Case 1802075/2022 · Employment Tribunal
In person For the v Respondent — 2023
- Case reference
- 1802075/2022
- Decision date
- 15 March 2023
- Jurisdiction
- England & Wales
- Judge
- Employment Judge A James
- Venue
- Hull
- Panel members
- Mr D Fields, Mr D Wilks OBE
Parties
1 namedClaimant
In person For the
Respondent
- —
Key findings
Tribunal's reasoningThe tribunal found that the claimant started work as an agency worker through KFM Recruitment in or about October 2019 and remained an agency worker throughout. It found that no formal offer of employment was ever made for role 27471, so the claimant was never an employee of the respondent and could not bring a dismissal claim based on employee status. The automatic unfair dismissal claim under s.103A ERA 1996 therefore failed, and the breach of contract claim also failed on the same basis.
On the protected disclosure issues, the tribunal rejected the claimant's evidence that he had raised health and safety concerns in January 2021 with Naomi Kilner, Josh Carter or Chris Walker, or that the photographs and concerns had been sent to HR at that time. It found that the email relied on by the claimant was not brought to the respondent's attention until 1 December 2021, after the main alleged detriments, and concluded that there were no qualifying disclosures before then. The tribunal referred to the statutory and case law tests on qualifying disclosure, public interest and factual content, including s.43B ERA 1996, Kilraine and Chesterton.
On detriment, the tribunal accepted that Ms Kilner asked KFM not to place the claimant back in her department, that later recruitment decisions were made, that the role 27471 offer/reconsideration was withdrawn after management learned of prior concerns about photographs and a mistaken firearms allegation, and that Ms Field refused an appeal. It held that the recruitment decisions were made by others and were not caused by protected disclosures, that the canteen restriction applied to all agency workers and was not made out on the pleaded facts, and that the firearms allegation arose from a mistaken identity issue rather than whistleblowing. The tribunal also rejected the claimant's reliance on Jhuti. It found the complaint was out of time in any event, because Acas Early Conciliation was not commenced within the relevant three-month period for the November 2021 events. No remedy was awarded because all live claims were dismissed.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Claim advanced as automatically unfair dismissal under s.103A ERA 1996 because of whistleblowing. The tribunal found the claimant was never an employee, so he could not have been dismissed from employment, and in any event found no protected disclosure before the relevant decision to revoke the offer/terminate the assignment. | Dismissed | — | — |
| Whistleblowing | Detriment claim under s.47B ERA 1996. The tribunal rejected the alleged January 2021 disclosures on the facts, found no qualifying disclosure until 1 December 2021 at the earliest, and held the pleaded detriments were not caused by protected disclosures. | Dismissed | — | — |
| Breach of contract | Breach of contract claim, addressed in the reasons under the heading 'Wrongful dismissal'. It failed because the claimant was never an employee of the respondent and therefore had no contractual wrongful dismissal claim under the 1994 Order. | Dismissed | — | — |
Legal tests applied
7 references- s.103A ERA 1996
- s.43B ERA 1996 qualifying disclosure
- Kilraine v London Borough of Wandsworth
- Chesterton Global Ltd v Nurmohamed public interest test
- s.47B ERA 1996 detriment causation
- Royal Mail Ltd v Jhuti exception
- Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, article 3
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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