Mr Nigel Midgley v Vossloh Cogifer UK Limited — 2021

Mr Nigel Midgley was employed by Vossloh Cogifer UK Limited as operations manager from 8 July 2019 and was subject to a three-month probationary period. He relied on two alleged protected disclosures under s.43B ERA 1996: a business report presented on 6 September 2019 raising health and safety concerns, and a later grievance document dated 13 November 2019 about bullying and harassment by Mr Bray. He alleged a series of detriments, including comments by Mrs Preston, the probation review process, the handling of a collective grievance, and the dismissal and appeal process.

The tribunal accepted that the business report contained sufficient information to amount to a disclosure, but found that it did not tend to show a health and safety breach and that the claimant did not reasonably believe it did. It relied on the claimant's own assurance to Mrs Preston that there were no legal breaches, his failure to pursue the issues at the RIE and AFNOR audit, his failure to report to the HSE before dismissal, and the fact that the health and safety points were not treated as urgent. The second document was also treated as a disclosure of information, but the tribunal found it did not tend to show that anyone's health or safety was endangered and that the claimant's real concern was his reputation in relation to Mr Bray, not public interest health and safety.

On detriment, the tribunal found that the complaint based on the 15 November 2019 comment was not a detriment in law and, in any event, was unrelated to any protected disclosure. It found no detriment in the business report comments, in allowing the workforce grievance to be raised, or in the three-month and four-month probation reviews. Parts of the detriment case were also out of time, with the tribunal finding no continuing act and no evidence that it had not been reasonably practicable to present them in time. It further held that the exclusion in s.47B(2) ERA 1996 applied to complaints about the dismissal itself and the appeal process.

On dismissal, the tribunal found that Mrs Preston genuinely believed the claimant had performance and industrial relations problems and that those concerns, not any protected disclosure, were the reason for dismissal on 27 November 2019. It rejected the suggestion of a conspiracy or fabrication of evidence, and found the appeal process conducted by Mr Marsden to be fair and balanced. Both the whistleblowing detriment claim and the automatic unfair dismissal claim were dismissed, and no remedy was awarded.