: Mr WS Gray Mr J Priestley Mr DI Nutt v Represented by: In person Scottish & Southern Energy plc — 2017

The claimant, a long-serving SSE shift trader, raised concerns in August 2012 about night work, health and safety, and the availability of free health assessments. The tribunal held that his 10 August 2012 email to Martin Pibworth was a qualifying disclosure under ss.43A-43C ERA 1996, and that his later verbal comments to David Small about the WFFT/Infinis contract were also a qualifying disclosure. It found that the claimant genuinely believed both sets of concerns involved legal and safety issues.

The tribunal rejected most of the alleged detriments as out of time. Of the detriments it treated as live, it found that the pay freeze and loss of bonus flowed from the appraisal score, not from the disclosures, and that the alleged failure to revisit the appraisal was not caused by the disclosures either. It also discussed the removal from shift work and said that, even if treated as a detriment, it was not because of the protected disclosures. The detriment claim under s.47B ERA 1996 was therefore dismissed.

The employment relationship then moved through appraisal, grievance, occupational health, mediation, and disciplinary stages. The tribunal found that the employer and HR handled those processes inconsistently and often on the basis of incorrect or incomplete information. It noted problems with the appraisal process, the use of an informal warning, the occupational health referral, the handling of mediation, the deletion of the claimant’s email account, and the way the grievance outcome was framed and explained.

When the claimant was dismissed, the respondent relied on some other substantial reason based on an irretrievable breakdown in trust and confidence. The tribunal rejected that reason. It found that the real explanation was that HR had decided to manage the claimant out of the business because it did not know how properly to deal with the situation, and that the dismissal was not within the range of reasonable responses. If the case had been approached as misconduct, the tribunal said the Burchell criteria and the ACAS Code requirements would also not have been satisfied. The ordinary unfair dismissal claim was upheld, while the automatic unfair dismissal claim under s.103A failed because the tribunal did not find that the protected disclosures were the reason or principal reason for dismissal.

The remaining claims also failed. The breach of contract claim was dismissed for lack of evidence, including on the notice-pay point. The unlawful deduction claim was dismissed because, although the tribunal thought the claimant may have been correct that notice should have run from 13 October rather than 9 October 2014, it did not have the final pay information needed to make a finding of unlawful deduction. The holiday pay claim had already been struck out at a preliminary hearing. Remedy was not decided in this judgment and was left to a later hearing.