Mr I Browne, Counsel For the v Respondent — 2022

The tribunal found that the claimant’s videos of 27 October 2019 were genuine and had not been staged. It accepted that, during the toolbox talk, the second respondent instructed workers to cut the polythene enclosure to remove contaminated bricks, and that the claimant reacted by objecting to that instruction. The tribunal also found that the later videos showed cut polythene and contaminated bricks being removed in breach of the relevant asbestos procedures.

On that basis, the tribunal held that the claimant made protected disclosures orally to the second respondent on 27 October 2019, to Mr Molloy on 28 October 2019 when he sent the videos and discussed the events, and to the HSE on 31 October 2019. It found that the claimant’s comments about the instruction had sufficient factual content and specificity to amount to a qualifying disclosure under section 43B ERA 1996, and that he reasonably believed the matters disclosed tended to show breaches of health and safety obligations and were made in the public interest.

The tribunal held that the claimant was subjected to detriments in the form of threats, insults and shouting by the second respondent on 27 October 2019, withholding of subsequent assignments and work, and a failure properly to investigate his concerns. It rejected the alleged physical abuse and the allegation that he had been stigmatised or blacklisted in the job market. As to causation, it found the threats and withholding of work were on the ground that he had made protected disclosures, but the failure to investigate was not; that failure was attributed to Mr Frost’s mistaken belief that the claimant had staged the video and was seeking to extort money.

The tribunal also found there was no link between the disclosures to the HSE and the detriments because the respondents were unaware of that disclosure at the time. It noted that questions of the claimant’s good faith were relevant only to remedy, and that it had not found inappropriate pressure such as to negate good faith. Liability was therefore established under section 47B ERA 1996, with remedy left for a later hearing listed for 12 May 2022.