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Citations:

[1999] EWCA Civ 1265

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.146180

WHISTLEBLOWING, PROTECTED DISCLOSURES, PRACTICE AND PROCEDURE
You can’t decide whether a claim has reasonable prospects of success if you don’t know what it is. Before considering strike out, or making a deposit order, reasonable steps should be taken to identify the claims, and the issues in the claims. With a litigant in person, this involves more than just requiring the claimant at a preliminary hearing to say what the claims and issues are; but requires reading the pleadings and any core documents that set out the claimant’s case.
The issues were not sufficiently identified in this case, which was the backdrop to the errors of law the tribunal made in determining that the claim of protected disclosure detriment or dismissal had no reasonable prospects of success because the tribunal: (1) failed to sufficiently analyse the information the claimant contended he had disclosed; (2) failed to consider the context in which the disclosure was made; (3) misdirected itself as to the test for whether protected disclosure were in the reasonable belief of the claimant made in the public interest; and (4) failed to properly analyse to whom the disclosure was made, and whether it was arguable that any qualifying disclosure was protected.

Citations:

[2021] UKEAT 0339 – 19 – 0904

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.661950

The Claimant in the Employment Tribunal, a police officer serving with the Respondent Force, made a number of subject access requests to the Respondent’s Data Access Unit (DAU). One of these, made in 2017, (SAR1) was for all emails sent within the Force ‘with a connection to me’ between 2002 and 2017. The Respondent was aware that he considered that he had been the victim of unlawful discrimination, and intended to (and did) bring Employment Tribunal claims.
SAR 1 was referred by the DAU to the Anti-Corruption Unit (ACU), which was the body which kept an archive of all emails sent within the Force. Following an initial response from the ACU to the DAU, the Claimant was informed that his request was too wide, and that he needed to identify the names of senders and recipients that he wanted searched. The DAU was told by the ACU that its software at the time did not enable an automated search to be conducted for any email mentioning the Claimant, regardless of who sent or received it. In January 2018 the Claimant was given access to the emails that had been provided to the DAU by the ACU in November 2017. The Tribunal accepted that, to comply with GDPR from May 2018, the ACU upgraded its software, which improved its automated email search capabilities. Thereafter, following further correspondence about his request, a further batch of emails was provided to the Claimant in October 2018.
The Tribunal, by a majority, found that the Claimant had been victimised, in three respects, by the conduct of the Data Access Manager, referred to as Mr D, in connection with SAR 1. The premise of all these findings was the majority’s conclusion that the ACU in fact had the capability to find the further batch of emails provided in October 2018, when it first responded to SAR1 in November 2017; that the limitations of the ACU’s software prior to the GDPR upgrade did not truly explain why that second batch of emails had not been disclosed with the first batch; and that Mr D knew this to be the case. This conclusion was relied upon by the majority to support the conclusion that Mr D’s impugned conduct was reasonably viewed by the Claimant as detrimental treatment; and that the burden shifted to the Respondent to show that such conduct was not because of the Claimant’s protected acts; and that, as Mr D had not been called as a witness, the Respondent had not discharged that burden, so that findings of victimisation followed.
On the Respondent’s appeal, it was held:
(1) The majority did not have a proper basis, on the evidence before the Tribunal, and facts found, to conclude that the explanation given, for why the ACU was not able to retrieve more emails than were produced, prior to the software upgrade, was not true. The majority rested their conclusion on their understanding of what the ACU existed to do, but the facts found about that, whether generally or in relation to the email archive, did not properly support such an inference. The majority were also wrong to draw an adverse inference from the failure of the Respondent to call a witness from the ACU (in addition to one from the DAU) when the pleaded victimisation claims did not identify that the conduct of the ACU in relation to SAR1 was specifically being criticised. The finding that the explanation given by the ACU was not true was therefore perverse. As it was conceded by the Claimant that the findings of detrimental treatment all rested on that finding (and the inference that Mr D knew that the ACU could have retrieved the October emails at the outset), those findings of detrimental treatment could not stand.
(2) In any event, the matters referred to by the majority as supporting a shifting of the burden of proof could not, separately or cumulatively, properly support the shifting of the burden. In addition, in considering whether the burden shifted in relation to Mr D’s impugned conduct, the majority should have considered the picture painted by all of the Tribunal’s relevant findings regarding his conduct, and his interactions with the Claimant, in relation to SAR1. Consideration of the whole picture reinforced the conclusion that there was no proper basis for the majority’s finding that the burden of proof shifted to the Respondent.
The appeal was accordingly allowed.

