Westminster Drugs Project (“WDP”) appealed against a decision made by the Employment Tribunal that Ms C O’Sullivan (“CO”), who worked for WDP as a community care assessor, had been dismissed on the grounds that she had made protected disclosures, and thus unfairly dismissed. The WDP argued that this was not the cause of CO’s dismissal.
The protected disclosures relied on included a disclosure to the London Borough of Enfield Drug and Alcohol Action Team (DAAT) about a client. CO had received an email from her client’s husband expressing serious concerns about the client’s health and state of mind. CO forwarded that email and her reply to the husband to the DAAT. CO’s line manager (X) criticised this course of action in two emails to CO.
A few days later an argument took place about the way CO had dealt with the matter. Around the same time as this argument, X informed his own manager, Ms McLean, that he had concerns about CO’s punctuality. On one occasion CO arrived very late at work. She gave an explanation for her absence which X then checked up on and found to be false. This led to an exchange of emails and the involvement of Ms McLean.
Subsequently, Ms McLean decided that CO should be dismissed. She told the employment tribunal that the reason for this decision was that she considered that the relationship between CO and X had broken down. She also found that CO’s emails on the matter were rude and unacceptable, especially as they had been written after she herself had discussed the matter with CO and believed that the matter had been closed.
CO claimed that she had been dismissed for making a protected disclosure to the DAAT. WDP maintained that Ms McLean, who was responsible for dismissing CO, was completely unaware of CO ever having made any protected disclosure and that therefore the making of such a disclosure could not have caused the dismissal. The tribunal rejected that evidence and found that the decision to dismiss CO was materially influenced by the protected disclosure made to the DAAT and that WDP was held to be liable to CO for a breach of the Employment Rights Act 1996 s.47B(1) in respect of the dismissal.
On appeal WDP submitted that the tribunal had erred by ignoring a crucial distinction between a detriment suffered by the employee on the grounds of a qualifying protected disclosure, as compared with a detriment suffered because of the manner in which the disclosure was made, and CO’s broader conduct in the process of making those disclosures.
The Appeal Tribunal readily accepted that there was a proper distinction to be made between a detriment sustained on the grounds of the fact that a protected disclosure has been made and a detriment on the grounds of the manner of such a disclosure or conduct associated with it. The Appeal Tribunal accepted that it may have been possible for WDP to have run their case that, in so far as CO’s dismissal was related to any protected disclosure, it was caused by the manner of the disclosure and associated conduct about which the line manager was legitimately concerned. However, that was not how the case had been run in actual fact, before the employment tribunal.
WDP’s case was that Ms McLean knew nothing about the protected disclosure and therefore, it could not have influenced the decision to dismiss CO. The consequence was that the distinction relied upon in the instant appeal, between the fact and manner of a protected disclosure, had not been drawn to the tribunal’s attention by WDP. In addition, WDP did not dispute that CO had made her disclosure in good faith.
The Appeal Tribunal stated [para.20]:
“In the circumstances, it was hardly surprising that the employment tribunal did not turn its mind to the distinction or that, having rejected Ms McLean’s evidence about what she knew at the time of the dismissal, it came to the conclusion that her decision was materially influenced by the protected disclosure.”
The Appeal Tribunal was of the view that it was too late for WDP to rely on the distinction and the appeal was dismissed.