City of London Corpn v McDonnell

Case details

Case citations

[2019] UKEAT 0196_17_2802 · [2019] ICR 1175 · [2019] WLR(D) 257

Court

Employment Appeal Tribunal

Judgment date

28 February 2019

Judgment text

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Subjects

Employment law Whistleblowing / Protected disclosures Unfair dismissal - automatic dismissal

Keywords

protected disclosure public interest reason for dismissal burden of proof procedural fairness inferences from evidence remittal Burns/Barke procedure ACAS Code

Outcome

appeal allowed in part

Judicial consideration

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Summary

It is insufficient for a tribunal to treat broad thematic complaints as "protected disclosures" without identifying the precise disclosures relied upon. Instead, a tribunal must identify the date, recipient and content of the qualifying disclosures so that issues such as reasonable belief and public interest can be assessed.

Where a tribunal draws inferences that are tantamount to a finding of bad faith against a decision-maker, fairness normally requires that those inferences be put to the witness. A failure to do so may amount to a serious procedural irregularity.

Where such procedural irregularity and the appearance of pre-judgement are present, remittal to a freshly constituted tribunal is appropriate.

Factual background

The employer appealed the Central London Employment Tribunal's findings of ordinary and automatic unfair dismissal. The employee, a senior surveyor, had been dismissed for gross misconduct after disciplinary proceedings connected to his management of events. He had earlier made a series of whistleblowing complaints. The Employment Tribunal found some disclosures were protected, concluded the dismissing officer had treated the disclosures negatively and held dismissal to be for the principal reason of making protected disclosures. The employer appealed on grounds including lack of identification of the specific disclosures and procedural unfairness arising from the tribunal's interpretation of the decision-maker's evidence.

The Employment Appeal Tribunal was asked to review whether the tribunal had erred in law in its approach to identification of protected disclosures, fairness in relation to putting its interpretations to the decision-maker, and whether any errors required remittal.

Held

(1) Appeal allowed in part. Grounds 1, 2 and 3 of the permitted grounds of appeal succeed. Ground 4 fails. The decision of the Employment Tribunal is set aside in part and the matter is remitted to a freshly constituted Employment Tribunal. (2) Identification of disclosures: A tribunal should, where practicable, identify the specific protected disclosures relied upon by an employee. That includes particulars of timing, recipient and salient content. Without those findings the tribunal cannot reliably assess reasonable belief, public interest or causation. Failure to make such findings was a material defect in the tribunal's reasons (see paras [7.44]–[7.58]; [7.64]; [Discussion]). (3) Interpretation of decision-maker's evidence: The tribunal drew a series of inferences from Mr Bennett's statements. Many of those inferences were not justified by the evidence and amounted to extrapolations. Inferences that are tantamount to findings of bad faith or reliance on an improper reason should ordinarily be put to the relevant witness to afford a fair opportunity to answer. The tribunal did not do so here and that omission was a serious procedural irregularity (see paras [7.34]–[7.39]; [Discussion]). (4) Burden and legal approach: The EAT reaffirmed the legal principles from Kuzel (burden on employer to show reason for dismissal) and from Serco/authorities on treatment of mixed motives. Those authorities inform but do not displace the need for clear factual findings about disclosures and motivations (see Legal Framework and Discussion). (5) Remittal: Applying the factors in Sinclair Roche the EAT concluded that, on balance, the defects and the tenor of the tribunal's extensive comments risked pre-judgment and justified remittal to a freshly constituted tribunal for full rehearing of liability and remedy. The whole matter was remitted because the reason for dismissal is central to both ordinary and automatic unfair dismissal claims (see Disposal; Sinclair Roche factors at paras [46.1]–[46.6]).

Appellate history

Employment Appeal Tribunal: appeal from the Central London Employment Tribunal; judgment delivered 28 February 2019. The EAT allowed the appeal in part, upheld Grounds 1–3, dismissed Ground 4 and remitted the matter to a freshly constituted Employment Tribunal.
Court below: Central London Employment Tribunal, judgment (Employment Judge Hodgson) finding ordinary and automatic unfair dismissal (reasons at paragraphs set out in the judgment).

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