EAT Victimisation Discrimination : Protected Disclosure -The Claimant was employed by the First Respondent (‘Bradford’) and at the time of a redundancy exercise was offered an alternative post subject to a CRB check and an internal reference, both of which were regarded as formalities. However the Claimant had made a protected disclosure which tended to show a serious breach of contract by Bradford in relation to a scheme funded by the European Development Fund. The Claimant had occasion to raise a grievance during the course of which he made the protected disclosures.
The Manager appointed to investigate the grievance, Mrs Baker (the Second Respondent) had taken very much against the Claimant and put herself forward to write the reference, even though she had no knowledge of the Claimant’s work. She wrote a reference she knew to be negative and in a sense misleading and that would affect the Claimant’s position in relation to the new post and did so to ensure that the Claimant was forced out of Bradford’s employment.
The Officer appointing the new post considered (wrongly) that the Claimant had misled him about sickness absence and Mrs Baker knew of this but did not disabuse Mr Rashid. He withdrew the offer of the new post to the Claimant, relying to a substantial degree on the reference. The Claimant was then dismissed by reason of redundancy. The Employment Tribunal was satisfied that the Claimant suffered detriments by reason of his protected disclosures including the appointment of Mrs Baker to give the reference, the giving of the negative reference and her failure to correct misleading information about the sickness absence. The Employment Tribunal held that Mr Rashid did not rely on the reference on the grounds that the Claimant had made a protected disclosure. The Employment Tribunal in effect severed the relationship between Mrs Baker’s action in writing the reference and the motivation of Mr Rashid in not appointing the Claimant to the new post, which the Employment Tribunal held had not been caused in a sufficient sense by the protected disclosure.
The Employment Appeal Tribunal held that the fact Mr Rashid did not realise that he was being misled by the reference did not ‘sanitise’ the effect of the reference and did not absolve Bradford, as employer, from responsibility for a decision influenced by the infected reference.
Serota QC HHJ
[2014] UKEAT 0145 – 14 – 2710
Bailii
England and Wales
Employment, Discrimination
Updated: 27 December 2021; Ref: scu.541537
