Theatre Peckham v Browne

An Employment Tribunal may not uphold a detriment complaint on the basis of an act which the claimant did not plead or advance at the hearing. In a protected-disclosure detriment claim, where an employer establishes that it acted to remedy a dysfunctional workplace situation, that explanation excludes the protected disclosure as a reason unless the Tribunal finds that the explanation is false or incomplete. A merely historical connection, or a conclusion effectively based on “but for” causation, is insufficient.

An attempt to secure an agreed termination may amount to a detriment if a reasonable worker would or might regard it as disadvantageous. A series-of-acts finding cannot save earlier complaints where the only act within the primary limitation period is set aside.

The claimant, a workshop support worker, made a grievance in March 2011. It was accepted to be a protected disclosure. She later alleged six detriments arising from that grievance. The Employment Tribunal at London South upheld three allegations: attempts to procure her departure on agreed terms, criticism relayed to her in November 2011, and information relayed to her in February 2012. It held that these formed a series of acts, making the claim timely.

The respondent appealed. It contended that the February allegation had not been advanced as a complaint based on the act found by the Tribunal, that the causation findings applied the wrong legal approach, and that the claims were out of time.

1. Appeal allowed. The Tribunal’s findings in favour of the claimant were set aside.
2. The February 2012 detriment finding was based on the line manager’s voluntary act of passing information to the claimant. That was not the case advanced by the claimant and was not an issue which the respondent had addressed at the hearing. Applying Chapman v Simon, the Tribunal could not uphold the claim on that unpleaded basis. It also made no finding that the line manager had been influenced by the protected disclosure.
3. It was open to the Tribunal to regard efforts to persuade the claimant to agree to leave employment as a detriment. A reasonable worker might regard such treatment as disadvantageous in the circumstances. The Tribunal’s factual error about when the claimant knew that mediation would not occur did not undermine that conclusion.
4. However, the Tribunal erred in its causation analysis. The respondent’s case was that it sought to remedy a dysfunctional situation between two employees which mediation had failed to resolve. Under NHS Manchester v Fecitt, that explanation excludes the protected disclosure as a reason unless it is found false, consciously or unconsciously, or incomplete. The Tribunal made no such finding. Its reasoning instead treated the grievance and the employer’s handling of it as part of the history leading to the acts. That was insufficient and disclosed an impermissible “but for” approach. The same error affected the November and February criticism findings.
5. Although the Tribunal could have found the three alleged detriments to be a series under section 48(3) of the Employment Rights Act 1996, the February act could no longer support that conclusion. The remaining incidents occurred outside the primary three-month period. No viable case of lack of reasonable practicability for an extension was advanced.

• Employment Appeal Tribunal: allowed the respondent’s appeal and set aside the Employment Tribunal’s findings for the claimant.
• Employment Tribunal, London South: found that three of six alleged detriments had been established and held that the claim was in time as a series of acts.