P McColl & S Singh Mr B Keegan v Represented by: Mr M Briggs - Advocate The Board of Management of South Lanarkshire — 2023

The tribunal heard joined claims by Ms McKechnie, the College Principal, and Mr Keegan, the Interim Board Secretary, arising from a breakdown in relations with the Chair, Mr Kerr, and other Board members. It found that Mr Kerr had received complaints from staff, had sought legal advice and Board involvement, and had not solicited complaints or engineered dismissal. The tribunal also found that the College's constitution and scheme of delegation reserved the Principal's and Board Secretary's dismissal and suspension to the Board, and those governance documents took precedence over the internal disciplinary procedure.

On Ms McKechnie's whistleblowing case, the tribunal found that some of her written communications were disclosures of information and some were qualifying disclosures, including aspects of the 13 November 2020 email and later correspondence in June, September, November 2021 and May 2022. It nevertheless held that the Board's January 2023 decision was based on the investigation findings about her conduct, the breakdown in relationships and gross misconduct, or alternatively some other substantial reason, rather than on the fact that she had made protected disclosures. The tribunal rejected the Jhuti argument because it found Mr Kerr had not decided the outcome in advance, had not solicited complaints, and the Board members who decided dismissal did not have the necessary knowledge of the protected disclosures.

Applying Burchell and section 98(4) ERA 1996, the tribunal held that the independent investigations carried out by Ms McCormick and Ms Bowerman were within the band of reasonable responses. It found that the thematic presentation of the allegations still gave Ms McKechnie sufficient information to respond, that the investigations were thorough in the unusual circumstances of the case, and that the absence of an appeal did not make the procedure unfair because an appeal would have returned to the same Board which alone had authority to dismiss. It also held that the lengthy suspension was explained by the sickness absence of the claimants and the complexity of the material.

The sex discrimination claim failed. The tribunal held that the proper comparator was a male employee in materially similar circumstances, not the previous Principal or Mr Kerr, and it found that a male comparator facing the same type of allegations and conduct would also have been dismissed. It did not accept that the themes identified in the investigation, or the handling of the case, showed treatment because of sex.

On Mr Keegan's whistleblowing claims, the tribunal held that several of his letters contained disclosures of information, but none satisfied the qualifying-disclosure test because the alleged legal breaches were too vague, insufficiently specific, or not reasonably believed. It found that the alleged detriment of Mr Kerr not engaging with him was a detriment but occurred on 20 September 2021, before the first alleged disclosure, and was tied to the contract dispute rather than whistleblowing; that part of the detriment claim was also out of time. The tribunal held that the length of suspension and the press coverage were not shown to have been caused by protected disclosures, and that Mr Keegan's dismissal, like Ms McKechnie's, was for conduct and breakdown in trust and confidence rather than whistleblowing.