Romanowska v Aspirations Care Ltd

Where the real reason for dismissal is disputed, a claim should only exceptionally be struck out without evidence. The tribunal must not determine an employer’s state of mind from disputed documents where the employer’s decision-makers alone can explain the reason for dismissal.

A protected disclosure may be relevant both to whether alleged conduct was genuinely treated as misconduct and to the choice of dismissal rather than a lesser sanction. The question whether a disclosure which changes the sanction to dismissal is the principal reason for dismissal under section 103A of the Employment Rights Act 1996 was left open for determination on proper facts and submissions.

The claimant, a care worker, was dismissed for alleged gross misconduct after moving a severely autistic resident. Before dismissal, she raised concerns about agency staff which the Employment Judge accepted might amount to protected disclosures. She alleged that the true reason for dismissal was those disclosures, rather than the alleged misconduct.

At a pre-hearing review on 9 May 2013, the Employment Judge struck out the protected-disclosure and race claims as having no reasonable prospect of success, and made a deposit order concerning the continuing unfair-dismissal claim. The claimant appealed the strike-out of the protected-disclosure claim. The central issue was whether the reason for dismissal could properly be determined without hearing evidence.

1. Appeal allowed. The Employment Judge erred in striking out the protected-disclosure dismissal claim. There was a real and central dispute about the employer’s reason for dismissal.

2. Where the reason for dismissal is disputed, it will be very rare for the dispute to be resolved without evidence from the persons who made the decision. The employer’s managers alone know their reasons. A tribunal cannot assume that the stated reason was the actual or principal reason merely from the available documents.

3. The claimant’s case was not confined to denying that she physically moved the resident. She contended that the conduct had to be assessed in its context and that comparable conduct had not been treated as misconduct. That could bear both on whether the employer genuinely regarded the conduct as misconduct and on whether the protected disclosures were an impermissible reason for its action.

4. The claim raised, but the Appeal Tribunal did not decide, a difficult issue under section 103A of the Employment Rights Act 1996: whether a protected disclosure which makes the difference between a final warning and dismissal can be the principal reason for dismissal. The related scope of section 47B and Part X was also left open.

5. The matter was remitted to a freshly constituted Employment Tribunal before a different Employment Judge. It should first clarify the pleaded statutory basis of the protected-disclosure claim and determine any consequential applications afresh.

• Employment Appeal Tribunal: Allowed the appeal and remitted the matter to a fresh Employment Tribunal.
• Employment Tribunal: At a pre-hearing review on 9 May 2013, struck out the protected-disclosure and race claims and made a deposit order in relation to the continuing unfair-dismissal claim.