"… we are not yet in a position to suspend. Navid has volunteered to provide further information in relation to the company set up with his wife which is mentioned, indeed featured, in the research report. That additional information and what comes out of the third party dd [due diligence] will guide us as to the next steps. My concerns regarding potential conflicts of interest are not assuaged but I do not have sufficient information to provide a provisional conclusion. …"
"129. On 3 November Mr Cooper spoke to Mr Hodges and to the Respondent's legal advisers. He explained to the Tribunal that he would have expected Dr Malik to have produced the information which might exonerate him almost immediately. He had not produced any further information. Mr Hodges agreed that Dr Malik had been given his chance to explain himself and had not done so and therefore agreed that there was no other option at that time but to suspend, given the serious nature of the allegations and the potential damage to the Respondent's business if it continued to allow an employee about whom it had serious integrity concerns to work on client matters."
"54. Pending disclosure, the Claimant is unable to identify which directors and employees of the Respondent were informed of the facts and content of the protected disclosures or on what date and by what means. 55. As a result of having made the protected disclosures set out above, the Claimant was subjected to the detriments set out below. 56. The Claimant believes that each of the pleaded detriments to which he was subjected were acts done by his employer on the grounds of him having made protected disclosures. 57. If, which is denied, the pleaded acts of detriment were not acts taken on the grounds of the making of protected disclosures but rather because of information or opinions provided to or withheld from the decision maker in relation to each such act of detriment or because of a prior decision of the employer that caused the subsequent decision maker to make the pleaded decision, it is to be inferred that each such prior act causing the pleaded act was an act done on the grounds of the Claimant having made protected disclosures. 58. As such, each such prior act amounted to the subjection of the Claimant to detriment on grounds of protected disclosures. Pending disclosure, the Claimant is unable to give further particulars of such prior acts."
"34. In our view the judge's approach to the evidence was unsatisfactory in a number of significant respects. First, he failed to identify in sufficient detail the questions that needed to be answered if he were to decide whether an agreement of the kind alleged by Mrs Harb had been made. In addition, he failed to carry out a proper evaluation of all the evidence in order to test its strengths and weaknesses. Having referred … to the fact that counsel for the Prince had made extensive criticisms of [Mrs] Harb's evidence on the grounds that it was inconsistent with her witness statement, he failed to deal with any of those criticisms and brushed them aside by saying that it was unrealistic to expect Mrs Harb to have a clear recollection of events 13 years after the event. … 35. Similar criticisms can be levelled at the way in which the judge dealt with the evidence of Mrs Mustafa-Hasan. He did not subject it to any serious degree of scrutiny; in particular he did not deal with the submission that she had collaborated with Mrs Harb and was not truly independent. … 36. Secondly, the judge failed to advert to a number of aspects of the evidence that were potentially relevant to important areas of the case. … 37. Thirdly, the judge failed to draw together the evidence from the various different sources and analyse it in order to make his findings in relation to individual issues. The evidence, not just of the witnesses but also the documents, pointed in different directions. Whether the judge was right in his conclusions or not, in a case of this kind he owed it to the parties to identify the relevant evidence, discuss its significance and explain why he had reached the particular conclusion. That required him to analyse the various possible implications of different strands of evidence, as well as the inherent probabilities. He failed to do this. … Nor did he overtly consider the inherent probabilities and, if necessary, explain how they had been taken into account. … 38. In light of these matters, it seems clear to us that the judge, in effect, took a short cut. Having decided that Mrs Harb was a reliable witness, he accepted that she had made out her case in all respects. … 39. Our system of civil justice has developed a tradition of delivering judgments that describe the evidence and explain the findings in much greater detail than is to be found in the judgments of most civil law jurisdictions. This requires that a judgment demonstrates that the essential issues that have been raised by the parties have been addressed by the court and how they have been resolved. In a case (such as this) which largely turns on oral evidence and where the credibility of the evidence of a main witness is challenged on a number of grounds, it is necessary for the court to address at least the principal grounds. A failure to do so is likely to undermine the fairness of the trial. The party who has raised the ground of challenge can have no confidence that the court has considered them at all; and he will have no idea why, despite his grounds of challenge, the evidence has been accepted. That is unfair and is not an acceptable way of deciding cases. "
"17. Did the following matters amount to repudiatory breaches of the implied term of trust and confidence implied by law into the Claimant's contract of employment …: a. That he had made the Protected Disclosures in and following September 2014 and had been subjected to an increasingly hostile environment at work as a result; …"
"19. For example, the Tribunal's assessment of the first detriment (paragraph 166 of the Judgment [CB/1/59]) (recruitment of a replacement), and the finding that " there is no evidence that Mr Kerr knew any of the alleged disclosures " is extraordinary bearing in mind [Mr Warner Allen] had been aware of those disclosures at least from the meeting with [the Claimant] and Durkin on29 June 2015 (paragraph 12(o) above) and it should have been inferred - from the closeness of the GCT3 over many years and their obvious collusion in dealing with [the Claimant] - that Kerr would undoubtedly also have been aware of the disclosures, as would Morse (no doubt as soon as [Mr Warner Allen] could tell them after leaving the meeting)."
