Ms L March v Transform Housing and Support — 2022

Ms March worked as a Housing and Support Officer and was summarily dismissed on 12 November 2020 after sending a 5 October 2020 email to Runnymede Borough Council about the eviction of client Grace Foster, copying in her managers, and later assisting Ms Foster to seek legal advice. At the start of the hearing the tribunal refused a late application to add a separate harassment claim about the claimant's own disability, applying Selkent Bus Co Ltd v Moore and finding it was a new claim raised very late and out of time.

On the whistleblowing issues, the tribunal held that only one of the passages relied on, PD3, was a qualifying disclosure. It found PD1, PD2 and PD4 were not qualifying disclosures, but PD3, concerning staff shortages leading to poor monitoring, case handling and ill-informed decision-making, was a disclosure of information made in the public interest and with a reasonable belief that it tended to show a failure to comply with a legal obligation. Because the email was copied to Samantha Williams and Vicki Ellis, the tribunal found the disclosure was made to the employer within s43C ERA 1996.

The whistleblowing detriment claim was held out of time under s48 ERA 1996 and struck out. The tribunal alternatively found that the suspension and restrictions on speaking to staff or tenants were imposed because of the seriousness of the allegations and the need for an unhindered investigation, not because of PD3. It also found there was no evidence that tenants were told the claimant had left before dismissal.

The ordinary unfair dismissal claim failed. Applying Burchell and s98(4) ERA 1996, the tribunal found the respondent genuinely believed the claimant had committed misconduct, had reasonable grounds for that belief, and conducted a reasonable investigation. It held dismissal was within the band of reasonable responses, taking account of the 5 October email, the claimant's assistance to Ms Foster in seeking legal advice against the respondent, the perceived risk to trust and confidence, and the claimant's lack of insight. The automatic unfair dismissal claim failed because the reason for dismissal was conduct rather than any protected disclosure.

The victimisation claim failed because the tribunal did not accept that the email contained a protected act under s27 EqA 2010, and in any event the protected act did not have a significant influence on the dismissal decision. The harassment claim failed because the tribunal was not satisfied that the alleged exclusion from some communications about Ms Foster was related to disability or that it created the required environment under s26 EqA 2010. The wrongful dismissal, holiday pay and breach of contract claims also failed: the tribunal found the claimant's conduct amounted to gross misconduct and a fundamental breach justifying summary dismissal without notice, so no further holiday accrued, and the Whistleblowing Policy was not shown to be contractual or engaged. No monetary award was made.