Saha v Capita Plc

An Employment Tribunal must determine the substance of the claim disclosed by the pleadings, law and evidence. An agreed list of issues is an important case-management tool, but it must not be applied rigidly where that would prevent the Tribunal from deciding the case correctly.

A worker's statement that a proposed future working arrangement will breach the Working Time Regulations 1998 may amount to a disclosure tending to show a likely failure to comply with a legal obligation under section 43B(1)(b) of the Employment Rights Act 1996. It is materially different from a working-time detriment claim based on an alleged past infringement. Where the relevant protected-disclosure issues were not determined and more than one outcome is possible, the claim should be remitted rather than decided by substitution.

The Claimant appealed parts of an Employment Tribunal decision sent to the parties on 15 March 2017. The Tribunal had held that emails of 1 and 7 December 2015 were not protected disclosures. It dismissed the associated whistleblowing detriment and automatic unfair-dismissal claims, although it found the Claimant ordinarily unfairly dismissed.

The first email said that proposed year-end hours would harm the Claimant's health and breach the Working Time Regulations 1998. The agreed list of issues treated the health allegation as a protected-disclosure claim, but treated the working-time allegation under section 45A of the Employment Rights Act 1996. The second email alleged that an offer of £10,000 to terminate employment was blackmail or bribery.

The central questions were whether the Tribunal had wrongly failed to consider the working-time allegation under section 43B(1)(b), and whether it had erred in rejecting the second email as a protected disclosure.

1. Appeal allowed in part. Ground 1 succeeded. The Tribunal erred by treating the agreed list of issues as determinative and thereby failing to decide the substantive protected-disclosure claim raised by the first email.

2. The first email contained two distinct allegations: prospective harm to health and a prospective breach of the Working Time Regulations 1998. Although the latter had been placed under section 45A, the Claimant had consistently relied on the email as her first protected disclosure. Under Employment Rights Act 1996 section 43B(1)(b), a disclosure may concern a likely future failure to comply with a legal obligation. The allegation could therefore fall within that provision.

3. Applying Parekh v London Borough of Brent [2012] EWCA 1630, an agreed list normally limits the issues, but the Tribunal is not required to adhere to it slavishly if that would impair its duty to determine the case according to law and evidence. The miscategorisation was particularly material because the section 45A claim had been rejected on the basis that it alleged no past infringement, whereas the section 43B(1)(b) issue concerned an alleged likely future breach.

4. Ground 2 failed. A purported disclosure that the Claimant herself had made an earlier whistleblowing disclosure did not disclose any matter within section 43B(1)(a)–(f). Further, although a reasonable belief may be mistaken in law, the Tribunal was entitled to find that an offer of money to leave following a breakdown in working relations could not reasonably be believed to be blackmail or bribery.

5. The section 47B claim based on the first email was remitted to the same Tribunal. The Tribunal had not considered its distinct statutory ingredients, and its existing findings did not compel dismissal. In accordance with Jafri v Lincoln College [2014] IRLR 544, the Appeal Tribunal should not substitute its own decision where more than one outcome remained possible.

• Employment Appeal Tribunal: Allowed the appeal on Ground 1, set aside the protected-disclosure ruling concerning the 1 December 2015 email, and remitted that section 47B claim to the same Employment Tribunal. Dismissed Ground 2.
• Employment Tribunal: Decision sent to the parties on 15 March 2017. It held that the two emails were not protected disclosures, dismissed the related whistleblowing detriment and automatic unfair-dismissal claims, and found the Claimant unfairly dismissed.