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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O'Hara v Red Sky Group Ltd [2009] NIIT 134_09IT (11 September 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/134_09IT.html
Cite as: [2009] NIIT 134_09IT, [2009] NIIT 134_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 134/09
CLAIMANT: Ronan O’Hara
RESPONDENT: Red Sky Group Ltd
DECISION
The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal for making protected disclosures is dismissed
Constitution of Tribunal:
Chairman: Mr Wimpress
Panel Members: Mr Lowden
Mr Grant
Appearances:
The claimant appeared on his own behalf.
The respondent was represented by Miss Patricia Grant.
The Claim and the Response
1. The claimant’s claim is about his alleged unfair dismissal from his job as payroll manager with the respondent for raising matters which he claimed amounted to protected disclosures.
2. The claimant commenced employment with the respondent on 23 May 2008 and his employment ended on 18 September 2008. In these circumstances the claimant would not ordinarily have sufficient qualifying service to bring a claim of unfair dismissal but his claim form gave rise to a possible claim of protected disclosure which, if sustainable, would not require the normal qualifying period of one year.
3. In his claim form, the claimant relied on five matters that arguably amounted to protected disclosures. These may be summarised as follows:
(1) He objected to monies being deducted from employees’ wages without their consent.
(2) He asked questions about phantom employees and the employment of family members.
(3) He raised issues about the provision of company cars without informing the Inland Revenue.
(4) He objected to open discussion about loyalist terrorists.
(5) He objected to Margaret Campbell’s comments about foreign workers and the disabled.
4. In its response, the respondent provided a commendably detailed history of the events leading to the claimant’s dismissal and indicated that the claimant was dismissed because he had failed to complete a satisfactory probationary period, in other words a capability dismissal under Article 130 (2) (a) of the Employment Rights (Northern Ireland) Order 1996. The respondent did not recognise that the claim embraced a potential protected disclosure aspect and therefore did not directly join issue on this topic but did take issue with the factual basis of certain allegations.
Sources of Evidence
5. The tribunal heard evidence from the claimant and from Mrs Linda Given and Miss Patricia Grant. The tribunal also received an agreed bundle of documents.
The Issues
6. (1) Whether the claimant has made out a protected disclosure claim.
(2) In the event that the claimant has made out a protected disclosure claim,
whether he was unfairly dismissed.
The Facts
7. The respondent is a facilities maintenance company with 450 staff which is
responsible for the maintenance of community property and social housing. The business is based at Grove Street East, Belfast. It has a strong family basis. In particular Mrs Linda Given was responsible for overseeing the payroll function, human resources, health and safety, insurance and property matters. Her sister, Mrs Margaret Campbell worked in the payroll section. The claimant was recruited by the respondent as a payroll manager and took up employment on 23 May 2008. The claimant’s appointment was made subject to the satisfactory completion of a three month probationary period.
8. At an early stage of his employment Mr McCulloch took the claimant on an induction tour of the respondent’s premises. In the course of the tour the claimant came across what he described as an Orange Order calendar in a security hut. Mr McCulloch informed Mrs Given about this who undertook to investigate the matter. Miss Grant was sent to the hut by Mrs Given and discovered that the object in question was a postcard of an Orange Arch rather than an Orange Order calendar and it was removed immediately. In his evidence to the tribunal, the claimant accepted that it was a postcard.
9. At an early stage of his employment, the claimant suggested improvements to the system for reimbursing employees in respect of small cash disbursements that were made by them for items such as tool belts. The value of such individual items would have been no more than £20.00 per item. The respondent was receptive to the claimant’s suggestion and adopted his proposal. The respondent’s accounts were audited by Messrs Grant Thornton an annual basis and nothing untoward was drawn to the respondent’s attention. Nor were the respondent’s practices the subject any unfavourable comment by the Inland Revenue.
