Malcolm Ford v The Scottish Ministers

The Employment Appeal Tribunal allowed the appeal in part. The tribunal below had dismissed the appellant's claims that he suffered detriments for making protected disclosures (section 47B Employment Rights Act 1996) and that his dismissal was automatically or ordinarily unfair (sections 103A and 98 ERA). The EAT found errors of law in the tribunal's treatment of two alleged detriments (the March 2017 secondment and the disciplinary investigation of February–May 2019) because the tribunal failed adequately to analyse detriment and causation and to apply the Fecitt materiality test (that a protected disclosure need only be a factor that is "more than trivial").

The EAT rejected the appellant's challenge to the tribunal's finding that dismissal was for conduct (and therefore not automatically unfair) and refused the grounds attacking the fairness of dismissal under section 98. The EAT remitted the limited issue of the two detriments (and related time bar and remedy questions) to the same tribunal for reconsideration.

Background and parties: The appellant was employed by the Scottish Public Pensions Authority as a pensions administrator from 2002 until summary dismissal in June 2019 for alleged misconduct. He brought claims before the Employment Tribunal alleging detriments for making protected disclosures and that his dismissal was automatically unfair (section 103A ERA) or unfair under section 98 ERA. The tribunal dismissed all claims in a reserved judgment dated 25 May 2021. The appellant appealed to the Employment Appeal Tribunal on four grounds.

Nature of the claim / relief sought:

• Declarations and remedies in respect of alleged detriments for making protected disclosures (section 47B ERA).
• Findings that dismissal was automatically unfair under section 103A ERA or unfair under section 98 ERA, with consequential remedies.

Issues framed by the EAT:

1. Whether the tribunal erred in law in its approach to detriment and causation in respect of the March 2017 secondment (ground 1).
2. Whether the tribunal erred in law in its approach to detriment and causation in respect of the disciplinary investigation (ground 2).
3. Whether the tribunal erred in law in its assessment of severability and the reason for dismissal so as to render the dismissal automatically unfair (ground 3).
4. Whether any connection between the disclosures and alleged misconduct affected the section 98 fairness assessment (ground 4).

Facts and tribunal findings relevant to appeal: The ET found that several disclosures by the appellant about police and firefighter injury benefits (including an August 2016 disclosure to management, a March 2018 meeting with Audit Scotland, and a June 2018 e-mail to Ministers) were protected disclosures. The ET found that the appellant had been seconded from the Injury Benefits team in March 2017 and that a disciplinary investigation was opened in February 2019 leading to summary dismissal in May 2019. The ET concluded those measures were not detriments on the ground of protected disclosures and that dismissal was for conduct and within the band of reasonable responses.

Court's reasoning and disposition: The EAT held that the tribunal's reasons were insufficient on the question whether the March 2017 secondment was a detriment and whether the protected disclosures materially influenced the decision to second the appellant. The tribunal had not explained why a reasonable worker would not view the secondment as a detriment and had conflated the tests for principal reason and material influence, failing to apply the Fecitt "more than trivial" materiality test for detriments short of dismissal. The EAT similarly found the ET had not properly analysed whether two specific allegations in the February 2019 investigatory letter were, in substance, references to protected disclosures (thus materially influencing the decision to investigate). The EAT found no error in the ET's approach to severability or to the finding that dismissal was for conduct rather than for making protected disclosures, and therefore dismissed grounds 3 and 4.

Result: The appeal was allowed on grounds 1 and 2. The EAT set aside in part the ET judgment insofar as it dismissed all section 47B claims and remitted four issues to the same tribunal: (a) whether the March 2017 secondment was a detriment for the first disclosure; (b) whether the disciplinary investigation was a detriment for the fourth and fifth disclosures; (c) whether those complaints were timeously presented under section 48 ERA; and (d) the appropriate remedy. The appeal on grounds 3 and 4 was refused.

The appeal was allowed in part (grounds 1 and 2) and refused in part (grounds 3 and 4). The EAT held that the tribunal had erred in law in its treatment of two alleged detriments because it failed adequately to analyse whether a reasonable worker would view the March 2017 secondment as a detriment and failed properly to apply the Fecitt materiality test in relation to the disciplinary investigation. There was no error in the tribunal's finding that the dismissal was for conduct rather than for making protected disclosures, so the unfair dismissal challenges failed. The matter was remitted to the Employment Tribunal to determine (i) whether the secondment was a detriment, (ii) whether the disciplinary investigation was a detriment, (iii) whether those complaints were in time, and (iv) remedy.