Mr E Huang v Dplay Entertainment Ltd and others (England and Wales : Public Interest Disclosure) -[2023] UKET 2201038/2022- (4 July 2023)

Key Facts

Issues

• The tribunal needed to determine if the dismissal was genuinely for redundancy or was a sham to cover up retaliation for the claimant's protected disclosure about fertility clinic emails and his refusal to sign new confidentiality terms.
• The tribunal assessed if the redundancy process was fair, including whether the claimant was genuinely consulted about the redundancy, whether the process was rushed, and if reasonable efforts were made to find alternative roles for the claimant.
• The tribunal determined if the claimant's disclosure to Kelly Cole about fertility clinics contacting him with his personal information, linking it to SK, constituted a protected disclosure under UK whistleblowing law.
• The tribunal assessed if the claimant reasonably believed his disclosure about fertility clinic emails was made in the public interest, which is a requirement for protected disclosure under the Employment Rights Act 1996.
• The tribunal determined if the claimant suffered detriment (e.g., not investigated, selected for redundancy, rushed process) because he made the protected disclosure about fertility clinic emails.
• The tribunal assessed if the claimant's claims for unfair dismissal and detriment were presented within the statutory time limits under the Employment Rights Act 1996.

Holdings

Remedies

Legal Principles

• The employer bears the burden of proving the reason for any detriment suffered by an employee under section 48 of the Employment Rights Act 1996. This means the employer must demonstrate that the detriment was not caused by the employee making a protected disclosure.
• The case established key principles related to protected disclosures under the Employment Rights Act 1996, including the requirement that a disclosure must be made in the reasonable belief that it tends to show wrongdoing, that it is in the public interest, and that the protected disclosure was the sole or principal reason for dismissal. The tribunal also considered the material influence test for detriment claims.

Precedent Name

• Polkey v AE Dayton Services
• Babula v Waltham Forest College
• Royal Mail Group v Jhuti
• Barclays Bank v Kapur
• ALM Medical Services v Bladon
• Chesterton Global v Nurmohamed
• De Souza v AA
• Cavendish Munro v Geduld

Cited Statute

• Data Protection Act 2019
• General Data Protection Regulation 2016/679
• Employment Rights Act 1996
• Civil Rights Act of 1964
• Equality Act 2010

Judge Name

• Mr R. Baber
• Mr D. Kendall
• Employment Judge Goodman

Passage Text

• 94. The timing of the decision suggests it was the reasons given. Patrick Healy was resigning because of the frustrations of technical solutions having to pass between teams and taking a very long time. It was the claimant who passed the news on, on 3 August, even before the formal resignation on 9 August. Mr Saxena's response to the problem was 'I will own fixing this', and his fix was to make the teams work alongside reporting to the same manager. It was an organisational solution, resulting in reduced responsibility for the claimant and increased responsibility for others. He made his decision very quickly. On 9th August 2021 he was already discussing a script with Hannah Lucille, but probably not much before then, as she would have been able to use a standard template for her draft. He explained his rationale at the first meeting. The claimant endeavoured to put forward an alternative solution that would not result in redundancy at the next meeting. But while the claimant's solution was to examine the underlying basis of the technology, Mr Saxena saw the problem as identified by Patrick Healy as one of relationships between the teams which could be fixed by reorganising how they worked. Mr Saxena's solution may not have been the only one, but in our view it was genuine. Other managers may have taken longer to think about it. Other managers may have found a different solution. It cannot be said that reorganising the teams was irrational. The result of the organisation decision was that the first respondent's need for employees of a particular kind, that is, at senior vice president level which required more people to manage than the claimant was left with, had diminished.
• 68. He did not say the company database had been compromised, or that Amy Girdwood was responsible. His ground for thinking the fertility clinic emails came from her relies on her access as HR head to personal information about him, and a supposition that she knew the content of the anonymous whistleblower letter, but as of the 12th July he had no grounds for thinking that clinics had been given his personal telephone number, nor did he say that Amy Girdwood would know his London address - this was not said until his redundancy appeal letter, and as we have found, Discovery did not have the London address, and it could easily be discovered without access to personnel records. At best he was saying that his work e-mail address had been used, but that could be known to anyone, within or without the organisation, who had been sent or copied in to an e-mail from or to him. This does not amount, expressly or by implication, to a 'security lapse', as the claimant submitted. We know he believed she was the source of the mystery letter in December 2019, but as a tribunal we are concerned that this belief was not reasonable. Someone as senior as Amy Girdwood is unlikely to have used such a bizarre means contact him with threats. If she thought there as something going on with SK she could simply have called him in for discussion. What the claimant has told the tribunal and others about this letter - always supposing it existed -suggests that it came from a crank, or perhaps a malicious fellow employee, or even SK.
• 104. The tribunal panel was, like the appeal manager, concerned that the claimant was dismissed abruptly when he did not join what was intended to be, and which he almost certainly knew, was to be the dismissal meeting. The claimant had explained that Wednesday would be difficult as he had to see his mother's doctors. He cancelled simply by not accepting the Outlook link. The respondent jumped to the conclusion on scant evidence that he was deliberately avoiding the meeting. HR may have decided this was an employee spinning out the process with grievances, but they should have known this was a difficult day and rescheduled. They could have done that next day, certainly within the week, without trouble. Even if the result was inevitable, the claimant was owed a meeting to tell him to his face.