10. On 25 August 2008 the claimant availed of sick leave which was occasioned by the sad death of his girlfriend’s son who had committed suicide. The claimant did not return to work until 8 September 2008. He spoke briefly with the company secretary, Mrs Given, who was his line manager about reducing his hours of work. It is common case that Mrs Given did not offer the claimant any sympathy about his recent bereavement. At approximately 11.00 am the claimant informed Mr McCulloch, the Human Resources Manager, that he was going home as he felt unable to work.
11. On the same day, Mr McCulloch wrote to the claimant and invited him to a probationary review meeting with Mrs Given, on 11 September 2008 at 10.00 am. The claimant responded by letter dated 10 September 2008 and advised that he would not be attending as he was on sick leave. The claimant also complained about the lack of sympathy in respect of his situation and pointed out that it had been agreed that he would be paid at an increased rate on satisfactory completion of his probationary period and that as his last payslip showed this increase he assumed that everyone was satisfied.
12. Mrs Given decided to go ahead with the probationary review in the claimant’s absence and on 11 September 2008. The outcome of the review was set out in a probationary review document in which Mrs Given found fault with the claimant’s performance. The document was entitled ‘Review of Performance during Probation Period’ and rated various aspects of performance as either excellent (A), Exceeds Expectations (B), Good (C), Requires Improvement (D) and Unacceptable (E). The claimant was given four Cs in respect of Communication Skills, Co-operation, Approach to Managers and Colleagues, and General Attitude, six Ds in respect of Job Knowledge, Punctuality/Absenteeism, Teamwork, Progress with Schedule, Personal Contribution and Quality of Work, and one E in respect of Management of Work. The document concluded with comments which highlighted the need for the claimant to effectively manage his workload and that Mrs Given was unable to confirm future employment at this time. The document also set improvements that were needed in summary form.
13. Mrs Given wrote to the claimant on 11 September 2008 and advised that as he had not reached the required standard of work or made satisfactory progress as Payroll Manager, she was terminating his contract with one week’s notice from 11 September 2008. A copy of the probationary review document was enclosed with the letter. Mrs Given advised the claimant that if he wished to appeal he should write to Mr McCulloch within five days and set out the reasons for the appeal. In his evidence to the tribunal, the claimant alleged that the respondent seized the opportunity of his absence on sick leave to dismiss him and that Mrs Given made up the reasons afterwards. Mrs Given’s evidence was that while she expected teething problems in the first month or so she became slightly less confident that the claimant was competent towards the end of the third month of his probationary period.
14. On 17 September 2008, the claimant emailed Mr McCulloch and stated that he wished to appeal against Mrs Given’s decision. The claimant also requested a breakdown of each of the scores in the probationary review document and reasons for the scores. As Mr McCulloch was off on sick leave, Miss Patricia Grant, the respondent’s Human Resources Advisor, replied on his behalf by letter on the same date and requested that the claimant attend an appeal hearing on 22 September 2008 which would be held in the Company Secretary’s office. Miss Grant further advised the claimant that he was entitled to be accompanied by a work colleague or trade union representative.
15. On 20 September 2008, the claimant sent a letter dated 18 September 2008 by email to Miss Grant and Mr McCulloch. In the letter the claimant stated that he did not feel that he could attend an appeal on that date in the Red Sky office and requested an alternative venue and date. The claimant further advised that he wished to have the meeting recorded as he wanted to put points to the respondent with regard to discrimination, racism, sectarianism and illegal payroll practices. The claimant also asked again for a breakdown of the reasons for his dismissal and queried why his pay was increased if his work was as unsatisfactory as indicated in the review document. The claimant asked if it was the case that he had to go into an environment where it was acceptable to openly discuss terrorist membership and whether he should expect a bullet in the post as well. The claimant concluded the letter with requests for a copy of the employee handbook, an explanation as to why as a manager he never received a travel allowance and questioned whether this was another example of discrimination.
