It is automatically unfair to dismiss an employee if the main or principal reason was because they made a protected disclosure (blew the whistle). In Secure Care UK Ltd v Mott, the Employment Appeal Tribunal (EAT) held that tribunals must apply the “main or principal reason test” when they identify a causal link between the disclosures and the dismissal rather than the test required to establish detriment.
In early July 2018, Mr Mott started work as the Logistics Manager with Secure Care Ltd, a company providing transport services to NHS Trusts for people with mental health problems. Soon after taking up the job, he started raising concerns about staff shortages and the fact that staff were not being given adequate rest breaks. Following a management announcement in August that a number of posts would have to be cut, Mr Mott raised further concerns about staffing levels.
On 26 September, he was instructed to tell a client that the company had cover for an assignment when, in fact, they did not. Mr Mott was very unhappy about this and told his manager that the company was in breach of Care Quality Commission Regulations, health and safety law and the Working Time Regulations. The next day he was called into a meeting and told he was at risk of redundancy. Following a consultation process, his redundancy was confirmed in a letter dated 7 November 2018.
Mr Mott claimed that he had been unfairly dismissed by reason of making protected disclosures under section 103A Employment Rights Act (ERA) 1996.
Section 103A ERA states that: "An employee who is dismissed shall be regarded … as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.
Section 47B ERA states that: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his [sic] employer done on the ground that the worker has made a protected disclosure”.
The tribunal judge found that of the nine disclosures that Mr Mott claimed to have made, three qualified as protected disclosures. She then had to identify a causal link between those disclosures and his dismissal.
According to the decision of the Court of Appeal in Fecitt v NHS Manchester, there is a causal link if the protected disclosure has more than a trivial influence on the decision to dismiss. Although there was a genuine redundancy situation in this case, the judge held that the concerns raised by Mr Mott had “a more than trivial impact” on the decision to select him for redundancy.
She therefore concluded that the decision to make him redundant had been materially influenced by the protected disclosures he had made and his claim under section 103A succeeded. The company appealed on the basis that the judge had applied the causation test under section 47B, as opposed to the test in section 103A.
The EAT agreed that the tribunal judge had applied the wrong causation test in that she had relied on the “materially influences” test for claims of detriment and not the ‘sole/principal reason’ test required under the terms of section 103A.
It also found that the tribunal judge had taken into account all the concerns raised by Mr Mott with his employer when considering causation, rather than just the three that she had found to be protected disclosures.
The EAT remitted the case back to the tribunal to consider these matters.