In person For the v Respondent — 2019

At the 16 September 2016 meeting about shift rotation, the claimant raised concerns about older workers and workers with health conditions, and also about staff with agreed childcare and flexible working arrangements. The tribunal found that he disclosed information, that he reasonably believed the health and safety concerns were likely to endanger health and safety, and that he reasonably believed the childcare/flexible working point tended to show a likely failure to comply with a legal obligation. It also accepted that the disclosures were made in the public interest and therefore amounted to protected disclosures under s 43B ERA 1996. Separately, the tribunal found that the claimant had raised health and safety matters by reasonable means for the purposes of s 44(1)(c) ERA 1996.

The tribunal also found that the respondent had a health and safety committee, but that it was not reasonably practicable for the claimant to raise the concerns through that committee because its existence had not been publicised and he was unaware of it. However, the s 47B whistleblowing detriment claim still failed because the tribunal was not satisfied that any of the complained-of acts were done on the ground that the claimant had made the protected disclosures. It found no prima facie causal link between the disclosures and the first written warning for the cracked screen on 20 September 2016, or the extension of that warning on 1 March 2017.

The later complaints also failed on causation. The tribunal did not accept that the suspension in August 2017, the final written warning in September 2017, the allegation that Mr Fraser stopped speaking to the claimant, the alleged reduction in overtime, or the March 2018 disciplinary investigation were materially influenced by the disclosures. It considered that the disciplinary action arose from the underlying incidents, the respondent's enforcement of its food and samples policy, concerns about work performance and conduct, and the claimant's disciplinary history, rather than from the September 2016 meeting. The tribunal noted some concerns about the CCTV monitoring and the tone of some management emails, but still held that the claimant had not proved the necessary causal connection.

The only claim that was not determined on the merits was the s 47E ERA 1996 claim, which the claimant withdrew at the start of the hearing and which the tribunal recorded as dismissed on withdrawal. No remedy was awarded.