Ms A. Davies v Waystone Limited — 2022

The claimant, Ms A. Davies, worked for Waystone Limited from 12 August 2019 until 13 May 2020. The tribunal held that she did not have two years' service for ordinary unfair dismissal, but it did determine the automatic unfair dismissal, whistleblowing detriment, wrongful dismissal, constructive dismissal and holiday pay issues raised in the case.

The tribunal found that the 7 October 2019 complaint about Mr Cook's alleged sexual touching, and the related 15 October 2019 conversation about the matter being reported to the Police, were protected disclosures. It accepted that those disclosures conveyed factual information, that the claimant reasonably believed they tended to show a criminal offence and an endangerment to health and safety, and that they were made in the public interest. It rejected deliberate concealment as a reasonable belief on the evidence.

By contrast, the 13 March 2020 email was not a protected disclosure because the tribunal found it was mainly a complaint about stress, support and workplace treatment rather than a public-interest disclosure of wrongdoing. The tribunal held that the 14 March suspension was materially influenced by the claimant's criticism of Helen McLoughlin in that email, with the earlier sexual-harassment reference playing only a more than trivial part, but that the suspension was not caused by a protected disclosure. The later emails of 17, 28 and 29 March and 3 May 2020 about the phone bill, VPN and an alleged O2 fraud were rejected as protected disclosures because the claimant did not show a genuine and reasonable belief that they disclosed fraud, a breach of legal obligation or deliberate concealment, and the tribunal drew adverse inferences from the failure to call Mr Cox and Mr Hoffbrand.

The tribunal found that the claimant did suffer a detriment in relation to the 27 March 2020 emails between Mr McLoughlin and Mr Hoffbrand, but held that this was not actionable under section 47B against the employer and was not shown to arise from a protected disclosure. The automatic unfair dismissal claim under section 103A ERA was dismissed because the tribunal held that the principal reason for dismissal was the claimant's criticism of Helen McLoughlin, not whistleblowing. On the wrongful dismissal claim, the tribunal found that the claimant had not committed a repudiatory breach justifying summary dismissal and awarded one week's notice pay of £846.15 gross. The tribunal also held that it had no constructive dismissal claim to determine because the respondent terminated employment on 6 May 2020 during the notice period. The holiday pay claim was withdrawn.