Case No 8001076/2024Venue EdinburghHearing 26, 27 and 28 March 2025
Between
G SlackClaimantD R Collin & Son LtdRespondent
Before
Employment Judge M SutherlandMs A Bowman (instructed by Solicitor) for claimantMr M McCormack (instructed by Solicitor) for respondentDate 22 April 2025
JUDGMENT
The judgment of the Tribunal is that the complaint of automatic unfair dismissal does not succeed and is accordingly dismissed.
REASONS
[1]The Claimant made a complaint of automatically unfair dismissal by reason of protected disclosure. The complaint was denied by the Respondent. E.T. Z4 (WR)[2]The Claimant gave evidence on his own behalf. The Respondent called David Rosie, Transport Manager and Paul Virtue, Managing Director to give evidence.[3]A joint bundle of documents was agreed and lodged.[4]Both parties made written and oral submissions.[5]The claimant has originally relied upon disclosure to prescribed person(s) but these were withdrawn at the start of the hearing.[6]The following initials are used in this judgment by way of abbreviation – Initials Name Job Title DR, TM David Rosie Transport Manager GS Graham Slack Driver (Claimant) IM, HS Ian Mulvey Health & Safety Officer PV, MD Paul Virtue Managing Director List of Issues[7]The issues to be determined were as follows: Public interest disclosure (Section 47B Employment Rights Act 1996)[8]Did the Claimant make the following disclosures?a. On 12th April 2024 to PV, MD that staff were not adequately trained in health and safety and that the respondent was not adhering to safe food storage practices by telling him: i) “I haven't had any training regarding covering the crabs”. ii) “I haven't seen any safe systems of work or risk assessments since I've been here, and I haven't received any training since I have been here”. iii) “loads of fish from the West are kept in the van overnight without refrigeration to be sold the next day for human consumption."b. On 15th April 2024 to DR, TM by sending him a picture of his injury and telling him: i) “he had slipped on the bumper and had hit his head on the broken hinge”; “the hinge was sticking out”. ii) “he had a gash on his forehead and was sustaining blood loss. …He was in pain”. iii) “he was climbing in the back of the van to get the sheet to cover the crabs… that his left foot slipped, causing him to fall to the right… he hit his head on the broken hinge, and that the hinge had been damaged for some time… the hinge was sticking out at an angle”.[9]In each case, did the Claimant make a disclosure of information which in his reasonable belief tended to show that the health or safety of any individual has been or is likely to be endangered?[10]In each case, did the Claimant make a disclosure of information which in his reasonable belief was made in the public interest? Automatically unfair dismissal (Section 103A)[11]Was the sole or principal reason for the Claimant’s dismissal that he had made a protected disclosure Remedy (Sections 119 and 123)[12]To what basic award is the Claimant entitled?[13]What loss has the Claimant suffered in consequence of the dismissal? What compensatory award would be just and equitable? Has the Claimant taken reasonable steps to mitigate his losses? Findings in fact[14]The Tribunal makes the following findings in fact:-[15]The respondent is a wholesale distributor of fresh and frozen fish and shellfish across UK and Europe. The respondent has 6 sites all based in Eyemouth. The respondent employs around 75 staff including 12 drivers.[16]The claimant is a skilled and experienced driver/trainer and driver. The claimant was employed by the respondent as a driver from 18 July 2022 to 25 April 2024 (‘the first period of employment’) and then from 18 July 2023 until 1 May 2024 (‘the second period of employment’).[17]In addition to his work as a driver/ trainer, the claimant is a skilled handyman. He resigned from his first period of employment with the respondent in order to take up employment at a local boat building yard. He then resigned from that employment due to safety concerns regarding the boat building. He then commenced his second period of employment with the respondent.[18]During both periods of employment with the respondent the claimant’s weekly duties involved transporting live shellfish from local harbours and wet fish from Glasgow to their sites in Eyemouth. The methods of transporting of shellfish and wet fish are regulated in the interests of food safety.[19]When the claimant commenced his first period of employment he received a day’s induction from David Rosie, Transport Manager (‘DR, TM’) and then on the job training regarding the transportation of the shellfish and the wet fish. He understood from on the job training that the live shellfish only needed covered in summer when the fridge was on because the ambient temperature was higher. The claimant considered that the standard of training he received was significantly lower than he would have delivered as an experienced trainer. The claimant was given induction paperwork to sign and return but did not do so. The respondent’s operations remained the same throughout both periods of employment and he was not given further induction training when he commenced his second period of employment.