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In the recent case of Laurels Family Assessment v Kay, the Employment Appeal Tribunal (EAT) heard an appeal against the Employment Tribunal’s decision that the Claimant had been automatically unfairly dismissed for making protected disclosures.
The Claimant, Ms Kay, worked as a family support worker and alleged that she had informed the service manager that she had witnessed her colleague at work on a “comedown” from recreational drugs. She had also reported this concern to an external visitor collecting safeguarding information. On the same day, the Claimant was invited to a disciplinary hearing with the service manager, following which she was dismissed for gross misconduct.
The Employment Tribunal found that Ms Kay had made two protected disclosures, and that the principal reason for her dismissal was that she had made those disclosures.
The Respondent appealed to the EAT, arguing that the decision was perverse (not supported by evidence) and that the Tribunal had failed to properly consider misconduct relating to Ms Kay’s recording of medication, which could justify the dismissal.
The EAT dismissed the appeal and upheld the Tribunal’s decision. The threshold for a perversity challenge is high, and in this case, there was sufficient evidence to support the original findings. The Tribunal had also given adequate reasons for concluding that the reason for dismissal was the protected disclosures.
Further, the EAT determined that the Tribunal had considered the misconduct issues, but noted that these had previously been treated as a training matter before being raised again as potential gross misconduct. As a result, the EAT concluded that the decision was not perverse, and the reasoning was neither flawed nor insufficient.
This case underlines the importance of employers taking a measured and structured approach when concerns are raised. Action should not be taken hastily; instead, there should be a clear separation between the handling of any disclosure and the initiation of disciplinary proceedings.
Even where there are legitimate concerns about misconduct, including potential gross misconduct, employers must ensure their approach is consistent, well-reasoned, and properly evidenced throughout.
Tribunals will focus on identifying the true reason for any disciplinary action. Where a process appears to be driven by ulterior or unsubstantiated reasons, particularly in response to a disclosure, it is likely to attract significant scrutiny and criticism.
This article was written by Gabrielle Scriven.