Brito-Babapulle v Isle of Wight NHS Trust

For a detriment claim under Employment Rights Act 1996, the employer must show the ground for its act or deliberate omission. A protected disclosure need only have materially influenced the treatment, rather than being its sole or principal cause. An Employment Tribunal must examine the mental processes of the relevant decision-makers and give sufficient reasons for finding that the employer has discharged that burden.

A bare fact capable of providing an innocent explanation does not suffice unless the Tribunal explains its evidential basis and its application of the statutory burden. Where those matters remain unresolved, the conclusion on causation is unsafe.

The Claimant, a locum Consultant Haematologist, made protected disclosures while employed by the Respondent NHS Trust. The Southampton Employment Tribunal dismissed her claims that she had suffered detriments for making those disclosures, but upheld her claim for unauthorised deductions from wages.

The two detriments relevant to the appeal were the non-payment of on-call sums after she was told not to work, and the failure to afford her a disciplinary or dismissal process before the termination decision was communicated. The Employment Tribunal found that neither detriment was caused by protected disclosures.

The Claimant appealed, contending that the Tribunal had failed to apply the burden under section 48(2) of the Employment Rights Act 1996 and had given inadequate reasons for its conclusions on causation.

1. Appeal allowed. The conclusions that the two detriments were not on the ground of protected disclosures were unsafe. The case was remitted to the same Employment Tribunal, so far as practicable, to reconsider those detriments.

2. Under section 47B of the Employment Rights Act 1996, a protected disclosure must materially influence the employer’s treatment. It need not be the only or principal reason, but its presence in the background is insufficient. Section 48(2) is self-standing: the employer must show the ground for the act or deliberate omission, although disbelief of its explanation does not automatically establish the worker’s case.

3. On the on-call payments, the Tribunal had found both a contractual breach and a detriment. It accepted that Mrs Kennett acted on erroneous HR advice, which was capable of being an innocent explanation. However, the Tribunal had also said that it could not understand the basis of that advice or policy. It therefore needed to determine whether protected disclosures had materially influenced HR’s advice. Its reasons did not show that it had done so, or that the Respondent had discharged the statutory burden. The conclusion was consequently unsafe.

4. On the absence of any disciplinary or dismissal process, the fact that the Claimant lacked two years’ service was capable of explaining the Respondent’s conduct. It was not, without findings from evidence, an explanation of why the Respondent decided not to follow any process. The Tribunal did not identify the evidential basis for its conclusion or explain how it had applied section 48(2). Its reasons were inadequate.

5. The successful appeal did not disturb the separate finding rejecting automatic unfair dismissal. That decision concerned a different decision-maker, and the two impugned detriments did not establish that the dismissal decision had been tainted. As more than one answer remained possible on each detriment, remittal was required. The same Tribunal was best placed to reconsider the limited issues.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and remitted the two protected-disclosure detriment issues to the same Employment Tribunal.
• Southampton Employment Tribunal: Judgment sent out on 25 June 2015. It dismissed the protected-disclosure detriment claims, upheld the unauthorised-deduction claim concerning on-call payments, and rejected the automatic unfair dismissal claim.