Ms L Bone (Counsel) For the v Respondent — 2022

After reviewing the claimant's performance record from 2012 onwards, the tribunal found that performance had been patchy at times, but that by 2017 to 2019 it was generally assessed as met or positive and had not led to any formal or informal capability process. It rejected the respondent's case that the claimant had been performing so poorly that dismissal was already justified before the whistleblowing issues arose.

On the Operations Director recruitment, the tribunal found that the respondent genuinely decided to create an external senior role as part of succession planning, and that Mr Firth independently assessed Mr Green as the best fit. Although Mr Green was introduced through Mr Daniels and had a Pinner Synagogue connection, the tribunal found that this did not amount to a policy of preferring Jewish candidates or people from Mr Daniels' social circle. The direct and indirect race and religion discrimination claims therefore failed.

The tribunal held that the claimant's 28 November 2019 email about the new contract terms was a protected disclosure. It contained sufficient factual content about how the amended contracts were being presented to staff, the concerns of employees, and what the claimant viewed as underhand conduct. The public interest requirement was met because the issues affected the wider workforce, including changes to bonus, clawback and notice terms, and the claimant reasonably believed the respondent was breaching contractual obligations.

It also held that the 15 April 2020 email about the DC pension charges was a protected disclosure. Read with the 21 May 2018 email, it conveyed that Mr Firth had been told to check approval of the charging structure with stakeholders and had not done so, leading to an overcharge to pension members. The tribunal dismissed the whistleblowing detriment claim because the pleaded detriment relating to the Operations Director role pre-dated both disclosures, but it upheld automatic unfair dismissal under s.103A and ordinary unfair dismissal because the principal reason for dismissal was the disclosures, not a genuine capability reason, and dismissal without a performance process was outside the range of reasonable responses. The tribunal assessed a 20% chance that dismissal would still have occurred by 1 December 2020 under a fair process.