Case No 4111203/2019Venue GlasgowHearing 4, 5, 6 & 7 February 2020
Between
Mr M McSherryClaimantStopfire LimitedRespondent
Before
Employment Judge Frances EcclesMr R Eadie (instructed by Solicitor) for respondentDate 9 March 2020
JUDGMENT
The Judgment of the Employment Tribunal is that(i) the claimant was unfairly dismissed by the respondent;(ii) the respondent shall pay to the claimant a basic award of £4,987.50 (9.5 weeks x £525) &(iii) the respondent shall pay to the claimant compensation of £412.50 (£550 less 25%).
REASONS
[1]The claim was presented on 22 September 2019. The claimant complained of unfair dismissal. The claimant stated that the reason for his dismissal was that he made protected disclosures. He claimed automatic unfair dismissal in terms of section 103A of the Employment Rights Act 1996 (ERA). The claimant also challenged the procedural fairness of his dismissal. The claim was resisted. In their response, accepted on 25 October 2019, the respondent denied having unfairly dismissed the claimant. The respondent gave the reason for dismissal as gross misconduct, more particularly disregard for health and safety and insubordination. The respondent did not accept that the claimant had made protected disclosures. It was agreed that the issue of whether the claimant made protected disclosures should be considered as part of the final hearing.[2]At the final hearing, the claimant represented himself. He gave evidence to the Tribunal. The respondent was represented by Mr R Eadie, Solicitor. For the respondent, the Tribunal heard evidence from Mr Bernard Tansey, known as Breen, Factory Manager and Mr Stephen Muir, Contracts Director. The parties provided the Tribunal with a joint bundle of productions. The claimant was permitted, there being no objection from the respondent, to play a recording he had made of a meeting held with the respondent on 26 April 2019. The recording did not include the last few minutes of the meeting. The claimant also provided the Tribunal with a list of his purported protected disclosures and a letter from his personal injury lawyers advising him that the defending insurer had admitted liability for his accident. It was not in dispute that the claimant had an accident at work on 16 May 2019. The respondent did not accept that they had admitted liability for the claimant’s accident. FINDINGS IN FACT[3]The Tribunal found the following material facts to be admitted or proved; the respondent blasts and coats steel components for the construction industry. They specialise in coating steel with fire resistant paint. They operate on and off site. They employ around 70 people in various locations across Scotland. The claimant was employed by the respondent from 17 March 2009 to 28 June 2019 when he was summarily dismissed. He was employed as a Blaster Loader at the respondent’s site in Motherwell. From around 2013 the claimant was Supervisor of the nightshift. The claimant’s off-site premises in Motherwell consist of factory units where the claimant was employed to blast and load steel components on to trailers for delivery. The claimant worked an average of 55 hours per week at an hourly rate of £13.50. His average take home pay was £550 per week. At the date of his dismissal the claimant was aged 31.[4]From around November 2018 the claimant began to express concerns to the respondent’s management about working practices on the night shift. He was particularly concerned about the time allocated for employees to paint and load steel beams on to trailers for delivery. The claimant believed that the health and safety of employees was being endangered by having to load steel beams that were still wet from coating – known as “wet jobs”. He believed that loading wet steel beams was dangerous given the risk of slipping especially when working at height. On or about 6 December 2018 the claimant complained to Breen Tansey, the respondent’s Factory Manager about the use of blow heaters to speed up the drying process. The claimant informed Breen Tansey that it was dangerous to use blow heaters in confined spaces such as the factory given the lack of ventilation and the use of flammable materials. The claimant refused to use the blow heaters. On the same day he wrote to Stephen Muir, the respondent’s Contracts Manager with a grievance about “wet jobs”. The claimant informed Stephen Muir that having to load and climb on to trailers with wet steel was dangerous to health and safety. Stephen Muir informed the claimant that he would investigate the claimant’s grievance. The claimant had anticipated that he would hear back from Stephen Muir about his grievance. He did not. He raised his concerns about “wet jobs” again with Breen Tansey on or about 26 February 2019 and again in writing to Stephen Muir on or about 28 February 2019.[5]The claimant informed Stephen Muir about concerns relating to electrical work on or about 9 February 2019. On or about 23 February 2019, he informed Breen Tansey that protective masks were not being supplied to employees.[6]The claimant was concerned about the health and safety of employees in relation to loading procedures generally. The claimant informed Breen Tansey of his concerns on or about 27 March 2019 (P99-109). The claimant described the task of loading as “a nightly climbing frame - notice the height”. He claimed that “from this height believe it or not I could die” (P103). He complained about not being provided with a new pair of safety boots. He complained that previous grievances had not been dealt with by the respondent.[7]The claimant had concerns about deductions made from his wages towards a company pension. He believed that the deductions were fraudulent. He informed Breen Tansey of his concerns in writing on or about 9 November 2018 and to Paul Cassidy, Director on or about 4 April 2019 (P110- 112).