Mr S Morris v Nottingham City Council: 2602226/2018
| Judgment Date | 12 February 2020 |
| Published date | 06 March 2020 |
| Court | Employment Tribunal |
| Subject Matter | Public Interest Disclosure |
Case number: 2602226/2018
1
EMPLOYMENT TRIBUNALS
and
Claimant Respondent
Mr S Morris Nottingham City Council
At a Hearing
Held at: Nottingham
Before: Employment Judge Legard (sitting alone)
On: 13th – 17th January 2020
Representation
For the Claimant: In person
For both Respondents: Ms Barney of Counsel
The Employment Judge gave judgment as follows.
JUDGMENT
1. The claim for automatic unfair dismissal under s.103A ERA is not well founded
and is dismissed.
2. The claim for automatic unfair dismissal under s.100(1)(c) ERA is not well
founded and is dismissed.
3. The claim for ‘ordinary’ unfair dismissal is well founded and succeeds.
Case number: 2602226/2018
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4. The claim for wrongful dismissal is well founded and succeeds.
REASONS
1. Issues
1.1 The matter came before Employment Judge Evans on 7th February 2019 for case
management upon which occasion he identified the following issues as matters for
determination:
(a) s.100 ERA – Automatic unfair dismissal in ‘health and safety’ cases
1.2 Was the reason (or, if more than one, the principal reason) for the Claimant’s
dismissal the fact that, in circumstances of danger which he reasonably believed
to be serious and imminent, he took (or proposed to take) appropriate steps to
protect himself or others from that danger? (s.100(1)(e)).
EJ Evans went on to outline the factual basis upon which the above complaint was
advanced; namely that:
• The circumstances of danger related to a proposal to install and operate a
steam bypass modification whilst continuing to operate the plant at 100%
steam capacity;
• The steps that the Claimant took or proposed to take was to send an email
addressed to his line manager Gordon Thomson, dated 8th November and
timed at 9.08am, shortly before the planned operation came into effect in
which he formally raised health and safety concerns.
(b) Wrongful dismissal
Case number: 2602226/2018
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1.3 Was the Respondent lawfully entitled to terminate the Claimant’s contract
without notice?
1.4 In the context of this case, the above issue is particularly important for the
following reasons:
1.5 It is common ground that the Claimant’s employment commenced on 9th May
2016 and he was summarily dismissed on 3rd May 2018. Accordingly, on the
face of it, he lacks sufficient qualifying service in order for the Tribunal to
accept jurisdiction for a complaint of ‘ordinary’ unfair dismissal. However, as
EJ Evans correctly identified (and as the Respondent concedes), if the
Tribunal was to find that the Respondent was not lawfully entitled to terminate
the Claimant’s contract without notice, then the Tribunal would have
jurisdiction (for the UDL complaint) on the basis that, pursuant to s.97(2)
ERA, his continuity of employment is deemed to have been extended by (in
this case) one week. This would, of course, mean that he is to be treated as
having completed two years service as at the effective date of termination.
On the other hand, if the Tribunal finds that the Respondent was entitled to
terminate his contract without notice, then his effective date of termination
falls short and accordingly there is no jurisdiction to entertain a complaint of
ordinary unfair dismissal.
(c) ‘Ordinary’ unfair dismissal (s.98 ERA)
1.6 Subject to the above jurisdictional point, the standard questions fall to be
considered under s.98 ERA; namely:
• The reason or principal reason for the Claimant’s dismissal and whether it
constitutes a potentially fair one within the meaning of ss.98(1);
• If it does, whether the Respondent acted reasonably in treating it as a sufficient
reason for dismissal (s.98(4)).
In this case, the Respondent relies upon conduct as the reason for dismissal and,
consequently, the so-called ‘Burchell’ test is likely to come into play (considered
below).
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