Mr S Felce v Network Rail Infrastructure Ltd Heard in Leeds by CVP — 2022

Mr S Felce was a signaller who had become a Grade 9 Shift Signalling Manager at York IECC. The tribunal accepted that he made four protected disclosures in August 2018, but the case turned mainly on Protected Disclosure 4, made to Mr Gee on 30 August 2018 about safety issues, staffing competence, training, new signalling equipment and unsafe working practices. The tribunal held that none of the treatment complained of was because of Protected Disclosures 1 to 3.

The tribunal found that Mr Gee should have protected the Claimant’s confidentiality when he spoke to Mr Foote after the 30 August 2018 meeting, but it concluded that Mr Gee’s failure was an oversight rather than action taken because of the disclosures, so that complaint was dismissed. In contrast, it found that Mr Foote told Mr Houlston about the disclosure, and that Mr Houlston then told others that the Claimant had “grassed them up”; those complaints were upheld. The tribunal also found that the wider SSM response, including the 5 September 2018 SSM letter, the pressure placed on colleagues to complain, and the subsequent ostracism of the Claimant by colleagues, was retaliation for his disclosure to Mr Gee.

The tribunal accepted that the September 2018 disciplinary investigation and removal of the Claimant from his substantive SSM post were detriments. It found that Mr Foote instigated the investigation, at least in part, because he was unhappy that the Claimant had gone to Mr Gee, and that the removal from post was also partly because of that disclosure. It dismissed some related allegations, including the stairwell conversation, the refusal to give copies of documents at the outset, and the claim that colleagues refused to work with the Claimant immediately after the disclosure. It also upheld the complaint that Mr McIntosh failed to send a substantive reply to the Claimant’s letter of 25 October 2018 about whistleblowing detriment.

The tribunal found that a phased return to the Claimant’s SSM role had been agreed in January 2019, subject to occupational health clearance, but that Mr Foote then changed course and delayed the return after colleagues objected and after the earlier fallout from the disclosure to Mr Gee. It held that mediation, which had first been discussed as something to happen alongside the return to work, was later delayed and treated as a barrier to the Claimant’s return; those complaints were upheld. It also upheld the complaints about the instruction that the Claimant could only attend the Leeds sub-ROC with notice, and about the ongoing failure to return him to his substantive post, including delays and U-turns in the return-to-work process.

Other allegations were dismissed where the tribunal found that the Respondent’s actions were not because of the protected disclosure, including the failure to do the stress risk assessment, the allocation of alternative work in itself, the Sheffield sub-ROC role being at a lower grade, the mental wellbeing toolkit being completed late, and most of the grievance-handling and overtime correspondence issues. The tribunal also found that Mr Houlston’s grievance against the Claimant was itself motivated by the disclosure, but that the later handling of that grievance and the repayment decision about £4,527 were not shown to have been taken because of protected disclosures. The tribunal held that all complaints were in time because the key treatment formed either a continuing act or a series of similar acts ending on or after 2 March 2020.