Mr M McSherry v Stopfire Limited — 2020

The Tribunal accepted that, from November 2018 onwards, the claimant raised concerns about night-shift working practices, including so-called wet jobs, the use of blow heaters, loading procedures and safety risks at height. It found that those health and safety complaints contained sufficient factual content to amount to protected disclosures under section 43B(1)(d) ERA 1996. It did not accept that the claimant’s complaint about pension deductions was a protected disclosure, and it was not satisfied that the evidence established protected disclosures about electrical work or protective clothing.

The Tribunal found that the principal reason for dismissal was conduct, specifically the claimant’s attitude to management and the events of 12 June 2019 involving Mark Fleming, rather than the making of protected disclosures or the claimant’s May 2019 accident. It accepted that Stephen Muir believed the claimant had become unmanageable and had shown insubordination, but held that the respondent had not carried out as much investigation as was reasonable before deciding to dismiss. The claimant had not been given the information from Breen Tansey and Mark Fleming in advance of the disciplinary hearing, and the Tribunal found that summary dismissal was not within the band of reasonable responses in the circumstances.

The Tribunal noted that the claimant had been told at the 26 April 2019 meeting that the parties would draw a line under matters and move forward with a clean slate, but no formal warning had been issued. It rejected the respondent’s case for a Polkey deduction and also rejected any reduction for failure to appeal under the ACAS Code, finding it was not unreasonable for the claimant not to appeal in the circumstances. The claimant was awarded a basic award of £4,987.50, calculated on 9.5 weeks at £525, and a compensatory award of £412.50 after a 25% reduction for contributory conduct. The Tribunal accepted a loss of one week’s pay at £550, but did not accept that later loss after alternative employment was caused by the dismissal.