Barclays Bank Plc v Mitchell

For a detriment claim under section 47B of the Employment Rights Act 1996, it is insufficient that the protected disclosure and the employer’s treatment concern related subject matter. The tribunal must answer the reason why question by finding that the protected disclosure materially caused or influenced the employer’s action.

An Employment Tribunal must give sufficient reasons to show how its findings and the applicable law determine that causation issue. Appellate review requires the reasons to be read fairly and as a whole, without undue technicality; but an unexplained causal conclusion cannot stand.

The claimant, a senior bank employee, made disclosures alleging that a colleague had spiked her drink and pressured her to remain silent. Following a later dispute about attending a meeting with that colleague, the Employment Tribunal held that the employer’s suggestion that she move region or find another role was detrimental treatment for making protected disclosures, contrary to section 47B of the Employment Rights Act 1996.

The employer appealed. It contended that the Tribunal had applied the wrong causation test and, alternatively, had failed adequately to explain its conclusion. The central issue was whether the Tribunal had sufficiently explained why the earlier protected disclosures, rather than merely the claimant’s later unwillingness to meet the colleague, materially influenced the treatment.

1. Appeal allowed. The Employment Tribunal’s conclusion on causation could not stand because its reasons did not adequately explain the necessary causal link between the protected disclosures and the detrimental treatment.

2. In a section 47B claim under the Employment Rights Act 1996, the tribunal must identify the employer’s reason for the treatment. It must determine whether the protected disclosure materially caused or influenced the employer to act as it did. A connection between the subject matter of a disclosure and a management problem, or a finding that they are merely related, does not answer that question. This follows the guidance in Fecitt v NHS Manchester [2012] ICR 372 and Harrow London Borough v Knight [2003] IRLR 140.

3. The Tribunal had correctly identified that the claimant’s later unwillingness to be in the same hotel as the colleague triggered the meeting. It also stated that the matter related directly back to the earlier disclosures. However, it did not explain why it concluded that the disclosures themselves, rather than the later state of affairs, influenced the employer’s suggested transfer. That omission made the reasoning inadequate.

4. Reasons must be read as a whole and without a pernickety appellate critique. Nevertheless, rule 30(6) of the Employment Tribunal Rules 2004 required the Tribunal to show how the facts and law resolved the issues. The unexplained conclusion was not Meek-compliant.

5. The causation issue was remitted to the same Employment Tribunal for fresh determination on its existing findings of fact. No further evidence was required; the remitted hearing was to proceed on oral and written submissions.

• Employment Appeal Tribunal: allowed Barclays Bank’s appeal and remitted the causation issue to the same Employment Tribunal: [2013] UKEAT 0279_13_1102.
• Employment Tribunal, Newcastle: upheld the claimant’s protected-disclosure detriment complaint under section 47B of the Employment Rights Act 1996, in reasons promulgated on 20 December 2012.