Toby Nicol v World Travel and Tourism Council & Ors

Where a worker makes a qualifying disclosure to one person but seeks to rely on it in relation to a decision made by another, the decision-maker must know something of the substance of the concerns raised. Mere knowledge that a disclosure has been made is insufficient. The protected status of the disclosure remains an objective issue for the tribunal.

Employment tribunals should ordinarily decide the pleaded and agreed issues. They should not determine an admitted factual issue unless the admission has properly been withdrawn. A procedural error does not require remittal where the tribunal’s unchallenged findings make it inevitable that the outcome would have been the same.

A tribunal must also give a party a fair opportunity to answer a serious allegation before making an adverse finding about it.

The claimant was dismissed from his employment and brought claims for automatic unfair dismissal under section 103A and whistleblowing detriment under section 47B of the Employment Rights Act 1996. The Employment Tribunal dismissed all claims, having considered six alleged protected disclosures.

On appeal, the claimant challenged, among other matters, the Tribunal’s rejection of an admitted disclosure (PD3), its approach to the onward communication of another protected disclosure (PD5), its treatment of a further alleged disclosure (PD6), and its finding that he had made inappropriate sexualised comments to a colleague.

The central issues were the procedural limits on deciding admitted matters, the knowledge required of a decision-maker where a disclosure is communicated through another person, and whether the identified errors required remittal.

1. Appeal allowed in part. Grounds 1 and 5(a) succeeded. The remaining grounds were dismissed. No issue required remission to the Employment Tribunal.

2. The respondents had unequivocally admitted that the claimant made the disclosure described as PD3 on or around 14 August 2019. That admission was reflected in the agreed list of issues. Fairness in an adversarial process ordinarily requires the tribunal to determine the disputed issues framed by the parties. The Tribunal therefore erred in investigating and rejecting the admitted fact without an application to withdraw the admission. It was also unfair to question the claimant about the absence of evidence on a matter which he was entitled to regard as admitted.

3. The error concerning PD3 was immaterial. The Tribunal’s unchallenged findings showed that complaints about the second respondent’s management style did not materially influence the dismissal or detriment decisions. It was therefore inconceivable that accepting PD3 would have changed the result. Applying the remittal approach in Jafri, the EAT could reach that conclusion without making its own factual assessment.

4. For a dismissal to fall within section 103A, a protected disclosure need not be known by the decision-maker to be legally protected; that is an objective question for the tribunal. But where the disclosure was made to person A and allegedly communicated to decision-maker B, B must know at least some of its substance. Liability cannot rest solely on B knowing that the worker made a disclosure. The Tribunal was entitled to find that the information passed to the second respondent about PD5 lacked sufficient detail.

5. The Tribunal was entitled to assess whether PD6 contained information with sufficient factual content and specificity to be capable of tending to show a section 43B matter. That inquiry precedes, and differs from, the inquiry into the worker’s reasonable belief concerning public interest. Its conclusions on PD6 disclosed no error of law.

6. The finding that the claimant had made inappropriate sexualised comments to Ms Magoja was procedurally unfair. It had not been put to him in cross-examination, despite his denial. That finding was self-contained and did not affect causation or the remaining conclusions. The Employment Tribunal’s judgment was to be read with the material after the first sentence of its paragraph 46 deleted.

• Employment Appeal Tribunal: appeal allowed in part: [2024] EAT 42. The Tribunal’s rejection of an admitted disclosure and its adverse finding concerning sexualised comments were erroneous, but neither required remission.
• Employment Tribunal, London South: dismissed the claims for automatic unfair dismissal and whistleblowing detriment in a decision sent to the parties on 14 December 2022. No citation was stated.