Western Union Payment Services UK Ltd v Anastasiou

A qualifying disclosure under Employment Rights Act 1996, section 43B must convey information rather than merely allege wrongdoing or state a position. The distinction is fact-sensitive. Information supplied from a worker’s knowledge and experience, including an opinion about the likelihood of meeting a target, may satisfy the requirement.

The worker need not identify the legal obligation in technical language if, in context, the employer has sufficient notice of the obligation said to be breached. For detriment under section 47B, however, the disclosure must have materially influenced the impugned treatment. A mere factual sequence, or a finding that the employer would not otherwise have learned information, is insufficient. A tribunal must explain the evidential basis for causation and must permit representations before materially recasting or adding issues.

The claimant, a senior sales employee, gave information during an internal investigation concerning public statements about the likelihood of achieving a target for retail locations. The London Central Employment Tribunal held that this was a protected disclosure and upheld four detriment complaints. It dismissed the claimant’s automatic and ordinary unfair-dismissal claims.

The employer appealed against the detriment findings. It contended that the claimant had expressed only a business opinion, that no relevant legal obligation had been identified, that the disclosure had not materially influenced the alleged detriments, and that the Tribunal had unfairly recast one detriment and added another during deliberations.

The central issues were whether the disclosure met the requirements of Part IV(A) of the Employment Rights Act 1996, whether causation for section 47B detriment had been established, and whether the procedure was fair.

1. Appeal allowed in part. The Employment Tribunal was entitled to find that the claimant made a qualifying protected disclosure. His answers in the investigation conveyed information drawn from his knowledge and experience: that the target was unlikely to be achieved and that specified outlets should not count towards it. That was more than a bare allegation or statement of position.

2. The Tribunal was also entitled to conclude that the disclosure concerned a legal obligation. Although the claimant did not identify a statute or formulate the obligation technically, the investigation’s context made clear that it concerned the accuracy of statements made to actual or potential investors. The employer therefore had sufficient notice of the obligation alleged to have been breached.

3. The detriment findings could not stand. Under section 47B, a protected disclosure must have materially influenced the employer’s treatment, in the sense of an influence more than trivial. A decision-maker need not invariably have personal knowledge where an organisational chain of command has transmitted the influence. But the Tribunal had to explain the evidential route by which it found that influence. It made no finding that the relevant actors knew of the disclosure, identified no evidential link between it and their decisions, and gave no adequate explanation for the inference drawn.

4. The finding concerning intervention in the claimant’s United States bankruptcy proceedings also applied an impermissible “but for” approach. The fact that an expenses investigation led the employer to learn of the bankruptcy did not show that the protected disclosure materially influenced the decision to intervene.

5. The Tribunal erred procedurally by failing to invite representations before materially recasting the first detriment and before adding the separate third detriment. A tribunal need not adhere slavishly to an agreed list of issues, but parties must have a fair opportunity to address a material amendment.

The parties were invited to make written representations on disposal and any further applications.

• Employment Appeal Tribunal: appeal allowed in part. The detriment findings were held unsustainable on causation and procedural-fairness grounds.
• London Central Employment Tribunal: held that the claimant made a protected disclosure and upheld four detriment complaints; dismissed the automatic and ordinary unfair-dismissal complaints. No citation was stated.