Claimant v Arriva UK Bus Limited
Outcome
Individual claims
The tribunal found the claimant did not make a protected disclosure because: (1) the disclosure was not made in the public interest but rather to address his private grievance over failed agreed termination discussions; (2) the claimant did not subjectively believe the disclosure was in the public interest at the time he made it; (3) even if he did, that belief was not objectively reasonable; and (4) he did not genuinely believe at the time that the information tended to show a criminal offence or health and safety endangerment.
The dismissal was substantively fair—the respondent had a genuine belief in misconduct on reasonable grounds following reasonable investigation. However, it was procedurally unfair because: (1) the investigation report conclusion appeared to dictate sanction rather than recommend; (2) the claimant was not provided with the investigation report or offensive messages before the disciplinary hearing, breaching the respondent's own procedure; (3) notes of investigation and disciplinary meetings were not provided until after proceedings commenced; and (4) the claimant was denied a promised second right of appeal contrary to the disciplinary procedure. The tribunal concluded dismissal would have occurred anyway if a fair process had been followed (Polkey applies).
Facts
The claimant, a Commercial Real Estate Manager, was a member of a WhatsApp group with his manager and colleagues where offensive racist, sexist and homophobic messages were shared. After attending an EDI course and following a failed discussion about agreed termination of his employment, the claimant reported his manager to the respondent in November 2022 for sending offensive messages. The manager subsequently resigned but then complained that the claimant had also sent offensive messages. Following investigation, disciplinary and appeal hearings, the claimant was dismissed for gross misconduct in January 2023.
Decision
The tribunal dismissed the automatic unfair dismissal claim, finding the claimant had not made a protected disclosure because his motivation was a private dispute over agreed termination rather than public interest. However, the tribunal upheld the ordinary unfair dismissal claim on procedural grounds—the respondent failed to provide the investigation report and evidence before the disciplinary hearing, and denied the claimant a second appeal as promised, breaching its own procedures. The dismissal was substantively fair and would have occurred anyway. The case was listed for a remedy hearing to determine compensation with likely Polkey reduction and contributory fault.
Practical note
A disclosure about workplace misconduct will not be protected if motivated by private grievance rather than public interest, but employers with substantial resources must follow their own disciplinary procedures—failure to provide evidence before hearings and denying promised appeal rights can render an otherwise substantively fair dismissal procedurally unfair.
Legal authorities cited
Statutes
Case details
- Case number
- 2500473/2023
- Decision date
- 14 July 2024
- Hearing type
- full merits
- Hearing days
- 3
- Classification
- contested
Respondent
- Sector
- transport
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Commercial Real Estate Manager
- Service
- 3 years
Claimant representation
- Represented
- Yes
- Rep type
- lay rep