T Amber v West Yorkshire Fire and Rescue Service
[2024] EAT 146
Alexander Barnett v H & H Gelato Limited & Ors
11 April 2024
[2024] EAT 62
Employment Appeal Tribunal
A worker blew the whistle on his boss. A judge made him pay a deposit to continue his case. An appeals court said the judge didn't give enough reasons for part of the deposit, so sent it back to the judge to reconsider.
Key Facts
- •Mr. Barnett, a shift leader at H & H Gelato, made a whistleblower complaint to Creams (franchisor) about the owner's behavior.
- •He alleges detriment (comments by Mr. Dhanili suggesting Creams would protect H & H) and failure to investigate his complaint.
- •He claims protected disclosure detriment, victimisation, and automatic unfair dismissal.
- •The Employment Judge ordered Mr. Barnett to pay a deposit to continue pursuing his claims.
- •Mr. Barnett appeals the deposit order.
Legal Principles
Deposit Order under Employment Tribunal Rules of Procedure 2013, Rule 39
Employment Tribunal Rules of Procedure 2013, Rule 39
Protected disclosure detriment under section 47B of the Employment Rights Act 1996
Employment Rights Act 1996, section 47B
Victimisation under section 27 of the Equality Act 2010
Equality Act 2010, section 27
Automatic unfair dismissal under section 103A of the Employment Rights Act 1996
Employment Rights Act 1996, section 103A
A detriment is inflicted “on the ground” of a protected disclosure if the protected disclosure materially influences the employer’s treatment of the whistle-blower
NHS Manchester v Fecitt & Ors [2012] ICR 372
Outcomes
Appeal partially successful.
Insufficient reasons given by the Employment Judge for the deposit order concerning the detriment based on Mr. Dhanili's comments. The judge's reasoning relied on an implausible assumption about a breach of confidentiality, and the lack of clarity regarding the basis for the deposit order concerning this specific detriment justified the appeal.
Appeal unsuccessful regarding the deposit order for the failure to investigate claim.
The Employment Judge provided sufficient reasons for concluding that Mr. Barnett had little reasonable prospect of success on this claim. The judge's assessment considered the plausibility of Creams acting as H&H's agent and the content of Mr. Dhanili's alleged comments.
Appeal unsuccessful regarding the automatic unfair dismissal claim.
The Employment Judge reasonably considered the contradictory resignation letter and the existence of pre-existing reasons for resignation (Mr. Awiezi's conduct) when assessing the prospect of success.
Remitted to the Employment Tribunal.
The case is sent back to the Employment Tribunal to reconsider the deposit order concerning the claims based on Mr. Dhanili's comments, given the insufficiency of reasons provided by the Employment Judge.