Practice group articles

Employment Tribunal statistics published
26 February 2010

The beneficial effects of workplace mediation
24 January 2010

Green light for employment claims | Religion and Belief
18 January 2010

Without prejudice communications can be admissible
17 January 2010

Default retirement age consultation
16 January 2010

Annual increase in tribunal awards
15 January 2010

Whistleblowing | Persisting in Allegations

23 June 2009



The Employment Appeal Tribunal (EAT) has ruled (Aryeetey v Tuntum Housing Association) that the Employment Tribunal (ET) was entitled to take into account developments that occurred between the liability hearing and the remedies hearing when determining the level of compensation payable to an employee who was held to have been unfairly dismissed for making protective disclosures. This was so even though the ET had found that the claimant had acted in good faith and the Polkey principle, whereby the ET can reduce the compensation awarded if it is satisfied that the employee’s conduct was such that he would have been dismissed anyway if proper procedures had been followed, did not apply.

Mr Benjamin Aryeetey was dismissed from his post as Finance Director of the Tuntum Housing Association by its Chief Executive, Mr Richard Renwick. Mr Aryeetey brought a claim for unfair dismissal, alleging that the principal reason for his dismissal was the fact that he had made protected disclosures, in good faith, regarding accounting irregularities. The ET upheld his claim but reduced the compensatory award by 25 per cent on the ground of Mr Aryeetey’s contributory fault. In the ET’s view, the Polkey principle did not apply as it was too speculative to say that Mr Aryeetey would have been dismissed at some juncture. Investigations by the Housing Association had revealed no evidence of dishonesty and the ET worked on the assumption that Mr Aryeetey would accept its finding.

A remedies hearing took place on 7 April 2008. In the intervening period, Mr Aryeetey had written a letter of complaint to the police, alleging that Mr Renwick was guilty of fraudulent accounting and possibly theft. Subsequent police investigations revealed that there was no case to answer for any of the allegations. This and other actions taken by Mr Aryeetey led the ET to conclude that he now sought to conduct a witch hunt against Mr Renwick and could not be found to be acting in good faith. Rather, his motive had become one of vendetta and his obsession was to ‘destroy Mr Renwick’. In the circumstances, a continued employment relationship would not have been tenable.

The ET concluded, therefore, that the cut off point for calculating Mr Aryeetey’s losses should be 16 April 2007, the date he decided to pursue matters with the police. It would be inequitable in the circumstances to award Mr Aryeetey future losses up to the retirement age of 65.

Mr Aryeetey appealed against this decision and lost.

The EAT held that the findings at the liability hearing (particularly that the Polkey principle did not apply) did not preclude the ET from deciding, in the light of future developments, that Mr Aryeetey could have been fairly dismissed on account of the letter to the police. Furthermore, there was nothing unfair in the procedure adopted by the ET in reaching its decision. In addition, the ET is the fact-finding body and its findings – that Mr Aryeetey was motivated by vendetta and an obsession to destroy Mr Renwick and that, by the time he made his complaint to the police, he could not have had a reasonable belief in the truth of his accusation that Mr Renwick was dishonest – meant that he could not rely on earlier case law which provides that the reasonable belief has to be based on facts as understood by the worker making the protected disclosure, not as actually found to be the case.

For legal advice concerning whistleblowing please contact James Townsend, senior associate in the Employment law practice group on 01753 278658, complete the online enquiry form or email employmentlaw@bpcollins.co.uk.