Malcolm Ford v The Scottish Ministers

For detriment short of dismissal under section 47B of the Employment Rights Act 1996, a protected disclosure need only have had a material influence on the impugned act. It need not have been the sole, principal or main reason. A material influence is one that is more than trivial.

A tribunal must address separately whether treatment was a detriment and whether it was on the ground of a protected disclosure. Where it concludes that an unwanted transfer was not a detriment, it must explain why a reasonable worker would not regard it as such. By contrast, automatic unfair dismissal under section 103A requires the protected disclosure to have been the reason, or principal reason, for dismissal. Conduct associated with a disclosure may be severable from making the disclosure itself.

The appellant, a pensions administrator, was summarily dismissed for misconduct after raising concerns about the administration of police and firefighter injury benefits and public-service pensions. The Employment Tribunal, in a reserved judgment dated 25 May 2021, found that several communications were protected disclosures but dismissed claims for whistleblowing detriment and for automatic and ordinary unfair dismissal.

On appeal, the appellant challenged the tribunal's treatment of a March 2017 secondment and a later disciplinary investigation as alleged detriments under section 47B of the Employment Rights Act 1996. He also contended that his dismissal was automatically unfair under section 103A, or unfair under section 98. The central issues were causation for detriment and whether the alleged misconduct was severable from the protected disclosures when identifying the reason for dismissal.

1. Appeal allowed in part. The tribunal's dismissal of the section 47B detriment claims could not stand insofar as it concerned the March 2017 secondment and the disciplinary investigation between February and May 2019.

2. On the secondment, the tribunal had not adequately explained its conclusion that moving the appellant to another team was not a detriment. The appellant was plainly unhappy with the move. If the tribunal considered that a reasonable worker would not regard it as detrimental, it had to say so and explain why.

3. The tribunal had also applied the wrong causation approach to detriment. Under section 47B of the Employment Rights Act 1996, the disclosure need only have materially influenced the treatment, in the sense of an influence that was more than trivial. It did not need to be the sole or principal reason. The tribunal's findings that there was a link between the disclosure and the move, and that management wished to remove the appellant from casework about which he had concerns, required reconsideration under that test. The earlier approach in Aspinall, if read as demanding a core or real reason, had been overtaken by Fecitt and its application of Igen.

4. The tribunal had similarly failed to address whether two specified allegations in the investigation letter were, in substance, references to the appellant's disclosures to Audit Scotland and to ministers. It had not explained why those allegations concerned conduct alone, or considered whether the protected disclosures materially influenced the decision to investigate.

5. The appeal against dismissal failed. Section 103A requires the protected disclosure to be the reason, or principal reason, for dismissal. The tribunal was entitled to apply the distinction in Kong between making a protected disclosure and conduct associated with it. It was entitled to find that the appellant was dismissed for the manner of his subsequent conduct, rather than for making protected disclosures. The section 98 challenge consequently also failed.

6. The case was remitted to the same tribunal to determine the two detriment issues, time bar under section 48, and any remedy. Grounds 3 and 4 were refused.

• Employment Appeal Tribunal: Allowed the appeal in part, set aside the dismissal of specified section 47B claims, and remitted them to the same tribunal; refused the dismissal grounds: [2024] EAT 197.
• Employment Tribunal: By a reserved judgment dated 25 May 2021, dismissed the claims for whistleblowing detriment, automatic unfair dismissal and unfair dismissal.