Akintola v Capita Symonds Ltd

The Court of Appeal dismissed Mr Akintola's appeal from the Employment Appeal Tribunal. The central legal issues were whether the Employment Tribunal (ET) had jurisdiction under the Employment Rights Act 1996 to hear unfair dismissal claims relying on section 100(1)(d) (health and safety/automatic unfair dismissal) and/or section 103A/section 43B (protected/qualifying disclosure) and whether any freestanding detriment under sections 44/47B arose from the Marble Arch incident or the Neasden method-statement request.

The court accepted the ET's primary findings of fact (including that there was no serious or imminent danger at Marble Arch, that safety was a company priority, that the Neasden instruction was reasonable, and that any suggested demotion was not pursued) and held those findings were not perverse. Even assuming arguendo that a protected disclosure could have been raised from Marble Arch, the court held the claimant could not possibly show a detriment causally linked to that disclosure; accordingly any remedial remittal would be pointless.

This is an appeal from an Employment Appeal Tribunal order dismissing the appellant's appeals from an Employment Tribunal decision. The appellant had been employed as a senior structural engineer from 13 August 2007 and resigned on 6 February 2008. He alleged constructive dismissal and racial discrimination and later sought to add claims based on protected disclosure/whistleblowing and on statutory health and safety protection.

Procedural history: The Employment Tribunal, sitting in central London, dismissed the appellant's claims on 15 December 2008. The appellant appealed to the Employment Appeal Tribunal which dismissed his appeal by order of 24 August 2009. Permission to appeal to the Court of Appeal was later granted.

Facts and claims: On 18 January 2008 the appellant declined to enter a manhole connected to a tunnel at Marble Arch on safety grounds; colleagues entered and took photographs. On 28 January 2008 management suggested a demotion which was declined and not pursued. On 1–5 February 2008 the appellant was asked to draft a method statement for demolition work at Neasden; he said he lacked training and a site risk assessment and did not complete the draft, resigning on 6 February. The appellant relied on section 100(1)(d) (health and safety automatic unfair dismissal) to establish jurisdiction given his short employment, and later sought to rely on section 103A/section 43B (protected disclosure) as an alternative jurisdictional basis; he also raised freestanding detriment claims under section 44 (and the judgment refers to section 47B compensation for detriment short of dismissal).

Issues framed: (i) Whether the ET could properly find there was no serious or imminent danger within section 100(1)(d); (ii) whether any qualifying disclosure was made under section 43B (and thus section 103A); (iii) whether the appellant suffered any detriment connected to any protected disclosure or to the Marble Arch incident; (iv) procedural and bias complaints about EAT handling.

Court reasoning and conclusions: The Court of Appeal accepted the ET's factual findings and held that the ET was entitled to conclude there was no serious or imminent danger at Marble Arch and that the Neasden request was reasonable. The court acknowledged some lack of clarity in the case management about whether a freestanding protected-disclosure/detriment claim relating to Marble Arch had been pleaded, but proceeded on the assumption the ET ought to have considered it. Even on that assumption, the court held that the ET's findings showed no causal link between any disclosure/refusal and any detriment: the appellant was not criticised for refusing to enter the tunnel, the proposed demotion was not pursued nor linked to Marble Arch, and the Neasden instruction was unrelated and reasonable. The court therefore refused to remit the matter to the ET as it would be futile. The appellant's bias complaint was rejected as without foundation.

Appeal dismissed. The Court of Appeal upheld the ET's factual findings (no serious or imminent danger at Marble Arch; Neasden instruction reasonable; no criticism or detriment for refusal to enter the tunnel) and concluded that, even if a protected disclosure issue arising from Marble Arch had been before the ET, the claimant could not possibly show a detriment causally linked to that disclosure. The complaint of bias was unfounded.

Employment Tribunal decision promulgated 15 December 2008 dismissing claims. Employment Appeal Tribunal dismissed the appellant's appeal by order dated 24 August 2009. Permission to appeal to the Court of Appeal was subsequently granted by Mummery LJ; this Court delivered judgment on 25 March 2010 ([2010] EWCA Civ 405).