Citations:

[2021] UKEAT 0300 – 19 – 2201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.661679

The ET was entitled to find that the employer’s ‘sole or main purpose’ in giving the Claimant a formal oral warning for refusing to comply with an instruction to take down an email list he had created for union communications was ‘preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so’ within the meaning of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The question of the employer’s ‘sole or main motive’ is a subjective question, to be judged simply by enquiring into what was in the mind of the employer at the time.
The question of whether the employee qualifies for protection under paras (a) to (c) of section 146(1) is an objective question, to be decided by the ET.
The ET made findings of fact on these questions which disclosed no error of law or other basis for a successful appeal.
The employer raised no data protection law issues until closing submissions: they were not raised in the pleadings, or in any of the witness statements, or in cross examination. In those circumstances, the ET would have been entitled not to entertain them. IRC v Ainsworth [2009] ICR 985; Peterbroeck, Van Campenhout and Cie SCS v Belgian State (Case C-312/93) [1995] ECR I-4599; Van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten [1996] 1 CMLR 401; and Van der Weerd v Minister Van Landbouw, Natuur en Voedseklwaliteit [2007] 3 CMLR 7 considered.
Having considered the data protection law issues, the ET made findings open to it on the evidence, and correctly referred to and applied the authorities on the question of whether the alleged breaches, if they were taken as established (which they were not), could be said to remove Mr Brown from the protection of section 146 : Morris v Metrolink Ratp Dev Ltd [2019] ICR 90 CA; Lyon v St James Press Ltd [1976] ICR 413 EAT; Bass Taverns Ltd v Burgess [1995] IRLR 596 CA.
The ET also correctly applied the burden of proof.

Citations:

[2020] UKEAT 0084 – 19 – 1712

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.661676

In this case the Claimant sought various remedies from a number of persons. The first person she convened was Lloyds Banking Group plc. In a previous tribunal application, the Claimant had convened Lloyds Banking Group plc together with other persons. The Tribunal had decided she was not employed by Lloyds and was not entitled to seek a remedy from them. Lloyds were a holding company in the group of companies to which the 2nd Respondent belonged. The Tribunal had decided that they were not her employer and that she did not work for them. The tribunal decided that the 2nd respondent was her employer. In the present claim the Claimant sought further remedies in respect of other wrongs. These however arose in respect of the same contract of employment and period of employment. The 1st Respondent took a plea of res judicata which was upheld by the Tribunal. On appeal it was submitted that it was open to the Tribunal to consider the claim against the 1st Respondent because the tribunal that had adjudicated the Claimant’s first claim had not dealt with certain matters relevant to the question of her status as an employee or worker. It was further submitted that even if it had, there were exceptional circumstances that justified the claim continuing against the 1st Respondent. The Claimant submitted that the tribunal had been in error in upholding the res judicata plea and striking out the claim. Held the tribunal had not been in error. The question of the Claimant’s status as an employee or worker was the basis upon which all other substantive claims rested. Where that question had been decided it was not open to the Claimant to relitigate the issue. In any event the fresh arguments which it was said had been raised had already been dealt with by the tribunal that heard the first claim. No exceptional circumstance had been demonstrated that justified repelling the plea of res judicata.

Citations:

[2020] UKEAT 0009 – 20 – 2210

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.661657

The Appellant is a mosque and a Registered Charity (‘the Respondent’). The Claimant was employed by the Respondent as a Minister of Religion. The Claimant alleged that he was paid pounds 1,407.16 by bank transfer from the Respondent each month, but then required to repay part of each payment to the Respondent. He claimed these sums as unauthorised deductions from wages. The Tribunal found in his favour. The Tribunal erred in law in failing to determine the specific occasions on which, and precise circumstances in which, payments and repayments had been made. As a result, the Tribunal had failed to determine whether there was an ‘occasion’, or occasions, on which the sums paid to the Claimant by the Respondent was less than that ‘properly payable’. The matter was remitted for rehearing.
Before the rehearing, case management will be required to consider any application by the Claimant to contend that any payments he made to the Respondent were rendered unlawful by section 15 ERA (rather than being unlawful deductions contrary to section 13 ERA) and/or by the Respondent to claim that recovery of the sums is precluded by the doctrine of illegality because there was an arrangement to make it appear that the Claimant’s salary was greater than it was to support his application for a visa.

Citations:

[2020] UKEAT 0311 – 19 – 1409

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 07 December 2022; Ref: scu.661677