Malik v Cenkos Securities Plc

An Employment Tribunal need determine the pleaded and agreed issues, and give sufficient reasons to explain its decision. It need not address every factual allegation or submission advanced in extensive closing submissions.

Suspension is fact-sensitive. It is not necessarily a repudiatory breach where the employer has investigated serious compliance concerns, has reasonable and proper cause to suspend, and requires time for further investigation. An employee who delays, continues to work without reserving rights, and receives suitable steps to address the alleged breach may affirm any repudiatory breach.

Good faith is not a separate condition of liability for a protected disclosure. Errors in stating the tests for protected disclosure or victimisation will not justify interference where the Tribunal's independent findings on causation make no difference to the outcome.

The Claimant, a senior research analyst, resigned after an investigation and suspension concerning undisclosed dealings connected with a company in respect of which he had an outside role. He alleged whistleblowing detriments, constructive unfair dismissal and race or religion victimisation.

The Central London Employment Tribunal dismissed the claims. It found that some protected disclosures had been made, but that the alleged detriments were not caused by them. It also found no constructive dismissal and no causative link between any protected act and the alleged victimisation.

The Claimant appealed against those conclusions and against the refusal to reconsider the judgment on the basis of recordings and other material said to be fresh evidence. The central issues included adequate reasons, suspension, causation, affirmation, and the admission of fresh evidence.

1. Appeal dismissed. The Tribunal did not err by failing expressly to address an alleged concerted campaign to remove the Claimant. That case theory was neither pleaded nor included in the agreed List of Issues. Its findings, including that the relevant compliance decision-maker acted alone despite receiving information from others, in any event implicitly rejected collusion.

2. The Tribunal gave legally sufficient reasons. Its function was to identify and decide the material issues and explain the essential reasoning. It was not required to analyse every item of evidence or every submission. The appeal improperly invited a detailed re-evaluation of factual findings.

3. The suspension ground failed. The Tribunal was entitled to find that suspension was not a knee-jerk reaction. Serious concerns had emerged over time, the Claimant had been investigated, and the employer operated in a highly regulated environment. In that context there was a proper basis for suspension pending further investigation. Calling suspension a neutral act meant that it was not a final disciplinary sanction; it did not mean that suspension could never be detrimental.

4. The Tribunal erred in treating good faith as a separate requirement for a protected disclosure, and erred in stating a reasonable-belief requirement for victimisation. Neither error affected the result. The Tribunal found protected disclosures in fact and independently found that the alleged detriments were not caused by protected disclosures or protected acts.

5. On whistleblowing causation, the Tribunal permissibly made positive findings explaining why each decision was taken. It was not necessary to invoke section 48(2) where the employer had shown, and the Tribunal had accepted, the actual reasons. The motivation of an innocent decision-maker could not be combined with another person's alleged prohibited motivation. Any separate detrimental act by that other person had to be properly advanced.

6. The constructive-dismissal claim failed. Even assuming that steps to recruit a replacement analyst were repudiatory, the Claimant affirmed any breach. The exercise was promptly put on hold, consultation was offered, he continued to work for a substantial period, and he did not reserve his rights.

7. The reconsideration appeal and the application to adduce fresh evidence also failed. The evidence could have been obtained with reasonable diligence and would not probably have had an important influence on the result. The Tribunal correctly applied the test in Ladd v Marshall.

• Employment Appeal Tribunal: dismissed the Claimant's appeals: [2018] UKEAT 0100_17_1701.
• Central London Employment Tribunal: dismissed the whistleblowing detriment, constructive dismissal and victimisation claims; subsequently refused reconsideration based on alleged fresh evidence.