Mr Paul Dacey v The Commissioners of HM Revenue & Customs — 2019

Mr Paul Dacey had been dismissed in 2015 for gross misconduct, reinstated on appeal in September 2015, and then moved into the INQUAT quality assurance role from 26 October 2015 because he could not continue in an evidential chain role. The tribunal found that Mr Mike Smith told him on 23 October 2015 that the CIDAA would continue for 12 months at management discretion and then cease, and that the claimant was later overpaid after that period.

On the first claim, the tribunal held that there was no contractual entitlement to the CIDAA and no implied term by custom and practice. It found that the allowance attached to the role rather than to the person, and that the claimant's move into a non-operational post meant the allowance was not properly payable. The unlawful deduction claim therefore failed, and the separate holiday pay claim also failed because the tribunal found no shortfall: it calculated that more holiday had been paid than was due, and held that the deduction of £2,737.68 from final pay was recovery of CIDAA overpayment.

The claimant's sex discrimination complaint failed. The tribunal held that the relevant decision was conveyed on 23 October 2015, so the claim was out of time, and in any event the claimant's comparators were not in materially similar circumstances because of the restrictions arising from his previous misconduct and his transfer to INQUAT. The tribunal also held that there was no evidence from which it could infer that the CIDAA decision was made because of sex.

In relation to whistleblowing, the tribunal accepted that seven disclosures made to the respondent were protected disclosures, but it did not accept that later alleged disclosures to Mr Madigan on 21 February 2017, to Ms Jeffrey on 13 March 2017, or later to Mr Sanger and Mr Davies were established on the evidence. Most of the asserted detriments were found not to be detriments at all, or were found not to be caused by protected disclosures; the tribunal also held that some whistleblowing heads were time-barred. It found the disciplinary referral in February 2017 was made because Mr Madigan believed the claimant had received CIDAA he was not entitled to receive.

The dismissal claim failed. The tribunal found the reason for dismissal was conduct, namely the claimant's failure to notify managers or HR that the CIDAA continued to be paid after he knew it had ceased to be payable. It accepted the decision-maker's and appeal officer's contemporaneous reasoning, held that the investigation and dismissal decisions satisfied the Burchell test, and concluded that the dismissal fell within the range of reasonable responses despite the lengthy process. The tribunal also accepted that the claimant was disabled by reason of clinical depression, but rejected both the harassment complaint and the reasonable-adjustments complaint. It found the respondent had already made adjustments, including moving him closer to home, offering flexible working, support, and occupational health referrals, and a separate discrimination arising from disability allegation had been withdrawn on day 1. The proceedings were dismissed in full.