[20]On 22 February 2024 the claimant had an incident with a pallet truck and had two days off work due to a sore back. He was provided with a manual on pallet truck use after the incident.[21]On 12 April 2024, the claimant (‘GS’) was at the Respondent’s second site, Acredale Industrial Estate unloading shellfish from a van. Paul Virtue, Managing Director (‘PV,MD’) was on site carrying out daily production checks. He noticed that that there was no cover sheet over the shellfish in the van being unloaded by the claimant and he asked the claimant why the shellfish he was transporting were uncovered. The claimant said in response he didn’t need to do it in winter when the fridge wasn’t running. PV said “you should always use a sheet because that's the way it’s always been”. The claimant was aggressive and defensive in response stating “I’ve not received any form of training in this area and I had not signed any documents relating to that fact”; “even if that's the way that its always been, if I hadn't been made aware of that fact then I could not be held accountable”. PV was abrupt and angry in reply stating words akin to “Ok, if that’s the way you want it, that’s fine, we’ll see about that” and walked away.[22]On 15 April 2024 the claimant was collecting the daily catch from fisherman at Holy Island. The claimant slipped on the way into his van and sustained a deep cut to his forehead which bled profusely. The claimant texted DR, TM a photo of the injury and he advised DR, TM that he had entered the van by putting his foot on the bumper when he slipped and hit his head on the side of the van. DR, TM offered to pick the claimant up from the harbour and he gave him a lift home. PV, MD was aware that the claimant had slipped in the van and injured his head. On 17 April the claimant was signed off work 2 weeks with concussion. DR, TM was concerned and supportive about his injury. Staff were given training on entering the van safely and not using the bumper as a means to enter the van. The claimant returned to work on 29 April.[23]It is a legal requirement to record and report injuries and the company have an accident book for that purpose. On his return to work the accident book was completed with details of his injury. On 1 May 2024 Ian Mulvany, Health & Safety Officer reported the accident to HSE under Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (‘RIDDOR’),[24]The respondent undertakes a regular mid-monthly review of its management accounts. In mid-April PV, MD reviewed the management accounts and considered that staff savings were required because of a downturn in work (which reflected the annual seasonal downturn in the fishing industry).[25]The respondent’s redundancy policy provides that “In the event of a redundancy situation arising, The Company is not bound to a ‘last in-first out’ policy... Each situation will be treated in line with The Company’s business requirements based on circumstances at the time. All employees will be treated equally and selection will be carried out in a fair manner against appropriate selection criteria. Should the need for redundancy arise, appropriate consultation with employees will take place”. The respondent did not consult with any employees or apply any formal redundancy procedure.[26]DR, TM had noticed that they were managing without the claimant during his sick absence because other staff could cover his runs. Towards the end of April PV, MD in consultation with DR, TM took the decision that the claimant was to be dismissed. There were no notes of any meetings and no alternatives to dismissal were considered. On 30 April 2024 DR, TM advised the claimant he was being let go because of a downturn in work. He was not given written reasons for dismissal. He was not given any right of appeal. He received a payment in lieu of notice.[27]Two other employees, who were employed as Production Operatives, were dismissed shortly after the claimant because of a downturn in work and their length of service. They were advised of the possibility of work in the future and they were subsequently re-hired a few weeks later. The claimant was not advised of the possibility of future work but was offered occasional training work to be delivered to the respondent via a third party company.[28]By July the claimant had raised both a personal injury claim and employment tribunal claim against the respondent which management considered to be based upon allegations that were totally false. When the driving work increased in August the claimant was not offered any work and the hours of work of an existing member of staff were increased.