Mr R Donnan v London Underground Ltd: 2220735/2024 and 6009744/2024
EMPLOYMENT TRIBUNALS
Case No 2220735/2024, 6009744/2024
Between
Mr R DonnanClaimantLondon Underground LtdRespondent
Before
Employment Judge FordeMiss L Whittington (instructed by Barrister) for respondentDate 6 October 2025
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed. 2.[3]The complaint of automatic and further dismissal arising from him having reportedly raised protected disclosures is unfounded and dismissed.[4]The complaint of unfair dismissal is unfounded and dismissed.
[2]This case had been listed to be heard over nine days including half a day for tribunal reading, approximately 6 ½ days of evidence and the remainder of the time set aside for the tribunal to consider submissions, its findings and thereafter judgment.[3]Upon receiving the bundle and statements, it became immediately apparent to the judge that the hearing estimate was perhaps optimistic in light of the fact that the respondent called seven witnesses and the claimant for witnesses including himself. The claimant’s witness statement addressing issues of liability runs to 36 pages, the main document bundle before the tribunal contains just under 2 thousand pages with further bundles prepared in respect of which claimant occupational health records (approximately 350 pages).[4]The start of the hearing addressed the claimant’s application for strike out of the respondent’s response on the basis of what was described as unilateral non-compliance with tribunal case management order specifically the direction in respect of the exchange of witness statements. The application was made under rule 38(1)(b), (c) and (e) of the tribunal’s 2024 rules. Specifically, the strike out was pursued on the basis that the manner in which the proceedings have been conducted by the respondent were either scandalous, unreasonable or vexatious and due to the respondent’s non-compliance with case management orders it was no longer possible to have a fair hearing.[5]It was the claimant’s position that when the tribunal applied its mind the facts of the alleged non-compliance by the respondent against the test set out in the EAT case of Bolch v Shipman [2004] IRLR 140 it would be clear that the respondent’s purported non-compliance would amount to grounds to strike out its case. The tribunal was aware of the fact that in considering whether or not striker should take place, that the threshold for strike out is high (see: T v Royal Bank Of Scotland [2023] EAT 119, the conduct must be some abusive, destructive or threatening or otherwise intolerable such that in the words of the EAT, ‘they will be done no injustice by being treated as having thereby forfeited their right to have their claim or defence tried’.[6]In this case, the claimant was primarily complaining of the fact that following a tribunal direction, witness statements were supposed to have been exchanged on 8 July 2025. However the claimant’s representative sought agreement with the respondent to extend exchange to 8 July 2025. The extension was agreed by the respondent on 4 July 2025. At the same time, the respondent sought full disclosure of the claimant occupational health records having noted that some reports had not been previously released. 7. 14 days later on 18 July 2025 the claimant queried the scope of the disclosure sought by the respondent. Four days after that on 22 July 2025, the claimant provided his consent to release his occupational health records to the respondent. The same day, the respondent sought an extension for the exchange of witness statements until it received the full occupational health records. It is the claimant’s position that the parties were not in a position to agree a further extension of 14 days because this was outside of the maximum length of extension that the parties could agree with them in accordance with the case management order following a case management hearing before Employment Judge Galbraith Marten on 23 September 2024. The respondent did not make an application to the tribunal to extend time and this is raised as part of the issue that the claimant raises with the tribunal in his application.[8]The respondent received the claimant’s full occupational health history on 13 August 2025. They were disclosed to the claimant on 14 August 2025. The respondent had proposed a revised date for the exchange of witness statements to take place on 15 August 2025 however that event occurred on 21 August 2025, six working days before the final hearing was due to commence on 2 September 2025.[9]In short, the claimant alleges that the respondent was acting uncollaboratively and unilaterally with regards to the finalisation of the dates for the exchange of witness statements and that the very late exchange of witness statements place the claimant at a prejudice. It was said by Mr Ballantyne on behalf the claimant that the act late disclosure was deliberate and vexatious and that the claimant had concluded that it was treatment deliberately orchestrated by the respondent’s solicitors such that it should be considered to be an additional detriment arising from the disclosures that the claimant made. When asked by the judge as to how the claimant proposed to evidence a causal link between the disclosures made by the claimant and this particular allegation, Mr Ballantyne accepted that there was no evidence to support it but it was open to the tribunal to infer what he was saying.[10]Mrs Whittington on behalf of the respondent provided the tribunal with detailed written submissions including a chronology of the events. That chronology was useful. It explained that a significant cause of the delay was an agreed extension of time for the exchange of witness statements and an unexplained and inexplicable delay on the part of the claimant in providing the authority to the respondent so that it can obtain his occupational health records. These two factors contributed to almost a month’s worth of delay and was not solely attributable to the respondent.[11]In submissions, Mr Ballantyne explained that it was his client’s position that the trial or full merits hearing was now impossible for his client notwithstanding the submission that were the application to go against his client, his client was prepared and ready to proceed with the claimant was not making an application for postponement.[12]The judge determined that the application should be refused on the basis that the factual circumstances clearly indicated that both parties were responsible for the considerable delay in the preparation of witness statements. While the tribunal was asked to take into account by both parties other matters relating to what would appear to have been highly contentious pre-trial litigation, the core issue for the tribunal to consider was whether there was default on the part of the respondent and, consequently whether a fair trial could be had as a consequence of that default and thereafter whether or not strike out was an appropriate sanction. It was the tribunal’s finding that there was no default on the part of the respondent, that a fair trial was plainly achievable in light of the fact that the claimant was prepared and ready to go ahead as ways witnesses, and because in the tribunal’s assessment, the conduct complained of did not equate to the sanction which would have amounted to a windfall to the claimant.[13]The tribunal considered other matters of housekeeping. After timetabling issues were discussed, has agreed that evidence would begin on Thursday, 3 September 2025. It was anticipated that Mr steeds, one of the claimant’s witnesses had to give evidence remotely due to the fact that he was in Turkey at the time his evidence was expected to be received. The claimant supplied for leave to enable his evidence to be received remotely, an application which was opposed by the respondent on the basis that Mr Steeds had received notice that this hearing was occurring on the dates directed by the tribunal at the case management hearing. However, the tribunal determined that it was important to hear what Mr Steeds had to say and consequently, it would be in accordance with the overriding objective and the interests of justice to enable him to do so via a remote link, the facility being available to the tribunal for the duration of the hearing. Mr steeds gave evidence on the morning of Wednesday, 9 September 2025.
Evidence
[14]The tribunal heard evidence from the following who all attended the tribunal and gave sworn evidence:• Robert Donnan Claimant/ Former Multi-skilled Operative in Vents Department;• Michael Steeds Former Skilled Operative in Vents Department;• Matt Smith Former Skilled Operative in Vents Department; currently in Escalator Department;• Leon Stamboliyski Multi Skilled Operative/ Health and Safety Representative;• Alexander Tchoukov Skilled Operative in Vents Department;• Paul Berry Pumps and Vents Asset Manager/ Dismissal manager;• Scott Eldridge Senior Supply Chain Manager (Systems and Infrastructure)/ Dismissal appeal manager;• Gidion Smit COMMS Maintenance Delivery Manager/ Grievance manager;• Russell Fleetwood Senior Power Generation Manager (Systems and Infrastructure)/ Grievance appeal manager;• Michael O’Shea Operational Manager for Vents Department;• Daniel Jarvis Vents Cleaning Charge Hand; and• Gerard Doyle Works Manager for Escalator Maintenance[15]The claimant gave evidence first and did so over three days. The claimant was consistent and resolute with regards to his view or perception that the respondent had disregarded health and safety concerns that he had raised. However, the tribunal considered the claimant to be someone who would reject propositions or ideas that fell outside of his own belief system.[16]Consequently, the tribunal determined that the claimant was at times unreasonable in terms of maintaining his beliefs, when presented with independent evidence that demonstrated that his own views were wrong. It is also noteworthy in the tribunal’s view that whilst he was prone to making a series of substantially challenging allegations to the respondent that he maintained his views, rejected the counter views presented to him and did so by criticism of the relevant reporting process. It is the tribunal’s finding that the criticisms that he raised were in the form of headlines such as accusations that various independent managers failed or missed the point of the investigation entirely.[17]The tribunal considered the claimant was blinkered and perhaps extremely so in this resulted in him not having a reasonably acquired belief in the misdemeanours that he alleged against the respondent. This is evident from the time that he raised his first grievance on 3 March 2020; it is evident that he dug his heels in and failed to listen to reason. The tribunal’s finding this perpetuated his state of health in accordance with the contemporaneous occupational health evidence that referred became a batteries prescribing clinician at that time.[18]Matt Smith provided what evidence he could but the tribunal determined that his evidence was not relevant to the issues that the tribunal had to determine.[19]The tribunal found that Leon Stambolyski’s evidence focused on matters arising from 2019 which were irrelevant to the issues to be determined in the claim. Accordingly, those issues and the evidence presented to the tribunal has not been considered as part of that is tribunal determination of this claim. While the tribunal appreciates that the claimant was trying to demonstrate the respondent’s consistent approach in respect of asbestos and its risks, the 2019 exercise is outside of the issues and therefore not considered to be relevant to the factual matrix of the case.[20]Alexander Tchoukov provided evidence that he did not see all of the incident that occurred between the claimant and Mr O’Shea that occurred across the third and fourth of March 2020. Accordingly, the tribunal determined that he was unable to comment on what the claimant is said to have done during that confrontation which in any event, is of little relevance to the substantive issues that the tribunal has to consider in this case.