Blackbay Ventures Ltd (trading as Chemistree) v Gahir

In whistleblowing claims, an Employment Tribunal must analyse each alleged disclosure separately. It should identify the information disclosed, the legal obligation or health and safety risk relied upon, the basis for protection, and the relevant act or deliberate failure to act causing any detriment. A deliberate failure to act is treated as occurring when the reasonable period for acting expires.

The causation test for detriment short of dismissal differs from that for automatic unfair dismissal. For detriment, the protected disclosure must materially influence the treatment. For dismissal, it must be the reason or principal reason. A rolled-up analysis may be used only where the cumulative effect of identified protected disclosures is relied upon.

The claimant was employed briefly as a Responsible Pharmacist by a pharmacy business. She raised numerous concerns about statutory compliance, health and safety, controlled drugs, data protection and the presence of a responsible pharmacist.

The Employment Tribunal found protected disclosures, detriment under section 47B of the Employment Rights Act 1996, and automatic unfair dismissal under section 103A. The employer appealed, alleging inadequate reasoning, failure to identify the relevant disclosures and detriment, misapplication of the causation test, and errors concerning remedy and the ACAS Code.

The central issues were whether the detriment finding was legally sustainable, whether the dismissal finding could be disturbed on an appeal limited to questions of law, and how remedy should be reconsidered.

1. Detriment. The appeal against the finding of detriment short of dismissal was allowed. The Tribunal had not identified the particular protected disclosures, the act or deliberate failure to act, the date on which any deliberate failure occurred, or the causal link between that act and the alleged detriment. A deliberate failure to act requires a conscious decision not to act, and section 48(4)(b) postpones the deemed date until the period reasonably available for acting has expired.
2. The Tribunal’s rolled-up treatment of numerous complaints was inadequate. Each disclosure should be identified by date and content. Each alleged breach or risk should be separately specified, together with its legal source where necessary. The Tribunal should determine whether the worker reasonably believed that the information tended to show a qualifying matter and, under the law applicable at the relevant time, whether the disclosure was made in good faith. Cumulative effect may be considered only after the disclosures have been identified.
3. The causation test in Fecitt applies differently to detriment and dismissal. For detriment under section 47B, the disclosure must materially influence the employer’s treatment, in the sense of more than a trivial influence. Under section 103A, the disclosure must be the reason or principal reason for dismissal. The Employment Tribunal had directed itself in the latter terms and its dismissal finding was not shown to be perverse.
4. The finding that the claimant was automatically unfairly dismissed was therefore upheld. Although the conclusion was surprising and the evidence might have supported a different conclusion, the question of the reason for dismissal was one of fact and there was material on which the Tribunal could rely.
5. The ACAS Code did not apply to the dismissal. Under Lund, its application depends on the initiation of disciplinary proceedings or a grievance process, not merely on the ultimate reason for dismissal. The uplift was set aside. Remedy was remitted for reconsideration, including contribution and any Polkey reduction.

• Employment Appeal Tribunal: allowed the employer’s appeal against the detriment finding; upheld the finding of automatic unfair dismissal; set aside the ACAS uplift; and remitted remedy issues to the Employment Tribunal.
• Employment Tribunal: found protected disclosures, detriment under section 47B and automatic unfair dismissal under section 103A of the Employment Rights Act 1996.