[29]As at the date of termination the claimant was aged 59 and worked 40 hours a week paid at a rate of £15 an hour. He would regularly work some overtime at a rate of £16.50 an hour. For around 7 weeks immediately following his dismissal the claimant looked for local driving work without success. During that time he started a business as a handyman. In the period from 30 April 2024 to 14 January 2025 he received a gross income from that business of £12,037. Observations on the evidence[30]The standard of proof is on balance of probabilities, which means that if the Tribunal considers that, on the evidence, the occurrence of an event was more likely than not, then the Tribunal is satisfied that the event did occur. Facts may be proven by direct evidence (primary facts) or by reasonable inference drawn from primary facts (secondary facts). Tone and tenor of encounter on 12 April 2024[31]It was not in dispute that on 12 April 2024 there was a brief encounter during which PV, MD asked the claimant why the shellfish he was transporting were uncovered, that the claimant said in response he didn’t need to do it in winter if the fridge wasn’t running, that PV then said the shellfish should always be covered, the claimant then said had he had never had any training about that and that PV should check the training records.[32]PV thought it best practice to always cover the shellfish during transport and that the Claimant the knew this because he’d transported the shellfish for months without apparent issue. The claimant understood that this only applied in summer when the fridge was running.[33]PV stated in evidence that the claimant was aggressive and intimidating. When this was put to the claimant in cross examination he denied this saying he was factual. The claimant said in evidence he had a good working relationship with DR and PV and had no prior arguments. PV said in evidence that he saw the claimant in passing most days and interacted with him occasionally and he was polite. PV said in evidence he was really shocked by the claimant’s behaviour during their encounter.[34]The claimant stated in evidence that at the end of the encounter PV had become angry and stated in a raised voice “Ok, if that’s how you want it to be, we will see. Just you wait, we will see about this! Just you wait, if you want to play it like that, we will see what happens, just you wait”. PV denied this saying he had calmly said “Ok” and walked away.[35]DR, TM had heard second hand that this was a heated exchange with “raised voices on both sides”. In evidence DR described PV, MD as hard but fair – that he could come across as abrupt and forthright. DR thought PV would be angry with anyone who left the shellfish uncovered. He considered the claimant to be highly strung (this was not put to the claimant in cross examination). PV, MD said in evidence he (PV) expected things to be done properly and he is quite strong in what he says.[36]The claimant prepared a contemporaneous private note of their brief encounter on 12 April because “I am now worried that my job may be in danger”. The first three paragraphs of the note appeared to be his account of what happened during the encounter; the second two paragraphs appeared to be his comments on the implications of the encounter.[37]In his account of what happened the claimant noted: “At this point I got out of the back of the van and explained that I had not received any form of training in this area and I had not signed any documents relating to that fact. I told Paul that even if that's the way that its always been, if I hadn't been made aware of that fact then I could not be held accountable. At this point Paul became angry with me and raised his voice. Paul said OK if that's the way you want it that's fine, don't you worry that's fine we will see about that don't you worry”. The claimant believed he was at risk of dismissal following the encounter.[38]On 16 April the claimant raised a significant number of concerns with HSE . In it he noted “I have concerns for…my job security now that I have taken this step.” However the claimant (on the advice of his union) did not advise the respondent of his report to HSE or SBC. It was apparent that this concern in fact stemmed from the encounter on 12 April and prompted the claimant to “get my ducks in a row.”[39]In the circumstances it was considered likely that during their brief encounter on 12 April 2024 that PV told the claimant he should always transport the shellfish covered, that the claimant was defensive and aggressive in response stating he couldn’t be held accountable because he’d never had any training and that PV should check the training records, and that PV was abrupt and angry in reply stating words akin to “Ok, if that’s the way you want it, that’s fine, we’ll see about that” and walked away. It is considered likely that PV was annoyed by the claimant acting in an aggressive and defensive manner in a response to a simple instruction to always cover the shellfish. It was apparent that neither the claimant nor PV gave credible testimony regarding the tone of their brief encounter on 12 April and there was as DR had been told “raised voices on both sides”. Safe systems of work / Risk assessments on 12 April 2024[40]The claimant stated in evidence that on 12 April 2024 he stated “I haven't seen any safe systems of work or risk assessments since I've been here and I haven’t received any training". PV, MD denied that he mentioned safe systems of work or risk assessments.