"167. … The decision to investigate Dr Malik's relationship with NWB in September 2015 was a decision taken by Mr Cooper following receipt of information from Mr Kerr and Mr Warner Allen. The issue is therefore the motivation of Mr Cooper in taking the action. …"
"71. This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established. As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council[2000] IRLR 703 , even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee's best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him. 72. I am not suggesting that the decision to suspend in this case was a knee jerk reaction. The evidence about it, such as we have, suggests that there was some consideration given to that issue. I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk; and perhaps they did."
"55. Did the authority's conduct in this case amount to a breach of this implied term? The test is a severe one. The conduct must be such as to destroy or seriously damage the relationship. The conduct in this case was not only to suspend the claimant, but to do so by means of a letter which stated that 'the issue to be investigated is an allegation of sexual abuse made by a young person in our care.' Sexual abuse is a very serious matter, doing untold damage to those who suffer it. To be accused of it is also a serious matter. To be told by one's employer that one has been so accused is clearly calculated seriously to damage the relationship between employer and employee. The question is therefore whether there was 'reasonable and proper cause' to do this. 56. In my judgment there clearly was not. The information considered by David Gibson and strategy meeting was indeed 'difficult to evaluate'. The difficulty was in determining what, if anything, EL was trying to convey. It warranted further investigation. But to describe it as an 'allegation of sexual abuse' is putting it far too high. A close reading of the records coupled with further inquiries of the therapist were needed before it could be characterised as such. 57. Furthermore there was then a need to consider carefully what to do about the member of staff concerned. Was there indeed any reason to suppose that she had broken the guidelines for working with EL? How easy would it be to check? If there was some reason, however slight, it might indeed be right to separate her from EL for a short time. But how should this be done? Miss Sinclair argues that transfer was impossible because all the people in their care are vulnerable. But that leaves out of account the particular circumstances in this case. It is difficult to accept that there is no other useful work to which the claimant might not have been transferred for the very short time that it ought to have taken to make the further inquiries needed. It is equally difficult to accept that some other step might not have been contemplated, such as a short period of leave. In any event, given the timescale involved, what was the rush?"
