Secure Care UK Limited v Mr R Mott

The Employment Appeal Tribunal (“EAT”) has held that if an employee is dismissed by reason of redundancy having made protected disclosures, the dismissal is not automatically unfair if the decision was ‘materially influenced’ by the disclosures.

The Claimant in this matter, Mr Mott worked as a Logistics Manager for Secure Care UK Ltd. He made nine protected disclosures, relating to staff shortages, rest breaks and long working hours, which he said endangered health and safety. The following day after making the ninth disclosure, Mr Mott was informed that he was at risk of redundancy. He was then dismissed several weeks later.

He claimed under section 103A Employment Rights Act 1996 (“ERA”) that he had been automatically unfairly dismissed by reason of making the protected disclosures. The Employment Tribunal (“ET”) upheld his claim, accepting that three of the disclosures qualified as protected disclosures, and even though there was a genuine redundancy situation, Mr Mott’s concerns/disclosures had had “a material impact on his selection”.

However, the EAT disagreed on the basis that:

  1. The ET had applied the wrong test, using the ‘materially influences’ test (which is used in claims for whistleblowing detriment, short of dismissal), rather than the ‘sole or principal reason’ test required for under s103A ERA in considering automatic unfair dismissal whistleblowing claims.
  2. It also found that the ET had failed to distinguish the impact of the three protected disclosures, from the impact of all nine disclosures when assessing the reason for dismissal.

The case has now been remitted back to the ET. This case sets an important reminder that the test for causation in dealing with whistleblowing detriment claims is not the same as that for whistleblowing dismissal claims. 

Read the full judgment here.

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