Member R Duguid Tribunal Member S Gray Mr A Mackenzie v E&M Horsburgh — 2021

The claimant worked for E&M Horsburgh Ltd as a bus driver for about five months, driving school buses in the Falkirk area. On 24 January 2019 an ABS warning light came on while he was driving. He checked that the brakes were still functioning, continued his route, and at the first stop told some parents that there was a warning light on, that the buses were old and unreliable, and that they should complain to the local authority or school. He later repeated similar comments to depot manager Andy Finlay at Livingston Depot.

The tribunal found that the reason for dismissal was the claimant’s continued disparaging and derogatory comments about the respondent’s directors during the meeting with Mr Finlay. It accepted that Mr Finlay had not already decided to dismiss him before the meeting, but concluded that trust and confidence had broken down during that conversation because the claimant continued making allegations that could bring the respondent and its directors into disrepute. On that basis, the dismissal was not for health and safety reasons and was not because of any protected disclosure.

The unlawful deduction from wages claim was dismissed because the claimant never specified what money he said was outstanding. The tribunal accepted the respondent’s evidence that it had paid a week’s notice pay and accrued holiday pay once it realised the claimant believed those sums had not been paid, and it did not accept his evidence that he was unaware of the payment into his bank account. The payment identified in the evidence was £260, but the tribunal made no award.

The section 100 ERA 1996 claim failed because the tribunal held that the claimant had not brought any health and safety concern to the respondent by reasonable means, as required by section 100(1)(c). It found that the reasonable course would have been to phone the depot or complete the relevant paperwork, and that merely mentioning the ABS warning light in passing to Mr Finlay was insufficient. The tribunal also found that the claimant did not reasonably believe there was a risk to the children, in part because he continued driving without seeking advice.

The whistleblowing claim under section 103A ERA 1996 also failed. The tribunal found that the claimant had not disclosed information to the parents, but rather his opinion that the bus and the respondent’s fleet were too old. It noted that there was no suggestion the bus was not properly maintained or fit for purpose, and that even if what he said to the parents could be treated as a disclosure, it was not a protected disclosure. The tribunal also found no evidence that he had previously raised the same concerns or that it was reasonable to make any such disclosure to parents.