Mr A Smith v Mid Essex Hospital Services NHS Trust — 2017

This judgment was given on remission from the Employment Appeal Tribunal after the tribunal’s earlier conclusion on automatic unfair dismissal under s.103A ERA 1996 was held not to stand. The issue remitted was whether Mr Smith’s dismissal was principally because he had made protected disclosures, or whether the respondent’s stated view of him as a nuisance was the real or principal reason for dismissal.

The tribunal revisited its earlier findings and the respondent’s submissions, including 30 references to factual findings said to support a nuisance-based explanation. It accepted that Mr Smith was a nuisance to the respondent in the background sense identified in the original reasons, and that some managers found aspects of his emails and conduct irritating. It also accepted that the respondent was aware of both the background difficulties and the protected disclosures when the dismissal decision was taken.

Having reconsidered the matter in light of Kuzel v Roche Products Limited and the EAT’s guidance, the tribunal concluded that the background nuisance factor did not displace the protected disclosures as the reason or principal reason for dismissal. It stated that the disclosures themselves, and Mr Smith’s role as a whistleblower, were what made him a nuisance in the relevant decision-making context, and that he was dismissed because he had made those protected disclosures.

No remedy was decided in this judgment. The tribunal recorded that remedy remained to be determined at a hearing listed for 2 and 3 October 2018, with directions to follow for witness statements, updated schedules of loss and counter-schedule, and an agreed bundle.