Oxfordshire CC Jan 20 Head of Legal 600

One Source Dec 19 Deputy Director

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Former planning officer loses Court of Appeal battle over 'protected disclosures'

A former City of Bradford Metropolitan District Council planning officer has lost a Court of Appeal case against the council over protected disclosures that arose in the course of a dispute over a sewer and outbuilding.

Fiona Tiplady was a senior planning officer employed at Bradford and between February 2014 and September 2016 she and her husband had dealings with the council about a property they owned.

This began when her husband discovered evidence of a sewer running beneath the property which he believed vented dangerous gases.

The Tipladys thought Bradford’s environmental health department should intervene but it deemed there was no risk requiring the use of its powers.

In the next incident, the couple built an outbuilding for which they did not believe they needed planning permission under the general permitted development order.

Council staff were refused access to the property to take measurements, and Bradford was eventually granted a search warrant.

Lord Justice Underhill noted: “It will be apparent that neither episode had, as such, anything to do with the employment relationship between Mrs Tiplady and the council: they concerned the exercise of the council's powers as a local authority.”

Mrs Tiplady was unhappy about the council‘s actions over the two incidents and lodged a formal grievance before resigning in October.

In February 2017 she made a claim to the Employment Tribunal for unfair dismissal under section 98 of the Employment Rights Act 1996, and for ‘automatic’ unfair dismissal under its section 103A, by reason of her having made protected disclosures.

The Employment Tribunal dismissed all her claims, reasoning that most of the detriments were suffered as a householder and not as an employee.

Henderson LJ later gave permission for an appeal as he held it was arguable the tribunal had erred in law in directing itself that the detriment complained of “must be a detriment in the field of employment and does not include a detriment in the employee's private or personal capacity”.

Underhill LJ noted: “He observed that it was a question of law of some importance on which there was no direct authority.”

In Tiplady v City of Bradford Metropolitan District Council [2019] EWCA Civ 2180 the Court of Appeal rejected Mrs Tiplady’s case at appeal. Lord Justice Underhill said: “Mrs Tiplady faces a fundamental difficulty in pursuing her appeal…none of the detriment claims was dismissed exclusively (or indeed even mainly) on the basis of the employment field point; and it would seem to follow that even if the ET's self-direction on that question was wrong it would make no difference to the outcome because the other bases on which they were dismissed are not, and cannot be, challenged.”

Despite Henderson LJ’s observation, the judge said: “The ET's conclusions that Mrs Tiplady had not suffered the detriments alleged, or, if she had, that they were not on the ground of a protected disclosure, are entirely self-contained, and I can see no basis on which they could be affected by the view taken by it on the employment field point.”

He added: “I am sure that the alleged self-misdirection by the ET as regards the employment field point cannot affect its decision as regards the detriments claim or, therefore, the result of the appeal. Since that is the only point on which Mrs Tiplady has permission the appeal must be dismissed.”

Mark Smulian

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