T Penicela v Sanctuary Care Ltd

In a protected-disclosure dismissal claim, the ordinary inquiry is into the factors operating on the dismissing officer’s mind. However, where the claimant advances a case that a manager’s report was tainted by protected disclosures and materially influenced the dismissal, the tribunal must expressly determine whether that earlier manager’s motivation requires consideration and, if so, whether it affected the statutory reason for dismissal under Employment Rights Act 1996, section 103A.

A tribunal need not address every asserted disclosure separately where its reasons sufficiently explain why the evidence supports only some, or none, of them. It must nevertheless give adequate reasons for a central and distinct case advanced by a party.

The claimant, a regional manager employed by a care-home provider, was dismissed after failing her probation review. She alleged automatic unfair dismissal for protected disclosures concerning unsafe staffing, together with race discrimination and victimisation.

The Employment Tribunal found one protected disclosure, made in September 2017, but held that the dismissing manager had dismissed the claimant for capability and that the disclosure played no part in that decision. It dismissed all claims and rejected reconsideration.

On appeal, the claimant contended that the tribunal had failed to address her case that her former line manager’s probation report was tainted by protected disclosures and had failed adequately to determine her other alleged disclosures.

1. Appeal allowed on Ground 1 and remitted. The Employment Tribunal erred by failing expressly to address the claimant’s central case that the former line manager’s probation report had been adversely influenced by protected disclosures and that the dismissing manager relied on that report.

2. The ordinary starting point is that the reason for dismissal comprises the factors operating on the dismissing officer’s mind. Royal Mail Group Ltd v Jhuti, [2020] ICR 731, recognises that, in an appropriate case, another manager’s earlier motivation may be attributed to the employer or treated as the true reason for dismissal.

3. The tribunal’s findings at paragraphs 64 to 66 concerned the dismissing manager’s own reasons. They did not state either that the case was outside the Jhuti category or that the author of the report was not motivated by the claimant’s actual or alleged protected disclosures. A benevolent reading could not safely supply that missing determination. Since the report influenced the dismissal and the point was the claimant’s whole, or primary, case, adequate reasons required an explicit conclusion.

4. Ground 2 failed. The tribunal had sufficiently considered the claimant’s case that she made further disclosures. It explained why the evidence established a protected disclosure at the September meeting but did not permit findings of qualifying disclosures on other occasions. It was unnecessary to address every item in the claimant’s lengthy particulars separately.

5. The existing factual findings, including that only one protected disclosure had been made, stand. The section 103A claim is remitted to the same tribunal if practicable. Further evidence may be called, if the respondent chooses, only on the former line manager’s motivation and the significance of her report to the dismissal decision.

• Employment Appeal Tribunal: Allowed the appeal on the failure to address the alleged taint of the probation report, but dismissed the challenge concerning further alleged protected disclosures. Remitted the Employment Rights Act 1996, section 103A complaint for limited further consideration.
• Employment Tribunal, Watford: Dismissed the claimant’s claims for automatic unfair dismissal, direct race discrimination and victimisation. Its decision was not given a citation in the judgment.