Thread by @JasonBraier

1/ Oxford Said Business School v Heslop: A well-written EAT rejection of various causation grounds of appeal by the employer in a whistleblowing context in which a s.103A claim failed but the detriment claim succceeded.

bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ H was director of custom programmes at OSBS. She raised concerns about the legality of procurement practice & alleged breaches of contract to the Cabinet Office in respect of a customised leadership programme, which the ET found to be protected disclosures.

3/ H had been highly appraised prior to these disclosures, but she went on holiday after making them & during that holiday a direct report complained about H's leadership & its impact on the atmosphere in the office & on the team. No specifics were provided at this point.

4/ Notwithstanding the lack of specifics, H's line manager, Dr White, invited her to attend a meeting at 8am on H's 1st day back from holiday. The ET found the meeting's purpose was to raise the concerns, prevent H's return & for the purpose of ending her employment.

5/ Whilst H was on holiday, Dr White spoke to others to hear their criticisms of H - H complained of this as a detriment. She also complained as detriments that she wasn't given info as to the purpose of her meeting & that Dr White decided to dismiss without due process.

6/ H was thus clueless on entering the meeting what it was about & was completely shocked when confronted by Dr White with a formed conclusion that things weren't working, serious complaints had been made & that H had lost the trust & confidence of a large part of her senior team

7/ The ET accepted that the meeting was a detriment in itself as was the conclusion related to H about the loss of trust & confidence, as well as an instruction to stay away from work. Another detriment found by the ET was the refusal to provide details of the alleged wrongdoing.

8/ The ET found that in spite of a host of red flags re Dr White's motivation, H's dismissal wasn't automatically unfair given that the principal reason for dismissal was the complaints made against H. However, the ET found a s.47B claim made out in light of Dr White's motivation

9/ The EAT's consideration starts with a recital of DPP v Greenberg (which seems to be cited in every EAT judgment at the moment), warning against nit-picking & hypercriticism of ET reasons. The EAT concentrates particularly on its application to findings of fact.

10/ OSBS's 1st ground of appeal suggested conflation between the causative test (were detriments done because disclosures had been made) with whether the acts/omissions were themselves justified or reasonable, making the Bahl point that reprehensibility isn't enough.

11/ The EAT disagreed with the Bahl point, noting the ET had set out explicitly & clearly the various strands of unreasonableness in Dr White's actions, whilst rejecting the plausibility of his own explanations.

12/ Using an old Latin maxim (is that allowed any longer?!), the EAT made the point that whilst it's not right to say that because B followed shortly in time after A it was caused by A, it does at least provide some evidence it may have been. Here it added to the evidence it was.

13/ Moreover, the EAT approved of the ET's conclusion that OSBS had failed to discharge the s.48(2) burden to show reasons for its actions, lest adverse inferences be drawn.

14/ OSBS raised a tension between the ET rejecting the s.103A claim on grounds of the complaints being the principle reason for dismissal & concluding re the s.47B claim that OSBS failed on a balance of probabilities to show the reason for the detriment. The EAT disagreed.

15/ As Fecitt makes clear, s.103A & s.47B raise different questions & different approaches, between the burden on H under s.103A to show principal reason & lower material influence test under s.47B, alongside the burden on OSBS to show the reason for their actions.

16/ An investigation into the treatment of H had identified 21 red flags in re Dr White's approach, 12 of which the ET relied upon in reaching its s47B conclusion. The EAT considered this a perfectly appropriate aspect of the ET's liability analysis.

17/ OSBS complained about a failure by the ET to consider whether Dr White's mental processes were conscious or unconscious in re the protected acts, but the EAT noted that it wasn't a point in the list of issues, nor was it a material issue here.

18/ OSBS also complained the ET had applied a 'but for' approach to causation. The EAT disagreed, noting the ET repeatedly set out the correct statutory causative test. OSBS's criticism took the inappropriate approach of taking 1 para of the judgment in isolation from the rest.

19/ Finally, OSBS suggested the ET misdirected itself on constructive dismissal in re the implied term of mutual trust and confidence, but the EAT was satisfied there was nothing in this ground either, & that it smacked of the hypercriticism the CA warned against in Greenberg.