In person For the v Ms Flora Mewies, solicitor — 2022

The Claimant was a bus driver who stopped work on 25 March 2020 during the early COVID-19 period because he believed the Respondent was not taking adequate steps to protect drivers. The tribunal found that he made protected disclosures in late March 2020, in his letter of 18 April 2020, in the 15 July 2020 correspondence, and again during the disciplinary hearing on 23 September 2020. It found that the 11 August 2020 email was not itself a protected disclosure, and that no protected disclosure was made at the 7 September 2020 meeting. The tribunal accepted that, when he first withdrew labour, he reasonably believed that he and his father were in serious and imminent danger.

The section 44 detriment claim succeeded only for the period from 5 April to 9 June 2020. By then the Respondent had introduced further safety measures and more information was available, and the judge found that it was no longer objectively reasonable for the Claimant to continue to believe that driving a bus would place him or his father in serious and imminent danger. The tribunal therefore held that the non-payment during that earlier period was a detriment linked to the Claimant's protected health and safety action, but the later non-payment after the 7 September 2020 suspension was not upheld on the pleaded detriment claims. The judge noted that the Claimant should have been paid while suspended, but there was no pleaded wages or breach of contract claim for the tribunal to award that sum.

On dismissal, Mr Grubb said the Claimant had refused to return to work on 13 June and 7 September 2020 and had made a false statement about the time needed to go home and get changed. The tribunal found that the Respondent proved the principal reason for dismissal was conduct, not protected disclosures or the earlier health and safety withdrawal, so the automatic unfair dismissal claims failed. However, the ordinary unfair dismissal claim succeeded because the dismissal was outside the range of reasonable responses: Mr Grubb was both the key witness and the decision-maker, he did not properly investigate the 13 June absence, he did not put the false-statement allegation to the Claimant, and his handling of the 7 September meeting focused on the Claimant's clothing rather than his residual safety concern. The appeal did not cure those defects because the Claimant did not attend; no Polkey or contributory fault reduction was made, and the judge indicated a provisional 15% adjustment under section 207A because of that failure to attend.