Mr A Marcelo v Powys Teaching Health Board — 2022

The hearing considered claims arising from three claim forms: direct race discrimination, direct sex discrimination, victimisation, protected disclosure detriment, and constructive unfair dismissal under ss.94 and 103A ERA 1996. The tribunal sat with two lay members, heard evidence from the claimant and several respondent witnesses, and used an amalgamated list of issues. It accepted that the claimant's emails of 7 and 20 December 2018 were protected disclosures and protected acts, but it did not accept that his letter of 29 May 2020 was a protected disclosure.

On the whistleblowing issues, the tribunal found that several matters occurred in fact, including removal of line management duties, relocation, suspension, an investigation into out-of-date frozen food, and redeployment. It held that some of those matters could amount to a detriment, but it was not satisfied that they were on the ground of the protected disclosures. It also found that the 29 May 2020 letter did not satisfy the protected-disclosure test because the claimant did not reasonably believe it showed an endangerment to health and safety.

The race and sex discrimination claims failed because the tribunal found the claimant's comparators were not apt and, in any event, there was no less favourable treatment by reason of race or sex. The victimisation claim also failed: although the respondent accepted the protected acts, the tribunal found that none of the alleged detriments were caused by those acts. The constructive unfair dismissal claim failed because the tribunal did not find a repudiatory breach of the implied term of trust and confidence and, in any event, found that the claimant had already accepted another job in early May 2020 and did not resign in response to any alleged breach. All claims were dismissed and no remedy was awarded.