Barnes v London Borough of Lewisham

The Court of Appeal dismissed the appellant's challenge to the Employment Tribunal's findings on both the protected disclosure and constructive dismissal claims. The tribunal rejected that the disclosure made in July 2011 was a qualifying protected disclosure and made adverse credibility findings against the claimant. On the constructive dismissal point the court held that the tribunal had considered the issue, applied the correct legal tests (including section 95(1)(c) of the Employment Rights Act 1996 and authorities such as Western Excavating v Sharp), and on the facts there was no repudiatory breach by the employer. The tribunal's factual findings that the standard-setting procedure had been completed on 22 March 2012 and that contact by the director's personal assistant was ordinary and innocuous were decisive.

Background and parties:

The appellant, a social worker employed by the respondent local authority, brought claims to an Employment Tribunal alleging detriment following a protected disclosure made in July 2011 and constructive/automatic unfair dismissal. The detriments relied on included initiation and extensions of a capability 'standard-setting' process and a final act said to be the 'last straw' leading to resignation on 22-23 March 2012.

Procedural history:

• The Employment Tribunal (London South) heard the claims on 18-19 March 2013 and gave a reserved judgment on 17 April 2013 dismissing the detriment and unfair dismissal claims.
• The appellant appealed to the Employment Appeal Tribunal; after an initial rule 3(7) direction on 29 July 2013 an oral hearing was held on 12 February 2014 before His Honour Judge Shanks who dismissed the appeal.
• Permission to appeal to the Court of Appeal was first refused on the papers on 22 May 2014; permission on a single ground was later granted after an oral renewal on 13 October 2014.

Issues framed by the court:

• Whether the July 2011 disclosure was a qualifying protected disclosure and made in good faith.
• Whether the detriments relied on were causally connected to any protected disclosure.
• Whether the tribunal gave adequate reasons and in particular whether it addressed the constructive dismissal claim (the 'last straw' argument) and the correct legal tests for constructive dismissal.

Court's reasoning and decision:

The Court of Appeal concluded the tribunal had properly considered constructive dismissal: it set out the legal test (including section 95(1)(c) ERA 1996 and authority from Western Excavating v Sharp and related cases), analysed the evidence in detail and made clear factual findings adverse to the claimant. Key factual findings were that the standard-setting had been completed on 22 March 2012, that subsequent monitoring was part of ordinary day-to-day management under the policy rather than an extension of formal capability proceedings, and that contact by the director's personal assistant was routine. Those findings meant there was no repudiatory course of conduct by the employer and therefore no constructive dismissal. The court refused to overturn the tribunal for lacking a formal sentence expressly dismissing the constructive dismissal claim, regarding such a requirement as unnecessary formalism given the substance of the tribunal's conclusions.

The appeal was dismissed. The Court of Appeal held that the Employment Tribunal had considered both the protected disclosure and the constructive dismissal issues, applied the correct legal principles (including section 95(1)(c) of the Employment Rights Act 1996 and leading authorities), made adverse credibility findings against the claimant and specific factual findings (notably that the standard-setting had been completed on 22 March 2012) which meant there was no repudiatory breach by the employer and therefore no constructive dismissal.

Employment Tribunal (London South) heard 18-19 March 2013; reserved judgment promulgated 17 April 2013 dismissing the claims. Employment Appeal Tribunal: rule 3(7) direction by His Honour Judge Clark on 29 July 2013; oral hearing before His Honour Judge Shanks on 12 February 2014 dismissed the appeal. Permission to the Court of Appeal refused on the papers by Sir Stephen Sedley on 22 May 2014; renewed oral application granted in part on 13 October 2014. Appeal to the Court of Appeal heard and dismissed 18 May 2016 ([2016] EWCA Civ 582).