Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust UKEAT/0047/19/BA

Appeal against the ET’s dismissal of the Claimant’s claim that he was subject to one or more detriments on the ground of protected disclosures. Appeal allowed.

The Claimant, who was employed by the Respondent at the time of his claim but had resigned by the time of the ET hearing, raised concerns in relation to patient safety arising from a proposed new rota. He was placed on restricted duties while the Respondent investigated an alleged incident concerning his conduct. The Claimant claimed in the ET that he had made protected disclosures and had been subjected to detriments because of those disclosures. The ET found that the Claimant had made protected disclosures, but that he was not subjected to any detriments on the ground that he had made those disclosures, and so his claims under section 47B of the Employment Rights Act 1996 ("ERA") were dismissed. The Claimant appealed on the grounds that the ET wrongly stated the underlying legal test of what it means for treatment to have been on the ground of having made a protected disclosure, and that it failed properly to state and address how the burden of proof works in relation to such a claim, including by failing to cite specifically section 48(2) of the ERA.

The EAT held that the ET had erred in failing to give full consideration to the mental processes of the individuals concerned in relation to whether the disclosures had a material influence on the conduct complained of; similarly, in relation to the burden of proof, the ET failed to refer to section 48(2) of the ERA or to show sufficient awareness of the guidance that has emerged from the authorities on how the section works in practice.

Published: 13/02/2020 10:19

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