Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 93/15

 

 

 

CLAIMANT: Colin McFarlane

 

RESPONDENTS: 1. Bombardier Aerospace, Short Brothers

2. Stephen Cunningham

3. Wendy Baillie

 

 

 

DECISION

The decision of the tribunal is that the claimant's claim is dismissed.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Murray

 

Members: Ms A Hamilton

Mr J McKeown

 

Appearances:

The claimant was represented by Ms M Gavin of Francis Hanna and Company Solicitors.

The respondent was represented by Mr P Bloch of EEF Northern Ireland.

 

1. The claimant's claim was that he was subjected to detriment because he had made a protected disclosure. At the outset of the hearing, the claims against the second and third respondents were withdrawn. The claims against them are therefore dismissed. The references to 'the respondent' in this decision relate only to the first-named respondent.

 

 

 

THE ISSUES

 

2. The issues for the tribunal were therefore as follows:

 

(1)           Did the claimant make a protected disclosure?

 

(2)           Was any such protected disclosure deprived of protection because a lack of good faith on the part of the claimant?

 

(3)           Was the claimant subjected to one or more of the detrimental acts alleged?

 

(4)           Was any detrimental act materially influenced by the fact that the claimant had made a protected disclosure?

 

SOURCE OF EVIDENCE

 

3. The tribunal had the written statements and oral evidence of the claimant on his own behalf and of the following witnesses for the respondent: Mr Michael Bingham, of Human Resources; Mr Stephen Cunningham, Product Assurance Manager; Mr Billy Hunsdale, Operations Team Manager. The tribunal also had an extract from the claimant's GP notes and records.

 

THE LAW

 

4. The Public Interest Disclosure (Northern Ireland) Order 1998 amended the Employment Rights (Northern Ireland) Order 1996 ("ERO") and introduced provisions protecting workers from suffering detriment on grounds of having made protected disclosures.

 

5. Article 70B of the ERO provides:

 

"A worker has the right not to be subjected to any detriment by any act or deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure".

 

6. Detriment is determined using the Shamoon test which is whether a reasonable worker would or might take the view in all the circumstances that the treatment was to the claimant's detriment in the sense of being disadvantaged.

 

7. The detriment suffered must be on the ground of having made a protected disclosure. In the Nagarajan 1999 IRLR 572 (HL) case the House of Lords sets out the correct approach which requires the tribunal to consider the mental processes of the respondent and the reason why detrimental acts or omissions occurred. The tribunal must consider the motivations of the respondent, whether conscious or unconscious. The key question is whether the detrimental acts or omissions were materially influenced by the fact that the claimant made protected disclosures.

 

8. In the case of Fecitt 2011 EWCA Civ 1190 it was found that, in whistleblowing detriment cases, the relevant provision is infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the employee.

 

9. Article 71(2) of ERO states in relation to whistleblowing detriment cases as follows:

 

"On a complaint under this Article it is for the employer to show the ground in which any act or deliberate failure to act was done".

 

10. The burden of proof in whistleblowing detriment cases therefore operates in the same way as it operates in Trade Union detriment cases. This is in contrast to discrimination cases generally where the initial burden is on the claimant to prove facts from which the tribunal could conclude that an act of discrimination occurred.

Thus the initial burden is on the claimant to prove that he made a protected disclosure and that he suffered detriment. If he proves those two elements the burden shifts to the employer to provide an explanation which is not tainted by the fact of the claimant having made protected disclosures.

 

11. The ERO provisions engaged in this case are as follows:

 

"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,..."

12. The meaning of 'information' is encapsulated in the following dictum by Slade J in the Geduld case as follows:-

 

"Further, the ordinary meaning of giving "information" is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating "information" would be "The wards have not been clean for the past two weeks. Yesterday, sharps were left lying around". Contrasted with that would be a statement that "you are not complying with Health and Safety requirements". In our view this would be an allegation not information".

 

13. The principles involved in assessing the reasonable belief element are outlined at Paragraph 3.25 of the text book authority namely Whistleblowing Law and Practice ( 2nd Edition) by Bowers Fodder Lewis and Mitchell (referred to below as Bowers). We summarise the principles as they relate to this case, as follows:-

 

(1) The test involves both a subjective test of the worker's belief and an objective assessment of whether the belief could reasonably have been held ( Babula).

