This month our case digest is dominated by unfair dismissal and victimisation claims. The usual advice follows: if you're going to dismiss someone, make sure you follow procedure and do it properly, a protected disclosure only gains its protection from being in the public interest (not that of the individual), even unions can get it wrong, and if you're going to submit a large remedy claim have substantial medical evidence to back it up.
- Unfair Dismissal:Tribunal fails to consider fairness of final warning
- Unfair Dismissal:Claimant can't rely on protected disclosures if not made in public interest
- Victimisation:Tribunal incorrectly applied burden of proof provisions and rejected protected act
- Victimisation:Substantial lack of medical evidence and self-diagnosis not enough for high value remedy claim
Unfair Dismissal: Tribunal fails to consider fairness of final warning
In Thomas v Brandpath UK Ltd [2024] EAT 150, the EAT allowed the claimant's claim for an unfair dismissal. After an altercation between the claimant and a colleague, the claimant was signed-off sick for a significant period and the respondent conducted a disciplinary hearing in her absence. The claimant was dismissed by the respondent and the Employment Tribunal (ET) concluded that the claimant had acted "inappropriately". The claimant argued that the ET: (i) did not consider and decide whether the issue of the final warning was manifestly unfair; (ii) there was a failure to apply the relevant guidelines; (iii) the decision was perverse; and (iv) that there was unfairness in proceeding with the disciplinary hearing, in the absence of the claimant, rather than delaying to allow for a possible improvement in her medical condition.
The EAT held that the ET erred in law is its assessment of the reason for dismissal, in failing to determine the question of whether the final warning was manifestly unfair, having identified that as one of the issues for determination. It failed to properly consider the question of whether the respondent had investigated that fell within the band of reasonable responses. There was no clear finding of what the claimant had done or said that was "inappropriate". They upheld grounds (i) and (ii) of the appeal. It was therefore not necessary to go on to consider grounds (iii) and (iv).
Unfair Dismissal: Claimant can't rely on protected disclosures if not made in public interest
In Dowding v The Character Group Plc [2024] EAT 153, the claimant in the employment tribunal was the finance director of the respondent, a company listed on the Alternative Investment Market. Following his dismissal he complained of unfair dismissal for the reason or principal reason that he had made protected disclosures, alternatively ordinary unfair dismissal. The tribunal concluded that the claimant had not, in law, made protected disclosures, because the disclosures relied upon were not believed by him to have been made in the public interest (alternatively, if they were, his belief was not reasonable). Nor in any event was the claimant dismissed by reason of those disclosures.
The tribunal found that this was a fair dismissal by reason of a breakdown in trust and confidence that had been caused by the claimant's conduct. At a further costs hearing the tribunal awarded the respondent costs, in a capped amount, subject to detailed assessment on the indemnity basis. It rejected a costs application by the claimant himself. The respondent also successfully sought its costs in respect of the costs hearing, which it had limited to the maximum that could be summarily awarded, of £20,000.
The claimant's appeal against the decision dismissing the ordinary unfair dismissal complaint was unsuccessful. An appeal against the costs decision succeeded in two respects. The EAT concluded that, under the Employment Tribunal Rules of Procedure 2013, the tribunal does have the power to direct that a detailed costs assessment be on the indemnity basis; but the tribunal had not shown whether, or if so, why, it had decided that such a direction was warranted in this case, applying the guidelines in Howman v Queen Elizabeth Hospital, UKEAT/0509/12/JOJ. In respect of the "costs of costs" award, the tribunal had not considered whether the sum of £20,000 was warranted having regard to the nature, gravity and effect of the conduct which gave rise to the award; or if it had considered that, it had not sufficiently explained its decision in that respect.
