Fundamental breach of contract found when the claimant was subjected to detriment as a result of making protected disclosures relating to the use of donated items.

The claimant worked for the respondent from April 2018 until September 2023.  Her role was as Project Manager responsible for the Social Inclusion Project (Food Bank) with the respondent. The respondent is a charitable enterprise and operates various charitable activities including a food bank.

The claimant felt that the respondent acted improperly in relation to goods which it had received from a London based charity which donates goods from private enterprises such as supermarkets. This was disclosed on two occasions to the General Manager. She had alleged that there had been theft, fraud and concealment in relation to the goods. This was in relation to another salaried employee being able to purchase goods at a significantly reduced price and they had been donated for purely charitable purposes. In fact, the respondent had received an email from the London based charity on a previous occasion when some of the goods donated were appearing on an eBay page and being sold. The contents of the letter outlined that they were not to be sold and that had been agreed upon in the terms and conditions.

There were messages from the claimant’s line manager outlining how the claimant was repeatedly going over the issues and that it was ‘aggressive’ and ‘relentless’. The Tribunal noted that whistleblowers may be regarded as relentless when in fact they are being persistent and assertive. This is why they require statutory protection. A further separate issue arose, and another colleague made a complaint about the claimant relating to bullying and that she was insistent/not letting go on matters.

The respondent had objected when the claimant sought to raise the issues of the donated goods to the Chairman of the Board as it was an ‘operational’ matter yet did not raise these objections to the complaint being made. This was even though the complaint related to a series of emails which were not abusive or aggressive. The grievance made against the claimant was investigated and the claimant was suspended for alleged gross misconduct relating to bullying. The letter outlined a predetermined disciplinary hearing and the charges.  This investigation continued until a disciplinary hearing was convened.  One hour before the disciplinary hearing was to take place the claimant sent her letter of resignation.

The claimant made claims for unfair dismissal and detriment relating to protected disclosures.

The Tribunal found that the disclosures relating to the use of the donated goods and how they were being bought at low prices by other staff did amount to a protected disclosure.  The Tribunal reiterated that the legislative protection is there for those who may be perceived as relentless but in fact they are being assertive. The Tribunal further found that the claimant suffered detriments when her allegations were not treated with seriousness.  This continued in terms of the process where the allegations were not treated with any seriousness until the final written submissions in which the practice of salaried members of staff purchasing the donated goods being referred to as ‘sub-optimal’. Additionally, the fact that the suspension predetermined a disciplinary hearing was further demonstration of detriment against the claimant. It was also found that the disciplinary charges were also poorly drafted and vague.

Taking the detriments cumulatively it was found that it amounted to a fundamental breach of contract, and it destroyed the level of trust and confidence which was implied within the contract. Accordingly, the claimant’s claim for constructive unfair dismissal was successful.  The Tribunal outlined that it was mindful of ensuring that there was no double compensation relating to the unfair dismissal and the detriments because of protected disclosures. As a result, there was an award of £20,000 for injury to feelings and the claimant received just the basic award for unfair dismissal having taken up employment within the notice period.

The need to be aware of whistleblowing, the protection it affords and the processes around it is of extreme importance for employers. The failure to adequately manage the disclosures made by the claimant here ultimately led to a fundamental breach of contract and the unfair dismissal action being successful. There should be proper reporting and investigation mechanisms when there are protected disclosures made. The difference in treatment between the claimant and another colleague who raised a grievance was clear and this led to the finding by the Tribunal of detriment by the respondent against the claimant.

NI Tribunal decisions are available on the OITFET website.