 

(2)           The worker can be wrong yet still hold a reasonable belief ( Darnton).

 

(3)           The standard to be applied to whether a disclosure qualifies for protection has to take into account that it is only necessary to have a reasonable belief that the information 'tends to show' the relevant failure, rather than that it positively establishes that failure.

14. Good faith requires consideration of the motive of the person making the disclosure. A disclosure might therefore be in bad faith, by reason of an "ulterior motive", even though a worker reasonably believes that the information disclosed tends to show a relevant failure.

 

15. An ulterior motive is a motive for the disclosure that is other than in the public interest. Examples of ulterior motives which have been held to negate good faith are: personal antagonism, pursuing a personal campaign, and seeking to obtain a personal advantage.

 

16. The burden of proving that a disclosure was not made in good faith is on the employer. The standard of proof on this point is the balance of probabilities.

 

17. The authorities are clear that motivation can be a complex matter to assess and it is for the tribunal to look at all the circumstances as the question of whether a disclosure is made in good faith is a question of fact and that finding of fact is therefore fact-sensitive.

 

18. The claimant's side referred to the following authorities:

 

(1)           Norbrook Laboratories (GB) Limited v Shaw UKEAT/0150/13/RN

 

The Shaw case is an EAT decision where it was found that one or more communications taken together can amount to a disclosure. In Mr McFarlane's case the only disclosure relied upon was the written disclosure in the document of 23 November 2012.

 

(2)   Kilraine v London Borough of Wandsworth UKEAT/0260/15

 

In this decision Ms Gavin highlighted the following dictum of Mr Justice Langstaff:

 

"The dichotomy between "information" and "allegation" is not one that is made by the statute itself. It would be a pity if Tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined." (para 30)

 

FINDINGS OF FACT AND CONCLUSIONS

 

19. The tribunal assessed all of the evidence both oral and documentary and reached the following findings of fact on a balance of probabilities. Having applied the relevant legal principles to the facts found, the tribunal reached the following conclusions. It is important to note that this decision records the tribunal's primary findings of fact and does not seek to record all the competing evidence.

Case Management

20. This case was extensively case managed with six CMDs and a pre-hearing review (PHR) which was listed on the issue of res judicata. That PHR was vacated when the parties indicated that they had reached agreement as the claimant's case had narrowed from a list of 19 issues to four detrimental acts. It was therefore agreed at that point, well before our hearing, that numbers 1-15 in the "List of detriments" related to matters which had been the subject of previous proceedings which were withdrawn and dismissed by a decision of another tribunal.

 

21. During the claimant's evidence on the first day of our hearing, the claimant's side sought to rely on several matters which appeared to relate to the issues listed at numbers 1-15 in the list of detriments. In view of this, the case was adjourned on that day to enable the parties to attend a CMD on Thursday 28 April to apprise the Employment Judge of the extent to which there was a res judicata issue relating to any overlap between the previous claim, which had been dismissed, and the issues which the claimant sought to rely on in his claim before this tribunal. Due to developments on Wednesday 27 April 2016, the parties agreed that the case should be reconvened before the panel the following day in order to run on the substantive issues as agreement had been reached between them.

 

22. On the morning of the hearing on 28 April 2016 the claimant's side confirmed that the claimant, firstly, no longer sought to rely on 1-15 in that list and, secondly, no longer relied on one of the four remaining detriments in the list namely number 18 which states as follows:

 

"18. 4 ^th January 2015. Only operator who was taken off shift."

 

23. The claimant therefore abandoned his claim that he had been taken off shifts and had thereby suffered loss.

Disclosure and detriment

 

24. The claimant confirmed at the outset of the hearing that the protected disclosure relied upon is the following paragraph contained in his letter of 23 November 2012. The claimant specifically abandoned reliance on the document of 1 November 2012 and confirmed that the document of 23 November 2012 was the only one upon which he relied. In particular, the claimant relied on the following part of that document which contains the disclosure relied upon in these proceedings:

 

"Gross Misconduct

2:- Falsification of records for payment purposes

Historically this matter has been raised in the past with regard to overtime. This was in relation to an investigation that was carried out regarding anomalies evident in the clocking procedure (14/11/2008). However I was informed by HR that there was "no video evidence." This bears out my comment that malpractices have existed for years. However there is a more recent example of a falsified TARDIS form, and other behaviours observed, which would constitute Gross misconduct, which were relayed in a conversation was held in confidence between an employee and a manager."