[8]The claimant sent a message to Paul Cassidy on 10 April 2019 (P114- 116) complaining about the lack of response to his previous grievances and about health and safety generally. He did not receive a response from Paul Cassidy. He was absent from work from 10 April 2019. The claimant sent a message (P117 – 119) to Paul Cassidy on 12 April 2019 about “wet jobs”. He also complained about the lack of response to previous grievances. He described feeling that as if he had “a target on (my) back”.[9]The respondent was concerned about the frequency of the claimant’s complaints about working practices on the nightshift. They were concerned about the claimant’s attitude towards management. They were concerned about his attendance record. They arranged a meeting with the claimant to discuss his e mail of 12 April 2019 to Paul Cassidy (P117-119) and previous grievances. The claimant was invited to the meeting on 15 April 2019 (P121). The claimant was informed that the meeting would be a “protected discussion”. The meeting was held on 26 April 2019. Stephen Muir and Paul Cassidy attended the meeting for the respondent. The claimant recorded most of the meeting. Stephen Muir began by informing the claimant that the purpose of the meeting was to “hear (him) out on his grievances”. A number of the claimant’s concerns were discussed including the use of blow heaters, loading trailers and the use of a ladder to access a fuse box. The claimant reminded Stephen Muir that his grievances should be in his file. The claimant and Stephen Muir disagreed about whether any of the working practices identified by the claimant were dangerous. Stephen Muir sought to reassure the claimant that he was not obliged to undertake any unsafe tasks and, in the event, he considered a task to be unsafe he should “move on to the next task”. Stephen Muir expressed concern about the claimant’s lack of respect towards management, “constant complaints”, “constant days off” and leaving the site. The claimant challenged the respondent to identify a problem for which he was responsible. Stephen Muir sought an undertaking from the claimant that he would respect management. The claimant stated that he had no respect for management. The meeting ended with Stephen Muir and the claimant agreeing to “draw a line” under previous concerns and move forward with a “clean slate”. The claimant felt anxious. He remained concerned about the respondent’s working practices and the lack of formal response to his grievances.[10]The claimant had an accident at work on 16 May 2019. The claimant reported the accident to the respondent. He returned to work on 21 May 2019.[11]On 12 June 2019 the claimant was concerned about the safety of a loaded trailer. He contacted Mark Fleming, the claimant’s line manager to inform him that because of health and safety concerns he would not off load the trailer. Mark Fleming contacted Stephen Muir to report his discussion with the claimant. He described the claimant as sounding angry and “verging on being aggressive”. Mark Fleming reported that the claimant had complained about unloading steel sections from a trailer and was refusing to do work allocated to the night shift. A disagreement had followed about whether Mark Fleming had told the claimant to “just go up the road”. Mark Fleming reported that the claimant had responded to him using derogatory language and suggested that other employees had witnessed their conversation. Mark Fleming was of the impression that the claimant had used a loudspeaker to allow other employees on the nightshift to overhear their conversation.[12]Stephen Muir was concerned about the discussion that had taken place between Mark Fleming and the claimant. He was concerned that the claimant had sought to undermine Mark Fleming’s authority. He was concerned that the claimant was refusing to undertake work allocated to the night shift. He was concerned that the claimant had been intemperate and used unacceptable language towards Mark Fleming. He decided that the claimant had become unmanageable. He instructed Breen Tansey to write to the claimant requesting his attendance at a disciplinary hearing. The claimant was informed by letter dated 13 June 2019 (P59) that at a hearing, disciplinary action against him would be considered with regard to;• The accident on Wednesday, 16th May, which resulted in injury to yourself• Your attendance record over the past year• Your performance since being placed on three months probation The claimant was informed that “that possible outcomes of this hearing may include a final written warning or dismissal”. No investigatory documentation was sent to the claimant with the letter (P59).[13]Around the same time, Stephen Muir instructed Breen Tansey to gather information about the claimant’s attendance at work over the past 12 months and to identify issues of concern with the claimant’s conduct over the same period.[14]On 14 June 2019 the claimant messaged Paul Cassidy and Stephen Muir (P146-150). He raised a grievance about health and safety concerns; his accident and failure to deal with his previous grievances. Stephen Muir replied to the claimant confirming that his grievances would be fully investigated. Later that day, Mark Fleming sent an email to Stephen Muir (P60) detailing his telephone conversation with the claimant on 12 June 2019.[15]On receipt of the respondent’s letter of 13 June 2019 (P59), the claimant contacted Stephen Muir. They discussed the terms of the letter (P59). Stephen Muir reassured the claimant that they could “draw a line under it all, once and for all”.[16]The claimant was issued with a letter from the respondent on 14 June 2019 (P63) informing him that there would be a review of his employment status and the question of disciplinary action against him with regard to;• The accident on Wednesday, 16th May, which resulted in injury to yourself• Your attendance record over the past year• Your performance since the meeting on Friday, 26th April The claimant was informed that “that possible outcomes of this hearing may include a final written warning or dismissal”. No investigatory documentation was sent to the claimant with the letter (P63). The claimant contacted Breen Tansey He informed Breen Tansey about his earlier discussion with Stephen Muir. He expressed concern to Breen Tansey that the respondent wanted “rid of (me) for doing no more than (my) job, safely and correctly”. The claimant informed Breen Tansey that he had recorded the meeting on 26 April 2019.