EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4106160/2022 (V) Held at Aberdeen on December 2023 Employment Judge J M Hendry Mr Mark McMillan v Represented by, Ms A Harvie, Solicitor Scottish Ambulance Services Board — 2024

After a 999 incident on 8 October 2021, the respondent investigated a reported delay in attendance. The claimant was interviewed on 8 November 2021, the recorded emergency call was played to him, and he went off sick. The tribunal found that he later made an alleged protected disclosure on 24 May 2022 about the playing of the call, including concerns said to relate to data protection, health and safety, and his own mental health. A return-to-work report on 24 May 2022 concluded that he was not fit to return to full duties, the investigation was then completed, a disciplinary hearing was invited for July 2022, and the claimant resigned on 30 May 2022, withdrew that resignation on 2 June 2022, and resigned again on 12 July 2022.

This was an interlocutory judgment on strike out and deposit orders only. Applying rule 37 and rule 39 of the Employment Tribunals Rules of Procedure 2013 and the approach in Kaur v Leeds Teaching Hospitals NHS Trust, the tribunal said it had to be slow to strike out claims where central facts were disputed. It found that the constructive dismissal claim could not be struck out, but that it had little reasonable prospects. The tribunal said the pleadings did not clearly set out the alleged assurances from the line manager after the 30 May resignation or the detailed criticisms of the investigation report, but it could not wholly rule out a cumulative breach of trust and confidence based on the playing of the recorded call, the return-to-work issues, the grievances, and the whistleblowing concerns.

The whistleblowing detriment allegation about not allowing the claimant to return to work was struck out. The tribunal relied on the contemporaneous return-to-work assessment by Mike Adams, which said the claimant was not fit to return to full duties, and held that nothing in the material linked that decision to the protected disclosure. The separate whistleblowing detriment allegation about being summoned to a disciplinary hearing was allowed to proceed only subject to a £1,000 deposit order. The tribunal considered a causal link unlikely because the investigation predated the disclosure and also led to action against the claimant's crewmate, but it could not say that allegation had no reasonable prospects. No substantive compensation award was made in this judgment.