Audere Medical Services Ltd v Sanderson

A dismissal may be automatically unfair where the principal reason is a protected disclosure made in obtaining legal advice. The existence of other disciplinary allegations does not prevent that conclusion where the evidence supports the finding that the disclosure was the main reason.

An employer acts outside the range of reasonable responses where it relies on significant adverse material without disclosing it to the employee and giving an opportunity to comment. A finding of automatic unfair dismissal does not preclude a reduction for contributory conduct or under the Polkey principle. The availability and amount of any reduction remain fact-sensitive under Employment Rights Act sections 122 and 123.

The employer appealed against an Employment Tribunal at Cardiff decision dated 22 May 2012. The Tribunal found that the employee had been automatically unfairly dismissed after making a protected disclosure to Public Concern at Work while obtaining legal advice. It also found, alternatively, that the dismissal was procedurally unfair because the employer relied on information obtained from a client without giving the employee an opportunity to address it.

The employer challenged the finding as to the principal reason for dismissal, the procedural-fairness finding, and the Tribunal’s refusal to make deductions for contributory conduct or under Polkey. The central issues were whether the protected disclosure was the main reason for dismissal and whether compensation for an automatically unfair dismissal could be reduced.

1. Appeal allowed in part. The Employment Appeal Tribunal upheld the findings that the dismissal was automatically unfair and, alternatively, ordinarily unfair. It remitted only the question of compensation reductions to the same Employment Tribunal.

2. The Tribunal was entitled to find that the disclosure to Public Concern at Work was made in obtaining legal advice and was therefore qualifying and protected. There was evidence supporting its finding that this disclosure, rather than any disclosure to the NHS, was the principal reason for dismissal. The fact that the employer also relied on other allegations did not prevent the disclosure from being the main reason.

3. The perversity challenge failed. Read fairly and as a whole, the Tribunal’s reasons sufficiently explained its factual conclusion. The challenge did not meet the high threshold for disturbing a fact-sensitive finding on perversity grounds.

4. The alternative finding of ordinary unfair dismissal was also open to the Tribunal. The employer decided the fire-door allegation on material obtained from the client which had not been disclosed to the employee. As that material was significant, procedural fairness required that he know the case against him and have an opportunity to comment. The omission could cause substantial injustice and placed the procedure outside the range of reasonable responses.

5. The Tribunal erred in holding that automatic unfairness made contributory-fault and Polkey reductions unavailable. Nothing in principle makes the distinction between automatic and ordinary unfair dismissal relevant to whether deductions may be made. Under Employment Rights Act sections 122 and 123, the Tribunal had to consider whether the employee’s conduct justified reductions. The issue was remitted to the same Tribunal, which had heard the evidence and could assess it impartially and proportionately.

• Employment Appeal Tribunal: Allowed the employer’s appeal only as to the refusal to consider contributory-fault and Polkey deductions, and remitted that issue to the same Employment Tribunal.
• Employment Tribunal at Cardiff: Decision dated 22 May 2012. Held the employee automatically unfairly dismissed for making a protected disclosure and, alternatively, unfairly dismissed because of a procedural defect. It awarded £20,779.12 without deductions.