[17]The claimant received a further letter from the respondent dated 17 June 2019 (P64) requesting his attendance at a disciplinary hearing at which his performance and disciplinary action against him would be considered with regard to;• The accident on Wednesday, 16th May, which resulted in injury to yourself• Your attendance record over the past year• Your performance and conduct The claimant was informed that “that possible outcomes of this hearing may include a final written warning or dismissal”. No investigatory documentation was sent to the claimant with the letter (P64).[18]On 17 June 2019 Breen Tansey prepared a document containing information about the claimant’s alleged ‘unreliability’; ‘hostility towards management’ and “lack of desire to work” (P57-58). Instances of “unreliability” dated from August 2018. Instances of ‘hostility towards management’ were dated 12 & 13 June 2019. There was reference to “many others that went unrecorded”. No instances of “lack of desire to work” were provided. Mark Fleming provided Stephen Muir with information about the claimant on 18 June 2019 (P65). He was critical of the claimant’s attendance over the past year and in particular the previous three months. He was critical of the claimant’s refusal to undertake specific tasks. He referred to his telephone conversation with the claimant on 12 June 2019. He accused the claimant of trying to “entrap” him by instructing the claimant to carry out unsafe tasks or to abandon a task rather than adopt an alternative method of working. He referred to the claimant placing his telephone on loudspeaker to allow others to overhear the conversation. He accused the claimant of using derogatory language to describe other employees including management. He accused the claimant of manipulating their conversations “to suit his own agenda”. He referred to the claimant continually lodging complaints against him and Breen Tansey. He claimed that as a result he felt that the claimant’s conduct was “now putting a great deal of added pressure and stress onto (myself) dealing with the continual harassment from (the claimant) on a day to day basis”.[19]On 19 June 2019 Breen Tansey provided Stephen Muir with additional information about the claimant’s alleged ‘unreliability’; ‘hostility towards management’ and “lack of desire to work” (P66 - 68). Additional instances of “unreliability” dated from August 2018. There were no additional instances identified of ‘hostility towards management’ and “lack of desire to work”. The claimant was not provided with the information passed to Stephen Muir by Breen Tansey (P57-58 & P66 - 68) or Mark Fleming (P65) in advance of his disciplinary hearing.[20]The claimant attended a disciplinary hearing on 24 June 2019. The meeting was chaired by Stephen Muir. The claimant was accompanied by a work colleague. At the disciplinary hearing, Stephen Muir informed the claimant of the possible outcomes including dismissal. He advised the claimant of his right to appeal. He advised the claimant that the respondent had taken legal advice. The information from Breen Tansey (P57-58 & P66 - 68) and Mark Fleming (P65) was placed in a folder. It was not shown to the claimant. During the disciplinary hearing, Stephen Muir discussed with the claimant his absence from work; conduct towards management and issues with working practices. They discussed the claimant’s accident on 16 May 2019 and the accident book. Stephen Muir prepared notes for the meeting (P69). He did not provide the claimant with a written record of the meeting.[21]Stephen Muir decided to dismiss the claimant. He no longer considered it possible to manage the claimant. He notified the claimant of his decision by letter dated 28 June 2019 as follows (P70): “Termination of Employment We invited you to a disciplinary hearing on Monday., 24th June 2019 (see letter from Stephen Muir to Michael McSherry, dated 17 June 2019). You attended the hearing, conducted by myself, and your conduct, with regards to health and safety and with regards to insubordination shown towards the management team, was discussed. Issues raised included your repeated failure to take reasonable steps to avoid accidents. For example, with respect to your accident in May, you chose not to use the safer access that was available but instead chose to climb up the side of a trailer and slipped on grease, resulting in a fall. Another issue raised at the hearing was your hostility towards management; managers report that they had been shouted at, called idiots, incompetents and liars. After consideration of these issues, we have found you guilty of a disregard for safety and of serious insubordination, and, therefore, gross misconduct. For this reason, the company has decided your employment with Stopfire will cease with immediate effect; the date of your dismissal is 28th June, 2019, and you will be paid until that date”. The claimant was informed of his right to appeal against his dismissal to Paul Cassidy. The claimant was dismissed without notice. The claimant did not appeal against his dismissal. He did not believe that Paul Cassidy would overturn the decision made by Stephen Muir to dismiss him.[22]The claimant obtained alternative employment on 8 July 2019 where he worked for three months. During this period, his income was equivalent to the amount he earned while employed by the respondent. The claimant left this employment due to ill health and was unemployed for a period of around 5 weeks. Since then he has earned £2.85 less per hour than he earned with the respondent.
