EAT orders rehearing due to tribunal delay and legal errors in whistleblowing case

Background

In Chase v Northern Housing Consortium Ltd and another, the claimant had brought claims of automatic unfair dismissal and disability discrimination, including a failure to make reasonable adjustments. The case was heard over several days, but there was a significant delay of 13 months before the tribunal issued its written reasons.

During that time, no updates were provided. When the judgment was eventually delivered, rejecting the claimant's claims, it contained numerous typographical errors, factual inaccuracies, and lacked adequate reasoning. In addition, the tribunal treated several allegations, including claims of failure to make reasonable adjustments, as “new” issues, despite them having been clearly pleaded. The tribunal declined to consider whether it should nevertheless address those issues in the interests of justice, because they had not been included in the case management list of issues. The Claimant appealed to the Employment Appeal Tribunal (EAT).

EAT's decision

The EAT found multiple errors of law in the tribunal’s approach. Most notably:

• The 13-month delay between hearing and judgment was found to be unreasonable and contributed to the poor quality of the tribunal’s decision.
• The tribunal had failed to properly consider pleaded claims, and did not apply the correct legal test when deciding whether to address issues omitted from the list of issues.

Crucially, the EAT also found that the tribunal had misdirected itself in its interpretation of section 43C(2) of the Employment Rights Act 1996. That section protects certain whistleblowing disclosures made to a third party, where the disclosure is made in accordance with a procedure authorised by the employer.

In this case, the claimant had made disclosures to an external auditor who had been appointed by the respondent to investigate alleged malpractice. The tribunal concluded these were not protected disclosures, as the auditor had no “responsibility within” the organisation. The EAT held this was an error. A disclosure to an authorised external investigator can be protected under section 43C(2), and employers should not be able to avoid whistleblowing protections by outsourcing internal investigations. The EAT therefore remitted the case for a complete rehearing before a newly constituted tribunal.

Learning points for employers 

This case is a reminder that significant delays in issuing tribunal decisions can undermine their credibility and leave them open to appeal. Employers should also take note of the EAT’s clarification that protected disclosures can include those made to external investigators, where such disclosures are made through authorised procedures for the purposes of s43C(2) Employment Rights Act 1996. Accordingly, an employer will not will able to avoid whistleblower protection by appointing an external investigator to investigate specific allegations of wrongdoing. 

For more information or advice, please contact Rory Jutton in our Employment team.