Co-Operative Group Ltd v Baddeley

Judgment

Lord Justice Underhill :

INTRODUCTION

The Claimant, the Respondent before us, was employed by the Appellant (“the Co-Op”) from November 2007 until his dismissal for misconduct on 20 December 2010. He had a background in the pharmaceutical industry. In the later part of his employment by the Co-Op he was Quality Assurance Manager for a joint venture in which the Co-Op was engaged in China. He spent most of his time in China, but his base remained at the Co-Op’s National Distribution Centre at Meir Park in Stoke-on-Trent.

By a judgment sent to the parties on 4 April 2012 an Employment Tribunal chaired by Employment Judge Lloyd held that the reason for the Claimant’s dismissal was that he had made protected disclosures – in the jargon, that he was a whistleblower – and that it was thus “automatically” unfair under section 103A of the Employment Rights Act 1996. It also held that it would, if section 103A had not applied, have found his dismissal to be unfair under the ordinary provisions of section 98 of the Act.

The decision that the Claimant’s dismissal was unfair under section 103A was upheld by the Employment Appeal Tribunal, Keith J presiding, in a decision dated 15 November 2013. This is (subject to the procedural wrinkle mentioned at para. 36 below) the Co-Op’s appeal against that decision. It has been represented before us by Mr Bruce Carr QC. The Claimant has been represented by Mr Ian Wheaton of counsel.

THE SEQUENCE OF EVENTS LEADING TO THE CLAIMANT’S DISMISSAL

As discussed more fully below, it is not easy to obtain a coherent narrative from the Employment Tribunal’s Reasons. Fortunately, however, the EAT gives a very clear account at paras. 10-21 of its judgment, to which reference can be made if necessary. For present purposes I can make do with a very short summary.

In order to understand the background to the Claimant’s dismissal it is necessary first to say something about the Co-Op’s practice as regard disposal of pharmaceutical stock which was approaching its sell-by date or otherwise not selling: this is referred to as “amnesty stock”. Such stock had initially been returned to a Co-Op site called Sants; but that had recently closed and at least from 2010 it was being returned to Meir Park. Some would be offered for sale to staff at reduced prices, but arrangements would also be made for sales to discount traders for sale in street markets or other such outlets. However, it was necessary to exclude from such sales all prescr