[21]Michael Steeds’s evidence was of little relevance to the issues to be determined by the tribunal. He gave evidence on the last day of evidence namely Wednesday, 10 September 2025. The tribunal determined that the evidence to that he provided to the tribunal was largely irrelevant.[22]The tribunal found Mr Gidion Smit a straightforward and reliable witness.[23]The tribunal found Mr Russell Fleetwood to be a straightforward, reliable witness with a good grasp of the facts and who was able to explain his perception of the facts capably and clearly.[24]Mr Gerard Doyle had very little to say in relation to the issues and the allegations of misconduct levelled at him by the claimant were withdrawn in any event.[25]The tribunal found Mr Michael O’Shea to be at first a very defensive witness to start with. Nonetheless, the tribunal found that he provided legitimate and plausible answers to the questions put to him and therefore assessed his evidence is reasonable and credible. This finding is underpinned by the consistency between his witness statement, oral evidence and contemporaneous note of the incidents that have occurred between he and the claimant on 3 March 2020. While the tribunal assesses that the purpose behind writing the note would have been in part to protect himself against any allegations raised against it by the claimant, the tribunal finds no reason to disbelieve Mr O’Shea’s perception of the claimant was hostile and aggressive towards him.[26]The tribunal found Mr Dan Jarvis to be an honest and straightforward witness, solid in all respects of the evidence that he provided. He provided evidence as to his referral of the claimant to occupational health and his reasons and rationale behind it. The tribunal finds no reason to not consider his evidence to be accurate and honest in this regard and in all respects.[27]The tribunal found Mr Paul Berry to be an impressive, genuine, honest and credible witness. It was clear from his evidence that Mr Berry took his role very seriously and put safety and his team first when making all of his decisions. He provided clear answers to explain all of his reasoning which the tribunal find to be sound. The tribunal finds no reason to disbelieve or not accepted evidence and know that his evidence is accepted in its entirety.[28]The tribunal expresses its regret that Mr Berry was made the subject of a submission that questioned his integrity in the most extreme way imaginable. It is clear that Mr Berry applied himself professionally and appropriately at all times material to this claim and that the allegation made in submissions, namely that his actions were directed towards encouraging the claimant to commit suicide, was made on the only day that he was not in attendance at the tribunal, and was not put to him in cross examination. The tribunal consider the submission to have been very discreditable one to have made in that it was groundless and plainly totally devoid of any merit whatsoever.[29]Lastly, Mr Scott Eldridge gave evidence the tribunal. Mr Eldridge dealt with the appeal of the claimant’s dismissal by Mr Berry. Mr Eldridge suffers by comparison to Mr Berry and that he appeared at times diffident which was nonetheless accepted, particularly in relation to the issue of the delay that occurred in him producing his response to the claimant’s appeal of his dismissal. While the tribunal notes that it is not lost on the respondent that delay is unacceptable, the tribunal marks its disapproval of the substantial delay that occurred.
Background facts
[30]The claimant was employed by the respondent as a skilled operative and then as a multi skilled operative between January 2013 and 30 May 2024. He worked in the vents department and his duties included routine dust removal on subsurface vent shafts using a VAC, hard brushes and scrapers. He worked in a team with others collectively referred to as a gang. It isn’t in dispute that this is work which is physically challenging and demanding. The work is undertaken at nights, sometimes in cramped environments that may contain hazardous materials.[31]The claimant began raising health and safety issues at work from 2017 onwards. In his claimant’s said that the claimant recalls working at hundreds of sites operated by the respondent where he says there existed dangerous levels of dust which the claimant believed contained asbestos and other carcinogenic material which he believed was generated by dry brushing the cables which were lined with asbestos achieving and tunnel segments which contained asbestos caulking.[32]In March 2020 the claimant asserts that he raised a formal grievance both verbally and in writing regarding the lack of fan isolation training to his line manager, Mr O’Shea. Mr O’Shea denies that the claimant raised issues with him and specifically that the claimant may protected disclosures to him at this time. The verbal grievance had been raised during a conversation that took place between the claimant and his line manager, Mr O’Shea on the evening of 3 March 2020 and in that conversation, is the claimant’s case that he raised his concerns about health and safety issues. Mr O’Shea says that the claimant became verbally and physically abusive to him during the course of this conversation. With except that he was emotional about the topic because he wanted to be taken seriously and counter alleges that it was Mr O’Shea was aggressive.[33]The claimant then submitted further complaints regarding other working practices in the events department such as face fitting procedures matters concerning asbestos. He also submitted a grievance in relation to the allegations of mistreatment that he makes against Mr O’Shea. This was the first occasion where the claimant says that he raised the first of 11 protected disclosures and was the recipient of a detriment.[34]The claimant was on sick leave from 4 March 2020. He raised a grievance on 4 March 2020. It was received by Mr Maurice Howells, building and premises manager and constitutes the second protected disclosure that the claimant relies upon in this claim.[35]Mr Smit distilled the claimant’s grievance into three discrete points namely that there was a concern that there were training issues in the events team, namely a failure to receive training in relation to fan isolation procedures and fire awareness, various health and safety concerns including issues relating to fan isolation practices, asbestos reports and face masks, and are concerned that processes regarding medical form did not comply with GDPR.[36]The claimant describes the meeting in his statement as ‘combative’ pointing out that it was his view that he was told that he was not able to raise health and safety concerns in the grievance whilst at the same time trying to explain that his line manager, in his view, was failing to investigate itself and safety concerns. He describes the process as ‘a fight to be heard ‘.[37]On 22 September 2020, Mr Smit provided the claimant with a copy of the grievance outcome and did not uphold any of the claimant’s concerns. His rationale for doing so is set out in some detail in his witness statement. As part of his investigation, he met with Mr O’Shea who in turn explained why certain things had happened, those things now forming part of the claimant’s allegations of mistreatment against him and detriment. However, Mr Smit had found that the respondent had addressed all of the issues that the claimant had raised a grievance independently from the claimant’s grievance save for in respect of the GDPR which centred around the sensitivity of certain personal data.[38]In his witness statement, Mr Smit accepts that the matter is that the claimant relies upon as disclosures were discussed during the course of his meeting with him but denies his failure to uphold his grievance amounts to a detriment relies on the fact that he felt confident that he is sufficient evidence to be able to draw an informed conclusion on a factual basis in relation to the point that the claimant had raised. He says, ‘I had received an insight into whether the paperwork was in practice being followed by the events team and had seen evidence of safety practices being reviewed and updated as necessary over the years (as demonstrated by the method statement)’. He expressed the view that improvements had been made since the 2019 investigation report, but did not consider that he could uphold a grievance based on historical practices that in his view no longer reflected current practices within the vents team.[39]The claimant appealed the outcome of the grievance. A grievance appeal hearing took place on 4 December 2020 by Mr Hillier. It is common ground between the parties that Mr Hillier did not complete the grievance appeal outcome. It is the respondent’s case that the reason behind non-completion of the appeal outcome was due to the fact that Mr Hillier was absent from work through sickness, returning momentarily and thereafter exiting the respondent for ill-health sickness reasons. The claimant does not accept this explanation and identifies the fact of non-provision of the appeal outcome as a detriment. It is not in dispute that the respondent overlooked the fact that the appeal was pending for a significant period of time before it was picked up by Mr Fleetwood (see below).[40]Some steps were taken to investigate the issues that lay behind the claimant’s absence. Following advice received from occupational health in January 2021, it was concluded by the respondent that the claimant was unable to within the vents team and that there were no alternative duties available to the team that could be allocated to the claimant. Accordingly, the respondent placed the claimant in its between 9 March 2021 and 8 August 2021. During this time the claimant was afforded the opportunity of applying for alternative roles within the respondent and indeed did apply for some but was unsuccessful in securing alternative employment. Following this the claimant attended an overage appointment in July 2021 and upon considering that the claimant had been asymptomatic sometime, it was that he was determined fit to return to his substantive duties.[41]The claimant says that on 5 August 2021, Mr Doyle who was running the vents team at that time informed him that Mr O’Shea did not want him back within the team. Mr Doyle is said to have informed the claimant that he should work in the escalator team for four weeks to allow time for the relationship between him and Mr O’Shea to become resolved. The list of issues for this case describes this factual scenario within issue 6.1.4 on 5 August 2021, Mr Doyle’s decision not to allow the claimant to return to work in the vents department’.[42]However, the claimant confirmed to the tribunal orally that this was not a detriment that he wished to pursue any further and therefore, the tribunal has not done so on the basis that it was formally withdrawn by the claimant.[43]The claimant returned to his substantive role in the vents team on 22 May 2022. By this time, the vents team was part of a larger team called ‘lifts and pumps, overseen by Mr Berry as Mr O’Shea’s line manager. It is Mr Berry’s evidence that when he was given oversight of the vents team he had no knowledge of what happened before that point. By the time the claimant had returned, Mr O’Shea had commenced a period of sickness absence.[44]The claimant contacted Mr Berry on 14 December 2022 expressing his concern that Mr O’Shea was to return to the department. At this time, Mr Berry asserts that he first became aware not only of the fact that the claimant’s grievance had not been upheld but also the claimant felt that he was unable to move for until the issues in his grievance had been dealt with. This prompted Mr Berry to investigate the detail around the grievance. In fact, Mr Berry was keen to resolve what he describes as, ‘any long-standing disagreements’. In evidence, he told the tribunal that he was also keen to update the equipment used by the team and informed the team and on a continuing basis. In evidence, and in his witness statement, he pointed to the fact that he had brought in alternative PPE and replace some of the other equipment such as vacuums because he could see that the equipment was old and to provide as much comfort to the vents team as possible.