Member Watt Tribunal Member Lithgow Ms N Seal v Scotsman Group plc — 2024

Ms N Seal was employed by Scotsman Group plc as Cinema Manager at the Scotsman Picturehouse from 28 November 2022 to 12 January 2023. She claimed that a series of statements and emails between 29 December 2022 and 12 January 2023 were protected disclosures, and that she suffered detriments and dismissal because of them. The tribunal rejected that case. It found that the alleged disclosures either were not made as claimed, or did not have sufficient factual content and specificity to amount to qualifying disclosures under s.43B ERA 1996. It also found that, where the claimant relied on the 11 January 2023 end-of-night report, only part of it was capable in principle of engaging the whistleblowing provisions, but the claimant did not genuinely believe she had no ability to take breaks and could in fact have taken breaks with hotel cover.

On the detriment complaint, the tribunal found that the key management decisions were taken on 9 January 2023 after MT discovered the claimant had altered the rota he had prepared, and after other performance concerns had arisen during probation. It found that the claimant’s concerns did not influence the removal of her ability to alter the rotas, MT’s decision not to respond to her texts about the rota, or the decision to dismiss her. On the dismissal complaint, the tribunal found the decision had been made on 9 January 2023, but could only be communicated at the meeting on 12 January 2023. It accepted the respondent’s evidence that the reasons given for dismissal were genuine and accurately reflected in the dismissal letter, and that the reasons were concerns about attendance, rota changes, missing deadlines and not actioning earlier instructions, rather than the claimant’s disclosures.

The breach of contract claim concerning pension auto-enrolment was dismissed. The tribunal held that the statement of terms did not guarantee immediate enrolment, referring instead to enrolment following assessment if the government criteria were met, and it accepted the respondent’s submission that any compliance issue with auto-enrolment was for the Pensions Regulator. The wages complaint succeeded: the tribunal found the claimant had worked 224 hours but had only been paid for 222, and ordered payment of the gross sum of £24. The renewed application for strike out, summary judgment and expenses was also refused, with the tribunal finding that the absence of the meeting notes did not prevent a fair hearing and would not have changed the outcome because the relevant decisions had already been made on 9 January 2023.