It is well-established in law that tribunals must provide reasons for how they reach their decision. In Fry v Kingswood Learning & Leisure Group Ltd the Employment Appeal Tribunal (EAT) held that the tribunal only had to explain why it accepted the employer’s argument about the date when the dismissing manager became aware that an employee had blown the whistle, as opposed to other dates that had been provided.
Basic facts
Ms Fry, who started work for the company in mid-November 2018, made two protected disclosures (blew the whistle) in March and April 2020 about the alleged sexual harassment of two members of staff by a manager, Mr Husband.
Ms Fry was told by Mr Husband on 20 July that the company needed to make “urgent savings” and that her job was at risk of redundancy. After two consultation meetings on 22 and 24 July, her employment was terminated at the end of July, effective from 31 October.
At some point in October 2020, prior to the termination of her employment, she lodged a grievance arguing that the protected disclosures had played a part in the decision to dismiss her. She then submitted a tribunal claim for automatically unfair dismissal on the same basis.
Tribunal decision
The tribunal noted that Ms Fry could not provide any evidence to show that Mr Husband had been aware of the protected disclosures prior to the decision to dismiss her. Equally, it noted that Mr Husband had referred to a number of different dates about when he learned of the disclosures, only one of which was before the dismissal decision, which he had set out in paragraph 12 of his own statement.
Given these inconsistencies, the tribunal relied on the evidence of the People Director, Mr Watson, who testified that Mr Husband had not been aware of the allegations until Ms Fry submitted her grievance in October 2020. It, therefore, concluded that he could not have been influenced by the disclosures when he decided to make her redundant.
She appealed, arguing that it was perverse to decide that he found out about the disclosures after the decision to dismiss her given that he himself had said that he knew about them beforehand. It followed that the tribunal should have relied on the date in paragraph 12 of his statement over and above all the other dates he had provided.
EAT decision
Although Mr Husband’s evidence was “deficient” and “inconsistent”, the EAT held that “a trial is dynamic” and evidence therefore “ebbs and flows”. That being so, paragraph 12 of his statement had to be viewed against paragraph 10 in which he stated: "To this day I have no idea who made the complaint or what the alleged remark was”.
In addition, there were a number of other possible dates when he said he became aware of the disclosures. These included the date when he saw the grievance note in October 2020; when he received the bundle of evidence for the claim in March 2021; and sometime after the preliminary hearing in March 2021 and before early May 2022 when statements were exchanged.
Given the different dates, the EAT held that there was no principle of law which required the tribunal to conclude that the date in paragraph 12 of his statement was the date it had to accept. It was entitled to decide on the date provided by Mr Watson after it had made findings of fact that Ms Fry did not have any evidence that someone else told Mr Husband earlier in the process.
As the tribunal was only required to give reasons for the date that it found and not for the dates it did not, its decision could not be held to be perverse. The EAT, therefore, dismissed the appeal.
Comment
The EAT’s decision highlights the difficulties in presenting a claim for automatic unfair dismissal for having blown the whistle. The lack of evidence presented by the claimant at the tribunal was clearly a problem from the outset as she could not corroborate her case that the decision maker, Mr Husband, was aware of her protected disclosures against him when he made her redundant.
It’s worth noting that, in refusing the appeal, the EAT stated (at paragraph 40) that: “there is no principal in law that the Employment Tribunal was bound to conclude that the date in his statement was the date that it had to accept and, given the choice of a number of different dates, it seems to me that it is inarguable that the Tribunal erred in choosing the date that it did. This is all the more so because the only one of the other four dates was corroborated by another witness”.