Home > Holden Verses Connex > Decision of the Employment Tribunal Part 7
Applicant:
Mr Laurance Holden		Respondent:
Connex South Eastern
DECISION OF THE EMPLOYMENT TRIBUNAL
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10.Both Applicant's and the Respondent's representative prepared detailed and lengthy written submissions for the Tribunal which are incorporated into this decision in their entirety.
11.The Tribunal's attention was drawn to various authorities Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, Miklaszewicz v Stolt Offshore [2001] IRLR 656, Goodwin v Cable Tel UK Ltd [1997] IRLR 665, Shilton v Van Leer (UK) Ltd [1997] IRLR 495. Minnell v Newell & Wright (Transport Contractors) Ltd [1997) IRLR 519: Berriman v Delabole Suite Ltd [1985] ICR S4G; R Edgar v The Met Office EAT 2001 unreported.
12.The Law
Safety Representatives & Safety Committees Regulations 1997 Regulation 4 (1)

In addition to his function under section 2(4) of the 1974 Act to represent the employees in consultations with the employer under section 2(6) of the 1974 Act (which requires every employer to consult safety representatives with a view to the making and maintenance of arrangements which will enable him and his employees to cooperate effectively in promoting and developing measures to ensure the health and safety at work of the employees and in checking the effectiveness of such measures), each safety representative shall have the following functions -

(a)to investigate potential hazards and dangerous occurrences at the workplace (whether or not they are drawn to his attention by the employees he represents) and to examine the causes of accidents at the workplace;
(b)to investigate complaints by any employee he represents relating to that employee's health, safety or welfare at work;
(c)to make representations to the employer on matters arising out of sub-paragraphs (a) or (b) above;
(d)to make representations to the employer on general matter affecting the health, safety or welfare at work of the employees at the workplace;
(e)to carry out inspections in accordance with Regulations 5, 6 and 7 below (workplace inspections, inspections following notifiable accidents and inspection of documents/ provision of information)
(f)to represent the employees he was appointed to represent in consultations at the workplace with inspectors of the Health & Safety Executive and of any other enforcing authority;
(g)(not copied)
(h)to attend meetings of safety committees where he attends in his capacity as a safety representative in connection with any of the other functions

ERA S103A PROVIDES THAT:

"An employee who is dismissed shall be regarded for the purpose 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"
(Whistleblowing provision)

"QUALIFYING DISCLOSURE"

ERA, S438(1) provides

"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 followlng-
(a)that a criminal offence hac been committed, is being committed or is likely to be committed,
(b)that a person has failed, is failing or is likely to fall to comply with any legal obligation to which he is subject
(c)that the health or safety of any individual has been, is being or is likely to be endangered.
(d)that information tending to show any matter falling within anyone of the preceding paragraphs as been, or is likely to be deliberately concealed."

ERA, S.43F(1) establishes that:

"A qualifying disclosure is made in accordance with this section if the worker-
(a)makes the disclosure in good faith to a person prescribed by a order made by the Secretary of State for the purposes of this section, and
(b)reasonably believes-
(i)that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and
(j)that the information disclosed, and any allegation contained in it, are substantially true."

DISCLOSURE IN OTHER CIRCUMSTANCES

ERA S.43 G(1)

(1) A qualifying disclosure is made in accordance with this section if-
(a)the worker makes the disclosure in good faith,
(b)he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true
(c)he does not make the disclosure for purposes of personal gain,
(d)any of the conditions in subsection (2) is met, and
(e)in all circumstances of the case, it is reasonable for him to make the disclosure".

ERA 43 G (3)
In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosures regard shall be had in particular, to -
(a)the identity of the person to whom the disclosure is made
(b)the seriousness of the relevant failure,
(c)whether the relevant failure is continuing or is likely to occur in the future,
(d)whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,
(e)in a case falling with subsection 2(c)(i) or (ii) [i.e. substantially the same information previously disclosed to employer or prescribed person], any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and
(f)in a case falling within subsection (2)(C)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorized by the employer."


ERA S.43H provides that:

(1) "A qualifying disclosure is made in accordance with this section if-
(a)the worker makes the disclosure in good faith,
(b)he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true.
(c)he does not make the disclosure for purposes of personal gain
(d)the relevant failure is of an exceptionally serious nature, and
(e)in all the circumstances of the case it was reasonable for him to make the disclosure."

ERA S.44

(1) An employee has the right not to be subjected to any detriment by an act or any deliberate failure to act by his employer done on the grounds that
(a)having been designated by the Employer to carry out activities in connection with preventing or reducing risks to health and safety at work the employer - carried out (or proposed to carry out) any such activities;
(b)being a representative of workers on matters of health and safety at work or member of a safety committee -
(ii)by reason of being acknowledged as read by the employer the employee performed (or proposed to perform) any function as such a representative or a member of such committee.

ERA S.47B
(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.

ERA S.48 Complaints to [employment tribunals]
(1)An employee may present a complaint to any [employment tribunal] that he has been subjected to a detriment in contravention of section 44, 45, [46, 47[47A or 47C]]

[1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47 B.]
(2)On such a complaint it is for the employer to show the ground on which any act or deliberate failure to act, was done.
(3)An [employment tribunal] shall not consider a complaint under this section unless it is presented -
(a) before the end of the period of three months beginning with the date of the act or failure is part of a series of similar acts or failures, the last of them, or
(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practIcable for the complaint to be presented before the end of that period of three months.
(4)For the purposes of subsection (3)-
(a) where an act extends over a period, the "date of the act" means the last day of that period, and
(b) a deliberate failure to act shall be treated as done when it was decided on;
(c) and in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act, or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected do the failed act if it was to be done.

Employment Rights Act 1966 (ERA)

ERA S.100 provides that:

"(1) An employee who is dismissed shall be regarded for the purposes of the Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that-
(a)having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities;
(b)being a representative of workers on matters of health and safety at work or member of a safety committee-
(i)In accordance with arrangements established under or by virtue of any enactment, or
(ii)by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such committee."

ERA 103A

An employee who is dismissed shall be regarded for the purpose of this as unfairly dismissed of the reason (or if more than one the principal reason for the dismissal is that the employer made a protected disclosure.
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