- Two recent decisions, from different areas of employment law, have explored the extent to which a legal distinction can be drawn between the factual content of a statement and the way that information is conveyed.
The distinction between form and content has been the subject of unresolved philosophical exploration for millennia. But for tribunals tasked with resolving whistleblowing or discrimination disputes, such distinctions can have an immediate practical impact when ruling on liability.
In dismissal-related whistleblowing claims the employment tribunal has to establish the reason for the claimant’s dismissal. Section 103A of the Employment Rights Act 1996 provides that a dismissal is automatically unfair if the reason (or if more than one, the principal reason) is that the claimant made a protected disclosure.
In Kong v Gulf International Bank (UK) Limited [2022] EWCA Civ 941 it was accepted that Ms Kong had made protected disclosures, but the bank said she had made these in a way that impugned the integrity of a senior colleague.
The employment tribunal concluded that she had been dismissed because of the ‘seriously inappropriate way’ she had challenged the integrity of her colleague and not because she had made protected disclosures. The Court of Appeal ruled that this was a distinction that the tribunal was entitled to draw. In doing so, it endorsed the ‘separability principle’—ie the principle that the protected disclosure could form part of the factual background to the dispute, without being the cause of the detrimental treatment.
A number of earlier authorities were cited in Kong including Martin v Devonshires Solicitors UKEAT/86/10. That was a victimisation claim brought by a legal secretary who had been dismissed after making numerous allegations of sex and disability discrimination against her employer. Ms Martin was found to be suffering from mental illness and all the allegations were found to be false. The Employment Appeal Tribunal (EAT) upheld the decision of the employment tribunal to dismiss her claim for unlawful victimisation. It had reached that conclusion because it decided that she had not been dismissed because of the allegations that she had made (which would have been unlawful victimisation) but because of her continuing ill-health and the risk of further disruptive behaviour.
Both whistleblowing and victimisation claims require the claimant to establish a causal link between the actions of the decision maker and the protected disclosure or act. Lady Justice Simler, giving the leading judgment in Kong, makes it clear that this is not an easy question to determine:
‘The statutory question to be determined in these cases is what motivated a particular decision-maker; in other words, what reason did he or she have for dismissing or treating the complainant in an adverse way. This factual question is easy to state; but it can be and frequently is difficult to decide because human motivation can be complex, difficult to discern and subtle distinctions might have to be considered.’ (at para [59])
Recent litigation over gender-critical beliefs has illustrated how the need for these ‘subtle distinctions’ can also arise in direct discrimination claims. The employment tribunal’s decision in Forstater v CGD Europe and others Case Number: 2200909/2019 is the most recent example.
Last year Ms Forstater obtained a ruling from the EAT (UKEAT/0105/20/JOJ) that her gender-critical beliefs (essentially that biological sex is immutable) qualified as protected beliefs under the Equality Act 2010, despite many people finding these beliefs offensive. When the case returned to the tribunal earlier this year it concluded that CGD Europe had directly discriminated against her because of her protected beliefs when it decided not to offer her an employment contract and not to renew her visiting fellowship.
The dispute arose because those involved in managing her in her role as consultant thought that some of her tweets about trans issues (even though made in a private capacity) were in conflict with their organisation’s position on inclusion. They were also of the view that some of her tweets used ‘exclusionary, inflammatory language’.
When reviewing the tweets to which objection had been taken, the employment tribunal followed guidance from the Court of Appeal in Page v NHS Trust Development Authority [2021] EWCA Civ 255. In that case, Lord Justice Underhill confirmed that a distinction could be drawn between less favourable treatment because the claimant holds or manifests a particular belief (which would be unlawful discrimination) and cases where the less favourable treatment was because they had ‘manifested that belief in some particular way to which objection could justifiably be taken’.
The employment tribunal accordingly scrutinised the tweets by Ms Forstater that were drawn to its attention. It reached the conclusion that none of them were ‘objectively offensive or unreasonable’ in the way they were expressed, though in one instance this decision was not unanimous. That analysis supported its conclusion that in two instances CGD Europe had directly discriminated against Ms Forstater because of her beliefs.
This brings us back to Wong. It could be said that whistleblowers and those holding what could be regarded as minority, though protected, beliefs are both inherently unpopular with colleagues and managers. In assessing the reasons given by their employers for any detrimental treatment, employment tribunals will be acutely aware of the risk of confining statutory protection to the more astute and restrained claimants who are best able to moderate the way they communicate.
Charles Pigott, professional support lawyer, Mills & Reeve LLP (www.mills-reeve.com).
