Background:

The claimant was employed as a Statutory Finance Manager from 1st July 2020 until his dismissal on 11th January 2021.  The claimant’s employment was subject to a probationary period of six months.  All work at this time was being conducted remotely.

The claimant’s line manager did not formally raise any issues but did note at a meeting that she had often had difficulty getting hold of the claimant. Indeed, at that meeting she attempted twice to invite him to the Teams call and also tried to call his mobile without success.   Although the claimant was not due to attend that meeting he was required to be available on Teams during his working hours.  In September 2020 the claimant’s line manager changed.  The new line manager also expressed having difficulty in terms of contacting the claimant.   The new line manager also expressed concerns about the claimant understanding his work and that some of it was inaccurate. When an issue was raised about not attending a meeting the claimant responded by email which the line manager felt was hostile.  As a result, the line manager changed again.

The new line manager raised the issues of being available and the accuracy of the work.  The claimant was invited, in November 2020, to a probationary meeting.  The claimant initially asked for it to be rescheduled citing that he was on annual leave.  When it was rescheduled he asked for it to be done in writing and declined the meeting.   The claimant stated that his response which stated that he was being dealt with ‘inappropriately’ and to ‘give space’ was a protected disclosure based upon health and safety concerns.  The meeting was not rescheduled and the line manager called the claimant – there was no answer.  The claimant responded by message to say that the behaviour was inappropriate and that he should be contacted in writing.  Eventually, the claimant did take the call some 45 minutes later.  The issue of handover was discussed as well as performance concerns.  The line manager heard another voice on the call and on asking the claimant stated that his wife was there.  At that point the line manager ended the call citing that there could be issues with GDPR.

The actual probationary meeting was rescheduled and included an HR professional.  Two issues were put to the claimant in advance regarding his unavailability during working hours and hostile correspondence.   This meeting did take place but the claimant during and after the meeting cited that the individuals had conflicts of interest. As a result of the probationary meeting a decision was made to dismiss with the termination date being 11th January 2021.

Outcome:

The claimant brought a claim for automatic unfair dismissal based upon a protected disclosure.  This was largely on the basis that he did not have the requisite service for unfair dismissal to arise generally.    The Tribunal held that there had been no qualifying disclosure made.  The nature of the ‘disclosures’ as asserted by the claimant were regarded as being of a general nature which did not contain sufficient information.  For example, a letter in December 2020 alleged that another member of staff took ill from being bullied by another.  The messages to the line manager regarding the meeting which the claimant failed to attend were also regarded as being general and focused on the claimant rather than in the public interest.  As a result, there was no basis upon which the dismissal could be regarded as unfair and the claim was dismissed.

Practical Guidance for Employers:

This case demonstrates some of the difficulties that have arisen with remote working in terms of ensuring availability and that the work is being completed.   This case also demonstrates the importance of the probationary period and how having a procedure in place for how probation will be handled can protect both employee and employer.  The claimant’s resistance in engaging made it a very difficult process yet one where the employer was able to engage appropriately and allow for a decision to be reached.  

NI Tribunal decisions are available on the OITFET website: http://www.employmenttribunalsni.co.uk/