Mr John Sondergaard v Merseyside Fire and Rescue Authority — 2020

The tribunal found that Mr John Sondergaard, a firefighter employed by Merseyside Fire and Rescue Authority, was dismissed on 13 September 2018 for gross misconduct after disciplinary proceedings concerning repeated failures to test breathing apparatus and allegations made by AB. It accepted that Nicholas Mernock genuinely believed the misconduct allegations, had reasonable grounds for that belief, and that dismissal fell within the range of reasonable responses after investigation, hearings on 29 June, 2 July and 5 July 2018, and an unsuccessful appeal on 7 September 2018.

On whistleblowing, the tribunal accepted that union representatives raised concerns about differences between two notes for file prepared by Ian Wooldridge, but it found the first alleged disclosure around 19 February 2018 was not a protected disclosure because Mr Sondergaard was unaware of it and there was no reasonable belief of breach of legal obligation, miscarriage of justice, or deliberate concealment. It further found that the 1 June 2018 letter and the 2 July 2018 hearing involved disclosures of information, but they were made in the context of a private employment dispute, not in the public interest. The tribunal also found no causal link between any disclosure and the suspension, investigation, venue decisions, disciplinary process, or dismissal.

On disability, the tribunal reviewed medical records from 1992 through 2018 and found that periods of stress, bereavement, and limited Fluoxetine prescriptions did not establish depression as a mental impairment with a substantial and long-term adverse effect on normal day-to-day activities during the relevant period. It therefore held that the claimant was not disabled within section 6 Equality Act 2010. In the alternative, it found the respondent did not have actual or constructive knowledge of any disability or substantial disadvantage and did not breach the duty to make reasonable adjustments in relation to hearing venues, suspension contact, or the playing of AB's recording.

The tribunal also rejected the submission that the disciplinary process was unfair because of the handling of the note for file or the use of the covert recording. It found the claimant was given the allegations in detail, had the opportunity to answer them, and was permitted breaks and adjournments when the recording was played. No monetary award was made because all claims were dismissed.