Fadipe v Reed Nursing Personnel (Note)

Section 44 of the Employment Rights Act 1996 protects an employee while employed from detriment short of dismissal for bringing prescribed health and safety matters to the employer’s attention. It does not govern detriment inflicted after employment ends. Section 230(1) preserves an ex-employee’s ability to bring a complaint about detriment suffered while employed; it does not create a general right to challenge later acts of a former employer. A claimant cannot introduce on appeal a new statutory basis not formulated before the Employment Tribunal. Coote v Granada Hospitality Ltd concerned post-termination retaliation in the distinct equality context and did not extend section 44.

Mr Fadipe complained that Reed Nursing Personnel had unfairly dismissed him and had supplied an unsatisfactory reference, causing him to lose a conditional employment opportunity with Westminster social services. The Employment Tribunal dismissed the unfair dismissal complaint as out of time and held that it had no jurisdiction over the reference complaint. The Employment Appeal Tribunal dismissed his appeal at a preliminary hearing.

In the Court of Appeal, Mr Fadipe argued that the reference was a detriment under section 44 of the Employment Rights Act 1996, notwithstanding that the reference was supplied after his employment had ended. He also sought to rely on health and safety matters that had not been formulated as the basis of the reference claim before the Employment Tribunal.

1. Appeal dismissed. The appeal was unanimously dismissed. The Employment Tribunal had made no error of law in rejecting the reference claim for want of jurisdiction. The order included costs, subject to detailed assessment, and permission to appeal to the House of Lords was refused.
2. On the proper construction of section 44 of the Employment Rights Act 1996, Part V protects employees during employment from detriment short of dismissal because they have raised prescribed health and safety concerns with their employer. Where the complaint concerns dismissal, section 44(4) directs the claimant to the unfair dismissal provisions in another part of the Act. Section 44 therefore did not apply where the alleged detriment was inflicted and suffered after employment had ended.
3. Section 230(1) did not produce a different result. Its reference to a person who had worked under a contract after employment ceased preserved an ex-employee’s ability to present a complaint under section 48(1) concerning a detriment suffered while employed. It did not confer a general right to complain about post-employment acts of a former employer said to result from earlier health and safety complaints.
4. There was also a separate procedural difficulty. The health and safety basis now advanced for the reference complaint had not been formulated before the Employment Tribunal; the health and safety issue had been raised only in relation to the unfair dismissal claim. Under Kumchyk v Derby County Council [1978] ICR 1116, a new claim could not be introduced at that stage of the proceedings. Buxton LJ added that, even if section 44 had been engaged, its detailed statutory conditions would have needed to be clearly raised at the outset. Longmore LJ agreed with both judgments.
5. Coote v Granada Hospitality Ltd [1998] IRLR 656; [1999] ICR 100 was distinguished. It concerned the need for judicial protection against a post-termination refusal to provide a reference in retaliation for proceedings enforcing equal treatment under Article 6 of the Equal Treatment Directive. The health and safety directive contained no equivalent provision, so Coote did not establish a general section 44 claim for post-employment retaliation.

• Court of Appeal (Civil Division): On 4 December 2001, dismissed the appeal from the Employment Appeal Tribunal. [2001] EWCA Civ 1885
• Employment Appeal Tribunal: At a preliminary hearing on 20 November 2000, dismissed Mr Fadipe’s appeal from the Employment Tribunal.
• Employment Tribunal: Dismissed the unfair dismissal complaint as out of time and held that it had no jurisdiction to determine the complaint concerning the unsatisfactory reference.