Ms S Boylan v Hartlepool Borough Council: 2500871/2021
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 2022 |
| Date | 07 November 2022 |
| Published date | 16 December 2022 |
| Court | Employment Tribunal |
| Citation | 2500871/2021 |
| Subject Matter | Public Interest Disclosure |
Reserved Judgment Case No: 2500871/2021
EMPLOYMENT TRIBUNALS
Claimant:
Ms S Boylan
Respondent:
Hartlepool Borough Council
Heard at:
Newcastle CFCTC
On: 11 – 13 April 2022;
4 – 5 July 2022;
Deliberations
6 July 2022
Before:
Employment Judge Loy
Mr K Smith
Ms B Kirby
REPRESENTATION:
Claimant: Mr D Robson, a friend
Respondent: Ms Bethan Davies, counsel
RESERVED JUDGMENT
The unanimous judgment of the Tribunal is as follows:
1. The complaints of detriment contrary to Section 47B Employment Rights Act
1996 are not well-founded and are dismissed.
2. The complaint of automatic unfair dismissal contrary to Section 103A
Employment Rights Act 1996 is not well-founded and is dismissed.
3. The complaints of health and safety detriment contrary to Section 44
Employment Rights Act 1996 are not well-founded and are dismissed.
4. The complaint of automatic unfair dismissal contrary to Section 100(1)(c)
Employment Rights Act 1996 is not well-founded and is dismissed.
Reserved Judgment Case No: 2500871/2021
5. The complaint of unfair dismissal contrary to Sections 94 & 98 Employment
Rights Act 1996 in respect of the dismissal of the claimant from her first Catering
Assistant contract of employment is well-founded and is upheld.
6. The complaints of unfair dismissal contrary to Sections 94 & 98 Employment
Rights Act 1996 in respect of the dismissal of the claimant form her first and
second Cleaner contract of employment and from her second Catering
Assistant contract of employment are not well-founded and are dismissed.
7. The respondent shall pay to the claimant a Basic Award of £551.53.
REASONS
The claimant’s claims
1. The claimant was employed by the respondent under two separate contracts of
employment: a contract for of employment as a Cleaner and a contract for
employment as a Catering Assistant. By a claim form presented on 1 June
2021, and as discussed at a preliminary hearing before Employment Judge
Aspden on 10 August 2021, the claimant brings the following claims.
1.1 Detriment for raising certain health and safety concerns contrary to Section 47B
Employment Rights Act 1996 (“ERA”) being detriments because she made protected
disclosures;
1.2 In the alternative, that the detriments contravened Section 44 ERA, in that she
was subjected to detriment because she brought to her employer’s attention by
reasonable means circumstances connected with her work that she reasonably
believed were harmful or potentially harmful to health and safety;
1.3 A complaint that she was automatically unfairly dismissed for raising health and
safety concerns contrary to Section 103A ERA;
1.4 A complaint that she was automatically unfairly dismissed for raising health and
safety concerns contrary to Section 100(1)(c) ERA;
1.5 A complaint of “ordinary” unfair dismissal, contrary to Sections 98 & 94 ERA.
2. Employment Judge Aspden identified, with the parties agreement, the following
alleged detriments contrary to Section 47B ERA, alternatively Section 44 ERA:
2.1 Being told to get her stuff and leave site on 20 July 2020 as alleged at paragraph
4 of the grounds of claim;
2.2 Being required or expected to work at a different site from 22 July 2020;
2.3 Being suspended from both jobs on 15 January 2021;
2.4 Being dismissed from both jobs on 2 February 2021; and
Reserved Judgment Case No: 2500871/2021
2.5 Failing to allow her appeal and reinstate her to her original jobs at both St
Joseph’s School and Rossmere School and/or making it a condition of her appeal
being upheld that she agreed to work at a site other than St Joseph’s.
The Hearing
Conflict of Interest
3. At the outset of the hearing, we brought to the parties’ and their representatives’
attention certain information that Mr K Smith, one of the non-legal members of
the Tribunal, had drawn to Employment Judge Loy’s attention before the
commencement of these proceedings.
4. Mr Smith is a full time official for the National Education Union. That union
primarily represents Teachers, Teaching Assistants, Head Teachers, and
Leadership Grades within the education sector. Geographically, Mr Smith’s
regional area includes: Durham County Council; Sunderland City Council;
Darlington Borough Council; and Gateshead Metropolitan Borough Council.
Accordingly, Mr Smith does not cover Hartlepool Borough Council as part of his
employment duties.
5. Mr Smith informed me that he did not consider himself conflicted as a
consequence of his association and role with the National Education Union, but
that he would consider it appropriate for his employment circumstances to be
brought to the attention of the parties and their representatives. Mr Smith also
told me, and we in turn told the parties and their representatives, that although
cleaning staff and catering staff (the two roles held by the claimant) were eligible
in principle to join NEU, UNISON is the more natural union for cleaning and
catering staff.
6. Neither party nor either representative objected to Mr Smith sitting on this
matter. In those circumstances, we were content for the Tribunal to proceed
as originally constituted.
7. The hearing was conducted in person at Teeside Justice Centre.
8. The respondents witnesses gave evidence first, followed by the claimant. The
respondent called the following witnesses:
(a) Ms Diane Cotson – Cleaning Supervisor assigned to St Joseph’s Primary
School between October 2018 to August 2020 and thereafter a cleaner at St Joseph’s
Primary School.
(b) Ms Wendy Lilley – Team Leader, Cleaning Services.
(c) Mr Simon Cuthbert – Facilities Manager Officer.
(d) Mr Tony Hanson – Director of Neighbourhood and Regulatory Services.
(e) Mr Kieran Bostock – Assistant Director (Place Management) and the
disciplinary manager.
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