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The facts in Kaltz Ltd v Hamer

Mrs Hamer (“the Claimant”) commenced employment with Kaltz Ltd in 2001 as administration manager of Kaltz Ltd (“the Respondent”). In 2009 she was subjected to a disciplinary for three separate issues: firstly, her attitude towards other members of staff; secondly, misconduct in her attitude and disrespect shown to directors; and thirdly, gross misconduct for disclosure of payroll information which amounted to confidential information. The third allegation (the disclosure of confidential information) was sub-divided into three separate issues, one of which amounted to a protected disclosure as the information showed or disclosed wrongdoing by the Respondent. The Claimant was subsequently dismissed for gross misconduct.

The Claimant therefore submitted employment law claims to the Employment Tribunal relating to sex discrimination, wrongful dismissal, and unfair dismissal. The Employment Tribunal rejected the claims for sex discrimination and wrongful dismissal but upheld the claim for automatic unfair dismissal (on the basis that the main reason for the dismissal was the making of a protected disclosure). The Employment Tribunal, however, considered that on “ordinary” unfair dismissal principles the dismissal of the Claimant would have been within the range of reasonable responses in the circumstances. The Employment Tribunal awarded the Claimant £33,941.20 in compensation.

The law relating to unfair dismissal

Due to the nature of this claim we’ll take a look at the law relating to automatic unfair dismissal and how it relates to the making of protected disclosures by Claimants under employment law.

Under s.103A the dismissal of employees for making a protected disclosure is automatically unfair. Under automatic unfair dismissal principles the Claimant does not have to have a continuous period of employment of over a year and there is no cap on damages (like ordinary unfair dismissal principles).

An employee makes a protected disclosure if they make a qualified disclosure to a suitable person. A qualified disclosure is information which in the reasonable belief of the worker shows that any of the following has been committed, is being committed, or is likely to be committed:

  • Criminal offence
  • Failure to comply with a legal obligation
  • Miscarriage of justice
  • That the health or safety of another individual has been endangered
  • That the environment has been damaged
  • That information relating to any of the above has been concealed

The qualifying disclosure must also be disclosed to a suitably qualified person. This can include a solicitor, your employer, or a Member of Parliament (among others).

The qualifying disclosure must be made in good faith and with reasonable belief that the information is substantially true.

Once the qualifications have been met to have made a protected disclosure the employee will be automatically unfairly dismissed under employment law principles if the principal reason for the dismissal related to the making of the protected disclosure.

The Employment Appeal Tribunal’s judgment in Kaltz Ltd v Hamer

The Respondent appealed on remedy, not liability. It considered that the Employment Tribunal had:

  1. Misdirected itself in its application of the law to the facts by deciding the case on overly narrow legal principles
  2. Erred in law in not reducing the Claimant’s compensation in light of her contributory fault in her dismissal on account of her conduct
  3. Erred in law in not reducing the Claimant’s compensation in light of Polkey rules (I.e. that she would have been dismissed anyway but for the protected disclosure)

The Employment Appeal Tribunal determined that, respectively:

  1. The Employment Tribunal had not misdirected itself but had reached its decision based upon a broad consideration of the law and the circumstances of the case
  2. The Employment Tribunal had failed to give reasons as to why the other elements of disclosure of confidential information had not impacted upon their decision relating to liability or compensation
  3. The Employment Tribunal was entitled not to make a Polkey reduction but had failed to give reasons for not doing so

The case was therefore remitted to the same Tribunal to decide points 2 and 3.

Our thoughts on Kaltz Ltd v Hamer

This is a case in which the Employment Tribunal has come to a reasonable but inconsistent decision relating to the issues of wrongful dismissal and unfair dismissal under employment law. It has also failed to give reasons for its rejection of the Respondent’s contributory fault and Polkey arguments. It must be borne in mind that these are complex issues and involve lengthy judgments, so it is understandable that the Employment Tribunal sometimes makes oversights. However, the Respondent was entitled to have reasons given for the rejection of the above arguments and this is why the case has been remitted to the Employment Tribunal for it to consider compensation. It remains to be seen whether the Respondent will achieve a more favourable outcome.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

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