Graham Marsh v Openreach Ltd — 2024

The claimant was employed as a hoist operator and was dismissed following grievances raised by colleagues alleging bullying and harassment. He also raised concerns about safety, including an incident where he said a colleague had worked in darkness without barriers or warning signs. The Tribunal found that some later safety concerns amounted to protected disclosures, but the first alleged disclosure did not and the appeal-stage disclosure post-dated dismissal.

The whistleblowing detriment claim failed because the Tribunal found that the relevant decision-makers were not aware of the protected disclosure to Mr Hudson when the claimant was suspended and that the suspension and limited contact during suspension were not caused by the protected disclosures. The s103A automatic unfair dismissal claim also failed because the Tribunal found that Mr Jobson dismissed the claimant because he believed the claimant had engaged in misconduct, not because of protected disclosures.

The ordinary unfair dismissal claim succeeded. The Tribunal found that the investigation was not impartial, did not properly analyse the allegations, did not investigate the claimant's denials or possible exculpatory evidence, and did not properly handle anonymous evidence. It found that Mr Jobson adopted a flawed investigation, failed to give proper attention to the claimant's disciplinary hearing document, and did not have reasonable grounds to conclude that the claimant was guilty of gross misconduct.

The reasonable adjustments claim failed. The Tribunal found no requirement to work at speed was applied to the claimant and found that the alleged failure to address derogatory remarks about working speed was a one-off decision rather than a PCP. The wrongful dismissal complaint succeeded because the respondent had not proved that the claimant committed a repudiatory breach of contract entitling it to dismiss without notice.