O Argence-Lafon v Ark Syndicate Management Limited

Whether a disclosure is qualifying depends on the worker’s reasonable belief, assessed in its factual context. An employment tribunal may find that a belief in wrongdoing has ceased to be reasonable after relevant expert investigations have reached a contrary conclusion.

Conduct following a protected disclosure may be a distinct reason for detrimental treatment. It does not become treatment for making the disclosure merely because it arose from the same events.

In assessing ordinary unfair dismissal under Employment Rights Act 1996, section 98, the tribunal must assess the fairness of the whole disciplinary process, including any appeal. It should not decide fairness by labelling the appeal a rehearing or review. Failure to consider a material appeal process is an error of law.

The claimant, a senior underwriter, alleged that concerns he raised about an insurance claim were protected disclosures. He complained that performance objectives and a performance-improvement process were retaliatory detriments, and that his later dismissal was automatically and ordinarily unfair.

The Employment Tribunal accepted that disclosures made in November 2019 and May 2020 were protected. It rejected later alleged disclosures, dismissed the whistleblowing detriment and automatic-unfair-dismissal complaints, but found the dismissal ordinarily unfair. It refused reconsideration.

The claimant appealed on alleged errors in the factual findings and treatment of his disclosures. The respondent cross-appealed against the ordinary unfair-dismissal finding, contending that the Tribunal had failed to assess the dismissal appeal. The central issue was whether the Tribunal had erred in law in its whistleblowing analysis or in deciding fairness without considering the appeal process.

1. The claimant’s appeal was dismissed. The Employment Tribunal was entitled to resolve the conflicting evidence concerning the claimant’s alleged disclosures and the views of loss adjusters. Its conclusion that the later alleged disclosures did not satisfy the reasonable-belief requirement for qualifying disclosures disclosed no error of law and was not perverse.

2. The Tribunal was entitled to find that the protected disclosures did not materially influence either the setting of the disputed objectives or the decision to commence the formal performance process. The managers had investigated and taken the earlier disclosures seriously. Their later concern was the claimant’s continued challenge to the experts’ conclusions and the effect on his performance. That conduct was distinct from the making of the protected disclosures.

3. The Tribunal was also entitled to find that the reason, or principal reason, for dismissal was not the making of protected disclosures. Its findings identified the claimant’s failure to engage with the performance process and the resulting breakdown of trust and confidence as the operative reasons. The challenges advanced were, in substance, impermissible challenges to factual findings.

4. The respondent’s cross-appeal on ordinary unfair dismissal succeeded. Under section 98 of the Employment Rights Act 1996, fairness had to be assessed by considering the disciplinary process as a whole. The Tribunal had made detailed findings about the dismissal appeal but had considered only the initial dismissal decision in its fairness analysis. The appeal might have cured the lack of advance notice that breakdown of trust and confidence was being considered as a basis for dismissal.

5. The unfair-dismissal issue was remitted. There was not only one possible answer once the appeal process was considered. Remittal was to the same Tribunal if practicable; otherwise it was to a differently chaired panel.

• Employment Appeal Tribunal: The claimant’s appeal against the liability and reconsideration decisions was dismissed. The respondent’s cross-appeal succeeded on the ordinary unfair-dismissal issue, which was remitted.
• Employment Tribunal, London Central: Judgment sent on 2 December 2022. Protected-disclosure detriment and automatic-unfair-dismissal complaints were dismissed; ordinary unfair dismissal was upheld.
• Employment Tribunal, London Central: Reconsideration was refused on 22 December 2022.