Case No 4102603/2025Venue GlasgowHearing 29 January 2026
Between
Mr Jack FlemingClaimantSodexo Live UK LimitedRespondent
Before
Employment Judge CampbellMr T Merck (instructed by Counsel) for respondentDate 27 February 2026
JUDGMENT
The claimant was neither subjected to any detriment nor automatically unfairly dismissed by reason of making protected disclosures, and the claim is dismissed.
REASONS
[1]This claim was brought by a former Finance Manager of a business which supplies catering services at public venues. He was dismissed short of two years’ service. He alleges that he was dismissed on the grounds that he made protected disclosures to his line manager. He also alleges detriments by reason of the same disclosures.[2]The hearing took place over three days in person. The parties had agreed a joint bundle. A small number of additional items were added by consent as the hearing progressed. Numbers in square brackets below correspond to page numbers in the bundle.[3]A judge at a previous preliminary hearing had identified the legal issues to be decided.[4]The claimant had provided a schedule of loss and the respondent provided a counter-schedule.[5]Evidence was heard from the claimant, who had been represented up to the hearing but was now representing himself. He had prepared a witness statement and by agreement this was taken as his evidence in chief. There were three witnesses for the respondent – James Purcell (Head of Finance and the claimant’s line manager), Sandy Robson (Executive Director) and Scott Ashby (Divisional Operations Director). They dealt with an investigation, a disciplinary hearing and an appeal respectively.[6]The parties provided closing submissions. The claimant had submitted a skeleton note at the beginning of the hearing which I referred back to, and he had prepared a supplementary note after the evidence was heard. Mr Merck provided oral submissions and referred to three case authorities, copies of which were provided.[7]I confirmed to the parties that I would reserve my judgment and issue it in writing with reasons.
Relevant law
[8]An employee has a right not to suffer a detriment on the ground that they made one of more protected disclosures - section 47(B) of the Act.[9]An employee is separately protected against being dismissed for the sole or principal reason that they made one or more protected disclosures - section 103A of the Act.[10]A protected disclosure must first be a ‘qualifying disclosure’ – section 43B: “43B Disclosures qualifying for protection.(1) In this Part a “qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, 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.(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.[11]A qualifying will be protected if it is made in the way permitted within section 43(C) to (H) of the Act.[12]Further specific principles and case law authorities are referred to under ‘Discussion and decision’ below. Legal issues[13]In summary form, the issues were: 1. Did the claimant make a protected disclosure (as defined in section 43A of the Employment Rights Act 1996) in each or any of the following ways:a. Verbally to Mr Purcell on 27 March 2025;b. In a written electronic message to Mr Purcell on the same day; and/orc. In a meeting with Mr Purcell on 31 March 2025. 2. If so, was the claimant subjected to a detriment on the grounds that he had made one or more protected disclosures, contrary to section 47B of the Act, in any or all of the following ways: a. A disciplinary investigation meeting was conducted without clear allegations or procedural safeguards; b. The notice of his disciplinary hearing was issued the working day before the hearing itself; c. Only one day’s notice was given of his appeal hearing; andd. The appeal was dismissed with minimal reasoning. 3. Was the sole or principal reason for the claimant’s dismissal that he had made one or more protected disclosures, so that he had been automatically unfairly dismissed contrary to section 103A of the Act? Findings of fact The following findings of relevant fact were made, based on the evidence and where necessary on the balance of probabilities.
