Successful defence against a bogus unfair dismissal claim

Paul acted for a solicitor responding to an unfair dismissal arising from an alleged Public Interest Disclosure. The Claimant had been a Legal Secretary who alleged that the employer had been routinely marking up disbursements and avoiding VAT liability over an extended period.

The Claimant said that the issue had been raised with the employer and was a “Protected Disclosure” (under section 103A Employment Rights Act 1996) and that the employer had subsequently unfairly dismissed the employee by accepting a disputed “resignation” in an email.

The employer said that the employee had submitted a series of complaints and demands (including the alleged mark-ups) intended to coerce the employer into making various payments to the employee. Their argument was that the email, giving the employer an ultimatum to either grant a weeks’ holiday or the employee would resign, was, in the context of the previous complaints and the employee’s failure to attend work, an effective resignation.

The Tribunal rejected the employee’s claims for unfair and/or constructive dismissal and agreed that the disclosure was not “protected” because it had been made in bad faith and for personal gain rather than in the public interest.

The employer’s application for costs, based on the employee’s unreasonable conduct, was refused, but solely on the basis that to make an order would result in the employee having to cash in a pension and/or sell their house.