In person For both v Respondent — 2020

The Claimant was Head of District Heating at London Road Heat Station and was dismissed after disputes about repairs to the LP Header and a bypass modification to the steam system. The tribunal found that the repair work to the LP Header had not been authorised by Zurich and that the Claimant knew of the issue by early November 2017. It also found that he held serious misgivings about the proposed bypass modification and that he emailed his manager on 8 November 2017 setting out health and safety concerns about proceeding with both incineration lines operating.

On the whistleblowing complaint under s.103A ERA 1996, the tribunal held that the 8 November email was a protected disclosure and that the appeal letter of 25 May 2018 also contained a qualifying disclosure, but that the 21 December 2017 union email and the grievance paragraph did not amount to disclosures of information. The claim failed because the tribunal accepted the evidence of the dismissing and appeal officers that they were not influenced by any protected disclosure and found that the dismissal was for conduct, not because of whistleblowing.

On the health and safety automatic unfair dismissal complaint, the tribunal accepted that the Claimant reasonably believed the bypass arrangement created circumstances of serious and imminent danger and that his email was an appropriate step to protect himself and others. That claim also failed on causation: the tribunal found that the dismissal was not because he had taken protected health and safety steps, but because of his refusal to co-operate with management over the bypass modification and related conduct issues. The judgment's summary line referred to s.100(1)(c) ERA 1996, but the reasons and conclusions analysed s.100(1)(e).

The tribunal upheld the ordinary unfair dismissal claim. It found that the respondent had a potentially fair reason of conduct and that the dismissing officer genuinely believed the Claimant was guilty of gross misconduct, but the belief was not reasonably held and was not the product of a reasonable investigation. The tribunal criticised the delay in investigating, the failure to interview key witnesses, the destruction of disciplinary notes, and the failure to identify the precise PSSR breach relied on. It also held that dismissal was outside the band of reasonable responses. The tribunal further held that the conduct amounted to contributory fault at 50% and that, under the Polkey analysis, the employment probably would not have continued beyond 12 months; the question of remedy was left for a separate hearing.

The wrongful dismissal claim also succeeded. The tribunal held that the Claimant's failings were, at their highest, negligent and not gross misconduct. It accepted that the Maintenance Manager was the main interface with Zurich and bore primary responsibility for notifying and securing approval for the repairs, but concluded that the Claimant's failure to check that this had been done did not justify summary dismissal without notice. No remedy figure was fixed in this judgment because the matter was listed for a later remedy hearing.