Findings of fact
[14]The claimant was employed by the respondent between 19 June 2023 and 28 April 2025. On the latter date he was summarily dismissed. He began as a Finance Assistant and was promoted to Finance Manager in early 2025. He reported to James Purcell, Head of Finance. In particular he had responsibility for the respondent’s activities at Musselburgh Racecourse, where it provides hospitality services to the public. Those services essentially involve selling food and drink at various bars and restaurants on site. Customers paid by cash, electronically or by vouchers.[15]The respondent’s operations at the racecourse were managed by a Regional Operations Manager named Craig Bonnar. On 26 February 2025 Mr Bonnar emailed the claimant to say that a cash bag was being delivered by the security company the respondent engaged, and to accept it even though it was being delivered in error. The claimant did so. The amount in the bag was £1,500 in five-pound notes.[16]The following week the claimant was at Mr Bonnar’s home and found the bag empty, together with a delivery note confirming the original contents, in a desk drawer. He challenged Mr Bonnar who said that another manager had had an aunt pass away and was struggling to pay funeral costs, and the money had been lent to him. Mr Bonnar added that this was an isolated incident and the money had already been paid back.[17]On 27 March 2025 the claimant spoke to that manager, who said he had not borrowed any money from Mr Bonnar.[18]As part of completing its yearly financial accounts, the respondent’s internal auditors would commonly ask different parts of the business to provide samples of records from its till management system ‘Kappture’. They would also provide details of potential discrepancies in their accounting figures to branches and ask for comment or clarification. This occurred from early February 2025 onwards and the claimant was involved in email exchanges with internal audit colleagues.[19]On 25 March 2025 the claimant received an email query from an audit colleague and noticed that within it there was a separate request to Mr Bonnar and another manager about a banking bag containing £9,441.90 which had not been accounted for. The claimant asked Mr Bonnar about this the next day and he said that a number of cash deposits made into the bank account of the business totalling around £24,000 had been missed. The day after that, Mr Bonnar said in an email to colleagues, including the claimant, that he had found four deposit bags in an additional safe at the racecourse which was not normally used, and that the money had been banked the previous day. The claimant obtained a copy of the business bank statement for that day [125- 127] the following morning – 27 March 2025 - and saw that Mr Bonnar had made four deposits from an account in his own name totalling £18,705.50. One of those deposits was for the same amount of £9,441.90 that the auditors had reported missing.[20]This made the claimant suspicious of Mr Bonnar’s actions to the extent that he reported these matters to Mr Purcell on the morning of 27 March 2025. He did so by initially trying to telephone him, but Mr Purcell was in an all-day meeting. Mr Purcell notified the claimant when he had a break and the two spoke for 13 minutes, in which the claimant explained his concerns about the bank deposits Mr Bonner had made and the cash bag earlier found at his home. The claimant asserted that this was the first disclosure he made. Mr Purcell asked the claimant to put the details of his concerns in writing, which he did in a WhatsApp message sent at 11.45 that day [151-152]. He relied on this as his second disclosure. It contained everything in the first disclosure, but in more detail.[21]Mr Purcell gave thought to the issues the claimant had raised and arranged meetings with both Mr Bonnar and the claimant on 31 March 2025 to enquire further. Notes of both were provided, taken by a colleague [236-238, 153- 154]. The claimant gave his reasons why he had not reported sight of the cash bag and delivery slip at Mr Bonner’s home until around a month later, saying that he had been very busy in his role, and since the money had been returned he did not think it was a material issue. He accepted this was an oversight and said that it was the first time he had been in such a scenario.[22]Towards the end of the meeting he mentioned that ‘in the past revenue reports from Kappture have been adjusted down, [but that it was] not clear if done to match bankings or for bill backs – led by Craig.’ He was saying that Mr Bonnar would alter the till receipt figures generated by the Kappture system. He did not know at this point whether that was done for a valid business reason, such as to reflect that some customers paid with vouchers rather than cash or an electronic payment, or with a nefarious motive. The claimant relies on what he said in this meeting as his third disclosure.[23]The claimant called Mr Purcell on 1 April 2025 to provide further information, which Mr Purcell noted down [155]. The claimant said that Mr Bonner had originally said he had banked the cash on 26 March 2025 in person, which was contradicted by the bank statement which showed an electronic transfer from his account. He added that Mr Bonner had explained that he had borrowed £25,000 from his father to repay the missing cash and had not in fact found it in bags in the additional safe at the racecourse, as he had said before. He provided a copy of Mr Bonner’s bank statement which showed receipt into the account of £25,000 and the four payments to the respondent’s account on 26 March 2025.