Elston v Robbie's Photographic Ltd & Anor

Where an employment tribunal finds that an employee was dismissed because she sent material to her solicitor, and that act is a protected act, it cannot consistently find that the protected act had no material influence on dismissal. Victimisation under section 27 requires a material influence, not but for causation.

In assessing fairness and a Polkey reduction, the tribunal must consider the full context and seriousness of the conduct relied on by the employer. A contributory-fault reduction requires adequately reasoned findings that the employee's own conduct was blameworthy. Disclosure to a solicitor for advice, who is subject to confidence obligations, requires particular explanation before it can be treated as blameworthy.

The Claimant, a picture framer, photographed invoices accessible during her work and sent the images to her solicitor while pursuing a grievance about hours and pay. The Respondents dismissed her for breach of confidentiality.

The Employment Tribunal upheld wrongful and unfair dismissal, finding the conduct was not gross misconduct. It nevertheless held that dismissal was substantively within the range of reasonable responses, made an 80% Polkey reduction and an 80% contributory-fault reduction. It rejected victimisation, although it found that sending the invoices to the solicitor was a protected act under the Equality Act 2010.

The Claimant appealed the rejection of victimisation and the two reductions. The central issue was whether those conclusions could stand with the Tribunal's finding that dismissal was for copying and sending the invoices to her solicitor.

1. Appeal allowed. The Employment Tribunal's dismissal of the victimisation complaint was perverse on its own findings. It had identified the sending of the invoices to the Claimant's solicitor as a protected act, but found for unfair-dismissal purposes that copying and sending those invoices was the reason for dismissal. The protected act was therefore a material influence on the decision to dismiss for section 27 purposes.

2. The possible distinction between a protected act and a separable objectionable manner of carrying it out did not assist the Respondents. Although Martin v Devonshires Solicitors permits that distinction in clear cases, the Tribunal did not make such a finding. Its further finding that the Claimant had failed to cooperate with the employer's financial difficulties was itself linked to her decision to “go legal”.

3. The 80% Polkey reduction was unsafe. Under section 98(4) of the Employment Rights Act 1996, fairness requires an objective assessment in all the circumstances. The Tribunal considered the context of disclosure to a solicitor, for advice on a grievance, when deciding that the conduct was not gross misconduct. It did not show that it considered the same context when deciding whether dismissal for misconduct was within the range of reasonable responses.

4. The contributory-fault finding was inadequately reasoned. The Tribunal focused on disclosure to the solicitor, but had found that it served a legitimate purpose and was made to a professional bound by confidence. It gave no adequate explanation why that act was blameworthy, or justified an 80% reduction.

5. The victimisation judgment was set aside and replaced with a finding that the dismissal victimisation claim succeeded. The questions of any Polkey and contributory-fault reductions were remitted to a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: Allowed the Claimant's appeal, substituted a finding that dismissal was unlawful victimisation, and remitted the Polkey and contributory-fault issues to a differently constituted Employment Tribunal.
• Employment Tribunal (London South): Upheld wrongful and unfair dismissal, but applied 80% reductions for Polkey and contributory fault; rejected victimisation.