Mullen v Melian Dialogue Research: EAT overturns flawed whistleblowing remedy assessment

The Employment Appeal Tribunal has allowed an appeal in Dr James Mullen v Melian Dialogue Research Limited [2025] EAT 179, finding that the Employment Tribunal erred in its assessment of remedy for successful protected disclosure dismissal and detriment complaints.

Dr Mullen had succeeded in his claims that he was unfairly dismissed for making protected disclosures and subjected to related detriment. However, HHJ James Tayler identified multiple substantive errors in the remedy judgement that necessitated remission to a differently constituted tribunal.

Polkey reduction without proper analysis

The tribunal had applied a 10% Polkey reduction to compensatory awards, concluding there was a "real, albeit relatively small, prospect" that Dr Mullen might have been dismissed fairly regardless. The EAT held this assessment was fundamentally flawed.

The tribunal identified three potential fair reasons—performance concerns, an issue regarding a French consultant, and complaints including one alleging racism—but failed to analyse whether any would have resulted in fair dismissal by this specific employer. There was no examination of what fair procedure the respondent might have followed, particularly concerning performance issues where no prior warnings had been given. The tribunal provided no evidential basis for the precise 10% figure, essentially finding "a little smoke, but no fire" without identifying any genuine prospect of fair dismissal.

The EAT emphasised that Polkey reductions require proper predictive assessment based on evidence of what this employer would likely have done, not a hypothetical reasonable employer.

Mitigation failures and burden of proof

The tribunal found Dr Mullen had unreasonably failed to mitigate his losses by devoting himself entirely to establishing a new consultancy business. The EAT identified serious procedural unfairness in this assessment.

The tribunal's conclusions were based substantially on financial documents disclosed during the hearing, yet Dr Mullen was never cross-examined on these matters nor given opportunity to address the tribunal's concerns. The EAT stressed that the burden of proving unreasonable failure to mitigate rests firmly on the respondent. Despite correctly stating the legal test, the tribunal had impermissibly required Dr Mullen to prove his conduct was reasonable, rather than requiring the respondent to establish it was unreasonable.

Aggravated damages assessment deficiencies

Dr Mullen's claim for aggravated damages, based on allegedly high-handed conduct including failure to respond to a subject access request, issuing intimidating legal proceedings, making false allegations, and reporting him to police, was rejected without proper factual findings.

The tribunal failed to determine whether allegations made against Dr Mullen were true or false—essential for assessing whether the respondent's conduct was malicious or oppressive. It declined to investigate whether a purported £600,000 High Court claim (later revealed as a County Court claim) was issued to intimidate Dr Mullen. The police complaint was dismissed without examining whether it was vexatious or designed to deter the tribunal claim.

The EAT noted that if multiple elements of alleged intimidatory conduct were established, they could collectively support aggravated damages even if individual elements seemed weak.

Procedural concerns

The case proceeded in unusual circumstances. The respondent's late provision of witness statements and extensive disclosure during the hearing created difficulties. Although liability and remedy were heard together to use tribunal time efficiently, the EAT suggested this approach required greater care to ensure proper evidence was available for remedy assessment.

The matter has been remitted to a fresh tribunal for complete reconsideration of remedy, including the injury to feelings award and unclaimed business establishment expenses.

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