16. Miss Grant replied by letter dated 22 September 2009 and suggested the Bel Air
offices in Dargan Crescent as an alternative venue and asked the claimant to confirm a date and time for the meeting. Miss Grant provided a breakdown of the reasons for the termination of the claimant’s contract and explained that the claimant had received a pay rise due to an oversight by Mrs Given and that she had instigated the claimant’s probation review when she later became aware of it. The breakdown of reasons read as follows:
“Job Knowledge
Inaccurate checking of J Veitch SSP entitlement potentially going to pay £430. Neil Burnside paternity pay entitlement – did not advise employee of most beneficial options.
Punctuality
W/C 4th August late every morning and did not make up time at end of day.
W/C11th August late every morning and did not make up time at end of day.
Teamwork
Did not assist or show any interest with TimeLog and issues attributed to it.
Limited assistance given with administration of weekly payroll.
Personal Contribution
No improvement in Payroll functioning as a result of additional resource.
Quality of Work
Errors made in the following
Emma McDowell deduction
Holidays not recorded accurately
Year to Date figures not entered
P45 details entered when dates were not concurrent – Simon Pickerill
This resulted in employee having no pay when error had to be rectified
Weekly payroll employees who were late had no time deducted
This totalled 28hrs paid out incorrectly
ROI processing and record keeping very poor as per Mags.
Management of Work
Pay Rates not implemented as per e-mail 14th August from P Gazzard
New start not put on Payroll as per e-mail from Scotland
Leavers not taken off after monthly payroll updated
P45’s not sent out to employees – HR had to follow up
Bank details left lying on top of desk
P45’s lying on top of desk
Monthly wage files lying on top of desk
Payment recovery files not being dealt with
Attachments not kept up to date
JBO forms not processed despite reminders
Amount of time spent on personal e-mails unacceptable
Paperwork organisation/filing very poor
Childcare vouchers late
Playing snooker when FD asked about a report @11.30am”
Miss Grant sent the claimant a copy of the current employee handbook separately by email on 23 September 2008.
17. On 23 September 2008, the claimant emailed Miss Grant and enquired about notice pay, travel payments for managers and indicated that once he had this in writing it would be easier to organise a meeting. The claimant also referred to the “whistleblower” section of the employee handbook and sought clarification as to whether he was any longer constrained by this section. This was the first and only time that the claimant used the term “whistleblower” in correspondence.
18. On 24 September 2008, the claimant emailed Mr McCulloch and asked for an explanation as to why an Orange Order calendar could be on display in an Equal Opportunities workplace and referred to a conversation between Mrs Margaret Campbell and an employee about UVF terrorism. The claimant stated that it amounted to gross misconduct and claimed that he had reported it to Mr McCulloch but at the time it was not worth making an issue of it to receive a bullet in the post. The claimant also asserted that he had lost his job for taking bereavement leave and stated that it would be interesting to see how Mrs Given disciplines her sister, whom he believed, would by now have been installed in the claimant’s job. The claimant concluded the email by saying that he had still not received an answer to his queries about notice and managers’ travel allowance.
19. It is now common case that there was in fact no Orange Order calendar on display in the main workplace but that there was a postcard of an Orange Arch is a disused security hut which the claimant saw and commented on during an induction tour given by Mr McCulloch.
20. On 24 September 2008 the claimant spoke with Mr McCulloch by telephone and indicated that he would not be attending an appeal meeting.
21. On 29 September 2008, Mr McCulloch replied by letter to the claimant’s email of
24 September and asked him if he still wanted to pursue an appeal in light of their telephone conversation on 24 September 2008. In the same letter, Mr McCulloch addressed the claimant’s letter of 18 September 2008 in which he stated that he wished to raise issues about discrimination, racism, sectarianism and illegal payroll practices. Mr McCulloch pointed out that he needed the claimant’s agreement to investigate these matters under the modified grievance procedure as they were not raised until after the claimant had left the respondent’s employment together with details of his specific grievances.