[45]Mr Berry says that the respondent’s health, safety and environment team had arranged to report on levels of personal and locational dust due to the type of work the vents team were tasked with. However, Mr Berry thought that it would provide more reassurance for the vents gang if the full range of testing available to the team could be undertaken. The reports provided in the bundle before the tribunal. The reports include assessments of airborne dust monitoring, exposure scenario reports, personal dust exposure monitoring assessments and their activities. The assessment reports indicated that PPE was only strictly necessary for vacuuming tasks and that adequate protection had been provided to the team.[46]Having reviewed a copy of the grievance appeal meeting notes from the meeting with Mr Hillier on 4 December 2020, and having made enquiries, Mr Berry informed the claimant that the grievance appeal had been closed in error without outcome. Here apologise the claimant for the delay which he attributed to a change of management and the COVID-19 pandemic. The claimant was absent on a further period of sick leave from 14 February 2023 until 11 February 2024 on account of work-related stress. Mr Berry arrange for the claimant to attend an appointment occupational health on 16 February 2023.[47]On 4 March 2023, the claimant sent an email to Esther Sharples, director of asset performance directorate in which he reiterated his concerns about health and safety issues in the vents department. The claimant relies upon this as his third protected disclosure, where he says ‘we are contacting you directly due to the serious nature of issues that have taken place over the years within the vents department. The issues will have directly put our health at risk along with other contractors and potentially the public’. The respondent argues that this form of words does not meet the legal tests that proscribe the standard to which disclosures qualify as protected disclosures because the complaints are vague, unspecific and fail to provide the detail required to amount to a protected disclosure.[48]Mr Lee Richards replied by confirming that the matter was in the hands of trade union reps and that the issues were being reviewed by local management while at the same time as the claimant’s grievance was ongoing.[49]The grievance appeal was progressed. Mr Buck was initially appointed to rehear the claimant’s appeal but, following concerns raised by the claimant, he was replaced by Mr Fleetwood who gave evidence before the tribunal and who provided a witness statement. An appeal hearing took place with the claimant on 10 November 2023 Mr Fleetwood said the outcome of that appeal to the claimant which was not upheld. The claimant alleges detriment 6.1.9 against Mr Fleetwood namely that on 12 December 2023, he failed to uphold the claimant’s grievance and failed to take the claims protected disclosure seriously or investigate them adequately.[50]It is the claimant’s case that he feels that the decision not to uphold his grievance was because he had raised protected disclosures. He identifies the fact that Mr Fleetwood had sent to him a version of the grievance which identified that he had upheld part of the claimant’s grievance, a version which was later replaced and in which the claimant had none of his grievances upheld. In evidence before the tribunal, Mr Fleetwood explained an appeal outcome that had reflected his state of mind at the time of his drafting namely that he had not yet determined all of the matters that he had to consider. As time progressed, his investigation, he reached a view that did not uphold any of the claimant’s grievances.[51]Within his outcome, Mr Fleetwood concluded that the claimant had not received training in respect of fan isolations for a number of reasons namely because there were sufficient numbers of staff trained to undertake these duties and secondly because the claimant had expressed a desire to leave the team and had been absent on sickness leave and had not worked within the vents team for approximately 18 months. Mr Fleetwood found no basis to uphold the claimant’s complaints in respect of vent fan isolation procedure. In respect of asbestos, he concluded that the relevant Work Instructions required staff to avoid cleaning areas identified as known or suspected asbestos. Lastly, in respect of facemasks, Mr Fleetwood concluded that the claim had been supplied with a face fit tested mask, various steps have been taken to investigate and provide the claimant with suitable PPE, that the claimant had been placed in alternative duties when he had encountered physical difficulties arising from him coming into contact with dust and that the vents team had taken advice from the respondent’s Safety, Health and Environment advisers (‘SHE’ ).[52]The claimant criticises Mr Fleetwood by stating that he felt that the only reason why his grievance was not upheld was because Mr Fleetwood was trying to discourage or silence him as a whistleblower and did that by failing to carry out investigation independently. He also says that his colleague, Mr steeds who gave evidence to the tribunal had his own complaint in this regard upheld. No evidence of this finding all the details relating to the finding was before the tribunal.[53]The claimant raised concerns with the Office of Rail and Road (‘ORR’) on 22 March 2023 by way of a disclosure. He said he did this because he felt that the response he received from Mr Richards (see above) that his concerns ‘were not receiving appropriate oversight investigation’.[54]The disclosure itemised health and safety concerns relating to asbestos, a lack of face fitting testing, a lack of fan isolation training and working in confined spaces. A Bar some recommendations, the outcome of this action was that an investigation was conducted by an inspector, Kam Sandu and his conclusion was not supportive of the claimant’s substantive concerns which mirror those that he had raised in his grievance and grievance appeal. The respondent concedes that the concerns raised to ORR amount to a protected disclosure on the basis that it was made to a prescribed person. However, the respondent says that there is no evidence from the claimant that this document was ever seen by any of the respondents managers the claimant asserts subjected him to a detriment. The claimant felt that the investigation report fell short of where it needed to be and asserts that the investigator had been provided with misleading information.[55]One of the matters that the claimant relies upon and which arises from the ORR investigation is that the claimant says Mr Sando told him that Mr Berry had, ‘condemned and disposed of the vacuum cleaners when he took up post in May 2022’, something that the claimant disputed. The tribunal notes that when Mr Berry repeated this point during the course of his cross-examination, he was not challenged upon it.[56]Around this time the claimant had a meeting on 31 March 2023 with Mr Buck and Mr Berry during which he raised concerns about health and safety issues including incorrect PPE being warm, dry sweeping in operation, scraping of cables resulting disturbance of asbestos, safety information being shown to staff, no exposure or health surveillance monitoring being in place, COSHH the data sheets being out of date and incorrect disposal of hazardous waste.[57]It is the claimant’s case it is the claimant’s case that this meeting serves no real purpose in respect of the progression of any investigation are the steps to address the concerns that he had and had raised with ORR. In his evidence, Mr Berry says that both he and Mr Buck reassured the claimant that they were taking the concerns seriously and taking appropriate action.[58]Mr Buck responded to each of the concerns raised by the claimant in an email 14 April 2023. In his response, Mr Buck addressed incorrect RPE, dry sweeping, scraping of cables, safety information alleged to have not been shared with staff, fan isolation procedures, COSHH datasheets, exposure monitoring, health surveillance monitoring, inadequate tooling, and the alleged disposal of hazardous waste in a normal waste tip.[59]Further detriment is raised in respect of Mr Berry’s decision to refuse to extend the claimant’s sick pay. Mr Berry says that he was informed on 18 September 2023 that the claimant was due to have a further OH review on 11 October 2023 and he communicated this to the claimant on 18 September 2023. At the same time, he explained to the claimant that his entitlement to sick pay would end on 14 November 2023, which was something that he had mentioned in one of their weekly duty of care calls that had taken place the week before. He explained to the claimant that he would arrange a case conference following the OH appointment to discuss his ongoing sickness and consider what options were available to the claimant and to explore any stats that would enable the claimant to return to work. Mr Berry invited the claimant to attend a medical case conference on 19 October 2023.[60]The case conference meeting took place on 10 November 2023 between the claimant and Mr Berry. The claimant says that he suffered a detriment by being subjected to a phased return in circumstances whether he was expected to work under his line manager Mr O’Shea about whom he had raised protected disclosures and who had failed to take his protected disclosure seriously. In particular, the claimant says that one of his detriments was Mr Berry’s refusal to hear is disclosure will discuss his concerns. He relies on Mr Berry’s use of the words ‘I can’t comment’ which he attributed to the fact that he was raising health and safety concerns. Mr Berry disputes this points to the fact that when he used those words he was using them to explain to the claimant that he was able to discuss matters outside of the return to work framework such as private matters concerning other employees with him at that time.[61]The claimant also raised concerns about returning to work with Mr O’Shea and Mr Jarvis. Mr Jarvis had been the claimant’s duty of care call contact for a period of the claimant’s sickness leave. However, he ended the role in disputed circumstances which the parties do not dispute were acrimonious.[62]Alongside the past issues that he had raised, the claimant requested an extension to his sick pay entitlement pending the outcome of his grievance appeal. This was eventually refused by Mr Berry who felt that the circumstances that the claimant was in did not merit Mr Berry exercising his discretion to extend pay or make a recommendation that his pay should be extended. In evidence, Mr Berry supported his position in this regard by pointing to the claimant’s lack of participation on the grievance when invited at earlier stages in the process. This is a detriment pleaded by the claimant and in submission it is asserted on behalf of the respondent that the this decision was not motivated by any protected disclosures and was a decision reached in the absence of exceptional circumstances (see above).[63]The claimant renewed his request in writing on 14 November 2023 and it was refused the same day.[64]On 15 November 2023 the claimant escalated his grievances to Andy Lord, Commissioner of TfL. In addition, he requested a reconsideration of Mr Berry’s decision to not extend sick pay. A response was issued from Mr Lord’s executive assistant that Mr Lord could not intervene on staff grievance matters. Phased return to work[65]The claimant says that between December 2023 and February 2024 he was eager to return to work. His sick pay had stopped and he was struggling financially. He felt capable of returning to work but was prevented from doing so by Mr Berry. He asserts that Mr Berry’s refusal to allow him to return to work was unreasonable.