Declan Durey v South Central Ambulance Service NHS Foundation Trust

The Employment Appeal Tribunal dismissed the claimant's appeal against an Employment Tribunal decision which had dismissed his whistleblowing detriment complaints, constructive unfair dismissal claim and wrongful dismissal claim. The EAT upheld the tribunal's findings that disclosure 2 (an email of 31 August 2015) was not a protected disclosure because the tribunal was entitled to conclude the claimant did not have a reasonable belief that the information tended to show danger to patient safety, while disclosure 9 (matters raised to an investigator on 25 September 2018) was a qualifying protected disclosure. The EAT rejected challenges that the tribunal's reasons were inadequate or perverse on causation, detriment and the tribunal's handling of witness statements. The respondent's cross-appeal on whether an employment tribunal has power to award injury to feelings for whistleblowing-detriment claims was not determined by the Employment Tribunal and the EAT declined to decide it in this appeal; both the appeal and cross-appeal were dismissed.

Background and nature of the claim: The claimant, a paramedic employed by the respondent trust, brought employment tribunal complaints alleging he had been subjected to detrimental treatment because he made protected disclosures, that he was constructively unfairly dismissed for making protected disclosures (section 103A ERA 1996), and that he was wrongfully dismissed. The tribunal dismissed all claims after a multi-day hearing. The claimant appealed to the Employment Appeal Tribunal. The respondent cross-appealed on a point of law: whether tribunals may award compensation for non-pecuniary losses (injury to feelings) for detrimental treatment arising from protected disclosures.

Key factual points: The judgment summarises the tribunal's findings about two particular claimed disclosures: (i) disclosure 2 — an email of 31 August 2015 complaining that a reduction in supernumerary placement hours had not been notified to the Health and Care Professions Council and posed a risk to patients; and (ii) disclosure 9 — matters alleged to have been raised during a meeting with an independent investigator on 25 September 2018. It records the procedural history of the internal investigation, subsequent correspondence and the claimant's periods of sickness absence and eventual resignation on 31 July 2019.

Issues for the EAT:

• whether the tribunal erred in law in its assessment of whether disclosure 2 was a qualifying/protected disclosure (the correct "tends to show" and reasonable-belief formulation and whether the tribunal impermissibly substituted its view);
• whether the tribunal's findings that alleged acts or omissions by the respondent did not amount to detriments because of the disclosures were inadequately reasoned or perverse;
• whether the tribunal failed properly to address conduct during the claimant's final months of employment and the asserted last straw precipitating resignation;
• whether the tribunal erred in dealing with criticisms of the respondent's witness statements and the conduct of the hearing; and
• whether the EAT should determine the cross-appeal point on the tribunals' power to award injury to feelings for detriment claims.

Court's reasoning and conclusions: The EAT examined the tribunal's application of the statutory test for a qualifying disclosure (section 43B ERA 1996) and confirmed the tribunal had considered the "tends to show" language and the claimant's subjective belief but was entitled to conclude the belief was not objectively reasonable in the context. The EAT endorsed the tribunal's evaluation that where the respondent had given explanations and there was evidence the claimant did not have a reasonable basis to reject them, the disclosure was not protected. The EAT rejected perversity and inadequacy-of-reasons challenges to the tribunal's findings on causation and detriment in respect of disclosure 2 and disclosure 9, including complaints about delay in investigation, lack of updates or provision of the report, and managerial actions such as standing the claimant down or contacting the police — the tribunal had reached permissible factual conclusions that actions were not taken because of the protected disclosures and were not unlawful detriments. On the procedural complaints about witness statements and counsel conduct, the EAT held that evaluation of witness statements is a matter for the trial tribunal and did not find error. Regarding the cross-appeal, the EAT concluded the Employment Tribunal was entitled not to decide the detriment-remedy question once it had dismissed the claims on the merits, and the EAT would not in this case exercise any residual power to determine the novel point of law: Harrod v Ministry of Defence was followed as restraining the EAT's power to act as a consultative tribunal, and Rolls Royce and Hutcheson were considered in the exercise of discretion. The appeal and cross-appeal were dismissed.

The appeal is dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had not erred in law or acted perversely in its treatment of disclosure 2 (finding it was not a protected disclosure) and in its findings on detriment, causation and constructive dismissal. The EAT also rejected challenges to the tribunal's handling of witness evidence and procedure. The cross-appeal issue (whether an employment tribunal may award injury to feelings for whistleblowing-detriment claims) was not decided by the Employment Tribunal and the EAT declined to determine it in this appeal; both the appeal and cross-appeal were dismissed.

Appeal from an Employment Tribunal (Reading) which had dismissed the claimant's whistleblowing-detriment complaints, constructive unfair dismissal and wrongful dismissal claims after a multi-day hearing before Employment Judge Gumbiti-Zimuto, Mr P Hough and Mr B Osborne. The claimant appealed to the Employment Appeal Tribunal (Case No EA-2023-000420-LA), resulting in this EAT judgment [2024] EAT 173 dismissing both the appeal and the respondent's cross-appeal.