Ibekwe v Sussex Partnership NHS Foundation Trust

Under section 47B of the Employment Rights Act 1996, a claimant must establish that the act or deliberate failure complained of was on the ground of a protected disclosure. Section 48(2) requires the employer to show the ground for its act or omission, but it does not make the claim succeed by default where the employer cannot positively explain it.

The ultimate issue remains one of fact, assessed from the evidence as a whole. An appellate court will not interfere with a clear factual finding that no causal connection existed between the protected disclosure and the alleged detriment.

The Claimant, a nursing assistant employed by the Respondent, brought claims including disability discrimination, victimisation, harassment and detrimental treatment for protected disclosures. Her alleged protected disclosures included complaints made in grievances and a letter of 5 April 2012.

An Employment Tribunal, by a majority, dismissed the claims in a reserved judgment dated 3 June 2013. The appeal was initially rejected on paper but was permitted to proceed on four grounds following a Rule 3(10) hearing.

The principal issue was whether the Tribunal had wrongly applied the burden of proof under section 48(2) of the Employment Rights Act 1996 when rejecting the complaint that a failure to deal with the April 2012 complaint was detrimental treatment for making a protected disclosure.

1. Appeal dismissed. No error of law was established in the Employment Tribunal's dismissal of the claims.

2. The judge rejected the Respondent's additional submission that the 5 April 2012 letter could not amount to a protected disclosure because it contained allegations rather than information. The letter complained that the Respondent had failed to recognise the Claimant as disabled and was therefore failing to comply with statutory duties. The material issue was instead whether the Respondent's failure to deal with that complaint before proceedings began was caused by the disclosure.

3. Section 48(2) of the Employment Rights Act 1996 places on the employer the burden of showing the ground for an act or deliberate omission. It does not, however, mean that a section 47B claim succeeds automatically if the employer cannot positively establish why no action was taken. The Tribunal was entitled to decide, on the whole evidence, whether the managerial failure was on the ground of the protected disclosure.

4. The Tribunal had clearly found that there was no evidence of the required causal link. That was a factual conclusion, with which the Employment Appeal Tribunal would not interfere.

5. The remaining grounds also challenged factual findings. The alleged fabricated minutes claim failed because no meeting was suggested to have occurred and the Claimant was never placed at stage 1 of the sickness policy. The harassment and victimisation claims failed on the majority's findings; the latter also necessarily failed because she had not been placed at stage 1.

• Employment Appeal Tribunal: The appeal was dismissed: [2014] UKEAT 0072_14_0211.
• Employment Tribunal (London Central): By a majority, dismissed the Claimant's disability discrimination, victimisation, harassment and protected-disclosure detriment claims in a reserved judgment dated 3 June 2013.