In Person For the v Respondent — 2022

The tribunal rejected most of the claimant's alleged protected disclosures. It found that the run-sheet comments about site safety were vague and did not amount to a disclosure of information, that there was no sufficient evidence of a qualifying disclosure about long hours or GP adjustments, and that the attempt to raise concerns with JD Wetherspoon was not itself a disclosure. It also rejected the claimant's allegation that the respondent hacked his phone or computer or that there was collusion against him.

The tribunal accepted that the claimant did make qualifying disclosures about the respondent's failure to report his 11 April 2017 accident to the HSE, including disclosures made to managers and to the HSE. It found that the claimant believed the failure to report was a matter of public interest and that the disclosure to the HSE satisfied s.43F ERA 1996. However, it held that the disciplinary action and suspension were taken because of the claimant's behaviour, not because he had made a protected disclosure, and it found no detriment arising from the disclosures. It also recorded that, even if any detriments had been made out, they would have been out of time.

The ordinary unfair dismissal claim failed because the tribunal found that the respondent dismissed the claimant for misconduct. It accepted that on 14 July 2019 the claimant raised his voice, referred to managers as liars, mentioned recordings he had made, and behaved in a way that was witnessed by several employees. The tribunal found that the employer held a genuine belief in misconduct on reasonable grounds after an adequate investigation, and that the disciplinary and appeal process was reasonable.

Applying s.98(4) ERA 1996 and the guidance in Burchell, Post Office v Foley, Iceland Frozen Foods Limited v Jones, Sainsbury's Supermarkets Limited v Hitt and London Ambulance Service NHS Trust v Small, the tribunal held that dismissal was within the range of reasonable responses. It took account of the claimant's live final written warning, an earlier informal warning, and the respondent's policy that a breach of the diversity and respect at work policy could amount to gross misconduct. The automatic unfair dismissal claim under s.103A ERA 1996 also failed because the tribunal found the principal reason for dismissal was misconduct rather than protected disclosure.