A McDermott v Sellafield Ltd & Ors.

A communication may be a qualifying disclosure even if expressed as an opinion or allegation. The question is whether, in its context, it conveys information with sufficient factual content and specificity capable of tending to show relevant wrongdoing under section 43B(1) of the Employment Rights Act 1996.

A protected act under section 27(2)(c) of the Equality Act 2010 does not require a disclosure of information. However, errors in deciding whether conduct was protected do not affect the result where properly reasoned findings independently establish that no detriment was caused by it.

For agency under section 109, a subsidiary or contractor must act on the principal's behalf and with its authority. Corporate ownership, performance of functions for a parent, and limited practical control do not alone establish agency.

The claimant, an EDI consultant supplied through her company, worked for the first respondent, a subsidiary of the second respondent. After an anonymous Safecall allegation of sexual harassment, she was asked to conduct HR focus groups. She recommended a formal investigation and later produced a critical draft HR report. The first respondent gave notice terminating her company’s contract.

The Employment Tribunal dismissed her protected-disclosure detriment and victimisation claims. It also rejected alleged secondary liability of the second respondent and made costs awards of £20,000 in favour of each respondent group.

The claimant appealed the liability decision and the costs awards. The central issues included whether her communications were qualifying disclosures or protected acts, whether they caused detriment, whether the first respondent acted as the second respondent’s agent, and whether the costs awards were safe.

1. Liability appeal dismissed. The tribunal erred in its approach to the first communication. It failed to recognise that the claimant’s response embedded information known to her: an allegation of sexual harassment and possible cover-up had been made, and focus groups were proposed instead of the formal investigation she considered appropriate. An opinion or allegation may convey qualifying information where it has sufficient factual content and specificity. The tribunal also erred in concluding that this communication could not be a protected act under section 27(2)(c) of the Equality Act 2010 merely because the claimant lacked detailed facts.

2. Those errors did not undermine the dispositive findings on causation. The tribunal had found that the claimant was not pressured into conducting the focus groups because of what she said, and that termination was not materially influenced by that communication or by the report’s contents. Its findings that termination followed genuine concerns about the report’s balance, methodology, value and cost remained intact.

3. The tribunal did not err in treating the draft report as disclosing information but finding that the claimant did not genuinely and reasonably believe that it tended to show relevant wrongdoing. Nor did it apply an incorrect causation test: a protected disclosure need only be a material, rather than trivial, influence on detrimental treatment.

4. The tribunal correctly rejected agency liability under section 109. Applying Ministry of Defence v Kemeh, the first respondent and its employees were not shown to have acted on the second respondent’s behalf and with its authority in relation to the claimant. The subsidiary relationship, statutory power to use subsidiaries, and limited oversight did not establish that authority.

5. Costs appeal allowed. The costs decisions rested substantially on an unsafe view that the claims were fundamentally misconceived and had no reasonable prospects. The claimant had an arguable case that her first communication was both a protected disclosure and a protected act; other issues, including the report and causation, were fact-sensitive. Both costs awards were quashed and the applications remitted to a freshly constituted tribunal.

• Employment Appeal Tribunal: Liability appeal dismissed; costs appeal allowed. The awards of £20,000 to the first and third respondents and £20,000 to the second respondent were quashed. Costs applications remitted to a fresh tribunal panel: [2023] EAT 60.
• Employment Tribunal: Dismissed the protected-disclosure detriment and victimisation complaints. It rejected the claim against the second respondent and made the costs awards later set aside on appeal.