[66]On the other hand, Mr Berry asserts that he was unable to allow him to return to work until the claimant had engaged with occupational health. It is also said that Mr Berry acted unreasonably by demanding that the claimant use of his annual leave that he had accrued whilst off on sickness leave. By way of rebuttal, Mr Berry explained to the tribunal during the course of his cross-examination that the decision to require staff members returning from periods of sick leave to take accrued annual leave was one taken to ensure that work could be booked in for the returning staff member and thereby avoid unnecessary organisational disruption.[67]At the conclusion of the claimant’s grievance appeal, Mr Berry wrote to the claimant in January 2024 to invite him to a meeting to discuss a potential return to work and to discuss an OH report dated 22 January 2024. The meeting took place between the two on 6 February 2024. Mr Berry proposed phased return to work for the claimant in line with the advice contained within the OH report. The claimant expressed concern about the expectation that he work with Mr O’Shea.[68]While there is no dispute between the parties as to the facts of the claimant’s phased return that comprise of amongst other things adjusted job duties and Ezone courses undertaken during the day, it was also the case that it was anticipated that at some point the claimant would have to work under Mr O’Shea, something with which the claimant took issue with.[69]Arising from this meeting, the claimant says the following in his statement at paragraph 76, ‘we discussed returning to work, but I simply couldn’t see how I could at that point until the issues were sorted. I told Mr Berry it was impacting and I had to protect it. Whilst there was some recognition that this had happened and that it wouldn’t happen again, it just seemed no accountability had been taken for how people had acted – such as Mr O’Shea, or no recognition or apology to me for how I had been treated over the years for raising it. Mr Berry also subjected me to a detriment by deciding to proceed with a phased return which again was linked to my concerns and status as a whistleblower. Mr Berry was forcing me to go back to work with Mr O’Shea, despite my disclosures being raised to and about him, including Mr O’Shea’s failure to take my disclosures seriously’.[70]At paragraph 77, the claimant goes on, ‘I then made my eighth disclosure to Mr Berry in person. I specifically disclose the illegal dumping of hazardous waste in general skips…… ‘. The claimant goes on to assert a further detriment arising from this 6 February 2024 meeting namely what he describes as: ‘Mr Berry’s decision to return the claimant to work on a disadvantageous phased return, and Mr Berry’s alleged failure to consider alternatives.[71]Prior to his return to work, Mr Berry became aware of an issue between the claimant and Mr Jarvis on 22 January 2024. Essentially, Mr Berry understood that this disagreement had arisen as a consequence of the claimant’s perception that Mr Jarvis had ‘made things difficult for him’ due to Mr Jarvis having maintained a working relationship with Mr O’Shea. This upset Mr Jarvis because this accusation had been levelled at him during by the claimant during the course of a duty of care call. Mr Jarvis expressed the view that he could no longer work with the claimant in future.[72]It is also the case of the claimant raised substantially the same concerns that he had raised previously to ORR via the respondent’s whistleblowing hotline, Safeline on 8 January 2024 with the outcome provided on 9 February 2024. That investigation concluded that current practices within the events team were acceptable.[73]Notwithstanding the disagreement between the two, shortly after he commenced his phased return on 26th every 2024, the claimant approached Mr Jarvis before the start of his night shift to advising that he had a flareup of his skin condition, had sores on his skin and swelling in his right eye despite wearing PPE. The claimant alleges further detriment arising from this interaction namely Mr Jarvis’s instruction to him to use a computer or in the claimant’s words ‘just go on the computer’ and subsequently, Mr O’Shea’s alleged decision to restrict communication and failure to instruct the claimant to carry out work. Both Mr Jarvis and Mr O’Shea reject the allegations that the instruction to use the computer was an adjustment made in line with the claimant’s complaint in respect of his health and the no need for the claimant to undertake.[74]The claimant alleges a further detriment namely that in 27 February 2024 Mr Jarvis made the decision to instruct the claimant to continue cleaning duties in circumstances where the claimant was suffering from eye and skin irritation as a result of working within a dusty environment whilst awaiting an assessment and recommendation from occupational health.[75]On 29 February 2024 Mr Berry informed the vents team of some adjustments made to the claimant’s phased return by way of restricted duties and further RPE in an attempt to reduce skin flareups. A further OH appointment was arranged and eventually scheduled for 27 March 2024.[76]On 12 March 2024 the claimant communicated to Mr O’Shea and Mr Berry his concern that safety concerns that he had raised were not being taken seriously. It is Mr Berry’s position that he took steps to reassure the claimant pointed out that the issues raised by the claimant had been the subject of a grievance, grievance appeal, and investigation safe line and none had been upheld.[77]Mr Berry and the claimant met on 14 March 2024 to review the claimant health arising from his phased return. During this meeting the claimant indicated that he was struggling with his skin issues workrelated stress and it was agreed that the claimant’s phased return would be extended to 31 March 2024 and a further OH referral would be made. The claimant continued to raise concerns with regards to health and safety. At the same time, it is Mr Berry’s case that during this time the claimant was reiterating his concern with regards to the establishment and maintenance of a good working relationship with Mr O’Shea, his line manager.[78]Mr Berry’s says that it was at this point that it was clear to him that the claimant was becoming increasingly difficult to manage with regards to his concerns and principally his reluctance to accept the results of multiple factual investigations.[79]The claimant commenced another period of sickness absence on 24 March 2024. Throughout this time, Mr Berry manage the claimant’s absence.[80]There was a further occupational health meeting on 27 March 2024. The report arising from that appointment stated that the claimant was not fit for work in any capacity due to ongoing information and irritation and skin issues and work-related stress. Mr Berry considered the report noted that the claimant felt that his conditions were caused by long-term exposure with unsuitable PPE and feeling hopeless to the point of being suicidal and that is concerns were not being acknowledged by his managers. The report stated that the claimant was not fit for work in any capacity and gave no indication to Mr Berry as to when he would be fit to return to work.[81]By this point, Mr Berry had attended to a number of adjustments to support the claimant’s return to his substantive role through an extension of his phased return to work and restriction of duties to avoid aggravating his skin condition, a trial of three different types of gloves which in Mr Berry’s view surpassed the standard issued PPE, disposal of all overalls, and full-face ventilation masks. In light of this, Mr Berry concluded that the claimant had been provided with PPE that met with current health and safety standards and approved for kite for the kind of work that the claimant was undertaking in the work environment he works within. In other words, in terms of the supply of PPE to the claimant, everything that could be done had been done in Mr Berry’s view. However, it was the claimant’s view is expressed to occupational health that nothing was working for him.[82]In evidence before the tribunal, and in his witness statement, Mr Berry highlights that he was particularly concerned to note that the occupational health report noted that the claimant had been struggling with his mental health and was feeling suicidal.[83]A further case conference was arranged on 8 May 2024. During this conference, the claimant explained that his ophthalmologist had explained to him that his eye and skin issues with would not improve the current work environment. It was the claimant’s contention that had the correct PPE been provided to him in the past his condition would not have occurred. The two discussed the provision of an ill-health pension and other matters as well. This included the possibility of redeployment which the claimant said he was uncertain of because he was not sure how you would cope in redeployment. Mr Berry considered that he would need some time to think about the options available.[84]It is Mr Berry’s evidence and therefore the respondent’s case that following a case conference outcome meeting on 30 May 2024, he made the decision to terminate the claimant’s employment on medical grounds. As he explained to the tribunal, and had set out in writing to the claimant, he reached the decision based on the fact that the claimant had taken 391 days of sick leave from 2023 onwards, that the phased return that had been implemented and extended had not been successful, that the occupational health advice had been that the claimant was not fit to work in any capacity, and that the adjustments and PPE that were put in place for the claimant which were all satisfactory in terms of current health and safety standards were not assisting the claimant. In addition, it was the claimant’s ophthalmologist’s opinion that the only long-term solution available to the claimant was by changing his working environment.[85]In addition, it was Mr Berry’s view that a significant contributor to the claimant’s health was his inability to accept that the respondent had acted appropriately with regards to the investigation and consideration of the claimant’s health and safety concerns. Mr Berry says that he considered and rejected the possibility of redeployment pointing out that the claimant had previously had a period of redeployment from 9 March 2021 for 13 weeks. However, he considered that the claimant’s mental health issues, which arose in his even the claimant’s perceptions which of themselves were formed of a fundamental distrust of the respondent and its health and safety systems meant that the claimant was not fit to return to work which would allow him to return to either a substantive role or redeployment. It is Mr Berry’s case that he had in his mind the OH report which advised that the claimant was not fit for work in any capacity and therefore redeployment was not an option.[86]Accordingly, it is Mr Berry’s evidence that his decision to dismiss was one based on the claimant’s health conditions and inability to work as opposed to any of the protected disclosures alleged against the respondent. In other words, it is the claimant’s capability to work which was under scrutiny nothing else. The claimant takes a different view. His view is that his dismissal arose as a consequence of the disclosures that he raised. In other words, he asserts that he has been automatically unfairly dismissed as the predominant reason for his dismissal is because he raised the protected disclosures. In the alternative, the claimant asserts that the his dismissal was unfair because the respondent has not satisfied the legal test in justifying the real reason for the claimant’s dismissal.