Jamie McCracken successfully contests factual evidence of Whistleblowing in the Employment Tribunal

News | Wed 2nd Dec, 2020

Jamie McCracken successfully defended his employer client against an allegation of a whistleblowing dismissal; establishing that there was no evidence of whistleblowing to safely rely upon.

The allegations arose in Case: 3335165/2018 Mrs O Ania  v  Respondent: Advanced Training Academy (UK) Ltd (1) Mr S Islam (2) which was heard at the Employment Tribunal in Watford over several days in In October 2020 with the decision being delivered by the Tribunal in November 2020.

The Claimant alleged that the Respondents were failing to disclose matters to the authorities including HMRC and that they were operating dissolved companies fraudulently, in addition she made more limited and specific allegations of discrimination and harassment by reference to her race.

The Claimant maintained that on becoming aware of these matters she made telephone disclosures to HMRC on 4 September 2018 and received a specific case reference number from HMRC. She was supported in her evidence by a work colleague who has subsequently progressed her career and by the time of the hearing was a trainee solicitor who maintained in live evidence before the Tribunal, that she had made contemporaneous note of the disclosure.

In considering the evidence as regards to the alleged disclosure the Tribunal noted in respect of the Claimant’s work colleague that she;

“said that she made a note of what the Claimant told her had been reported to HMRC; she was cross examined closely about this and said she made a note that night, at home, in a notebook. She sets out as a quotation in her statement the same “disclosure” as that set out in the claimant’s witness statements, with the same syntax errors. She said that she gave her notes, including this one, (to the Claimant’s solicitor) and that as a trainee solicitor she understood the importance of this contemporaneous evidence. There was however not copy of any such note in the bundle before us.”

The Tribunal also recorded that;

“Our conclusion on this key dispute of fact, is that we cannot accept it is more likely than not that the claimant made the disclosures to Mr Islam or to HMRC on 4 September as alleged…..

“We (…) accept that she telephoned HMRC to report these concerns and received a reference number, though think it more likely than not that she did this after the termination of her employment”

The Tribunal was not entirely comfortable with the Employers conduct of the in this matter or more generally, the Claimant and her work colleague had no contractual documentation with the Tribunal noting from an aspect of the evidence that;

“Mr Islam did throw the claimant’s tea cup in the bin twice. He admitted doing this, telling her it was because it was dirty. We consider that this petty behaviour was likely to be caused his irritation after their exchanges about holiday leave and her assertion that she had “rights” – something he was quick to disavow and effectively threaten dismissal.”

However, despite this the Tribunal only made a single finding of harassment by name calling and gave a protective award of 4 weeks pay for a failure to provide terms and conditions of employment.

It can be seen that there is still a place for forensic examination of apparently cogent evidence on the most significant aspects of proceedings before the Employment Tribunal even where other areas of evidence may, on the face of matters, appear more difficult.