Hinton v Argos Ltd

An Employment Appeal Tribunal may allow arguable protected-disclosure detriment grounds to proceed where the employment tribunal disposed of them solely on a construction point and made no alternative findings. A dismissal claim may nevertheless fail where clear findings establish redundancy as the reason for dismissal and a fair procedure. An appeal based on perversity requires an exceptional case showing that the tribunal’s findings were plainly unsafe or irrational.

The claimant appealed against an Employment Tribunal decision rejecting claims for detriments and dismissal allegedly caused by protected disclosures, automatic unfair dismissal under section 103A of the Employment Rights Act 1996, and ordinary unfair dismissal arising from redundancy.

The tribunal held that the alleged disclosures did not satisfy sections 43A and 43B, applying Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 39. It also held that the dismissal was genuinely by reason of redundancy and procedurally fair. On a rule 3(10) hearing, the central issues were whether the construction point was reasonably arguable and whether the tribunal’s dismissal findings could stand.

1. Protected-disclosure detriments. The construction of section 43B of the Employment Rights Act 1996 was reasonably arguable. The tribunal had rejected the detriment claims on that construction and had made no alternative findings addressing the alleged detriments. The detriment grounds therefore proceeded to a full hearing.
2. Dismissal claims. The appeal concerning automatic unfair dismissal under section 103A and ordinary unfair dismissal was not allowed to proceed. The tribunal had clearly found that the dismissal resulted from a genuine redundancy situation, rather than whistleblowing or grievances. Its findings on consultation, selection criteria and alternative employment were adequately reasoned and supported by the evidence.
3. The findings on ordinary unfair dismissal also made the allegation that whistleblowing caused the dismissal untenable. Success on the section 43B construction issue, followed by proof of detriments, would not alter that conclusion.
4. The challenge to case management and cross-examination did not disclose an error of law or procedural irregularity. Applying the approach in Yeboah v Crofton [2002] IRLR 634, this was not the exceptional case required for a perversity appeal.
5. For expedience, detriment allegations numbered 1–17 were permitted to proceed, subject to the parties’ analysis of their scope and any limitation issues, including whether alleged acts formed a series or constituted continuing treatment. The remaining dismissal grounds were dismissed.

• Employment Tribunal: The tribunal at Ashford rejected the protected-disclosure detriment and dismissal claims and held that the redundancy dismissal was fair. Reasons were registered on 15 March 2011.
• Employment Appeal Tribunal: On a rule 3(10) hearing, the EAT allowed the detriment grounds to proceed to a full hearing but dismissed the grounds concerning dismissal.