Claimant Suffered Detriments After Making Protected Workplace Disclosures

OUTCOME: Allowed

Case No. 2403670/2024 2403674/2024

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EMPLOYMENT TRIBUNALS

Claimants: [redacted] [NAME_3]

Respondent:

[redacted]

Heard at:

Manchester On: 24-26 November 2025 7-8 April 2026 Before: Employment Judge Ainscough

REPRESENTATION:

Claimants: [redacted] Respondent: [redacted]

JUDGMENT having been sent to the parties on 8 May 2026 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:

REASONS Introduction 1. The claimants started ACAS early conciliation on 9 May 2024, received their certificate on 20 June 2024 and submitted their ET1 form on 14 July 2024.

2. The claimants complain that after they made protected disclosures on 31 January 2024 and on 8 February 2024, they suffered detriments in the workplace for which they are entitled to compensation 3. The first part of this case was heard over three days in November 2025. The matter came back before the Tribunal for a further two days to complete the witness evidence and provide judgment.

4. The Tribunal refused the [COMPANY_17] request for a postponement due to witness unavailability to avoid the matter going part heard, as a result of the delay that would be caused by the listing situation in the North West Employment Tribunals.

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Evidence 5. The Tribunal was provided with an agreed bundle of documents which ran to 641 pages. At the outset of the hearing the claimants made an application to rely on additional documentation. The Tribunal allowed the claimants to rely on some of the additional documentation and reasons were provided during the hearing.

6. The Tribunal heard evidence from both claimants. The Tribunal also heard evidence from [NAME_7], the [COMPANY_17] chief operating officer, [NAME_9] a chargehand porter, [NAME_11] the [COMPANY_17] divisional director of nursing and the grievance manger and [NAME_13], the [COMPANY_17] business performance manager for facilities and the claimants’ second line manager. Issues 7. The issues agreed between the parties are set out in the Annex to these reasons. Relevant findings of fact 31 January 2024 8. Both claimants work as porters for the respondent. The second claimant is a Chargehand Porter which means he also has some supervisory responsibilities. The claimants interact with [NAME_14], a lead mortuary technician, in the performance of their role.

9. The claimants’ role included the task of transportation of deceased patients. This included transporting people who died at the hospital from the ward to the mortuary, and receipt of those who died in the community into the mortuary.

10. On 31 January 2024 the second claimant accompanied the first claimant to ask [NAME_16] if they could speak about their concerns. The first claimant had raised concerns with the second claimant in his supervisory capacity as the chargehand, the previous day.

11. The first claimant took the lead in the conversation with [NAME_16] in light of his experience working as a porter in Wrexham. At Wrexham the first claimant always transported the deceased from a ward in a body bag and was only responsible for the paperwork that accompanied the body and not the personal effects. In addition, when dealing with a community death at Wrexham, the porters were not responsible for transporting the body to the refrigerator. This was not the case when the porters were dealing with out of hours community deaths at the [COMPANY_17].

12. The first claimant complained that following a death in the hospital he had to transport exposed bodies and as a result there was splashback from fluid with no protection for the forearms due to the [COMPANY_17] bare to elbow policy. The first claimant was also concerned that the ward staff didn’t know if relevant infection

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3 checks had been undertaken. The second claimant was concerned about splashback when putting the bodies in refrigerators.

13. The first claimant also complained that following a death in the community he had to receive bodies that were not properly covered up. The first claimant said that there was a risk of psychological damage as a result of signs of a traumatic death and infection. The first claimant also raised concerns about possible DNA contamination if the community death was the subject of a police investigation. The first claimant was concerned that there was no policy about community deaths.

