Antony Savva v Leather Inside Out (in liquidation) & Ors

For the purposes of section 48(3)(a) of the Employment Rights Act 1996, out-of-time whistleblowing detriments must form a series of similar acts or failures with conduct complained of in time. A shared protected-disclosure motive can be relevant, but it does not invariably establish the required series or similarity.

Where an employer gives a purported lawful reason for detrimental treatment, the tribunal must engage with a cogent case that the reason lacked a factual or legal basis and was a pretext for whistleblowing retaliation. In deciding whether information is a qualifying protected disclosure, it must determine the substance of what was communicated and the worker’s reasonable belief, rather than characterising a disclosure as mere opinion without addressing material evidence.

The claimant brought three Employment Tribunal claims against a charity and individual respondents. He alleged unfair dismissal and detriments for protected disclosures, together with discrimination and harassment claims. The alleged detriments included refusals to comply with three subject access requests (SARs).

At a preliminary hearing, the tribunal dismissed most complaints as out of time and made deposit orders concerning the first two SAR complaints. On reconsideration, it allowed some further complaints to proceed. At the merits hearing, the tribunal dismissed the remaining claims, but did not determine the complaint concerning the third SAR.

The claimant appealed the preliminary-hearing and merits decisions. The central issues included limitation under section 48(3)(a) of the Employment Rights Act 1996, the deposit orders, the treatment of the SAR refusals, and whether several alleged disclosures were qualifying protected disclosures.

1. The first appeal was dismissed on limitation but allowed concerning the deposit order for the first two SAR complaints. The tribunal was entitled to find that the unfair-dismissal complaint and the relevant out-of-time detriment complaints could reasonably have been presented earlier, and had not been presented within a further reasonable period. An unfair-dismissal complaint cannot be brought within time through the series provision: section 47B(2) excludes dismissal from the worker detriment right where the worker is also an employee, and section 111 contains no equivalent series provision.

2. Under section 48(3)(a), the tribunal must find a series of similar acts or failures, including in-time and otherwise out-of-time conduct. Conduct found to be on the ground of a protected disclosure is a necessary component, but a shared proscribed ground or motive does not automatically make disparate conduct a series. The tribunal’s ultimate strike-out conclusion was permissible because the later SAR responses and annual return were discrete, self-contained conduct of a different nature from the alleged treatment during the engagement and its immediate aftermath.

3. The deposit order for the two SAR complaints was erroneous. The claimant’s case was that the stated data-protection reasons were pretexts. The tribunal had to give some consideration to his challenge to the factual and legal availability of the claimed exemptions. Further, on the pleaded case the SARs concerned his former working relationship with the charity, so the alleged detriments were not outside the employment field merely because any data subject may make an SAR.

4. The second appeal was allowed on grounds (a), (b), (c) and (f). In deciding whether the first two SAR refusals were retaliatory, the merits tribunal erred by treating it as sufficient that the reasons invoked were legally recognisable. It had to engage with the claimant’s cogent contention that those reasons did not apply and therefore cast doubt on their genuineness.

5. The tribunal also erred by failing to determine the third-SAR complaint. Its reasons concerning alleged disclosures 3, 10 and 11 were inadequate: it had to address the evidence of the information actually conveyed and whether the claimant reasonably believed it tended to show legal wrongdoing. The decisions on those matters and the first two SAR detriment complaints were quashed and remitted to a differently constituted tribunal. The third-SAR complaint was also remitted for a first determination.

• Employment Appeal Tribunal: The first appeal was dismissed on time points but allowed insofar as it challenged the deposit order relating to the first two SAR complaints. The second appeal was allowed on the omitted third-SAR complaint, the first two SAR detriment complaints, and alleged protected disclosures 3, 10 and 11. Those matters were remitted to a different tribunal.
• Employment Tribunal: At the preliminary hearing, most complaints were dismissed as out of time and deposit orders were made. A reconsideration varied that decision by allowing further complaints and an amendment concerning the third SAR.
• Employment Tribunal: At the merits hearing, the remaining complaints were dismissed. Reconsideration was refused.