Mr G Bennett v Knowsley Metropolitan Borough Council — 2023

The claimant brought a whistleblowing detriment claim under section 47B of the Employment Rights Act 1996, alleging that he had made a series of protected disclosures between April 2020 and July 2021 and had then been subjected to detriments by the respondent. The tribunal identified a number of disclosures that did qualify for protection, including the 8 August 2020 e-mail about sexual images sent to MB’s phone and safeguarding risks, the 26 August 2020 COVID social distancing disclosure, parts of the 28 October 2020 grievance concerning a data breach and safeguarding risks to MB, the 23 May 2021 e-mail, and the 13 June 2021 e-mail. It did not determine whether some earlier disclosures about purchase card spending were protected, and found that the alleged 1 July 2021 disclosure was not a protected disclosure.

As to the 2021 detriments, the tribunal found that the respondent’s failure to provide a detailed grievance investigation report with the 31 March 2021 letter (D12) was a detriment, because the claimant reasonably understood the absence of findings to put him at a disadvantage. However, the tribunal accepted Mr Ennis’s explanation that the report was withheld because of confidentiality concerns around the safeguarding investigation, because Ms Bennett had left before being interviewed, and because he understood from the claimant’s union representative that removal of the warning letter was the claimant’s desired outcome. D12 therefore was not done on the ground that the claimant had made protected disclosures. The tribunal found no detriment in relation to the alleged failures to respond to concerns in D14, held that any delay relating to D15 was not on the ground of protected disclosures, and found D16 and D17 unproved because there was no admissible evidence about any ACAS timescales.

The tribunal also held that it had no jurisdiction over the 2020 detriments (D1-D9). It found that the latest possible date for those matters was 28 October 2020, that there was no detrimental act or failure on or after 3 June 2021 done on the ground of protected disclosures, and that the 2020 and 2021 matters were not part of a series of similar acts or failures. The claim was therefore presented too late in respect of D1-D9. The tribunal further found it had been reasonably practicable for the claimant to present those claims in time, because he knew or could reasonably have discovered the tribunal time limits and had made a tactical choice to pursue internal procedures first. It also held that, even if an extension had been available, a delay of about ten months would not have been a reasonable further period.

The tribunal separately revisited D12 on jurisdiction and held that any complaint about the omission of the report should have been presented by 30 June 2021, so that allegation too was out of time. Although the tribunal did not determine the full merits of D1-D9, it stated that some of those allegations would in any event have failed: D3 because the claimant could not reasonably have understood Ms France’s e-mail or lack of action to be detrimental, D6 because the 11 August 2020 letter was not motivated by protected disclosures, D7 because the alleged negative reaction to COVID concerns did not occur, and D9 because the refusal of home working was not motivated by protected disclosures. The overall outcome was that the whistleblowing detriment claim was dismissed and no remedy was awarded.