M Robison Members: Mr I MacFarlane Mr W Muir Mr M Daly v Represented by Mr C Edward Counsel BMI Healthcare Limited — 2018

The tribunal first held that Mr Daly was disabled for the purposes of the Equality Act 2010, on the basis of medical evidence and his anxiety. It then heard the remaining claims arising from his grievance, his repeated correspondence about food safety, clinical leadership, theatre dashboards, CMA/JSE concerns and patient privacy, and the respondent's disciplinary process that ended in his summary dismissal on 3 August 2017.

On ordinary unfair dismissal, the tribunal rejected the respondent's stated reliance on misconduct and breakdown of trust and confidence as the genuine reason for dismissal. It found that the real reason was the claimant's manner of communications and behaviour, but that the alleged misconduct was not sufficiently serious to justify dismissal, the requests to redirect correspondence were not made with sufficient clarity, and no adequate warning was given that non-compliance could lead to dismissal. The dismissal was therefore outside the range of reasonable responses under section 98(4) ERA 1996.

On whistleblowing, the tribunal held that all five disclosures relied on were protected disclosures within section 43B ERA 1996. These included disclosures about food safety at Albyn Hospital, gaps in clinical leadership, the theatre dashboard, the CMA/JSE issues and patient privacy. It found that the respondent's failure to deal properly with those concerns, and the decision to suspend and begin disciplinary proceedings, were detriments materially influenced by the disclosures. However, it rejected the automatic unfair dismissal claim under section 103A ERA 1996, finding that dismissal was not because of the protected disclosures themselves.

The Equality Act claims were dismissed. Although the claimant was disabled, the tribunal found that the respondent did not know and could not reasonably have been expected to know that he met the statutory definition of disability at the relevant times, so the section 15 claim and the reasonable-adjustments claim failed. It also rejected the harassment claim, holding that Ms Mulholland-Wells' conduct did not amount to harassment within section 26. At the liability stage, the tribunal found that Mr Daly contributed 75% to his dismissal and would in any event have been dismissed within six months; remedy was left to a further hearing.