[41]The claimant prepared a contemporaneous private note of their brief encounter on 12 April. The note for 12 April 2024 made no mention of safe systems of work or risk assessments and the reference to training was to covering of crabs and not more generally (“not received any form of training in this area”).[42]On 16 April the claimant raised a written complaint with HSE raising a significant number of concerns including “No access to any risk assessments or formal safe systems of work for any particular work based task” and “no formal training or otherwise” in respect of a number of areas. None of those concerns raised pertained to food storage safety. On 29 April the claimant raised a written complaint with SBC raising a significant number of concerns including “No access to any risk assessment documents or safe systems of work” and “no training”. Again none of those concerns pertained to food storage safety.[43]In the circumstances it is considered likely that the claimant did not say anything about risk assessment or safe systems of work on 12 April 2024 during their brief encounter about the need to cover shellfish. And it is considered likely that his assertion regarding a lack of training pertained to need to cover shellfish and not to a general lack of training. Storage of wet fish on 12 April 2024[44]The claimant stated in evidence that on 12 April 2024 he had asked by PV, MD “Why is it that I need to cover the crabs when loads of fish from the West are kept in the van overnight without refrigeration to be sold the next day for human consumption." PV, MD denied that the claimant had said anything about the storage of wet fish.[45]The claimant kept a diary of the work he carried out. He noted that he had finished after 6pm on three dates during his first period of employment (22 and 29 August and 19 December 2023) and one date in his second period (13 February 2024). When he arrived before 6pm the fish would be taken into cold storage by the shop staff. After 6pm he understood that at times the fish were kept in the van overnight without refrigeration. The respondent has a whistleblowing policy. At no time during or after his first period of employment did the claimant raise any concerns with anyone regarding safe storage of fish.[46]The claimant prepared a contemporaneous private note of their brief encounter on 12 April. The first three paragraphs of the note appeared to be an account of what happened during the encounter; the second two paragraphs appeared to be his comments on the implications of the encounter. His observations about the storage of wet fish appeared in those comments and not in the account of what happened. When that was put to him in cross he said he didn’t include it because he didn’t recall it at the time but he had a better recollection now because he was less stressed. The respondent submitted that his explanation was absurd.[47]On 16 April the claimant raised a written complaint with HSE raising a significant number of concerns but that complaint did not contain any concerns regard the safe storage of fish. On 24 April 2024 HSE informed the Claimant they are unable to take his concerns forward and that he should report this to the local authority. On 29 April the claimant raised a written complaint with Scottish Borders Council (‘SBC’) raising a significant number of concerns but that complaint did not contain any concerns regard the safe storage of fish. (SBC were responsible for food safety and conducted site visits on a weekly basis).[48]In the circumstances it is considered likely that the claimant did not say anything about the storage of wet fish during the brief encounter on 12 April 2024. Broken damaged hinge on 15 April 2024[49]The claimant stated in evidence that on the day of the accident on 15 April 2024 he told DR, TM that he hit his head on the jagged hinge that had been damaged for some time, that he was not happy about health and safety and that if something is not done, someone is going to get hurt. DR, TM didn’t think that the claimant had mentioned a damaged or jagged hinge or mentioned health and safety.[50]On 15 and 16 April the claimant exchanged detailed texts with DR, TM and no mention is made of a damaged or jagged hinge or his concerns regarding health and safety.