14. Finally, the first claimant informed [NAME_16] that he was concerned about the provision of inadequate personal protective equipment (PPE) and this could lead to airborne infection. The first claimant asked [NAME_16] why it was the responsibility of the porters, who were only on the second paygrade, to check the identity of the deceased and log the property. 15. [NAME_16] explained that the use of body bags was at the discretion of ward staff and there was a standard operating procedure for dealing with community deaths. [NAME_16] also subsequently confirmed during his grievance interview that there was a requirement for porters to check the bracelets on the wrist and/or ankle of the deceased and confirmed that the infection status of community patients was unknown. [NAME_16] had some understanding of the claimants’ concerns. 8 February 2024 16. On 8 February 2024 the first claimant met with [NAME_18], designated as the [NAME_21] in the [COMPANY_17] to Speak Up policy. The first claimant didn’t feel that [NAME_16] had listened to what the claimants had said on the 31 January 2024.

17. The first claimant told [NAME_22] about the distress caused by exposed bodies the splashback of fluid, inadequate PPE, lack of infection control and the handling of valuables. The first claimant told [NAME_22] that the [COMPANY_17] policy for transportation of deceased patients was not as robust as that under which he had worked at Wrexham and he was concerned for the safety of staff and the dignity of patients.

18. It was agreed that [NAME_22] would raise the issues with [NAME_23], the [COMPANY_17] Chief Operating Officer without revealing the identity of those who had raised the concerns, in accordance with the Freedom to Speak Up policy. 19. [NAME_22] emailed [NAME_7] on the same date. In her email, [NAME_22] stated that her understanding of the policies operated in other hospitals for the transportation of a deceased patient/receipt of deceased member of the community was with the use of a body bag. [NAME_22] highlighted that it was the ward staff in other hospitals who were responsible for confirming the identity of a deceased patient and dealing with the property on that person. 20. [NAME_22] set out the issues that the first claimant had raised about the [COMPANY_17] policy – that there was no community death policy, the patients were wrapped in sheets that became wet when the porters were required to remove the

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4 bodies, that the porters were required to check the identity of the deceased and deal with the property, that the ward staff, whilst responsible for infection control, were merely dealing with a tick box and that the community deaths were inadequately covered. 13 February 2024 – 15 February 2024 21. Following the receipt of the email, [NAME_7] sent an email on 13 February 2024 to [NAME_16]. On 14 February 2024 [NAME_16] responded and he reiterated that the use of the body bag was at the discretion of ward staff unless there was a risk of infection. 22. [NAME_25] told [NAME_7] that the porters were responsible for checking the deceased’s identity and there was a policy about community deaths. [NAME_25] accepted that there were issues with the way the respondent dealt with the deceased whether it be on the ward or through the community.

23. On 15 February 2024, [NAME_27], the claimant’s line manager, received an email from [NAME_9] – a chargehand, in which [NAME_9] asked [NAME_27] to send an email about the procedure for transfer of bodies. On receipt of this email [NAME_27] made some enquiries. [NAME_16] sent [NAME_27] a copy of the email he had received from [NAME_7] and his response. [NAME_25] forwarded the emails at 1:06 pm. At 1:40 pm [NAME_27] emailed [NAME_16] and asked him if she and the claimants could meet with [NAME_16]. [NAME_27] told [NAME_25] that the first claimant had not sent the email to [NAME_7].

24. During a grievance interview [NAME_16] said that when he received the email from [NAME_7] it did not occur to him that the first claimant was involved. [NAME_25] said he subsequently met with [NAME_27] because she had heard about it through, “second hand Chinese whispers”.

25. The Tribunal has determined on the balance of probabilities, that [NAME_16] and [NAME_27] did discuss the identity of the informant because of the conversation between the claimants and [NAME_16] and [NAME_27]’s comment in her subsequent email to [NAME_16] about the first claimant not sending the email.

26. In addition, [NAME_27] produced a note dated 22 February 2024. In that note [NAME_27] said that she spoke with [NAME_16] and he identified the claimants as the possible authors of the email to [NAME_7]. As a consequence, [NAME_27] said she would speak to them.

