Mr G McManus v Brothers of Charity Services Scotland — 2023

Mr G McManus, the former Chief Operating Officer of Brothers of Charity Services Scotland, applied for interim relief after his dismissal on 30 November 2023. He said he had made protected disclosures on 21 November 2023 to Lynne Hepburn of the Care Inspectorate, including concerns about governance and compliance, alleged falsification of registered manager files, failure to provide Notifications to the Care Inspectorate, undermining of an approved management review and restructure, and inconsistent decision-making. The respondent accepted that the Care Inspectorate was a prescribed person for s.43F ERA purposes, but denied knowledge of the substance of any protected disclosures before dismissal and said the dismissal was linked to pre-existing relationship and conduct issues.

The tribunal applied the interim relief test under ss.128-129 ERA, referring to Taplin v C Shippam Ltd and Ministry of Justice v Sarfraz. It had to decide whether the claimant had a "pretty good chance of success" at a full hearing in establishing that the principal reason for dismissal was protected disclosure. On the material before it, the tribunal considered the more general complaints about governance/compliance, the management review and restructure, and "flip flopping" on decision-making unlikely to amount to qualifying disclosures. It did, however, consider that the alleged falsification of files and failure to provide Notifications were disclosures of information that could amount to qualifying disclosures, and that the claimant likely had a reasonable belief they were made in the public interest and were substantially true.

The tribunal nevertheless concluded that the claimant did not have a pretty good chance of showing causation. It was not satisfied, on the documents and submissions alone, that the respondent knew about the protected disclosures before 30 November 2023 or that they were the reason or principal reason for dismissal. The tribunal noted evidence suggesting relationship difficulties between the claimant and senior management before 21 November 2023, including steps taken to seek legal advice on 20 November 2023, which was consistent with the respondent's explanation. The application for interim relief was therefore refused, and no final determination of the substantive whistleblowing dismissal claim was made.