Brito-Babapulle v Isle of Wight NHS Trust: EAT 10 Jun 2016

EAT Victimisation Discrimination: Detriment
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Protected disclosure – detriments – burden of proof – section 48 Employment Rights Act 1996 – adequacy of Employment Tribunal reasons
On the Claimant’s complaint of detriment due to having made protected disclosures, the ET accepted that she had been subjected to detriment in the failure to pay her for (un-worked) on-call hours and in the Respondent’s failure to afford her any process or hearing under its disciplinary or dismissal procedures. The ET did not find, however, that either detriment had been on the ground of the Claimant’s protected disclosures. The Claimant appealed.
Held: allowing the appeal
On the failure to pay the on-call sums, the ET had found this was an unauthorised deduction from the Claimant’s wages as she was contractually entitled to the payments in question but did not consider this was on the ground of the Claimant’s protected disclosure because the non-payment had been on the basis of erroneous HR advice. The ET stated, however, that it could not understand the basis of the HR advice. That gave rise to the question whether it might have been materially influenced by the Claimant’s protected disclosures. On the reasons provided, there was not a complete answer to that question and it was unclear whether the ET had failed to adopt the correct approach when looking at the Respondent’s explanation or whether it had failed to provide adequate reasons. In either event, the conclusion was rendered unsafe.
As for the failure to afford the Claimant any process, the ET was faced with a case where the decision had already been made and the Claimant – who had less than two years’ service – had no contractual right (as a locum Consultant) to a disciplinary process. That said, the ET’s finding that the decision not to go through any process was simply due to the Claimant’s lack of requisite service failed to explain the evidential basis for its conclusion; there was no explanation as to how the ET had found that the Respondent had met the burden upon it in this regard. The reasoning provided was inadequate to the ET’s task.
The appeal would therefore be upheld.
On disposal, contrary to the Claimant’s arguments, the upholding of these grounds of appeal did not then undermine the decision rejecting her claim of automatic unfair dismissal, not least as different decision makers were involved. The appropriate course was to remit the case to the same ET for reconsideration of these two detriments in the light of the EAT’s Judgment.

[2016] UKEAT 0090 – 16 – 1006
England and Wales

Employment, Discrimination

Updated: 25 January 2022; Ref: scu.570970