In the case of Mr B Griffiths v Joseph Gallagher Limited ET/ 1801671/2017 the Employment Tribunal found that the Claimant that had indeed been unfairly dismissed because the reason or principal reason for his dismissal had been a series of five protected disclosures which he had made. The Claimant withdrew a further claim relating to the Respondent having breached procedure by not allowing him to be accompanied to his disciplinary appeal meeting.
The facts in Mr B Griffiths v Joseph Gallagher Limited
The Claimant began work as an operations manager for the Respondent (civil engineers) on 14 December 2016. He was on a probationary period of 3 months, followed by dismissal that could be exercised with one month’s notice.
In February 2017, the Claimant was in charge of a job in Broughton (near Cockmouth) and claimed that between 8-16 February he made four qualifying protected disclosures (within the meaning of the Employment Rights Act 1996 section 43B) in connection with the work at Broughton to his supervisor, Mr Waterson.
On 21 February 2017, the Claimant went to another job which was at Malvern College, Worcester. The Claimant contended that on 7 March 2017 he made a further protected disclosure about safety or environmental concerns related to that job. Again, that alleged disclosure was made to Mr Waterson.
Later, in March, the Claimant was at a site at Aller near Taunton and contended that he made a sixth protected disclosure concerning the use of water from fire hydrants in relation to that job.
The seventh and final alleged protected disclosure was made during the course of a site visit to Aller by Mr Waterson on 28 March 2017. The Claimant stated that this disclosure was the reiteration of the earlier six disclosures.
On 8 May 2017 Mr Waterson telephone the Claimant to inform him that he was dismissed. Subsequently the Claimant received a letter of the same date which confirmed that the Claimant’s employment was to end and he could finish his current task and then would be paid payment in lieu of notice.
The letter of dismissal which had been drafted by a Mr Matheson and signed by somebody else on behalf of Mr Waterson, did not give any reason for the termination. On 24 May, the Claimant submitted an appeal against dismissal. The appeal judge (a Ms Wilkes) concluded that there was no evidence that whistle blowing had occurred between 28 March 2017 and 8 May 2017. She concluded that Mr Griffiths had not been able to evidence that he actually did whistle blow before his dismissal or that that was the reason for his dismissal.
Mr Griffiths submitted a claim to the Employment Tribunal.
The decision of the Employment Tribunal
The Employment Tribunal went through each of the disclosures that Mr Griffiths claimed had been protected, by applying the legal definition in the Employment Rights Act.
The Employment Rights Act 1996 section 43B defines a qualifying disclosure as “any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following –
- that a criminal offence has been committed, is being committed or is likely to be committed;
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
- that the health or safety of any individual has been, is being, or is likely to be endangered;
- that the environment has been, is being or is likely to be damaged”
In relation to reasonable belief, the Tribunal instructed itself that this is essentially a subjective question so the focus is on what the worker believed rather than what anyone else might have believed in the same circumstances. However there has to be some substantial basis for the worker’s belief.
The Tribunal considered that Mr Griffiths’ first disclosure that, following a bore collapse or frac-out whilst drilling under the Derwent River, he feared that the river would be polluted and telephoned Mr Waterson for a revised bore plan so that there could be a deeper drill, was a protected disclosure.
The second disclosure on 9 February 2017, when the Claimant reported to Mr Waterson that because of the ground conditions there was a risk of damaging the drill rig or losing tooling and so a further risk of frac-outs, was also protected.
On 14 February, the Claimant claimed that he made his third protected disclosure: that when on this this date, damage had been caused to a reamer and the Claimant tried to obtain a replacement part, one was not immediately available. The Claimant said that he contacted Mr Waterson who told him to proceed with the reaming work but at a slower pace. The Claimant stated that he told Mr Waterson that if that was done there was a risk of bore collapse with the further risk of pollution. The Tribunal found this also to be a protected disclosure.
In relation to the fourth disclosure, the Claimant believed this was made by him on 15 February 2017 when on this date the drill rig began to leak drilling fluid out of the mud pump. The Claimant described fluids spewing out on to the roadside and down into the river. On reporting the matter to Mr Waterson, the Claimant said that he was told to manage the escaping fluid by the use of sand bags. The Claimant sent Mr Waterson an email in which he said that before the drill rig went out to another job it would have to have its pump prepared properly. He referred to a quick repair which had been done on site by the manufacturer, but the problem had got worse as “the fluids are running at a constant rate out of the pump housing making a huge mess, we are having to contain the fluids with sand bags to prevent them entering the surface water run-off into the river.” The Tribunal found it to be a further qualifying protected disclosure.
In relation to the fifth disclosure which occurred on 7 June 2017, this job involved the installation of a pipe for the supply of fresh water. A pipe end protector had become dislodged which resulted in slurry flowing down the newly installed pipe. The Claimant thought that the best course of action would be to flush out the slurry before any further drilling took place. However, the client wanted the drilling to continue. The Claimant’s evidence was that during a telephone conversation with Mr Waterson on 7 March the Claimant said that as the pipe was contaminated they should concentrate on cleaning it out rather than continuing to lengthen the pipe work. There appeared to the Tribunal to be no clear evidence from the Claimant that he referred to health and safety issues in this conversation with Mr Waterson, and so the Tribunal did not find it to be a qualifying disclosure.
The sixth disclosure occurred on 28 March: The Claimant’s evidence was that on 22 March and unknown to him at the time, his team had drawn some 10,000 litres of water from a fire hydrant. That had led to a dramatic loss of water pressure in the nearby village. That alerted the attention of Wessex Water. The Claimant’s evidence was that his foreman driller had sought to cover that up by saying to Wessex Water, untruthfully, that the Respondent’s water tankers had arrived on site full. The Claimant said that once Wessex Water had left he told his team that what they had done was a criminal offence for which the company could be prosecuted. On the same day (22 March) the Claimant sent an email to Mr Waterson. He wrote:
“We drew water from the hydrant to fill the tanks and the pressure in the village dropped severely (I have told the contractor we arrived with full tanks)”.
The Claimant said that he reminded Mr Waterson that taking water from the hydrant was a criminal offence and that there was also the risk of discolouration or contamination of the public water supply. The Tribunal did find this to be a protected discourse.
The Employment Tribunal applied the test as stated in ERA 1996 above, that is, was the reason or principal reason for the dismissal the making of the protected disclosures?
The Tribunal reminded itself that the burden of proof was on the Claimant to establish this, on the balance of probabilities. Accordingly, the Respondent did not have to prove the reason for dismissal. However, in this type of case the Respondent would have to give some explanation of why it dismissed. The Tribunal noted that the only reason given for dismissal by the Respondent was that “it was just not working out.” The Tribunal came to the conclusion that this was insufficient to counter the Claimant’s assertion that he had been dismissed because he had made protected disclosures.
The Tribunal also concluded that the appeal conducted by Ms Wilkes was wholly unsatisfactory and that although she was an external HR consultant, the Respondent was prepared to accept her superficial analysis which exonerated the Respondent.
Our solicitors’ view on Mr B Griffiths v Joseph Gallagher Limited
Caroline Lewis, a specialist employment solicitor at Redmans, commented on the case: “Care needs to be taken as to how employers handle whistle-blowers and investigate the underlying allegations. This is because those who make a ‘qualifying and protected disclosure’ are protected in law from any detrimental treatment, or dismissal, which arises as a result of their disclosures. Employers and managers who fall foul of this protection could be subject to claims by employees or former employees that are uncapped in value. What’s more, claims are aired in a public forum, meaning there could be potentially disastrous reputational damage for the employer as a result of the fall-out”.
The decision of the Employment Tribunal in Griffiths v Joseph Gallagher Limited can be found here.