Members: Mr I Ashraf Mr K McKenna Mrs Lesley Leckenby v Advisory, Conciliation and Arbitration Service — 2019

The claimant began work with ACAS on 26 November 2013 as a Helpline Adviser. In January and February 2017 two of her recorded calls were scored as failed, and after further coaching and related discussions she went off sick on 6 March 2017 with work-related stress. She raised a formal grievance on 25 July 2017 about the failed calls and a conversation in which she believed she had been asked to spy on a returning manager. The grievance and appeal were not upheld.

In late September 2017 a fit note was presented to the respondent that appeared to extend the absence to 23 November 2017, but the GP practice confirmed the note had been issued for four weeks from 25 September to 23 October. Ms Thomson began a fact-finding process, and Ms Riddle later arranged an independent investigation by Mr Way into how the fit note had been handled after it was handed in. The tribunal accepted that the claimant had a number of personal and health difficulties at the time and found that Ms Thomson’s weekly keeping-in-touch calls while she was off sick were lengthy enough to amount to a detriment, but those calls pre-dated the July grievance and were not on the ground of any protected disclosure. The tribunal also found that the call reviews were not shown to be excessive or unfair in the way alleged.

The tribunal held that the July grievance was not a protected disclosure because it was not made in the public interest and the claimant’s belief that it tended to show a breach of legal obligation or danger to health and safety was not reasonable on the facts found. It then found that, even if it had been a protected disclosure, there was no causal link between that disclosure and the disciplinary process or dismissal. On the dismissal itself, the tribunal accepted that the respondent genuinely believed the claimant had altered the fit note, had reasonable grounds for that belief, and had carried out as much investigation as was reasonable. Applying section 98(4) Employment Rights Act 1996 and the Burchell and Iceland Frozen Foods approach, the tribunal held dismissal for conduct was fair and dismissed the unfair dismissal claim. The breach of contract claim also failed for the same reasons.

By consent, the tribunal upheld the unauthorised deduction from wages complaint and ordered payment of £116.90 for accrued flexitime not paid on termination.