O Argence-Lafon v Ark Syndicate Management Limited

The Employment Appeal Tribunal considered whether the Employment Tribunal erred in law in its findings on protected disclosures and in its assessment of fairness of dismissal. The court applied the statutory framework in the Employment Rights Act 1996 (notably sections 43B, 43C, 47B, 103A and 98) and relevant authorities on assessing procedural fairness where there is an initial hearing and an appeal (including Taylor v OCS Group Ltd).

The Employment Tribunal’s factual findings that three early disclosures (D1–D3) were qualifying and protected and that later disclosures (D4–D7) were not protected were upheld as open to the tribunal on the evidence. The tribunal was also entitled to find that two detrimental acts (setting certain objectives (Det 1) and placing the claimant on a formal performance improvement plan (Det 2)) had occurred but were not done on the ground that the claimant had made protected disclosures, and that the principal reason for dismissal was not the making of protected disclosures.

The Employment Appeal Tribunal found an error of law in the Employment Tribunal’s fairness analysis because it failed to consider the appeal stage when determining whether the overall dismissal process was fair. For that reason the cross-appeal succeeded and the matter was remitted for reconsideration of fairness taking the appeal stage into account.

Background and parties:

• Nature of claim: The claimant, a senior underwriter whose employment transferred under the Transfer of Undertakings (Protection of Employment) Regulations 2006, alleged detriments and automatic and ordinary unfair dismissal arising from disclosures about a large ENI oil-drilling insurance claim (the Ken Bau-1x loss).
• Relief sought: The claimant appealed the Employment Tribunal's liability judgment and a refusal of reconsideration, seeking reversal of factual findings that various later disclosures were not protected and that detriments and dismissal were not because of protected disclosures.

Relevant factual matrix:

• The claimant raised a sequence of concerns and communications (labelled D1–D7) about the Ken Bau-1x claim between November 2019 and May 2021, engaging with loss adjusters and seeking further investigation.
• In November 2020 the employer set three specific personal objectives (found to be a detriment, Det 1). In March–May 2021 poor performance against those objectives led to a formal performance improvement process (Det 2), a disciplinary hearing and dismissal on 9 August 2021. The claimant appealed the dismissal and the appeal was dismissed on 27 August 2021.

Procedural posture:

• The Employment Tribunal (Judge H Grewal) gave a liability judgment on 2 December 2022, rejecting most of the claimant's submissions that later disclosures were protected and holding that the detriments and the principal reason for dismissal were not the protected disclosures, but that the dismissal was procedurally unfair.
• A reconsideration request was refused on 22 December 2022. The claimant appealed to the Employment Appeal Tribunal. At sift stages the appeal was permitted to proceed by a High Court deputy judge; certain cross-appeal points were permitted by Mrs Justice Eady.

Issues framed by the EAT:

1. Whether the Employment Tribunal erred in law in its approach to whether specific disclosures were qualifying and protected under section 43B and related provisions (including the reasonable belief and public interest tests).
2. Whether the Employment Tribunal erred in law in deciding that the detrimental acts were not done on the ground of protected disclosures and that the principal reason for dismissal was not the making of protected disclosures (sections 47B and 103A ERA).
3. Whether the Employment Tribunal properly applied the section 98 fairness test, including consideration of the whole disciplinary process where there was an appeal stage.

Court’s reasoning and conclusions:

• The EAT concluded there was no error of law in the Employment Tribunal’s assessment that D1–D3 were protected and that D4–D7 were not: those conclusions were open on the evidence and on the reasonableness/public interest analysis under section 43B ERA.
• The Employment Tribunal was entitled to treat the two detriments as not being done on the ground of the protected disclosures because the decisionmakers had investigated the concerns, relied on loss adjusters and experts, and were motivated by frustrations at the claimant’s conduct and by performance concerns rather than by a desire to punish whistleblowing.
• On unfair dismissal, the Employment Tribunal identified potentially fair reasons but found procedural failings that rendered the dismissal unfair. The EAT agreed with that reasoning generally but identified a legal error: the Employment Tribunal failed to include consideration of the internal appeal stage as part of the overall fairness assessment under section 98(4). Because procedural fairness must be assessed across the whole disciplinary process (including appeals), that omission required remission for reconsideration of fairness with the appeal stage taken into account.

Disposition:

• The claimant’s appeal failed in respect of the asserted errors on protected disclosure and causation; the cross-appeal ground concerning failure to consider the appeal stage succeeded and the matter was remitted to the Employment Tribunal to reconsider fairness including the appeal stage.

The appeal is allowed in part. The Employment Appeal Tribunal held that there was no error of law in the Employment Tribunal’s findings that three early disclosures (D1–D3) were protected and that later disclosures (D4–D7) were not protected, nor in its conclusions that the two detriments and the principal reason for dismissal were not because of the protected disclosures. However, the Employment Tribunal erred in law by failing to consider the internal appeal stage when assessing the overall fairness of the dismissal under section 98 ERA; for that reason the cross-appeal succeeded and the issue of fairness is remitted for reconsideration taking the appeal process into account.

Employment Tribunal (London Central) judgment delivered 2 December 2022 (Employment Judge H Grewal) finding D1–D3 protected, D4–D7 not protected, two detriments established but not on the grounds of protected disclosures, and dismissal unfair. Reconsideration refused 22 December 2022. Appeal to the Employment Appeal Tribunal permitted to proceed after sift (initially filtered by His Honour Judge Beard; allowed to proceed by Deputy High Court Judge Gullick). Cross-appeal points permitted by Mrs Justice Eady. Determination by EAT [2025] EAT 124 remitted the fairness issue for reconsideration.