In person For the v Ms A. Niaz-Dickinson — 2019

The tribunal held that the claimant did not make a qualifying protected disclosure when he confronted Mr Concannon on 14 August 2017, because his words did not amount to a disclosure of information. It also found that he did not tell Mr Pineda about the incident on that date. The tribunal accepted that the claimant later made a qualifying protected disclosure in his appeal letter of 30 November 2018 and at the appeal hearing with Mr Malloch, but that disclosure came after the conduct complained of and after the dismissal decision.

On the whistleblowing detriment allegations, the tribunal found that some of the claimant's complaints about Mr Concannon were made out on the balance of probabilities, including the use of words such as "rubbish, lazy and a liar", disrespectful emails, the comment about the injury at work, a threatening remark before the disciplinary hearing, and a threatening conversation about an apparent gap in his shift. It also found the overtime payment issue was a mistake and that the holiday warning was justified. The detriment claim nevertheless failed because the tribunal found no causative link between those events and any qualifying protected disclosure.

On the dismissal claim under section 103A ERA 1996, the tribunal found that redundancy was not a sham and that Ms Salam, not Mr Concannon, made the redundancy selection decisions. Because the only accepted qualifying disclosure was made after the dismissal, and because Ms Salam was not aware of the August 2017 incident when deciding on redundancy, the automatic unfair dismissal claim failed.

On ordinary unfair dismissal, the tribunal found the respondent genuinely needed to reduce headcount in the Westminster Cluster and that it was reasonable to treat the day and night shifts as separate pools. It accepted that attendance and disciplinary record were objective selection criteria and that the claimant was the lowest-scoring employee in the night-shift pool. However, the consultation was materially defective because the claimant was not told the pools, the criteria, or the decision-maker, was not given the selection matrix or absence figures, and had no real opportunity to challenge his selection before dismissal. The tribunal therefore held the dismissal was procedurally unfair under section 98(4) ERA 1996, but applied Polkey and found there was a 100% chance the claimant would still have been fairly dismissed for redundancy, so the compensatory award was reduced to nil.