Mr James Tapner v Autotech Reading Limited — 2023

The tribunal accepted that Mr Tapner made disclosures of information on 16 September 2020, 1 October 2020, and 3 November 2020 in the redundancy consultation and appeal process. It also accepted that he held a reasonable belief that the disclosures were in the public interest and that they tended to show damage to the environment within section 43B Employment Rights Act 1996, even though the timing of the disclosures was in part self-serving. However, the tribunal found no whistleblowing detriment: it did not accept that Duncan Leftley told him he was trying to make other employees look bad, and it found the comment actually made was not a detriment and was not made on the ground of a protected disclosure.

The automatic unfair dismissal claim also failed. The tribunal found that the reason, or principal reason, for dismissal was not protected disclosure but redundancy, driven by a genuine diminution in work during the Covid-19 pandemic. It accepted the respondent’s evidence that the Reading site had been operating with reduced work and staffing, and that the redundancy exercise was part of that business response rather than retaliation for disclosures.

On ordinary unfair dismissal, the tribunal held that redundancy was a potentially fair reason under section 98(1) ERA 1996 and that the respondent acted reasonably in all the circumstances. It found that the claimant was warned and consulted, that the pool of three paint-shop employees was a fair one because Sam Noyes could also paint as well as prep, and that the selection criteria were clear, transparent, and objective. The tribunal rejected the suggestion that Charles Goswell tainted the process, found it reasonable for Aidan McCarron and Pete Cullen to carry out the scoring after Goswell had left, and held that the claimant’s furlough status did not make the redundancy process unfair. It also noted that the claimant declined alternative roles at High Wycombe and Slough.

The disability discrimination claim concerned the 'team working' criterion in the redundancy scoring. The respondent accepted that Mr Tapner was disabled by reason of autism spectrum disorder and knew of that disability, but the tribunal found the criterion did not put him at a substantial disadvantage compared with non-disabled colleagues. It relied in part on the claimant’s own 2019 appraisal, which recorded strong team-working and communication scores, and on the redundancy scores, where he received 7.5 for team working, the same as one of the other employees. The tribunal also held that, even if there had been a disadvantage, the respondent could not reasonably have known of it because the claimant had not raised such a point during consultation and had described himself as excellent at teamwork.