The Co-Operative Group Ltd v Baddeley

An appellate tribunal may seek specified clarification from an employment tribunal when considering whether its reasons adequately address material issues. Having obtained and considered that clarification, the Employment Appeal Tribunal upheld findings that disclosures were protected disclosures and that the dismissal was because of them.

The dismissal was therefore automatically unfair and also unfair under the ordinary law on substantive and procedural grounds.

The employer appealed against an employment tribunal decision in favour of its former employee. In an earlier judgment dated 11 July 2013, the Employment Appeal Tribunal had requested specified further information from the tribunal about its reasons.

The tribunal explained why the employee's communications conveyed facts, why his belief in a regulatory breach was reasonable, why he had no ulterior motive, and why the disclosures fell within section 43B(1) of the Act. It also explained the detriments found and its conclusion on limitation.

The central issue was whether the employer had shown an error in the tribunal's finding that the employee was dismissed because of protected disclosures.

1. Appeal dismissed. The Employment Appeal Tribunal considered the further information supplied by the employment tribunal and the employer's representations on it.
2. The Employment Appeal Tribunal had already decided that it was appropriate to request clarification of identified matters. The employer's concern that the tribunal might be supplying ex post facto reasoning did not justify departing from that course.
3. The clarification addressed the basis on which the tribunal treated the employee's communications as protected disclosures. It explained why they conveyed facts rather than allegations, why there was no ulterior motive, why the employee's belief in a regulatory breach was reasonable, and the category within section 43B(1) of the Act into which the information fell.
4. The clarification also identified detriments, including suspension and restrictions on contact with work colleagues, and explained why they formed a series of similar acts or failures for limitation purposes. The employer raised no additional grounds of appeal arising from those findings.
5. For the reasons in the earlier judgment and this further judgment, the challenge to the finding that dismissal was because of protected disclosures failed. The resulting conclusion that the dismissal was automatically unfair, and unfair on ordinary substantive and procedural grounds, stood.

• Employment Appeal Tribunal: Appeal dismissed. The tribunal's findings that the dismissal was because of protected disclosures, and was automatically and ordinarily unfair, were upheld.
• Employment tribunal: Found that the employee had made protected disclosures, suffered detriments, and had been dismissed because of those disclosures. Its decision citation is not stated in the judgment.