[87]The claimant submitted his appeal to Mr Eldridge on 12 June 2024. There is no dispute between the parties that the claimant received the outcome of his appeal on 25 July 2025. Mr Eldridge upheld Mr Berry’s decision in all respects. In cross-examination, Mr Eldridge’s evidence focused to a large extent on the reasons why delay occurred. Issues and law 88. the respondent has raised the issue of the relevant time limit for the claimants of submitted his claim to the tribunal. As can be seen above, sections 48(3) and section 48(4) ERA 1996 requires that claims in respect of whistleblowing must be presented or, where that act or failure is part of a series of similar acts or failures, the last of them, or within such further time as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.’[89]The respondent submits that the first nine of the claimant’s detriments that he relies upon, the first being 3 March 2020 the last being 12 December 2023 (Mr Fleetwood’s alleged failure to uphold the claimant’s grievance) are out of time. The respondent relies upon the Court of Appeal’s decision in the case of Arthur v London Eastern Railway Ltd (T/A1 Stansted express) [2006] EWCA Civ. Mrs Whittington cites the relevant passages from the leading judgement at paragraphs 31 and 35 and they are set out above.[90]The respondent also relies on the EAT’s decision in Royal Mail Group Ltd v Jhuti (No.2) EAT 0020/016 and specifically the judgment of Simlar J (as she was then) at paragraphs 43 and 45 namely that, ‘at least the last of the acts or failures to act in the series must be both in time and proven to be actionable if it is capable of enlarging time under s.48(3)(a) ERA…’ and ‘that does not mean that a claimant must succeed in establishing as actionable each and every act relied on as part of a series’.[91]As set out above, the respondent does draw the tribunal’s attention to the jurisdiction that it has to extend time which requires that the claimant must provide an explanation as to why it was not reasonably practicable to present the claim within three months of the detriment and demonstrate the tribunal that the claimant is presented within a further reasonable period of time. The case of Palmer and another v Southend-on-Sea Borough Council 1984 ICR 372, CA established that an impending internal appeal does not of itself justify a finding that it was not reasonably practicable to present the complaint within the primary time limit.[92]The respondents submits that there is no series of acts of sufficient causal connection between the alleged detriments to satisfy section 48 (three) (A) in line with the case law above. Respondent points out that the claimant relies on a series of acts committed by different managers namely Mr O’Shea, Mr Smits, Mr Hillier Mr Doyle and Mr Berry. The point is made that not only are different managers involved but there are substantial periods of time and that there was a significant period of time namely between January 2021 and August 2021 and subsequently November 2023 lasting over two years and three months where no detriment was sustained (this is because in part allegation 6.1.4 concerning Mr Doyle was conceded by the claimant and that concession was accepted by the tribunal).[93]The tribunal agrees with the respondent that no clear reason has been provided by the claimant as to how all of the alleged detriments that he relies on here (6.1.1 – 6.1.9) are connected to the asserted protected disclosures other than by asserting that he blew the whistle at various times. No allegation of conspiracy or collusion among the respondent’s witnesses was made. Accordingly, it is the tribunal’s finding that the claimant has failed to establish in any way a link between the managers concerned as detailed above. Moreover, the substantial temporal distance between allegations 6.1.3 and 6.1.4 of three years substantially exemplifies the point that there is no provable connection between the detriments alleged.[94]As will be seen in due course, it is also the tribunal’s finding that the allegations of detriment alleged by the claimant all fail and therefore fall foul of the test set out at paragraphs 43 and 45 in Jhuti (see above).[95]Turning to the issue of reasonable practicability, the claimant says in his witness statement that he had been subject to a series of detriments and then his dismissal which he considers to form the same string of events due to him being a whistleblower. He says that due to the fact that he has no legal background and at the time that he sustained the first alleged detriment in 2020, he considered that utilising the relevant internal mechanisms would have resolved the issues that he was raising. He says that he had no idea about the complaints whistleblowing. Sick leave then intervened. All of this meant that it was not possible for him to have presented its claim.[96]As the respondent has submitted, the utilisation of an internal dispute resolution mechanism as an explanation for delay in presentation of a claim to the tribunal is not one that is likely to be successful. Similarly, ignorance of time limits is not a justifiable reason for a delay in presenting a case to the tribunal. It is the tribunal’s view that the claimant has failed to provide for the failure to present his claims to the tribunal within the statutory time limit and further, it is absolutely clear that some of the allegations are so out of time then it would be contrary to the intention of Parliament to allow the allegations to proceed. Consequently, the tribunal determines and finds that detriments 6.1.1 – 6.1.9 are out of time. 97. the law is as agreed between the parties largely agreed between the parties, the issues is as set out in the case management order and can be seen from pages 140 to 148 of the bundle.
Law
[98]The tribunal adopts the legal submissions of the respondent within this judgment and relevant sections are reproduced below. Jurisdiction[99]The relevant time limit for any claim for detriment due on the ground that the worker has made a protected disclosure pursuant to section 47B is contained within section 48(3) and 48(4) ERA which provide: “(3) An employment tribunal shall not consider a complaint under this section unless it is presented-(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b )a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.”[100]The meaning of series of similar acts within section 48(3)(a) was considered by the Court of Appeal in Arthur v London Eastern Railway Ltd (t/a One Stansted Express) [2006] EWCA Civ 1358, where Mummery LJ stated at paragraphs 31 and 35: 31. The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the 3 month period and some outside it. The acts occurring in the 3 month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within section 48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them. Section 48(3) is designed to cover such a case. There must be some relevant connection between the acts in the 3-month period and those outside it. The necessary connections were correctly identified by HHJ Reid as(a) being part of a “series” and(b) being acts which are “similar” to one another. 35. In order to determine whether the acts are part of a series some evidence is needed to determine what link, if any, there is between the acts in the 3 month period and the acts outside the 3 month period. We know that they are alleged to have been committed against Mr Arthur. That by itself would hardly make them part of a series or similar. It is necessary to look at circumstances surrounding the acts. Were they all committed by fellow employees? If connection, if any, was there between the alleged perpetrators? Were their actions organised concerted in some way? It would also be relevant to inquire why they did what is alleged find “motive” a helpful departure from the legislative language according to which the determining factor is whether the act was done “on the ground” that the employee had protected disclosure. Depending on the facts I would not rule out the possibility of a series apparently disparate acts being shown to be part of a series or to be similar to one another relevant way by reason of them all being on the ground of a protected disclosure.”[102]The EAT in Royal Mail Group Ltd v Jhuti (No.2) EAT 0020/16 confirmed that although not all acts in a series need to be established, there must a wellfounded detriment that forms part of the series that is within jurisdiction to extend time for any earlier proven detriments. Simler J at paragraph 43 and 45: “43. … In our judgment, at least the last of the acts or failures to act in the series must be both in time and proven to be actionable if it is to be capable of enlarging time under s.48(3)(a) ERA. Acts relied on but on which a claimant does not succeed, whether because the facts are not made out or the ground for the treatment is not a protected disclosure, cannot be relevant for these purposes. 45. That does not mean that a claimant must succeed in establishing as actionable each and every act relied on as part of a series.”[103]To the extent that the Claimant is arguing that it was not reasonably practicable to present his claim within the primary time limit due to waiting for his grievance to be resolved, the Tribunal will be assisted by Palmer and anor v Southend-on-Sea Borough Council 1984 ICR 372, CA, which established that an impending internal appeal does not in itself justify a finding that it was not reasonable practicable to present the complaint within the primary time limit. Whistleblowing detriment[104]The test for a whether a disclosure is a qualifying protected disclosure is found within section 43B of the Employment Rights Act 1996: (1) “In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [F2 is made in the public interest and ] tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”[105]The elements of a qualifying disclosure have been distilled by the EAT in Willians v Michelle Brown AM [2019] )UKEAT/0044/19) (paragraph 9]: “First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paras (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.”[106]In Kilraine v London Borough of Wandsworth [2018] IRLR 846, the Court of Appeal focused on the context in which the statement was made and explained at paragraph 35 and 41: “35. In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in sub-s (1). 41. It is true that whether a particular disclosure satisfies the test in section 43B(1) should be assessed in the light of the particular context in which it is made. If, to adapt the example given in para. [24] in the Cavendish Munro case, the worker brings his manager down to a particular ward in a hospital, gestures to sharps left lying around and says "You are not complying with Health and Safety requirements", the statement would derive force from the context in which it was made and taken in combination with that context would constitute a qualifying disclosure. The oral statement then would plainly be made with reference to the factual matters being indicated by the worker at the time that it was made. If such a disclosure was to be relied upon for the purposes of a whistleblowing claim under the protected disclosures regime in Part IVA of the ERA, the meaning of the statement to be derived from its context should be explained in the claim form and in the evidence of the claimant so that it is clear on what basis the worker alleges that he has a claim under that regime. The employer would then have a fair opportunity to dispute the context relied upon, or whether the oral statement could really be said to incorporate by reference any part of the factual background in this manner.”[107]The key question for the tribunal to resolve is whether the statement carries information with sufficient factual context to satisfy the threshold set by section 43; Simpson v Cantor Fitzgerald Europe [2021] IRLR 238.[108]The Claimant must believe that he is making the disclosure in the public interest (a subjective test) and that belief has to be reasonably held (the objective test). Guidance on whether the disclosure was made in the public interest was set out in Chesterton Global Ltd v Nurmohamed [2017] IRLR 837.