Dunster v First Transpennine Express Ltd

An employee’s protected disclosure may form part of the factual chain leading to a detriment or dismissal without being the reason for it. The statutory question is whether the act was done, or the dismissal was principally caused, on the ground of the disclosure. An employer may take protective action in response to a genuine safety concern where the action is motivated by safety or liability considerations rather than retaliation.

For ordinary unfair dismissal, the tribunal must assess the employer’s reason, investigation, procedure and sanction without substituting its own view. A disciplinary meeting may proceed in the employee’s absence in exceptional circumstances, including where a proper opportunity to attend was given, the employee failed to take reasonable steps to attend, or appropriate representation is present. Section 98A(2) is relevant only if there has first been non-compliance with the statutory procedure.

The claimant, a train conductor, brought claims for detriment and automatic unfair dismissal under the whistleblowing provisions, ordinary unfair dismissal, breach of contract and unlawful deduction of wages. She relied on protected disclosures concerning the safety of a stretch of railway track.

The Employment Tribunal found that some treatment amounted to detriments, but that none was caused by the disclosures. It found that the dismissal resulted from the claimant’s refusal to sign route cards and failure to resume her contractual duties. The dismissal was held fair, including procedurally, and the breach of contract claim failed. The claimant appealed findings concerning five detriments, both unfair dismissal claims, statutory dismissal procedures and wrongful dismissal.

1. Appeal dismissed. The Employment Tribunal’s dismissal of the claims was upheld, save for the conceded unlawful deduction of wages award, which was not in issue on the appeal.
2. The disclosures satisfied the statutory requirements for qualifying and protected disclosures. The live issues were whether the respondent’s acts constituted detriments and whether they were caused by the disclosures. A causal link in the factual sequence was insufficient. The Tribunal had found that the suspension and loss of earnings resulted from genuine safety and liability concerns, while the poor administration of the suspension and disciplinary meetings was not because of whistleblowing.
3. The Tribunal correctly distinguished between a detriment and causation. Some matters, including menial work and lost overtime or commission, were detriments, but the necessary causal connection was absent. The Tribunal’s holistic conclusion that there was no concealed retaliatory motive was open to it and adequately reasoned.
4. The dismissal was for misconduct: refusal to sign route cards prevented performance of the central contractual duties. The Tribunal was entitled to find an honest belief, a reasonable investigation, reasonable grounds and a sanction within the range of reasonable responses. The appellate tribunal was not entitled to substitute its own view or adopt a pernickety approach to the Tribunal’s reasons.
5. The statutory dismissal procedure had been completed. The claimant had been given a proper opportunity to attend the December meeting but left without authority. In January, despite illness, the meeting could proceed in exceptional circumstances because no adjournment was sought, union representatives attended, and the claimant’s interests were considered. A meeting under the statutory regime could occur without the employee’s attendance in appropriate circumstances. Since there was no breach of section 98A(1), section 98A(2) did not arise; alternatively, the Tribunal’s finding that the same decision would have been reached was open to it.
6. The refusal to sign route cards amounted to repudiatory breach of contract. No error of law, perversity or inadequate reasoning was established.

1. Employment Tribunal: Reasons registered on 13 January 2010. The Tribunal dismissed the claimant’s claims for detriment, unfair dismissal and breach of contract, while upholding a conceded unlawful deduction of wages claim for £752.91.
2. Employment Appeal Tribunal: The appeal was dismissed. The Tribunal’s findings on causation, ordinary and automatic unfair dismissal, statutory procedure and breach of contract were upheld.