E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000109/20245 Held at Aberdeen on 25, 26, & November 2024 Employment Judge N M Hosie Members K Culloch A Atkinson Mr M Kelly v Represented by, Ms L Beedie, Solicitor Sureclean Group Ltd — 2024

Mark Kelly brought claims of ordinary unfair dismissal and automatic unfair dismissal by reason of making protected disclosures. The tribunal found that the respondent had suspended him on 5 October 2023 after employee complaints about his conduct and behaviour following his return from sickness absence, and that Steven Murray’s investigation and Jack Davidson’s disciplinary decision were based on statements from employees and Mr Gibb. Mr Kelly chose not to answer the allegations in substance at the disciplinary and appeal stages, instead maintaining that the matter was really a shareholder dispute.

On the unfair dismissal claim, the tribunal applied the Burchell approach and s.98(4) ERA 1996. It found that the respondent genuinely believed Mr Kelly had committed misconduct, that there were reasonable grounds for that belief, and that a reasonable investigation had been carried out. The tribunal accepted that Mr Murray was an appropriate fact-finder, that Mr Davidson was an impartial disciplinary chair, and that the dismissal letter of 8 November 2023 was a reasonable sanction in light of the evidence available at the time. The tribunal also held that the appeal heard by Simon Cowie was conducted reasonably, although not all papers had been provided before the appeal meeting.

On the whistleblowing claim, the tribunal identified the relevant disclosure as the solicitor’s letter of 9 October 2023 concerning payments to Stratov8 Ltd and alleged breaches of legal obligations. It held that Mr Kelly had a reasonable belief that a criminal offence or legal breach may have occurred, and that the disclosure was in the public interest. However, it found no evidence of a causal connection between that disclosure and the dismissal: Mr Kelly had already been suspended before the letter was sent, the investigation began because of employee complaints, and Mr Davidson was unaware of the letter when he decided to dismiss. The claim was therefore dismissed and no monetary award was made.