Vivian v Bournemouth Borough Council

For a detriment claim under Employment Rights Act 1996 section 47B, the act must be done because the worker made a protected disclosure. The connection between the act and the disclosure concerns the decision-maker’s conscious or unconscious reason, not causation. The connection between the act and the detriment is instead causative.

The limitation period runs from the act, or the last act in a series, rather than from a later detriment caused by that act. Events linked to, but not themselves done on the ground of, the disclosure do not extend the limitation period. A dismissal reason is determined by the employer’s conscious or unconscious reason for dismissing, not by tracing a causal chain back to the disclosure.

The appellant, an employee of the respondent local authority, complained of bullying by a manager. The Employment Tribunal accepted that her formal complaint was a protected disclosure but dismissed her section 47B detriment claim as out of time and, alternatively, on the merits. It also dismissed her automatic unfair dismissal claim under section 103A and her ordinary unfair dismissal claim under section 98.

The appellant argued that the detriments continued through redeployment, reduced sick pay and dismissal, and that the events formed a causal chain originating in her disclosure. She also challenged the Tribunal’s assessment of the reason and fairness of her dismissal.

1. Appeal dismissed. The Employment Tribunal did not err in dismissing the claims under sections 47B, 103A and 98 of the Employment Rights Act 1996.
2. For section 47B, four elements must be established: a protected disclosure; a detriment; an act or deliberate failure to act by which the claimant was subjected to that detriment; and an act done on the ground that the claimant made the protected disclosure. The limitation period runs from the date of the relevant act, or the last act in a series, not from the later detriment. The act may extend over a period, but later events which are merely consequences of the original act are detriments rather than further acts. (paras [77]–[95])
3. The phrase on the ground that concerns the conscious or unconscious reason for the act. It is a question of fact, rather than causation. A reason may be inherent in the act itself, in which case no further inquiry into the decision-maker’s mental processes is required. The act must nevertheless have caused the detriment. (paras [80]–[86])
4. The bullying and redeployment procedures did not inherently require detrimental treatment because an employee had made a protected disclosure. Redeployment depended on an assessment that separation was appropriate and could benefit the complainant. The Tribunal made an unchallenged finding that the relevant decision-makers were not motivated by the protected disclosure. The section 47B claim therefore failed on the merits as well as being out of time. (paras [96]–[100])
5. The reason for dismissal under section 103A required identification of the employer’s conscious or unconscious reason for dismissing. The Tribunal was entitled to find that the dismissal resulted from the breakdown in working relationships and the appellant’s refusal to engage with redeployment, rather than from the protected disclosure. Causation through a chain of events did not establish the statutory reason. (paras [101]–[103])
6. An employee who remains in employment after an alleged fundamental breach by the employer remains bound by contractual obligations, including cooperation with redeployment, unless and until the employee resigns and claims constructive dismissal. The Tribunal was entitled to find the dismissal fair under section 98 because the appellant’s conditions for returning and refusal to consider redeployment placed the dismissal within the range of reasonable responses. (paras [105]–[109])

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s judgment entered on 9 December 2009. All grounds of appeal were dismissed.