27. By the time [NAME_13], [NAME_27]’s line manager, spoke to [NAME_27], [NAME_27] knew the identity of the porters who had complained and had tried to get them to meet with [NAME_16]. 28. [NAME_27]’s note records that she spent twenty minutes talking to the first claimant directly and asked him if he had sent the email to [NAME_7]. The note also confirms that [NAME_27] asked the second claimant the same questions. [NAME_27] then asked the claimants to attend a meeting with [NAME_16]. The

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5 claimants were unwilling to do so because [NAME_25] had not been able to give them direct answers when they first met. 29. [NAME_27]’s note reveals that she then spoke again to [NAME_16] who was unhappy about [NAME_7]’s email and there was a discussion about removing the first claimant’s access to the mortuary. [NAME_27] told [NAME_16] she would need to speak to [NAME_13] before any such action could be taken. [NAME_13] confirmed that she spoke to [NAME_16] who was quite upset and wanted to remove the first claimant’s access. [NAME_13] then met with the first claimant.

30. The Tribunal has found the claimants’ evidence to be credible. There was no evidence from [NAME_27] apart from the note of 22 February 2024. The Tribunal understands that [NAME_27] left the [COMPANY_17] employment in September 2024.

31. The Tribunal has determined on the balance of probabilities that [NAME_27] did say she wanted to get to the bottom of who had broken the chain of command. [NAME_27] also questioned the other porters who subsequently complained to [NAME_13] about [NAME_27]’s actions. [NAME_27] spoke to [NAME_16] and then spoke to the claimants for at least twenty minutes about their involvement in a confidential service and she confirmed this in the email to [NAME_16]. 16 February 2024 32. On 16 February 2024 the first claimant’s access to the mortuary was withdrawn for approximately four hours. [NAME_27] informed the first claimant of the withdrawal and subsequently told [NAME_13]. 33. [NAME_13] spoke to the first claimant and he reiterated the concerns that he had raised but said he was happy to continue working in the mortuary. [NAME_13] told [NAME_16] to reinstate the first claimant’s access.

34. During the grievance investigation, [NAME_16] admitted acting in haste and being hot headed. His explanation for the removal was that he was concerned about the first claimant’s comment regarding the transference of DNA and that there was something to hide.

35. The first claimant told colleagues that he was unable to help with mortuary tasks on that day as his access had been denied. The claimants subsequently went off sick. Throughout the first claimant’s sickness absence he received messages from colleagues that inferred the reason he was not working in the mortuary was because he had done something inappropriate in the performance of his duties. Grievance 36. On 13 April 2024 the claimants submitted a grievance. On 6 June 2024 the claimants attended a grievance meeting with the grievance manager, [NAME_29]. [NAME_29] told the claimants he would undertake further investigation.

37. The Tribunal has seen emails between the [COMPANY_17] HR Department and ACAS from June 2024. The claimants started early conciliation in May 2024. The

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6 respondent asked the ACAS Conciliator whether the claimants wanted to continue through conciliation or the local internal process.

38. On 10 June 2024 ACAS emailed the respondent and confirmed that the claimants wanted to go through ACAS.

39. In November 2024 the claimants chased an outcome to the grievance. HR informed the claimants that they hadn’t carried out the grievance investigation because the ACAS conciliator had informed the respondent that the claimants wanted to proceed through the ACAS conciliation process as opposed to the internal process. The claimants were informed that [NAME_29] was no longer employed by the respondent.

40. In January 2025 [NAME_13] sent a letter to the claimants confirming what the HR department had told them. On 25 February 2025 the claimants said that they wanted an outcome to the grievance. [NAME_31] was appointed as the grievance manager. [NAME_11] met with the claimants on 4 April 2025 and the other witnesses throughout April 2025. The grievance outcome was provided to the claimants on 16 June 2025. [COMPANY_17] policies 41. The [COMPANY_17] job description of a porter states that the role involves the removal of deceased patients from wards and transfer to the mortuary. It also states that it involves receiving deceased bodies to the mortuary out of hours and following correct procedures. In the performance of their work, porters have a responsibility to comply with the [COMPANY_17] infection prevention and control policies.