"100. At the end of September 2015 Mr Kerr was undertaking checks on Mr Woodford's various shareholdings and he saw that WIM, Mr Woodford's company, had taken a shareholding in NWB. It was part of Mr Kerr's job as a sales person to know this sort of information about the Respondent's key investors so that the Respondent could help them know where they should invest. Mr Kerr thought the name NWB sounded familiar so he looked for the filings for NWB in order to obtain further information on who held shares. On doing this he saw that Dr Malik had also brought£10,000 shares in the company. At the time a shareholding of that size would have cost approximately US$80,000 . Mr Kerr was concerned and telephoned Mr Warner Allen on26 September 2015 . At the time Mr Warner Allen was driving to Warwick to take his daughter to an open day at Warwick University. This is confirmed by the exhibits to Mr Warner Allen's second statement. Mr Kerr sent a print out of the relevant filings to Mr Warner Allen on5 October 2015 . He indicated that NWB had a class action law suit against it. Mr Warner Allen did not know of this and said he would ask Mr Cooper. Mr Warner Allen asked Mr Cooper for the personal dealing records for Dr Malik, which the Respondent holds for all staff. After Mr Warner Allen had looked at these records, he returned to Mr Cooper to tell him that he had discovered that Dr Malik held shares in NWB that he had not disclosed to the Respondent. Mr Warner Allen was hesitant and did not want to "drop Navid in it"
"128. By an email dated2 November 2015 Mr Cooper emailed Mr Chilton and Mr Aherne as follows (6/1850): "
"199. The final alleged breach is: That Dr Malik had been suspended and faced disciplinary action on the basis of an anonymous internet report without adequate investigation being carried out into the Phase Five allegations by the Respondent. Ms Mulcahy argues that this breach was the worst of all. The decision in Gogay v Hertfordshire County Council[2000] IRLR 703 did find that the suspension was a breach of the implied term of mutual trust and confidence in that case. The case concerned a residential care worker against whom an allegation of sexual abuse had been made by a child and the local authority was suspended when there were other options available. Dr Malik's case is entirely different from the Gogay case. In the present case the Phase Five Report published information which raised questions for the Respondent's clients and could have adverse effect on the Respondent's business. The Respondent had compliance obligations. The Claimant had been given permission to take a non-executive director position, but he had failed to notify the Respondent, in accordance with his obligations as an approved person and in breach of his employment contract, of the shareholding. In addition, he failed to disclose the Phase Five Report when he first became aware of it. He also accepted that he had introduced NWB to WIM. A suspension was a neutral act in order that the Respondent could further investigate. In cross-examination (T2/12) Dr Malik agreed that on29 October 2015 (5/1830) Dr Malik immediately contacted Mr Woodford when he became aware of the Phase Five Report before he contacted the Respondent. Dr Malik accepted that the Phase Five Report raised very serious matters and looked very bad. 200. The Respondent operates in a highly regulated environment with heavy compliance obligations. In the face of the Phase Five Report they had to take appropriate and necessary action and the Tribunal is not satisfied that the suspension and investigation leading to disciplinary action amounts to a repudiatory breach."
"155. The next question is whether there was a disclosure of information, in the public interest and in good faith. We have to consider this in relation to each of the matters at issues 1a to g. The Respondent's position is that this requires the Claimant to believe (reasonably) that in all the circumstances, disclosures in the public interest and the following matters are relevant considerations namely, whether there is a 'public interest element' to the disclosure or whether the disclosure relates solely to the private or commercial interests of the parties as in Chesterton Global Limited v Nurmohamed[2015] IRLR 614 and Underwood v Wincanton PlcUKEAT/0163/15/RN , the extent to which the disclosure serves any purpose and the extent to which the Claimant is making a disclosure to secure personal gain for himself."
"37. Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under s.43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. Mr Reade's example of doctors' hours is particularly obvious, but there may be many other kinds of case where it may reasonably be thought that such a disclosure was in the public interest. The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case, but Mr Laddie's fourfold classification of relevant factors which I have reproduced at paragraph 34 above may be a useful tool. As he says, the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph."
"48. Complaints to employment tribunals … (2) On a complaint under subsection (1), (1ZA), (1A) or (1B) it is for the employer to show the ground on which any act, or deliberate failure to act, was done."
"32. The points made by the Court of Appeal about the effect of the statute in these two cases could not be more clearly expressed, and I see no need for any further guidance. Furthermore, as Underhill J pointed out in Martin v Devonshires Solicitors[2011] ICR 352 , paragraph 39, it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. That was the position that the tribunal found itself in in this case. It is regrettable that a final resolution of this case has been so long delayed by arguments about onus of proof which, on a fair reading of the judgment of the employment tribunal, were in the end of no real importance."