22. On 8 October 2008, the claimant sent a lengthy email to Mr McCulloch and Miss Grant in which he set out in detail the matters that he wanted investigated. The email also set out the claimant’s response to the review document and may be summarised as follows:
(1) No monies were paid out to the employee in question, Mr Veitch, in respect of statutory sick pay because the claimant realised that Mrs Given and Mrs Campbell had made a mess of it before the cheque was sent out.
(2) The claimant alleged that Mrs Given asked him if something could be done with Mr Burnside’s leaving date so that he could claim statutory sick pay. The claimant refused to have anything to do with making a false statutory payment.
(3) The claimant accepted that he was late a few mornings and suggested that the appropriate way to deal with it was to dock his pay or to take into account the days on which he worked over his normal hours which included a week where he had to do the payroll by himself.
(4) In relation to teamwork, the claimant complained that the timelog system that Mrs Given said that he showed an interest in was “a rubbish timelog system” which Mrs Given admitted was installed by “a cowboy on the cheap”.
(5) The claimant attributed his alleged failing in respect of providing limited assistance with the weekly payroll, to his refusal to take orders from Mrs Margaret Campbell who excluded him from discussions about payroll and the claimant queried what input she made to the department.
(6) With regard to the training of staff, the claimant complained that Mrs Linda Given refused to allow him to go on a training course and claimed that he had provided training to Mrs Margaret Campbell as to how to utilise Microsoft Outlook and to Mrs Campbell and another employee as to the higher functions of the Sage system.
(7) In relation to his personal contribution, the claimant stated that he had improved the payroll functioning and that illegal deductions of wages were no longer being made as he had introduced a payroll recovery form to enable monies to be retrieved from employees legally.
(8) With regard to the quality of work, the claimant believed this comment referred to a late payment and blamed the postal service for the delay and to shortcomings that occurred during a week when the claimant was left to do the work of three people which he attributed to Mrs Linda Given’s bad management in permitting two members of staff to book holidays at the same time. The claimant also had no training or experience in doing the Republic of Ireland payroll and there were problems with the Sage system.
(9) As to management of work, the claimant asserted that items were left on his desk because Mrs Given did not provide either keys or new cabinets and in any event the office doors were locked every evening. The specific items left on the desk were monthly items which the claimant left organised on his desk over the weekend with a view to attending to them on the following Monday but that in the event he was off work on the Monday due to the bereavement.
23. The factual basis of many of these contentions was disputed in evidence in
particular during Mrs Given’s cross-examination and these would no doubt have
been the subject of a lively discussion had the claimant pursed his appeal but he
did not and the matter went no further.
24. In his evidence to the tribunal the claimant elaborated on certain matters such as phantom employees. In particular, he made reference to Mr Norman Hayes, the managing director, having his mother on the company payroll. It emerged from the evidence that Mr Hayes paid his mother to do cleaning duties on properties that he owned and to make the arrangements for formal dinners. Mr Hayes’s son, Steven Hayes also did some work for the respondent. The claimant gave evidence that he raised this issue with Mr McCulloch and Miss Grant in casual conversation but accepted in evidence that there was nothing wrong with the respondent employing them.
25 With regard to alleged comments about foreign workers and the disabled Miss Grant, in her evidence to the tribunal, was adamant that Mrs Campbell never made any untoward comments about foreign workers. Mrs Given also gave evidence that that Mrs Campbell would not have made any inappropriate comment about the disabled as her other sister, Mrs Downey, suffers from a very serious disability.
26. We also heard evidence from Miss Grant about discussion in the office about the membership of terrorist groups. According to Miss Grant, this arose in the context of a conversation about monitoring returns and the comments were made by an older employee who did not appreciate that it was not appropriate to have such discussions in the workplace. When this was drawn to her attention by the claimant Miss Grant spoke to the employee in question and informed him that that such talk was unacceptable. The claimant was not however informed that this action had been taken.
