Ahmed v City Of Bradford Metropolitan District Council & Ors

For detriment under the whistleblowing provisions, a protected disclosure need only have a material, and more than trivial, influence on the treatment. An employer cannot avoid liability because an apparently innocent decision-maker relied on information supplied by a manager whose adverse reference was motivated by the disclosure. The later decision remains infected where the tainted reference materially influenced it.

The question whether a dismissal was automatically unfair because of a protected disclosure remains distinct. Where the findings do not permit a safe conclusion that the disclosure was the principal reason, that issue should be remitted.

The claimant was at risk of redundancy but was offered an alternative internal post, subject to a CRB check and reference. The Employment Tribunal found that Ms Baker, who had investigated his grievance and knew of his protected disclosures concerning an ERDF-funded scheme, deliberately provided a negative reference and failed to correct misleading impressions arising from it.

Mr Rashid withdrew the offer after relying in part on that reference, although he did not act because of the protected disclosure. The Employment Tribunal found several whistleblowing detriments but rejected the claim that the non-appointment was one of them. It also rejected the claim for automatic unfair dismissal under section 103A of the Employment Rights Act 1996.

The appeal concerned whether the reference could be separated from the subsequent appointment decision, and whether the automatic-unfair-dismissal issue should be determined or remitted.

1. Appeal allowed. The Employment Tribunal applied an unduly strict causation test when it separated Ms Baker’s motive for writing the reference from Mr Rashid’s motive for acting on it. The applicable test, derived from NHS Manchester v Fecitt and Ors [2011] EWCA Civ 1190, was whether the protected disclosure had a material, rather than trivial, influence on the detriment.

2. The Tribunal’s findings strongly indicated that the reference had such an influence. Ms Baker deliberately became the referee, despite lacking knowledge of the claimant’s work, and gave a reference intended to obstruct his redeployment. Her conduct was capable of manipulating the redeployment process in the manner discussed in The Co-Operative Group v Baddeley [2014] EWCA Civ 658.

3. Mr Rashid’s lack of awareness that the reference was misleading did not sanitise its effect. Bradford remained responsible for a decision materially influenced by a reference infected by a protected-disclosure motivation. The EAT substituted a finding that the claimant suffered a whistleblowing detriment because he was not appointed to the SCDO post, or because the offer of that employment was withdrawn.

4. The EAT could not safely decide whether the protected disclosure was the principal reason for dismissal under section 103A. The Tribunal had rejected redundancy as the effective cause and found that managers acted to prevent redeployment, but its findings left unspecified other reasons and did not permit a final determination of principal reason.

5. That issue was remitted to a differently constituted Employment Tribunal. A fresh tribunal was required because the original Tribunal could not fairly be expected to approach the outstanding issue with an entirely fresh mind.

• Employment Appeal Tribunal: Appeal allowed. The EAT substituted a finding of detriment for protected disclosure and remitted the section 103A issue to a freshly constituted Employment Tribunal: [2014] UKEAT 0145_14_2710.
• Employment Tribunal (Leeds): Decision dated 23 September 2013. It found unfair dismissal and several whistleblowing detriments, but rejected the claim concerning the SCDO non-appointment and the claim for automatic unfair dismissal.