Mr J Reid v South Lanarkshire Council — 2020

The claimant relied on two emails, dated 4 May 2015 and 21 January 2016, as protected disclosures. The tribunal found both conveyed information and that, in the claimant's reasonable belief, they were made in the public interest and tended to show that health or safety was being or was likely to be endangered. The tribunal did not accept the respondent's submission that the disclosures had to be made under its whistleblowing policy to qualify for protection.

The tribunal found that the claimant's dismissal was for capability, not because of the protected disclosures. It accepted that the dismissing officer was faced with a period of absence of over seven months, an occupational health report stating the claimant was fit for work, the claimant's refusal to return to his substantive post or to the alternatives offered, and no identifiable return-to-work date. It also found that earlier disciplinary action and the move from David Walker Gardens to Dewar House resulted from staff complaints and related procedures, not from the disclosures.

The section 47B detriment claim was brought out of time. The tribunal treated 24 September 2018 as the last date of the alleged ongoing act relating to the claimant working days rather than nights, while the claim was presented on 9 June 2019 and ACAS early conciliation began after the primary limitation period had expired. It was not satisfied that it had not been reasonably practicable to present the claim in time.

For ordinary unfair dismissal, the tribunal found capability was a potentially fair reason under section 98(2)(a) ERA 1996 and that dismissal fell within the range of reasonable responses. It took account of the attendance support meetings, occupational health advice, redeployment discussions, the claimant's refusal of the options offered, and the absence of a foreseeable return date.