Victimisation: Tribunal incorrectly applied burden of proof provisions and rejected protected act
In Edwards v Unite the Union and Others [2024] EAT 151, the Employment Tribunal was found by the EAT to have erred in its approach to the burden of proof. The Claimant had been employed as an employment law solicitor for the RMT. He wished to pursue proceedings against the RMT. He was a member of the Unite the Union ("the Union") and sought to obtain "industrial and legal representation" from the Union against the RMT in respect of employment and personal injury claims. The Union took advice in respect of his claims and represented him in some of them. The Claimant was dissatisfied with aspects of the decision making and service/representation provided to him by the Union. He asserted that the Union and some of its officers had discriminated against him and subjected him to victimisation. He brought a number of claims before an Employment Tribunal. The Tribunal rejected his claims and concluded that the burden of proof had not shifted to the Union in respect of the victimisation allegation, and determined that one email the Claimant sent was not a protected act for the purposes of the claims of victimisation. The Claimant appealed.
The appeal was allowed, concluding that the Tribunal had erred in its application of the burden of proof provisions in consideration of relevant authorities and using guidance on the approach to the burden of proof provisions. As to the second ground of appeal, in context and applying the correct legal principles, and on a fair reading of the relevant email, the Claimant had made an allegation of disability discrimination. The allegation was that the First Respondent had failed to adjust its processes and that as a result, the Claimant, a disabled person, suffered harm. This could be understood to be an allegation of disability discrimination.
Victimisation: Substantial lack of medical evidence and self-diagnosis not enough for high value remedy claim
In McInerney v Nottinghamshire Healthcare NHS Foundation Trust [2024] EAT 158, having been awarded compensation in respect of remedy for a successful claim of unfair constructive dismissal, the Employment Tribunal (ET) made a further reserved judgment in respect of the remedy for victimisation claim which amounted to £20,000 for injury to feelings, £10,000 for aggravated damages (which were not challenged) and £23,344.30 for loss of earnings, against which Dr McInerney appealed. The final schedule of loss submitted by the appellant put her losses at £2,114,140.90 gross. The EAT dismissed her appeal against the findings made in this further reserved judgment by the ET.
The appellant had been employed by the respondent NHS Trust as a Consultant Forensic Psychiatrist at a hospital until her retirement. The appellant brought two claims in the ET, alleging acts of victimisation that led to her resignation. Her victimisation claim was based on the respondent's refusal to consider her application to work on a part-time basis as Forensic Psychiatrist in the respondent's Forensic Gender Clinic and, specifically, refusing to allow her to apply for the role, not acknowledging or considering her subsequent application and not offering her the role. She contended that her mental health issues, allegedly caused by the victimisation, prevented her from working until the age of 75, as she had intended. The appellant succeeded in both complaints. The ET was highly critical of the actions of the respondent that resulted in the appellant's resignation, concluding that the respondent had fundamentally breached the claimant's contract of employment.
The ET found as fact that the appellant had not suffered a loss of confidence because of being victimised that prevented her from undertaking medico-legal work. Among other things, the appellant submitted that the ET failed to apply a percentage chance approach to the medico-legal loss or had otherwise failed to give adequate reasons as to its decision on that point. The EAT held that the ET did not err in law in failing to apply a percentage chance approach to the medico-legal loss. On a proper reading of the judgment, the ET found as a fact that the appellant had not suffered a fundamental loss of confidence that prevented her from carrying out medico-legal work. The ET had been entitled to consider the lack of significant supporting medical evidence to support the very substantial asserted losses (a single letter from a doctor – Consultant Psychiatrist in Psychotherapy, no longer practising) and that it was a significant omission. This is a very high value claim which primarily rests with the appellant's financial losses she says arise as a result of her mental health issues cause by the victimisation by the respondent, and as a consequence, the ET consider medical evidence to be essential to enable proper consideration of the effect of the victimisation on the appellant's mental health. She had also relied on her own evidence, as a Consultant Psychiatrist, but relying on self-diagnosis in such a high claim would in itself raise potential issues, not least being the cynical view that she would know what to say to support her own claim. Further, the reasons of the ET had been more than sufficient for the appellant to understand why she failed in that element of the claim for loss of earnings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
