Mr I McFarlane v ELG Carbon Fibre Ltd FINAL HEARING — 2021

Mr I McFarlane made protected disclosures on 23 and 24 June 2019 about health and safety and quality issues. The respondent accepted those disclosures were protected. The tribunal found that the disclosures led to investigations and disciplinary action against several colleagues, and that some non-managerial staff later resented the claimant because they believed he had blown the whistle and caused others to be dismissed or disciplined.

Of the first two whistleblowing detriment complaints, the tribunal dismissed both. It found that Mr Saxon's comments and email on 23 June 2019 were a way of managing what he saw as a performance issue, rather than detriment on the ground of protected disclosures. It also found that the alleged incident with Norbert around 28 June 2019 was not shown to amount to a relevant detriment, and in any event there was no substantial evidence linking it to the disclosures.

The tribunal upheld the third, fourth and fifth whistleblowing detriment complaints. It found that the 'shut your mouth' writing on the claimant's Sundström hood box, colleagues refusing to work with him in late July to mid August 2019, and Mr Hill's physical attack on 3 September 2019 were all materially influenced by resentment towards the claimant as a whistleblower. The tribunal accepted that the protected disclosures were not the only reason for the hostility, but held that they were more than a trivial influence and materially affected the treatment he received.

The direct race discrimination complaint, based on dismissal, was dismissed. The tribunal accepted that the claimant was less favourably treated than Mr Hill, who was not dismissed after the 3 September incident, but it found that race was not the reason. It held that Mr Hill was a valid comparator, rejected the suggestion that Mr Wilkes was racially prejudiced, and concluded that the dismissal was driven instead by concerns that the claimant was not committed to the apprenticeship and by concerns about his relationships with colleagues.

No remedy was determined in this judgment. The tribunal stayed the proceedings for 28 days to allow settlement discussions, with directions for the parties either to confirm settlement or to propose case management orders for a one-day remedy hearing.