Man dismissed from British Legion bar over health and safety disclosures awarded over £21,000

About this case:

• Citation:
  8000147/2024
• Judgment:
  External link
• Court:
  Employment Tribunal (Scotland)
• Judge:
  Employment Judge A Kemp

It was further claimed by James Berrie that the respondent had made unauthorised deductions from his wages and not provided a statement of changes to his employment when it cut his hours to a quarter of what they were. A response to the claim was struck out by the Tribunal on the basis that no acceptable reason was given not to find that the claimant’s dismissal was unfair.

The case was heard by Employment Judge Alexander Kemp. The claimant appeared in person, with the respondent making no appearance.

Detriment due to whistleblowing

From 1 October 2009 to 18 October 2023, the claimant was employed by the respondent as an assistant bar manager.  From in or around July 2023 the claimant reported to the chairman of the respondent concerns that he had relating to the bar manager, including as to health and safety. His reports included that items, including large items, were being left blocking exits, which was a risk in the event of fire, and that other items left were a trip hazard, especially for customers known to be partially sighted.

On 14 September 2023 the claimant was suspended from work on allegations of bullying and harassment. That was confirmed by letter from the respondent dated that day. The next day, the claimant went on a pre-arranged three-week holiday, which he did not enjoy due to his suspension.

At a meeting with the new chairman on 15 October 2023 and by letter, the claimant was informed that he was to receive a written warning to last for six months in relation to an alleged health and safety matter. He was also informed orally that his hours of work would reduce from 20 per week to just five per week.

The claimant terminated his employment on 18 October 2023 with immediate effect, stating that he believed he had suffered detriment due to whistleblowing. In his Schedule of Loss, the claimant stated he had been unemployed until 18 November 2023, when he took a new job in Montrose with fewer hours than his previous position and a much longer commute, going from six miles per week to 28 miles per day.

Series of failures

In his decision, Employment Judge Kemp said of the evidence: “I was satisfied that the claims were within the jurisdiction of the Tribunal and that the claimant was a credible and reliable witness. There was no defence to the claims given the strike out of the response, but it did seem to me appropriate to enquire as to the circumstances that led to the claimant resigning and what he claimed were protected disclosures.”

He continued: “Having done so I was satisfied that the claimant had a reasonable belief that there were issues of health and safety from the blocking or partial blocking of exits that could be a risk in the event of fire, and that he had a reasonable belief that that was in the public interest when disclosing them orally. There was then a suspension, a warning and a reduction of hours. The sequence of events led to the possibility of an inference being drawn that his raising the disclosure was the sole or principal reason for the events on 14 September 2023 [and onwards], and the absence of a defence results in that inference being made.”

Considering the component parts of quantum, Employment Judge Kemp said: “In the circumstances of a series of failures, the lack of any appropriate process, and the imposition of a warning without giving the claimant notice of the allegation, the evidence in support of it, an opportunity to comment on it or to be accompanied at the disciplinary hearing, I consider that it is appropriately assessed at the full 25%. This increases the awards for the basic and compensatory awards to £3,640.80 and £6,798.05 respectively.”

He added on injury to feelings: “Whilst I am satisfied that he was upset by these events and in particular what was a dismissal, he did find new employment reasonably quickly, no medical assistance was sought, and it seems to me, from the evidence I heard, that the award should be at the higher end of the low band.”

The Employment Judge concluded: “For completeness I should add that I was concerned at the apparent disregard for basic provisions of employment law on the part of the respondent. I did consider whether to impose a financial penalty under section 12A of the Employment Tribunals Act 1996 in light of that, but have, on a narrow margin, decided against doing so.”

The claimant was awarded the sum of £21,039.29, comprising the basic and compensatory awards plus £10,000 for injury to feelings, £485.44 for the lack of a statement of changes to particulars, and £115 for unauthorised deductions to wages.