Mr A Kowalczyk v Cleland McIver Limited and 2 others — 2020

The claimant worked as a warehouse operative on the Replenishment Team and was still in his probationary period when these events occurred. He made two protected disclosures to his line manager, Marc Salford: first, in July 2018, that a worker known as AB was dealing cannabis to warehouse staff, and second, in August 2018, that another worker, XY, was smoking cannabis at lunch. The tribunal found that Mr Salford took action on the first disclosure by passing it on and that AB's engagement ended within about a week. On the second disclosure, the tribunal accepted Mr Salford's evidence that he and Bob McDonald observed XY over the following days and found no evidence of cannabis use or reduced productivity, so no further action was taken. The tribunal also found that the relationship between the claimant and Mr Salford remained good through October and November 2018.

The tribunal held that the only detrimental shift change was the Replenishment Team shift brought forward for the week beginning 19 November 2018, with short notice given to the claimant on the morning of 20 November. It accepted Mr Salford's evidence that this was a business decision made because staffing was depleted at the respondent's busiest time of year and that the late notice was an oversight while he was busy. The comparator relied on by the claimant, Wictor Slaski, was held not to be an appropriate comparator because his circumstances were materially different. The tribunal therefore rejected the whistleblowing detriment complaint and the direct discrimination complaint, finding that the short notice was not because of the claimant's wife's disability.

The tribunal also accepted that the claimant was suspended on 23 November 2018 after he sent Mr Salford a text about Bob McDonald which suggested a breakdown in relations at work, and because Mr Salford was about to go on annual leave. The claimant was then dismissed at a probationary review meeting on 30 November 2018. Applying Kuzel v Roche, the tribunal found that the reason for dismissal was the claimant's absence record and conduct, including the volume and content of the texts he had sent, and that the protected disclosures played no part in the decision. The tribunal also rejected the post-termination detriment allegations about refusal of an appeal, refusal of the meeting notes, and deductions from final pay, accepting the respondent's explanation that the probationary process did not provide for an appeal and that no unlawful deductions were made.

The harassment claim also failed. The tribunal found there had not been repeated short notice shift changes, and that the one short-notice change was not unwanted conduct related to the claimant's wife's disability. It said that if it had needed to decide the effect limb, it would not have found that the conduct had the purpose or reasonable effect of violating dignity or creating an offensive environment. No remedy was awarded because all claims were dismissed.