 

25. The detrimental acts alleged to have been connected in the requisite way with the alleged protected disclosure reduced in our hearing to the following:

 

Detriment 1: 21.10.10 - Appeal hearing due to take place but cancelled. Delay in having his appeal dealt with;

 

Detriment 2: 05.11.14 - Reported to manager that several colleagues were making derogatory comments about him - nothing was done;

 

Detriment 3: 28.02.13-04.01.15 - No one-to-one procedure in new role.

 

General

26. The claimant was employed at the relevant time in a department where he worked with Mr Galway and Mr Scott. Mr McKee was the lead chargehand who was responsible for allocating overtime and this was a sensitive issue generally with staff because employees were keen to have as much overtime as possible. At a later stage the claimant was moved into Mr Hunsdale's team in a different division and at a different location.

The Grievances and disciplinary process

 

27. There were two formal grievances raised which meant that managers were dealing with them at the same time. The first was the claimant's grievance about the allocation of overtime. During the course of that process the claimant referred to falsification of overtime shown by Tardis forms. The second grievance related to issues the claimant's co-workers raised about the claimant being abusive and intimidating towards them.

 

28. The claimant raised his grievance relating to the allocation of overtime in his letter of 1 November 2012. There is no mention in that document of any alleged falsification of Tardis forms by anyone.

 

29. A grievance hearing to deal with the matters raised in the claimant's letter of
1 November 2012, was arranged for 23 November 2012. In that hearing the claimant produced a document which outlined a wide-ranging series of grievances one of which was the alleged protected disclosure. Most of those grievances related to alleged actions of Mr McKee but the specific allegation of falsification of Tardis forms did not mention him by name. It is this part of the document which was relied upon by the claimant as a protected disclosure as set out in paragraph 24 above.

 

30. The Tardis forms matter relates to two overtime sheets completed for 25 and 26 February 2012. The claimant contended that these documents, on their face, showed falsification by Mr McKee of his overtime for those dates due to discrepancies which are apparent on the documents. There were also similar discrepancies on those documents relating to other employees.

 

31. On 16 January 2013 the claimant met Mr Cunningham and Ms Baillie of HR in relation to grievances raised by the claimant's co-workers, Mr Galway and Scott about him. Those co-workers had raised issues verbally on several previous occasions and they then met Mr Cunningham and Ms Baillie on 8 Jan 2013 to outline their issues with the claimant in relation to alleged abusive language and intimidating behaviour by him towards them.

 

32. Following an aggressive altercation between the claimant and Mr Galway on 25 January 2013, Mr Cunningham with Mr Spence spoke to the claimant, Mr Galway and to Mr Scott who was the witness to the altercation. The claimant admitted to Mr Cunningham that he had called Mr Galway a "lazy bastard" to his face. Mr Cunningham then decided that the claimant should be suspended to "defuse the situation" and he decided that the claimant should be subjected to disciplinary proceedings. Mr Galway was not suspended. The claimant's suspension continued until 27 February 2013.

 

33. Following the altercation on 25 January 2013 and the suspension of that date, there was a meeting on 21 February 2013 when the claimant was given the grievance outcome relating to his grievance of November 2012 about allocation of overtime. In that outcome meeting Mr Cunningham and Ms Baillie confirmed that there was no evidence to take any action against Mr McKee. As regards the Tardis forms, we accept Mr Cunningham's evidence that his conclusion was essentially that the matter had been previously investigated in May 2012 by him and was therefore concluded.

 

34. The claimant appealed against the outcome of his grievance about the allocation of overtime by letter of 24 February 2013 and the appeal meeting took place on 30 May 2013 with Mr Lamont and Ms Claydon. The claimant agreed in evidence that he received the outcome to that grievance and his contention to us was that the issue he raised about falsification of overtime was not dealt with.

