Barnett v Acorn Care And Education Ltd & Anor

For a protected-disclosure detriment claim, the tribunal must determine whether the alleged act or deliberate omission was done on the ground that the worker made a protected disclosure. The material inquiry is causation, not whether the tribunal itself would have resolved the underlying disciplinary issues differently.

Where the employer proves that a decision to proceed with disciplinary matters without further investigation was a pragmatic response to substantially admitted allegations, and had nothing to do with protected disclosures, the claim fails. A fair reading of the tribunal’s reasons may suffice even if it does not separately address every formulation of a complaint.

The Claimant appealed against an Employment Tribunal judgment, sent to the parties on 7 April 2016, dismissing claims of detriments for protected disclosures and constructive dismissal for a protected-disclosure reason.

His only alleged detriment presented in time was the appeal officer’s alleged failure, on 27 February 2015, to investigate complaints concerning the disciplinary process. He contended that the Employment Tribunal had addressed the original grievance rather than a complaint of misconduct against the disciplinary officer, and had given inadequate reasons.

The central issue was whether the Employment Tribunal had erred in finding that the decision not to investigate the complaints through the disciplinary process was unrelated to any protected disclosure.

1. Appeal dismissed. The Employment Tribunal’s findings and a fair reading of its reasons fully supported its conclusion on the only in-time alleged detriment.

2. Under Employment Rights Act 1996 section 47B, the alleged detriment must have been done on the ground that the worker made a protected disclosure. The question was one of causation. It was not for the Employment Tribunal to decide whether the instructions underlying the disciplinary charges were objectively reasonable; the relevant issue was the reasoning of those responsible for the disciplinary decisions.

3. The appeal officer’s letter was evidence that he had considered the Claimant’s complaints about the conduct of the disciplinary hearing, including the complaint about the disciplinary officer. The Employment Tribunal was entitled to find that it was neither necessary nor proportionate to delay disciplinary matters for an extensive investigation of the late grievance, while leaving outstanding matters to the grievance procedure.

4. The Employment Tribunal found that the Claimant’s unauthorised absence and refusals to comply with two instructions were undisputed. It found that the decision to proceed without delay had nothing to do with any protected disclosure and everything to do with dealing pragmatically with allegations whose substance was largely common ground. That finding established, under section 48(2), that the Respondents had discharged the burden of proving the reason for the alleged detriment.

5. The dismissal of the challenge to issue 5.4.12 was determinative: all other detriment claims were out of time. The whole appeal was therefore dismissed.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s dismissal of the protected-disclosure detriment and constructive-dismissal claims was upheld.

• Employment Tribunal: judgment sent to the parties on 7 April 2016 dismissing the claims.