42. The respondent does have a care of deceased patient policy. In that policy it states that if there is a likelihood of leakage of bodily fluids, the body should be wrapped in an envelope bag with appropriate padding. If there is a high risk of infection a body should be placed in a body bag and not opened. Once the identity of a deceased patient has been confirmed and the belongings accounted for, it is the responsibility of the ward staff to call for the porters for transfer to the mortuary. The policy is clear that the ward staff are responsible for checking the identity of the deceased and dealing with the deceased patient’s property.

43. The second appendix to that policy provides guidance about the use of body bags and handling of the deceased. In capital letters it states: “handle to avoid contact with blood or bodily fluids”. The policy states that the necessary PPE should be worn and that eye and respiratory equipment is available if necessary. The Tribunal was not provided with any separate policy or standing operating procedure for deaths in the community.

44. The Tribunal did see the Freedom to Speak Up policy which offers confidentiality and anonymity to parties if required. The grievance policy states such matters should be dealt with promptly.

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7 Relevant legal principles Detriment because of protected disclosures 45. Section 43A of the Employment Rights Act 1996 defines a protected disclosure as: “a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.” 46. Section 43B(1) defines a qualifying disclosure as “any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following – …. (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered.” 47. Sections 43C – 43G address the identity of the person to whom the disclosure was made. In this case it is accepted that the alleged disclosures were made to the employer (section 43C).

48. Section 47B states: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.” 49. In the case of [NAME_33] (2019) AM UKEAT/0044/19/OO the Employment Appeal Tribunal set out a five-stage test: (a)Was there a disclosure of information? (b)The worker believed that the disclosure was made in the public interest. (c)Was that belief reasonably held? (d)The worker believed that the disclosure tended to show one of the matters in section 43B(1)(a) to (f); and (e)Was that belief reasonably held? 50. In the case of [NAME_34] (2018) ICR 1850, CA, the Court of Appeal stated that a disclosure must have sufficient factual content and specificity which tends to show one of the matters in section 43B(1)(a) to (f).

51. It followed the case of [COMPANY_65] v [NAME_35] 2010 ICR 325, EAT, which determined that a disclosure which is general and without any specific facts will not be a disclosure of information.

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8 52. The worker need only have a reasonable belief that the information tends to show the matter required by Section 43B(1) (a) to (f). The Employment Appeal Tribunal confirmed in the case of [NAME_36] v [COMPANY_37] of Science and Technology and Medicine, EAT 0350/14 that it is not necessary to prove that the failure has occurred, is occurring or likely to occur.

53. Similarly in the case of [NAME_38] v [NAME_39] Service NHS Foundation Trust 2025 [NAME_40], the Employment Appeal Tribunal emphasised the importance of establishing a reasonable belief that the information “tends to show” rather than a reasonable belief that a state of affairs definitely exists. 54. [COMPANY_41] v [NAME_43] 2017 ICR 84 EAT, the Employment Appeal Tribunal determined that there is a subjective element – the worker must believe that the information “tends to show” and an objective element – that the belief is reasonable.

55. In [NAME_44] v [COMPANY_45] (2003) ICR 615, EAT, the Employment Appeal Tribunal held that a belief will be reasonable if based on facts known by the worker at the time of the disclosure, even if it is subsequently proven that a different factual scenario existed.

56. The worker must also establish that they had a belief that the disclosure is made in the public interest and that belief was reasonable. 57. [COMPANY_46] and anor v [NAME_47] [2017[ IRLR 837 the Court of Appeal confirmed that the test is both subjective, the workers belief, and objective, that the belief was reasonable. 58. [ADDRESS] of Appeal set out the factors normally relevant to the question of whether there was a reasonable belief that the disclosure was made in the public interest: (a)the number of those whose interest the disclosure serves. (b)the nature of the interest affected and the extent of that. (c)the nature of the wrongdoing disclosed and (d)the identity of the wrongdoer.

59. In the case of [NAME_48] v [NAME_49] of the Royal Ulster Constabulary (2003) ICR 337, HL, the House of Lords determined that there is a detriment if a reasonable worker would or might conclude that the treatment was in all the circumstances to their disadvantage.

