A v Carers Trust South East Wales

A worker must prove that they disclosed information with sufficient factual content and specificity to tend to show a matter within section 43B of the Employment Rights Act 1996. A statement of opinion that a colleague was stressed may fail that threshold. The worker's motive is irrelevant, but the context and incidental nature of a statement may inform the evaluative assessment of its content.

Victimisation requires that the protected act contributed to the real reason for the treatment. It is not enough to show that, but for the act, events leading to dismissal would not have occurred. An Employment Tribunal's reasons are to be read fairly and as a whole, particularly where extensive case management was required to identify the claims.

The claimant was dismissed after less than two years' service following an investigation into her allegations about a colleague. The investigation produced complaints by colleagues concerning the claimant's own conduct. She brought claims for protected-disclosure detriment and dismissal, disability discrimination, harassment, victimisation, holiday pay and other matters.

The Employment Tribunal dismissed all complaints except holiday pay. It found that the alleged disclosures concerning a colleague's workload and stress were either not made or did not disclose qualifying information. It also found that the claimant's dismissal resulted from colleagues' complaints, not disability, a protected act or protected disclosures.

The claimant appealed on grounds concerning qualifying disclosures, protected acts, discrimination, victimisation, automatic unfair dismissal and disability-related harassment.

1. Appeal dismissed. The Employment Tribunal was entitled to determine the case by reference to the ET1, the case-management order and the relevant Scott Schedules. The order did not conclusively admit new allegations contained only in the schedules.

2. The Tribunal made a permissible factual finding that the first alleged disclosure, concerning Mr Davies's stress, had not been made. As to the remaining alleged disclosures, it was entitled to find that they were expressions of opinion or belief, rather than information with sufficient factual content and specificity to satisfy section 43B of the Employment Rights Act 1996. That finding was sufficient to defeat the protected-disclosure claims.

3. The Tribunal's discussion of public interest was somewhat confused, but any deficiency was immaterial because there was no qualifying disclosure. A worker's motive is not part of the qualifying-disclosure test. However, the context in which an incidental statement was made could properly inform the assessment of whether information had been disclosed.

4. The victimisation claim also failed. The Tribunal accepted that the Father's Day complaint to the investigator was a protected act. It permissibly found that dismissal was caused by the complaints gathered from colleagues, not by that act. Victimisation does not apply a simple but-for test.

5. On direct disability discrimination and victimisation, the Tribunal's reasons were brief but adequate when read with its factual findings. It made positive findings of the respondent's real reasons for withholding complaint details, its process and the dismissal.

6. The automatic unfair-dismissal claim under section 103A of the Employment Rights Act 1996 necessarily failed because no protected disclosure had been made. In any event, the Tribunal's finding as to the actual reason for dismissal would also have disposed of it.

7. The harassment claim was out of time. The Tribunal was entitled to find that the Father's Day comment was the only pleaded disability-related act, that it was not conduct extending over a period, and that no case for a just and equitable extension had been advanced. Its further findings that the comment was not related to disability and had neither the prohibited purpose nor reasonable prohibited effect disclosed no error of law.

• Employment Appeal Tribunal — dismissed the claimant's appeal: [2023] EAT 80.
• Employment Tribunal, Cardiff — by reserved judgment sent on 2 February 2020, dismissed all complaints except holiday pay.