EAT UNFAIR DISMISSAL – Automatically unfair reasons
Protected disclosure – automatic unfair dismissal – section 103A Employment Rights Act 1996
Having found that the Claimant had been constructively dismissed and that the Respondent had not put forward any reason that was capable of being fair for the purposes of section 98 ERA; the Claimant’s dismissal was unfair. The issue was whether the reason or principal reason for that dismissal was a protected disclosure, thus rendering the dismissal automatically unfair for the purposes of section 103A ERA. The ET had found that it was.
The Respondent contended that in so doing, the ET had (1) erred in law in applying a ‘but for’ test rather than determining what was the reason or principal reason for the dismissal; alternatively (2) failed to properly identify the reason or principal reason for the dismissal and/or reached a conclusion that was perverse.
Held:
Although the Claimant had put his case on a ‘but for’ basis, the ET had not fallen into the error of applying that approach but had kept in mind the need to determine what was the reason or principal reason for the dismissal. Where an error did arise, however, was in the ET’s failure to engage with the potential explanations put forward by the Respondent and/or arguably apparent from its own findings of fact. The ET thereby failed to conduct the necessary critical analysis of the Respondent’s reason for its conduct and failed to properly explain its findings and reasoning in that regard. In the circumstances, the appeal on this ground would be allowed and this matter – the section 103A aspect of the claim – remitted to a freshly constituted ET for re-hearing.
Eady QQC HHJ
[2015] UKEAT 0061 – 15 – 1206
Bailii
England and Wales
Employment
Updated: 03 January 2022; Ref: scu.551965