Akintola v Capita Symonds Ltd

An employment tribunal may reject a health-and-safety unfair-dismissal claim where its primary factual findings support the conclusion that there was no serious and imminent danger. A tribunal considering a protected-disclosure detriment claim may determine causation and detriment without first deciding conclusively whether a protected disclosure was made, where the alleged detriments are found to be unconnected with the relevant events. Remission is inappropriate where the claim could not possibly succeed on the tribunal’s findings. A speculative allegation of unconscious bias, unsupported by evidence and not objectively apparent, cannot establish apparent bias.

Mr Akintola appealed from the dismissal of his claims by an Employment Tribunal and the subsequent dismissal of his appeal by the Employment Appeal Tribunal. He had resigned after refusing to enter a tunnel at Marble Arch and after being asked to prepare a method statement for demolition work at Neasden. He alleged constructive dismissal, health-and-safety detriment, and dismissal for making a protected disclosure. The Employment Tribunal rejected the claims, finding no serious and imminent danger, no qualifying disclosure in relation to the Neasden work, and no breach of trust and confidence. The central issues were whether a protected-disclosure detriment claim concerning Marble Arch had been before the tribunal and, if so, whether the matter should be remitted.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude, on its findings of primary fact, that the Marble Arch incident did not involve circumstances of serious and imminent danger within section 100(1)(d) of the Employment Rights Act 1996. Its conclusion was not perverse.
2. The Court approached the appeal on the cautious assumption that a protected-disclosure claim arising from Marble Arch had been before the Employment Tribunal. It was possible, though not finally determined, that the claimant’s refusal to enter the tunnel and his explanation for it might have amounted to a disclosure made in the reasonable belief that a legal obligation was being breached. The actual legality of the arrangements was not itself decisive of that question.
3. That issue did not require remission. The tribunal had found that the claimant was not criticised for refusing to enter the tunnel, that the proposed demotion was unrelated to Marble Arch and was not pursued, and that the Neasden instruction was reasonable and unrelated to Marble Arch. Those findings necessarily defeated any claim that the claimant suffered a detriment because of a protected disclosure. The tribunal could determine that causal issue without first making a formal finding that a protected disclosure had been made.
4. Remission would therefore be pointless because the claim could not possibly succeed on the established facts.
5. The bias complaint also failed. There was no evidence that the Employment Appeal Tribunal judge had seen counsel’s unfavourable advice. His comments about the possible future conduct of the appeal were innocuous and would not cause a fair-minded and informed observer to suspect unconscious bias.

• Employment Tribunal: dismissed the claims, including constructive dismissal and the protected-disclosure claim concerning the Neasden work.
• Employment Appeal Tribunal: dismissed the appeal on 24 August 2009. It held that no freestanding Marble Arch detriment claim had been properly brought, and that such a claim would in any event fail for want of detriment and causation.
• Court of Appeal (Civil Division): dismissed the appeal and declined to remit the protected-disclosure issue.