Case Update on Protected Disclosures

In a claim where a Claimant feels they have been treated unfairly for making protected disclosures, should it be considered by a tribunal whether any of the disclosures were material factors in their treatment, rather than the sole cause?

It was held in the EAT case of Fitzmaurice v Luton Irish Forum that the answer should be “yes”.

The tribunal agreed that the Claimant had raised an extensive number of concerns about health and safety issues in 2014, 2016 and 2017 and that some of these constituted protected disclosures. In 2017, the Claimant then raised concerns during the course of a grievance hearing with respect of the Respondent using some of it’s reserve funds to pay a newly-recruited role.

Disciplinary proceedings were launched against her and it was the Claimant’s case in the ET that the proceedings were only brought on the grounds that she had made protected disclosures and that the treatment she had received amounted to a fundamental breach of her employment contract.

She resigned in response and pleaded that she had been constructively dismissed which gave rise to both ordinary and automatic unfair dismissal. She alleged that the principal reason for her dismissal was that she had made protected disclosures.

The ET dismissed her claims. They stated that there was no connection between the public interest disclosures found by the ET and the disciplinary procedures and so the Claimant appealed to the EAT.

The EAT upheld the Claimant’s appeal. They had stated that the ET had incorrectly considering its approach to causation in the protected disclosure detriment claim and therefore failed to draw a line between the protected disclosures and the other matters.

This case demonstrates that the test is to consider whether factors other than making a protected disclosure are properly severable from the making of protected disclosures in the Respondent’s motivation for pursuing disciplinary action against the Claimant. In this case, the other factor was the Claimant’s conduct.

The main take away from this case is that the Tribunal must consider that it is sufficient that a protected disclosure was a material factor in a detriment and that it does not need to be the sole cause of it.

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