EAT UNFAIR DISMISSAL: Compensation
VICTIMISATION DISCRIMINATION: Whistleblowing
The Claimant was dismissed from his post as the respondent’s Finance Director by its Chief Executive. The Claimant brought a number of claims including one for unfair dismissal which was based on the allegation that the principle reason for his dismissal was the fact that he had made protected disclosures. The Employment Tribunal held in the liability decision that the Claimant’s dismissal was unfair pursuant to the whistle-blowing provisions. The Employment Tribunal held that the Polkey principle did not apply but it reduced the Claimant’s compensatory award by 25% on account of the Claimant’s contributory fault.
At the time of the subsequent remedies hearing, the Claimant had engaged in a sustained campaign to show that the Respondent’s Chief Executive was dishonest. The Housing Corporation had found that there was no evidence of dishonesty. On 16 April 2007, the Claimant wrote to Nottingham Police with copies to other bodies alleging that the Chief Executive was guilty of not only fraudulent accounting but also possibly theft. The police subsequently carried out investigations and found that there was no case for the Chief Executive to answer as his innocence had been proved. The Employment Tribunal held that the Claimant’s motive was a vendetta and that the Claimant could not have had a reasonable belief in the truth of the accusation that the Chief Executive was dishonest. Therefore they considered that if the Claimant had remained in the employ of the Respondent then certainly by the time of his letter to the Police of 16 April 2007, the respondents would not have been acting unfairly in dismissing him for persisting in making the disclosures. So the cut-off point for the claim for compensation was 16 April 2007.
The Claimant appealed and the Appeal Tribunal unanimously held that:-
(i) the Employment Tribunal was not precluded from the findings at the liability hearing (and in particular that the Polkey doctrine did not apply) from deciding in the light of developments after the liability hearing that the Claimant could have been fairly dismissed when he sent the letter of 16 April 2007 to Nottingham Police;
(ii) There was nothing unfair in the procedure adopted by the Employment Tribunal in reaching that decision especially as the complainant did not complain at the time of the remedies hearing;
(iii) The findings of the Employment Tribunal that (a) the Claimant’s complaint to the police was motivated by vendetta and an obsession to destroy the Chief Executive and (b) that by the time the complainant complained to the police he could not have a reasonable belief in the truth of the accusation that the Chief Executive was dishonest meant that the Claimant could not rely on Darnton v The University of Surrey [2003] IRLR 133 and Street v Derbyshire Unemployed Workers Centre [2005] ICR 97;
(iv) There was no error of law in the decision of the Employment Tribunal in not finding the Chief Executive guilty of dishonesty; and
(v) Many of the challenges by the Claimant were to factual conclusions which the Employment Tribunal as the designated fact-finder was entitled to reach.
Citations:
[2009] UKEAT 0324 – 08 – 0804
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Software 2000 Ltd v Andrews etc EAT 17-Jan-2007
EAT Four employees successfully established before the Employment Tribunal that they had been unfairly dismissed for redundancy. The Tribunal found that there had been procedural defects. In particular the . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 12 July 2022; Ref: scu.331198