Ibekwe v Sussex Partnership NHS Foundation Trust

On a complaint of detriment for making a protected disclosure, the employer bears the burden under section 48(2) of the Employment Rights Act 1996 to show the ground for its act or deliberate failure. That allocation does not make the complaint succeed by default where the employer cannot positively explain an omission.

The tribunal must decide, on all the evidence, whether the protected disclosure was the ground for the treatment. Where it finds no causal link, that factual conclusion will not be disturbed on appeal absent an error of law. A complaint that an employer failed to recognise disability and comply with statutory duties may constitute a protected disclosure.

The claimant, a nursing assistant employed by the respondent NHS trust, brought claims including disability discrimination, victimisation, harassment and detriment for protected disclosures under section 47B of the Employment Rights Act 1996. She relied on grievances, including a letter of 5 April 2012 complaining that the respondent had not recognised her disabilities.

The Employment Tribunal at London (Central), by a majority judgment with reasons dated 3 June 2013, dismissed all claims. The appeal was permitted to proceed on four grounds. Its principal issue was whether the Tribunal had properly applied the burden of proof to the alleged detriment of failing to deal with the April 2012 complaint.

1. Appeal dismissed. No error of law was established in the Employment Tribunal's dismissal of the protected-disclosure detriment claim or the remaining claims.

2. The respondent's contention that the letter of 5 April 2012 could not be a protected disclosure was rejected. Although it might not itself have been a formal grievance, it complained that the respondent did not recognise the claimant as disabled and was consequently failing to comply with statutory duties. That was capable of being a protected disclosure under section 47B of the Employment Rights Act 1996.

3. The real issue was causation: whether the failure to address that complaint before proceedings began was on the ground of the protected disclosure. The Tribunal had directed itself on section 48(2) and the relevant appellate guidance. The employer's inability positively to explain its inaction did not make the complaint succeed by default. The Tribunal was entitled to decide, after considering all the evidence, that there was no evidence of the required causal link.

4. That conclusion was a factual finding. Applying Kuzel, the Appeal Tribunal would not interfere with it. The allegation concerning purported sickness-monitoring minutes, and the victimisation claim concerning placement on stage 1, also failed on the Tribunal's findings that no such meeting occurred and that the claimant was never placed on stage 1. The harassment ground disclosed no error of law in the majority's factual findings.

• Employment Appeal Tribunal: appeal dismissed: [2014] UKEAT 0072_14_2011.
• Employment Tribunal (London (Central)): by a majority, dismissed the disability discrimination, victimisation, harassment and protected-disclosure detriment claims in reasons dated 3 June 2013.