EAT VICTIMISATION DISCRIMINATION – Protected disclosure
VICTIMISATION DISCRIMINATION – Dismissal
Automatic unfair dismissal – protected disclosures
The Claimant, a qualified non-practising barrister, had been employed by the Respondent as its Legal and Compliance Officer, subject to a six-month probationary period. From early in her employment, the Claimant raised numerous concerns with the Respondent and the manager in the parent company to whom the Claimant reported. She was given training and support but those managing her became increasingly concerned as to the way in which the Claimant was raising matters, her inability to work with others and her rudeness. After attempting to reassure the Claimant and to remove some of the pressure, the Respondent was unable to see any improvement and decided she should be dismissed, essentially due to what was described as a ‘cultural misfit’. The Claimant brought ET proceedings, complaining that this amounted to an automatically unfair dismissal by reason of various protected disclosures she had made.
The ET dismissed the Claimant’s claim. Save in one respect, it did not accept the matters relied on by the Claimant amounted to protected disclosures; it was, in any event, satisfied that the dismissal was not for a prohibited reason. The Claimant appealed.
Held: dismissing the appeal.
(1) Qualifying Disclosures
The Claimant sought to challenge the ET’s rejection of certain matters as qualifying disclosures. On one disclosure, the Respondent accepted the ET had erred in its conclusion that this could not be a qualifying disclosure as it related to something of which the Respondent was already aware. In respect of three other matters, the Claimant contended that the ET had erred in failing to consider the disclosures cumulatively and had wrongly approached its task on the basis that a disclosure in self-interest could not also be in the public interest.
As was common ground, the ET had erred in respect of one disclosure. As for the other matters relied on, however, it was apparent that the ET had rejected the Claimant’s case on the facts and, on the findings made, there was nothing that could properly be found to amount to a qualifying disclosure. More particularly, the ET had found as a fact that the disclosures were solely made in the Claimant’s self-interest; it had not wrongly assumed that this could not also be a matter of public interest but had found, on the facts, that it was not.
(2) Reason for Dismissal
The Claimant argued the ET’s findings on reason were perverse given the chronology (the first discussion regarding her future employment taking place very shortly after one of the qualifying disclosures) but it was clear the ET had fully engaged with the apparent coincidence of timing but rejected the suggestion that gave rise to an inference that the disclosures were the reason for dismissal, not least as the Respondent had still given the Claimant a chance to improve before making its decision. In any event, the ET was clear that the reason was not the Claimant’s disclosures: the decision was made not because of the Claimant’s disclosure of information but because of her reaction thereafter – her inability to explain her concerns, her failure to listen to others and her rudeness. Given the evidence before the ET and its primary findings of fact, that was a permissible conclusion: this was a case where the matters relied on by the Respondent were genuinely separable from any protected disclosure by the Claimant.
Citations:
[2017] UKEAT 0111 – 17 – 1310
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 April 2022; Ref: scu.601906