ISSUES
[23]The issues to be considered by the Tribunal are as follows;(i) Did the claimant make a protected disclosure within the meaning of Section 43B of the Employment Rights Act 1996?(ii) What was the reason and, or if more than one the principal reason, for the claimant’s dismissal?(iii) If the reason for the claimant’s dismissal was a potentially fair reason, did the respondent act reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the claimant? &(iv) If the claimant was unfairly dismissed, what should he be awarded as compensation? NOTES ON EVIDENCE[24]As referred to above, the claimant was permitted to play a recording he had made of a meeting held with the respondent on 26 April 2019. The respondent initially submitted that the recording was inadmissible in terms of Section 111A(1) of ERA. It was noted however that according to the claimant’s case he was unfairly dismissed for making protected disclosures and that accordingly the provisions regarding admissibility in Section 111A(1) of ERA did not apply. In the event, the respondent did not object to the Tribunal hearing the claimant’s recording of the meeting as part of his evidence.[25]The claimant gave his evidence in a clear and straight forward manner. While on occasions he had a tendency to exaggerate events, overall the Tribunal found him to be a credible witness. He had a clear recollection of events and his oral evidence was supported by contemporaneous documents. The Tribunal was persuaded that the claimant had lodged written grievances with the respondent. The Tribunal did not find however that the respondent had deliberately removed them from his file. While the claimant’s recording of the meeting on 26 April 2019 ended abruptly and before the meeting closed, the Tribunal was not persuaded that there had been an agreement, as claimed by the respondent, that the claimant would be placed on a three-month probationary period. This was inconsistent with Breen Tansey amending the letter of 13 June 2019 (P59) to remove reference to the three-month probationary period. The Tribunal also preferred the claimant’s evidence as regards the disclosure of documents in advance of the disciplinary hearing. The claimant was adamant that he had not received any paperwork before the hearing. The respondent relied on the terms of the letters (P59, 62 & 63) sent to the claimant requesting that he attend the hearing which purported to enclose “investigatory documentation”. When giving their evidence on this matter, the respondent’s witnesses were less clear. Breen Tansey was unable to state with any certainty whether the documents and if so, which documents, were enclosed with the letters to the claimant. Stephen Muir referred to the documents being in a folder at the disciplinary hearing to “allow the claimant to have a look”. No explanation was provided as to why this was necessary if the claimant had already received the documents in advance of the hearing. On balance the Tribunal preferred the claimant’s evidence that he did not receive any of the documents provided to Stephen Muir in advance of the disciplinary hearing.[26]The evidence of the respondent’s witnesses was persuasive in relation to the reason for the claimant’s dismissal. Breen Tansey described in clear and cogent terms how the claimant had become “unmanageable” and that “every instruction was a fight”. He described the relationship between the claimant and management as having broken down and that in particular the claimant’s relationship with his line manager, Mark Fleming was not “sustainable”. He referred to the “daily battle” of asking the claimant to undertake tasks which he would describe as dangerous and refuse to do. He referred to the feeling on the part of management that the claimant was “working against us rather than for us”. He expressed concerns that the claimant was at times trying to “bait” management to send him home. The Tribunal was persuaded that it was the claimant’s attitude to management that led the respondent, as described by Breen Tansey, to “believe disciplinary was necessary”.[27]Stephen Muir’s evidence as regards the reason for the claimant’s dismissal was consistent with that of Breen Tansey. He referred to the meeting on 26 April 2019 ending with a “clean slate”. The Tribunal accepted his evidence that he had hoped the “grievances were closed down” and that the working relationship between the claimant and management could move forward. The Tribunal found that the claimant’s sense of grievance about how the respondent had dealt with his concerns was not addressed at the meeting on 26 April 2019. His attitude towards management did not change. The Tribunal found that it was not the claimant’s grievances or his accident that had caused the respondent to dismiss the claimant. Stephen Muir’s evidence that the claimant was unable to work with management and “let go for insubordination” was persuasive and credible. SUBMISSIONS RESPONDENT’S SUBMISSIONS[28]Mr Eadie provided the Tribunal with written submissions for the respondent. He also made oral submissions. What follows is a summary of the above. Mr Eadie submitted that the claimant was dismissed for conduct reasons. The claimant did not make any protected disclosures and if he did, which is denied, they were not the true reason for his dismissal, submitted Mr Eadie.