"19. Mr Knight also placed reliance on s.48(2) of the Act, which applies to all complaints of victimisation under the numerous heads now covered by Part V of the 1996 Act (eg for raising health and safety issues, for insisting on rights under the Working Time Regulations, for taking time off for training). It is in the following terms: 'On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.' 20. We were referred to no authority as to the effect of this sub-section (which does not appear to have any equivalent in the "victimisation" provisions of other statutes: see, e.g.s.4 of the Sex Discrimination Act 1975 ,s.2 of the Race Relations Act 1976 ands.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 ). On the face of it, it might seem to be intended to have the same effect as s.98(1) of the 1996 Act, which requires an employer in a claim of unfair dismissal to prove (a) what the reason for the dismissal was and (b) that it was one of the category of admissible reasons: it is well established that if the employer fails to establish either of those matters the dismissal is, without more, unfair. But in fact the two situations are not wholly analogous. The concept of "unfair dismissal" does not require the Tribunal to be satisfied of anything save that the section has not been complied with: it has in that sense no positive content. The definition of victimisation, on the other hand, requires the ingredient that the employer has acted on the prohibited ground. There is no doubt no reason in principle why the statute could not have provided that the employer be deemed to have so acted where he does not prove any other reason; but one would expect such a provision to be clearly spelt out. Further, if s.48(2) were construed as having such a deeming effect the result would appear to be that an employer who could not prove his "ground" could be liable to a series of claims under each of the anti-victimisation provisions of Part V: that would no doubt be highly unlikely to happen in practice, but even the theoretical possibility casts doubt on the correctness of the approach. Against that background, Mr Patten submits that all that s.48(2) does is to make it clear to employers that they have to be prepared in the Tribunal to say why they acted in the respect complained of, with the result that if they fail to do so they may find inferences drawn against them (though only if such inferences are justified by the facts as a whole). 21. We find Mr Patten's submission persuasive, but we do not believe that on this appeal we are obliged to resolve the question of the effect of s.48(2). After being briefly referred to in paragraph 1 of the Reasons, it played no part in the Tribunal's expressed reasoning. Any use to which it might legitimately have been put in support of Mr Knight's case was superseded by the misdirection which we have identified above. Prudent Tribunals in dealing with victimisation claims will no doubt prefer, wherever possible, to make positive findings as to the grounds on which the employer acted rather than to rely on s.48(2) until its effect has been authoritatively established."
"87. Although I regard the use of wrong language as unfortunate and accept that it can in some cases betray a misdirection or misapplication of law, it is necessary to look at the substance of the conclusions reached by the Tribunal in their full context to determine whether such an error has occurred, and wrong simply to assume that the use of wrong language is indicative of error. Further, I bear in mind the often expressed observation, repeated by Lord Hope in Hewage v Grampian Health Board[2012] ICR 1054 at paragraph 26: "… that one ought not to take too technical a view of the way an employment tribunal expresses itself, that a generous interpretation ought to be given to its reasoning and that it ought not to be subjected to an unduly critical analysis"."
"74. Allowing that the relevant statutory framework places the burden of proving the reason for any detriments found on the employer (s.48(2) ERA), the question the ET had to grapple with was whether the protected disclosure had materially influenced the employer's treatment of the Claimant in this case (per Elias LJ in Fecitt ). We can see that - hypothetically - there may be cases where there is an organisational culture or chain of command such that the final actor might not have personal knowledge of the protected disclosure but where it nevertheless still materially influenced her treatment of the complainant. In such cases, however, it would still be necessary for the ET to explain how it had arrived at the conclusion that this is what had happened."
"14. I should spell out the effect of those provisions (which are substantially identical to their cognates in the other pre-2010 discrimination legislation and in the 2010 Act). There is a full analysis by Sedley LJ in Gilbank v Miles[2006] EWCA Civ 543 ,[2006] IRLR 538 , at paragraphs 44-51 (p.544). But, in short, the primary liability for discrimination is placed by reg. 7 on the employer, who will be liable for the acts of his employees acting in the course of their employment (reg. 25(1)), subject to the 'reasonable steps' defence in reg. 25(3). However, the individual employee who does the actual act of discrimination is also liable on the basis that he has 'aided' his employer to do the act in question, and that is so even where the employer has escaped liability by reason of the reasonable steps defence - reg. 26(1) and (2). Thus, although the route adopted is different, the end result is substantially the same as in the case of vicarious liability for a common law tort: both employer and employee are liable for the act complained of, and the claimant has the choice of proceeding against either or both. It is probably most