Apasenth Ltd v Nessa

For a detriment claim under section 47B of the Employment Rights Act 1996, an Employment Tribunal must decide whether the employee suffered a real detriment from the employer’s treatment. A grievance which is unsubstantiated, exaggerated or partly fabricated does not automatically preclude detriment. The Tribunal must assess, in all the circumstances, where the complaint falls on the spectrum between a genuinely believed but unsubstantiated complaint and an entirely fabricated complaint.

A fact-finding tribunal may assess credibility issue by issue. Rejection of a witness’s evidence on one issue does not compel rejection of all that witness’s evidence. Fresh evidence on appeal will not be admitted unless it satisfies the Ladd v Marshall criteria.

The Claimant brought claims including detriment and automatic unfair dismissal for making protected disclosures. The Employment Tribunal upheld those claims, finding that her suspension, disciplinary allegations and process, and delay in dealing with her sexual-harassment grievance were detriments. It dismissed her Equality Act claims.

The employer appealed on perversity grounds, challenged findings about a 2012 memorandum, and contended that delay and inadequate communication about a grievance containing false allegations could not constitute a detriment. It also sought to rely on fresh documents.

The central issue was whether the Tribunal had lawfully found detriment from the handling of a grievance where some allegations were unsubstantiated and might have been fabricated.

1. Appeal allowed in part. The perversity challenges failed. The Employment Tribunal was entitled to assess the evidence issue by issue and to accept a witness on some matters while rejecting her on others. Its finding that the Claimant’s distress at the hearing was genuine was fairly read as a finding about her state of mind at that time. It did not contradict the Tribunal’s rejection of the sexual-harassment allegations.

2. The challenge to the finding concerning the 2012 memorandum also failed. The Tribunal was entitled to regard the contemporaneous email as genuine but of little importance to the employer at the time, and to reject the evidence that it supported a continuing concern about professional boundaries.

3. The employer’s further documents were not admitted. Under Ladd v Marshall, they could with reasonable diligence have been obtained for the Employment Tribunal hearing. Although relevant and apparently credible, they were doubtful to have had an important influence on the hearing.

4. The Tribunal erred in law in finding detriment from the untimely investigation of, and inadequate communication about, the Claimant’s sexual-harassment grievance without analysing the nature of that grievance. Following and applying Cordant Security Ltd v Singh, the question is not answered solely by whether a complaint ultimately fails. The Tribunal must decide whether the employee had a real sense of grievance or injustice, having regard to the full spectrum from an unsubstantiated but genuinely believed complaint to an entirely fabricated complaint.

5. The issue whether the grievance handling caused a real detriment under section 47B of the Employment Rights Act 1996 was remitted to the same Employment Tribunal. The appeal was otherwise dismissed.

• Employment Appeal Tribunal: Allowed the appeal only on the detriment issue and remitted that issue to the same Employment Tribunal.
• Employment Tribunal: Upheld the protected-disclosure detriment and automatic unfair-dismissal claims, together with pay claims, but dismissed the Equality Act claims.