Mid Essex Hospital Services NHS Trust v Smith

Where an employer’s asserted fair reason for dismissal is rejected, an Employment Tribunal must still determine the actual reason or principal reason for dismissal. It must not assume that the reason was the protected disclosure merely because the employer has failed to prove its own case.

Under the Employment Rights Act 1996, the employer retains the legal burden of proving the reason for dismissal. In a detriment claim, it must show that the protected disclosure did not materially influence its treatment. A reason distinct from whistleblowing, such as hostility towards an employee for non-disclosure-related conduct, must be considered if the findings leave it realistically open.

The claimant, an anaesthetics nurse and trade-union steward, made protected disclosures in December 2013 and April 2014. He was suspended, subjected to disciplinary proceedings and summarily dismissed.

The Employment Tribunal upheld claims for whistleblowing detriment and automatic unfair dismissal. It found that the disciplinary allegations were weak and that the claimant’s disclosures had been the reason for dismissal. It also found that managers regarded him as a nuisance because of his campaigning and trade-union activity.

The Trust appealed. The central issue was whether the Tribunal had properly determined the real or principal reason for dismissal after rejecting the Trust’s cases of misconduct and breakdown in working relationships.

1. Appeal allowed in part. The appeal succeeded against the finding of automatic unfair dismissal under section 103A of the Employment Rights Act 1996. That issue was remitted to the same Employment Tribunal, if practicable.

2. The Tribunal had permissibly rejected the Trust’s asserted reasons of misconduct and some other substantial reason. It had also permissibly found that the claimant had raised a real issue about those reasons. Those findings did not, however, compel the conclusion that protected disclosures were the reason or principal reason for dismissal.

3. The Tribunal’s own findings identified two matters in the minds of the dismissing and appeal decision-makers: the claimant’s whistleblowing and their view that he was a nuisance. The latter related to his campaigning and trade-union activities, rather than necessarily to protected disclosures. The Tribunal had distinguished those matters in its findings but had not demonstrated that it determined which was the real or principal reason for dismissal.

4. If the nuisance factor was the principal reason, the dismissal would remain unfair but would not be automatically unfair for the prohibited reason relied on. The Tribunal therefore had to address the third stage of the guidance in [2008] IRLR 530: whether the employer had disproved the section 103A reason advanced by the claimant.

5. The Tribunal was nevertheless entitled to distinguish Panayiotou. This was not a case about separating the protected disclosures from the manner in which they were made. It concerned a potentially separate reason for dismissal.

6. The challenges to the detriment finding failed. On the Tribunal’s findings, persons implicated in the disclosures had instigated the suspension and disciplinary process. Applying the statutory burden, the conclusion that the protected disclosures materially influenced those detriments was permissible and adequately reasoned.

7. Remittal to the same Tribunal was proportionate. The defect was confined to one aspect of the automatic-unfair-dismissal reasoning, and the original Tribunal was best placed to address it fairly on its existing findings.

• Employment Appeal Tribunal: Allowed the Trust’s appeal on the automatic-unfair-dismissal issue and remitted that issue to the same Employment Tribunal. Dismissed the remaining grounds.
• Employment Tribunal, Colchester: Reserved Judgment sent on 9 February 2017. Upheld the claimant’s claims for protected-disclosure detriment, automatic unfair dismissal and wrongful dismissal.