Freeman v Ultra Green Group Ltd

A qualifying protected disclosure requires the communication of information tending to show a relevant wrongdoing. It is distinct from a bare allegation, but a communication may contain both factual information and an evaluative conclusion.

Retirement provisions in the Employment Rights Act 1996, derived from the Employment Equality (Age) Regulations 2006, apply only where the contract terminates on the intended retirement date. They do not prevent a constructive dismissal claim under section 103A or necessarily limit compensation to that date.

The claimant appealed against an Employment Tribunal decision which upheld constructive unfair dismissal but rejected claims for detriment and dismissal because of protected disclosure. The Tribunal held that statements made about inaccurate financial models were not information for section 43B of the Employment Rights Act 1996. It also treated retirement procedures as conclusive of the dismissal reason and limited compensation to the intended retirement date. A claim for payment while working from home after surgery was not determined.

The central issues were whether the statements amounted to information, whether the retirement provisions applied before the intended retirement date, and whether the payment claim required further factual findings.

1. Protected disclosure. The Tribunal erred in holding that the claimant had made no disclosure of information. His statements conveyed factual matters, including the area used in the financial model, the instruction to use a larger area, his refusal, and the absence of proper costing information and scrutiny. They therefore amounted to information for section 43B(1), rather than a mere allegation. Cavendish Munro Professional Risks Management v Geduld [2010] ICR 125 was applied.
2. Retirement provisions. The statutory provisions treating retirement as the reason for dismissal applied only where the contract terminated on the intended retirement date. The claimant’s employment ended by constructive dismissal before that date. Accordingly, retirement was not to be treated as the reason for dismissal under sections 98ZB(3), 98ZD(3) and 98ZE(5).
3. The retirement provisions did not prevent the Tribunal from considering section 103A. Nor did they require compensation to be limited to the employer’s intended retirement date. The Tribunal was required to award such compensation as was just and equitable. The relationship between sections 98 and 103A was referred to in Kuzel v Roche Products Ltd [2008] ICR 799.
4. The Tribunal had not determined the claimant’s alternative claim for payment for days on which he alleged that he was ready, willing and able to work remotely. That claim depended on factual findings concerning October to December 2009.
5. The appeal was allowed and the matter was remitted to a freshly constituted Tribunal to be heard in accordance with the judgment.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s judgment dated 27 January 2011 and remitted the matter to a freshly constituted Tribunal.