[51]The claimant prepared a contemporaneous private note of the incident on 15 April. The first 4 paragraphs describe the incident including “my forehead struck the side of the van where there had been some previous damage as shown in the photos” but no reference was made to a hinge. The following 3 paragraphs describe the aftermath including his contact with DR, TM which states he hold him about the accident but no reference is made to him raising issues with a damaged or jagged hinge or his concerns about health and safety.[52]On 16 April the claimant raised a written complaint with HSE including “I have been involved in an accident with a fault pump truck resulting in time off work and 2 instances of slips and falls one very recently involving a large cut to my forehead”. The complaint did not mention a broken or jagged hinge.[53]On 29 April the claimant raised a written complaint with Scottish Borders Council including “I slipped on the bump bar and fell on to an exposed piece of jagged steel caused by damage to the door hinge. I hit my head on the jagged metal and received a deep laceration to my head and subsequent concussion”. The respondent was not advised of that complaint. The claimant then raised a personal injury claim prior to commencing tribunal proceedings.[54]The claimant lodged in evidence photographs taken at the time of the accident which show the right hand side rear edge of the van which is covered by a rubber seal expect for a section where the rubber seal has been damaged and the exposed metal edge has rusted and become jagged. Next to that section is a metal catch which sticks out to catch the rear door when open. The catch could reasonably be described as a hinge but the exposed metal section could not. The exposed metal section could reasonably be described as jagged but the catch could not. Whilst it was apparent from those photographs that the rubber seal and exposed edge was damaged, the catch was not and protruded by design. The photographs show a deep cut to his forehead. Having regard to the evidence it is considered likely that the deep cut was caused by the claimant hitting his head on the catch which protruded from the side of the van and was neither damaged nor jagged.[55]In these circumstances it is considered likely that on 15 April 2024 the claimant told DR that he had cut his head on the side of the van but did not say to him that a part was jagged or damaged or say he was unhappy about health and safety. Reason for dismissal on 30 April 2024[56]PV, MD and DR, TM gave evidence that the reason for his dismissal was the downturn in work and not any information disclosed on 12 or 15 April.[57]The claimant submitted that there was no hard documentary evidence about the downturn in work. The burden of proof is upon the claimant who did not offer evidence to the contrary; indeed the claimant accepted in crossexamination that there was an annual downturn in work from April to September. PV, MD gave detailed oral testimony about the seasonality in the fishing industry which evidence was accepted as credible and reliable.[58]The claimant submitted that the respondent failed to follow the redundancy process detailed in their handbook. There was however no evidence that they ordinarily followed that process; indeed the evidence was that they didn’t follow that process for any of the staff who were made redundant at the same time as the claimant.[59]PV, MD gave evidence that he formed the view in consultation with DR, TM that the claimant should be selected for redundancy in part because the claimant was the shortest serving driver and in part because he only drove the local deliveries whereas the other drivers covered the international deliveries. DR, TM gave evidence that he had not been consulted on the decision to dismiss.[60]DR, TM gave evidence that they had noticed that they were managing without the claimant during his sick absence because other staff could cover his runs. PV, MD was aware of this presumably from DR, TM. DR, TM also gave evidence that the claimant only drove the local deliveries whereas the other drivers covered the international deliveries. PV, MD was aware of this presumably from DR, TM. Whilst the final decision was taken by PV, MD, it was apparent that there had been prior discussion with DR,TM about the surrounding circumstances.[61]The inconsistency in their evidence about whether or not DR, TM was consulted by PV, MD on the decision to dismiss may have arisen from a difference of opinion as to whether a discussion about the surrounding circumstances amounted to consultation on the decision to dismiss and in any event may have been affected by the passage of time (there were no notes of their discussions which happened nearly 1 year ago). In the circumstances it was considered likely that PV, MD had consulted with DR, TM about the selection for redundancy in the sense of having prior discussion with him about the surrounding circumstances before reaching his decision. The law Protected disclosure
The law