[109]There must be a causal link between the disclosure and detriment to satisfy section 47B. The EAT in London Borough of Harrow v Knight 2003 IRLR 140 restated that the statutory test required more than some connection on the basis it was “related to” the disclosure and need for the disclosure to be part of the motivation for the detriment relied upon. Automatic and ordinary Unfair Dismissal[110]Section 103A ERA provides that: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”[111]Under s.94 of the ERA an employee has the right not to be unfairly dismissed. Whether or not a dismissal is unfair is governed by s.98: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee,(c) is that the employee was redundant, or(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment… (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[112]Pursuant to section 103A, the reason or the principal for the dismissal must be the protected disclosure. This must be the reason that operated on the decision maker’s mind at the time of the dismissal; Abernethy v Mott, Hay and Anderson 1974 ICR 323, CA.[113]The general test the Tribunal is to apply in assessing reasonableness is the band of “band of reasonable responses” test Foley v Post Office [2000] ICR 1283, p. 1292. There is a band of reasonableness within which one employer might reasonably take one view and another might reasonably take a different view British Leyland (UK) Ltd v Swift [1981] IRLR 91, para 11.[114]In respect of procedural fairness, the Tribunal must assess whether any procedural defects, taken either on their own or accumulatively, will mean that the decision was unfair. An employer will not always follow a perfect procedure and it will often be possible to identify flaws in the process. Langstaff J stated in Sharkey v Lloyds Bank Plc UKEATS/0005/15/SM at paragraph 25: “The question here, as it seems to me, is whether on a fair reading of the Tribunal decision the Tribunal was making the decision it did to the effect that the dismissal here was not unfair because no matter what the errors in process the dismissal would have been fair anyway or whether it was assessing what actually happened and asking whether in all those circumstances, focusing upon the employer's reasons, the dismissal was on balance fair notwithstanding the flaws. It will almost inevitably be the case that in any alleged unfair dismissal a Claimant will be able to identify a flaw, small or large, in the employer's process. It will be and is for the Tribunal to evaluate whether that is so significant as to amount to unfairness, any prospect of there having been a dismissal in any event being a matter for compensation and not going to the fairness of the dismissal itself.” Findings and decision Protected disclosures[115]The tribunal considers that this is an issue that is unproven on the balance of probabilities. Essentially, there are two witnesses namely the claimant and Mr O’Shea who are able to provide evidence on this issue. The tribunal finds in the balance of probabilities that Mr O’Shea’s evidence is to be preferred that the claimant. This is because of the email that Mr O’Shea sent at 3:37 AM on 3 March 2020 and is at page 422 of the bundle. That email sets out Mr O’Shea’s recollection of what was discussed. Furthermore, and in cross examination, Mr O’Shea explained that the issue of alleging gross misconduct arose because the claimant had said that he had done something which he was not permitted to do and therefore it was an appropriate warning to make. Thereafter, Mr O’Shea does not recall any of the purported disclosures having been made at (and not on 3 March 2020). Accordingly, this allegation fails to be proven on the balance of[116]The tribunal finds that this is a personal grievance being raised against Mr O’Shea on 4 March 2020 which has evolved by way of embellishment in the form of raising issues such as asbestos reports and fitting full-face masks. The tribunal notes that there is evidence within the bundle at page 333 of a face fit report for the claimant dated and signed 2 May 2019 and as such, it can be seen that the claimant had an appropriately fitting facemask as early as 2019. It follows that any disclosures that the claimant asserts to have made here are entirely personal and not in the public interest as alleged. Accordingly, this allegation fails to be proven on the balance of probabilities.[117]This allegation which emanates from a verbal discussion with Mr Smit on 10 July 2020 is conceded by the respondent as something that could amount to qualifying protected disclosures. This concession is provided on the basis that there is insufficient information from the claimant regarding a particular health and safety concern such that it would satisfy both subjective and objective elements of the public interest test. The respondent’s admission that these apply to detriments 6.1.2, 6.1.3 and 6.1.9 is not disputed by the claimant. As can be seen from above, the tribunal has determined that all of these detriments are out of time and are therefore struck out. In any event, the tribunal does not accept the respondent’s submission that there is reasonable belief on both an objective and subjective basis. It is the tribunal’s finding that the claimant had no reasonable belief that what he was saying was in the public interest.[118]The first limb of the claimant’s disclosure is predicated on the basis that he was being asked by Mr O’Shea to isolate fans in circumstances where he had not received the relevant training. The tribunal finds that this allegation to be misconceived on the basis that it accepts Mr O’Shea’s evidence that he warned the claimant against fan isolation in the absence of his training and that there was a long established procedure in place for fan isolation that the claimant should adhere to.[119]The second limb of his allegations relate to facemasks and as we have identified above, the claimant was provided with a full face mask fit in 2019 and therefore this allegation is unproven on the balance of[120]The third limb relates to the lack of asbestos report forms but it is the tribunal’s finding that as the SPC the duty fell to the claimant or to the charge hand (Mr Jarvis or others) to establish whether there was an asbestos survey in place. This can be seen from documentation within the bundle; page 272 contains an SPC declaration signed by the claimant which is annotated in respect of an asbestos survey. It is absolutely clear that jobs on which the claimant was the SPC would have involved him completing the form with details of the existence of an asbestos survey or otherwise.[121]The consequent finding of the tribunal is that the totality of the claimant’s allegation of making a protected disclosure in the public interest fails because it is clear to the tribunal knowledge of all of the issues that he raised and specifically that the disclosures was simply misconceived.[122]This is conceded by the respondent as amounting to a qualifying protected disclosure regarding a particular health and safety concern unlikely to satisfy both the subjective and objective elements of the public interest test. Not only does this allegation of disclosure rely on detriments that the tribunal has determined should be struck out, but also the tribunal finds that the claimant had no reasonable subjective belief as regards the issues raised in respect of face fitting for masks, asbestos surveys, and fire awareness training. Accordingly, this allegation fails to be proven on the balance of probabilities.[123]By this stage, the claimant is repeating the substance and content of the disclosures that have gone before. Accordingly, it follows that the tribunal finds the disclosures to have no possibility of amounting to protected, qualified disclosures because of the lack of reasonable belief on the part of the claimant. As regards this particular disclosure, and while it is accepted by Mr Berry in his evidence that the words relied upon by the claimant may have been used during the course of the conversation that occurred on 27 January 2023, it was his view that the claimant’s focus was on the return to work of Mr O’Shea with whom he had a developing animus. The tribunal finds that the claimant’s focus at this time was Mr O’Shea primarily. While the tribunal accepts that the points raised could potentially amount to a protected disclosure dated it declines to make that finding here because they were not raised in the public interest but instead were pursued by the claimant as a consequence of the breakdown of his relationship with Mr O’Shea. The tribunal finds that the O’Shea relationship was the primary driver of the conversation. Tribunal also notes Mr O’Shea’s perception that the claimant was bullying him.[124]This arises from an email sent to Mrs Sharples on 4 March 2023 where the claimant says: ‘we are contacting you directly due to the serious nature of issues that have taken place over the years within the vents department. These issues have directly put our health at risk along with other contractors and potentially the public.’[125]The respondent submits that the claimant’s disclosure is vague and contains particularised health and safety concerns. Essentially, the respondent submits that this falls foul of the rule in Kilraine (see above) which requires information of sufficient detail to amount to a disclosure. The tribunal agrees with the respondent’s submission in this regard. 126. the claimant raised concerns to the ORR between 22 – 24 March 2023 see above). The document containing those concerns starts at page 1722 of the bundle. The tribunal notes the following words within that document: ‘I raised a grievance due to my personal detriments surrounding these issues and despite the company agreeing with the serious nature of the issues raised, they failed to investigate adequately and did not uphold the grievance. ‘[127]It is conceded by the respondent that this disclosure to a protected disclosure as it was made to a prescribed person. The tribunal agrees but nonetheless finds that the claimant made this disclosure on the basis of his own personal disgruntlement as opposed to a need to safeguard the wider public including his colleagues. Within the document he charts the extensive grievance history in this case and other matters and a corresponding narrative the accuracy of voracity of which is questionable.[128]Leaving aside the tribunal’s critical observations of the disclosure made to ORR the tribunal notes and accepts the respondent’s submission that the claimant has been unable to demonstrate that any of the respondents managers involved in the factual matrix of this case had ever seen the claimant’s document. The tribunal notes that it was not put to either Mr Berry, Mr Fleetwood, Mr Jarvis or Mr O’Shea whether they had seen the document and therefore the tribunal accepts the submission that it is not incumbent upon the tribunal to determine whether or not this was a protected disclosure or whether or not it had any material influence insofar as the respondent’s conduct towards the claimant was concerned. The tribunal agrees and makes this finding.[129]Even if the respondent is wrong and therefore the tribunal wrong to make this finding, it would be the tribunal’s finding that this was not a disclosure made in the public interest because of the findings of the tribunal has made in respect of the claimant’s motivation for making this disclosure. It is the tribunal’s finding that by this stage the claimant had become by this stage fixated on being proven right respect of matters that had already been investigated satisfactorily and reasonably by the respondent.[130]This is a disclosure that arises from a meeting between Mr Berry and the claimant that took place on 10 November 2023. In it, the claimant stated that there was no accountability and provides an example of hazardous waste being disposed in general waste skips.