Mr P Burgess v Age UK Tameside — 2021

Mr P Burgess, a Wellbeing Assistant at Age UK Tameside, brought claims of detriment under section 47B of the Employment Rights Act 1996 and automatic unfair dismissal under section 103A. The tribunal, sitting with Employment Judge Ainscough and lay members Mr J Ostrowski and Mr T A Walker at Manchester by CVP on 3-6 August 2021, found that he did not make a protected disclosure within section 43B. It held that the evidence showed his concerns on 6 February 2019 were about self-funding service users not having access to the same activities as Clinical Commissioning Group service users, rather than a disclosure that health and safety was likely to be endangered.

The tribunal preferred the contemporaneous evidence of Faith Joanne Thorpe, Rebecca Skorupa and Dawn Linnie, together with the grievance material and the claimant's later correspondence, over the claimant's later account. It found that he had conflated wellbeing concerns with health and safety, and that the contemporaneous evidence did not support his case that he had made the alleged disclosure at the team meeting or in the later one-to-one meeting. Because no protected disclosure was proved, both the detriment claim and the section 103A claim failed.

The tribunal nevertheless recorded its view of the underlying workplace events. It found Dawn Linnie was entitled to speak to the claimant as she did on 6 February 2019, that the references to "assault" on 12 February 2019 were explained as examples rather than accusations, and that suspension was an appropriate response under the disciplinary policy. It also found that the later safeguarding concern and the letter of 8 April 2019 were entitled to be raised, that the claimant was not ignored at the disciplinary hearing, and that the grievance was properly considered.

On dismissal, the tribunal accepted the respondent's reasons and held that the issues raised on 6 February 2019 amounted to gross misconduct under the disciplinary policy. It found the dismissal was within the range of reasonable responses. The tribunal also noted that the claimant did not have two years' continuous service and therefore could not pursue an ordinary unfair dismissal claim.