MR K DEMPSEY v London Underground Limited — 2022

The claimant was an elected RMT health and safety representative employed by London Underground Limited. The tribunal found that his interactions with a contractor on 27 April 2019, his emails of 3 May 2019, his discussion with Mr McFall on 20 May 2019, and his discussion with Mr Maggenneder on 20 May 2019 were trade union activities carried out at an appropriate time. It also found that the 3 May 2019 email timed 06:03 and the 20 May 2019 discussion with Mr McFall were protected disclosures about health and safety on the railway.

The tribunal accepted that suspension was a detriment. It found a prima facie case from the timing of the suspension immediately before a Tier 2 health and safety meeting, documents referring to removal from union activities, inconsistent explanations about mental health, and the absence of basic initial fact finding. Having considered Mr Davis' stated reasons, it found that conduct, safety-critical working, and concern for the claimant's mental health were factors, but not the main purpose of the suspension.

The tribunal concluded that Mr Davis' main purpose in suspending the claimant was to remove him from his trade union representative role because of his previous union activities in raising protection issues and to prevent him from raising continued health and safety concerns, especially at the Tier 2 meeting. It reached the same conclusion for the protected disclosure claim, finding that the suspension was on the grounds that the claimant had brought the relevant health and safety concerns to the respondent's attention.

The other alleged detriments did not succeed. Mr Davis' comments at the Tier 2 meeting were found to be inappropriate and to disclose sensitive information, but their main purpose was to explain the suspension. Mr McNaught's email and the occupational health referral were not found to be detriments, and the investigation by Ms North was found to be about the manner of the two incidents rather than the claimant's union activities or protected disclosures. Remedy was reserved for a later hearing.