T Penicela v Sanctuary Care Ltd

The Employment Appeal Tribunal allowed the appeal in part. The tribunal had found that the claimant made one protected disclosure on 13 September 2017 under section 103A of the Employment Rights Act 1996 but concluded that the dismissing manager, Ms O'Connor, dismissed the claimant for lack of capability and that the protected disclosure played no part in that decision. The EAT held that the original tribunal failed to address a central head of the claimant's case: that the claimant's former line manager, Ms Cranfield, had been influenced by the claimant's protected disclosures when preparing a probation report which in turn influenced the dismissing manager. Because that issue was squarely pleaded and the probation report did influence the dismissing manager, the tribunal should have expressly considered (a) whether the tribunal needed to examine what influenced Ms Cranfield's mind, (b) whether Ms Cranfield's report was adversely influenced by protected disclosures, and (c) whether any such influence meant the dismissal was unfair. The matter was remitted for further consideration of that discrete issue, with other factual findings to stand.

This was an appeal from an Employment Tribunal decision rejecting claims of automatic unfair dismissal for making protected disclosures, direct race discrimination and victimisation. The claimant was a regional manager dismissed following a probationary review in January 2018. She alleged that she had made a series of protected disclosures about unsafe staffing levels and that her dismissal was caused, directly or indirectly, by those disclosures.

Nature of the claim: a claim of automatic unfair dismissal under section 103A Employment Rights Act 1996 (dismissal for making protected disclosures), together with discrimination and victimisation complaints. The claimant sought a finding that her dismissal was automatically unfair because it was caused by her protected disclosures.

Procedural posture: the claim was heard at first instance by an Employment Tribunal (Employment Judge R Lewis and two panel members) which found one protected disclosure (13 September 2017) but on the facts held dismissal was for capability. The claimant appealed to the EAT; Linden J allowed two amended grounds to proceed and the appeal was heard by His Honour Judge Auerbach.

Issues before the EAT: (i) whether the tribunal failed to consider the claimant's central contention that the claimant's former line manager was influenced by protected disclosures when preparing a probation report which then led to dismissal (a Jhuti-type argument); (ii) whether the tribunal erred in failing adequately to consider the claimant's pleaded multiple protected disclosures.

Court's reasoning and outcome: the EAT rejected the complaint that the tribunal failed to address the claimant's pleaded list of multiple disclosures: the tribunal had considered the materials, made findings on the single occasion it found to be a protected disclosure (13 September 2017), and explained why other occasions were not established on the evidence. However, on the Jhuti-type point the EAT held the tribunal had not expressly addressed whether it needed to examine what had influenced Ms Cranfield when compiling her report and, if so, whether that motivation rendered the dismissal unfair because Ms O'Connor had relied on the report. That omission was material because the claimant had squarely advanced that argument. The EAT allowed the appeal on that ground and remitted the discrete issue for further consideration by the tribunal, permitting limited further evidence from the two relevant managers; other factual findings were to stand.

Appeal allowed in part. The EAT held that the tribunal erred by failing to address a central Jhuti-type contention that the claimant's former line manager was influenced by the claimant's protected disclosures when preparing the probation report relied on by the dismissing manager. The EAT remitted the discrete issue for further consideration and allowed limited further evidence; the tribunal's other factual findings (including that one protected disclosure occurred on 13 September 2017) were to stand.

The claim was heard by an Employment Tribunal at Watford (Employment Judge R Lewis, Mr D Bean and Mrs S Wellings). The claimant appealed to the Employment Appeal Tribunal. At a Rule 3(10) hearing Linden J permitted two amended grounds of appeal. The EAT delivered judgment allowing the appeal in part and remitting a discrete issue to the original tribunal [2022] EAT 181; Case No: EA-2020-001059-AS.