Panayiotou v Kernaghan

A later qualifying disclosure does not cease to be protected merely because an employee has made earlier protected disclosures. Employment Rights Act 1996 protection nevertheless permits a tribunal, in a clear case, to distinguish the disclosure of information from genuinely separable conduct, consequences or the manner in which the employee pursues matters arising from it.

The tribunal must decide whether the separable factors, rather than the protected disclosure, were the actual reasons for the detriment or dismissal. For detriment, a protected disclosure infringes section 47B if it materially influences the employer's treatment. A tribunal must read the reasons as a whole and examine such a distinction carefully, so that it does not disguise action taken because of the disclosure itself.

The appellant, a police officer, made protected disclosures concerning, among other matters, the treatment of race-related crime and vulnerable victims. He later suffered detriments connected with his business interests and was dismissed under the business-interest procedure in the Police Regulations 2003.

The Employment Tribunal dismissed his claims under sections 47B and 103A of the Employment Rights Act 1996 and his victimisation claim under section 2 of the Race Relations Act 1976. It found that the respondents acted because of his prolonged sickness absence and the persistent manner in which he pursued complaints, not because he made protected disclosures or protected acts.

On appeal, the central issues were whether the Tribunal had wrongly treated later disclosures as unprotected, whether it could separate the manner of pursuing complaints from the disclosures themselves, and whether it applied the correct causation tests.

1. Appeal dismissed. Read fairly, as a whole and in context, the Employment Tribunal did not hold that later disclosures lost protection because earlier disclosures had been made. It distinguished the disclosure of information from the appellant's continuing campaign to secure the outcome he sought after complaints had been made.

2. Section 47B of the Employment Rights Act 1996 does not as a matter of construction prevent that distinction. There can, in principle, be a difference between a protected disclosure and the manner in which information is communicated, or the steps subsequently taken about it. The distinction must be genuine. The tribunal must be satisfied that the allegedly separable features were the reasons for the employer's conduct, and should scrutinise the distinction carefully because it may otherwise be used to mask retaliation for the disclosure.

3. The Tribunal was entitled on the evidence to find genuinely separable reasons: the appellant's long-term absence, his inability to return to police duties, the management burden of his correspondence and complaints, and his refusal to accept an answer other than the one he sought. Those findings supported its conclusion that he had become unmanageable and that the respondents' actions were not caused by the protected disclosures.

4. The Tribunal applied the correct section 47B causation test. A protected disclosure need only be a material, rather than trivial, influence on the treatment, but the Tribunal found that it was not such an influence. It had not substituted an impermissible but-for test.

5. The Tribunal also addressed the race-victimisation claim by asking why the appellant was treated. Its findings that the treatment and dismissal had nothing to do with race disclosed no legal error. Its findings further excluded any factual basis for a contention that the dismissal process was tainted by protected disclosures for the purposes of section 103A.

• Employment Appeal Tribunal: Appeal dismissed: [2014] UKEAT 0436_13_1604.
• Employment Tribunal: Claims for whistleblowing detriment, automatic unfair dismissal and race victimisation were dismissed in a decision promulgated on 3 May 2012. No citation is stated in the judgment.