The Claimant brought a claim for unfair dismissal against the Respondent. The Employment Tribunal (“ET”) held that the dismissal was automatically unfair on the basis that the Claimant had been dismissed because she made protected disclosures and due to the Respondent’s failure to satisfy the ET that the dismissal was due to capability. The Respondent submitted that the ET has erred in its finding as it had entertained the possibility that the Claimant had been dismissed on grounds of “whistleblowing”. The important ET note, dated 17 May 2019, being:

“When pressed the Claimant indicated that she was prepared to accept that the information contained in the email should be taken as further and better particulars and that she would not formally amend her claim to add in a claim for “whistleblowing/protected disclosure”.”

The Employment Appeal Tribunal (“EAT”) held that the claim for whistleblowing detriment was not before the ET as this ground had been disclaimed by the Claimant in a preliminary hearing. The EAT went on to hold, however, that the ET had been entitled to uphold the submission that the Claimant had been dismissed on the basis that she had made protected disclosures. The Claimant’s evidence was that her lack of capacity was not why she was dismissed, and the ET was entitled to accept this evidence.