The claimant in Broecker v Metroline Travel Limited, a bus driver, was dismissed for four separate incidents of misconduct – two where he had not followed correct procedures for reporting bus defects and two driving matters (making unnecessary journeys in response to discovering potential defects). In the two incidents where he had failed to follow correct reporting procedures, the claimant had used the employer's system for reporting defects and the Tribunal Judge found that the reports amounted to health and safety disclosures which were protected for whistleblowing purposes. Nevertheless, the Employment Tribunal rejected the claimant's automatically unfair dismissal claim.
Having ruled out automatically unfair dismissal, the Tribunal then looked at the fairness of the dismissal generally. It found that although it was unreasonable to rely on the two reporting issues, the employer would have been entitled to dismiss for the two driving matters (which weren’t protected disclosures). The problem with this was that the employer patently did not dismiss just for the two driving incidents. The decision to dismiss was based on the four aspects of misconduct, all of which related in some way to defect reporting.
The first issue for the EAT was had the Tribunal correctly assessed whether the main reason for the dismissal was that the claimant had made protected disclosures (making the dismissal automatically unfair)? The EAT decided that the Tribunal had not asked this question; instead it had used a loose "blatant unfairness" test. There was no cogent explanation for the Tribunal's decision that, even though the claimant appeared to be dismissed expressly for conduct relating to reports he had made, which the Tribunal had concluded were protected disclosures, the reason for the dismissal was not the making of protected disclosures.
On the second issue, Smith v Glasgow City Council, a decision of the then House of Lords in 1987, established that where dismissal is the result of a combination of reasons but the employer fails to show a clear reason for dismissal, reasonableness will not have been demonstrated and the dismissal will be unfair. Although Smith was a case where there was a mixture of conduct and capability reasons, the EAT in Broecker v Metroline Travel Limited took the view that it applied equally to the situation where all the reasons related to misconduct. The EAT substituted a decision that the dismissal was unfair.