A v Carers Trust South East Wales

The Employment Appeal Tribunal dismissed the appellant's appeal against the Employment Tribunal's dismissal of complaints of detriment and dismissal for making protected disclosures (sections 43A/43B and 103A ERA), direct disability discrimination (section 13 EqA), harassment (section 26 EqA) and victimisation (section 27 EqA). The EAT held that the ET applied the correct legal tests (including the Kilraine structure for qualifying disclosures) and made permissible factual findings on credibility and evidence. The ET concluded the claimant had not made qualifying disclosures with sufficient factual content to satisfy section 43B ERA, that most detriments relied on were not pleaded in the ET1 and so were not before the tribunal, that the real reason for dismissal was the information gathered during an internal investigation, and that the harassment complaint was out of time.

Key statutory provisions considered were sections 43A and 43B and sections 100 and 103A of the Employment Rights Act 1996, and sections 13, 26, 27 and 123 of the Equality Act 2010.

Background and parties:

• The claimant was employed from 7 July 2016 until summary dismissal on 22 August 2017. She conceded a diagnosed mental health condition (depression) and advanced multiple claims before the Employment Tribunal, including whistleblowing detriment/dismissal under the Employment Rights Act 1996, and disability discrimination, harassment and victimisation under the Equality Act 2010, together with unpaid holiday pay.

Procedural posture:

• The Employment Tribunal (Cardiff) heard the matter over six days and, by reserved judgment dated 2 February 2020, dismissed all complaints except unpaid holiday pay. The claimant appealed to the Employment Appeal Tribunal; a preliminary hearing before HHJ Taylor permitted the appeal to proceed on amended grounds.

Nature of the claims / relief sought:

• The claimant sought remedies for detriment and dismissal for protected disclosures (s.47 ERA / s.103A for unfair dismissal), direct disability discrimination (s.13 EqA), harassment (s.26 EqA), victimisation (s.27 EqA) and associated reliefs.

Issues framed by the court:

• Whether the claimant made qualifying disclosures within the meaning of s.43A/43B ERA;
• whether those disclosures or complaints amounted to protected acts under s.27 EqA;
• whether the respondent unlawfully discriminated against or harassed the claimant under the EqA, and whether victimisation occurred;
• whether the claimant was unfairly dismissed under s.103A ERA;
• time limit issues, in particular for the harassment complaint (s.123 EqA); and the extent to which various allegations in Scott schedules were new or previously pleaded in the ET1.

Court's reasoning and outcome:

• The EAT reviewed the ET's approach and found it had applied the correct legal framework (citing Kilraine and related authorities) and made permissible evaluative findings of fact on competing accounts and credibility. The ET concluded that the alleged verbal and written statements lacked sufficient factual content and specificity to amount to qualifying disclosures under s.43B, that many detriments identified in schedules were not pleaded in the ET1 and so not for determination, and that, in any event, the principal reason for dismissal was the information obtained during the independent investigation rather than any protected disclosure or protected act.
• On harassment, the ET found the only allegation properly before it (the "Father's Day" comment) was out of time and, on the merits, not shown to be disability-related conduct with the statutory purpose or effect. The ET's reasoning was brief but adequate in the round according to the EAT, which emphasised deference to tribunal fact-finding.

Appeal dismissed. The EAT held that the Employment Tribunal had applied the correct legal tests (including the structured Kilraine approach to qualifying disclosures), made permissible findings of fact on credibility and scope of pleaded complaints, and gave adequate reasons. The Tribunal was entitled to conclude that no qualifying disclosure had been made, that most detriments in the schedules were not pleaded in the ET1 and therefore not before the tribunal, that the real reason for dismissal was the information obtained in the investigation, and that the harassment claim was out of time and, on the merits, not disability-related harassment.

Appeal to the Employment Appeal Tribunal from the Employment Tribunal (Cardiff), reserved judgment dated 2 February 2020. Preliminary hearing (HHJ Taylor) permitted the amended grounds of appeal to proceed. Decision on appeal: [2023] EAT 80 (this judgment).