Salisbury NHS Foundation Trust v Wyeth

For an automatic-unfair-dismissal claim under section 103A of the Employment Rights Act 1996, a tribunal must identify the employer’s actual reason, or principal reason, for the conduct causing a constructive dismissal. A protected disclosure being the contextual or originating cause of subsequent events is insufficient. The tribunal must not apply a but for analysis or substitute the employee’s reaction for the employer’s reason.

Where the employer advances potentially separate explanations, the tribunal must critically assess them and explain whether, and why, they are accepted or rejected. A failure to do so prevents a reliable finding that the disclosure itself was the reason or principal reason for dismissal.

The claimant, a nursing assistant, made protected disclosures concerning an operating department practitioner’s conduct and suspected drug misuse. After he raised further concerns, he was moved from night to day shifts, his bullying complaint was not resolved, and he was not included in the investigation into the practitioner. He resigned after receiving the investigation outcome.

The Southampton Employment Tribunal held that these matters amounted to constructive dismissal. As the Trust advanced no potentially fair reason, the dismissal was unfair under section 98 of the Employment Rights Act 1996. It also held that the 2012 protected disclosure was the reason or principal reason for dismissal under section 103A. The Trust appealed only that automatic-unfairness finding.

The central issue was whether the Tribunal had identified the Trust’s actual reason for the conduct which caused the constructive dismissal, rather than treating the protected disclosure as its contextual cause.

1. Appeal allowed. The Employment Tribunal did not err merely because the claimant had advanced a but for case. Its reasons showed that it understood that it had to identify the reason or principal reason operating on the employer’s mind. The absence of a potentially fair reason under section 98 did not, however, itself establish automatic unfairness under section 103A.

2. In a constructive-dismissal case, the statutory question requires the tribunal to identify why the employer committed the repudiatory conduct which caused the employee to resign. The employee’s perception is relevant to whether the employee accepted the breach, but does not determine the employer’s reason. A protected disclosure may form the context for the conduct without being its reason or principal reason.

3. The Tribunal had failed to undertake the necessary critical analysis. It did not clearly decide whether it accepted or rejected the Trust’s explanation for moving the claimant from nights to days, nor explain any rejection. Its finding concerning exclusion from the investigation arguably identified a separate face-saving motive connected with the handling of the 2011 complaint. The Tribunal did not make clear whether that was its ultimate finding or how it affected the principal-reason assessment.

4. More than one outcome was possible. The EAT could not substitute its own conclusion. The section 103A claim was remitted for a fresh hearing before a differently constituted Employment Tribunal, preferably sitting with lay members. The constructive-unfair-dismissal findings remained undisturbed.

• Employment Appeal Tribunal: allowed the Trust’s appeal against the automatic-unfair-dismissal finding and remitted the section 103A issue for a fresh hearing.
• Southampton Employment Tribunal: held that the claimant had been constructively dismissed and that the dismissal was automatically unfair because of a protected disclosure. The judgment was sent to the parties on 17 June 2014.