[29]Referring to the case of British Home Stores Ltd v Burchell 1980 ICR 303, Mr Eadie submitted that it was clear from Stephen Muir’s evidence that the respondent genuinely believed that the claimant was guilty of misconduct. Summary dismissal was within the range of reasonable responses, submitted Mr Eadie, given the seriousness of the claimant’s conduct and the discussions that had taken place on 26 April 2019. Following an investigation, submitted Mr Eadie, the claimant was invited to a meeting on 24 June 2019 and given the chance to put forward an explanation for what had happened. He failed to do so, submitted Mr Eadie and should have appealed his dismissal if he genuinely believed that he had done nothing wrong.[30]There is no basis, submitted Mr Eadie, on which to find that the reason for the claimant’s dismissal was whistleblowing. Mr Eadie referred the Tribunal to the meeting on 26 April 2019 and the evidence of Paul Cassidy and Stephen Muir raising concerns about the claimant’s conduct in particular towards management. Mr Eadie submitted that the claimant had indicated during the meeting that he was content that his grievances had been dealt with. Mr Eadie submitted that at the meeting on 26 April 2019 it was agreed that the parties would move forward constructively and that the claimant would make a genuine effort to improve his attitude. Mr Eadie submitted that the agreement was described as a “clean slate” and the situation was to be reviewed after three months.[31]The claimant’s behaviour submitted Mr Eadie, rather than improve deteriorated resulting in the complaint from Mark Fleming. This led Stephen Muir to formalise matters, submitted Mr Eadie, as he could not allow the situation to continue. The respondent, submitted Mr Eadie, had to that point treated the claimant leniently. Mr Eadie referred the Tribunal to Breen Tansey’s investigation report (P57-58) and Stephen Muir’s invitation to a disciplinary hearing. Had the respondent genuinely wanted to dismiss the claimant for raising issues, submitted Mr Eadie, they had plenty of opportunity to do so at an earlier stage. To tolerate his behaviour, provide support and meet on 26 April 2019 to deal with his concerns and make a fresh start is inconsistent, submitted Mr Eadie, with an employer seeking to dismiss an employee because they have been whistleblowing. In any event, submitted Mr Eadie, whistleblowing was not a live issue at the time of the claimant’s dismissal. The claimant did not appeal on the grounds that he was being dismissed for whistleblowing submitted Mr Eadie and Stephen Muir did not know about whistleblowing.[32]The claimant did not disclose information and there was no public interest in the work practices peculiar to the respondent’s business operations, submitted Mr Eadie. He did no more than voice concerns and make allegations. The claimant’s grievances, submitted Mr Eadie, did not amount to whistleblowing and there were no protected disclosures.[33]In relation any award of compensation, Mr Eadie questioned why there was no evidence of the claimant having consulted his GP at the time he left his new employment. The respondent should not be liable for any losses during the claimant’s period of unemployment, submitted Mr Eadie. Likewise, submitted Mr Eadie, the respondent should not be liable for any difference between the claimant’s current earnings and his earnings with the respondent. Mr Eadie questioned whether the claimant has fully mitigated his losses.[34]Mr Eadie submitted that the claimant has failed to provide an adequate explanation as to why he did not appeal against his dismissal. By failing to appeal his dismissal, submitted Mr Eadie, the claimant has breached the ACAS Code of Practice and any award of compensation should be reduced by 25%. In the event that there was a finding of procedural unfairness, which was denied, the respondent also sought a reduction in terms of Polkey, submitted Mr Eadie. CLAIMANT’S SUBMISSIONS[35]The claimant submitted that gross misconduct was a pretext for his dismissal. There was no evidence, submitted the claimant, of any breaches of health and safety on his part or of insubordination. He described himself as a “thorn in the side” of the respondent, continuously raising health and safety concerns and refusing to do dangerous tasks. The claimant referred the Tribunal to the three letters sent to him (P59, 63 & 64) in which he submitted the respondent substituted the reason for his dismissal.[36]The claimant submitted that the gross misconduct for which he was dismissed was the alleged altercation with Mark Fleming. He referred to having had three witnesses to the alleged altercation, none of whom he claimed were asked for a statement. The claimant submitted that he first saw Mark Fleming’s e mail (P60) on receiving the joint bundle shortly before the Tribunal hearing. The claimant referred the Tribunal to his final grievance (P146 to 150) and the respondent’s failure to investigate his concerns (P152). The claimant submitted that the e mail from Mark Fleming (P60) was said to be the primary reason for his dismissal but was sent after the dismissal procedure was put into motion by the respondent. The claimant submitted that notwithstanding the respondent’s position that there was a three-month probation and “clean slate”, they could not let go of past issues when it came to his dismissal. The respondent, submitted the claimant, wanted him to quieten down and move forward.[37]The claimant submitted that the respondent had failed to follow a fair procedure. They had denied him access to HR to discuss stress at work; they did not respond appropriately to his protected disclosures and those that were in writing were not put in his file. The claimant referred the Tribunal to Mark Fleming’s e mail (P65) in which he refers to the claimant continually lodging complaints and grievance. The claimant questioned the whereabouts of his written grievances.