Submissions
27. At the conclusion of the hearing both the claimant and the respondent’s representative made brief submissions. As a consequence of neither party having the benefit of legal representation, neither party sought to make any substantial submissions as to the relevant law which is unfortunate as this area of law is not free from difficulty. In making this observation we do not seek to criticise either party and we bear in mind that the employment tribunal system as originally conceived was intended to be a forum to which the ordinary citizen could have recourse without the intervention of lawyers.
28. The Law
The Public Interest Disclosure (Northern Ireland) Order 1998 came into force in Northern Ireland in 1998 in order to provide corresponding legislative provision to the Public Interest Disclosure Act 1998 in England and Wales. This Order amended the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) to protect workers who disclose certain kinds of information in the public interest from being dismissed or penalised as a result of the disclosure. The relevant provisions are contained Articles 67A, 67B, 67C, 70B, 130 and 134A of the 1996 Order and are as follows:
130. — (1) In determining for the purposes of this Part whether the dismissal of an
employee is fair or unfair, it is for the employer to show—
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it—
(a) relates to the capability or qualifications of the employee for performing
work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant, or
(d) is that the employee could not continue to work in the position which he
held without contravention (either on his part or on that of his employer)
of a duty or restriction imposed by or under a statutory provision.
(3) In paragraph (2)(a)—
(a)capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and
(b)“qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.
(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a)depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
67A. In this Order a “protected disclosure” means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Articles 67C to 67H.
67B. — (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, 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 sub-paragraphs has been, is being or is likely to be deliberately concealed.
(2) For the purposes of paragraph (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.
(4) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.
(5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within sub-paragraphs (a) to (f) of paragraph (1).
67C. — (1) A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure in good faith—
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates solely or mainly to—
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer has legal responsibility, to that other person.
(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.
70B. — (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(2) this Article does not apply where—
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of [Part XI]).
(3) For the purposes of this Article, and of Articles 71 and 72 so far as relating to this Article, “worker”, “worker's contract”, “employment” and “employer” have the extended meaning given by Article 67K.
134A -- An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.
29. It can be seen that Article 70B is an important enforcement provision as it prohibits a worker to being subjected to any detriment on the ground that he has made a protected disclosure. However, in a case such as the present where the employee was dismissed, the 1996 Order provides at Article 134A that such a dismissal shall be regarded as automatically unfair if the reason or the principal reason for the dismissal is that the employee made a protected disclosure. The 1996 Order provides a broad definition of “protected disclosure” at Article 67B which extends to “any disclosure of information”. A qualifying disclosure must however fall within the statutory categories of disclosure set out at Article 67B (1) (a) – (f). The worker needs to show that he has no more than a reasonable belief that the disclosure of the information tends to show one of the statutory categories of what is termed in Article 67B(5) as “the relevant failure”. Thus the fact that allegations made are not factually correct is not sufficient to defeat a public interest disclosure claim.
30. The colloquially named “whistle-blowing” provisions were designed to encourage and protect employees who report concerns about malpractice in the workplace and elsewhere. There have been a number of cases in which the legal issues arising from public interest disclosures have been considered by the courts. The leading case in this sphere is the Court of Appeal’s decision in Babula v Waltham Forest College [2007] EWCA Civ 174, [2007] IRLR 346 in which Lord Justice Wall held that the correct approach is as follows:
“An Employment Tribunal hearing a claim for automatic unfair dismissal has to make three key findings. The first is whether or not the employee believes that the information that he is disclosing meets the criteria set out in one or more of the subsections in [the Employment Rights (NI) Order 1996, Article 67B(1)(a) to (f)]. The second is to decide, objectively, whether or not that belief is reasonable. The third is to decide whether the disclosure is made in good faith.”
Lord Justice Wall went on to say that the word “belief” is clearly subjective but that it must be reasonable and cited with approval the decision of the Court of Appeal in Street v Derbyshire Unemployed Worker’s Centre [2004] EWCA Civ 964, [2004] IRLR 267 in support of this construction on the basis that the concept of “good faith” added an important element which protected employers.
