STOP PRESS – BARNABY LARGE HAS EAT CASE REPORTED (UKEAT/0282/18/RN)
The Claimant had taken photographs of invoices she had seen during her work, which she considered established that she had not been told the truth by her employer about her pay and working hours. She provided copies of these photographs to her solicitor, who was assisting with her grievance, but was subsequently dismissed for breach of confidentiality. The ET accepted that the act of sending the photographed copies of the invoices to her solicitor was a protected act but found the Claimant’s dismissal was in no way related to that act; to the extent the Respondent had been aggrieved about her conduct in that regard, it was because she failed to demonstrate support in a time of financial hardship. When considering the Claimant’s complaint of unfair dismissal, however, the ET found that the reason for her dismissal was her conduct in photographing the invoices and then sending those images to her solicitor. Given the context, the ET did not find this was an act of gross misconduct but it held that the decision to dismiss did not fall outside the band of reasonable response given the Respondents’ sense of grievance about what was seen as a lack of trust and the Claimant’s perceived failure to demonstrate support in a time of financial hardship. The ET went on to find the dismissal had been unfair for procedural reasons but concluded that, if a fair procedure had been followed, there was still an 80% likelihood that the Claimant would have been dismissed. The ET further held that the Claimant’s conduct was such that there should be a further 80% reduction. The Claimant appealed.
Held: allowing the appeal
In considering the complaint of unfair dismissal, the ET’s findings as to the reason for the dismissal were such that it was inconsistent for it to hold that the protected act (the Claimant’s act of sending copies of the invoices to her solicitor) had not materially influenced the decision: that was an unavoidable consequence of its finding as to the reason for the dismissal and it was perverse of the ET to find otherwise. The ET’s decisions relevant to the Polkey reduction and on contributory conduct were also unsafe. The ET had failed to grapple with the question of seriousness in relation to the Claimant’s conduct, failing to demonstrate that it had any regard to the context in which the Claimant had passed on the photographs (for a specific purpose related to getting advice and assistance in her grievance, and sent to a solicitor, who was bound by their own duty of confidence). As for its finding on contributory fault, that was inadequately reasoned given that - in the particular context the ET had itself identified - there was no explanation as to why the Claimant’s actions had been blameworthy.
In relation to the victimisation claim, given the ET’s findings of fact, there was only one possible outcome and the Judgment in that regard would be set aside and substituted by a finding that the victimisation claim relating to the Claimant’s dismissal was upheld. The questions of any reduction under Polkey and/or for contributory fault would be remitted for reconsideration to a differently constituted ET.
For a full transcript of Judgement please click on the below links https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2019/0282_18_0705.html&query=(elston)