Mr Bennet (caseworker) For the v Ms Wood (in-house representative) — 2022

The tribunal refused the respondent's late application to file an ET3 and limited its participation at the liability hearing, so the claimant's evidence was not tested by cross-examination on liability. It nevertheless assessed the evidence in the round and accepted the claimant's account of the key events. The claimant was employed as a cleaning operative from 4 September 2018 until dismissal with effect from 21 September 2020, and had been dismissed purportedly for poor performance.

The tribunal found that the emails sent on 23 January 2020 and 7 May 2020 by the claimant's union caseworker on his behalf were protected disclosures within s.43A and s.43B ERA 1996. Those communications raised concerns including unlawful deduction of wages, insufficient uniforms, lack of training, inadequate staffing, COVID-19 information and training, risk assessments, and PPE. The tribunal accepted that the claimant reasonably believed the disclosures were in the public interest and related to matters affecting other workers and clients. It also found that the claimant was making use of trade union services when those emails were sent.

On 27 July 2020, the tribunal found that Mr Costa told the claimant words to the effect that if he could use his mobile to call his union he could also call Mr Costa. That was held to be a detriment contrary to s.146(1)(ba) TULR(C)A 1992. In relation to dismissal, the tribunal found that no adequate investigation had been carried out, there was no formal meeting, no warning that dismissal might result, no right to be accompanied, and no proper appeal process. It rejected the respondent's reliance on alleged performance warnings and concluded that any complaints about the claimant's work were no more than an excuse.

The tribunal found that the real reason for dismissal was that the respondent was annoyed that the claimant had raised protected disclosures and used his trade union, and was punishing him as a result. Accordingly, the dismissal was automatically unfair under s.152(1) TULR(C)A 1992 and alternatively under s.103A ERA 1996; if wrong about those grounds, it would in any event have been substantively and procedurally unfair under s.94(1) ERA 1996. For remedy, the claimant had already been paid contractual notice, so no notice pay was awarded. The tribunal accepted mitigation evidence, awarded a basic award of £6,562, compensatory loss of earnings of £8,849.94, and £500 for loss of statutory rights, then applied a 25% uplift because no process was followed. The dismissal award was £18,249.43, and the successful detriment claim attracted £1,500 for injury to feelings. No recoupment issue arose because no benefits were claimed.