 

35. On 10 April 2013 and 20 June 2013 there were investigatory meetings relating to the grievance by Mr Scott and Mr Galway against the claimant. An 11-page report was produced on 24 September 2013 by Mr Cunningham and Ms Baillie and it recommended disciplinary action against the claimant. That report specifically rejected the claimant's contention that Mr McKee was "orchestrating" events against him.

 

36. The report of 24 September 2013 is comprehensive having been compiled following a series of interviews with relevant individuals. The report sets out under the heading "Context" the claimant's complaint of 1 Nov 2012 about the allocation of overtime by Mr McKee. We find nothing untoward in this reference as it was necessary in order to make sense of the later allegations against the claimant from Mr Scott and Mr Galway as they relate, in part, to his comments to them about
Mr McKee and to alleged pressure by the claimant on them both to become involved as witnesses for him in this grievance. It is significant that these events predate the protected disclosure relied upon ie the document of 23 November 2012 when the falsification issue was first mentioned.

 

37. The report therefore shows that Ms Baillie and Mr Cunningham: spoke to everyone involved; spoke to the claimant and went back to the others to put his points to them; took account of the claimant's admission of using abusive language (more than once) to both men; and weighed up all the evidence before them to find that some aspects of the grievance were well-founded and that other aspects were not well-founded. The issue for us in this case is whether there is anything in the report to cast doubt on the explanations for any later adverse treatment by Mr Bingham and Mr Hunsdale.

 

38. We find nothing in that report to lead us to doubt the veracity of the reasons put forward by both men for impugned decisions. Our analysis of the report does not lead us to a conclusion that the reasons given for later acts by other individuals were tainted by the fact the claimant had made a protected disclosure.

 

39. In the grievance against the claimant the respondent's managers were faced with: 2 employees who recounted difficulties with the claimant and told of his abusive and intimidating behaviour over a long period; an altercation where the claimant admitted calling Mr Galway a lazy bastard to his face; and the claimant's admission that he called Mr Scott and Galway abusive names on several occasions. It was open to the respondent to regard the claimant's grievance about Mr McKee's allocation of overtime as a separate matter in circumstances where any falsification issue related to that had been investigated and closed months before. It was also open to them to accept Mr Scott and Mr Galway's account of their working relationship with the claimant over the previous 18 months and to reject the claimant's attempt to connect his allegations against Mr McKee with the grievance against the claimant by his work colleagues. None of the conclusions in the report strike us as unreasonable and we do not find that they raise any doubt with us as to the explanations given by different managers for any later impugned decisions.

 

40. The outcome of the disciplinary action against the claimant relating to the altercation on 25 January and other matters uncovered during the investigation was that the claimant was given a Final Written Warning (FWW) for serious misconduct. The FWW was received by the claimant on 7 April 2014 but was dated 21 October 2013 which meant that the one year ran from 21 October 2013. This was issued by Wendy Baillie and Stephen Cunningham. We do not find that the length of time taken to deal with this matter amounted to undue delay.

Detriment 1: Appeal against FWW

 

41. The claimant appealed against the imposition of the FWW. The appeal hearing was finally arranged for 21 October 2014 which was the day the FWW was to expire.

42. The first aspect to the detriment in relation to the appeal process alleged by the claimant was that there was a delay in dealing with the appeal. In evidence to tribunal however, the claimant conceded that the delays were due to "unforeseen circumstances." It was clear from the evidence that the majority of the delays related to the unavailability of the claimant's trade union representative and the claimant's request for an independent scribe. We therefore find that there was no detriment perpetrated by the respondent in this regard as there was no undue delay. The claimant's claim for detriment on grounds of having made a protected disclosure on this point therefore fails.

 

43. The second aspect to detriment was the cancellation of the appeal. Mr Bingham decided, with Mr Lamont, to cancel that meeting. The claimant was not told of the cancellation until he turned up for the appeal meeting.

 

44. Mr Bingham's evidence to us on the reasons for cancelling the appeal hearing were that he wrongly believed that, as the FWW had expired, it no longer amounted to a detriment as it could not be used against the claimant in any further disciplinary processes. He accepted that it would be taken into account in a redundancy situation but, as no redundancy exercises were envisaged at that time he did not think there would, in practice, be any actual consequence for the claimant.
Mr Bingham accepted that he was wrong in his belief at that time.

