Shinwari v Vue Entertainment Ltd

A protected disclosure claim requires proof both of a detriment by the employer and of the required causal connection. Under section 47B, the disclosure must have materially influenced the employer's treatment, rather than merely forming part of the factual background.

An employment tribunal may distinguish the making of a protected disclosure from genuinely separable consequences of it. It must scrutinise that distinction carefully, but no additional requirement that the case be exceptional applies. Whether disclosure of a witness's identity in disciplinary proceedings is appropriate is fact-sensitive; there is no universal rule requiring either full disclosure or confidentiality.

The Claimant reported a colleague's alleged misuse of complimentary cinema tickets. The Employment Tribunal found that this was a protected disclosure, but dismissed his claims for whistleblowing detriment, automatic unfair constructive dismissal and constructive dismissal.

His central complaint was that the Respondent disclosed his signed witness statement, identifying him, to the colleague in disciplinary proceedings. He alleged that this led to threats, bullying, an unsafe transfer and his resignation. The Tribunal found that no blanket confidentiality assurance had been made, disclosure was required by the disciplinary process, and the Respondent responded reasonably when a threat was reported.

On appeal, the issue was whether the Tribunal erred by treating the Respondent's reasons and the subsequent consequences as separable from the protected disclosure.

1. Appeal dismissed. The Employment Tribunal made findings open to it on the evidence and committed no error of law in dismissing the claims.

2. For a detriment claim under section 47B(1) of the Employment Rights Act 1996, the protected disclosure must materially influence the employer's act or deliberate omission. It is insufficient that the act would not have occurred but for the disclosure. The Tribunal was entitled to find that the alleged detriments were either not established, were acts of fellow employees for which the Respondent was not then vicariously liable, or were not caused by the disclosure.

3. Disclosure of a witness statement in disciplinary proceedings is fact-sensitive. There is no universal rule requiring full disclosure. The Tribunal permissibly found that disclosure was reasonable here, was authorised by the Respondent's established disciplinary policy, and was not contrary to an assurance of confidentiality. The later grievance outcome was evidence only and was not a dispositive concession about what had been said when the statement was taken.

4. A tribunal may distinguish between the protected disclosure itself and its genuinely separable features or consequences when identifying the employer's reason for acting. It must ensure that this reasoning is not used to defeat statutory protection, but there is no separate requirement that such a case be exceptional. The Tribunal was entitled to find that the Respondent disclosed the statement to give the employee facing discipline the evidence relied on, not because the Claimant had made a protected disclosure.

5. There was therefore no detriment, fundamental breach of contract, or dismissal for which the protected disclosure was the reason or principal reason. The constructive dismissal and automatic unfair dismissal claims failed.

• Employment Appeal Tribunal: appeal dismissed: [2015] UKEAT 0394_14_1203.
• Employment Tribunal: Employment Judge Etherington dismissed the claims in a decision promulgated on 30 January 2014.