DVSA

Case Summary

The claimant, a driving examiner for DVSA, was dismissed for gross misconduct following an allegation of threatening behaviour toward his line manager after making a whistleblowing complaint about illegal audio recording in the office. The claimant applied for interim relief under s.128 Employment Rights Act 1996, contending he was dismissed because of the protected disclosure. The tribunal refused the application, finding the claimant had not demonstrated a 'pretty good chance' of establishing the protected disclosure was the principal reason for dismissal, given the involvement of independent investigators and decision-makers unconnected to the protected disclosure complaint.

The tribunal found that although the claimant had a pretty good chance of establishing elements (1)-(4) of a protected disclosure claim, he failed to show a pretty good chance that the protected disclosure was the principal reason for dismissal. The decision-maker (Mr Pearson) and investigator (Adam Harris) were from different regions with no apparent connection to the protected disclosure or Mr Khan, suggesting independence. Whilst the timing of the misconduct complaint raised concerns about ulterior motive requiring scrutiny, crucial factual matters about the nature of the conversation with Mr Khan were disputed and could only properly be tested through oral evidence at the full hearing, not at a summary interim relief hearing.

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• •whether claimant made a protected disclosure within s.43A ERA
• •whether disclosure tended to show breach of legal obligation (GDPR/human rights)
• •whether claimant believed disclosure was in public interest
• •whether claimant's beliefs were reasonably held
• •whether protected disclosure was principal reason for dismissal
• •whether gross misconduct dismissal was genuinely motivated by alleged threatening behaviour or by protected disclosure

The full source document is available from the official publication page.