45. We find that the decision to cancel the appeal hearing amounted to a detriment to the claimant as he was entitled to pursue an appeal which could have ended with the FWW being removed from his record. The FWW was a blemish on his record and thus, of itself, constituted a detriment. There was also a clear possible consequence to the fact that it remained on his record in that the FWW could still be taken into account in any redundancy processes which might occur at a later stage.

 

46. In this case, we must determine the reason for Mr Bingham's decision to cancel the appeal and whether the fact that the claimant had made a protected disclosure in his document on 23 November 2012 was a material influence on his decision to treat the claimant detrimentally in that way.

 

47. We accept Mr Bingham's account of the reason for his decision to cancel the hearing and we accept that his reasons were not influenced by the claimant having made a protected disclosure, for the following principal reasons:

 

(1) We found Mr Bingham to be a candid witness who admitted mistakes and we believed him when he said that he cancelled the appeal because he thought that there was nothing for him to deal with as the FWW had expired;

 

(2) It was Mr Bingham who kept trying to arrange the meeting over months and any delay was on the claimant's side;

 

(3) We accept Mr Bingham's evidence that he did not read the documents in detail before meeting the claimant after the claimant asked to meet him at an early stage. We therefore accept that Mr Bingham did not raise the issue of the Tardis forms as he was not aware of this issue prior to that meeting and they would also not have had a bearing on the issue he was dealing with;

 

(4) If Mr Bingham had really had an animus against the claimant the appeal could have gone ahead and been rejected and that would have made things much simpler for Mr Bingham;

 

(5) Simply because Mr Bingham's decision was wrong does not mean that it was necessarily tainted or taken on grounds of the protected disclosure.

 

48. The claimant alleged that he was not told that the appeal was cancelled and this is common case. The issue for us is whether this fact supports the claimant's case that the decision to cancel the appeal was connected to a protected disclosure. We reject this point and accept that it was an oversight.

 

Detriment 2: Derogatory comments

49. The claimant alleged that he was subjected to detriment by Mr Hunsdale when he failed to do anything about derogatory comments that the claimant reported to him. We reject the claimant's case on this for the following principal reasons:

 

(1) Both sides agreed that the claimant was asked to put his complaints in writing. On the claimant's own evidence the complaints included the specific derogatory comments and he agreed that he did not put his complaint in writing. We therefore find that the claimant did not suffer a detriment in this regard as the matter lay with him as to whether his complaints would be carried forward by Mr Hunsdale. Whilst the claimant gave a reason for not putting his complaint in writing at our hearing, any such reason is irrelevant to our deliberations on whether or not the claimant was subjected to a detriment in this regard by Mr Hunsdale.

 

(2) It was clear from the evidence that the claimant accepted with managers that, on occasion, he used bad language with colleagues which was similar to that which he alleged was directed to him.

 

(3) The alleged derogatory comments amounted to "industrial language" and were not, of themselves, sufficiently serious to put an obligation on the employer to investigate them even though the claimant had not put the complaint in writing. To be clear however, it was not part of the claimant's case to us that the employer should have investigated in the absence of a complaint in writing.

 

50. As we have accepted Mr Hunsdale's lack of knowledge of the protected disclosure there does not exist the requisite connection between any alleged detriment and the protected disclosure. (See paragraph 54 below).

 

51. In summary the claimant's point on this fails as it has not been proved to constitute a detriment and, even if it had been proved to constitute a detriment, there was not the requisite connection with any protected disclosure given the lack of knowledge of Mr Hunsdale. (See paragraph 56 below).

 

Detriment 3: No One-to-One meetings

52. The claimant moved to Mr Hunsdale's department in February 2013. The claimant's claim was Mr Hunsdale subjected him to a detriment in failing to have one-to-one meetings with him. It was agreed between the parties that there was a one-to-one meeting in 2015 and we were shown documents in that regard. We also had before us a computer record from HR showing that employee meetings with the claimant took place once a year in each of the years from 2009 to 2015. The explanation given by Mr Hunsdale for the lack of documentation in his possession to support the other years' meetings (i.e. 2013 and 2014) was that the documents were destroyed in the December or January following the meeting for that year as he had so many staff and therefore did not want a proliferation of papers particularly as the process was informal.

 

53. We must firstly decide whether Mr Hunsdale had knowledge of any protected disclosure and secondly whether any one-to-one meetings took place.

