The London Borough of Southwark & Anor v Ayodele Martin

A detriment for whistleblowing is assessed by asking whether the worker’s subjective perception of disadvantage is one that a reasonable worker in that position could hold. A measure affecting all staff may still be a detriment to the claimant.

For Employment Rights Act 1996 section 47B, a protected disclosure need only be a material, rather than trivial, influence on treatment. Conduct said to be separate from the disclosure must be genuinely separable. An employer cannot avoid liability merely by showing that the same treatment would also have occurred for another reason.

An Employment Tribunal’s adequately reasoned findings must be read fairly and as a whole. The Employment Appeal Tribunal will not re-try factual disputes.

The claimant, a teacher at a hospital school, made protected disclosures concerning compliance with requirements on teachers’ directed time under the School Teachers’ Pay and Conditions Document 2017.

His whistleblowing detriment claims were initially dismissed. A previous appeal succeeded because the first Tribunal had erred in finding that no qualifying disclosures had been made. On rehearing, a freshly constituted Employment Tribunal upheld six detriment allegations.

The respondents appealed those findings. The claimant cross-appealed against the rejection of an allegation that the headteacher’s reduction of the school’s opening hours was a detriment. The central issues were whether the impugned treatment was a detriment in law and whether the protected disclosures materially influenced it.

1. The appeal was dismissed and the cross-appeal allowed. The case was remitted to the same Employment Tribunal to determine afresh whether the claimant’s protected disclosures materially influenced the decision to reduce the school’s opening hours.

2. The Tribunal had erred perversely in holding that the reduction of opening hours was not a detriment. Reducing opening hours, without changing directed time, did not address the excess-directed-time concern. It reduced the time available at school for additional duties. The Tribunal had not applied the reasonable-worker approach in Shamoon, because it did not assess whether the claimant’s stated perception of disadvantage was reasonably held. The only reasonable conclusion was that the change was a detriment.

3. The fact that the change affected other teachers did not prevent it being a detriment to the claimant. The so-called equality-of-misery point concerns evidential inferences on causation, not the prior question whether treatment is detrimental.

4. The Tribunal was entitled to uphold the remaining detriment claims. Its findings that the headteacher blamed the claimant for the adverse change, escalated and exaggerated performance concerns, failed to identify allegedly breached teaching standards, prolonged an unnamed complaint, and made threatening references to capability procedures disclosed no error of law.

5. On causation, the relevant question under Employment Rights Act 1996 section 47B(1) was whether protected disclosures materially influenced the treatment. It was not a but-for test. The Tribunal permissibly found that conduct described as the claimant’s general behaviour was not fairly separable from his protected disclosures, including repeated raising of the directed-time issue. A disclosure may remain a material influence even if the employer would have taken some action in any event.

6. The Employment Appeal Tribunal rejected attempts to re-argue the evidence. Although aspects of the Tribunal’s reasons were imperfect, they sufficiently explained why it reached its conclusions and revealed no material error of law.

• Employment Appeal Tribunal: appeal by the respondents dismissed; claimant’s cross-appeal allowed. The causation issue for detriment 5(b) was remitted to the same Employment Tribunal.
• Employment Tribunal: following a rehearing, the Tribunal upheld six whistleblowing detriment allegations and rejected detriment 5(b).
• Employment Appeal Tribunal: an earlier appeal by the claimant succeeded because the original Tribunal had erred in finding that no qualifying disclosures had been made. The claims were remitted to a newly constituted Tribunal.
• Employment Tribunal: the claimant’s detriment claims were originally dismissed after a final hearing in September 2019.