Mr I Coowar v ERA Home Security Ltd — 2020

The tribunal refused the claimant’s late application to amend his whistleblowing case to add an alleged June 2019 disclosure. Applying Selkent Bus Company Limited v Moore, it found the amendment was made very late, would change the nature of the case, and would cause greater prejudice to the respondent than to the claimant. The tribunal also noted that the alleged June 2019 matter had not been part of the original claim or the preliminary hearing summary.

On the substantive whistleblowing claim, the tribunal found that the only alleged disclosure capable of affecting the dismissal was the April 2018 conversation. It concluded that this was not a protected disclosure within s.43B ERA 1996 because insufficient information was disclosed about any legal obligation said to have been breached, and because the claimant himself had not treated it as a protected disclosure in his appeal or evidence. The later 22 July 2019 email could not have caused the dismissal because the decision to terminate had already been taken at the meeting on 26 June 2019.

The tribunal found that the reason for dismissal was the breakdown in trust and confidence between the claimant, James Fisher and the business, including repeated difficulties in communication with colleagues and clients. It accepted that the claimant’s technical ability was not criticised, but found the dismissal was driven by the deterioration in working relationships and client concerns, not by any protected disclosure. The whistleblowing claim was therefore dismissed.

The direct race discrimination claim also failed. The tribunal found that Warren Tyce and Sarah Bray were not valid comparators because their circumstances were materially different from the claimant’s. It further found that the claimant had not established a prima facie case that he was treated less favourably because of race, and he had not identified a sufficient basis for a hypothetical comparator. All claims were dismissed and no remedy was awarded.