[38]The claimant referred the Tribunal to the additional information provided about his losses (P75 to 77). He questioned the respondent’s commitment to health and safety concerns. He described himself as the “voice of downtrodden staff” to whom the respondent turned a blind eye. He submitted that he did not appeal against his dismissal due to work related stress and having “no fight left in him”. He had no confidence that he would receive a fair appeal hearing. DISCUSSION & DELIBERATIONS[39]The Tribunal began by considering whether the claimant made a protected disclosure. To be protected, a disclosure must be a “qualifying disclosure” within the meaning of Section 43B of the Employment Rights Act 1996 (“ERA”) and must be made in the manner and to the person or body specified in Sections 43C to 43H of ERA. Section 43B(1) of ERA defines a qualifying disclosure as “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.”[40]It was the claimant’s position that he had disclosed information to the respondent that tended to show that his health and safety and that of employees on the nightshift was being or was likely to be endangered in terms of Section 43B(1) (d) of ERA. The Tribunal disagreed with the respondent’s submission that the claimant only alleged that the respondent’s working practices were endangering the health and safety of employees on the nightshift as opposed to disclosing information. The Tribunal found that the claimant provided information to the respondent as to why he believed that his health and safety and that of other employees was being endangered. In relation to “wet jobs”, the Tribunal was satisfied that the claimant had informed the respondent on 6 December 2018, 26 February 2019, 28 February 2019 and 12 April 2019 that he believed loading wet steel was dangerous given the potential risk of slipping while working at height. The Tribunal was satisfied that the claimant had informed the respondent on 6 December 2018 that he believed the use of blow heaters in the factory was dangerous given the lack of ventilation in the factory and the use of flammable materials. Similarly, the Tribunal was satisfied that the claimant informed the respondent about the health and safety risks of their loading procedures on 27 March 2019. The Tribunal was satisfied that the above disclosures had sufficient factual content to potentially qualify as protected disclosures in terms of Section 43B(1) of ERA.[41]To be protected, it is also necessary for the claimant to have a “reasonable belief” that the disclosures he made were in the public interest and tend to show that a relevant failure had occurred, was occurring or was likely to occur. This does not mean that the claimant’s belief must be true and accurate. The claimant’s belief could be reasonable even if it was wrong. The respondent sought to show that the claimant was motivated to raise concerns about undertaking tasks to undermine management’s authority and on occasions in the hope that he would be sent home. From the evidence before it, the Tribunal was not persuaded that the claimant made disclosures that he knew to be untrue or in which he did not have a genuine belief. The bar for establishing reasonable belief is not high and will depend on the expertise of the putative whistleblower and the information reasonably available to them. It was not in dispute that it is in the public interest that workers are not required to undertake tasks that endanger their health and safety. The Tribunal was satisfied that in all the circumstances the claimant met the requirement of having a reasonable belief that the disclosures he made to the respondent were in the public interest and tended to show that a relevant failure had occurred, was occurring or was likely to occur. While the protected nature of the disclosures was challenged, the respondent did not dispute that the disclosures were made to them as the claimant’s employer in terms of Section 43C of ERA. In all the circumstances. the Tribunal was satisfied that the claimant made protected disclosures within the meaning of Section 43B(1)(d) of ERA about the respondent’s working practices.[42]The Tribunal was not persuaded that the claimant raising concerns about deductions from his pay for pension contributions amounted to a protected disclosure. It was a contractual dispute that concerned the claimant. The claimant described the deductions as “fraud” on the part of the respondent. The Tribunal was not persuaded however the that the claimant had disclosed information from which he could reasonably have believed that a criminal offence had been committed in terms of Section 43B(1) (a) of ERA or that might otherwise amount to a relevant failure in terms of Section 43B(1) of ERA. Similarly, the Tribunal was not satisfied that there was sufficient evidence before the Tribunal to be able to conclude that the claimant had made a protected disclosure about electrical work or the supply of protective clothing.[43]In terms of Section 94 of the Employment Rights Act 1996 (“ERA”), the claimant had the right not to be unfairly dismissed by the respondent. It was not in dispute that the claimant had been dismissed by the respondent. The respondent denied any unfairness. In terms of Section 98(1) of ERA it was for the respondent to show the reason (or, if more than one, the principal reason) for the claimant’s dismissal. The reason advanced by the respondent of gross misconduct was disputed by the claimant. According to the claimant, the reason for his dismissal was because he made protected disclosures and that his dismissal was therefore automatically unfair in terms of Section 103A of ERA.