Simpson v Cantor Fitzgerald Europe

In dismissing the appellant employee’s appeal against a decision of the Employment Tribunal (ET) and the Employment Appeal Tribunal that he had not been unlawfully dismissed, the Court of Appeal, Civil Division, agreed that it had been fanciful to state that the reason for his dismissal was that the appellant had made protected disclosures under the Employment Rights Act 1996. The Court further stated that although a failure by an ET to set out even a brief summary of the relevant law in its decision was a breach of r 62(5) of the Employment Tribunal Rules, but that such a failure had not amounted to an automatic ground of appeal.

Background    

The judgment is available at: [2020] EWCA Civ 1601

When the appellant employee was dismissed from his job as managing director of the emerging markets desk by the respondent employer after approximately nine months in the role, he made public interest disclosure claims under s 47B (detriment) and s 103A (unfair dismissal) of the Employment Rights Act 1996 (ERA 1996). He also made a contractual claim for unlawful deductions from pay. The appellant alleged that he had made four protected disclosures which were the reason or principal reason for his dismissal. The protected disclosures formed a narrative of misconduct of various sorts constantly taking place around the appellant while he raised concerns with his colleagues, who rebuffed him. The ET dismissed the claims, finding, amongst other things, that to contend that the principal reason for the appellant’s dismissal was that he had made protected disclosures was ‘utterly fanciful’. The ET found that the appellant’s ‘distrustful and obstructive’ behaviour was what he was ultimately dismissed for. The Employment Appeal Tribunal dismissed the appellant’s appeal. The appellant appealed.

Issues and decisions    

(1) Whether the ET, in failing to set out a self-direction on the law in its judgment in accordance with r 62 of the Tribunal Rules (the Rules), had failed to direct itself as to the applicable law. The appellant submitted that the ET in failing to set out any reference to the relevant statutory provisions or the legal principles had not demonstrated substantial compliance with r 62 of the Rules. The respondent submitted that the mere failure to follow the usual practice of setting out a separate section on the relevant law had not given rise to an error of law.

Although a failure by an ET to set out even a brief summary of the relevant law was a breach of r 62(5) of the Rules, the  breach was not material. Case law had established that the failure to set out a self direction in accordance with r 62 of the Rules had not amounted to an automatic ground of appeal (see [29] of the judgment).

It had become conventional (and easier since the invention of word processing) for ET’s to include in their decisions the relevant statute law and a summary of what had been established by the leading authorities on the relevant subject. However, a dutiful recital of the relevant law had not immunised the decision against arguments that the tribunal had erred in its application. Equally, a failure to set out the relevant law had not necessarily meant that there had been any substantive error in the tribunal’s decision or in the reasoning which had led to that decision. Such a lack, however, did make it more likely that there would be a challenge to the judgment (see [30] of the judgment).

The point of r 62 of the Rules, headed ‘reasons’ was to enable the parties to know why they had won or lost (see [31] of the judgment).

Although the present ET had failed to set out the relevant law, it was not a free-standing ground of appeal. Unless the appellant could show that the ET had made a substantive error of law, the failure to comply with r 62(5) of the Rules, in itself, led nowhere (see [32] of the judgment).

(2) Whether the ET had erred in law in its conclusions on the reason for dismissal. The question of whether any of the communications relied on by the appellant ought to have been found to be a protected disclosure was somewhat academic if the appellant could not show a flaw in the ET’s findings that an individual, N, had made the decision to dismiss, and that that decision had nothing to do with the alleged protected disclosures.

The ET found, and had been entitled to so find, that N had dismissed the claimant  for a confrontational attitude, time-keeping and attendance and the taking of notes. In searching for the reason for a dismissal for the purposes of s 103A of the Act courts did not need generally look any further than at the reasons given by the appointed decision-maker. However, issues such as the question of whether there had been ‘manipulation’ of the decision-maker or the construction of an invented reason to conceal a hidden reason needed to be considered (see [35], [38] of the judgment).

On the facts of the case however, none of the situations where it might be appropriate to attribute the motivation and knowledge of a manipulator to the respondent applied. N’s decision had been based on genuine concerns as to the appellant’s relationship with his team. Even if, contrary to the ET’s conclusions, there had been any protected disclosures, it was clear that the reason for dismissal had been properly separable from such disclosures (see [38] of the judgment).

The issue was an attempt to re-open the clear and emphatic findings of the ET on an issue of fact (see [39] of the judgment)

(3) Whether the ET failed to properly direct itself to look at the composite picture of the disclosures.

The question of whether any combination of the communications should be read together was arid, since on the findings of the ET, none of them had amounted to a protected disclosure whether read in isolation or by reference to previous communications (see [44] of the judgment)

(4) Whether the ET had failed to properly direct itself as to the requirements of a protected disclosure and had therefore failed to properly apply the statutory test.

It was erroneous to gloss ERA 1996 s 43B(1) to create a rigid dichotomy between ‘information’ on the one hand and ‘allegations’ on the other when it came to testing for a protected disclosure. In order for a communication to be a qualifying disclosure it had to have ‘sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1)’. Whether it did was a matter for the ET’s evaluative judgment (see [51] of the judgment).

The ET’s judgment made findings of lack of genuine, let alone reasonable, belief. Such findings made the arguments of law academic (see [55] of the judgment).

(5) Whether the ET failed to properly direct itself so as to consider both the ‘insider context’ of the disclosure of information and the evidence which supported that submission.

It was established law that whistle-blowers were ‘insiders’; that meant that they were so much more informed about the goings on of the organisation of which they made complaint than outsiders and that that insight entitled their views to respect. Since the test was their reasonable belief, that belief had to be subject to what a person in their position would reasonably believe to be wrongdoing. Equally, just as someone with experience in the field had information and insight which should be taken into account in his favour, so too he should know better than (say) a lay person who happened to overhear a conversation (see [56], [57] of the judgment).

The findings of the ET on that matter had disclosed no error of law (see [58] of the judgment).

(6) Whether the ET failed properly to direct itself so as to consider, then to apply, the reasonable belief requirements.

The ET had not accepted that the appellant was disclosing information which he actually believed tended to show a breach of regulatory obligations or a legal duty to clients (see [59] of the judgment).

Case details

• Court: Court of Appeal, Civil Division
• Judges: Bean, Henderson, and Rose LJJ
• Hearing Date: 27 November 2020

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