Metcalf v Surrey County Council

For a whistleblowing detriment claim under section 47B of the Employment Rights Act 1996, a protected disclosure need only materially influence the employer’s treatment. It need not be the sole or principal reason. A tribunal must not accept an employer’s ostensibly reasonable explanation without deciding whether that explanation was itself materially influenced by the disclosure.

The tribunal must identify each disclosure and each alleged detriment by date and content, and consider their relationship. A rolled-up approach prevents a proper causation assessment. No comparator is required, although comparative evidence may sometimes assist. These errors may also undermine decisions on automatic and constructive unfair dismissal under section 103A.

Two employees in an occupational health department made protected disclosures concerning clinical governance, statutory compliance, and their manager’s conduct. They alleged detriments including the handling of grievances, an occupational health audit, and probationary treatment. One claimant was dismissed; the other resigned and claimed constructive dismissal.

The Employment Tribunal dismissed the whistleblowing detriment claims, and dismissed the associated automatic and constructive unfair dismissal claims, principally by majority. The claimants appealed. The central issue was whether the Tribunal had correctly applied the statutory causation test and determined the disclosure-and-detriment allegations in a sufficiently structured way.

1. Appeals allowed. The Employment Tribunal’s dismissal of both claimants’ claims under section 47B of the Employment Rights Act 1996 was set aside. Its dismissal of the first claimant’s automatic unfair dismissal claim and the second claimant’s constructive automatic unfair dismissal claim under section 103A was also set aside.

2. Section 47B is infringed where a protected disclosure materially influences the employer’s treatment, meaning an influence which is more than trivial. This differs from section 103A, under which the disclosure must be the sole or principal reason for dismissal. An employer’s identified reason discharges the burden only if the prohibited reason played no part. A reasonable explanation is not conclusive where that explanation may itself have been materially influenced by protected disclosures.

3. The Tribunal erred by accepting explanations for the handling of the audit, the insistence on informal grievance resolution, and the probationary review without asking whether the disclosures, which included criticism of the manager, materially influenced those actions. The Tribunal also applied an impermissible binary approach to causation.

4. The Tribunal further erred by treating the disclosures and detriments in a rolled-up manner. It had to identify each disclosure and detriment by date and content, make findings on disputed disclosures, and consider the relevant pairings. That was a substantive requirement, not merely a matter of form.

5. No comparator was required for a section 47B claim. Disclosures made by the second claimant to the first could not be disregarded where the manager had overheard the conversation. The constructive dismissal reasoning also misidentified the reason for resignation.

6. The claims were remitted to a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: Appeals allowed. The Employment Tribunal’s dismissal of the section 47B and section 103A claims was set aside, and the claims were remitted.
• Employment Tribunal: In a judgment sent to the parties on 2 March 2016, it dismissed the whistleblowing detriment claims and the associated dismissal claims, principally by majority.