Johnson v Mitie Asset Management Ltd

An Employment Tribunal must make sufficient findings about what an employee said before deciding whether alleged verbal statements were qualifying disclosures under Employment Rights Act 1996. An inadequate conclusion on that issue will not alter the result where clear findings establish that dismissal resulted from a genuine redundancy restructuring, rather than any protected disclosure.

In deciding disability, a tribunal must address the deduced effects of medication and engage with relevant medical evidence. A failure to do so may make its conclusion unsafe. A claim under section 15 nevertheless fails where the employee’s failure to engage in a process arose from his own stance, rather than from disability. A proposed adjustment which, in substance, requires an open-ended postponement of redundancy consultation need not be reasonable.

The Claimant appealed against the dismissal by the Reading Employment Tribunal of complaints of unfair dismissal, protected-disclosure detriment and automatic unfair dismissal, and disability discrimination.

He had been dismissed for redundancy during a restructuring while absent with reactive depression. He alleged verbal disclosures concerning accounting practices, challenged the Tribunal’s conclusion that he was not disabled, and contended that his disability affected his participation in consultation. He also relied on discrimination arising from disability and an asserted need to defer the redundancy process until he was fit to participate.

The central issues were whether deficiencies in the Tribunal’s reasoning required the claims to be remitted, despite its findings that the redundancy was genuine and that disability had not caused the relevant treatment.

1. Appeal dismissed. The Employment Tribunal gave inadequate reasons for its conclusion on protected disclosures. It did not clearly find what verbal statements had been made, or explain why any statements found did not amount to disclosures of information within section 43B of the Employment Rights Act 1996.

2. That error was immaterial to the result. Read as a whole, the Tribunal had clearly found that the reason for dismissal was a genuine restructuring redundancy. It found both a diminishing need for the Claimant’s role and a need for a more highly qualified employee. Those findings were inconsistent with protected disclosures having been the reason, or principal reason, for dismissal under section 103A.

3. The Tribunal’s finding that the Claimant was not disabled was unsafe. Although it had referred to Schedule 1, it failed to address the evidence that medication was likely to continue for 18 months, and did not determine the likely effects of the impairment without medication. It also dealt selectively with medical evidence. The disability finding could not stand.

4. That error did not establish discrimination. On the Tribunal’s findings, the Claimant’s failure to engage in consultation arose from his belief that the new role was his job, his view that redundancy was a sham, and the failure of compromise-agreement negotiations. It did not arise in consequence of disability. The Tribunal’s omission expressly to address section 15 was therefore not material. The Burns/Barke procedure would in any event be unsuitable for a complete failure to address a claim.

5. The Tribunal had not set out the structured reasonable-adjustments analysis. However, the only live adjustment was a postponement of the process until the Claimant recovered. It had already delayed meetings and made other adjustments. The requested postponement had no end date and was, in substance, an indefinite delay. The Tribunal was entitled to find that it was not a reasonable adjustment.

6. The unfair-dismissal decision remained sound. The challenge to the finding about qualifications did not fairly reflect the broader finding that the new role was beyond the Claimant’s capabilities.

• Employment Appeal Tribunal: Appeal dismissed: [2014] UKEAT 0046_14_1807.
• Reading Employment Tribunal: On 17 December 2012, dismissed the claims of unfair dismissal, protected-disclosure detriment and automatic unfair dismissal, and disability discrimination.