common for a claimant to proceed only against the employer, but it is not at all uncommon for one or more of the alleged individual discriminators to be joined as well; and occasionally (eg where the employer is insolvent) such an individual may be the only respondent or may find himself solely liable because the employer has successfully invoked the reasonable steps defence (as happened in the well-known case of Yeboah v Crofton[2002] IRLR 634 CA). … 34. We are accordingly concerned not with joint decision-making but with a different situation, namely one where an act which is detrimental to a claimant is done by an employee who is innocent of any discriminatory motivation but who has been influenced by information supplied, or views expressed, by another employee whose motivation is, or is said to have been, discriminatory. I will refer to this as a case of 'tainted information' (treating 'information' widely so as to cover also the expression of views). I agree with Singh J that tainted information cases may arise in a variety of different ways, but I will for the purpose of discussion take as an example a case of the kind with which we are concerned here - that is, one where a manager has decided to dismiss an employee on the basis of an adverse report about her from another employee who is motivated by her age. I will refer to the employer as E, the claimant as C, the decision-maker as X and the informant as Y. 35. I agree with Singh J that it would plainly be unjust if in such a situation C had no remedy against E; and that was in fact common ground before us. But the parties differed as to the legal basis on which a remedy should be available. Mr Pitt-Payne's submission was that Y's discriminatory motivation could be treated as the ground, or part of the ground, for C's dismissal, albeit that the actual decision-maker was X; and it seems, though his reasoning was not perhaps quite explicit, that that was also the approach of Singh J. I will refer to this as 'the composite approach', because it involves bringing together X's act with Y's motivation. Mr Tatton-Brown submitted that that was illegitimate and that the right approach was to treat Y's report as a discrete discriminatory act, for which E was liable (provided it was done in the course of Y's employment, and subject to the 'reasonable steps' defence) by virtue of reg. 25, with C being able to recover for the losses caused by her dismissal as a consequence of that act rather than because the dismissal itself was unlawful. I will refer to this as 'the separate acts approach'. Mr Pitt-Payne accepted that that was a possible analysis, but he submitted that it was unnecessary and over-complicated and that if it were the only route that would have various unsatisfactory consequences to which I will return below. 36. In my view the composite approach is unacceptable in principle. I believe that it is fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic. I see no basis on which his act can be said to be discriminatory on the basis of someone else's motivation. If it were otherwise very unfair consequences would follow. I can see the attraction, even if it is rather rough-and-ready, of putting X's act and Y's motivation together for the purpose of rendering E liable: after all, he is the employer of both. But the trouble is that, because of the way the Regulations work, rendering E liable would make X liable too: see the analysis at paragraph 13 above. To spell it out: (a) E would be liable for X's act of dismissing C because X did the act in the course of his employment and - assuming we are applying the composite approach - that act was influenced by Y's discriminatorily-motivated report. (b) X would be an employee for whose discriminatory act E was liable under reg. 25 and would accordingly be deemed by reg. 26(2) to have aided the doing of that act and would be personally liable. It would be quite unjust for X to be liable to C where he personally was innocent of any discriminatory motivation. 37. I do not believe that that conclusion is undermined by either of the authorities referred to by Singh J (see paragraphs 24 and 25 above). The passage from Lord Nicholls' speech in Nagarajan was not directed at the present question at all. As for Igen v Wong , in my view the burden of proof provisions do not advance the argument on this particular point. What they are concerned with is how the claimant can prove the elements of his or her claim, but they have no bearing on what those elements are. (I have something more to say about the burden of proof provisions in a different context at paragraph 51 below.) 38. I would add, in the light of Singh J's reference to Nagarajan , that there is in fact a later passage in Lord Nicholls' speech which comes somewhat closer to the issue with which we are concerned. Mr Nagarajan's claim was brought unders.4(1)(a) of the Race Relations Act 1976 , which rendered it unlawful for a person to discriminate 'in the arrangements he makes' for (to paraphrase) recruiting new employees. His case was that he had not been offered a job because the interviewing panel was influenced by the fact that he had previously brought a discrimination claim against an associated company of LRT. One of the issues was whether the panel members could be said to have 'made the arrangements' for determining whether the applicant should be recruited. That to some extent depended on the meaning of that particular phrase, but Lord Nicholls' analysis went wider. He referred not only to s.4 but also to s.32, which was the equivalent of reg. 25 of the 2006 Regulations. He said, at paragraph 23: 'When these provisions are put together, the effect is that on a complaint against an employer under s.4(1)(a) it matters not that different employees were involved at different