Holton v BUPA Care Homes (CFH Care) Ltd

An Employment Tribunal must determine the case advanced by the parties. An agreed list of issues ordinarily defines the matters for decision, although it may be expanded where the evidence and submissions show that this is necessary to determine the case lawfully and fairly.

A Tribunal is not required to identify and decide an unparticularised allegation merely because it appears somewhere in an originating application. Under Employment Rights Act 1996 section 47B, a protected disclosure must materially influence the employer’s treatment. At the relevant time, an employer was not vicariously liable under that provision solely for victimisation by co-workers.

The Claimant appealed from the dismissal by the East London Employment Tribunal of her claims for constructive unfair dismissal and detriments for making protected disclosures. The permitted appeal grounds concerned only the protected-disclosure detriment claim.

The Tribunal had found that the Claimant made protected disclosures while working in one unit. It found that a possible attempt by colleagues to set her up occurred after one disclosure, but that the relevant conduct was by co-workers. It rejected allegations concerning holiday pay, leave arrangements, exclusion from a meeting and events after her move to another unit. The Claimant also contended on appeal that the Tribunal should have treated the failure to deal with her grievance as a detriment.

The central issues were whether the Tribunal had adequately identified and determined the detriment allegations actually advanced, and whether any error could affect the result.

1. Appeal dismissed. The Employment Tribunal’s record of the issues fairly and adequately reflected the case pursued before it. The Claimant’s documents, witness statement and closing submissions did not identify the failure to deal with her grievance as a distinct detriment claim. The Tribunal was not required to formulate and decide that unadvanced issue itself.

2. The Tribunal was entitled to work from the agreed list of issues. Although it must expand that list where necessary to decide the issues properly raised by the evidence and submissions, nothing in the material should have alerted it that the list omitted the grievance, holiday-pay or leave allegations now advanced in a wider form.

3. The Tribunal had made adequate findings on the specified detriment allegations. Its concise treatment fairly reflected the lack of particularisation in the Claimant’s case. It permissibly found that the holiday-pay error and leave arrangements were not materially influenced by protected disclosures, and that staff in the later unit did not know of those disclosures.

4. Even assuming that an attempted set-up or exclusion from a meeting could amount to a detriment, the appeal could not succeed. The alleged conduct was that of co-workers, not the employer. Applying NHS Manchester v Fecitt and Others, the statutory protection then in force did not impose vicarious liability on the employer solely for co-worker victimisation.

5. The Tribunal’s reasons, read as a whole, made its findings intelligible. No permitted ground of appeal disclosed an error of law.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal against the dismissal of her protected-disclosure detriment claim.
• East London Employment Tribunal: dismissed the claims for constructive unfair dismissal and detriments for protected disclosures in a judgment sent with written reasons on 12 March 2013.