[62]Under Section 43A Employment Rights Act 1996 (‘ERA’) a protected disclosure is a qualifying disclosure made by a worker to his employer (Section 43C) or to a prescribed person (Section 43F). The burden of proving a protected disclosure rests upon the Claimant.[63]Under Section 43B ERA 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 relevant wrongdoing including “(d) that the health or safety of any individual has been, is being or is likely to be endangered.” Disclosure of information[64]The disclosure must be an effective communication of information but does not require to be in writing. The disclosure must convey information or facts, and not merely amount to a statement of position or an allegation (Cavendish Munro Professional Risks Management Ltd v Geduld 2010 IRLR 38, EAT). However an allegation may contain sufficient information depending upon the circumstances (Kilraine v Wandsworth London Borough Council [2018] ICR 1850, Court of Appeal). Reasonable belief[65]The worker must genuinely believe that the information disclosed tended to show relevant wrongdoing and also that the disclosure of the information was in the public interest. This does not have to be their predominant motivation for making the disclosure (Chesterton Global Ltd v Nurmohamed [2018] ICR 731, Court of Appeal). Their genuine belief must be based upon reasonable grounds. This depends upon the facts reasonably understood by the worker at the time. Relevant wrongdoing – (d) health or safety endangered[66]There must be a disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show that that the health or safety of any individual has been, is being or is likely to be endangered i.e. put at risk of harm. In the public interest[67]There must be a disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest.[68]The worker must genuinely believe that disclosure is in the public interest. That belief must be based upon reasonable grounds which may be easier to satisfy where the wrongdoing amounts to a criminal offence or an issue of health and safety. Where the worker has a personal interest in the relevant wrongdoing, it may be relevant consider the number of other workers affected, the nature and importance of the interest, and the identity of the wrongdoer (Chesterton). Automatically unfair dismissal[69]Under section 103A ERA an employee who is dismissed shall be regarded 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.[70]The reason for dismissal is a set of facts known or beliefs held which operate on the mind of the decision maker and causes them to make the decision (Abernethy v Mott Hay and Anderson [1974] ICR 323, Court of Appeal). The issue is what consciously or unconsciously was the reason why the decision maker took the decision to dismiss. Where a decision maker is misled or manipulated by someone more senior within the employer’s hierarchy of responsibility in pursuit of a hidden reason, that hidden reason should be attributed to the decision maker (Royal Mail Group Ltd v Jhuti [2020] ICR 731, Supreme Court).[71]It is not sufficient if the protected disclosure was merely a subsidiary reason to the main reason for dismissal. The principal reason test for automatically unfair dismissal is therefore more difficult to satisfy than the material influence test for detriment.[72]If the employee lack sufficient qualifying service to bring a claim for ordinary unfair dismissal, the burden of proving the reason or principal reason is upon on the employee. Discussion and decision Public interest disclosure (Section 47B Employment Rights Act 1996) Did the Claimant make a disclosure of information?[73]It was a found as a fact that on 12 April 2024 the claimant advised PV, MD that he hadn’t received any training about always covering the shellfish. Contrary to the claimant’s submissions, he did not make any statements regarding safe systems of work or risk assessments or a lack of training generally or wet fish being kept in the van overnight without refrigeration.[74]It was a found as a fact that on 15 April 2024 the claimant advised DR, TM that he had slipped putting his foot on the bumper when entering the van and hit his head on the side of the van causing a deep cut to his forehead. Contrary to the claimant’s submissions, he did not say to him that a part of the van was jagged or damaged or that he was unhappy about health and safety. In the reasonable belief of the claimant did the disclosure of information tend to show endangerment to health or safety?