[24]Mr Purcell continued his investigations. He asked the claimant to attend a second meeting on 22 April 2025, which again was noted [190-194]. He asked the claimant more questions about Mr Bonner’s revision of reports. The claimant said that he understood that Mr Bonner would alter or ‘guesstimate’ totals for sales of various products so they would match the values in the internal accounting system and therefore satisfy the auditors. He said that he didn’t think this was a ‘bigger issue’ until Mr Bonner’s irregular banking transactions had come to light. He believed that in part it had been to reconcile sales figures to include payments by vouchers, which were accounted for separately from cash and electronic payments. He believed the inaccuracies involved immaterial amounts. He said that Mr Bonner had told him ‘Kappture was a mess’ and had flaws.[25]At the end of the meeting Mr Purcell suspended the claimant, saying that it was precautionary only. A confirmatory letter was sent to the claimant the following day [200-201].[26]Shortly after the meeting Mr Purcell prepared an investigation report [195- 198] in which he recommended that a disciplinary hearing be arranged and the claimant’s dismissal considered. He said he recommended this outcome because he believed there had been a ‘breach of code of conduct from a Finance perspective, not flagging awareness to misappropriation of cash as soon as found out.’ He added ‘Furthermore not flagging awareness of editing of financial documents for submission as part of an audit’. These formed the two allegations taken forward into a formal disciplinary process which followed.[27]By emailed letter on Friday 25 April 2025, the claimant was asked to attend a disciplinary hearing the following Monday. It was chaired by Sandy Robson, Executive Director. The two allegations to answer were as formulated by Mr Purcell, i.e.a. Delay in reporting sight of the cash bag and delivery slip at Mr Bonner’s home; andb. Delay in reporting Mr Bonner’s editing of Kappture reports.[28]The hearing proceeded and was noted [205-208]. The note was accepted to be a sufficiently complete and accurate record of the discussion. The meeting lasted sixteen minutes, including an adjournment of three minutes in which Mr Robson considered the decision he would take, which was to dismiss the claimant for gross misconduct. This was conveyed to the claimant at the end of the meeting and confirmed in a letter dated 29 April 2025 [211-212].[29]In brief, Mr Robson’s conclusions were that although the claimant ‘offered some explanations’ for his conduct, ‘ultimately he was still aware of the fraudulent activities being undertaken and chose not to report them immediately. This contradicted [the] company code of conduct’ [211].[30]The claimant was given the right of appeal against his dismissal which he exercised by sending a letter within the five-day period permitted [213-214]. He was invited to an appeal hearing on 14 May 2025, to be chaired by Scott Ashby, Divisional Operations Director. The invitation letter was emailed on 12 May 2025 [216-217].[31]In his appeal letter the claimant raised that he believed Mr Bonner’s practice of amending Kappture reports was a response to a widespread system flaw which had been commonly known about since before he took up his role, and that he never viewed the practice as malicious. He also emphasised that the cash which had been in the bag found at Mr Bonner’s home had been banked, a fact which he had checked. He believed that his dismissal as the person who had raised these issues was unfair. He also voiced that the amount of notice he had been given of his disciplinary hearing was insufficient.[32]The claimant emailed a statement to Mr Ashby on the morning of the hearing [239-241]. He confirmed at the start of the hearing that he had nothing further to add, and so the discussion was short. It was transcribed and again is accepted as an accurate summary [218]. Mr Ashby did not reach a decision during the hearing, but prepared an ‘outcome and rationale’ document shortly after [219-221]. He decided to uphold the claimant’s dismissal.[33]Mr Ashby conveyed his decision in a letter dated 20 May 2025 [222-224]. This marked the end of the respondent’s internal appeal process. Discussion and decision[34]This is a claim focussed on whether the claimant made protected disclosures and then, if so, whether he suffered detriments or was dismissed in connection with doing so. It was not an ‘ordinary’ complaint of unfair dismissal under section 94 of the Act because the claimant had not acquired the necessary two years of continuous service for that. Consequently, this was not a claim about whether section 98 was satisfied by the respondent first proving that dismissal was for a permitted fair reason, and then going on to show that it had acted reasonably in all of the circumstances in reaching and implementing that decision. Rather, in terms of the claimant’s dismissal, what mattered was whether he had made protected disclosures, and if so whether doing so was the single or main reason for his being dismissed. If it was then his dismissal was automatically unfair and if it was not then his dismissal could not be ruled as unfair, but in either scenario the reasonableness or otherwise of the process followed did not matter.[35]The reasonableness of the respondent’s process and actions generally could however have a bearing on whether it had subjected the claimant to detriments on the grounds that he had made protected disclosures, but only in relation to the detriments the claimant alleged as part of his case, which were captured in the list of issues.[36]This is stated because parts of the respondent’s evidence related to the reasonableness of its process but had little relevance to the issues to be decided in this case.