In claims for detriments for making protected disclosures, should a tribunal consider if any disclosure was a material factor in the detrimental treatment, rather than the cause of it?
Yes, held the EAT in Fitzmaurice v Luton Irish Forum.
The Claimant was a caseworker at a small charity, who resigned and claimed whistleblowing detriments and constructive dismissal after facing disciplinary action. The tribunal held that disciplinary proceedings were brought for three reasons, only one of which was related to protected disclosures, and that protected disclosures were not the cause of disciplinary action, and dismissed the detriment claims.
The EAT upheld the Claimant's appeal. The tribunal had not properly directed itself on the dividing line between the making of protected disclosures, and the manner in which the disclosures were made. It was sufficient that a protected disclosure was a material factor in a detriment, it need not be the cause of it. The test to consider is whether factors other than making a protected disclosure (here the Claimant's conduct) were properly severable from the making of protected disclosure in the motivation for disciplinary action. The EAT remitted the case to the ET to reconsider the claims.
Thanks to Ed McFarlane of Worknest LAW for preparing this case summary.