Factual and Procedural Background
This opinion concerns an appeal by the Appellant against a decision of the Employment Tribunal concerning claims of unfair dismissal and victimisation related to protected disclosures under the Employment Rights Act 1996. The Appellant was employed as a European Financial Controller by the Respondent, a holding company in the mobile phone services sector. The Appellant was dismissed after a short period of employment during which he made several disclosures he claimed were protected, relating to health and safety and other operational concerns in various European subsidiaries.
The Employment Tribunal dismissed the claim for unfair dismissal but found the Appellant had suffered minor detriments related to the disclosures. The Appellant pursued multiple originating applications and was granted a Continuation of Contract Order (CCO) under section 128 of the Employment Rights Act, which was unsuccessfully appealed by the Respondent. The procedural history was protracted and marked by contentious hearings, multiple applications, and issues regarding payment methods under the CCO.
The Tribunal found the Appellant’s conduct during employment to demonstrate poor judgment and a lack of proportion, which was the real reason for dismissal rather than the protected disclosures. The Employment Tribunal’s decision was challenged on grounds including the weight given to hearsay evidence and the interpretation of protected disclosures.
Legal Issues Presented
- Whether the Appellant was dismissed by reason of having made protected disclosures under the Employment Rights Act 1996 (automatic unfair dismissal).
- Whether the Appellant suffered detriments related to making protected disclosures or health and safety disclosures.
- The proper approach to weighing hearsay evidence in Employment Tribunal proceedings.
- The effect and scope of a Continuation of Contract Order under section 130 of the Employment Rights Act.
- Whether the manner in which protected disclosures were made can be distinguished from the fact of making such disclosures for the purposes of victimisation claims.
Arguments of the Parties
Appellant's Arguments
- The Employment Tribunal erred in relying heavily on untested hearsay evidence, particularly the witness statement of the Respondent’s former line manager who was not cross-examined.
- The Appellant challenged several factual findings, including the characterization of his conduct and the reasons for dismissal.
- The email of 5 September 2008 constituted a qualifying protected disclosure, as it identified problems and sought advice related to health and safety.
- The letter of 21 September 2008 was a protected disclosure and should have been regarded as a reason for dismissal and detriment.
- The Employment Tribunal failed to properly apply the Civil Evidence Act 1995 criteria for weighing hearsay evidence.
- The Appellant contended that failure to pay salary by BACS and the denial of benefits such as BUPA and travel insurance constituted detriments related to protected disclosures.
Respondent's Arguments
- The Employment Tribunal correctly approached the evidence, assessing primary facts and supporting conclusions, including the burden of proof.
- The Appellant’s initial email was a request for advice, not a protected disclosure, and the Appellant lacked sufficient information to form a reasonable belief.
- The dismissal was due to poor performance, lack of initiative, and inappropriate conduct, not because of protected disclosures.
- The Employment Tribunal was entitled to rely on the witness statement and contemporaneous documents despite the absence of live witness testimony from the Respondent’s manager.
- The CCO did not require payment by BACS, only that payment be made by the normal pay day, and late payments constituted the only actionable detriment.