[37]The test of what is a protected disclosure consists of two steps. First, whether it is a ‘qualifying’ disclosure according to the requirements of section 43(B)(1) of the Act. Then, if so, is that qualifying disclosure ‘protected’ by virtue of the party to whom it is made with reference to section 43(C) to (H). ‘Qualifying’ disclosure[38]A qualifying disclosure must be all of the following:a. A disclosure of information,b. Reasonably believed to be made in the public interest, andc. Reasonably believed to show the existence of one or more circumstances within section 43(B)(1)(a) to (f).[39]Unless all of the above apply, there will not be a qualifying disclosure – see for example the judgment of the Employment Appeal Tribunal in Williams v Brown UKEAT/0044/19.[40]The requirement to disclose ‘information’ means that there must be some specific factual detail - Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/0195/09. Whether that has occurred will depend on the individual features of each case, including the context in which a statement is made. Reference to a hypothetical situation, expression of an opinion or the mere suggestion that a law or legal obligation has been breached without further specification may not be enough.[41]There must be a belief that the disclosure of the information in question is in the public interest, and that belief must be objectively reasonable - Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979. What is in the ‘public interest’ is not further defined. It need not apply to all of the public at large, and can involve a smaller group such as all employees, customers or service users of an organisation, or even potentially a sub-group within one of those categories. If the matter raised only relates to the person raising it there will be a greater risk that it is not in the public interest (or that any belief that it is would not be reasonably held when objectively assessed). It is however possible that a disclosure could be made (or reasonably believed to be made) both for personal reasons and in the public interest at the same time. Who is affected, in what way and whether the alleged conduct was intentional could all be factors.[42]There must also be a reasonable belief that at least one of the circumstances in section 43(B)(1) has arisen. The complainer therefore need not know for sure that the relevant situation exists but they must believe that it does. That belief must then be assessed in order to understand whether it is reasonable. It may be reasonable even if later proved ‘wrong’, for example by evidence which the individual did not know about at the time of the disclosure. Of more relevance is what the individual knew, or ought to have known, at the time of the disclosure. Because the requirement is that the information disclosed ‘tends to show’ that a relevant scenario exists, the individual making the disclosure does not have to provide absolute proof of it or have gone through an extensive process of weighing up the evidence for and against before their belief is formed – see for example Durey v South Central Ambulance Service NHS Foundation Trust and Protect (Intervenor) [2024] EAT 173. ‘Protected’ disclosure[43]A qualifying disclosure can be protected by being made in various ways or to certain parties. A disclosure by a worker to their employer will qualify under section 43C(1)(a). Normally, a report by them to a more senior colleague will be to their ‘employer’. A report to someone equally or less senior is less likely to be, although the recipient’s role and specific responsibilities may be relevant, as may be the worker’s intention in choosing the recipient and the contents of any specific policy which the employer has put in place. Whether protected disclosures had been made[44]The claimant relied on three alleged protected disclosures:a. Verbal communication of information to Mr Purcell on 27 March 2025;b. The contents of his WhatsApp message on the same day; andc. Information conveyed verbally in the first investigatory meeting on 31 March 2025.[45]The respondent maintained throughout that none of those occasions amounted to a protected disclosure. Whilst it was conceded that the claimant conveyed some information, and that he did so to a relevant person being his employer each time, it argued that the claimant did not have a belief, and in any case not a reasonable belief, either that a section 43B(1) circumstance existed or that he was making a disclosure in the public interest.[46]The first and second disclosures can essentially be taken together, as the claimant confirmed that anything said as part of the first was included in the second. The second therefore is the more definitive record, being contemporaneously written, likely to be more detailed and ordered, and agreed as genuine. It also immediately superseded the first in timing and purpose.[47]The second disclosure qualified as a protected disclosure. It conveyed ‘information’ with the required degree of specificity of detail in terms of relevant persons, times, places and actions. That information tended to show that at least one circumstance envisaged in section 43B(1) of the Act existed, namely that both in his handling of the cash bag and the making of deposits from his personal account to the business bank account, Mr Bonner was guilty of a criminal offence of fraud or theft (section 43B(1)(a)) or was failing to comply with a legal obligation, namely the obligation towards the respondent to maintain mutual trust and confidence, a fundamental implied term of any contract of employment (section 43B(1)(b)). Furthermore, the claimant believed this to be so by this date (even if he had not formed that belief about Mr Bonner’s conduct around the cash bag any earlier – the subsequent evidence about the money deposits led him to view that retrospectively in a different light).