Member EA Farrell Tribunal Member AB Grant Mr Gordon Gibb v Glasgow School of Art — 2022

Mr Gibb was employed by Glasgow School of Art from 12 January 2004 until his summary dismissal on 17 January 2020. He relied on disclosures about the management of the Mackintosh Building fires, made to the Scottish Parliament's CTEEA Committee, the press and social media, and alleged 14 detriments under the whistleblowing provisions of the Employment Rights Act 1996.

The tribunal found that disclosures 1, 2, 3, 4 and 6 were qualifying disclosures because they contained information about fire safety, building protection and related legal obligations. Disclosure 5 was not proved, and disclosures 7, 8 and 9 were not qualifying disclosures. None of the disclosures were protected under s.43G ERA 1996: the press and social media disclosures failed the overall reasonableness test because the respondent had a written whistleblowing policy and alternative internal or external routes, and the tribunal found that the parliamentary disclosures pre-dated the point at which the claimant could reasonably believe he would be detrimentally treated for making internal disclosures.

On detriment, the tribunal found that only detriments 5, 6, 8 (in part) and 9 were made out as detriments in law. Detriment 5 was the BBC Radio 4 statement that Mr Gibb was not an expert; detriment 6 was the refusal to take his question at the 11 March 2019 all-staff session; detriment 8 was proved only in part on the evidence of one press release; and detriment 9 was the 26 May 2019 press release criticising his understanding and competence. The other detriments were not proved, or were not treated as detriments in law. Because none of the disclosures were protected disclosures, the detriment complaints failed.

On dismissal, the tribunal found that the sole reason for dismissal was misconduct, not whistleblowing. It accepted that the respondent genuinely believed the claimant had committed misconduct by making public criticisms in the press and on social media, sharing personal information about colleagues, and failing to engage with the investigatory and disciplinary process despite repeated opportunities. Applying s.98(4) ERA 1996 and BHS v Burchell, it held that the investigation, the grounds for belief in misconduct, and the decision to dismiss were all within the range of reasonable responses. The tribunal added that, if a wrongful dismissal claim had been brought, it would have concluded that the conduct amounted to a fundamental breach, but no notice pay claim was before it.