Mr E Smith v Seaward Travel Ltd — 2023

The claimant was employed as a coach driver and raised repeated concerns in January 2020 and again in September 2020 about fumes, heating and ventilation problems in the vehicle he was required to drive. The tribunal found the respondent did not properly address those safety concerns, did not ensure a detailed inspection and discussion to allay his fears, and unreasonably treated the matter as closed on 14 September 2020. It also found that the respondent did not investigate the school's complaint properly before inviting the claimant to a SOSR meeting, and that the typed notes relied on for the 28 September 2020 meeting were not contemporaneous and were produced later.

The tribunal held that the respondent's conduct, taken cumulatively, destroyed the relationship of trust and confidence. It found that the claimant did not affirm the contract and resigned on 6 October 2020 in response to that breach, so the constructive unfair dismissal claim succeeded. The respondent's reliance on SOSR as the reason for dismissal was not made out, and the dismissal was therefore unfair.

On whistleblowing, the tribunal accepted that the 22 January 2020 email and the verbal complaint on 14 September 2020 were protected disclosures under s43B ERA 1996 and were made in the public interest, but it found that the claimant's resignation was not linked to those disclosures. It instead found that the immediate trigger was the disciplinary meeting and the allegations made against him, so the automatic unfair dismissal claim under s103A failed. On the health and safety dismissal claim, the tribunal found the claimant had brought harmful or potentially harmful circumstances to the respondent's attention by reasonable means under s100(1)(c), and that there was no health and safety representative or committee, but it was not satisfied that those matters were the reason for dismissal or that s100(1)(d) was engaged. Remedy was not decided in this judgment and was listed for a later hearing.