MR P UKPAI v Ministry of Defence — 2019

The claimant, a Major in the Army reserves, raised concerns that he was subject to covert surveillance and that members of his squadron or the Army were involved. Following discussion with Brig Robertson and Lt Col Connolly, the respondent excluded him from training, later suspended him from command, and commenced an AGAI 67 administrative process. The tribunal found that the respondent's witnesses had genuine concerns about the claimant's welfare, his ability to command personnel he had accused, and his refusal to meet his commanding officer.

On the whistleblowing claim, the tribunal held that it had no jurisdiction to consider a protected disclosure detriment claim by a member of the reserve forces because s.47B ERA 1996 was not included in the statutory provisions extended by s.192 ERA 1996. It also considered the claim in the alternative and found that, although the claimant held a reasonable belief that his disclosure tended to show unlawful surveillance and that it was in the public interest, the alleged detriments were not taken on the ground that he had made a protected disclosure.

On victimisation, the tribunal accepted that the claimant's service complaints and later written indication were protected acts relating to race discrimination. The suspension allegation was withdrawn, and the tribunal found that the AGAI 67 process was launched because of the respondent's stated concerns and the claimant's refusal to engage, not because of the protected acts.

On direct race discrimination, the tribunal found that the claimant's proposed comparators were not appropriate because their circumstances were materially different. It concluded that a hypothetical comparator in materially similar circumstances would have been treated in the same way, and that the respondent had shown non-discriminatory reasons for the suspension and the AGAI 67 process.