case, that this, coupled with the fact that the case involves senior executives of one of the largest NHS organisations in the United Kingdom, having ignored standard employment practice and instead resorted to dismissing a long standing senior employee, who has only recently made a proven Public Interest Disclosure (ET judgement para 26), by subjecting him to a proven unfair and biased disciplinary process, makes this a case which contains points of law that are of significant public interest. I believe that it is therefore appropriate for me to petition the House of Lords to be granted leave to appeal against the judgements of the Employment Tribunal, Employment Appeals Tribunal and the Court of Appeal.

4). I do so on the basis for the reasons stated above, that the Employment Tribunal, Employment Appeals Tribunal and the Court of Appeal have all made an errors in law in the application of both the 100% Polkey reduction and the finding of 100% contributory conduct, because they did not properly consider and weight all the clear findings of fact made by the Employment Tribunal and in particular place them in the correct chronological order. Thereby correctly taking account of the fact that on the disclosure of the KPMG report, that at least two of the Respondents three witnesses were shown to have lied when giving their evidence under oath, clearly demonstrating that my assertions that they were individuals who lacked honesty and integrity were well founded and that it is perverse that I should have been so heavily penalised for having defended myself by making them.

5). If I am not successful in being allowed to appeal the decision of the ET, EAT and the Court of Appeal, it will mean that senior employees of long standing who have made recent proven protected disclosures under the Public Interest Disclosure Act are very unsafe in their employment, as all that is need to justify summary dismissal and the complete removal of an individuals basic employment rights, is for a small number of senior colleagues to argue that the employee was ‘difficult’ or conducted an aggressive defence. This cannot be right and if left to stand as substantive case law will have disastrous consequences for employees faced in the future with decisions of conscience, when they uncover wrong doing by their employers about which they should make a protected disclosure. Being labelled as "difficult" and mounting a robust defence, should not be allowed to obviate the need for employers and particularly employers like the NHS who are an arm of government, to follow a fair procedure before dismissing long standing employees who have caused no proven detriment to their employer. Yet if the Court of Appeal decision by Lords Mance, Tuckey and Wall is allowed to stand, this is exactly the practical position, through the application of Polkey chance, that will be enshrined in case law for the future. As Lord Chancellor (Gardiner) said in his statement to the House of Lords on the 26^th July 1966, "Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so." The decision in my case cannot be right in terms of basic natural justice, as the application of Polkey chance should not have had at its heart relied on information that can only have arisen from the biased and unfair original NHS hearing to which it was found, as a mater of fact, I was subjected and I would respectfully request that my petition to have my appeal heard by the House of Lords is granted.

..................