Westminster Drug Project v O'Sullivan

A worker is protected by section 47B of the Employment Rights Act 1996 where making a protected disclosure materially influences the employer’s detrimental treatment. The employer must establish the ground on which it acted.

A distinction may properly be drawn between action taken because a disclosure was made and action taken because of the manner of the disclosure or associated conduct. However, an employer cannot ordinarily rely on that distinct case for the first time on appeal where it denied before the Employment Tribunal that the decision-maker knew of any protected disclosure. An appellate court will not substitute its own factual assessment unless the Tribunal’s inference is perverse.

The claimant was engaged as a community care assessor by the appellant. The Employment Tribunal found that she was a worker, but not an employee, and therefore dismissed her unfair-dismissal claim.

It upheld her complaint that dismissal was a detriment for making protected disclosures. In particular, she had informed the local Drug and Alcohol Action Team of serious concerns about a vulnerable former client. The Tribunal rejected the evidence that the manager who decided to dismiss her did not know of the disclosures. It inferred that the disclosure had materially influenced the decision.

The employer appealed, contending that the Tribunal had failed to distinguish the fact of a disclosure from its allegedly unacceptable manner and associated conduct. It also alleged perversity and an error concerning the burden of proof under section 48(2) of the Employment Rights Act 1996.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant’s protected disclosure to the Drug and Alcohol Action Team materially influenced her dismissal. That finding established a breach of section 47B of the Employment Rights Act 1996.

2. The Tribunal had permissibly rejected the decision-maker’s evidence that she knew nothing of the protected disclosures. It was entitled to infer that she and the claimant’s line manager had discussed the concerns arising from the disclosure, and that those concerns explained the decision-maker’s change of position between 1 and 7 December 2011.

3. There is a valid legal distinction between detriment imposed because a protected disclosure was made and detriment imposed because of the manner in which it was made, or conduct associated with it. On the way this case had been conducted below, however, the employer had relied on the materially different case that the decision-maker had no knowledge of any disclosure. It was too late to advance the distinction on appeal.

4. The appellate tribunal might itself have reached a different factual view, but the Employment Tribunal’s inference was not perverse. Any unease about its formulation of the burden under section 48(2) was immaterial because its express factual findings independently established the operative ground for dismissal.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s finding of unlawful detriment for protected disclosures was upheld.
• Employment Tribunal, Watford: In a decision dated 20 December 2012, the Tribunal held that the claimant was a worker but not an employee. It dismissed her unfair-dismissal claim and upheld her complaint under section 47B of the Employment Rights Act 1996.