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Neutral Citation Number:	2012 UKUT 100 AAC
Reported Number:
File Number:	CJSA 598 2011
Appellant:	AA
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	15/03/2012
Date Added:	16/05/2012
Main Category:	Jobseekers allowance
Main Subcategory:	voluntary unemployment
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2012] AACR 42. Jobseeker’s allowance – misconduct – whether sanction was appropriate under the public interest disclosure legislation The claimant was employed by Birmingham City Council as a school business manager in July 2008. In April 2009 he made enquiries of the Head Teacher about alleged discrepancies in her travel expenses claim. He failed to resolve his concerns and in May sent an email to a Principal Employee Relations Officer of the Council which he also copied to the Chair of Governors and several officers within the school who reported to him. On 11 May the claimant was suspended from work and in December he was dismissed on the ground of gross misconduct. He then claimed jobseeker’s allowance (JSA) but was disqualified from receiving benefit for 12 weeks from 11 May 2010 to 27 July 2010 as he had lost his employment through misconduct. He appealed on the grounds that his dismissal was wrong, as his disclosures were protected under the public interest legislation, and that he had submitted claims to an employment tribunal. The First-tier Tribunal (F-tT) took the view that the claimant had acted correctly in raising his concerns with the Principal Employee Relations Officer but his decision to copy it to junior officers within the school was wrong as it called into question the Head Teacher’s integrity and undermined her relationship with her staff. The F-tT disallowed the appeal and confirmed that the 12-week disqualification was reasonable. The claimant appealed to the Upper Tribunal (UT). The issue before the UT was whether there were any errors of law by the F-tT: (1) in failing to consider or even mention the public interest disclosure legislation; (2) in failing to consider whether to adjourn the hearing pending the employment tribunal’s decision; and (3) in failing to consider whether the council should have established whether or not the claimant’s allegations were correct before dismissing him. Held, dismissing the appeal, that: 1. in certain situations the public interest disclosure legislation establishes, as a matter of public policy, an area of action by an employee as legitimate which may otherwise have led an employer to take disciplinary action. It alters the relationship of employer and employee and the rights and duties of both including what would normally be regarded as blameworthy, reprehensible and wrong under the principles in R(U) 2/77. It would be hard to justify any decision that a person had lost his employment through misconduct where the misconduct consisted only of protected disclosures (paragraph 14); 2. the F-tT erred in law by failing to address the relevance of the public interest disclosure legislation. But its decision would have been the same even if it had done so, for various reasons. First, it could not have possibly decided the claimant’s disclosures were reasonable as it had already decided it was wrong for him to have copied his email to junior staff. Next, it did not ignore relevant factors or take irrelevant factors into account and its evaluation of the evidence, including the claimant’s explanation, was brief but adequate. None of the three alternative necessary conditions for disclosure to be protected under section 43G(1)(d) of the Employment Rights Act 1996 was satisfied. So there was no material error of law by the F-tT which could have led to a different outcome and so no justification for setting aside its decision (paragraphs 15 to 18); 3. the F-tT was entitled to decide the case without waiting for the employment tribunal’s decision and to do so without giving reasons. An adjournment would have involved an unknown delay and the claimant had not specifically asked the F-tT to adjourn. The tribunal could have mentioned the employment tribunal proceedings in its statement of reasons but its failure to do so was not an error of law (paragraphs 19 to 20); 4. under the public interest disclosure legislation it is not a condition of protection that the information disclosed should be accurate or that a criminal offence had actually been committed or a legal obligation not complied with. All that is generally required is a reasonable belief on the part of the person making the disclosure. So there was no need for the F-tT to establish the accuracy of the claimant’s disclosure before deciding his case and its decision that what the claimant did was misconduct was a reasonable judgment for the tribunal to reach (paragraphs 21 to 25).
Decision(s) to Download:	CJSA 0598 2011-00.doc [2012] AACR 42bv.doc