February’s Employment Law Digest – Case law update

Whistleblowing and job applicants

In Sullivan v Isle of Wight Council, Miss Sullivan, a job applicant, attended two interviews with the respondent for two different roles, both of which she was unsuccessful with.

Around a month later, she filed an online crime report concerning an alleged verbal assault during the interviews. She also filed a report on the respondent’s confidential safeguarding helpline, in which she alleged that it had been repeatedly stated during the two interviews that she was “mentally insane”.

She also wrote to the CQC and her MP to complain about the interviews and to make allegations of financial irregularities concerning the operation of a trust and the alleged involvement of an employee of the respondent.

The respondent investigated and concluded there was no evidence of wrongdoing in the interviews. Miss Sullivan was told that a thorough investigation had been carried out, that the process had had a significant impact on the staff involved and that there was nothing further to be attained by allowing an appeal and therefore, that she was not entitled to appeal.

Miss Sullivan brought employment tribunal proceedings for whistleblowing (amongst other claims). She claimed that the letter to her MP regarding the allegations of financial irregularities was a protected disclosure and that she had suffered a detriment by being refused the right to a grievance appeal.

She accepted that, as a job applicant (and not a worker), she was not entitled to pursue a claim for whistleblowing under the Employment Rights Act 1996. However, she argued that the Act should be extended / interpreted to include her as an external job applicant.

The employment tribunal determined that it did not have jurisdiction to consider her complaints.

Miss Sullivan’s appeal to the employment appeal tribunal (EAT) was dismissed. The EAT held that:

• An external job applicant is not in an analogous situation with that of an internal applicant who has whistleblowing protection because of their status as a worker and who is already embedded in the workplace and makes a protected disclosure in that context.
• Further, Miss Sullivan was not in an analogous situation with an external applicant in the NHS, who is covered by whistleblowing legislation to protect those who raise issues of patient safety.
• Miss Sullivan’s proposed amendment / interpretation would not have ‘gone with the grain’ of the legislation and, had the position been otherwise, the nature of any required amendment would be for Parliament to deal with.

This case is about an external job applicant. Had Miss Sullivan already been working for the respondent and applying for the roles as an internal applicant, she would have had protection under whistleblowing legislation as a worker.

Anonymity in employment tribunal proceedings

In Z v Commerzbank AG, the employment appeal tribunal (EAT) considered the application of statutory anonymity under the Sexual Offences Amendment Act 1992 to employment tribunal proceedings.

• The claimant was dismissed after just over 6 months’ service with the bank. He brought a number of tribunal claims including allegations of sexual harassment and sexual assault by “Ms Q”, all of which were robustly defended by the bank and the other respondents.
• At the beginning of proceedings, the identities of the claimant and Ms Q were available on the public record and had no reporting restrictions. The respondents subsequently applied for an anonymity order and Restricted Reporting Order (“RRO”) for Ms Q. The next day, the claimant applied for an anonymity order and RRO in respect of himself.
• At a preliminary hearing, the judge made an anonymity order and an RRO in respect of the claimant of indefinite duration and in respect of Ms Q, limited duration.
• At the final hearing, the employment tribunal said the claimant’s account was false and made up. They dismissed all the claims, using strong language to describe the claimant’s lack of truthfulness.
• The tribunal varied the orders in respect of Ms Q to have indefinite effect and revoked the orders in respect of the claimant due to a material change of circumstances since the privacy orders that had been made. The allegations on which the claimant based his application for anonymity had been comprehensively dismissed and found to be false and in large part, made up.

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Take Me There

The claimant appealed on various grounds, including that the tribunal wrongly withdrew the protection.

The EAT found that the tribunal had correctly and lawfully decided to revoke orders (i) requiring the claimant to remain anonymous and (ii) imposing reporting restrictions preventing the disclosure of his identity, after his evidence was found to be false and his claims dismissed.

Neither the Sexual Offences (Amendment) Act 1992 nor article 6 or 8 of the European Convention on Human Rights entitled the claimant to continuing anonymity.

The tribunal was also justified in making an order that the claimant contribute £20,000 towards the respondents’ costs in view of his unreasonable conduct in bringing the claims. The appeal therefore failed on all grounds.

Weaponising Tribunal Proceedings

In Hargreaves v Evolve Housing & Support and another:

• The claimant was summarily dismissed by the first respondent, a supported housing organisation, for gross misconduct and brought claims for discrimination, victimisation and unfair dismissal before the employment tribunal.
• During the proceedings, the claimant sent numerous emails which, the tribunal found, had the clear intention and objective of creating a damaging narrative and reputation for the respondents, including accusing the first respondent of being a racist, abusive organisation and accusing it of religious harassment.
• The tribunal found that the claimant threatened the respondents with legal action, high profile media political campaigning and sought to weaponise the tribunal proceedings to cause as much damage to the respondents as he could.
• The tribunal held that his intent was to ‘vilify and publicly humiliate’ the respondents and that the claimant was vindictive. The claimant’s primary purpose was to create a public and political scandal involving as many persons associated with them as possible, and to portray the respondents as villains in the public eye.
• The tribunal struck out the claim on the basis that the claimant had conducted the proceedings in a scandalous, unreasonable and vexatious manner, such that there could not be a fair trial because the respondents’ witnesses would feel intimidated by further attacks from the claimant.
• The claimant appealed.

The employment appeal tribunal held that, on the facts of the case, the tribunal had made an error in holding that a fair trial was not possible. The tribunal had received no evidence from any prospective witness for the respondent to the effect that they were fearful of giving evidence or were intimidated by the claimant and the tribunal had relied on its own assumption that the witnesses would be scared.

The EAT ordered that the claims would be reinstated and a preliminary hearing arranged for directions to be given to proceed to a final hearing.

For further information on these cases, please contact Katie Adams or another of Ward Hadaway’s Expert Employment Lawyers.