Kaltz Ltd v Hamer

A tribunal may dismiss an ordinary unfair dismissal claim while upholding a claim of automatically unfair dismissal for whistleblowing. The two inquiries are distinct and free-standing. A finding that the employer acted reasonably under Employment Rights Act 1996, section 98 does not prevent a finding that the principal reason for dismissal was a protected disclosure under section 103A. The reason for dismissal is a question of fact for the tribunal. It was reasonably arguable, however, that contribution to an automatically unfair dismissal could be relevant to remedy, and that a tribunal may have erred if it treated contribution as legally impossible in every such case.

The respondent appealed from an Employment Tribunal judgment which upheld the claimant’s claim of automatically unfair dismissal for making a protected disclosure, while rejecting her ordinary unfair dismissal, breach of contract and sex discrimination claims. The tribunal found that disclosure of payroll information concerning a colleague was the principal reason for dismissal, although the employer had established a potentially fair reason and had acted reasonably for the purposes of ordinary unfair dismissal.

The liability appeal challenged the separation of the two unfair dismissal claims. At the preliminary hearing on remedy, the respondent also argued that the tribunal had adopted an erroneous principle concerning contributory fault and raised a possible Polkey issue.

1. Liability appeal. The tribunal was entitled to find that the protected disclosure was the principal reason for dismissal. The reason for dismissal is a question of fact for the tribunal, which must assess the evidence and, where necessary, determine the mental process of the relevant decision-makers.
2. The tribunal was entitled to reject ordinary unfair dismissal while upholding whistleblowing dismissal. The statutory inquiries are distinct. A finding that the employer acted reasonably under section 98(4) does not determine whether the dismissal was automatically unfair under section 103A.
3. The tribunal’s findings identified the disclosure concerning Mr White’s pay as the principal reason for dismissal. Those findings were supported by the evidence and disclosed no error of principle or perversity.
4. Section 43J was potentially relevant because a contractual or workplace rule prohibiting unauthorised disclosure might not validly prevent a protected disclosure. The point had not been considered by the tribunal and was not live for determination at this stage.
5. Remedy. It was reasonably arguable that the tribunal’s approach to contribution was influenced by a principle that contribution could never be found where dismissal followed a protected disclosure. That issue required full argument and was allowed to proceed to a full hearing.
6. The respondent’s proposed Polkey argument, including reliance on Gover v Property Care, would require consideration of whether dismissal would have occurred, or had a good chance of occurring, for the other alleged misconduct and unprotected disclosures. The EAT considered it preferable for that issue to proceed to the full hearing.

• Employment Tribunal, Manchester: upheld the claimant’s section 103A whistleblowing dismissal claim, but rejected the ordinary unfair dismissal and other claims.
• Employment Appeal Tribunal: rejected the liability challenge and directed that the contributory fault and Polkey remedy issues proceed to a full hearing.