[48]The information which is conveyed only need to tend to show such a situation exists – it need not be absolute proof, and indeed could be shown at a later date to be erroneous. What is relevant is what the individual communicates at the time, and their belief in it.[49]The claimant’s genuine belief was reasonable given the weight of evidence he had by 27 March 2025. There were two clearly irregular acts involving company cash, close to each other in time. The reason given by Mr Bonner for taking the cash bag was disputed by the alleged beneficiary of it, Mr Crozier.[50]The final aspect is whether the claimant genuinely and reasonably believed his disclosure to be in the public interest. Considering the principles of Cavendish Munro above and other relevant authorities, the claimant met this requirement. He genuinely and reasonably believed that he was reporting financial misconduct by a senior manager by exploiting weaknesses in the respondent’s financial controls. Part of his motive was undoubtedly personal, in that he wished to distance himself from any blame, but he was also acting with a purpose of having the wrongdoing investigated and responded to appropriately, and with a view to the respondent preventing further abuse of its financial systems. This would benefit the respondent and by extension all of its employees, reputationally and in terms of their own individual integrity.[51]For completeness, it is found on the balance of probabilities that the first disclosure, made verbally to Mr Purcell, qualified as a protected disclosure in the same way. The claimant conveyed substantially the same information with the same purpose and belief.[52]The third disclosure was said to have been made in the investigatory meeting of 31 March 2025. The claimant repeated the account of the cash bag in sufficient detail that he conveyed information. He also referred to ‘past revenue reports from Kappture hav[ing] been adjusted down’ but it was evident in what he said that he had not yet formed a belief that he was passing on information that tended to show fraud, theft, a breach of a legal obligation or anything else falling within section 43B(1). He still thought there could be a valid business reason for doing so.[53]As such, the third disclosure repeated one aspect of the second disclosure. It did not raise anything new which amounted to a protected disclosure beyond that. Whether the claimant suffered any detriment on the ground that protected disclosures were made[54]The alleged detriments, taken from the list of issues, were:a. An investigation meeting was conducted without clear allegations or procedural safeguards;b. The notice of disciplinary hearing was issued the working day before the hearing itself;c. Only one day’s notice was given of the appeal hearing; andd. The appeal was dismissed with minimal reasoning.[55]It is noted here that the dates attributed to those acts in the list of issues are inaccurate, but that the acts themselves are clearly identifiable. Further, there were two investigatory meetings, and the claimant is taken to be referring to both.[56]The onus of proof falls initially on the claimant to show that he made a protected disclosure and that he suffered detriment. If he is able to do so then the onus shifts to the respondent to show that the detriment did not occur because the disclosure had been made. If it cannot provide the evidence to show that then a finding may be made against it, although the tribunal is entitled to look at all of the evidence before deciding whether the requisite link has been established.[57]In this claim a critical distinction to be made in relation to both the ‘detriment’ and the ‘dismissal’ complaints is between the disclosures he made, and his own conduct around those disclosures. The claimant, understandably, considered those to be parts of the same picture which could not be separated. The respondent, equally clearly, maintained that its treatment of the claimant was because of his misconduct which came to light in the course of making the disclosures, but not that the claimant had made the disclosures themselves.[58]This situation is not uncommon and was considered by the Court of Appeal in England in Bolton School v Evans [2006] EWCA Civ 1653 and in Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941.[59]The essence of those decisions is that it is possible that an employee’s dismissal or other adverse treatment following the making of a protected disclosure may nevertheless not be ‘on the ground that’ or for the reason that the disclosure was made, and so be lawful. The circumstances of Evans illustrate this succinctly – a schoolteacher was justifiably disciplined for hacking into his employer’s computer system even though he did so with the well-meaning motive of demonstrating weaknesses in its security. The tribunal must consider carefully how closely the disclosure and the treatment are linked in order to answer that question.[60]In relation to complaints of alleged detriment, the tribunal must look at whether "the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower" - NHS Manchester v Fecitt and others [2012] IRLR 64. A ‘material influence’ may not be the sole or even the main reason for the treatment, but it must have featured to some significant degree. That decision also confirmed that it is possible to make a distinction, with caution, between the fact of a disclosure and the manner in which it is made.