In person, (Assisted by Mr D Salter, Non-practising Solicitor) For the v Respondent — 2023

The tribunal held that the claimant made three qualifying and protected disclosures in early May 2019 by email to senior managers, concerning unsafe working practices and alleged falsification of RIDDOR reports. It accepted that the claimant reasonably believed the disclosures were in the public interest and tended to show breaches of legal obligation and risks to health and safety. The detriment claim based on those disclosures was withdrawn by the claimant at the hearing.

The claimant was dismissed in October 2020 for capability after about two years' sickness absence following back injuries in March and October 2018. The tribunal found that the claimant did not dispute that he could not perform his substantive role as a Solid Surface Fitter because of the heavy lifting involved, and the occupational health evidence consistently supported that position. The respondent held repeated sickness review meetings, a grievance hearing, a formal capability meeting and an appeal, obtained three occupational health reports, sought a GP report, and explored both adjustments to the claimant's existing role and alternative desk-based roles.

On the protected disclosure dismissal claim, the tribunal found that the dismissing officer and the appeal officer were unaware of the May 2019 disclosures and that the disclosures had no material influence on either decision. It accepted their evidence that the dismissal and appeal outcome were taken for capability reasons only, and therefore dismissed the s.103A claim.

On the ordinary unfair dismissal claim, the tribunal applied the section 98(4) fairness test and the band of reasonable responses approach. It held that the respondent acted reasonably in treating capability as a sufficient reason for dismissal, given the length of absence, the medical prognosis, the lack of a realistic return to the substantive role, the absence of suitable available alternatives at the relevant time, and the claimant's unwillingness to apply for desk-based vacancies. The appeal was also dismissed.