Mr. T Smith v The Rationalist Association — 2021

The tribunal found that the claimant was an employee from 1 January 2014, notwithstanding the respondent's argument that employment began only on 1 January 2018. It accepted that the parties' contract backdated continuous service and, in any event, held that the reality of the relationship showed control, personal service and mutuality of obligation from at least May 2016 and earlier, so the tribunal had jurisdiction to hear the ordinary unfair dismissal claim.

On the whistleblowing issue, the tribunal held that most of the 15 May 2019 email consisted of allegations, but one part did amount to a disclosure of information: the claimant said the respondent had failed to heed an auditor's warning, failed to act on suggested action, and withheld that information from the Charity Commission when submitting a serious incident report, contributing to a six-figure fraud. The tribunal found that this part of the email tended to show a breach of a legal obligation, that the claimant reasonably believed what he said, and that he reasonably believed the disclosure was made in the public interest. It therefore treated that email as a protected disclosure.

The detriment claims failed. The tribunal found that the claimant's suspension and the ensuing disciplinary process were prompted by a series of offensive, rude, obstructive and confidence-breaching emails, together with the claimant's conduct more generally, rather than by the protected disclosure. It rejected the allegations that the respondent hacked his personal email account, deliberately misaddressed the suspension letter, failed to investigate, ignored his reasons for non-attendance, failed to follow procedure, or bullied and ostracised him. It also found that the respondent was entitled to disable access to its own email systems and to the claimant's site that used the respondent's work email account.

The tribunal also rejected the whistleblowing dismissal claim. It found that the principal reason for dismissal was conduct, not the making of the protected disclosure. On the ordinary unfair dismissal claim, the tribunal held that the respondent genuinely believed the claimant had committed misconduct, had reasonable grounds for that belief, carried out a reasonable investigation, and acted fairly overall. It concluded that dismissal was within the range of reasonable responses and dismissed the claim. The tribunal recorded that if it had found procedural unfairness, it would have applied a 100% reduction to any award, but no award was made because the claims failed.