Mr J Whelan v C Brown & Sons (Steel) Limited — 2021

Mr Whelan worked for C Brown & Sons (Steel) Limited as Health and Safety Adviser from 6 November 2017 until his dismissal with effect from 4 November 2019. The tribunal found that he repeatedly raised health and safety issues during his employment, including incidents involving unsecured loads and eye protection, and that the respondent accepted those reports were qualifying protected disclosures. The respondent also accepted that, when he made the disclosures relied on, he was carrying out health and safety activities and taking appropriate steps within section 100 ERA 1996.

The tribunal found that the respondent had genuine concerns about the claimant's performance in the role. It accepted evidence from AC that there were issues about spreadsheets, task completion, office organisation, chairing meetings, and time spent on the shop floor, but found those concerns were not formally or clearly discussed with the claimant before dismissal. It also found that the claimant's reports on 30 September, 2 October and 3 October 2019 were acted on by the respondent, including disciplinary action against the employees concerned and reminders to drivers about securing loads.

The key issue was the reason for dismissal on 4 October 2019. The tribunal accepted AC's evidence that he had decided to terminate the claimant's employment because of his concerns about the claimant's capability in the role, reinforced by comments from the recognised trade union, and because he wanted to dismiss before the claimant reached two years' service. It rejected the claimant's case that he was dismissed because he made protected disclosures or because he carried out health and safety activities. It also rejected allegations of fabricated documents or a culture of ignoring health and safety breaches, finding instead that the disputed documents were genuine and that any errors were administrative. Both the section 100 and section 103A complaints were therefore dismissed, and no award was made.