Mr Michael Cleary v Rail for London (Infrastructure) Limited — 2021

Mr Michael Cleary was employed by Rail for London (Infrastructure) Limited as a Principal Maintenance Technician on the Elizabeth Line project. The dispute arose after the Respondent introduced a roster requiring the maintenance team to move onto shift working, including nights and anti-social hours, while the project was still being handed over. The tribunal found that the claimant raised safety concerns from June 2019 onwards, but also that he refused to work to the roster and later refused a lawful instruction to attend the new Plumstead office on 17 July 2019, which led to suspension and then dismissal.

At the outset, the tribunal refused permission to amend the ET1 to add five further alleged detriments and a separate flexible working claim. Applying Selkent Bus Co v Moore, and taking account of delay, lack of particularity, and prejudice to the Respondent, it held that those matters had not been pleaded clearly enough and that allowing them would require reworking the case management and likely postponement. The tribunal therefore proceeded only with the claims already in issue.

On the whistleblowing issues, the tribunal held that disclosures 1.1.1 to 1.1.6 were qualifying disclosures under s.43B ERA 1996 and therefore protected disclosures. It found that they conveyed information about risk assessments, dissemination of safety information, and the working conditions in which safety-critical documents were being prepared. The tribunal accepted that the claimant was largely motivated by the roster dispute, but found that he nevertheless believed the disclosures were in the public interest and could reasonably believe they tended to show breaches of health and safety obligations. By contrast, disclosure 1.1.7 concerning the Plumstead office and windows was not protected: the tribunal found it was raised to excuse his refusal to attend Plumstead, and that he did not actually or reasonably believe it tended to show wrongdoing or serious danger.

On the section 44 health and safety claims, the tribunal held that the claimant was designated for limited activities under s.44(1)(a) when he was asked to prepare risk assessments and method statements, but not generally as a health and safety officer. It also found that some communications with Adam Davis and Kevin Wilson about safety concerns were protected acts under s.44(1)(c). However, it held that there was a safety committee and employee representatives, so communications with Dean Kinane-Powell, Hayley Child and Lesley Hull did not qualify under that subsection because it was reasonably practicable to raise concerns through the available channels. The refusal to attend Plumstead did not satisfy s.44(1)(d) or (e): the tribunal found that serious and imminent danger was not established, that the window issue had been addressed by Hayley Child's instructions, and that the claimant could have followed those instructions instead of refusing to attend.