D Frew and G Doherty Mr R Dickie v GE Caledonian Limited — 2023

The tribunal first refused a late application to amend the whistleblowing case so the claimant could rely on additional evidence about an alleged trade union investigation being passed to HR. Applying Selkent Bus Co Ltd v Moore, it held the proposed amendment was a significant late change introducing new facts, would prejudice the respondent, and the balance of hardship favoured refusal.

On the dismissal claim, the tribunal found that the respondent dismissed Mr Dickie for conduct. The investigation and disciplinary process concerned allegations of threatening behaviour, harassment, taking wood from the MRB store, telling LD to delete an email, looking for LD’s house, and throwing dry ice. The tribunal accepted the evidence of the respondent’s witnesses, found that Mr Dickie admitted taking the wood and throwing dry ice, and held that the dismissal for gross misconduct was within the band of reasonable responses.

The tribunal rejected the automatic unfair dismissal case under s103A and the health and safety dismissal case under s100. It found no evidence that the decision-makers, RW, AC or DE, knew of the protected disclosures or health and safety matters relied on, and therefore those matters could not have been the reason for the dismissal or any detriment. It also held that the s100 claim was not engaged on the pleaded facts. The tribunal likewise dismissed the s47B detriment claim for the same lack of causal knowledge, and said it had not needed to determine whether the disclosures were protected disclosures.

The tribunal added that, even if it had found some procedural unfairness, it would have awarded no compensation. It said there would have been a 100% likelihood of dismissal in any event because of the admitted misconduct, and that Mr Dickie would also have been found to have contributed to his dismissal to the extent that basic and compensatory awards would have been reduced to nil.