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4th August 2016

Automatically Unfairly Dismissed

The Employment Appeals Tribunal has held that an employee was automatically unfairly dismissed for making protected disclosures even though the individual who dismissed the employee did not know about the protected disclosure.

The Employment Rights Act 1996 states that a worker must not be subjected to any detriment by their employer because they have made a protected disclosure. If the main reason for the dismissal of an employee is because they have made a protected disclosure, the dismissal will be automatically unfair.

In the case in question, the employee worked for the employer for over a year until she was dismissed. Shortly after she had joined the employer, she accompanied a colleague to a meeting with a customer. The employee suspected that her colleague had broken company rules and also the requirements of its regulator. She therefore sent emails to her team leader notifying him of her suspicions. She met with the team leader who questioned her understanding of the rules and advised that she admit her mistake and to put her retraction of the allegations in writing.

The team leader thereafter asked the employee in question to attend weekly monitoring meetings and sent her an ‘unattainable list of requirements’. She was asked to compile a list of key clients from her previous employment and, fearing that she should not make such a disclosure, she contacted HR to complain. The behaviour of the team leader towards the employee did not improve and she complained again to HR due to harassment and bullying.

The employee thereafter went on sick leave and raised a grievance and the employer offered her a termination package which the employee rejected.

Another manager who had had no previous involvement was appointed by the employer to review the employee’s performance. No mention was made of previous protected disclosures made by the employee. This manager excluded her grievance and the employee was dismissed due to poor performance.

The employee complained to the Tribunal that she had been dismissed because she had made protected disclosures. The Tribunal found that there had not been an automatically unfair dismissal because the manager had not been aware of the background and genuinely believed that the employee performed badly.

The employee appealed to the Employment Appeal Tribunal (EAT) which held that a decision made by one person in ignorance of the true facts and which is manipulated by someone else in a managerial position responsible for an employee, who is in possession of the true facts, can be attributable to their employer. In this case, the team leader was the employee’s line manager and the employee made protected disclosures to him and was deliberately subjected to detriment thereafter. The team leaders mislead the manager about the disclosures.

The EAT found that the team leader’s motivation had to be taken into account and found that the dismissal had been automatically unfair.

The case now arguably makes it more difficult for employers to avoid a finding of an automatically unfair dismissal and highlights the importance of proper record keeping and dialogue in grievance and disciplinary procedures.


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