Butcher v Salvage Association

A qualifying disclosure under section 43B of the Employment Rights Act 1996 requires information which the worker reasonably believes tends to show, among other matters, failure to comply with a legal obligation. A professional or ethical obligation alone is insufficient. The reason for dismissal must be identified before fairness is assessed, since section 103A makes the reason decisive where the principal reason is a protected disclosure. An Employment Appeal Tribunal may limit the grounds proceeding from a preliminary hearing. Allegations of apparent bias require credible evidence capable of leading a fair-minded and informed observer to conclude that there was a real possibility of bias.

The applicant, a chief financial officer, was dismissed after disagreements with the chief executive about the presentation of financial information. An Employment Tribunal found that the dismissal arose from irreconcilable differences, but was substantively and procedurally unfair. It rejected the applicant’s claim that he had made a qualifying protected disclosure and that the dismissal was contrary to section 103A of the Employment Rights Act 1996.

The Employment Appeal Tribunal permitted an appeal on limited grounds, principally concerning the assessment of the applicant’s contribution to his dismissal. The applicant sought permission from the Court of Appeal to pursue wider grounds, including protected disclosure, procedural jurisdiction and bias.

1. Application refused. The applicant had no real prospect of success on the additional grounds and the case disclosed no compelling reason for a further appeal.
2. The applicant had not identified information which he reasonably believed tended to show failure to comply with a legal obligation. His case concerned professional ethics and standards. The Tribunal was entitled to distinguish those matters from the statutory requirement of a legal obligation under section 43B(2) of the Employment Rights Act 1996. The evidence also supported the conclusion that compliance with the requested presentation of management information would not mislead the employer.
3. The statutory scheme requires the reason for dismissal to be determined as part of the unfair-dismissal inquiry. Under sections 98 and 103A, the Tribunal must identify the employer’s reason and then determine whether the dismissal is fair, subject to the special rule where the principal reason is a protected disclosure.
4. Under Miriki v General Council of the Bar, the Employment Appeal Tribunal was entitled to regulate its procedure and limit an appeal at a preliminary hearing to reasonably arguable points of law. The form of the order was sufficiently clear because the EAT judgment identified the permitted grounds.
5. The allegation of bias was unsupported by credible evidence. Applying Taylor v Lawrence, the question was whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. Case-management interventions, irritation, time-management comments and the applicant’s dissatisfaction did not meet that threshold.
6. The Civil Procedure Rules did not generally apply to the Employment Tribunal or EAT, apart from the overriding objective as imported into tribunal proceedings.

• Employment Tribunal: found the dismissal arose for a substantial reason under section 98(1)(b), but held it substantively and procedurally unfair; rejected the protected-disclosure claim.
• Employment Appeal Tribunal: allowed the appeal to proceed on limited grounds, principally concerning contribution and the Tribunal’s early indication of its view.
• Court of Appeal (Civil Division): refused permission to appeal on the wider grounds. [2002] EWCA Civ 867