 

54. We accept Mr Hunsdale's evidence that, when the claimant transferred to his Department, he did not know that the claimant had been the subject of a disciplinary process and, further, that he did not know that he had been given a FWW. We accept his evidence that these were matters that HR dealt with and that he would not have been privy to them. We also accept his evidence that, on the occasions when the claimant was told he had to go to HR for meetings, Mr Hunsdale simply passed on those messages and knew nothing more about that. We therefore accept Mr Hunsdale's evidence that he had no knowledge of the Tardis forms issue and the fact that the claimant had raised this matter on 23 November 2012. As Mr Hunsdale had no knowledge of the protected disclosure, the claimant's claim fails as it cannot therefore be the case that the making of the protected disclosure had a material influence on his decision.

 

55. There was a direct conflict in evidence between Mr Hunsdale and the claimant in that the claimant alleged that only one of the one-to-one meetings took place in the relevant period and Mr Hunsdale alleged that they had taken place each of the three years that the claimant worked in his department.

 

56. On the issue of whether or not the meetings took place we have the uncontradicted evidence of Mr Hunsdale relating to the process namely that a document was filled out, it was not used for any other purposes and that this was an informal process to facilitate engagement between manager and employee. Whilst in submissions Ms Gavin initially submitted that the detriment related to the fact that the claimant could have raised his issues if the one-to-one meetings had taken place, she rightly conceded that this was not the case made by the claimant in evidence to us.

 

57. We therefore have no evidence of any disadvantage caused to the claimant because any one-to-ones did not take place as, on the face of the document it is clear that it was an informal process and we have no evidence of an adverse consequence for the claimant flowing from any failure to have the meetings. Even if the claimant had proved to our satisfaction that the one-to-one meetings did not take place, he has not proved that the lack of any such meetings constituted a detriment for him.

 

58. We accept that the computer record, which was generated by HR, is authentic as firstly, we do not accept that HR in such a big company generated this document to cover up the fact that one-to-one meetings did not take place and, secondly, that document records an employee meeting on 3 July 2013 and this tallies with a discussion between Mr Hunsdale and the claimant which the claimant agrees occurred. We therefore find from that computer record that one-to-one meetings took place in 2013 and 2014.

 

59. In general we found the claimant as a witness to be evasive as he was not straight in his answers and on several occasions would not directly answer a question and had to be pressed to give answers to straightforward questions. We also found the evidence of Mr Hunsdale to be unsatisfactory in relation to his statement where he agreed that the claimant had complained to him of specific derogatory comments but then resiled in his evidence in tribunal on that point.

 

60. We therefore had unsatisfactory evidence from both witnesses but on balance have decided to accept Mr Hunsdale's account of the one-to-one meetings primarily because of the computer record and the confirmation by the claimant that a discussion took place on 3 July 2013. We therefore accept that the one-to-one meetings took place as alleged by Mr Hunsdale and thus no detriment occurred so the claimant's case on this point fails.

 

Protected Disclosure

61. We accept that the alleged disclosure contained in the document of 23 November 2012, set out at paragraph 24 above amounts to a protected disclosure. We find that it conveys information which tends to show a relevant failure. The claimant made the disclosure to his employer and therefore disclosed in the correct way.

 

62. We accept that the claimant had at the time reasonable belief that the information conveyed tended to show the relevant failure because he was relying on the content of the Tardis forms and the discrepancies on the face of those documents. In order to be protected, the disclosure does not need to show that a relevant failure has occurred but merely that it tends to show that it occurred. It is then up to the employer to act on the disclosure made. In this case we accept that the respondent, in the form of Mr Cunningham, recognised a connection between the disclosure and a previous investigation in May 2012. He therefore reasonably concluded that the matter did not require further investigation in view of his earlier conclusions. We do not find this decision of his to be unreasonable.

 

63. We do not accept Mr Bloch's argument that the claimant needed to name Mr McKee in the disclosure for it to be protected. We find that there is sufficient information conveyed for it to acquire the protection of the legislation.

 

64. The next issue for us is whether or not the protected disclosure should be deprived of protection because of a lack of good faith. The burden is on the employer to prove lack of good faith.

