Miss K McGarr v Equity Solutions Property Services Limited — 2020

Miss McGarr began work on 18 January 2016 and by 31 August 2018 had become an assistant property manager. The tribunal accepted that she had been regarded as a good employee and had received a salary increase to #21,000 at her annual review on 31 August 2018. It found, however, that on that day she left Norfolk Park Health Centre earlier than her normal leaving time without authorisation, that the diary entries for the day were inaccurate, and that the fire risk assessments for Darnall and Norfolk Park had been rushed. The speeding offence on the M1 was the trigger for the respondent's disciplinary process.

The tribunal rejected the alleged protected disclosure said to have been made in a casual conversation with Andrew Binder, and it also rejected the alleged 4 September 2018 kitchen conversation with Hannah Winspear. In the 21 September 2018 answers to Mr Keegan, it rejected as a disclosure the statement about being instructed to ignore or close jobs open for more than 100 days, but it accepted as qualifying disclosures the separate statements that staff had at times been instructed to omit or amend issues needing Blue Support action and to backdate fire risk assessments. It also accepted the later 3 October 2018 questions to Mr Dwan, including the point that the upload of the fire risk assessments was being constructed so that no outstanding actions would be visible to the head tenant.

The whistleblowing detriment complaint succeeded in relation to the withdrawal of the pay rise and the threats of legal action. The tribunal found that the 19 October 2018 letter linking the pay rise decision to what Mr Dwan described as false and defamatory statements was causally connected to the protected disclosures, and that the dismissal correspondence threatening defamation proceedings was likewise a detriment. It held that the principal reason for dismissal under section 103A was the making of the protected disclosures, not simply the misconduct allegations arising from 31 August.

The tribunal reduced any compensation by 30% for contributory conduct. It found that Miss McGarr had left Norfolk Park early, had not obtained permission to leave early, had recorded inaccurate times, and had evidence of rushed fire risk assessments. Because automatic unfair dismissal succeeded, the tribunal did not make a separate determination on ordinary unfair dismissal. Remedy for the whistleblowing claims was left to a later hearing.

On wages, the tribunal held that deductions of #162.50 for recovering the company vehicle, #167.77 for a spare key and #120 for a replacement lock at Jordanthorpe were unauthorised. It also held that the duty property manager allowance should not have been withheld during suspension and that the agreed salary increase should not have been withheld, but those sums were not quantified in this judgment. The respondent's contractual debt argument was rejected.