Vivian v Bournemouth Borough Council

For a detriment claim under section 47B of the Employment Rights Act 1996, the claimant must establish both the act and the resulting detriment. The act must have been done because the worker made a protected disclosure, which is a question concerning the decision-maker’s conscious or unconscious reason. The connection between the act and the detriment is instead one of causation.

Time runs from the date of the relevant act, or the last act in a series, rather than from the later detriment caused by it. A procedure is not inherently unlawful merely because it may result in redeployment or dismissal. For automatic unfair dismissal, the relevant question is the employer’s reason for dismissal, not the reason why the employee failed to accept redeployment. An employee who remains employed after an employer’s breach of contract remains bound by contractual obligations.

The appellant, employed by the respondent local authority, complained of bullying by a manager and asserted that her formal complaint was a protected disclosure. Following investigation, appeal and review, she was placed in a redeployment procedure. She did not accept redeployment on the conditions offered and was dismissed with notice.

The Employment Tribunal dismissed her claims for detriment under section 47B, automatic unfair dismissal under section 103A and ordinary unfair dismissal under section 98. It held that the detriment claim was out of time, that the relevant acts were not done because she had made the disclosure, and that dismissal was for some other substantial reason. The appeal concerned limitation, causation and the fairness of the dismissal.

1. Appeal dismissed. The Employment Tribunal had not erred in dismissing all claims.
2. Under section 47B of the Employment Rights Act 1996, four elements are required: 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 disclosure. The phrase on the ground that concerns the reason for the act and involves a conscious or unconscious state of mind. It is not a question of causation. The act may nevertheless be inherently based on the protected disclosure, so that no further inquiry into the decision-maker’s mental processes is required.
3. The link between the act and the detriment is causative. The limitation period under section 48 runs from the date of the act, or the last act in a series or period, not from the later detriment. Events after the claimant was placed in the redeployment procedure were consequences linked to the earlier act, but were not themselves alleged to have been done because of the protected disclosure. They therefore did not constitute a continuing series of acts or an act extending over a period. The claim was out of time.
4. The bullying and redeployment procedures did not inherently subject a complainant to a detriment because a protected disclosure had been made. Redeployment depended on an assessment that separation was appropriate and might benefit the complainant. The Tribunal’s unchallenged finding that the relevant decision-makers were not motivated by the protected disclosure therefore defeated the claim on the merits in any event.
5. For section 103A, the reason for dismissal required analysis of the employer’s conscious or unconscious reason. The Tribunal was entitled to find that dismissal resulted from the breakdown in working relationships and the refusal to consider redeployment, rather than from the protected disclosure.
6. An alleged fundamental breach by the employer did not release an employee who remained in employment from contractual obligations. The employee could resign and claim constructive dismissal, but while remaining employed remained bound to perform the contract, including co-operating with redeployment. The Tribunal was entitled to find the dismissal fair under section 98.

• Employment Appeal Tribunal: The appeal from the Employment Tribunal’s judgment entered on 9 December 2009 was dismissed on all grounds.
• Employment Tribunal: Claims under sections 47B and 103A of the Employment Rights Act 1996, and the ordinary unfair dismissal claim under section 98, were dismissed.