stages, one employee acting in a racially discriminatory or victimising fashion and the other not. The acts of both are treated as done by the respondent employer. So if the employee who operated the employer's interviewing arrangements did so in a discriminatory manner, either racially or by way of victimisation, s.4(1)(a) is satisfied even though the employee who set up the arrangements acted in a wholly non-discriminatory fashion. The effect of treating the acts of the discriminatory employee as the acts of the employer is that the employer unlawfully discriminated in the arrangements he made for the purpose of determining who should be offered employment by him. Hence in the Brennan vJH Dewhurst Ltd[1983] IRLR 357 case, the employer unlawfully discriminated against women by reason of the discriminatory way the branch manager Mr French conducted interviews as part of the arrangements made without any discriminatory intent by the district manager, Mr Billing.' That is not on all fours with the present case, because the language of the relevant provision is different. But it is nevertheless noteworthy that Lord Nicholls held the employer liable on the basis of its responsibility for the acts of the specific individuals who had a discriminatory motivation rather than by creating some notional composite responsibility. 39. By contrast, the separate acts approach conforms entirely to the scheme of the legislation. To spell it out: (1) By making an adverse report about C, Y subjects her to a detriment within the meaning of reg. 7(2)(d). (2) If in making the report Y was motivated by C's age his act constitutes discrimination within the meaning of reg. 3(1)(a). (3) If that discriminatory act was done in the course of Y's employment, as in practice it would be, then by virtue of reg. 25(1) it would be treated as E's act; and accordingly E would be liable (unless he could rely on the 'reasonable steps' defence). (4) Y would also be liable for his own act by virtue of reg. 26(1) and (2). (5) The losses caused to C by her dismissal could be claimed for as part of the compensation for Y's discriminatory act, since they would have been caused or contributed to by that act and would not (at least normally) be too remote. … 46. I accordingly believe that the correct approach in a tainted information case is to treat the conduct of the person supplying the information as a separate act from that of the person who acts on it. … 48. I have felt obliged to consider at such length the choice between the composite approach and the separate acts approach partly in order to feel firm analytical ground beneath my feet, but also because it is of some general importance and was the subject of extensive submissions from counsel. However it does not in fact seem to me to be decisive of the issue with which we were concerned. On either approach the motivation of those whose input influenced Mr Gilmour's decision was potentially relevant to the claim. But in my view it was only actually relevant, and the tribunal was only obliged to consider it, if the claimant in fact sought to rely on it. It cannot be an error of law for an employment tribunal not to address a case which was not advanced before it."
"(5) In the case of a judgment the reasons shall: identify the issues which the Tribunal has determined, state the findings of fact made in relation to those issues, concisely identify the relevant law, and state how that law has been applied to those findings in order to decide the issues. …"
"8. … contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; …"
"… [Employment] Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law. … their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon such analysis. This, to my mind, is to misuse the purpose for which reasons are given."
"19. It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon. … 21. When giving reasons a judge will often need to refer to a piece of evidence or to a submission which he has accepted or rejected. Provided that the reference is clear, it may be unnecessary to detail, or even summarise, the evidence or submission in question. The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the judge's decision."
"… in considering whether the reasons given by an industrial tribunal comply with its statutory obligation, it is very important to keep in mind the issues which the industrial tribunal was dealing with. It has, of course, to reach conclusions on the issues which the statute raises, viz. in the present case, have the employers established that the reason for the dismissals was redundancy and, if so, did they act reasonably in treating the redundancy as a sufficient reason for dismissing the employees? But, whilst it must consider all that is relevant, it need only deal with the points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points …"
"46. … Each case must be decided in the light of its own particular circumstances. It cannot be right that in every case the tribunal must make express findings on every piece of circumstantial evidence, however peripheral, merely because the applicant chooses to make it the subject of complaint."
"70. Paragraph 59 of the [grounds of appeal] deals with paragraph 166 of the Judgment [CB/1/59] and the Tribunal's findings on the first detriment, i.e. the attempted recruitment of a new analyst to replace [the Claimant] in August 2015. In relation to this the Tribunal failed to give reasons as to why: a) Notwithstanding that the three leaders of the GCT had worked closely together for more than 20 years and involved each other in every decision concerning the team, it determined that there was no evidence that Kerr knew of the APT protected disclosures in early August 2015, particularly when it accepted that JWA was so aware from29 June 2015 ."