[131]The tribunal finds that the claimant’s focus for mentioning these matters was is under lying concern at the return of Mr O’Shea and his that there should be accountability. It is noteworthy that the claimant was raising this matter in the context of him seeking an extension to his sick pay which was being stopped which he was seeking an extension to. It is the tribunal’s view and finding that the claimant’s focus and attention was about issues that were personal to him and that the matters that he was raising of health and safety should be considered in light of the fact that he had been absent on sickness leave.[132]An example of the personal motivation behind the information the claimant was communicating to Mr Berry at this time can be seen from the meeting notes. At page 1168 the claimant can be seen to be saying the following: ‘every process has failed and now am expected to work with Michael O’Shea and Dan Jarvis and they won’t speak to me? How can I unless there is some accountability or mediation. Dan Jarvis has told me he has no manager.’ This is plainly a discussion about personal interaction issues and not of wider health and safety or matters that concern the public. Detriments[133]Consistent with the tribunal’s findings in relation to whether or not the disclosure was actually made, the tribunal prefers the evidence of Mr O’Shea which is supported by his contemporaneous email at page 41 of the bundle. This allegation is not made out on the balance of[134]The tribunal agrees with the respondent’s submission that the claimant suffered no detriment as Mr Smits conducted a thorough investigation into his personal grievance and properly addressed all three issues raised in his outcome letter dated 22 September 2020. There is no evidence to support the claimant’s contention that the respondent did not take his concerns seriously or investigate them adequately. In fact, as the tribunal’s finding to the contrary, namely that Mr Smit conducted a thorough and reasonably appropriate investigation and reported accordingly.[135]The tribunal finds that while it is obvious that Mr Hillier did not fulfil his duties is also the tribunal’s finding that his failure to do so in respect of the provision of the appeal outcome was due to his own ill-health and subsequent departure from the respondent. It is absolutely clear that the respondent dropped the ball here; but it is also the case that the position was subsequently rectified. It is the tribunal’s finding that the failure to provide the claimant with a grievance outcome was a procedural organisational failing as opposed to a deliberate act arising from the purported protected disclosure. Accordingly, this allegation fails on the balance of probabilities.[136]The claimant withdrew this allegation did so on the basis that it was clear to him that Mr Doyle could not have subjected him to a detriment because he was unaware of the protected disclosures. 6.1.5 and 6.1.6[137]These are allegations against Mr Berry arising from the meeting that took place on 10 November 2023, specifically Mr Berry’s saying ‘I can’t comment’ and his decision to proceed with a phased return with the expectation that the claimant was to work under Mr O’Shea who had previously raised protected disclosures about, including the failure to take is protected disclosure seriously.[138]In evidence, the claimant accepted that this disclosure did not occur on 10 November 2023 and therefore the tribunal finds that it fails to be proven on the basis that it was put. The tribunal accepts Mr Berry’s evidence, substantiated by the meeting minutes contained within the bundle, that he was responding to the claimant, saying ‘I can’t comment ‘when the claimant was seeking answers to questions that fell outside of the remit of the case conference which was the sole purpose of the meeting. For example, the claimant was asking about the progression of a grievance raised by his colleague, Mr Steeds. Plainly, that is a matter which is private to Mr Steeds and not something that Mr Berry disclosed to the claimant even if he was aware of it.[139]In respect of the alleged detriment of a phased return in the circumstances described by the claimant, the tribunal accepts the evidence of Mr Berry that the phased return was agreed in partnership with the claimant therefore it is not open to the claimant to criticise Mr Berry for the implementation of the phased return that occurred. 6.1.7 and 6.1.8[140]The claimant alleges that Mr Berry should have extended his sick pay in November 2023. Mr Berry’s decision to not extend sick pay was explained in his cross-examination based on a number of factors which included his view that the claimant could have involved himself in the grievance appeal in early 2023 but did not do so and the fact that he had worn the claimant in September 2023 that is sick pay would run out in November 2023.[141]Mr Berry’s decision not to extend sick pay on 14 November 2023 was not motivated by any protected disclosures but arose due to his belief that there were no exceptional circumstances justify the extension circumstances where efforts have been made to engage the claimant.[142]The tribunal finds that Mr Berry in particular had made extensive efforts to engage with the claimant throughout the time that he line managed him including in the form of duty of care calls which occurred on a weekly basis during the lengthy periods of absence that the claimant had through sickness.[143]The tribunal also notes that Mr Berry reconsidered his application on 15 November 2023 but determined that it was appropriate to not extend or apply to extend the claimant sick pay (Mr Berry explained that it would be a decision above his level to approve his decision to exercise discretion as to sick pay extension) when he considered the timeline. Specifically, it was Mr Berry’s finding that the claimant was offered appeal meetings in May, July and September 2023 and had he engaged at those times, the grievance would have completed earlier and therefore the claimant’s concerns with regards to the delay in the receipt of the appeal outcome would have fallen away. Consequently, this allegation fails to be proven on the balance of probabilities.[144]It is the tribunal’s finding that the claimant’s criticism that on 12 December 2023 Mr Fleetwood failed to uphold the claimant’s grievance and failed to take the claimant’s protected disclosures seriously or investigate them adequately is unfounded and not proven. The tribunal reaches this finding on the basis that we find that Mr Fleetwood conducted a thorough investigation into the grievance appeal and his conclusion was based upon the investigation he conducted and the evidence presented to him. It is clear from the evidence within the bundle that a substantial amount of information and heard evidence in relation to the whole spectrum of concerns that the claimant raised.[145]The claimant says at paragraph 86 of his witness statement that the decision reached by Mr Fleetwood as a detriment and asserts a lack of independence within the investigation because he spoke only with Mr O’Shea and Mr Buck. He also points to the fact that Mr Steeds had recently had a grievance upheld in respect of facemasks as a reason why Mr Fleetwood’s findings were wrong. However, there is nothing more from the claimant apart from these passing comments by way of criticism of the report. The tribunal considers this to be a substantial evidential weakness that does not support the claimant’s contention of detriment. 6.1.10 and 6.1.11[146]Both allegations arise from the claimant’s meeting with Mr Berry on 6 February 2024. The claimant alleges detriment firstly in the form of a phased return way was expected to work with Mr O’Shea and secondly because the phased return was disadvantageous and Mr Berry’s failure to consider alternatives.[147]The respondent submits that neither was the claimant placed on a disadvantageous phased return and that the claimant did not suggest any alternatives to the phased return during the course of the meeting which had been specifically arranged to discuss the phased return and support to be provided to the claimant to facilitate his return to work. A review of the meeting minutes which span pages 1442 – 1443 of the bundle show that while the claimant had some concerns about his return but he had not set out any alternatives to return to vents under Mr O’Shea.[148]The tribunal accepts that what Mr Berry did was consistent with the respondent’s occupational health recommendations contained in the report dated 22 January 2024. That report identified that the claimant was fit for work with restrictions from safety critical work due to his mental health symptoms. The review had specifically been requested to determine if any workplace adjustments were required before a return to work interview was conducted.[149]The tribunal accepts Mr Berry’s evidence that the claimant was not working full shifts at the outset as ever some time for him to undertake online training during the day. The claimant did not raise any contemporaneous issues around his phased return and its structuring.[150]The claimant sought to draw a comparison with Mr Stamboliyski but it was impossible to draw any conclusions as to any disparity between the two because the evidence presented as to difference came from Mr Stamboliyski orally while being cross-examined and it was scant at best. By contrast, the claimant did not articulate any concerns with regards to the difference between his phased return and anybody else’s and therefore this concern was disregarded from the tribunal’s considerations.[151]Further, the tribunal accepts Mr Berry’s evidence that the claimant’s return to work was agreed in conjunction with Mr Berry as part of the partnership. It is noteworthy that when Mr Berry said this in oral evidence that he was not challenged on this. Tribunal has no hesitation in accepting his evidence in this regard.[152]Accordingly, this allegation fails.[153]This allegation emanates from an internal communications platform post made by Mr O’Shea in late 2024, the subject matter of which related to physical assaults and similar matters relating to the respondent’s employees by members of the public. In his evidence, Mr O’Shea that while the post did not refer to the claimant by name it does refer to his perception of events that took place on 3 March 2020. It is the tribunal’s view that the there is no evidence from the claimant that he has suffered a detriment as a consequence of this post. It can be seen from the meeting notes of 14 March 2024 between the claimant and Mr Berry that the claimant has very little to say about the post with the only reference to them on page 147 as follows: ‘even if puts me in danger follow – this is an absolute joke. Why is there to people running the Department with only five blokes in it? What about the |Yammer posts?’ The claimant says little else beyond this the tribunal finds that that is indicative of a lack of detriment suffered by the claimant arising from Mr O’Shea’s actions which in any event tribunal was found to be unconnected to a protected disclosure.