The claimant was hired in March 2007 under a contract which provided that she was responsible for paying her income tax. Between March 2007 and July 2014, she did not pay tax. The respondent was unaware of this until 2014. There was then a dispute as to whether the claimant was employed or self-employed, and whether her remuneration was paid gross or net. Between 2 June 2014 and March 2017, the claimant made disclosures, which she said were protected disclosures within section 43A of the Employment Rights Act 1996, alleging that the respondent was failing in his legal duty to operate a PAYE system for her and other employees, and was manipulating information to make it appear that staff were self-employed when they were employees. The claimant was dismissed in May 2017. The employment tribunal found that she was not dismissed because she had made protected disclosures but because she wanted the respondent to pay her outstanding tax bill and the imposition of any detriment was not materially influenced by the making of protected disclosures. The employment tribunal found that the claimant had been unfairly dismissed in that there should have been one further meeting before dismissal and was wrongfully dismissed as she should have been given 10 weeks’ notice. However, the claimant was not entitled to enforce her contract because she had performed the contract illegally by failing to pay tax.
The Employment Appeal Tribunal held that the employment tribunal had been entitled to find, on the facts, that the reason for the dismissal was not the making of the protected disclosures and the disclosures did not materially influence the imposition of any detriment. In considering whether a particular disclosure was protected within the meaning of section 43A, a tribunal was entitled to read that disclosure with an earlier disclosure if the later disclosure expressly or by necessary implication referred to, or incorporated, the earlier disclosure. That is a question of fact for the employment tribunal to determine. The employment tribunal were entitled to find that the claimant would not have been entitled to enforce the contract during the period 2007 to 1 July 2014 when she was performing it illegally. That fact, however, did not prevent her enforcing her contractual, and statutory, rights when she was dismissed three years later and at a time when she was not performing the contract illegally.
Citations:
[2020] UKEAT 0106 – 19 – 0402
Links:
Jurisdiction:
England and Wales
Employment
Updated: 04 November 2022; Ref: scu.649249