Chief Constable Of West Yorkshire Police v B & C

For whistleblowing detriment under Employment Rights Act 1996, a protected disclosure need only be a material, rather than trivial, influence on the employer's treatment. The tribunal must assess the motivation of the actual decision-makers.

An appeal alleging perversity succeeds only where the tribunal reached a conclusion which no reasonable tribunal, properly directing itself on the evidence and law, could have reached. The Appeal Tribunal must not rehear factual disputes.

A party ordinarily cannot raise a new pleading objection for the first time on appeal where the issue emerged fairly during the hearing, was addressed in evidence and submissions, and no objection was taken below.

Two former undercover police officers brought claims that West Yorkshire Police had subjected them to detriments for making protected disclosures. The Employment Tribunal sitting at Leeds upheld the claims in part by a judgment dated 17 July 2015.

The Chief Constable appealed. The surviving grounds alleged that the Tribunal's conclusions on causation were perverse, that it had relied on an unpleaded protected disclosure by B, and that it had treated a six-month personal development review as an unpleaded detriment.

The central issue was whether the Tribunal had permissibly found that the protected disclosures materially influenced the officers' removal from undercover work and related treatment.

1. Appeal dismissed. The Tribunal was entitled to find that the protected disclosures materially influenced the detrimental treatment of both claimants.

2. The applicable test under section 47B(1) was whether a protected disclosure was a material influence, in the sense of more than a trivial influence, on the employer's treatment. The Tribunal was entitled to scrutinise the chronology, the asserted risk assessments, and the explanations concerning C's association with G and B's tattoo. Those matters supplied evidence from which it could infer the required causal influence.

3. The independent peer review concerning C did not determine liability. The relevant question was the motivation of those responsible for the decisions affecting C. The Tribunal was entitled to find that the review had been conducted on limited and potentially slanted information.

4. The perversity challenge failed. An appellate tribunal must exercise great restraint when reviewing a fact-finding tribunal which heard the witnesses and considered the evidence as a whole. The Employer had not shown an overwhelming case that no reasonable tribunal could have reached the conclusions adopted.

5. B's later complaint to the professional standards department was not itself treated as a pleaded protected disclosure. The Tribunal was nevertheless entitled to find that it recalled and continued the earlier protected disclosures, which remained a material influence on the decision-makers.

6. The six-month review issue arose only after comparative reviews were disclosed during the hearing. It was explored in evidence and submissions, and the Employer had not taken a pleading objection below. It was therefore not an exceptional case in which a new pleading point could be advanced on appeal.

• Employment Appeal Tribunal: Appeal dismissed: [2016] UKEAT 0306_15_0308.
• Employment Tribunal, Leeds: By a judgment dated 17 July 2015, upheld in part the claimants' whistleblowing detriment claims under the Employment Rights Act 1996.