Phoenix House Limited v Stockman

A tribunal may make a positive finding on the evidence about the reason for detrimental treatment without relying on statutory burden-of-proof provisions. It is generally unsafe to separate a protected complaint from the way it was made unless the case clearly justifies that distinction.

Whether reinstatement or re-engagement is practicable is primarily for the tribunal. It may take account of the impact of unfounded allegations upon workplace relationships.

A covert recording will generally amount to misconduct, but it does not automatically destroy trust and confidence. The tribunal must assess its purpose, the employee’s blameworthiness, what was recorded and the employer’s attitude. In assessing just and equitable reductions under the Employment Rights Act 1996, the tribunal may consider what the actual employer would have done, while independently deciding what justice and equity require.

The claimant was dismissed after a restructuring, grievances concerning alleged harassment and a failed mediation. The Employment Tribunal found her dismissal unfair. It also found that a letter arranging a meeting to consider her future employment was detrimentally influenced by protected disclosures and protected acts.

The employer appealed the detriment findings and the remedy tribunal’s treatment of the claimant’s undisclosed recording of a meeting. The claimant cross-appealed the refusal of reinstatement or re-engagement. The central issues were causation for victimisation and whistleblowing detriment, the practicability of re-employment remedies, and the proper approach to compensation where covert recording was discovered after dismissal.

1. Appeal and cross-appeal dismissed. The Employment Tribunal was entitled to find that the letter of 25 November 2013 was materially influenced by the content of the claimant’s grievance. It relied principally on the decision-maker’s own witness statement and was therefore able to make a positive finding of causation without treating the burden-of-proof provisions as decisive.
2. The tribunal was not required to distinguish between the protected grievance and the manner in which it was made. Such a distinction may be legitimate, but tribunals should be slow to draw it except in clear cases. The tribunal permissibly found that the grievance content, rather than merely the way it had been pursued, materially influenced the decision.
3. The refusal of reinstatement and re-engagement disclosed no error of law. Under the Employment Rights Act 1996, practicability and justice are evaluative questions for the tribunal. It was entitled to take account of the serious effect on the working relationship with the Director of Finance, against whom the claimant had made allegations which were rejected, and of her contributory conduct.
4. For reductions under sections 122(2) and 123(1), the tribunal must consider both the actual employer’s likely response to the actual employee’s conduct and its own assessment of what justice and equity require. That exercise is closely linked to, but is not identical with, a Polkey assessment.
5. A covert recording does not necessarily amount to conduct repudiating the implied term of trust and confidence. Its significance depends on the circumstances, including its purpose, the employee’s degree of blameworthiness, the subject matter recorded and the employer’s attitude. On the findings, the claimant recorded one meeting about her own position without intending entrapment. The tribunal was entitled to assess the chance of a fair dismissal as low and make a further 10% reduction.

• Employment Appeal Tribunal: The employer’s appeal against the detriment findings and remedy decision, and the claimant’s cross-appeal against refusal of reinstatement or re-engagement, were dismissed.
• Employment Tribunal, London South: By judgments dated 24 April 2015, 24 May 2017 and 26 September 2017, it found the dismissal unfair, upheld in part complaints of victimisation and public-interest-disclosure detriment, refused reinstatement and re-engagement, and awarded compensation subject to reductions.
• Earlier Employment Appeal Tribunal appeal: On 17 May 2016, an earlier appeal concerning detriment findings was allowed and remitted to the Employment Tribunal.