Ms N Metcalf v St Anne'S Community Services — 2024

Ms Metcalf was head of corporate governance at St Anne's Community Services Ltd. The tribunal found that her 4 August 2022 email about the DAC project, retrospective appointment letters and lack of due diligence was a qualifying protected disclosure under s.43B ERA 1996 because she reasonably believed there was a likely failure to comply with legal obligations and that the disclosure was in the public interest. It also treated her 17 October grievance and the 21 December 2022 letter before action from her solicitors as protected disclosures. By contrast, the oral discussions in September 2022 were not qualifying disclosures: by then the tribunal found she was בעיקר responding to criticism and saying she had been scapegoated rather than making fresh disclosures of information tending to show legal non-compliance.

The tribunal dismissed the whistleblowing detriment complaints. It held that none of the treatment found was on the ground of the protected disclosures, even where some conduct was found to be without reasonable and proper cause. Mr Munday's 26 August remark was an unnecessary public rebuke, but it was not the product of the disclosures. Mrs Kirkby's 13 and 14 September reviews, the inbox handling and staffing changes on 26 September, and the 10 October return-to-work and meeting arrangements were found to reflect management concerns, workload issues and later financial changes, rather than retaliation for whistleblowing. The grievance was investigated within a reasonable timescale, and the tribunal rejected the allegation that the January 2023 misconduct letter contained fake or untrue allegations made on the ground of disclosure.

The constructive unfair dismissal claim succeeded because the tribunal found a series of breaches of the implied term of trust and confidence, particularly in the way Ms Metcalf was criticised on 13 September, how her inbox and team resources were handled on 26 September, and how matters were managed on 10 October. Applying the authorities it cited on constructive dismissal, last straw and affirmation, the tribunal held that she did not affirm her contract between 10 October 2022 and her resignation on 3 March 2023. It found that she resigned substantially in response to those breaches, and that the respondent's case that she resigned to avoid misconduct proceedings was not made out.

The respondent's gross misconduct defence to wrongful dismissal also failed. The tribunal found that Ms Metcalf had not engaged in gross misconduct in relation to the Mr Webb conflict issue, the undeclared resumption of the down syndrome charity role, or the pensions email matter. It expressly noted that its conclusions on those matters did not amount to a finding that they were fabricated from the outset, only that they did not justify dismissal. This liability judgment does not record any monetary award.