Members: Hugh Boyd John Kerr Mr Terence Balfour v Represented by:-15 Mr R O’Dair - Barrister The University Court of — 2017

The claimant had worked as a catering assistant on a zero-hours contract since January 2011. His partner, Louise Loveman, had brought a grievance in 2015 alleging bullying and racism in Hospitality, and the claimant had supported her in that process and at the appeal. On 14 July 2015 he replied to an email about proposed changes to zero-hours contracts by sending a message to Ms Hood and Ms McInnes and copying a large number of zero-hours staff, alleging that management lied to staff, used unscrupulous methods, enabled bullying and racism, and were involved in sham grievance procedures.

Applying Cavendish Munro, Kilraine and National Laboratories, the tribunal held that the email did not amount to a protected disclosure because it conveyed opinions and allegations rather than factual information. It accepted that one sentence about a culture of bullying and racism could, if treated as information, tend to show a breach of legal obligation, but held the claimant did not reasonably believe his disclosure was made in the public interest. The tribunal found he sent the email in anger after the Loveman grievance outcome and that, at the time, there was no contemporaneous suggestion that he was making a protected disclosure.

The tribunal rejected the claimant's case that allegation 3 and the disciplinary process stopped him from relying on the Loveman material. It preferred the respondent's minutes and witnesses to the claimant's covert transcripts, found his evidence inconsistent and not wholly reliable, and concluded he was not prevented or led to believe he was prevented from referring to previous grievances. It also found the respondent did not know the details of Loveman's grievance when the process began, and that the claimant himself was unclear and inconsistent about what he was referring to.

On the detriment and dismissal claims, applying London Borough of Harrow v Knight, Fecitt, Burchell, Sainsbury's v Hitt, Iceland Frozen Foods and Polkey, the tribunal found the disciplinary investigation was prompted by the serious and potentially defamatory content of the email and its circulation to other staff, not by any protected disclosure. It held the investigation was reasonable, that allegations 1, 2, 4, 5 and 6 were upheld and allegation 3 was not upheld at dismissal, and that Mr MacKenzie dismissed the claimant for gross misconduct because the claimant could not explain or substantiate the statements, had not followed the grievance procedure, had behaved inappropriately towards Ms McInnes, failed to attend the first disciplinary hearing, and did not reassure the respondent that he would not repeat the conduct.

The tribunal dismissed the victimisation claim, applying Nagarajan and Pasab, because although the claimant had done protected acts by supporting Loveman's race discrimination complaints, attending her grievance hearing and making his own allegation of race discrimination, those acts did not materially influence the decision to investigate or dismiss. It also rejected the Article 10 and 11 arguments, found no free-standing ECHR claim, and concluded that any interference was justified and proportionate. All claims were dismissed and no award was made.