When considering an unfair dismissal claim for making a protected disclosure (blowing the whistle), the Employment Appeal Tribunal (EAT) has held in Oxford Said Business School v Heslop that the tribunal correctly identified the two different tests. It was also correct to decide that although the dismissal was not automatically unfair, it was constructively unfair.
Dr Heslop started work with the Oxford Said Business School (OSBS) in January 2016. In June 2018, she told her manager, Dr White, that she was concerned that the school might have breached its legal obligations to a major client which had commissioned projects from OSBS worth millions of pounds. She repeated her concerns to him on 13 or 14 August 2018, just before she went on holiday.
On 9 August 2018, a member of Dr Heslop’s team complained to Dr White about her poor leadership qualities and a general lack of morale in the team. A client director then came forward with further complaints about Dr Heslop on 16 August, as did others when prompted by Dr White.
Dr White set up a meeting in Dr Heslop’s absence for 8am on 6 September, her first day back from holiday. Without giving her any idea in advance of what the meeting was about, he told her that serious complaints had been made about her and that she “had lost the trust and confidence” of a “significant proportion” of her senior team. He refused to tell her what the concerns were, nor who had made them, but that she should stay away from work.
She resigned and claimed automatically unfair dismissal for making protected disclosures and unfair constructive dismissal on the basis that she had effectively been dismissed at the meeting with Dr White in September 2018.
Section 103A of the Employment Rights Act (ERA) states that it is automatically unfair to dismiss an employee “if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.
Section 47B 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”.
According to case law, section 47B is infringed if the protected disclosure “materially inﬂuences” (in the sense of being more than a trivial inﬂuence) the employer's treatment of the whistleblower.
The tribunal concluded that although Dr Heslop’s dismissal was “materially influenced” by the protected disclosures, they were not the “principal reason”. Instead, that was the allegations made against her.
However, although her claim of automatically unfair dismissal failed, the tribunal found that she had been constructively unfairly dismissed as Dr White’s actions were “materially influenced” by the protected disclosures. As such, these detriments were “done on the ground that” she had blown the whistle.
The business school appealed, arguing that the tribunal had not used the correct test when coming to its decision.
Dismissing the appeal, the EAT held that the tribunal had simply given “different answers to different questions and, in doing so, demonstrated how carefully and rationally it approached its task, analysing with a fine toothcomb and not simply applying a broad brush”. As such, it had made clear that it understood that the different outcomes required explanation.
The EAT concluded that the distinction drawn by the tribunal between the section 103A test and the section 47B test was perfectly valid based on the evidence and the primary facts that it had found.