Member A Mathieson Tribunal Member L Grime Mr P Donnelly v Represented by: Mr S Smith, solicitor Moore House School Limited — 2024

The tribunal found that Mr Donnelly made four protected disclosures under s.43B ERA: a grievance on 2 December 2022, a letter to Dundee City Council on 29 December 2022, points raised at the grievance appeal meeting on 11 January 2023 about the treatment of a female colleague, and a complaint to the Care Inspectorate on 4 April 2023. It rejected the respondent's argument that the matters were not disclosures of information or were not in the public interest, holding that the concerns about the care of the siblings and the respondent's handling of child protection issues plainly engaged the public interest.

On detriments under s.47B ERA, the tribunal found that Mr Greenshields' conduct at the 2 March 2023 policy meeting and his refusal to allow the claimant to visit Gate House that evening were detriments caused by the protected disclosures. It also found that the grievance and appeal process, the post-resignation disciplinary steps, and the reporting and references to external bodies and prospective employers were used to disadvantage the claimant because he had raised concerns, although it did not accept that the November 2022 confidentiality disclosure was causally linked because it pre-dated the disclosures.

The tribunal held that the cumulative treatment amounted to a fundamental breach of the implied term of mutual trust and confidence. It found that the claimant resigned in response to that breach on 3 March 2023 and was therefore constructively dismissed under s.95(1)(c) ERA. It also held that the dismissal was automatically unfair under s.103A ERA because the reason for the respondent's treatment was the claimant's protected disclosures.

On sex discrimination, the tribunal accepted that a child had made equivalent comments about a female colleague at swimming, but that she was not investigated or reported in the same way as the claimant. It found direct discrimination under s.13 EqA 2010, applied the just and equitable discretion to allow the out-of-time complaint, and awarded £1,500 for injury to feelings in the lower Vento band. The victimisation claim failed because the detriments were found to flow from the protected disclosures rather than from the claimant's allegations of discrimination. The unlawful deduction from wages claim also failed because the claimant had no contractual right to a pay rise.

For remedy, the tribunal awarded a basic award of £1,929, loss of wages of £16,324.64, future loss of wages of £13,165.30, loss of statutory rights of £500, £1,500 for sex discrimination injury to feelings, and £30,000 for injury to feelings for the whistleblowing detriments, producing a total award of £63,418.94. It assessed future loss on the basis that the claimant would earn 70% of his previous salary for 18 months.