UNFAIR DISMISSAL – Automatically unfair reasons
VICTIMISATION DISCRIMINATION – Protected disclosure
Unfair dismissal – automatically unfair reason for dismissal (protected disclosure) – section 103A Employment Rights Act 1996
Detriment – protected disclosure- section 47B Employment Rights Act 1996
The Claimant was employed by the Respondent as an Anaesthetics Nurse. He was also a steward for the Royal College of Nursing. The ET found that the Claimant was a campaigner and effective trade union representative and had been viewed as a nuisance and source of irritation by managers within the Respondent. It was against that background that the Claimant made the protected disclosures relied on in these proceedings. The ET was satisfied that the Claimant had discharged the initial (evidential) burden of showing his protected disclosures had materially influenced the Respondent’s decision that he should be suspended and subjected to a disciplinary process and had been the reason or principal reason for his dismissal. The ET rejected the potentially fair reasons relied on by the Respondent – conduct or some other substantial reason, namely a breakdown in relations. The ET further found that the managers involved in the dismissal and appeal decisions had been aware both what a nuisance the Claimant had been and of his whistleblowing. Rejecting the suggestion that this was a case akin to Panayiotou v Chief Constable of Hampshire Police [2014] IRLR 500 EAT, the ET concluded that the reason for dismissal was the fact that the Claimant had made the protected disclosures relied on. It further found the reason for the Claimant’s suspension was not made out and again concluded this had been because of his protected disclosures. The Respondent appealed against the ET’s findings on the Claimant’s whistleblowing complaints.
Held: allowing the appeal in part
Having found that the relevant decision takers in respect of the Claimant’s dismissal and appeal had in mind both that he had been a nuisance in his campaigning and trade union activities and the fact of his having made protected disclosures, the ET needed to engage with the question which had been the real reason or principal reason for the dismissal? Although it had stated it had found that the reason for dismissal had been the Claimant’s protected disclosures, there was nothing to demonstrate it had considered the alternative – that the decision takers’ view of the Claimant as a nuisance was the principal reason. On the ET’s findings, however, that had been left as a possibility, notwithstanding its rejection of the Respondent’s positive case on the dismissal having been for a reason related to the Claimant’s conduct or for some other substantial reason (Kuzel v Roche Products Ltd [2008] IRLR 530 CA applied). The appeal would therefore be allowed in this respect and the question of the reason or principal reason for dismissal remitted to the ET.
The ET had, however, been entitled to distinguish this case from that of Panayiotou v CC Hampshire Police; the issue in this case was not the manner in which the Claimant had made his protected disclosures but his entirely separate conduct that led the Respondent to view him as a ‘nuisance’. The separate grounds of appeal on this point would be dismissed.
Citations:
[2018] UKEAT 0239 – 17 – 0503
Links:
Jurisdiction:
England and Wales
Employment
Updated: 22 April 2022; Ref: scu.616880