ALM Medical Services Ltd v Bladon

Employment tribunals have broad control over evidence and procedure, but each party remains entitled to adduce evidence and conduct cross-examination on matters relevant to the issues. An evidential ruling may be overturned where the tribunal acts contrary to legal principle or in a plainly wrong manner.

In a protected-disclosure claim, the tribunal must consider evidence bearing on every disputed statutory requirement. It cannot confine the evidence to the employer’s reason for dismissal. The claimant must establish a protected disclosure and that the disclosure was the reason, or principal reason, for the treatment. Questions of substantive or procedural unfairness associated with ordinary unfair dismissal are of less importance where the claimant lacks the ordinary qualifying period.

The employee worked for a nursing-home operator for three months. He raised concerns about patient welfare, first internally and later with the local authority and Nursing Home Inspectorate. After receiving a written warning, he was summarily dismissed. He claimed detriment and automatic unfair dismissal for making protected disclosures.

The Employment Tribunal upheld both claims and awarded compensation. It declined to hear oral evidence from several witnesses whom the employer wished to call. The Employment Appeal Tribunal dismissed the employer’s appeal at a preliminary hearing because it had no reasonable prospect of success.

The employer appealed to the Court of Appeal. The central question was whether the tribunal had adopted an erroneous approach by treating evidence relevant to the statutory protected-disclosure requirements and the reason for dismissal as irrelevant.

1. Appeal allowed unanimously. Lord Justice Mummery delivered the leading judgment. Lord Justice Rix and the Vice-Chancellor agreed. The tribunal’s approach to the employer’s evidence was plainly wrong. The case was remitted for rehearing by a fresh Employment Tribunal.

2. The protected-disclosure jurisdiction required the employee to establish both that he had made a protected disclosure and that it was the reason, or principal reason, for the warning and dismissal. The employer disputed whether the disclosure met the requirements of sections 43B, 43C and 43G of the Employment Rights Act 1996, as well as whether the disclosure caused the treatment.

3. An Employment Tribunal has a very wide discretion over evidence and procedure under regulation 11 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. Nevertheless, a party is entitled to adduce evidence, call witnesses and conduct cross-examination on relevant matters. An appellate court will rarely interfere with the exercise of that discretion. It may do so where the discretion has been exercised contrary to legal principle or in a plainly wrong manner.

4. The tribunal wrongly treated the employer’s reason for dismissal as the only issue to which its additional witnesses could give relevant evidence. Their proposed evidence also bore on whether the employee held the reasonable belief required by section 43B, acted in good faith, made substantially the same internal and external disclosures, and acted reasonably in making the external disclosure. The tribunal was required to hear and consider all relevant evidence and to permit an effective challenge to the employee’s evidence before determining those matters.

5. Because the employee lacked the qualifying service for an ordinary unfair-dismissal claim, alleged substantive or procedural unfairness in the dismissal was of less importance. The critical question was whether the statutory protected-disclosure requirements were satisfied.

6. Lord Justice Mummery suggested that protected-disclosure cases should ordinarily have directions hearings to identify the issues and the evidence intended to be called. This was practical guidance intended to reduce the risk of similar errors.

1. Court of Appeal: Allowed the employer’s appeal unanimously and remitted the case for rehearing by a fresh Employment Tribunal: [2002] EWCA Civ 1085.
2. Employment Appeal Tribunal: At a preliminary hearing, dismissed the employer’s appeal because it had no reasonable prospect of success.
3. Employment Tribunal: Unanimously held that the written warning was a detriment for making a protected disclosure and that the employee had been automatically unfairly dismissed principally for making protected disclosures. It later awarded £10,000 and £13,075.06 respectively.