 

65. On the good faith issue we find the following:

 

(1)           There clearly was a strained relationship between the claimant and Mr McKee and we find that he was fixated with Mr McKee and was also fixated about the allocation of overtime. This is shown by the wide-ranging allegations against Mr McKee in his document of 23 November 2012.

 

(2)           There was no evidence before us that the claimant was particularly disadvantaged relating to overtime and, indeed, the uncontested evidence of Mr Cunningham was that in his investigation in May 2012 the claimant was in the top three for allocation of overtime out of nine employees.

 

(3)           The claimant focussed solely on Mr McKee in looking at the Tardis forms even though similar discrepancies applied to other employees on one of the forms in relation to the times that they signed in and signed out. Indeed the claimant in evidence to us, stated that those similar discrepancies did not connote falsification yet they did in Mr McKee's case. This shows us that he had a particular problem with Mr McKee and we find this was his main reason for raising the Tardis forms issue.

 

66. The claimant was obviously obsessed with Mr McKee and the claimant had an animus towards him but that was not the ground relied upon by the respondent to allege a lack of good faith. The respondent relied on their allegation that the claimant was motivated to make any disclosure because he wanted more overtime. On the case before us therefore the height of the point on good faith was that the claimant wanted to be higher than third place in the list of those who got overtime.

 

67. We are not convinced that the claimant was motivated to pursue the protected disclosure because he wanted more overtime. Even if this was his dominant motivation we do not find this to be enough to displace the protection of the legislation in this case. Our conclusion therefore, on the case presented to us, is that there is no lack of good faith and the disclosure therefore retains the protection of the legislation in this case.

 

Background and ancillary points

68. Despite the narrowing of the claimant's claim, at several points during the hearing the claimant sought to bring in evidence relating to the matters which were agreed to be covered by res judicata stating that they constituted background evidence of the "witch-hunt" against him. We considered the evidence before us in relation to those matters as it appeared to be the claimant's case that any discrepancies in that regard should be taken by us to indicate that decisions taken by others were tainted by the fact that he had made a protected disclosure. We reject the claimant's case in that regard for the reasons set out below.

 

69. The claimant made the point that he received a FWW because of an altercation between him and Mr Galway after the respondent had decided to suspend the claimant and not Mr Galway after interviewing both men and a witness Mr Scott. These facts are beyond contention as they occurred. It was Mr Cunningham who decided to suspend the claimant and we had no evidence to indicate to us that Mr Cunningham was hostile to the claimant because he had made a protected disclosure. We accept Mr Cunningham's evidence that the disciplinary issue relating to the altercation was separate in his mind to any issues relating to the Tardis forms which he had previously investigated and that issue was therefore effectively closed.

 

70. It is clear from the documents that Mr Galway and Mr Scott had already raised issues about the claimant before the altercation of 25 January 2013. In this context we find that there was enough in Mr McFarlane's alleged conduct relating to Mr Galway for the respondent to be justified in suspending the claimant.

71. We find nothing untoward relating to the respondents' actions in suspending the claimant and not suspending Mr Galway particularly as the claimant admitted using abusive language to Galway just before the altercation and the managers therefore reasonably regarded the claimant as the aggressor. The height of the claimant's point in this regard, which is relevant to this case, is that his suspension is something which is untoward which would support his claim that later detrimental acts were because of a protected disclosure. We reject that because we do not find anything untoward in the respondents' actions in that regard. We also find it significant that the decision-maker on the suspension was Mr Cunningham whereas the alleged detrimental acts in our case were committed by Mr Bingham and Mr Hunsdale. We do not find that Mr Cunningham influenced Mr Bingham and Mr Hunsdale in any relevant decisions.

 

72. The claimant alleged that his grievance was not dealt with and, specifically, that the issue he raised about the Tardis forms was not dealt with. This matter was in contention between the parties as it was the respondents' case that an investigation into the Tardis forms was done in May 2012 and that an outcome to the grievance was arrived at, at some point between 23 November 2012 (when it was raised) and 12 February 2012 (when Mr Spence went off ill). Mr Cunningham produced a document showing the outcome to that grievance which was arrived at by Mr Spence and Mr Cunningham and this was only produced in the course of his cross-examination. It had not been produced on discovery and Mr Cunningham could not say when the document had been created or whether it had been given to the claimant. The claimant was adamant that he had not received that document.

