Gibson v London Borough of Hounslow & Anor

A tribunal’s erroneous classification of alleged disclosures will not invalidate its decision where it has separately determined, on the assumption that all disclosures qualified, that they did not materially influence the treatment complained of. The statutory causation inquiry concerns the employer’s actual reason for the treatment.

For automatic unfair dismissal for whistleblowing, the inquiry is whether whistleblowing was the principal reason for dismissal. Compensation for unfair dismissal may fairly be limited to the period during which the employee was entitled to work lawfully in the United Kingdom. That conclusion may be just and equitable where the employee did not ask the employer to sponsor a visa renewal.

The claimant, a teacher employed under a fixed-term contract linked to a Tier 2 visa, brought claims for whistleblowing detriment and dismissal, ordinary unfair dismissal, wrongful dismissal and holiday pay. Her employment ended when the contract and visa were believed to have expired.

The Employment Tribunal rejected the whistleblowing claims, but accepted that the dismissal was ordinarily unfair. It limited compensation to the short period for which the claimant’s independent visa application extended her entitlement to work. The claimant appealed the liability and remedy judgments, challenging the qualifying-disclosure analysis, causation findings, omissions in determining claims, and the limitation of compensation.

1. Appeal allowed in part. The Employment Tribunal’s liability and remedy judgments were upheld except for its failure to determine two distinct alleged whistleblowing detriments. Those issues were remitted on limited terms.

2. The Tribunal’s approach to whether certain communications conveyed “information” was legally erroneous in light of Kilraine v London Borough of Wandsworth [2018] IRLR 846. Statements which may also be characterised as allegations can disclose information. The emails comprising PDs 1, 3, 4 and 12 were sufficiently specific and precise to be disclosures of information within section 43B(1). The Tribunal also erred in finding that the respondents did not know of the Ofsted letter.

3. Those errors did not affect the result on the detriments which the Tribunal had actually considered. It had considered them alternatively on the assumption that all alleged disclosures qualified, and had made findings of the respondents’ actual reasons for the treatment. Those reasons were not materially influenced by protected disclosures. Although the reasoning was sometimes unclear and did not expressly refer to section 48(2), it was legally sufficient.

4. The conclusion dismissing the section 103A claim was adequately supported by the findings. Whistleblowing was not the principal reason for dismissal. The discernible reasons were the respondents’ belief that the claimant could no longer lawfully work, and their concerns about managing her and her non-compliance with procedures, which were found independent of whistleblowing.

5. The Tribunal was entitled under section 123 of the Employment Rights Act 1996 to limit compensation to 19 November 2015, when the claimant’s right to work ended. She had consciously chosen not to ask the respondents to sponsor a renewal. It was therefore not incumbent on them to take proactive renewal steps, and the limitation was just and equitable.

6. The omitted allegations concerning a threat to the claimant’s teaching licence and a false allegation of inappropriate handling of a child could not be determined by the Appeal Tribunal. The same Tribunal must decide the facts, detriment, causation and, if necessary, remedy. It is bound by its existing findings, must hear no fresh evidence, and must presume PDs 1, 3, 4, 8 and 12 qualified, subject to chronological relevance.

• Employment Appeal Tribunal: Appeal allowed only to remit two omitted detriment allegations; all other challenges to the Liability and Remedy Judgments were dismissed.

• Employment Tribunal, Watford: Liability Judgment sent on 7 April 2017 and corrected on 30 June 2017. It rejected the whistleblowing claims, while the respondents conceded ordinary unfair dismissal. Remedy Judgment sent on 13 March 2018 awarded a basic and compensatory award and limited loss to the period of lawful entitlement to work.