Nese v Airbus Operations Ltd

A disclosure may qualify for protection despite being mistaken, provided the worker held a reasonable belief. Where good faith is required, reasonable belief alone is insufficient: the tribunal may assess the worker’s motivation, including later conduct, when deciding good faith.

An appeal court will not reweigh evidence merely because a party advances a different characterisation of disclosures. A dismissal for persistently making serious allegations without reasonable grounds and in bad faith is not automatically unfair merely because the allegations originally concerned safety or were said to involve a statutory right.

The claimant, an aerospace engineer, raised concerns about a subcontractor’s testing work and alleged that managers were concealing safety-related matters. After management gave assurances, he repeated allegations of concealment in communications and in a Dignity at Work complaint.

Following disciplinary proceedings, the respondent dismissed him for gross misconduct. The Bristol Employment Tribunal unanimously dismissed claims for unfair dismissal, automatically unfair dismissal, protected-disclosure detriment and wrongful dismissal.

The claimant appealed the dismissal-related findings. He contended that his later statements merely supplied background to complaints of victimisation, that the Employment Tribunal had wrongly found bad faith, and that his dismissal was really for asserting a statutory right.

1. Appeal dismissed. The Employment Tribunal had correctly identified and determined the case advanced before it. The claimant’s later statements were capable of being, and were permissibly found to be, repetitions of allegations of unsafe practice, coercion and concealment, rather than merely background to a complaint about his treatment.

2. The Employment Tribunal was entitled to accept the evidence that the claimant repeated serious allegations after receiving assurances that there was no concealment or safety compromise. Its assessment of the evidence and of the weight to be given to the Dignity at Work complaint could not be reopened on appeal.

3. The tribunal was entitled to infer from the claimant’s continued repetition of allegations, after their factual basis had been removed, that the post-assurance disclosures lacked reasonable grounds and were motivated by anger and mistrust. They were therefore not made in good faith for the purposes of Employment Rights Act 1996 protection.

4. Although the Employment Tribunal’s treatment of the initial disclosure was not sufficiently clear to establish that it too lacked good faith, that issue was immaterial. The dismissal was found to have resulted from the subsequent reiteration of allegations made in bad faith, not from the original raising of concerns.

5. The employer had reasonable grounds for its belief in misconduct. It was entitled to rely on the investigated and checked report of meetings with the claimant, rather than only on what he said directly to the dismissing officer. Applying BHS v Burchell [1978] IRLR 379, the Employment Tribunal permissibly found that the investigation, procedure and dismissal fell within the range of reasonable responses.

6. A general threat to take matters externally was not confined to bringing Employment Tribunal proceedings. The respondent could take account of that threat without dismissing the claimant for asserting a statutory right. The operative reason for dismissal was gross misconduct, not a protected disclosure, a health-and-safety complaint, or an assertion of statutory right.

• Employment Appeal Tribunal — dismissed the claimant’s appeal against the dismissal-related findings.
• Employment Tribunal (Bristol) — unanimously dismissed claims for unfair dismissal, protected-disclosure detriment, race discrimination and breach of contract; judgment sent to the parties on 21 December 2012.