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If an employee is dismissed for redundancy, having made protected disclosures, is the dismissal automatically unfair if the decision was ‘materially influenced’ by the disclosures?

No, held the EAT in Secure Care UK Limited v Mr R Mott.

The Claimant worked as a Logistics Manager for the Respondent, which provided transport services for NHS patients with mental health problems. He made nine alleged protected disclosures, relating to things such as inadequate staffing. The day after the ninth disclosure, the Claimant was informed he was at risk of redundancy. He was dismissed several weeks later.

The tribunal accepted that three of the disclosures qualified as protected disclosures. It found that there was a genuine redundancy situation but that the Claimant’s concerns/disclosures had had a material impact on his selection. The tribunal held the Claimant was unfairly dismissed.

The EAT disagreed. The tribunal had applied the wrong test, it had used the ‘materially influences’ test (which applies to s47B ERA claims for whistleblowing detriments), rather than the sole or principal reason test required for s103A ERA claims.

The EAT also found that the tribunal had erred by failing to distinguish the impact of the three protected disclosures from the impact of all nine disclosures when assessing the reason for the dismissal.