[44]Having considered all the evidence before it , the Tribunal was persuaded that the principal reason for the claimant’s dismissal related to his conduct. While there was no doubt that the respondent found managing the claimant very challenging given the frequency with which he raised concerns about working practices, the Tribunal was not persuaded that this was the principal reason for his dismissal. The Tribunal did not agree with the respondent’s submission that Stephen Muir’s lack of knowledge about whistleblowing should rule out the possibility of him having decided to dismiss the claimant for making protected disclosures. Having considered the reasons advanced by the respondent for the claimant’s dismissal however, the Tribunal was persuaded that the principal reason was the claimant’s attitude to management. In his evidence before the Tribunal, Stephen Muir was adamant that the claimant’s accident was not the reason why he was “paid off”. The reasons identified by Stephen Muir were the claimant’s insubordination and attitude towards management. The Tribunal accepted his evidence in this respect. The respondent’s concerns about the claimant’s attitude towards management were raised by Stephen Muir during the meeting on 26 April 2019. It was the claimant’s conduct towards Mark Fleming on 12 June 2019 that led to disciplinary action. Mark Fleming had reported the claimant sounding angry and “verging on being aggressive”. He had reported an altercation with the claimant during which the claimant had used derogatory language and challenged his authority. Mark Fleming had expressed concerns about being able to manage the claimant. The Tribunal was satisfied that these were the reasons why the decision was taken to dismiss the claimant and not because he had made protected disclosures. The principal reason for the claimant’s dismissal related to his conduct.[45]Conduct is a potentially fair reason for dismissal in terms of Section 98(2)(b) of ERA. The respondent having met the requirement to show that the claimant was dismissed for a potentially fair reason, the Tribunal went on to consider whether the dismissal was fair or unfair having regard to the claimant’s conduct. In terms of Section 98(4)(a) of ERA, this depends on whether in the circumstances (including the size and administrative resources of the respondent’s undertaking), the respondent acted reasonably or unreasonably in treating the claimant’s conduct as a sufficient reason for dismissing him. This must be determined in accordance with equity and the substantial merits of the case in terms of Section 98(4)(b) of ERA.[46]When considering whether the respondent acted reasonably or unreasonably in treating the claimant’s conduct as a sufficient reason for dismissing him, the Tribunal must have regard to whether the decision to dismiss fell within the “band of reasonable responses” of a reasonable employer. It is not for the Tribunal to consider how it would have responded to the claimant’s conduct. It must consider whether a reasonable employer might reasonably have dismissed the claimant in response to his conduct.[47]Whether the respondent acted reasonably or unreasonably will depend on the circumstances of the case. Applying the authority of British Home Stores Ltd v Burchell 1980 ICR 303, this involves the Tribunal being satisfied that(i) the respondent believed that the claimant was guilty of the misconduct for which he was dismissed;(ii) the respondent had in mind reasonable grounds upon which to sustain that belief &(iii) at the stage at which the respondent formed that belief on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances.[48]The Tribunal was satisfied that Stephen Muir believed the claimant had become unmanageable and was guilty of “insubordination”. This was clear from his evidence before the Tribunal. Stephen Muir’s belief was based on the claimant’s conduct over the previous twelve months during which time relations between the claimant and management had deteriorated resulting in the meeting on 26 April 2019. He also based his belief on the report from Mark Fleming of the claimant’s attitude towards him on 12 June 2019 and from which he concluded that the claimant’s conduct meant he was no longer able to work with management. While the Tribunal did not doubt that Stephen Muir believed the claimant’s conduct made him unmanageable, it was no persuaded that at the time he formed that belief the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances. The Tribunal concluded from the evidence before it that Stephen Muir had already decided to discipline and almost certainly dismiss the claimant by the time the claimant was asked to attend a disciplinary hearing. The information obtained from Breen Tansey (P57-58) was requested after the first of the letters (P59) about the proposed disciplinary hearing had been issued to the claimant. The information subsequently provided by Breen Tansey contained little, if any, detail of instances of hostility towards management other than those that had occurred on 12 and 13 June 2019. The information obtained from Breen Tansey and Mark Fleming was not provided to the claimant in advance of the disciplinary hearing to allow him the opportunity to challenge it during the disciplinary procedure.[49]The Tribunal found that, applying the tests in British Home Stores v Burchell, the respondent had not acted reasonably in their dismissal of the claimant. Stephen Muir had already decided that the claimant was unmanageable before a reasonable investigation had been carried out and which should have included allowing the claimant a reasonable opportunity to challenge the information provided to Stephen Muir about his alleged misconduct.