In March 2013 the claimant in Leeds Teaching Hospital NHS Trust v Blake was made subject to a final written warning (for abuse of confidential information) lasting for twelve months and moved from her post as a supervisor to work as a security officer. She had alleged that her employer had subjected her to sex discrimination during the disciplinary proceedings and this, together with the fact that she had assisted a colleague in a disability discrimination claim, were accepted as protected for the purposes of the victimisation legislation.
There then followed, within the 12 month warning period, a dispute about holiday authorisation. The claimant had sent an e-mail to her line manager asking to take leave and requesting an immediate reply. The manager replied asking her to follow the correct procedure for applying for leave in advance. She did this but, later in the year, she booked and paid for a cruise with her daughter, simultaneously submitting a form asking for authorisation. Despite being told that authorisation could not be granted, as two security officers were already on leave, she went ahead and took it. She was dismissed for gross misconduct for taking leave without proper authorisation; unauthorised absence and a failure to follow reasonable management instructions.
The Employment Tribunal decided that the claimant's conduct was not the true reason for dismissal and that the employer had victimised the claimant because of the protected acts.
The EAT allowed the appeal. The Tribunal had not properly examined whether the protected acts were a significant influence on the decision to dismiss. The key issue was whether the employer genuinely believed in the claimant's misconduct. If so, it was at least possible that the reasons for dismissal were separable from the protected acts; the case was sent back to a new tribunal to establish this. The EAT stressed that there is an important distinction between an employer "taking a welcome opportunity to dismiss for misconduct" on the one hand and dismissing because of antipathy to earlier discrimination allegations on the other. Dismissing an employee for the reason that she is a "troublemaker" is unattractive but is not the same as dismissing for having done a protected act.