Automated Summary
Key Facts
The claimant, Mr. M Chesworth, made protected disclosures to his employer (Time Specialist Support Limited) and the Information Commissioner's Office (ICO) about data protection violations related to sending client profiles via email to private devices. The respondent withheld work sessions for December 2016 and January 2017, leading to allegations of detriment. The claimant was dismissed for gross misconduct after allegedly soliciting private bookings from a client. The tribunal unanimously dismissed the detriment claim and, by a majority, found the unfair dismissal claim not well-founded, attributing dismissal to the private bookings issue rather than protected disclosures.
Issues
- The Tribunal needs to establish whether the January 2017 detriment, which occurred more than three months after the claim form was presented, is part of a series of similar acts or failures where the last occurred within the prescribed time period.
- The Tribunal must consider if the claimant's presentation of the January 2017 detriment complaint within a further reasonable period was justified, given the circumstances.
- The Tribunal must determine if the claimant made a protected disclosure during a verbal discussion with Mr Haworth at the start of employment, during a six-month appraisal in July 2015, in an email to Ally Somers on 13 November 2016, in a telephone call to the ICO on 9 November 2016 and/or an email to the ICO on 15 November 2016, and in his written grievance of 12 December 2017.
- The Tribunal must assess if the respondent's decision not to allocate the claimant any work sessions for December 2016 constitutes a detriment under section 47B of the Employment Rights Act 1996.
- The key issue is whether the respondent's dismissal of the claimant was because he made protected disclosures, as per section 103A of the Employment Rights Act 1996.
- The Tribunal must determine if the respondent's failure to allocate January 2017 sessions, despite a prior promise, amounts to a detriment under the relevant legislation.
Holdings
- The Tribunal unanimously dismissed the claim of detriment in employment on the ground of a protected disclosure, finding it was out of time and not part of a series of similar acts. The claimant's December 2016 sessions were reinstated, and the January 2017 sessions were determined not to be a detriment linked to protected disclosures.
- By a majority (Ms. V Worthington dissenting), the Tribunal dismissed the unfair dismissal claim, concluding the principal reason for dismissal was the claimant's alleged private bookings solicitation, not protected disclosures. The minority found the timeline and procedural flaws indicated the ICO disclosure was the principal reason.
Legal Principles
- For unfair dismissal claims under Section 103A, the claimant must prove on the balance of probabilities that the principal reason for dismissal was a protected disclosure. The tribunal applied the Igen v Wong inference framework to assess whether the stated reason was false or incomplete.
- The tribunal applied the criteria for protected disclosures under Part IVA of the Employment Rights Act 1996. A disclosure qualifies if it reasonably shows a failure to comply with legal obligations (e.g., data protection laws) and is made in the public interest. The Cavendish Munro v Geduld requirement for concrete factual information, not mere allegations, was also considered.
- Under Section 48(2) of the Employment Rights Act 1996, the employer bears the burden of proof to demonstrate that any act or deliberate failure to act was not done on the ground of a protected disclosure. This applies to detriment claims, requiring the respondent to establish that protected disclosures had no material influence on decisions.
Precedent Name
- Cavendish Munro Professional Risk Management Limited -v- Geduld
- NHS Manchester v Fecitt
- Igen Limited v Wong
- Abernethy v Mott, Hay and Anderson
- Shamoon v The Royal Ulster Constabulary
Cited Statute
- Employment Rights Act 1996
- Equality Act 2010
- Data Protection Act 1998
Judge Name
- Employment Judge Franey
- Ms L Atkinson
- Ms V Worthington
Passage Text
- The minority view of Ms Worthington was that the claimant had proven from the timeline, and from the host of flaws and discrepancies... that the principal reason was the fact he had complained to the ICO.
- We unanimously concluded that the complaint about the first detriment failed on the merits... the decision not to allocate work in December 2016 was based on the claimant's refusal to update profiles and attend meetings, not his protected disclosure.
- By a majority, the Tribunal concluded that the principal reason for the dismissal of the claimant was the belief that he had solicited private bookings from the service user whose mother was Lisa, and therefore the complaint that this was a dismissal because of a protected disclosure failed and was dismissed.