Could a tribunal's decision on a whistleblowing dismissal claim stand where there were insufficient findings of fact?
Unsurprisingly, no, held the EAT in City of London Corporation v McDonnell.
Mr McDonnell was a senior surveyor. He managed the use of various City of London properties, including Leadenhall Market. He was suspended for the allegedly unprofessional and obstructive manner in which he had dealt with his managers and clients in relation to the properties. He made certain disclosures about Councillors and managers, alleging fraudulent activity and political interference. In doing this he said: "What am I supposed to do, I have four disciplinary accusations against me, and of course I will retaliate".
The allegations against one Councillor were upheld, but the other allegations were found to be without foundation. He was subsequently dismissed for gross misconduct. An employment tribunal held that the reason for the dismissal was that he had made protected disclosures and found he was automatically unfairly dismissed.
Before the EAT the employer argued that the tribunal's conclusions were flawed. The EAT agreed and upheld the employer's appeal in part.
First, said the EAT, the tribunal had misinterpreted the evidence of one of the employer's witnesses, Mr. Bennett. Secondly, the tribunal had not made any finding as to the date, form or substance of any disclosures. The need to make such findings, said the EAT, is not an "arid technicality". Where the allegation is one that is tantamount to an allegation of bad faith or improper purpose there ought, as a matter of fairness, to be clear findings as to the specific disclosures made, in order that the employer knows the case that it has to meet. As this did not happen, the case was remitted for reconsideration to a freshly constituted tribunal.
Thanks to Dr John McMullen of Stone King LLP for preparing this case summary.