[50]The Tribunal also found that respondent acted unreasonably in treating the claimant’s conduct as a sufficient reason for dismissing him. The Tribunal was not persuaded that summary dismissal fell within the “band of reasonable responses” of a reasonable employer. In his evidence before the Tribunal, Stephen Muir described the meeting on 26 April 2019 as being a “clean slate”. It was to be a fresh start for both parties. When deciding to dismiss the claimant however, Stephen Muir instructed Breen Tansey to provide information about the claimant’s conduct over the previous twelve months in addition to his conduct since the meeting on 26 April 2019. There was no evidence of any previous disciplinary action against the claimant or that he had been issued with a final written warning at the meeting on 26 April 2019 about his attitude to management. Stephen Muir’s evidence was clear that the claimant’s accident was not the reason for his dismissal. It was also unclear the basis on which the claimant’s accident at work on 16 May 2019 could have amounted to gross misconduct given that he had remained in the respondent’s employment for a period of over a month after the date of the accident without any evidence of additional supervision or any detailed investigation into the accident. The Tribunal did not doubt the claimant’s conduct towards the respondent’s management was challenging in particular his use of derogatory language. Viewed objectively however, the Tribunal was not persuaded that the claimant’s conduct was a sufficient reason to justify summary dismissal. No formal warning had been issued to the claimant following the meeting on 26 April 2019. He had been told there would be a “clean slate”. In all the circumstances, the Tribunal concluded that the claimant was unfairly dismissed by the respondent.
REMEDY
[51]The claimant sought an award of compensation. He is entitled to a basic award which based on his age at the date of dismissal (31), length of service (10 years) and weekly pay (£742.50) amounts to £4,987.50 (9.5 weeks x £525). The claimant was unemployed for one week following his dismissal during which time he would have earned £550. The Tribunal was satisfied that this was a loss sustained by the claimant in consequence of his dismissal. The claimant obtained alternative employment which he left after three months. The Tribunal was unable to find from the evidence before it that the claimant’s loss after leaving his alternative employment were sustained as a consequence of his dismissal. There was no persuasive evidence that the claimant’s dismissal had caused him to have to resign from this employment. The claimant has therefore sustained a total loss of £550.[52]The respondent submitted that any award of compensation should be reduced in accordance with the principle in Polkey v AE Dayton Services Ltd 1988 ICR 142. The Tribunal was not persuaded that in all the circumstances of this case that a Polkey deduction would be just and equitable. The claimant’s dismissal was found to be unfair because summary dismissal was outside the “band of reasonable responses”. The decision that the claimant was unable to work with management had been made before the disciplinary hearing took place. This was not a case in which the Tribunal was satisfied that it was possible to conclude that but for procedural irregularities the claimant would have been dismissed in any event.[53]The claimant did not appeal against his dismissal. The respondent submitted that this was a failure by the claimant to comply with the material provisions of the ACAS Code of Practice on Disicplinary and Grievance Procedures (Code of Practice) and that accordingly any award of compensation should be reduced in terms of Section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992. In terms of paragraph 26 of the Code of Practice, where an employee feels that disciplinary action taken against them is wrong or unjust, they should appeal against the decision. It was the claimant’s position that there was little, if any, point in him appealing against his dismissal as the respondent’s had made up their mind that he could no longer remain in their employment. In all the circumstances of his dismissal the Tribunal did not consider the claimant’s position to be unreasonable. Paul Cassidy, to whom the claimant was told to send his appeal, had attended the meeting on 26 April 2019 at which his conduct had been discussed and criticised. The Tribunal did not agree with the respondent that the claimant failed to appeal because he did not feel that his dismissal was wrong or unjust. In all the circumstances, the Tribunal was not persuaded that it would be just and equitable to reduce the award made to the claimant to reflect his failure to comply with the Code of Practice.[54]In terms of Section 123(6) of ERA where a Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. The Tribunal was persuaded that the claimant contributed to his dismissal. The Tribunal was persuaded that the claimant spoke to Mark Fleming in intemperate terms and used unacceptable language. He did so however at a time when he was anxious and concerned about working practices and the respondent’s lack of formal response to his grievances. In all the circumstances the Tribunal decided that it was just and equitable to reduce the compensatory award by 25%. The total compensatory award made to the claimant therefore totals £412.50 (£550 less 25%).
CONCLUSION
[55]The Tribunal concluded that in all the circumstances of the case the claimant was unfairly dismissed by the respondent and should be awarded a basic award of £4,987.50 (9.5 weeks x £525) and compensation of £412.50 (£550 less 25%).