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Supreme Court decision in Jhuti  does not apply to causation in detriment claims

In William v Lewisham and Greenwich NHS Trust [2024] EAT 58, the EAT upheld the dismissal of an employee’s whistleblowing detriment claim, brought under section 47B of the Employment Rights Act 1996, there was no protected disclosure made.

The Appellant (A), was a consultant paediatrician and neonatologist at University Hospital Lewisham which is operated by the Defendant (D). A had a poor relationship with one of the other doctors (E) employed by D and they had both filed incident reports against each other. On 30 July 2019, there was a confrontation between them, some of which was filmed by E on her mobile phone and posted on a consultant WhatsApp group with criticism of A. Amongst other things, A asserted that, on 13 July 2019, E did not provide a handover which had the effect of leaving a chickenpox alert on the neonatal ward (the handover disclosure).

The 30 July incident was independently investigated by H, a Deputy Medical Director for Performance and Professional Standards. H suspended A until 30 September 2019 and during this time she was excluded from the hospital site.

On 2 October 2019, a further report was filed about the 30 July incident. The Trust’s system erroneously recorded that this had been made by A and, assuming that she had entered the premises in breach of the exclusion to file it, H excluded A again and widened the investigation to deal with the question of whether she entered the site and then lied about it.

On 12 February 2020, H informed A that she needed to respond to the allegations that she had provided misleading information about the 30 July incident. This would require a disciplinary hearing. Four days later, A updated her grievance to include allegations of bullying and harassment.

The result of the disciplinary hearing was A receiving a written warning. A’s appeal concerning the warning was rejected. In addition, only part of A’s grievance was upheld.

A subsequently brought a claim in the Employment Tribunal (ET) under section 47B of the Employment Rights Act 1996.

The ET concluded that the handover disclosure was a protected disclosure as it showed that health and safety was or could be endangered. However, although A was subject to detriment via the exclusion and investigation, these acts were not motivated by the fact A had made the handover disclosure. Additionally, the written warning, although harsh, was not linked to the handover disclosure.

The Tribunal considered the decisions in Malik v Centros Securities plc EAT/0100/17 and Royal Mail Group v Jhuti[2019] UKSC 55.

In Malik, Mr Malik argued that, even if those responsible for his detrimental treatment did not know protected disclosures had been made and therefore could not have been influenced by them, if their treatment of him had been influenced by someone who did have that knowledge and who had been influenced by the protected disclosures, the disclosures had materially influenced the decision to treat him detrimentally. The EAT disagreed, holding that “importing the knowledge and motivation of another to that decision maker” was not acceptable when questioning why the decision maker acted as they did.

The Supreme Court in Jhuti, ruled that in enacting section 103A of the Employment Relations Act 1996[1], Parliament had clearly intended that a dismissal should be unfair where the real reason for it was the making of a protected disclosure, and a person superior to the employee decided that the employee should be dismissed for one reason but hid it behind an invented reason. If the ultimate decision-maker adopted the invented reason, the Tribunal must examine the invented reason and identify the real one. The Supreme Court did not refer to Malik.

The ET in William distinguished Jhuti and stated it was bound by the decision in Malik  reasoning that applying different rules to dismissal claims under section 103A and detriment claims under section 47B was understandable because a Claimant in the latter could claim against the alleged manipulator whilst a Claimant in the former could not.

The EAT dismissed A’s appeal stating the Tribunal had not erred when stating it was bound by Malik. Applying British Gas v Lock [2016] ICR 503, the appeal judge concluded that the EAT should only depart from a previous EAT decision if a relevant legislative provision or binding decision of the Courts had not been considered, if the previous decision was manifestly wrong, or if there were other exceptional circumstances. None of these applied in this case. In addition, having compared the unfair dismissal regime under section 103A with the detriment regime provided by section 47B, the EAT concluded that the Supreme Court’s decision in Jhuti did not mean to change and does not logically change, the interpretation of section 47B or the other sections in Part IVA of the ERA 1996.

Paternity Leave (Bereavement) Bill – third reading

On 26 April 2024, the Paternity Leave (Bereavement) Bill in the House of Commons confirmed that a bereaved partner or father will have 52 weeks’ leave available during the first year of their child’s life, from the day on which the mother or primary adopter of the child has died.

New Order allows for uplift on a protective award

The draft Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024 has been published, amending Schedule A2 to the Trade Union and Labour Relations (Consolidation) Act 1992. The Order will come into force on 18 July 2024.

The order provides that if a claim for a protective award is brought by affected employees or their representatives, and a relevant code of practice applies, if the employer has unreasonably failed to comply with the code, compensation can be increased by up to 25%. In cases where the employee who has not complied with a relevant code, the compensation can be reduced by up to 25%.

Multi-claimant litigation

In Aird v Asda Stores Ltd and others [2024] EAT 52, the EAT stated that, in multi-claimant litigation, the Tribunal had been correct in refusing an order granting part of a group of Claimants represented by one law firm the same access to documents as a different group of Claimants represented by another law firm.

Section 103A provides that if an employee is dismissed and the reason or principal reason for the dismissal is that the employee made a protected disclosure, the dismissal is automatically unfair.

Contact us for advice on the issues raised in this Newsletter.

The topics covered in this Newsletter are complex and are provided for general guidance only.  It does not provide a full statement of the law.  Therefore, if any of the circumstances mentioned in this Newsletter have application to you, seek expert legal advice.

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