Mr N Hopgood v S Walsh & Sons Limited — 2021

The claimant was employed by S Walsh & Sons Limited from 7 January 2013 and became Senior Transport Manager in April 2014. In March and April 2020, during the pandemic lockdown, the respondent reviewed its business and planned to reduce roles. The tribunal found that the claimant sent an email on 10 March 2020 about concerns over DE lorries and later telephoned Mr Robinson on 20 April 2020 to say that drivers being back while no Walsh transport manager was at work was illegal. The respondent then furloughed staff, reviewed its structure, and selected the claimant for redundancy in May 2020.

On whistleblowing, the tribunal held that the 10 March 2020 email was not a qualifying protected disclosure because the claimant understood the lorries would not be used unless and until the issues were resolved, so he did not reasonably believe it was probable that the respondent would commit an offence, breach a legal obligation, or endanger health and safety by going forwards. By contrast, the 20 April 2020 telephone call was a qualifying protected disclosure: the claimant reasonably believed the respondent was failing to comply with DVSA-related legal obligations because neither he nor any Walsh transport manager was working, and the tribunal found that belief was made in the public interest because it concerned the safe and proper use of vehicles and road users.

The detriment claim failed. The tribunal found that the alleged exclusion from meetings in March 2020 could not have been influenced by the 20 April disclosure because it pre-dated that disclosure. It also found that the later decision not to ask the claimant to return to oversee lorries and drivers was not influenced by the disclosure because the respondent had already mapped out a revised business structure in April 2020, before the disclosure, and the relevant decision was driven by that structure. The redundancy selection allegation was dismissed both because selection for redundancy could not be separated from dismissal for the purposes of s47B(2) and because, in any event, the disclosure played no part in the selection decision.

On ordinary unfair dismissal, the tribunal accepted that the respondent had a genuine redundancy situation because the pandemic had reduced the need for transport manager work. However, it held that the dismissal was unfair under s98(4) ERA 1996. The respondent did not genuinely consider a wider selection pool, and the planning organograms prepared in April 2020 showed that the claimant had already been removed from the revised structure while SP was envisaged as the senior or lead transport manager. Consultation was not meaningful because the decision had effectively been taken before the consultation meetings, the claimant was not properly asked to engage on pool or selection, and the tribunal found the second meeting was a sham. The tribunal also found no meaningful exploration of alternatives such as a salary reduction, voluntary redundancy, bumping, or waiting for the furlough scheme to continue.