60. In the case of [NAME_51] V [NAME_49] of [NAME_52] (2022) ICR 925, which followed, the Employment Appeal Tribunal determined that the test of detriment had subjective and objective elements. Subjectively, a Tribunal must decide if the worker perceived the treatment as a detriment and objectively, if that perception was reasonable.

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9 61. The right to go to a Tribunal appears in section 48 and is subject to section 48(2), which says this: “On such a complaint it is for the employer to show the ground on which any act or deliberate failure to act was done”.

62. In [NAME_53] and ors v NHS Manchester (Public Concern at Work intervening) 2012 ICR 372, CA, the Court of Appeal determined that a Tribunal can only conclude that a detriment was because of a protected disclosure if it is proven that the protected disclosure materially influenced the detriment.

63. In Shinwari v Vue Entertainment Ltd EAT 0394/14, the Employment Appeal Tribunal concluded that a Tribunal can conclude that although an employer’s conduct is related to a protected disclosure, it is separable from the protected disclosure and therefore not caused by the protected disclosure.

64. In the case of [COMPANY_54] v [NAME_56] 0058/17, the Employment Appeal Tribunal set out guidance on the burden of proof as follows: “115. … I agree that the proper approach to inference drawing and the burden of proof in a s.47B ERA 1996 case can be summarised as follows: (a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made. (b) By virtue of s.48(2) ERA 1996, the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them: see London Borough of [NAME_58] v. [NAME_59] at paragraph 20. (c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found”. Submissions Claimants’ submissions 65. The claimants submitted that the Tribunal should consider the evidence provided by [NAME_22] during the grievance investigation that the claimants suffered a detriment and were treated differently.

66. The claimants submitted [NAME_13] accepted in evidence that their concerns were valid and [NAME_7] accepted that they were in the public interest.

67. The claimants contended that the first claimant’s access was removed within 48 hours of [NAME_16] receiving the email from [NAME_7] and any concerns about access only arose after receipt of this email.

68. The claimants maintained that the respondent dealt with the grievance in bad faith to secure the claimants exit from employment with the respondent.

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10 [COMPANY_17] submissions 69. The respondent submitted that the first claimant a was largely responsible for making the disclosures and the second claimant had a limited role. The respondent contended that the second claimant’s evidence about the disclosures was not credible.

70. The respondent contended that the claimants conceded that PPE was used in accordance with HSE guidance and was considered appropriate by [NAME_9].

71. The respondent submitted that because [NAME_7] did not raise the issue of PPE in her email to [NAME_16], that disclosure could not be the cause of any detriment.

72. The respondent contended that the claimants had not met the burden of proof about the way infection checks endangered health and safety and generally did not have a reasonable belief that there was endangerment to health and safety.

73. The respondent maintained that the real cause of the claimants’ concerns was because they were being asked to perform above their pay grade and therefore did not have a reasonable belief that the disclosures were in the public interest.

74. The respondent submitted that the disclosure on 31 January 2024 did not cause the first four detriments because [NAME_7] did not mention PPE in her email to [NAME_16].

75. The respondent disputed the facts of the alleged detriments or that they amounted to detriments at all. Discussion and conclusions Was there a disclosure of information? 76. There is no dispute between the parties that the claimants disclosed information. However, the Tribunal has to be satisfied that there was a disclosure of information. The Tribunal was assisted by the decision in Kilraine, that a disclosure must have sufficient factual content and specificity which tends to show one of the six failures. It the case of Cavendish Munro it was determined that the information must not be general and devoid of specific factual context.

77. The Tribunal is satisfied that the claimants disclosed information on 31 January 2024 and the first claimant repeated that information on 8 February 2024. The claimants set out that they had experienced splashback from bodies not in body bags and felt inadequately protected by the PPE provided and the bare to elbow policy. The claimants also set out that staff were unaware or uninformed about the infection status when asked and that there was no infection status provided with community deaths. The claimants gave examples of over-exposure particularly when dealing with community deaths when there were poorly wrapped bodies involving a traumatic death. The claimants also revealed that it was porters who had to check the identity of the deceased and remove property.

