The Employment Appeal Tribunal (EAT) has allowed a whistleblowing claim to be reheard because the Employment Tribunal which heard the case made several important errors of law in arriving at its decision.

Background

Executive & Business Aviation Support Ltd (EBAS) was a small company with just three employees, one of whom was the claimant Maria Schaathun. For most of her employment, Ms Schaathun was in a relationship with the company’s managing director, Mark Abbott. Between December 2008 when the relationship ended and July 2009 when EBAS dismissed Ms Schaathun, she made a number of whistleblowing disclosures to various parties, including HMRC, firms of solicitors, the Civil Aviation Authority and the Environment Agency as well as Mr Abbott.

The claim

Following her dismissal, Ms Schaathun brought a claim for automatic unfair dismissal in which she argued that she had been let go because of the whistleblowing disclosures. EBAS responded that the reasons for Ms Schaathun’s dismissal were redundancy and the breakdown of her relationship with Mr Abbott.

The Employment Tribunal decided that Ms Schaathun had been unfairly dismissed, but not for whistleblowing reasons. It found that the reason for her dismissal was the breakdown in the relationship between her and Mr Abbott. She appealed the decision to the EAT.

EAT’s decision

The EAT allowed Ms Schaathun’s appeal and found that the Employment Tribunal had erred in law regarding several significant aspects of the claim. Among the errors of law made by the Tribunal were:

• Failing to establish whether Ms Schaathun had made qualifying disclosures to a legal advisor or to a prescribed person in accordance with the procedure stipulated in the whistleblowing legislation.
• Striking out qualifying disclosures because the Tribunal felt Ms Schaathun had not told Mr Abbott about them and therefore they had not become protected disclosures.
• Striking out protected disclosures because Ms Schaathun had not demonstrated that Mr Abbot had been aware of them so they could not have been the reason for her dismissal.
• Requiring Ms Schaathun to show that the reason for her dismissal was the protected disclosures.

During the appeal hearing, the EAT considered whether the employment judge had improperly prevented Ms Schaathun from cross-examining Mr Abbott about transcripts of phone conversations she had with him. The EAT stopped short of finding that the employment judge’s behaviour amounted to bias, but noted that it came close. During the course of the hearing the judge had given Ms Schaathun two costs warnings, pointed out that the claim could be struck out and made evident his irritation with her handling of cross-examination. Despite this, the EAT found that Ms Schaathun had not been disadvantaged by not being permitted to cross-examine Mr Abbott on the transcripts because they had not contained any evidence that Mr Abbott had been aware of Ms Schaathun’s protected disclosures.

Photograph: Cayman Cocierge