EAT UNFAIR DISMISSAL: Automatically unfair reasons
PRACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke
The employee claimed that she had been dismissed for making protected disclosures and that her dismissal was unfair under s98A(1) and 98(4) of the Employment Rights Act 1996 (ERA). She failed on protected disclosure; the dismissal was unfair under s98A(1) but if a proper procedure had been followed, she would have been dismissed fairly for misconduct; she was entitled to a basic award. On appeal held:-
The Employment Tribunal’s conclusion that the employee did not reasonably believe in the truth of the information disclosed was not reached in error of law, it had correctly applied – Darnton and Babula.
There was no perversity.
Although the Employment Tribunal had originally failed to address disclosures to the employers as opposed to disclosures to outside recipients (a) the answers given by the Employment Tribunal to questions under the Burns/Barke procedure were sufficient (b) although one of the members went too far, in error of law, he was only 1 of 3 and his comments had no higher status than that of a dissent.
Observations on the use of the expression ‘we are driven to the conclusion’; it states no more than the fact finder’s view of the strength of the evidence.
 UKEAT 0443 – 07 – 2208
Updated: 10 February 2021; Ref: scu.272839