Mr M Darlington v Interserve Group Ltd — 2019

The tribunal found that the claimant's letter of 14 December 2015 to the chief executive of Interserve Plc contained protected disclosures. The letter set out factual matters about hospital facilities, including ventilation, water sampling, generators and other systems, which the tribunal found tended to show risks to health and safety and, in one respect, possible environmental damage. The tribunal accepted that the claimant reasonably believed the disclosures were made in the public interest and that the disclosure was made to an appropriate person under the respondent's whistleblowing policy.

The detriment complaints were dismissed. The tribunal found that the decision to remove the claimant from the DGH contract had been made before the protected disclosure and was not caused by it. It also found that the Business Support Manager role was genuinely created to retain the claimant's skills, that the respondent believed he was occupied in that role, and that the other alleged matters, including limited contact, the PADP issue, home working assessment and asserted changes to notice terms, were not done because of the protected disclosure or were not established as pleaded detriments.

On dismissal, the tribunal found that there was a genuine redundancy situation and that the reason for dismissal was redundancy rather than the protected disclosure. The automatic unfair dismissal claim under section 103A therefore failed. However, the ordinary unfair dismissal claim succeeded because the decision to select the claimant for redundancy had effectively been made before consultation began, so consultation was not meaningful on selection. The tribunal also found that reasonable steps were taken to identify alternative employment, and left remedy, including any Polkey reduction, to a separate hearing.