Redundancy following protected disclosures is not automatically unfair

News  |   22 November 2021

Written by
Elliott Flockhart, Associate

The Employment Appeal Tribunal (EAT) has held in Secure Care UK Limited v Mr R Mott, that where an employee is dismissed for redundancy, having made protected disclosures, the dismissal is not automatically unfair if the decision was ‘materially influenced’ by the disclosures.

The Claimant made nine alleged protected disclosures, and following the nineth, was informed that he was at risk of redundancy. The Claimant was dismissed several weeks later. Having accepted that three of the disclosures qualified as protected disclosures and that there was a genuine redundancy situation, the tribunal found that the disclosures had had a material impact on his selection and held the Claimant was unfairly dismissed.

The EAT disagreed, stating the tribunal had incorrectly used the ‘materially influences’ test, which applies to s 47B Employment Rights Act 1996 (ERA 1996) claims for whistleblowing detriments, rather than applying the principle reason test required for s 103A ERA 1996 claims. Furthermore, when assessing the reason for the dismissal, the EAT concluded the tribunal had failed to distinguish the impact of the three protected disclosures from the impact of all nine disclosures.

Advice

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