A McDermott v Sellafield Ltd & Ors.

The Employment Appeal Tribunal dismissed the claimant's liability appeal but allowed her appeal against the costs orders and remitted the costs applications to a fresh tribunal panel. The central legal issues were whether certain communications by the claimant constituted qualifying disclosures under section 43B(1) of the Employment Rights Act 1996 and/or protected acts under section 27 of the Equality Act 2010, whether the claimant reasonably believed those communications tended to show relevant wrongdoing, and whether any protected disclosures or protected acts materially influenced the decision to terminate the consultancy contract. The tribunal below had found that (i) the claimant's initial comment when asked to conduct focus groups was an expression of opinion and not a disclosure of information in the sense required by section 43B(1); (ii) the HR report produced by the claimant did not show the required reasonable belief that it tended to show relevant wrongdoing and did not amount to a protected act in the respects alleged; and (iii) the decision to terminate the contract was caused by concerns about the report's balance, methodology and cost rather than by protected disclosures. The EAT found errors in approach in relation to the narrow treatment of the first communication (disclosure 1) and in not treating it as potentially a protected act, but concluded those errors did not undermine the tribunal's overall factual conclusions on causation and the dismissal of the substantive complaints. The EAT therefore dismissed the liability appeal but quashed the costs awards as unsafe and remitted the costs applications for rehearing by a fresh panel.

The claimant, an Equality, Diversity and Inclusion consultant engaged to run focus groups, alleged that she suffered detriments and victimisation after she was asked to conduct focus groups following an anonymous "Safecall" report concerning alleged sexual harassment by a member of the HR lead team. She contended that (i) an oral response on 12 September 2018 that a formal investigation was required (when asked to conduct focus groups) amounted to a qualifying disclosure under section 43B(1) Employment Rights Act 1996 and/or a protected act under section 27 Equality Act 2010, and (ii) her draft HR report of 16 October 2018 contained disclosures or protected acts which led to termination of the contract with her company.

The Employment Tribunal heard a full 13-day merits trial and dismissed all complaints, concluding the claimant had not made qualifying disclosures or protected acts in the required sense, had not reasonably believed any disclosed information tended to show relevant wrongdoing, and that the termination of the contract was caused by contemporaneous complaints from lead HR team members about the report's lack of balance, concerns about methodology and cost, and not by any protected disclosure. The tribunal also concluded the second respondent could not be held liable as principal or by procuring/aiding/abetting the dismissal and awarded costs of £20,000 to each respondent against the claimant.

On appeal the EAT considered ten grounds challenging the liability decision and three grounds challenging costs. The EAT: (i) analysed the statutory tests (noting section 43B(1) E(R)A 1996 and section 27 EqA 2010) and the authorities about what constitutes "information" and a "reasonable belief" that such information tends to show wrongdoing; (ii) found that the tribunal had erred in its approach to the first oral communication by treating it too readily as mere opinion and had also erred in not treating that communication as potentially a protected act under section 27; but (iii) concluded those errors did not upset the tribunal's materially supported findings that the report itself did not disclose relevant wrongdoing in the reasonable-belief sense and that causation was not established between the claimant's communications and the termination. The EAT therefore dismissed the liability appeal. The EAT did however find the tribunal's costs decisions unsafe in light of the errors identified and the tribunal's strong overall tone; it allowed the costs appeal, quashed the costs awards and remitted the costs applications to a fresh tribunal panel for redetermination.

Liability appeal dismissed: the EAT upheld the tribunal’s central factual conclusions that the claimant’s report did not amount to qualifying protected disclosures or protected acts in the respects alleged and that the termination of the consultancy contract was caused by contemporaneous concerns about the report’s balance, methodology and cost rather than by protected disclosures. However, the EAT found legal error in parts of the tribunal’s reasoning about the claimant’s initial oral communication (which should have been considered as potentially disclosing information and as a protected act) and concluded that the tribunal’s costs awards were unsafe; the costs awards were quashed and the costs applications were remitted to a fresh tribunal panel for rehearing.

The complaint arose from a 13-day full merits hearing before an Employment Tribunal (Leeds) (Employment Judge Lancaster, L Anderson-Coe and K Lannaman) which dismissed all complaints and ordered costs against the claimant. The claimant appealed to the Employment Appeal Tribunal. The EAT delivered judgment [2023] EAT 60 (this decision) on 28 April 2023, dismissing the liability appeal but allowing the appeal on costs and remitting costs for fresh determination.