 

73. One issue for us is whether the late production of this document and the fact that it does not appear to have been given to the claimant at any point, is evidence which supports a finding that any later detrimental acts by others were tainted by an unlawful motive in that those acts were materially influenced by the fact that the claimant had made a protected disclosure. We reject the claimant's claim in this regard as Mr Cunningham did not subject the claimant to any of the detriments which are relevant to the claim before us.

 

74. We accept that Mr Cunningham investigated regarding the Tardis forms issue in May 2012 following receipt of an anonymous letter. When the claimant raised his grievance about the Tardis forms in November 2012, Mr Cunningham was tasked to investigate that. Mr Cunningham then realised that the falsification of Tardis forms issue raised at that point by the claimant, was connected to the previous investigation that he had concluded in May 2012.

 

75. We accept Mr Cunningham's account of the investigation in May 2012. Contrary to the claimant's assertion that the two Tardis forms show clear falsification we find that it is not clear on the face of the forms that there was falsification of records. We accept Mr Cunningham's evidence that the conclusion following the investigation in May 2012 was that there was nothing to be pursued further on the Tardis forms. We do not find the conclusion on that point to be unreasonable. We also do not find it unreasonable, once he had made the connection between the claimant's complaint in November 2012 and the previous investigation, for Mr Cunningham to decide that that had already been investigated and concluded.

 

76. The claimant alleged that there was something untoward in the fact that Mr Cunningham investigated the anonymous complaint in May 2012 and the later complaint in November 2012 and that he also dealt with the suspension and the final written warning. We find nothing untoward in this given the valid distinction made by Mr Cunningham between, on the one hand, the allegations against the claimant in the disciplinary process following an aggressive altercation with Mr Galway, and, on the other hand, the allegation raised by the claimant into alleged falsification of Tardis forms which Mr Cunningham had investigated and concluded months before.

 

77. The claimant's side appeared to make a point that there was something untoward in the fact that Mr Lamont was the person who the claimant allegedly made verbal complaints to in 2012 and he also was the person who decided with Mr Bingham to cancel the appeal against the FWW. The height of the claimant's point in this appeared to be that as Mr Lamont was involved in both matters, this meant that the decision to cancel the appeal was connected to his disclosure in 2012.

 

78. Any verbal complaint by the claimant to Mr Lamont was not relied upon as a protected disclosure in our case which was contained in the letter of 23 November 2012. We did not have details of the content of any such alleged verbal disclosure to Mr Lamont. We have also accepted the evidence of Mr Bingham in relation to his reasons for cancelling the appeal.

 

79. We conclude therefore that the involvement of Mr Lamont in both events does not cause us to doubt the reasons for Mr Bingham's decision to cancel the appeal meeting. In this regard it is significant firstly, that it was the respondent's managers who kept trying to arrange the appeal over a period of four months and, secondly, that the reasons for the delay lay primarily with the claimant's side.

 

 

SUMMARY

 

80. We find that the disclosure outlined at paragraph 24 above which was contained in the document of 23 November 2012 amounted to a protected disclosure.

 

81. We reject the respondents' case that that protected disclosure should be deprived of protection for lack of good faith.

 

82. We find that the cancellation of the appeal amounted to a detriment but we accept the respondent's explanation and find that the reason for the cancellation was not connected in the requisite way to any protected disclosure.

 

83. We reject on the facts that the respondent subjected the claimant to a detriment in delaying the appeal. Even if it amounted to a detriment it was unconnected to the protected disclosure.

 

84. We reject on the facts that the claimant was subjected to a detriment in relation to his allegation that Mr Hunsdale did nothing about his complaint that his colleagues were making derogatory comments about him. This aspect of the claim also fails on the basis that Mr Hunsdale lacked the requisite knowledge of the protected disclosure.

 

85. We find as a fact that the one-to-one meetings took place as described by Mr Hunsdale and that no detriment occurred in any event. Even if a detriment had occurred we find that there was not the requisite connection between any such detriment and the protected disclosure given Mr Hunsdale's lack of knowledge of the disclosure made by the claimant.

 

86. The claimant's claim is therefore dismissed in its entirety.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 26, 28 and 29 April 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: