Broecker v Metroline Travel Ltd

In determining whether dismissal was for protected disclosures, a tribunal must identify the employer’s actual reason or principal reason. It must assess the relevant evidence directly. It must not use an unstatutory test of whether the dismissal was grossly or blatantly unfair as a proxy for that inquiry.

Under Employment Rights Act 1996, the fairness inquiry concerns whether the employer reasonably treated its actual, composite reason for dismissal as sufficient. Where dismissal rested on several allegations, and the employer unreasonably relied on material allegations, fairness cannot be upheld by asking whether the employer might reasonably have dismissed for a smaller subset of allegations alone.

The claimant, a bus driver, was dismissed after disciplinary proceedings concerning four alleged instances of misconduct relating to vehicle-defect reporting and driving. The Employment Tribunal held that two of the matters were protected disclosures, but found that protected disclosures were not the reason or principal reason for dismissal. It also held that the dismissal was not unfair.

The claimant appealed from the Employment Tribunal sitting at Watford. He contended that the Tribunal had misdirected itself both on the protected-disclosure issue and on ordinary unfair dismissal. The central questions were whether the Tribunal had correctly identified the reason or principal reason for dismissal, and whether it could uphold dismissal by reference only to two allegations when the employer had dismissed for four.

1. Appeal allowed. The Employment Tribunal erred in its approach to the reason or principal reason for dismissal. The statutory inquiry required it to determine directly whether the claimant had been dismissed for making protected disclosures. Its repeated use of whether the dismissal was grossly or blatantly unfair was an impermissible proxy for that question.

2. That error was material. The Tribunal had found that two matters for which the claimant was dismissed were themselves protected disclosures. It had also found that the disclosures prompted the disciplinary process, that an invalid warning related to reporting a defect to the police had been taken into account, and that the dismissing officer expressly linked dismissal to defect reporting. Those matters required evaluation when identifying the true reason for dismissal. Although a properly directed tribunal might still have found that protected disclosures were not the principal reason, cogent reasons would have been required.

3. The dismissal was nevertheless unfair on the Employment Tribunal’s own findings. Applying Smith v Glasgow City District Council [1987] ICR 796, fairness had to be assessed by reference to the actual reason relied on by the employer. The employer dismissed for all four alleged matters. The Tribunal found that two had not been reasonably treated as misconduct, but then asked whether dismissal would have been reasonable for the remaining two driving matters, with a valid final warning. That hypothetical inquiry could not sustain the actual dismissal.

4. The Tribunal’s finding that dismissal was not unfair was therefore set aside. The final warning for mobile-phone use was separate from the defective warning concerning defect reporting. The latter point did not affect the conclusion on the actual composite reason for dismissal. The case was remitted to the Employment Tribunal for determination of remedy for unfair dismissal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, set aside the finding that dismissal was not unfair, and remitted the case to the Employment Tribunal for remedy.
• Employment Tribunal sitting at Watford: Decision sent to the parties on 2 November 2015. It dismissed the claimant’s claims, holding that the principal reason for dismissal was conduct and that dismissal was not unfair.