In Kuzel v Roche Products Ltd [2007] IRLR 309, EAT, the Employment Appeal Tribunal in an appeal which focused on the burden of proof in such cases suggested the following approach –
(1) Has the claimant shown that there is a real issue as to whether the reason put forward by the respondent, some other substantial reason, was not the true reason? Has [he] raised some doubt as to that reason by advancing the [Article 134A] reason?
(2) If so, has the employer proved his reason for dismissal?
(3) If not, has the employer disproved the [Article 134A] reason advanced by the claimant?
(4) If not, dismissal is for the [Article 134A] reason.
In answering those questions it follows:
(a) that failure by the respondent to prove the potentially fair reason relied on does not automatically result in a finding of unfair dismissal under [Article 134A];
(b) however, rejection of the employer’s reason, coupled with the claimant having raised a prima facie case that the reason is [an Article 134A] reason entitles the tribunal to infer that the [Article 134A] reason is the true reason for dismissal, but
(c) it remains open to the respondent to satisfy the tribunal that the making of the protected disclosures was not the reason or principal reason for dismissal, even if the real reason as found by the tribunal is not that advanced by the respondent;
(d) it is not at any stage for the employee (with qualifying service) to prove the [Article 134A] reason.
This approach was subsequently endorsed by the Court of Appeal [Kuzel v Roche Products Ltd [2008] EWCA Civ 380]. While we propose to adopt the approach commended by the Court of Appeal in Babula, we have found the Kuzel decision of
assistance. Based on the Employment Appeals Tribunal’s decision in Kuzel, the authors of Blackstone’s Employment Law Practice express the view at paragraph 29.27 that if an employee has less than one year’s qualifying service, the onus would be on him to prove that the reason fell within Article 134A. While this may well be correct we do not find in either necessary or helpful to decide this case on the basis of where the burden of proof lies.
Conclusions
31. The nature of the matters raised by the claimant potentially fall within Article 67B (1)(b), if anything, as, at face value, the matters complained of most closely resemble breaches of legal obligations.
32. In relation such matters as were raised by the claimant prior to his dismissal, we consider it important to note that there was no suggestion that the respondent in answer told the claimant that it was none of his business and there is no convincing evidence that the respondent took any adverse action against him because he had raised these matters. In addition, certain matters such as “phantom employees” were only raised in casual conversation with colleagues. It seems clear that the claimant was wont to discuss many things with colleagues and Mr McCulloch in particular. We cannot however accept that such casual conversations amount to protected disclosures.
33. The evidence clearly establishes that the claimant was dismissed at the end of his three month probationary period because his work was unsatisfactory. We therefore do not accept the claimant’s allegations that the respondent engaged in some sort of vendetta against him or seized the opportunity of his absence on sick leave to dismiss him. There may have been some substance in the claimant’s complaint that some of the comments made about his performance in the review document were not fully justified but this falls well short of establishing that the reason put forward by the respondent for the dismissal was not the true reason. Moreover, the claimant was free to take issue with the criticisms made in the review document but he did not pursue his appeal for reasons that we find unconvincing.
34. There is also a significant question mark against the claimant’s motives in raising the alleged protected disclosure matters. It is clear to us both from the contents of the claim form and the evidence that the primary catalyst for the claimant bringing these proceedings was the perceived lack of sympathy shown by Mrs Given to his bereavement. This calls into question the claimant’s good faith in both making the disclosures and bringing this case. At best, the claimant acted on the basis of mixed motives and we are therefore not satisfied that he acted in good faith. We should say in passing that although we have no reason to doubt that the claimant was severely affected by the death of his girlfriend’s son, we do not believe that the criticism made of Mrs Given is warranted.