- The Respondent denied any detriment arising from failure to respond to correspondence or from the provision of recruitment services.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Woodward v Abbey National [2006] IRLR 677 |
Employer liability for detriments after termination of employment. |
Applied to confirm that detriments can occur post-termination and the employer’s liability extends accordingly. |
| Kuzel v Roche Products [2008] IRLR 530 |
Burden of proof in protected disclosure cases. |
Confirmed that the claimant carries the burden to show dismissal was due to protected disclosure; burden shifts to respondent in dismissal cases. |
| Dowling v Ilic Haulage & anor [2004] ICR 1176 |
Construction and effect of Continuation of Contract Order under s.130 ERA. |
Applied to determine that the CCO does not preserve the contract of employment but only obligations to pay and continuity for certain purposes. |
| Cavendish Munro Professional Risks Management v Geduld [2010] ICR 325 |
Distinction between imparting information and making an allegation for protected disclosures. |
Referenced in assessing whether communications constituted qualifying disclosures. |
| Snowball v Gardiner Merchant [1987] ICR 719 |
Rules on admissibility and weighing of hearsay evidence in tribunals. |
Considered in relation to the Employment Tribunal’s discretion and the need to avoid capricious disregard of evidence principles. |
| Welsh v Stokes [2008] EWCA Civ 796 |
Weight to be given to hearsay evidence and the exercise of judicial discretion. |
Applied to support the Tribunal’s approach to hearsay evidence where corroborative material exists. |
| Martin v Devonshires Solicitors [2010] UKEAT/0086/10/DA |
Distinction between fact of protected disclosure and manner of making it in victimisation claims. |
Applied to uphold the Tribunal’s finding that dismissal was due to conduct rather than the protected disclosures themselves. |
| Anya v University of Oxford [2001] ICR 848 |
Requirement to analyze principal reason for dismissal. |
Referenced in framing the analysis of dismissal reason and motivation. |
| RSPB v Croucher [1984] ICR 604 |
Tribunal’s duty to provide sufficient reasons and not scrutinize decisions word by word. |
Applied in assessing the sufficiency of Tribunal’s reasoning. |
| Balfour Beatty Power Networks v Wilcox [2007] IRLR 63 |
Tribunal’s discretion on evidence and submissions. |
Referenced to confirm no obligation to address every piece of evidence or submission explicitly. |
| Webster Thompson Ltd v J G Pears (Newark) Ltd [2009] EWHC 1070 (Comm) |
Caution against deciding central issues solely on hearsay evidence. |
Considered in relation to the weight of hearsay evidence and the Tribunal’s discretion. |
| Hossack v Kettering Borough Council EAT/1113/01 |
Care in differentiating content of disclosure and manner of making it. |
Applied to support the Tribunal’s approach to victimisation claims. |
Court's Reasoning and Analysis
The court conducted a detailed review of the Employment Tribunal’s findings and procedural history. It acknowledged the heavy reliance on the witness statement of the Respondent’s line manager, who was not cross-examined, but found the Tribunal had appropriately weighed this hearsay evidence in the context of contemporaneous documents and the Appellant’s own testimony. The court noted that Employment Tribunals are not bound by strict rules of evidence and have wide discretion under rule 14(2) of the Employment Tribunal Rules.
The Tribunal’s criticisms of the Appellant’s conduct, including the tone and content of emails and his premature resignation from directorships, were found to be supported by evidence and consistent with the Respondent’s dissatisfaction with his performance and judgment. The Tribunal’s conclusion that the real reason for dismissal was poor performance and lack of trust, rather than the protected disclosures themselves, was upheld.
The court also considered the statutory framework relating to protected disclosures, health and safety disclosures, and the scope of the Continuation of Contract Order. It confirmed that while the Appellant’s letter of 21 September constituted a qualifying disclosure, the dismissal was not by reason of that disclosure but rather the manner in which it was made and the Appellant’s conduct. The court highlighted the legal principle that an employer may distinguish between the fact of making a protected disclosure and the manner in which it is made, applying relevant case law.
Regarding detriments, the court agreed with the Tribunal that late payment of salary and expenses constituted actionable detriments and breaches of the CCO, while the method of payment (cheque versus BACS) was not actionable. The denial of benefits such as BUPA was found to be a breach of contract but not linked to protected disclosures. Other claims of detriment, including failure to respond to correspondence, were not established as linked to protected acts.
Overall, the court found no error of law or perversity in the Employment Tribunal’s findings and reasoning, affirming the Tribunal’s approach to evidence, statutory interpretation, and the conclusions on dismissal and detriment.
Holding and Implications
The appeal is DISMISSED.
The court upheld the Employment Tribunal’s decision that the Appellant was not dismissed by reason of having made protected disclosures, although minor detriments related to late payments were established. The decision confirms the principle that dismissal may be justified by poor performance and conduct even where protected disclosures have been made, provided the dismissal reason is not the disclosure itself but the manner or other factors. It also affirms the Employment Tribunal’s discretion in weighing hearsay evidence alongside contemporaneous documents and live testimony.
No new precedent was set; the ruling reinforces established legal principles regarding protected disclosures, victimisation, and the scope of continuation orders under the Employment Rights Act.