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11 Did the claimants have a reasonable belief that the information tended to show a) health and safety endangered and b) a miscarriage of justice had/was occurring? 78. In the case of [NAME_38] it was established that it can be reasonable for a claimant to believe that the information disclosed tends to show one of the failures even though it is not reasonable to believe that the failure definitely does exist. It is the tending to show bit that is important in this test. This means that the Tribunal, in accordance with [COMPANY_42] has to look at it subjectively - did the claimant believe that the information disclosed tended to show the failure, and objectively - whether it was a reasonable belief. In accordance with [NAME_44], the Tribunal is aware that a claimant can have a reasonable belief based on facts known at the time that the disclosure was made even if they are subsequently wrong. Health and Safety (i) Tends to show 79. The Tribunal has determined that the claimants believed that the information about the inadequate PPE and the over-exposure, (part of the first disclosure on which they rely and all of the second disclosure on which they rely), tends to show that the health and safety of porters had been, and/or was being endangered.

80. The first claimant was concerned about the lack of community death policy. Both had experienced splashback due to the bodies not being wrapped in accordance with the policy. They were only provided with aprons and were required to be bare to the elbow and there was a risk of exposure. They were required to unwrap bodies to check for their identity and deal with the belongings, contrary to the [COMPANY_17] own policy. Many of the community deaths had occurred in traumatic circumstances and arrived at the mortuary in an unwrapped state which led to over- exposure of the claimants. (ii) Reasonable belief 81. The Tribunal has also determined that the claimants’ belief that the information tended to show this failure, was reasonable. The first claimant had experienced a different procedure in Wrexham which ameliorated the health and safety risk identified as body bags had been used. He was also not required to check the identity of the deceased or deal with the property.

82. The fact that the [COMPANY_17] policy was compliant with the Health and Safety Executive policy does not mean that the claimants’ belief was not reasonable given what they had experienced. The fact that the Human Tissue Authority report had not raised any issues during that period does not mean that the claimants did not have a reasonable belief.

83. The first claimant had experienced a safer way of working in Wrexham and felt unsafe working for the respondent. The test is whether they had a reasonable belief which tends to show the failure, not whether the endangerment of health and safety definitely exists. A claimant can have a reasonable belief based on the facts known at the time even if they are subsequently wrong.

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12 84. The Tribunal has determined that the claimants’ belief that the system of assessing exposure to infection was inadequate was not reasonable. There is no evidence from the claimants to prove why the [COMPANY_17] system was inadequate such that it tended to show that their health and safety had been endangered or was being endangered. Whilst the claimants may have believed it was, that belief was not reasonable. Miscarriage of justice 85. During the course of the live evidence the claimants made reference to contamination of bodies inadequately wrapped that could lead to DNA transferring from porters to the bodies and inferred this could lead to a miscarriage of justice.

86. The Tribunal is aware that the claimants did raise the issue of DNA transference with [NAME_16] on 31 January 2024 as [NAME_16] said this was the rationale for removing the first claimant’s access to the mortuary.

87. However, within the list of issues produced for these proceedings, the claimants did not cite this as the information on which they relied as evidence of a disclosure on 31 January 2024 or on 8 February 2024. The claimants don’t detail making this disclosure in their witness statements before this Tribunal.

88. The Tribunal has concluded that the claimants did not have a reasonable belief that the disclosure of information about DNA transference tended to show any miscarriage of justice. The claimants did not give any specific examples of such a miscarriage of justice. Did the claimants have a reasonable belief that the information which tended to show that health and safety was/being endangered was in the public interest? 89. The claimants did not have to prove that the information disclosed was in the public interest but rather that they believed it was and that that belief was reasonable.

90. The [COMPANY_17] position is that the claimants did not have this belief. The respondent said that the claimants’ concern was that they had been asked to do tasks which was above their pay grade.

