: I Ashraf and A Grant Mr K McDonagh v ’s wife Greater Glasgow Health Board and 3 others — 2022

The claimant worked as a porter at the Royal Alexandra Hospital from 2017 and was dismissed with effect from 22 January 2020 following allegations arising from an incident on 13 June 2019. The tribunal found that the respondent suspended him on 14 June 2019 after allegations of threatening and aggressive behaviour, and that the dismissing officer, Ms Kane, and the appeal panel genuinely believed the claimant had been aggressive and threatening towards colleagues in a public area of the hospital.

Applying section 98(4) ERA 1996 and the Burchell approach, the tribunal held that the respondent had carried out a reasonable investigation, obtained witness evidence, heard from the claimant, and then went further by arranging occupational health and psychiatric input and a further investigation into issues the claimant had raised. It rejected the challenges about the door, the missing verbatim notes, the occupational health referral, the CCTV, and the handling of the second psychiatric referral as material defects. The tribunal concluded the dismissal fell within the range of reasonable responses and was procedurally fair. It also found, on the evidence it heard, that the claimant had been guilty of conduct amounting to a repudiatory breach, so the wrongful dismissal claim failed.

On whistleblowing, the tribunal accepted that the 16 February 2018 letter and the 30 June 2018 disclosure were protected disclosures, but it did not accept that the later alleged disclosures were proved. It found that Ms Kane knew of the February 2018 letter but not of the 30 June 2018 disclosure or the later alleged disclosure to Ms Walsh, and it held that the dismissal was not because of any protected disclosure. The section 47B detriment allegations also failed: the Mr Shaw allegation was not established, the appeal decision by Mr Hobson was found to be based on the conduct finding rather than any protected disclosure, and the timeline prepared by Ms Biereonwu was treated as a broadly accurate aide memoire rather than adverse treatment on whistleblowing grounds.

The disability discrimination claims also failed. The reasonable adjustments claim was out of time and, in any event, the tribunal found no PCP of refusing counselling or occupational health referrals for staff with mental health issues. The harassment allegations based on the 12 July 2019 interview, the 9 October 2019 referral to psychiatry, the 6 November 2019 meeting, and the 15 November 2019 occupational health appointment were not found to be unwanted conduct related to disability. The tribunal also rejected the unlawful deductions claim because the claimant had agreed to stop weekend working before suspension, and the breach of contract claim failed because the grievance issues were treated as part of the appeal and no compensable loss was shown.

On remedy, the tribunal made a consent award of £186.15 gross holiday pay. It declared under section 12(3) ERA 1996 that itemised pay statements had not been provided for June 2019 to January 2020, but declined any financial award under section 12(4). It awarded £750, being 2 weeks' pay, for the missing written statement of particulars under section 38(4) of the Employment Act 2002.