Case 8000010/2024 · Employment Tribunal
Member G McKay Tribunal Member A Perriam v Represented by: Mr L Thiel, Partner Ms Margaret McHardy — 2024
- Case reference
- 8000010/2024
- Decision date
- 20 August 2024
- Jurisdiction
- Scotland
- Judge
- Employment Judge A Kemp Tribunal
- Venue
- Aberdeen and remotely
- Panel members
- G McKay, A Perriam
Parties
2 namedClaimant
Member G McKay Tribunal Member A Perriam
Key findings
Tribunal's reasoningMs Margaret McHardy was employed by Ross and Cromarty Citizens Advice Bureau Ltd from 10 January 2023 as a Generalist Team Supervisor. Her probationary period was stated to be six months. On 9 August 2023 she had a dispute with volunteer Ms Christine MacDonald in the Alness office. Mr Chris Spence, the deputy manager, spoke separately to the claimant, Ms MacDonald and Mrs Nicola Campbell over the following days, and decided on or around 13 August 2023 to dismiss the claimant. On 18 August 2023 he held a short meeting and confirmed dismissal by letter. An appeal was heard by Mrs Mary MacDonald on 11 October 2023 and refused by letter dated 3 November 2023.
The tribunal rejected the claimant's case that she had made a protected disclosure to Mr Spence on 9 or 11 August 2023 that Ms MacDonald had grabbed her arm. It found that the contemporaneous messages and notes did not support that account, that the claimant's later written report did not describe such a disclosure to Mr Spence, and that the evidence of Mr Spence, Ms MacDonald and Mrs Campbell was more reliable on the underlying events. The tribunal also held that the claimant's later report sent to Citizens Advice Scotland on 31 August 2023 was not, in context, a qualifying disclosure made in the public interest. The alleged concealment of the arm-grab demonstration at the appeal was not made out.
On causation, the tribunal held that dismissal was not because of any protected disclosure. It found that Mr Spence's genuine reason for dismissing the claimant was his belief about her conduct, including what he understood she had said to volunteers and the dispute with Ms MacDonald, and that his trust in her had been lost. The tribunal described the process as incompetent and lacking transparency, including the use of a probationary review letter after probation had already expired, but held that those defects did not mean the dismissal was on the ground of whistleblowing. It likewise found that the alleged detriments under section 47B were not established on the ground of a protected disclosure, including the complaint about being treated differently, exclusion from the investigation, the contents of Mr Spence's report, the probationary outcome, the response form, and the appeal refusal. The claim was dismissed in full and no remedy was awarded.
Claims and outcomes
2 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Whistleblowing | The claim was brought under sections 47B and 103A ERA 1996 in relation to alleged protected disclosures on 9 August 2023, 11 August 2023, 31 August 2023 and at the appeal. The tribunal held that no protected disclosure was proved: it found that the claimant did not tell Mr Spence that Ms MacDonald had grabbed her arm, that the later written report was not a qualifying disclosure made in the public interest, and that the alleged concealment at the appeal was not made out. | Dismissed | — | — |
| Unfair dismissal | This was the s.103A ERA 1996 automatic unfair dismissal issue. The tribunal held that, even if any protected disclosure had been made, the reason or principal reason for dismissal was Mr Spence's genuine belief about the claimant's conduct and performance and his loss of trust in her, not the making of a protected disclosure. The tribunal noted that the claimant did not have sufficient service for an ordinary unfair dismissal claim under s.94 ERA 1996. | Dismissed | — | — |
Legal tests applied
24 references- s.43A ERA 1996
- s.43B ERA 1996
- s.47B ERA 1996
- s.48(2) ERA 1996
- s.103A ERA 1996
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Official outcome judgment PDF
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