[75]The claimant had received on the job training about covering of shellfish which he regularly transported. He understood that the shellfish didn’t need covered in winter when the fridge wasn’t running. PV told him “you should always use a sheet because that’s the way it’s always been”. The claimant told PV “I have not received any form of training in this area and I had not signed any documents”; “even if that’s the way it’s always been, if I hadn't been made aware of that fact then I could not be held accountable.” Contrary to his submissions, the claimant did not reasonably believe that his statement “I had not received any form of training in this area” (to always cover the shellfish) tended to show endangerment to health or safety. What the claimant believed was that it tended to show he could not be held accountable because he had not been trained “and I had not signed any documents relating to that fact”. It was apparent that the claimant did not believe that not being trained to always cover shellfish gave risk to a risk to health or safety because he did not include it within the concerns he raised externally with HSE and then to SBC shortly thereafter. None of the concerns raised externally pertained to covering of shellfish or to food storage practices or to a lack of training in those areas.[76]The information disclosed by the claimant on 15 April 2024 was that he had sustained an injury at work because he slipped on the bumper when entering the van. The claimant had disclosed information which he reasonably believed showed his health or safety had been endangered by his system of entering the van. In the reasonable belief of the claimant was the disclosure of information made in the public interest?[77]On 12 April 2024 the claimant advised PV, MD that he hadn’t received any training about always covering the shellfish. Contrary to his submissions, the claimant did not believe that not being trained to always cover the shellfish tended to show endangerment to health or safety and as such he did not believe that that this disclosure was made in the public interest. It was made solely in the interest of him not being held accountable for not always covering the shellfish.[78]The information disclosed by the claimant on 15 April 2024 was that he had sustained an injury at work because he slipped on the bumper when entering the van. The claimant had disclosed information which he reasonably believed showed his health or safety had been endangered and he reasonably believed that telling the transport manager was necessary to fulfil their RIDDOR obligations and in pursuance of the health and safety of other workers. Automatically unfair dismissal (Section 103A) Was the sole or principal reason for the Claimant’s dismissal that he had made a protected disclosure?[79]In mid-April PV, MD reviewed the management accounts and considered that savings required to be made because of a downturn in work (which reflected the annual seasonal downturn). It was apparent to DR, TM that they were managing without the claimant during his sickness absence in April because his work could be covered by other drivers. PV, MD consulted with DR, TM and concluded that they could manage with one less driver. The claimant was selected for redundancy because he was the shortest serving driver and, unlike other drivers, he didn’t do the international deliveries. Two other employees, who worked as Production Operatives, were also selected for redundancy and were dismissed shortly thereafter. The two other employees were advised of the possibility of work in the future but the claimant was not (other than as a trainer).[80]Whilst PV, MD had been annoyed by their brief encounter on 12 April, there was no reasonable basis upon which to infer that this was the principle reason for his dismissal on 1 May. In any event he had been annoyed by the manner of the claimant’s assertion (he was defensive and aggressive in stating that he couldn’t be held accountable and that PV should check the training records) rather than the content of the assertion (that he hadn’t received training about always covering the shellfish). Furthermore that assertion did not amount to a protected disclosure in the circumstances.[81]Whilst the claimant’s sick absence from work following his injury had a bearing on the decision to dismiss (it caused them to conclude they could manage without him), contrary to the claimant’s submission, there was no reasonable basis upon which to infer that the reporting of his accident at work had any bearing on the decision to dismiss. It is a legal requirement to record and report injuries and the respondent has an accident book for that purpose. After reporting his injury on 15 April, DR, TM was concerned and supportive of the claimant and staff were given training on entering the van safely. Contrary to the claimant’s submission, the chronology does not evidence the reason – the decision to dismiss the claimant took place in light of his sick absence rather than immediately after his disclosure.[82]The principle reason for the claimant’s dismissal was because of the downturn in work, his length of service, and that he didn’t do international deliveries. These were the factors that operated on the minds of PV, MD who took the decision and DR, TM with whom he consulted. It was not because he had made a protected disclosure.
Conclusion
[83]The complaint of automatically unfair dismissal by reason of protected disclosure does not succeed and is accordingly dismissed.