35. We have also considered whether the claimant’s case of protected disclosure fails either in whole or in part due to the timing of the disclosure. It was Mrs. Given’s unchallenged evidence that the claimant did not draw to her attention the membership of loyalist terrorist groups being openly discussed or to inappropriate remarks being made about the disabled and foreign workers. Miss Grant gave similar unchallenged evidence. Furthermore, as appears from the correspondence, much of the detail only emerged after the claimant was dismissed. The other matters relied upon by the claimant were however raised by him prior to his dismissal and for reasons which we will explain, we do not regard them as public interest disclosures.
36. Our findings in relation to the claimant’s alleged protected disclosures are as follows:
(1) The claimant’s objection to monies being deducted from employees’ wages without their consent.
This matter was raised internally by the claimant and while the respondent maintained that it had the right to make deductions, it altered its procedures in response to the claimant’s concern. While this might be regarded as a breach of a legal obligation we do not see how the claimant could reasonably believe that it met the Article 67B (1)(b) criterion as the matter was rectified by the respondent and in these circumstances it cannot be properly be regarded as a protected disclosure.
(2) The questions raised by the claimant about phantom employees and the employment of family members.
While it would have fallen within the claimant’s remit as payroll manager to raise questions of this nature, we are satisfied on the basis of the evidence that the claimant did not raise this matter prior to his dismissal other than in a casual conversation with colleagues. The claimant also accepted that there was nothing illegal in the respondent employing family members and in these circumstances we cannot be satisfied that the claimant entertained a reasonable belief that there was any illegality in these arrangements and it cannot therefore be properly regarded as a protected disclosure.
(3) The issues raised by the claimant about the provision of company cars without informing the Inland Revenue.
We are satisfied that the claimant did not raise this matter prior to his dismissal and in these circumstances it cannot be properly be regarded as a protected disclosure. Although it is not strictly necessary for our decision we also are satisfied on the basis of the respondent’s evidence that that what in fact occurred was that cars were borrowed by staff from the company car pool from time to time. This was perfectly sensible and lawful practice.
(4) The claimant’s objection to open discussion about loyalist terrorists.
It was accepted by the respondent that some undesirable comments were made about such matters by an older employee who did not appreciate that it was unacceptable to have such discussions in the workplace. Remedial action was taken but this was not communicated back to the claimant. The claimant could also have pursued a grievance or complaint about this matter had he wished or initiated proceedings under the Fair Employment and Treatment (Northern Ireland) Order 1998. This does not in our view qualify as a protected disclosure. Although the claimant complained about an
Orange Order calendar during his induction tour, this was not raised by the claimant in the form of a possible protected disclosure until he emailed Mr McCulloch about it on 24 September 2008 some days after his dismissal. It is also significant that it does not feature in his claim form. The claimant also accepted in evidence that it was a postcard rather than a calendar. In these circumstances we cannot regard it as a protected disclosure
(5) The claimant’s objection to Mrs Campbell’s comments about foreign workers and the disabled.
We are not persuaded that Mrs Campbell made any untoward remarks about foreign workers or the disabled particularly as her sister suffers from a very serious disability. As indicated above a misapprehension of facts is not sufficient on its own to defeat a claim of protected disclosure. However, the information must tend to show that the employer has failed to comply with a legal obligation and the claimant has not come close to identifying the legal obligations that the respondent has failed to comply with other than in the broadest terms in his evidence to the tribunal and while we could without difficulty identify relevant potential legal obligations, the onus is on the claimant to do so notwithstanding that the authorities do not require an encyclopaedic knowledge of the law on the part of the claimant. It is also our view that the claimant’s contentions in this regard are far from being subjectively or objectively reasonable and are more properly to be regarded as fanciful.
37. We are not satisfied that the claimant‘s protected disclosure claim has been made out and therefore he does not enjoy the right to complain to an industrial tribunal of unfair dismissal. On the contrary, we are satisfied that the claimant was not unfairly dismissed because he had made a protected disclosure but on the grounds of capability under Article 130 (2) (a) and the claim is dismissed.
Chairman:
Date and place of hearing: 24 - 25 June 2009, Belfast
Date decision recorded in register and issued to parties: