Kealy v Westfield Community Development Association
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2023] EAT 96 |
| Year | 2023 |
| Court | Employment Appeal Tribunal |
2023 April 27; July 11
Judge
Employment - Protected disclosure - Qualifying disclosure - Claimant making disclosures to employer and externally - Claim of being subjected to detriments as result - Employment tribunal addressing issues as listed by parties - Correct approach to determining protected disclosure claims -
The claimant worked in a nursery as an early years co-ordinator for the respondent charity, which operated a large community centre providing educational services. She made disclosures to the respondent and externally. She asserted that, as a result of the disclosures, she had been subjected to detriments. She resigned and brought proceedings claiming protected disclosure detriment and dismissal, health and safety detriment and dismissal, dismissal for assertion of a statutory right and constructive unfair dismissal. The employment tribunal, having considered a list of agreed issues, dismissed all her claims. The claimant appealed on the ground, inter alia, that the tribunal had erred in finding that she had not made any disclosures qualifying for protection pursuant to section 43C (disclosure to employer) or 43G (disclosure in other cases) of the Employment Rights Act 1996F1.
On the claimant’s appeal—
Held, allowing the appeal, that, in determining protected disclosure claims, the Employment Rights Act 1996 made it clear that, to whomever a disclosure was made, it was first necessary to consider whether there was a “qualifying disclosure” as defined by section 43B; that only once that was established was it necessary to consider whether it constituted a “protected disclosure” pursuant to section 43C or 43G; that section 43G added a number of requirements in relation to external disclosures, including that the worker reasonably believed that the information disclosed, and any allegation contained in it, was substantially true, that the disclosure was not made for personal gain and that, in all the circumstances, it was reasonable to make the disclosure; that in the present case the list of issues presented by the parties was confused and had failed properly to identify whether, in the case of each disclosure, there had been a qualifying disclosure and, if so, whether it was protected under section 43C or 43G; that, in addressing the issues listed, the employment tribunal, inter alia, failed correctly to apply the “public interest” test in section 43B(1) and appeared to have conflated the requirements of section 43G; that, further, the employment tribunal’s judgment did not sufficiently explain how their decision had been reached; and that, accordingly, the matter would be remitted to a newly constituted employment tribunal for a full rehearing (post, paras 18–19, 25, 26, 30–32, 42, 44, 46, 55, 56).
Per curiam. The appeal demonstrates the vital importance of structured decision-making, particularly when dealing with protected disclosure claims. The appeal also demonstrates that things can go wrong if a list of issues is adopted that does not fit properly with the statutory provisions (post, para 1).
The following cases are referred to in the judgment:
Burns v Royal Mail Group plc (formerly Consignia plc)[
Chesterton Global Ltd (trading as Chestertons) v Nurmohamed
Darnton v University of Surrey[
Meek v City of Birmingham District Council[
Practice Direction (Employment Appeal Tribunal: Procedure) 2018[
Soh v Imperial College of Science, Technology and Medicine UKEAT/350/14 (unreported) 3 September 2015,
Williams v Michelle Brown AM UKEAT/44/19 (unreported) 29 October 2019,
The following additional cases were cited in argument:
Ibrahim v HCA International Ltd
Salford Royal NHS Foundation Trust v Roldan
Sandle v Adecco UK Ltd[
Tullett Prebon plc v BGC Brokers LP
APPEAL from an employment tribunal sitting at East Midlands
By a decision sent to the parties on 11 January 2022, an employment tribunal (Employment Judge Blackwell, Mrs J Bonser and Mr C Goldson) dismissed claims for protected disclosure detriment and dismissal, health and safety detriment and dismissal, dismissal for assertion of a statutory right and constructive unfair dismissal brought by the claimant, Mrs R Kealy, against the respondent, Westfield Community Development Association.
The claimant lodged grounds of appeal. By an order dated 16 June 2022, Judge Keith permitted the appeal to proceed to a full hearing. On application from the respondent, Judge Keith made a further order on 14 September 2022 requesting the employment tribunal answer seven questions. After the employment tribunal provided their answers, the claimant applied to add a further ground of appeal which was allowed by Eady J (President) on 1 March 2023. By amended grounds of appeal, the claimant appealed on the grounds that the employment tribunal (1) had misapplied and/or misinterpreted section 43G(1) of the Employment Rights Act 1996 in finding that the claimant had not made any disclosures qualifying for protection, on the basis that it found the claimant had made a factually incorrect allegation in communications which were alleged to amount to qualifying disclosures; (2) had misapplied and/or misinterpreted section 44 of the 1996 Act by applying the different legal test applicable to claims of constructive unfair dismissal; (3) had acted perversely in making conflicting findings of fact; (4) had provided a judgment that was not compliant with Meek v City of Birmingham District Council[
On 15 March 2023, the respondent wrote to the Employment Appeal Tribunal stating that it did not wish “to resist the appeal any further and incur further costs in doing so” but that, if the appeal was successful, it intended to defend the claim in the employment tribunal. The claimant presented a proposed consent order, and the respondent wrote to the appeal tribunal on 3 April 2023 stating that the draft was agreed. Deputy High Court judge Mathew Gullick refused to make the consent order because it lacked clarity as to the error of law, if any, the parties agreed had been made.
The facts are stated in the judgment, post, paras 3–12.
Nicholas Bidnell-Edwards (instructed by
The respondent did not appear and was not represented.
The appeal tribunal took time for consideration.
11 July 2023. JUDGE JAMES TAYLER handed down the following judgment.
1 This appeal once again demonstrates the vital importance of structured decision-making, particularly when dealing with protected disclosure claims. The statutory provisions that deal with protected disclosures are somewhat complex but should not prove problematic if they are analysed carefully and logically. The appeal also demonstrates that things can go wrong if a list of issues is adopted that does not fit properly with the statutory provisions.
2 The appeal challenges a judgment of Employment Judge Blackwell, sitting with members, after a hearing on 27, 28 and 29 September 2021, with days in chambers on 3 November 2021 and 20 December 2021. The judgment was sent to the parties on 11 January 2022.
3 The respondent is a charity operating a large community centre providing educational services. It includes a nursery. The claimant began employment with the respondent as an early years co-ordinator on 1 October 2016.
4 The claimant asserted that she made nine protected disclosures. Disclosures 1–4 related to early years pupil premium funds (“EYPP”), and disability access funds (“DAF”) that the claimant asserted were not being spent (the funds disclosures). It appears that disclosures 1–3 were made to the respondent and disclosure 4 was made externally. Disclosures 5–9 related to a breakdown in the heating at the nursery (the heating disclosures). These disclosures appear to have been made externally, including to Ofsted.
5 The heating disclosures were also asserted to involve the claimant, in circumstances in which there was no health and safety representative or safety committee at her place of work, bringing to the respondent’s attention, by reasonable means, circumstances connected with her work which she reasonably believed were harmful or potentially harmful to health or safety.
6 The claimant asserted that as a result of the disclosures she was subject to seven detriments. The claimant asserted that she resigned on 4 December 2019 as a result of having been subjected to detriments 1–6. Detriment 7 post-dated her resignation.
7 The claimant brought a claim asserting protected disclosure detriment and dismissal, health and safety detriment and dismissal, dismissal for assertion of a statutory right and constructive unfair dismissal.
8 The employment tribunal dismissed all of the claims.
9 The claimant submitted grounds of appeal dated 21 February 2022. Judge Keith permitted the appeal to proceed to a full hearing by an order dated 16 June 2022. On application from the respondent Judge Keith made a Burns/Barke order [Burns v Royal Mail Group plc (formerly Consignia plc)[
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Mr C Sayany v Kensa Contracting Ltd: 6000360/2023
...each of the statutory elements in turn making it clear that it has done so (Martin v London Borough of Southwark EA- 2020-000432, Kealy v Westfield Community Development Association [2023] EAT 96 and Williams v Michelle Brown UKEAT/0239/20 60.8 The relevant elements are as follows:- 60.8.1 ......
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Mr P Hart v Porthaven Management Ltd and Porthaven Care Homes No 2 Ltd: 3312523/2021
...are therefore six “gateways” that can be used in making a qualifying disclosure. 33.The EAT recently held in Kealy v Westfield Community Development Association [2023] EAT 96 Case No: 3312523/2021 10.5 Reserved judgment with reasons – rule 62 March 2017 “There are two essential terms to con......