Dr Therese Mary William v Lewisham and Greenwich NHS Trust
[2024] EAT 58
Toby Nicol v World Travel and Tourism Council & Ors
25 March 2024
[2024] EAT 42
Employment Appeal Tribunal
An employee was fired and claimed it was because he blew the whistle on his boss. A court found the first hearing made mistakes, but those mistakes didn't change the final result: the employee lost his case. The court also clarified the rules about when an employee is protected by law for whistleblowing.
Key Facts
- •Toby Nicol (claimant/appellant) was dismissed from World Travel and Tourism Council (WTTC) on 14 October 2019.
- •Nicol claimed unfair dismissal and detriment due to protected disclosures (PDs) under the Employment Rights Act 1996.
- •The Employment Tribunal (ET) dismissed Nicol's claims.
- •Nicol appealed the ET's decision on several grounds.
- •The ET found that Nicol had made inappropriate sexualised comments towards a colleague, although this was not a point explicitly raised in the case.
Legal Principles
Employment Tribunals must act fairly and justly, ensuring parties know the case they must meet. Tribunals should not investigate admitted facts unless permission to withdraw the admission is granted.
Akhtar v Boland [2015] 1 All ER 664, Griffiths v TUI (UK) Ltd [2023] 3 WLR 1204
For a disclosure to be a qualifying disclosure under s.43B ERA 1996, it must meet several criteria, including being made in the reasonable belief that it is in the public interest and tends to show a breach of legal obligation. A sufficient factual content and specificity are required.
ERA 1996 s.43B, Williams v Michelle Brown AM UKEAT/0024/19, Kilraine v London Borough of Wandsworth [2018] ICR 1850, Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540, Simpson v Cantor Fitzgerald Europe [2020] EWCA Civ 1601
In unfair dismissal claims under s.103A ERA 1996, the focus is on whether the making of the protected disclosure was the reason (or principal reason) for dismissal; the employer's belief about the disclosure's protected status is irrelevant.
ERA 1996 s.103A, Abernethy v Mott, Hay and Anderson [1974] ICR 323 CA, Beatt v Croydon Health Services NHS Trust [2017] IRLR 748
Onward communication of a protected disclosure requires sufficient detail for protection to apply; merely knowing a disclosure was made is insufficient. Employers must have some knowledge of the substance of the complaint.
ERA 1996 s.43A, s.43B, s.103A, Nagarajan v London Regional Transport [2000] 1 AC 501
When assessing whether a disclosure was in the public interest, tribunals must not substitute their own view for the worker's reasonable belief; this assessment has both subjective and objective elements.
Chesterton Global Ltd v Nurmohamed [2018] ICR 731
Outcomes
Appeal allowed in part, dismissed in part.
The ET erred in deciding on a point (PD3) not in issue and by finding Nicol made inappropriate sexualised comments without sufficient evidence or challenge. However, these errors did not affect the overall conclusion on dismissal or detriment.
ET's finding that PD3 was not made on 14 August 2019 overturned.
The respondents admitted the disclosure in their Grounds of Resistance; the ET should not have investigated this admitted fact.
ET's finding regarding inappropriate sexualised comments overturned.
The point was not put to Nicol in cross-examination; the ET's finding was unfair.