[154]This allegation arises from the claimant’s contention that Mr Jarvis told him, ‘just on the computer’ and thereafter Mr O’Shea’s decision to restrict communication and failure to carry out work. It is the tribunal’s finding that Mr Jarvis was not challenged at all about this during the course of his cross-examination. In his witness statement, he says the following at paragraph 20: “I understand that Mr Donnan alleges that he has been subject to several detriments as a result of raising his concerns. I deny that I subjected Mr Donnan to any form of a detriment, as alleged or at all. I have been referred to paragraphs 6.1.13 and 6.1.14 in particular (page 147). As can be seen from paragraphs 16 and 17 above, I did not instruct Mr Donnan to continue cleaning duties on 27 February 2024 and instead instructed him to complete his outstanding training modules whilst I sought advice from Mr Berry about the tasks that Mr Donnan could complete. Mr Donnan himself emailed Mr Berry on 27 February 2024 confirming that he had been placed on Ezone training as a precaution (page 1462) and the staff allocation sheet also reflects this (page 1467), so I am not sure why Mr Donnan is now disputing this. Once I had seen the photographs provided by Mr Donnan showing the extent of his skin flare up, I submitted a further OH referral which I hoped would have informed us about what role Mr Donnan would be able to complete. In circumstances where Mr Donnan was unable to perform his substantive duties due to his health condition, and I had attempted to source appropriate work for him beyond his outstanding training (including within other teams, such as Pumps / Lifts) whilst awaiting further advice from OH, I am not sure I could have done anything further. I had done my best to ensure that Mr Donnan was provided with appropriate work that did not make his condition worse. Completion of the training modules would have necessitated working on the computer. I recall that I said something along the lines of “go on a computer, I don’t want to make your condition worse.” I do not believe there is anything wrong with this instruction which was made with Mr Donnan’s best interests in mind.”[155]The tribunal accepts what Mr Jarvis has to say.[156]Further, the tribunal accepts Mr Berry’s evidence the communication was restricted with Mr O’Shea to a profession to professional communications at the beginning and end of shift. Tribunal accepts Mr O’Shea’s evidence that he attempted to engage the claimant who was unwilling to respond and say hello to him. Consequently, the tribunal finds that no detriment was suffered by the claimant in any event and that the respondent had done everything it could to accommodate the claimant upon his return to work.[157]The claimant alleges that on 27 April 2024 Mr Jarvis instructed the claimant to continue with his cleaning duties and circumstances where he was suffering from eye and skin irritation related to dusty working conditions whilst awaiting a recommendation from occupational health.[158]In short, the tribunal does not find this allegation made out of the balance of probabilities mainly because it accepts the evidence of Mr Jarvis as opposed to that of the claimant. This allegation is fatally undermined by the claimant’s own email to Mr Berry on the same day in which he says that he has been placed on Ezone as a precaution (p.1462). Mr Jarvis is copied into that email. 6.1.15 and 6.1.16[159]These allegations arise from 30 April 2024 and 17 May 2024 and are alleged against Mr Berry only. Specifically, it is alleged that Mr Berry failed to take the claimant’s protected disclosures seriously, continued with the case conference meeting in circumstances where the claimant had ongoing skin and eye issues and with no resolve to his working relationship with Mr O’Shea or reassurances provided to the claimant.[160]It is Mr Berry’s evidence that at no stage did he fail to take the claimant’s disclosure seriously. If that there is evidence to the contrary. Mr Berry points out in his witness statement that the claimant’s concerns about insufficient PPE in health and safety issues had been investigated both internally via the grievance process and via several reviews at different levels of management and externally by ORR, safe line and the environment agency who had been involved in a review of the hazardous waste disposal team during March 2024. In his view, he is not sure what further steps the respondent could have taken to make the claimant feel safer and better supported.[161]The tribunal accepts Mr Berry’s evidence in this regard as evidence in relation to the attempts to accommodate the claimant’s medical needs. It is the tribunal’s finding that Mr Berry’s conclusion that the claimant was incapable of fulfilling his contractual duties as an employee was sound and reasonably reached. As he explained in cross-examination, it is difficult to know what more could be done for the claimant. The answer is perhaps nothing more. At paragraph 87 of his witness statement, Mr Berry says the following: “… But Mr Donnan remained entrenched in past problems. I did not believe that he would ever accept a finding from these investigations that was not in his favour and that did not provide him a form of punishment to management for past practices. I felt that Mr Donnan was more interested in seeking retribution against management that he had developed a distrust for and genuinely considering your way through these issues. I come along with several other managers, had done our best to resolve the problems and encourage Mr Donnan back to work.”[162]It is the tribunal’s finding that Mr Berry’s observation is consistent with the evidence presented to the tribunal. It is manifestly clear to the tribunal that the claimant would never be content with a finding that and which arose perceptions of reality. It follows that this allegation fails to be proven on the balance of probabilities. Automatic and ordinary unfair dismissal[163]It is the tribunal’s finding that the respondent has clearly established that the reason for the claimant’s dismissal was due to medical capability as outlined by Mr Berry in his detailed outcome letter dated 30 May 2024. In addition, the tribunal had the benefit of Mr Berry’s consistent oral and written evidence as to the reasons for this conclusion and in terms, his reliance on the occupational health report dated 27 March 2024.[164]The tribunal finds that the operative reason Mr Berry’s mind for the decision to dismiss was that he could not see a way forward to make the claimant feel safer reassure him given the lengthy history and distrust that the claimant had for the respondent’s managers. Mr Berry made this clear that this was at the forefront of his mind when he reached the decision to dismiss the claimant and the tribunal accepts Mr Berry’s evidence in full. The tribunal finds that Mr Berry went extensive efforts throughout 2023 to ensure that the claimant’s grievance appeal was dealt with, to resolve the claimant’s issues and to alleviate his concerns. Furthermore, the respondent applied itself extensively to assist and facilitate the claimant’s return to work on a number of occasions and it is the tribunal’s findings that Mr Berry was acting as a considerate and supportive manager, a manager who did not harbour any hostility or animus towards the claimant as asserted. The tribunal notes that the claimant was afforded the support of duty of care calls, referrals to occupational health, discussions around is sickness absence and returns to work, adjustments made to for his phased return, that the respondent was open-minded and in fact actioned a number of changes to the working practices of the claimant’s team, all of which demonstrated and was attempting to facilitate the claimant’s return to work.[165]The tribunal has found that the claimant’s assertion of making protected disclosures is unfounded and finds that the principal reason for the claimant’s dismissal is entirely related to the claimant’s medical capability. In short, Mr Berry genuinely and reasonably believe that the claimant was unable to perform his role based on the medical evidence available and that is based upon that finding and the evidence, it was open to Mr Berry to dismiss the claimant on the grounds of capability as stated.[166]There are a number of reasons for this finding and its justification. First, the occupational health report dated 27 March 2024 recorded that the claimant was unfit to work in any capacity. The tribunal finds that Mr Berry’s evidence that his focus was on the medical background and the apparent deterioration of the claimant’s mental health, coupled with the unsuccessful attempts to resolve the management issues cited by the claimant and which he himself had identified as causing his psychological difficulties which in turn were the cause behind his absence. The tribunal finds that Mr Berry’s belief that they would be no significant improvement in the claimant psychological presentation in any further reasonable period to have been sound and entirely reasonable.[167]Second, there was evidence in the claimant’s ophthalmologist dated 1 May 2024 which clearly noted that the claimant’s eyes were clinically healthy at the time of the appointment and that there was no good long-term solution the tribunal has found that the claimant had for an approved PPE suffered a flareup of his conditions in February 2024 and accordingly, it was reasonable for the respondent to conclude that the claimant was unable to perform his substantive role within his team.[168]Third, the claimant had been unable to complete phase returns to work including allocation two duties outside of the environment identified as causing him the physical symptoms that he was complaining of. It is noted by the tribunal that on appeal, the claimant remain unfit for work and did not suggest to Mr Eldridge that there had been any material change in his mental health conditions.[169]Accordingly, the tribunal finds that there was a sufficient reason to dismiss the claimant given the complex absence history, lack of prognosis and perhaps most importantly, a foreseeable return to work date. It is noteworthy that the claimant at the time of the hearing remains unfit for work.[170]The tribunal finds that dismissal was real within the range of reasonable responses open to Mr Berry at the time decision. The conclusions reached by Mr Eldridge in dismissing the claimant’s appeal apply equally and the tribunal notes that they were not challenged. The tribunal does not agree with the claimant that it was either necessary or reasonable to wait for a scheduled appointment with skin surveillance as identified within the bundle (page 1544 – 1545). As stated by Mr Berry and oral evidence, this evidence had been arranged following a flareup of the claimant skin and eye condition on 26 Berry 2024 as advice was sought on how to manage the condition as part of the phased return and need for restricted duties. In other words, this appointment was not to further investigate how the claimant symptoms could be alleviated within his work environment, but rather to manage the claimant’s condition within the confines of the diagnosis/prognosis provided by his ophthalmologist previously (please see above) . The claimant remained unfit for work in any event.[171]The respondent considered alternatives to dismissal including redeployment and alternative duties within the Vents department. It was clear to the tribunal from the documentary evidence available that the claimant did not think he would cope with redeployment but in any event, the claimant was unfit to work in any capacity was therefore unable to engage with redeployment in any event. The tribunal finds it was reasonable for the respondent to have considered that it had explored all other possible alternatives dismissal before dismissing the claimant.[172]Tribunal finds that the process followed by the respondent was fair and reasonable and notes that the claimant has failed to point to any procedural floor and have made a substantive difference to the respondent’s decision to dismiss the grounds of capability. The point is raised that there was a delay in providing the claimant with the appeal outcome letter but this delay did not make the overall process unfair. Of course, this will cause the claimant distress and upset but it is the tribunal’s finding that this delay was caused by faulty administration as opposed to malevolent intent.[173]Accordingly it follows that the claims of automatic and ordinary unfair dismissal fail. The claimant was fairly dismissed for reasons relating to his medical capability.[174]Accordingly, it follows that the claimant has been unsuccessful in establishing any aspect of his claim and therefore all claims are dismissed as unfounded. Approved by: