Mr A Finn v The British Bung Manufacturing Company Ltd and Mr J King: 1803764/2021
| Judgment Date | 03 May 2022 |
| Subject Matter | Unfair Dismissal |
| Date | 03 May 2022 |
| Citation | 1803764/2021 |
| Published date | 11 May 2022 |
| Court | Employment Tribunal |
Case Number: 1803764/2021
10.5 Reserved judgment with reasons – rule 61 March 2017
1
EMPLOYMENT TRIBUNALS
Claimant: Mr A Finn
Respondent (1): The British Bung Manufacturing Company Limited
Respondent (2): Mr J King
Heard at Sheffield On: 22, 23, 24 and 25 February 2022
6 April 2022 (in chambers)
Before: Employment Judge Brain
Members: Mr D Dorman-Smith
Mr K Lannaman
Representation
Claimant: Mr R Finn (son)
Respondents: Miss G Churchhouse of Counsel
RESERVED JUDGMENT
The Judgment of the Employment Tribunal is that:
1. The disclosures made by the claimant to the first respondent on 24 July 2019 and
13 April 2021 qualify for protection pursuant to Part IVA of the 1996 Act.
2. The disclosures made by the claimant to the first respondent on 26 March 2021
and 8 April 2021 do not qualify for protection pursuant to Part IVA of the 1996
Act.
3. The claimant’s complaint against the first respondent succeeds that upon 25
March 2021 he left his place of work and refused to return to his place of work
because of circumstances of danger which he reasonably believed to be serious
and imminent and which he could not reasonably have been expected to avert
and which persisted until 13 April 2021.
4. UPON the claimant’s complaints of unfair dismissal brought against the first
respondent pursuant to Part X of the Employment Rights Act 1996:
(a) The claim that he was unfairly dismissed upon the grounds that he made the
disclosures in paragraph 1 fails and stands dismissed.
(b) The claim that the claimant was dismissed for the health and safety reason in
paragraph 3 pursuant to section 100(1)(d) of the 1996 Act fails and stands
dismissed.
Case Number: 1803764/2021
10.5 Reserved judgment with reasons – rule 61 March 2017
2
(c) The claim that the claimant was unfairly dismissed pursuant to sections 94 to 98
of the 1996 Act succeeds.
(d) Upon remedy for the claim in paragraph 4(c):
a. The claimant’s conduct before the dismissal was such that it is just and
equitable to reduce the amount of any basic award made by 50%.
b. The respondent would fairly have dismissed the claimant on 15 October
2021.
c. The claimant’s dismissal was caused or contributed to by his conduct such
that it is just and equitable to reduce the amount of any compensatory
award made by 75%.
5. The complaint of wrongful dismissal brought against the first respondent
succeeds.
6. The claimant’s complaints against the first respondent that he was subjected to
detriment for having made the disclosures in paragraph 1 pursuant to section 47B
of the 1996 Act fail and stand dismissed.
7. The claimant’s complaints against the first respondent that he was subjected to
detriment because of the health and safety reason referred to in paragraph 3
succeeds in part, in particular:
7.1 that the respondent ignored and ostracised the claimant after 25 March 2021
until 8 April 2021.
7.2 that the respondent failed to investigate the claimant’s concerns adequately
or at all until 8 April 2021.
8. The remaining complaints against the first respondent of detriment for the health
and safety reason in paragraph 3 fail and stand dismissed.
9. UPON the claimant’s complaints against both respondents brought under the
Equality Act 2010:
a. The complaint of harassment related to sex arising out of the incident of
24 July 2019 succeeds.
b. The complaint of harassment related to age arising out of the incident of
24 July 2019 fails and stands dismissed.
c. The complaints of harassment related to age and sex arising out of the
incident of March 2021 fail and stand dismissed.
10. It is just and equitable to extend time to vest the Tribunal with jurisdiction to
consider the complaints of harassment arising out of the incident of 24 July 2019.
11. UPON the claimant’s complaint of victimisation brought against both respondents
pursuant to section 27 of the 2010 Act:
10.1. BY CONSENT, the claimant did a protected act upon 24 July 2019.
10.2. The claimant’s complaint that he was victimised by the respondents for
having done the protected act fails and stands dismissed.
Case Number: 1803764/2021
10.5 Reserved judgment with reasons – rule 61 March 2017
3
REASONS
Introduction and preliminaries
1. Having heard the evidence from the parties and having received helpful written
and oral submissions from the parties’ representatives, the Tribunal reserved
judgment. After having discussed the matter in chambers on the afternoon of 25
February 2022 and upon 6 April 2022 the Tribunal arrived at the judgment set out
above. As judgment was reserved, the Tribunal now gives reasons.
2. This case benefited from a case management hearing which came before
Employment Judge O’Neill (by telephone) on 24 September 2021. A copy of her
case management summary is at pages 40 to 51 of the hearing bundle. The issues
in the case were identified. She gave case management directions.
3. The Tribunal shall look at the issues in the case in detail in due course. However,
it suffices at this stage to summarise the issues in the case. This may conveniently
be done by reference to paragraph 46 of Employment Judge O’Neill’s case
management summary. She sets out the issues as follows:-
(1) Unfair dismissal – sections 94 to 98 of the Employment Rights Act 1996.
(2) Automatic unfair dismissal for a health and safety reason pursuant to
section 100(1)(d) of the 1996 Act.
(3) Unfair dismissal for having made protected disclosures pursuant to
section 103A of the 1996 Act.
(4) Detriment for having made protected disclosures pursuant to section
47B of the 1996 Act.
(5) Detriment for a health and safety reason brought pursuant to sections
44(1)(d) of the 1996 Act.
(6) Harassment related to sex and age brought pursuant to sections 26 and
40 of the Equality Act 2010.
(7) Victimisation brought pursuant to sections 27 and 39(4) of the 2010 Act.
(8) Wrongful dismissal (by way of summary dismissal).
4. The complaints brought under the 2010 Act are against both respondents. The
unfair dismissal and wrongful dismissal complaints may of course only be brought
against the first respondent as the claimant’s employer. The complaints of
detriment arising out of the health and safety case may only be brought against
the first respondent. There is no complaint against the second respondent arising
out of the public interest disclosure detriments.
5. Employment Judge O’Neill directed that merits and remedy issues should be dealt
with at the hearing. She set out (at page 40) a timetable for the hearing. Upon it
appearing to the Tribunal and to the parties that there was insufficient time to deal
with all of the remedy issues, the Tribunal directed (subject to two exceptions) that
remedy issues would be deferred to a remedy hearing if required. The two
exceptions arose upon the claimant’s complaints of unfair dismissal. These were:-
(1) Whether the respondent would have fairly dismissed the claimant in any
case and if so when; and
(2) Any issue arising out of the claimant’s conduct.
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