Schaathun v Executive & Business Aviation Support Ltd

A disclosure may be protected under the statutory whistleblowing scheme when made to a legal adviser or prescribed person. It does not lose that character because the employee did not tell the employer about it. The employer’s knowledge is instead relevant to whether the disclosure was the reason, or principal reason, for dismissal under Employment Rights Act 1996 section 103A.

An Employment Tribunal must exercise particular caution before striking out a litigant in person’s protected-disclosure allegations during the hearing. It must determine the statutory routes relied on and allow a fair opportunity to test whether the decision-maker knew of the disclosures by other means. The employer bears the burden of proving its reason for dismissal.

The claimant, a shareholder, company secretary and employee of a small aviation-maintenance company, was dismissed after the breakdown of her personal and working relationship with its managing director. She alleged that the dismissal was automatically unfair because she had made qualifying disclosures to solicitors, HMRC, the Civil Aviation Authority, the Environment Agency and the managing director.

The Employment Tribunal rejected the section 103A claim, having struck out most disclosure allegations after the claimant accepted that she had not directly told the managing director about them. It found ordinary unfair dismissal, but made no compensatory award after a Polkey assessment. It also refused a review.

The claimant appealed the rejection of the automatic-unfair-dismissal claim, the review refusal and the compensatory-award decision. The central issue was whether the Tribunal had lawfully treated the absence of direct notification to the managing director as fatal to the protected-disclosure claim.

1. The appeal was allowed in part. The rejection of the automatic-unfair-dismissal claim under Employment Rights Act 1996 section 103A was set aside and remitted to a differently constituted Employment Tribunal. The appeal against the absence of a compensatory award for ordinary unfair dismissal was dismissed.

2. The Employment Tribunal erred by holding that the claimant’s qualifying disclosures to HMRC could not become protected disclosures because she had not told the managing director about them. That reasoning failed to address disclosure to a prescribed person under section 43F. It also failed to decide whether alleged disclosures to a legal adviser under section 43D, or to prescribed persons, satisfied those statutory routes, despite the case-management order requiring those issues to be determined.

3. The Tribunal also erred in striking out the other allegations on the basis that the claimant had not directly informed the managing director. His awareness could arise by other means and was relevant to causation under section 103A, not to whether a disclosure made to a legal adviser or prescribed person was protected. The claimant had not agreed that he lacked such awareness; she had accepted only that she had not personally told or shown him the disclosures.

4. Striking out was a draconian step, especially for an unrepresented claimant who had not been warned in advance. The Tribunal acted after extensive judicial intervention during cross-examination and before the claimant had completed her cross-examination or given her evidence. Its legal and procedural basis for striking out was therefore unsound.

5. Applying Kuzel, the employer bore the burden of proving the reason for dismissal. The Tribunal wrongly placed on the claimant the burden of proving that protected disclosures were the reason for dismissal. Its findings on the reason for dismissal were consequently also set aside.

6. The Employment Tribunal was nevertheless entitled, on its findings about the irrevocable relationship breakdown and the small workforce, to conclude that employment would have ended fairly by 23 June 2009. The ordinary-unfair-dismissal finding and related award therefore stand if the remitted Tribunal does not find a section 103A reason. If it does, consequential awards must be reconsidered afresh.

• Employment Appeal Tribunal: Allowed the appeal against dismissal of the automatic-unfair-dismissal claim and the review refusal to that extent; remitted the section 103A claim to a differently constituted Tribunal.
• Employment Tribunal: Judgment sent on 5 August 2011 rejected automatic unfair dismissal, found ordinary unfair dismissal, and applied Polkey so that no compensatory award was made beyond loss of statutory rights.
• Employment Tribunal: By order with reasons sent on 7 September 2011, refused the claimant’s review application.