"178. The Tribunal has repeated this process for the disclosures relating to due diligence. Four disclosures of information are relied upon namely on10 June 2015 to Paul Hodges, on18 June 2015 to Jim Durkin, on29 June 2015 to Jim Durkin and Jeremy Warner Allen and on3 September 2015 to Julie Gray. These duplicate the qualifying disclosures in the APT matter and we have already found that these four matters do amount to qualifying and protected disclosures. 179. The detriments relied upon are at issues 10(a)-(j). 180. In relation to detriments at issues 10(a)-(h), we have already set out at paragraphs 166 to 174 above. We have considered whether there is anything from which we can find that these matters occurred because Dr Malik made protected disclosures in respect of due diligence but the position is the same as with APT. For the same reasons as with APT the last two detriments, (i) and (j) have not been pursued. 181. In these circumstances the Tribunal is satisfied that Dr Malik was not subjected to a detriment because he made protected disclosures relating to due diligence."
"212. Dr Malik relies on five detriments. These are the same detriments as the second to the sixth detriments in the claim of detriment for making protected disclosures. We have already found the reasons for the second, third and fifth disclosures at paragraphs 167, 168 and 170 above respectively. In relation to the fourth detriment, we have noted at paragraph 169 above that Dr Malik could not explain to us why the award of his bonus amounted to a detriment. Finally, in relation to the sixth detriment, we have noted at paragraph 171 above that Dr Malik has not proved that he was subjected to this detriment. There is nothing from which the Tribunal may infer that any of the alleged detriments were because of the protected acts. In addition, there is nothing to suggest that the actions of the Respondents were in any way motivated by the complaints made by Dr Malik on 27 August or22 September 2015 ."
"195. The third alleged breach is: That steps have been taken through to the analyst into GCT in August 2015 while he was on holiday, despite express representations from Paul Hodges that this would not occur. " "201. The Claimant has not demonstrated any repudiatory breach, with the possible exception of the steps to recruit an analyst. He failed to act on the steps taken to recruit an analyst and therefore affirmed any breach that there might have been. Dr Malik did not resign until8 December 2015 . The Tribunal is not satisfied that there was a constructive dismissal."
"15. … he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."
"16. … It seems to us that when the Master of the Rolls is talking about the employee continuing for any length of time without leaving he is referring to a situation where the employee actually does the job for a period of time without leaving, or if he does some other act which can be said to affirm the contract as varied. …" (c) In W E Cox Toner (International) Ltd v Crook[1981] IRLR 443 itself, the EAT considered the case of a senior employee who had been subjected to censure by his employer in July 1979 on the basis of certain allegations. He refuted the allegations and required them to be withdrawn. In February 1980 the employer made it plain that the allegations would not be withdrawn. A month later the employee resigned. The EAT considered that: i. as a matter of law, affirmation may be express or implied (paragraph 13); ii. an innocent party who calls upon the other party to perform the contract of employment will be taken to have affirmed it (paragraph 13); iii. an innocent party who does acts which are only consistent with the continued operation of the contract will be taken to have affirmed it (paragraph 13); iv. however: "13. … if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation." (d) In Buckland v Bournemouth University Higher Education Corporation[2010] EWCA Civ 121 , the employer had suggested before the employment Tribunal and the EAT that it had 'cured' any breach of the implied term of mutual trust and confidence which had occurred prior to the resignation of the employee. The Court of Appeal did not accept that a breach of contract could be 'cured' so as to deprive an employee of the opportunity to repudiate the contract in response. However, at paragraph 44 of the judgment, Sedley LJ observed: "44. Albeit with some reluctance, I accept that if we were to introduce into employment law the doctrine that a fundamental breach, if curable and if cured, takes away the innocent party's option of acceptance, it could only be on grounds that were capable of extension to other contracts, and for reasons I have given I do not consider that we would be justified in doing this. That does not mean, however, that tribunals of fact cannot take a reasonably robust approach to affirmation: a wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends. …"
"I will be recommending that discussions should commence in earnest between Paul Hodges and the Growth Companies Team Leaders as to how the change a reporting line and working practice and if there is likely to be an impact on your [role] that you are consulted on this."
"In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."