E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND)5 Case Number: 4103053/2019 Held at Glasgow on (reading day), 14, and January 2020 Employment Judge: W A Meiklejohn Tribunal Member: Mr G Noble Tribunal Member: Mr J Burnett Mr Kevin Colhoun v Limited (in Liquidation) — 2020

The claimant relied on an email of 28 August 2017 about issues at the Arla Lockerbie site as a protected disclosure concerning health and safety. The tribunal had considerable doubt that the wording amounted to a disclosure of information for s.43B ERA purposes, and found that the lack of detail meant it did not tend to show that any individual's health and safety had been, was being, or was likely to be endangered.

The tribunal also found no causal link between the alleged protected disclosure and the respondent's later conduct. It found that the respondent's decisions to place Mr Mallaby at Arla Lockerbie and appoint Ms Burke as temporary line manager were reasonable management responses to the matters raised, and that the later absence management and grievance processes were not caused by the alleged whistleblowing.

On constructive dismissal, the tribunal found no breach of the implied term of trust and confidence. It considered the delay in arranging occupational health regrettable, and noted that parts of the grievance had been partially upheld internally, but held that these matters did not amount to a fundamental breach. The claimant's employment therefore ended by resignation, not dismissal.

On holiday pay, the tribunal accepted that holiday pay had been due on termination, but found that the respondent had overpaid company sick pay by a larger amount. The non-payment was treated as recovery of an overpayment of wages and was excluded from the unlawful deduction provisions by s.14(1) ERA 1996.