Cavendish Munro Professional Risks Management Ltd v Geduld EAT/0195/09

unfair dismissal | protected disclosure | disclosure of information

The Employment Appeal Tribunal (EAT) has held that a solicitor's letter complaining to an employer about an employee's treatment does not constitute the disclosure of information for the purposes of bringing a protected disclosure unfair dismissal claim.

Mr Geduld was a director and employee of Cavendish Munro Professional Risks Management Ltd. There were three directors, each holding 26.6% of the company's shares. There were tensions between the three directors and a meeting took place between them about the other two buying out Mr Geduld's shareholding. After the meeting, one of the directors sent an email to Mr Geduld setting out three options, which were for Mr Geduld to:

• resign as a director and reduce his shareholding, but remain as an employee;
• resign as a director and maintain his level of shareholding, but remain as an employee; or
• exit the company altogether.

Mr Geduld consulted solicitors, who wrote a letter to the two directors saying that their actions had led to "unfair prejudice" being placed on Mr Geduld and threatening legal action. Mr Geduld was subsequently dismissed and brought an employment tribunal claim on the basis that he had been unfairly dismissed under s.103A of the Employment Rights Act 1996 for making a protected disclosure.

An employment tribunal found that Mr Geduld had been dismissed because of the solicitor's letter and that the letter amounted to a qualifying disclosure under s.43B(1) of the Employment Rights Act 1996.

The EAT overturned the employment tribunal decision. For there to be a protected disclosure, information must have been disclosed, ie facts must have been conveyed. It is not enough for an allegation to have been made. For example, if an employee is dissatisfied with the way in which he or she is being treated and his or her solicitor complains to the employer that, if the treatment does not improve, the employee will resign and claim constructive dismissal and the employer dismisses the employee following this communication, this is not because of any disclosure of information and does not fall within s. 43B(1) of the Employment Rights Act 1996. While a "disclosure" can include the bringing of information to a person's attention even if he or she is already aware of that information, there is still a distinction between the "disclosure" and "communication" of information.

On the facts of this case, the solicitor's letter was written as part of an ongoing unresolved dispute between the parties and merely summarised the basis of the position adopted by Mr Geduld.

Case transcript of Cavendish Munro Professional Risks Management Ltd v Geduld (Microsoft Word format, 85K) (on the EAT website)

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