[61]The first alleged detriment was particularly closely related to the protected disclosures in factual terms. It was clear that, but for those disclosures, the disciplinary process would not have been followed as it did. Superficially it might be concluded that the disclosures were the cause and the disciplinary measures were the effect. However, to answer the question a tribunal must consider the mental process (conscious or unconscious) which the employer followed - Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust UKEAT/0047/19/BA.[62]The respondent’s (i.e Mr Purcell’s) mental process was as follows. The claimant raised that a colleague had acted suspiciously in relation to company cash handling in at least two ways. Their conduct was potentially misconduct and fraudulent. This was previously unknown and merited further investigation. By making that report, the claimant had admitted that he had been aware of potential irregularities in that colleague’s behaviour but had not acted to raise some of them sooner than he could have done. This was a separate concern and justified disciplinary action in its own right.[63]Notably, the two disciplinary allegations put to the claimant were about delay in reporting, not reporting matters themselves, and they did not include the reporting of Mr Bonner transferring money from his own account to the business account, which only happened the day before the first protected disclosures and could only be cross-checked the same day. This supported the respondent’s position that its issue with the claimant was not that he reported his concerns, but that he unjustifiably waited some weeks before doing so.[64]Also worthy of note was that there appeared to be no motive for the respondent to punish the claimant for making his disclosures. Mr Purcell welcomed them as an opportunity to prevent further fraud and remedy weaknesses in the respondent’s cash management systems. The respondent emphasised through its policies that colleagues should speak up if they suspected wrongdoing, and there was no evidence to suggest that this was departed from in practice. The disclosures did not cast Mr Purcell in a bad light or create a problem for him of the type which can commonly lead employers to suppress the raising of concerns. They pointed the finger only at Mr Bonnar, who was also then subjected to a disciplinary process which only ended with his resignation.[65]Viewed in this way I was satisfied that the first two alleged detriments did not occur on the grounds that the claimant had made protected disclosures.[66]The second, third and fourth alleged detriments were much less closely connected to the claimant’s protected disclosures. Those were simply the result of independent decisions by those running the process at the time and were governed by a sense of expediency and other administrative factors. They were not on the grounds that the disclosures, or any of them, had been made either. Whether the claimant was dismissed for the sole or principal reason that protected disclosures were made[67]The wording of the relevant statutory test for unfair dismissal is different from that used in relation to detriment complaints. The sole or principal reason for the dismissal must be the making of protected disclosures. This requires a stronger link between the two events.[68]How the onus of proof operates depends partly on the particular claimant’s length of service. A claimant will have to prove that they made the protected disclosures relied on and that they were dismissed. At that point the party on whom it falls to prove the reason for dismissal is determined by whether the claimant had attained two years of continuous service before being dismissed – the qualification period for an ‘ordinary’ unfair dismissal claim. If two years had been achieved, case law suggests that it is for the former employer to prove that the sole or principal reason for dismissal was a fair one and not because of the protected disclosures. If insufficient service has been attained, the onus falls on the claimant to establish the opposite.[69]In this claim the claimant had fallen short of two years’ continuous service and so it fell on him to show that the sole or principal reason for his dismissal was the making of protected disclosures.[70]For essentially the same reasons as the claimant’s case was unsuccessful in relation to detriments, it could not succeed in relation to the fairness of his dismissal. He could not prove that the sole or principal reason for his dismissal was that he made protected disclosures. The evidence more strongly suggested the alternative that the respondent ended his employment because he was considered culpable by delaying in reporting the apparent wrongdoing of a colleague.
Conclusions
[71]Both the detriment and dismissal complaints were unsuccessful on their merits in light of the evidence presented and on the application of the relevant legal tests. They must therefore be dismissed.[72]I note and repeat here that no finding of misconduct or other culpable practice is made against the claimant by the tribunal. He clearly and understandably felt hard done by because, as he viewed events, he observed the questionable conduct of a colleague and has ended up being punished as a result of reporting it. It was also apparent that he feels he was more harshly treated than Mr Bonner, who resigned before a disciplinary process could run its course. The nature of this claim required the tribunal to look at the respondent’s reasons for treating the claimant as it did, and to establish whether there was a close enough link to the making of his protected disclosures. This did not require a finding either that the claimant was guilty of misconduct or that the respondent’s disciplinary process was more generally fair and reasonable as section 98(4) of the Act requires in cases where claimants have acquired two years of service.