D Frew R McPherson Ms. Anita McGeachie v Represented by A Stobart Counsel M Gribbon Solicitor St Mary’s Kenmure — 2021

The tribunal rejected the claimant’s whistleblowing detriment claim under s.47B ERA 1996. It held that the claimant’s disclosures on 8 April, 27 April, 30 April, 11 June and 25 June 2020 did not amount to protected disclosures because, in the tribunal’s view, she did not have the requisite reasonable belief that the information was being disclosed in the public interest. The tribunal found that the statement in the claimant’s email of 8 April 2020 and her subsequent communications were principally concerned with her position and whether she would be exonerated before taking on the Child Protection Officer role. The tribunal did, however, find that the claimant’s appeal submission of 26 July 2020 contained a protected disclosure because it set out with sufficient specificity the alleged failure to investigate the child protection complaint and referred to regulatory obligations, and the tribunal accepted that the claimant held a reasonable belief that the disclosure was in the public interest.

Even so, the whistleblowing claim failed because the tribunal found that none of the alleged detriments were done on the ground of a protected disclosure. It held that the alleged removal of duties on 15 and 16 April 2020 did not happen, that the 27 April 2020 flat-management decision was a practical response to the staffing situation and the claimant’s absence, and that the 26 June 2020 notice returning the claimant to her substantive Service Manager post reflected the fact that Dochas House was not opening. The tribunal also rejected the allegations about the 29 July, 6 August, 13 August and 27 August 2020 meetings, including the recording issue and the office move, finding that those actions were not connected to protected disclosure.

The constructive dismissal claim also failed. Applying the authorities cited in the reasons, including Western Excavating and Kaur, the tribunal found that none of the individual matters relied on, either alone or cumulatively, amounted to a fundamental breach of contract or a breach of the implied term of mutual trust and confidence. It accepted the respondent’s evidence that the steps taken were operational responses to the March 2020 anonymous complaints, the Covid-19 disruption and the opening of Dochas House not proceeding. The tribunal found that the claimant resigned with notice on 9 September 2020 because she concluded the respondent would not exonerate her, but that she did not resign in response to a repudiatory breach, and it held that the solicitor’s without prejudice email of 4 September 2020 was not a final straw.