‘Unfair dismissal and discrimination on specific prohibited grounds are, however, different causes of action. The statutory structure of the unfair dismissal legislation is so different from that of the discrimination legislation that an attempt at cross fertilisation or legal transplants runs the risk of complicating rather than clarifying the legal concepts.’
“28. The reason why question must not be confused with the “but for” test. … In short, whereas the but for test may be appropriate in “criterion” cases … it is the reason why question which prevails in circumstances where the employer’s mental processes (conscious or subconscious) are in issue. The latter question arises in the present case.”
“52. This approach in our view reflects a misconception of the statutory scheme. It is about the protection of “whistle-blowers”
“… It is the employers’ reasons for their conduct not the employee’s reaction to that conduct which is important. …” (page 551B) 31. In such a case, the ET will have identified the fundamental breaches of contract that caused the employee to resign in circumstances in which she was entitled to claim to have been constructively dismissed. Where no reason capable of being fair for section 98 purposes has been established by the employer, that constructive dismissal will be unfair. Where, however, the reason remains in issue because there is a dispute as to whether it was such as to render the dismissal automatically unfair, the ET then has to ask what was the reason why the Respondent behaved in the way that gave rise to the fundamental breaches of contract? The Claimant’s perception, although relevant to the issue why she left her employment (her acceptance of the repudiatory breach), does not answer that question. Submissions The Respondent’s Case 32. Ms Balmer candidly acknowledged this was a case where the Respondent had not covered itself in glory; it had acted unfairly and had breached the Claimant’s terms and conditions. She equally accepted that the appeal might be seen to be academic: the section 98 unfair dismissal finding was not contested and the compensation due might prove to be the same in either event. All that said, the case raised an important legal issue on the section 103A complaint: if the ET had applied the correct test, the result would have been different. 33. The Respondent relied on the distinction in approach between section 103A and section 47B ERA . The latter required only that the protected disclosure was a material factor. Section 103A required it to be the reason or principal reason (see Fecitt , CA). 34. The first question that arose was how the ET was to go about constructing the reason for the constructive dismissal. The answer was (see Berriman ) all about identifying the employer’s reason for its conduct. So the ET had to identify the acts that gave rise to the constructive dismissal, giving each such weight as was correct. The ET here seemed to have focussed on two acts: (1) the failure to act on the Claimant’s complaints and call him as a witness to the investigation; (2) moving the Claimant to the day shift. 35. When then turning to the reason for those acts, a “but for” test was not the right approach. A “but for” test effectively held that, if X had not happened, then Y would not have happened. That was not the same as “the reason why”, which was not determined by the contextual fact of a protected disclosure having been made but required a careful examination of what was in the employer’s mind. Moreover, if an employer gave an account of why it has so acted, other than the protected disclosure, the ET needed to determine whether that reason was false; only then should it go on to consider the alternative prohibited reason. And, if it so found the employer’s reason to be false, it would need to explain why it had done so. 36. In this case, following from the way in which the Claimant had put his argument, the ET had wrongly applied a “but for” test. It had failed to make reference to the relevant case-law and had erred in seeing the context provided by its recitation of facts at paragraph 86 as determinative of the question before it (see paragraph 87). 37. Alternatively, if the ET had applied the “reason why” test, then it had failed to analyse Mrs Hope’s reasons; it did not consider the other reasons that may have led her to act as she did and it needed to do so. 38. On the Respondent’s moving the Claimant to the day shift, the Claimant’s case was that that was a deliberate act to make his life difficult. The ET did not make that finding but arguably accepted the Respondent’s arguments (see paragraph 69). If it had not accepted those arguments, it would have needed to explain (given the evidence adduced by the Respondent) why. This was crucial; it went to the reason for one of the matters the ET found caused the Claimant to leave. The ET had needed to make clear findings as to what were the reasons in the Respondent’s mind. It was not sufficient merely to refer to unfair process, lack of consultation. That might go to fairness but could not of itself support a finding that the reason for taking the Claimant off the night shift was the protected disclosure. 39. As for the apparent finding that Mrs Hope wanted to exclude the Claimant from the investigation, although the ET concluded that she wanted the Claimant off the night shift for the period of the investigation so he would play no part in it, the ET’s own finding (at the end of paragraph 87) was the best indication of what really motivated Mrs Hope; that was that it was her concern that if he was interviewed, it would indicate she had not deemed it necessary to carry out an investigation in 2011. So the reason, or principal reason, was management face-saving. The protected disclosure provided the context but was not itself the reason. The Claimant's Case 40. Mr Wyeth first referred me to paragraph 66 of Fecitt in the EAT, where a balance of probabilities test was applied, which, he observed, was the same approach as adopted by the ET in this case. He did not accept that the ET here had applied a “but for” test. He relied on the reasoning at paragraph 87, in particular where the ET found that, on a balance of probabilities, Mrs Hope did not want him working on the night shift. 41. He further made it clear that he had at all times relied on the 2011 complaint as a protected disclosure. 42. As for the Respondent’s evidence before the ET, he took issue with how that had been represented on this appeal. It was, for instance, apparent that Mrs Hope’s evidence to the ET as to her reason for moving the Claimant from the night shift could not be correct, as the dates did not tally with ODP1’s suspension; there was good reason for the ET not to accept it. Moreover it made no sense, as the only instability that had arisen on the night shift arose from Mrs Hope requiring the Claimant to put in a written complaint about ODP2’s bullying and harassment, which she then relied on to move the Claimant on to day shifts. In truth, there was no stabilising to do and indeed the Claimant had worked with ODP2 for a whole week after the bullying incident with no problem. He was only moved after he had put in the written complaint (as he had been told to do). The ET had effectively accepted this (see the finding at paragraph 68 where the ET observed that the Claimant had worked with ODP2 for ten days after the event he complained of) and asked: “If safety was an issue why was the Claimant not moved immediately?”