Case 2500473/2023 · Employment Tribunal
Mr L Warren v Arriva UK Bus Limited — 2024
- Case reference
- 2500473/2023
- Decision date
- 3 January 2024
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Lambert Representation
- Venue
- Bristol
Parties
2 namedClaimant
Mr L Warren
Respondent
Key findings
Tribunal's reasoningMr Warren was employed by Arriva UK Bus Limited from 25 November 2019 as a Commercial Real Estate Manager and was part of a private WhatsApp group called "Property Moguls" with Mr Williams and others. The tribunal found that the group was used for business and non-business messages and that some of the messages were racist, sexist, homophobic or otherwise offensive. It accepted that the claimant later complained about Mr Williams's conduct in an email of 28 November 2022, attaching the offensive messages.
On the whistleblowing claim, the tribunal held that the email disclosed information but did not amount to a qualifying protected disclosure. It found that the claimant's complaint was not made in the public interest, but was instead tied to a private dispute about his employment and the termination discussions that had taken place in late October and November 2022. It also found that he did not, at the relevant time, genuinely and reasonably believe that the information tended to show a criminal offence or danger to health and safety. The automatic unfair dismissal claim under s.103A ERA 1996 therefore failed.
On the ordinary unfair dismissal claim, the tribunal accepted that the respondent dismissed the claimant for conduct and that, applying Burchell, it genuinely believed he had sent the offensive WhatsApp messages on reasonable grounds after a reasonable investigation. The tribunal found that the claimant's dismissal was substantively fair on that basis. However, it held that the process was procedurally unfair because the investigation report and the offensive messages were not provided before the disciplinary hearing, the hearing notes were not provided until after proceedings began, and the respondent did not provide the second stage of appeal that its procedure indicated would be available.
The tribunal therefore upheld the unfair dismissal claim, but no remedy was fixed at this stage. It listed the case for a further one-day hearing to determine remedies and directed the parties to make submissions on Polkey, contributory fault and the ACAS Code of Practice. The tribunal indicated that, despite the procedural defects, the claimant would likely have been dismissed in any event.
Claims and outcomes
2 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Whistleblowing | Automatic unfair dismissal under s.103A ERA 1996. The tribunal held that the 28 November 2022 email disclosed information, but it was not made in the public interest and the claimant did not hold a reasonable belief that it was. It also found that the reason for dismissal was the claimant's own gross misconduct in sending offensive WhatsApp messages, not the protected disclosure. | Dismissed | — | — |
| Unfair dismissal | Ordinary unfair dismissal under s.94 ERA 1996. The tribunal accepted that conduct was a potentially fair reason and that the respondent had a genuine and reasonable belief after a reasonable investigation, but it found the dismissal procedurally unfair because the claimant was not given the investigation report or messages before the disciplinary hearing, was not provided with hearing notes until after proceedings began, and was not given the promised second appeal. | Upheld | — | — |
Legal tests applied
7 references- Williams five limbs
- Chesterton public interest test
- Burchell test
- s.98(4) ERA 1996
- Polkey reduction
- contributory fault
- ACAS Code of Practice
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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