Home > Holden Verses Connex > Decision of the Employment Tribunal Part 8
Mr Laurance Holden
Connex South Eastern
13.The Tribunal's Decision
The claims can be summarised as follows:
(1)Whether the Applicant was victimised for making a protected disclosure contrary to section 47B of the Employment Rights Act 1996 (whistle blowing).
(2)Whether the Applicant was victimised for carrying out the functions of a Health and Safety Representative contrary to section 44 of the Employment Rights Act 1996 (Health and Safety case) and
(3)Whether the Applicant was unfairly constructively dismissed contrary to sections 100(Health and Safety) and 103(A) (whistle blowing) of the 1996 Act.
Sections 44 and 47B of the Act do not apply where the detriment amounts to dismissal so in so far as the Applicant complain of unfair constructive dismissal he relies on sections 100 and 103A.

Dealing first with the two claims of victimisation contrary to sections 44 and 47B the right to make a complaint to the Tribunal derives from section 48(3)(4). The Respondents submit that the victimisatlon claims are out of time. The complaint was presented on the 24 March 2000. The Respondent submits that the Applicant cannot show any act of potential victimisation occurring after the 24 of December 1999 done on the ground that the Applicant had carried out his functions of a health and safety representative or made a protected disclosure. It was submitted, by the Respondents that all of the potential acts of victimisation occurred prior to the date of the disciplinary hearing on 22 December 1999 and that there is nothing complained about after that date that it could support a claim under section 44 or a section 47B Act.

The Tribunal do not accept that submission. The Tribunal are satisfied that Mr Edmunds and Mr Thompson faIled to inform the ApplIcant of his approved transfer to Tonbridge and that Mr Edmonds actions in merely accepting the Applicant's resignation without proper investigatlon and by return are a continuation of the detrimental treatment that the Respondents had meted out to the Applicant from the beginning of 1999. The Tribunal are satisfied that the potential victimlsatlon continued past 24 December 1999 and this Tribunal therefore considers that the whole of the Respondent's conduct can be treated as acts of continuing detrimental treatment and therefore the conduct forms part of a series of similar acts and failures the last of which is in time. The Tribunal therefore finds that the Tribunal does have jurisdiction to hear the victimisation claims.
14.The Respondents accept that certain of the Applicant's disclosures are capable of being qualified disclosure. The Respondents admit that other disclosures maybe qualified disclosures so long as they comply with section 43g of the 1996 Act. The Tribunal finds that the Applicant had made protected disclosures and that the requirements of section 43f were fulfilled ie that the disclosure was in good faith and that the Applicant believed the information and that the allegations contained in the disclosure were substantially true. The two reports sent to the H M Railway Inspectorate were protected disclosures.
15.The Tribunal rejects wholeheartedly that the disclosure in October 1999 was made in response to the dismissal of his appeal on 28 September 1999. The Tribunal are satisfied that the Applicant reasonably believed the allegations to be true. He had relied on information within his own knowledge and that received after making appropriate enquiry which he received from credible sources. The Respondents produced no evidence to the Tribunal to suggest that what the ApplIcant wrote in either of his reports to HMRI was untrue. Furthermore, it was the Respondents who held all the detailed information and their treatment of the Applicant as a health and safety representative in failing to provide the Applicant with all of the necessary health and safety information that he sought and their failure to give full report back on SPAD groups meant that to that extent the Applicant was disadvantaged and had to rely on his own resources. Where such a situation exists it would be wrong to construe the legislation in such a narrow way that made it necessary for every allegation in any disclosure to have to be proved to 100%, that would defeat the object of the legislation which is to give health and safety representatives and others protection from victimisation or dismissal so as to enable them to speak out and carry out their functions. Individuals should be able to make appropriate protected disclosures and carry out their duties without fear of detriment or dismissal. That is the objective of the legislation.
16.It is clear that the Applicant's first report ruffled feathers at head office, they were not pleased about it, Mr Thompson had to "sort the Applicant out". Again in October it is clear that the Respondents were not best pleased. From the evidence and the facts which we have found above after the Applicant's first report the Respondent paid particular attention to the Applicant and paid minute detail to the Applicant's conduct and issued disciplinary charges against him where in the normal course the conduct complained of would not have merited going down the disciplinary process. Mr Thompson made it very clear after the Applicant's first report that he was warning the Applicant off submitting such reports and behaving in such a way in the future. One can understand why the Applicant did behave in the way in which he did in respects to the HMRI because he had found from experience that the only way to get things done and to resolve Health and Safety issues at Connex was to make dlsclosures outside of the organisation. His repeated attempts to raise with the Respondents many aspects of health and safety concerns so as to improve matters were fruitless or took years to achieve.
17.We find that the Applicant was victimised and did suffer a detriment namely the treatment referred to in the facts found above and separately highlighted in Mr Laddie's written submission at paragraphs 29 through to paragraph 51 of his written submission.
18.We now turn to the claim under sections 100 and 103A of the Employment Rights Act. The Applicants dismissal. By virtue of section 95 of the Employment Rights Act an employee is dlsmlssed, If he has terminated the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.
19.In this case we find that the reasons for the dismissal under section 95(1)(c) was that the Applicant carried out his duties and performed functIons as a representative of workers on matters of health and safety at work and because the ApplIcant had made a protected disclosure(s).
20.In the reasons above the Tribunal have set out the Applicant's letter of resignation in full. That letter explained the reason why the Applicant decided to terminate his employment. The facts relied on by the Applicant and cited in that letter the Tribunal find to be well founded. The conduct complained of by the Applicant we as a Tribunal find did occur and that such conduct was found by the Tribunal to have constituted a sustained campaign against the Applicant undertaken by the Respondent because of the Applicant's health and safety activities and because of his protected disclosures. The whole intention of the Respondent's conduct was aimed to force the Applicant to resign. The Respondents wished to be rid of the Applicant. They succeeded.
21.The Respondents suggest to the Tribunal that there was no intention of putting pressure on the Applicant to resign and say, for example, if that had been the case why would they have approved a transfer to Tonbridge if that had been so. The fact that Mr Thompson and Mr Edmund who in our opinion were the prime instigators for the Respondents of the unacceptable conduct, kept the knowledge of that transfer to themselves and did not disclose it to the Applicant confirms the Tribunals decision that the Respondent's conduct during 1999 was with the intention of forcing the Applicant to terminate his employment. The Applicant was unfairly constructively dismissed contrary to sections 100 and 103A of the Employment Rights Act 1996.

Decision entered in the register and copies sent to parties on 15.04.02

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