City of London Corpn v McDonnell

In a protected-disclosure dismissal claim, an Employment Tribunal should identify the particular disclosures relied upon, including their timing, content, form and recipient. Those findings provide the necessary foundation for deciding whether a disclosure was protected and whether it was the reason or principal reason for dismissal under section 103A of the Employment Rights Act 1996.

A tribunal may raise an issue not formulated by the parties, but procedural fairness normally requires it to give the affected party an opportunity to answer a new inferential finding, particularly one amounting to bad faith or reliance on an improper reason. A dismissal for making a protected disclosure is unlawful, but a tribunal must distinguish the disclosure itself from the manner in which it was pursued or repeated.

The Claimant, a senior surveyor employed by the City of London Corporation, was dismissed for gross misconduct after disciplinary proceedings concerning his management of events and his conduct towards colleagues and clients. During and after his suspension, he made allegations concerning elected members and managers. He contended that these were protected disclosures and that they were the sole or principal reason for his dismissal.

The Central London Employment Tribunal upheld both ordinary unfair dismissal and automatic unfair dismissal under section 103A of the Employment Rights Act 1996. The Respondent appealed. The central issues were whether the Tribunal had adequately identified the disclosures relied on, whether its findings on public interest and the reason for dismissal were properly open to it, and whether its approach had been procedurally fair.

1. Appeal allowed in part. Grounds 1 to 3 succeeded. The Tribunal’s finding of automatic unfair dismissal was set aside. Ground 4, which challenged the finding of ordinary unfair dismissal, was dismissed.

2. The normal starting point for a protected-disclosure dismissal claim is to identify the disclosures relied upon with specificity. This includes their date, form, substance and recipient. The Tribunal had not made those findings. Its broad finding that there had been a number of disclosures in 2015 did not establish that earlier expressions of concern were qualifying disclosures, nor did it permit a sound assessment of public interest or causation.

3. The Tribunal’s conclusion that the dismissal was because of protected disclosures rested on an impermissible interpretation of the decision-maker’s evidence. It treated his reference to the Claimant’s retaliation comment and unsubstantiated allegations as references to repeated protected disclosures, although that interpretation was not properly supported by the evidence. It also failed to explain why other stated factors in the decision-maker’s reasoning did not constitute the reason or principal reason for dismissal.

4. In any event, it was procedurally unfair to reach an inference effectively alleging an improper reason or bad faith without putting that interpretation to the decision-maker and allowing the Respondent to answer it. A tribunal may raise a relevant issue, but it must ordinarily afford that opportunity where further factual evidence or argument may be needed.

5. The Tribunal was entitled, however, to find deficiencies in the investigation and disciplinary procedure. Those findings did not depend upon the same flawed interpretation or entail a finding of bad faith. The finding of ordinary unfair dismissal was therefore not separately erroneous.

6. The whole case was remitted to a freshly constituted Tribunal. The reason for dismissal was fundamental to both claims, the factual issues were intertwined, and the Tribunal’s extensive post-hearing comments created a real risk of apparent pre-judgment on a rehearing.

• Employment Appeal Tribunal: allowed the appeal against the automatic-unfair-dismissal findings, dismissed the challenge to ordinary unfair dismissal, set aside the decision and remitted the whole case to a freshly constituted Tribunal.
• Central London Employment Tribunal: upheld claims of ordinary unfair dismissal and automatic unfair dismissal under section 103A of the Employment Rights Act 1996.