Vairea v Reed Business Information Ltd

Employment Tribunal reasons must identify the issues, findings of fact, relevant law and its application. The requirements in rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 substantially preserve the approach under the former rule 30(6). Reasons may be narrative, provided the necessary reasoning is discoverable when read as a whole.

In a protected-disclosure claim, the Tribunal should consider whether there was a protected disclosure, whether the claimant suffered a detriment, and whether the detriment was because of that disclosure. Loss of commission may be a detriment even where the employer’s conduct was reasonable. For constructive dismissal, affirmation cannot revive an earlier repudiatory breach. A later act must itself amount to a new repudiatory breach; there cannot be a series of successive last straws.

Mr Vairea appealed against an Employment Tribunal’s dismissal of his claims that he had suffered detriments for making protected disclosures and had been constructively and unfairly dismissed. The Tribunal had found two protected disclosures but rejected the alleged detriments, causation and constructive dismissal.

The appeal challenged the adequacy of the Tribunal’s reasons, its treatment of grievance and compliance investigations, the effect of managers taking over client transactions, and the application of the last-straw doctrine. The central issues were whether the Reasons complied with rule 62(5), whether the findings disclosed errors of law, and whether the Tribunal was entitled to reject the causal connection between the disclosures, the alleged detriments and the resignation.

1. Appeal dismissed. The Employment Tribunal’s Reasons were adequate when read as a whole. Rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 expressed broadly the same requirements as rule 30(6) of the 2004 Rules. Greenwood v NWF Retail Ltd and Meek v City of Birmingham District Council remained applicable. The component parts of the rule had to be discoverable in the Reasons, but no particular structure was prescribed.
2. The appropriate analysis of the protected-disclosure detriment claim was sequential: whether there was a protected disclosure; whether the claimant suffered a detriment; and whether the act or omission was done on the ground that the claimant had made the disclosure. The Tribunal was entitled to find that the grievance and compliance processes did not amount to detriments and that they were not caused by whistleblowing.
3. The Tribunal had erred in treating the reasonableness of managers taking over client transactions as answering the detriment question. If the intervention caused loss of commission, that was a detriment even though the intervention was reasonable. The error was immaterial because the Tribunal had made a permissible factual finding that the intervention resulted from customer complaints, not protected disclosures.
4. For constructive dismissal, the Tribunal had to identify the conduct, decide whether it breached an express or implied contractual term, determine whether the breach was repudiatory, assess cumulative conduct where appropriate, and ask whether the resignation was a reaction to that breach. Following London Borough of Waltham Forest v Omilaju, affirmation could not revive an earlier breach by an entirely innocuous later act. After affirmation, a resignation required a subsequent repudiatory breach. There could not be more than one last straw.
5. The claimant had affirmed the contract and the later disagreement with the compliance investigation did not constitute a new repudiatory breach. In any event, the Tribunal’s finding that the resignation was not causally connected with the protected disclosures was decisive.

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s judgment and Reasons sent to the parties on 1 December 2014. Appeal dismissed.