91. In the case of Chesterton Global the Court of Appeal confirmed that the concept of public interest was introduced to stop individuals relying on a breach of contract which was personal to them. [ADDRESS] of Appeal said that a small group may satisfy the meaning of public interest and the question is fact-sensitive.

92. In that particular case the claimant was concerned about himself and his group of peers with whom he worked and the Court of Appeal said that it was sufficient to deduce that a section of the public had been affected in the way that the claimant said. [ADDRESS] of Appeal set out four factors that the Tribunal must consider when deciding whether the public interest test is met: (a)the number of those whose interest the disclosure serves.

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13 (b)the nature of the interest affected and the extent of that. (c)the nature of the wrongdoing disclosed and (d)the identity of the wrongdoer.

93. The claimants said that they believed that the information was in the public interest because of the risk to health and safety to them and their fellow porters and the dignity of deceased patients.

94. Applying the Chesterton Global factors, all the porters have to transfer bodies from the wards to the mortuary and have to deal with receipt of bodies from deaths in the community. It is clear from the claimants’ evidence that this can have both a physical and psychological impact. The claimants’ evidence was that this was because of a condoned practice which went outside the [COMPANY_17] own policy. The porters were not receiving the bodies in accordance with the policy and were required to do checks which should have been done by the ward staff. The identity of the wrongdoer is the respondent - a public body.

95. The Tribunal has determined that the claimants did have a belief that the information disclosed was in the public interest.

96. The [COMPANY_17] position about pay grade was not irrelevant. The claimants were right to set out that the risk all porters were exposed to was disproportionate to their pay grade and not something that was required in their job description because ward staff were not complying with the policy. They were required to carry out checks contrary to the [COMPANY_17] policy. 97. [NAME_7]’s evidence about [NAME_22]’ email was that it was her view that the claimants were concerned about the welfare of porters and that the first claimant wanted a review of the policy.

98. The claimants’ belief that their disclosure was in the public interest was reasonable. The first claimant had experience of a different, safer way of working and sought to bring those concerns to the respondent. The Tribunal has therefore concluded that qualifying disclosures were made on 31 January 2024 and 8 February 2024. Were the qualifying disclosures protected? 99. The respondent has conceded that if the disclosures were qualifying, they would be protected because they were made to the employer. Did the claimants suffer the following detriments? [NAME_60] on 15 February 2024, [NAME_27], the claimant’s line manager, inappropriately interrogated the first claimant about who had emailed a board member regarding mortuary issues and said that she would get to the bottom of who had broken the chain of command.

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14 100. The Tribunal has determined that [NAME_27] did say that she wanted to get to the bottom of who had broken the chain of command. The Tribunal has also determined that she spoke to [NAME_16] who was unhappy about the email he had received from [NAME_7] and told her about the earlier disclosure made by the claimants. 101. At the same time [NAME_13] received a complaint from a porter that [NAME_27] was inappropriately questioning porters. [NAME_27] spoke to the first claimant and then to the second claimant and reported back to [NAME_16] about who had sent the email. This was clearly the purpose of her enquiry. 102. [NAME_7] was clear in her dealings at the time and in her evidence, that [NAME_27]’s response was inappropriate. [NAME_7]’s evidence was that [NAME_27] should not have attempted to find out who had raised the concerns. 103. The Tribunal has therefore determined, on the balance of probabilities, that [NAME_27] did inappropriately interrogate the claimants on learning of [NAME_7]’s email. 104. In the case of [NAME_48] the House of Lords confirmed a detriment as being what a reasonable worker would or might take the view that the treatment was in all the circumstances to their disadvantage. The House of Lords formed the view that the issue of disadvantage should be viewed subjectively. 105. In the case of [NAME_51], the Employment Appeal Tribunal said the test for detriment was both subjective and objective. Did the worker perceive it to be a detriment and, if so, was that perception reasonable? 106. This was a detriment to the claimants as their identity had been revealed despite the Freedom to Speak Up policy that anonymity would be preserved. They were subject to meetings with [NAME_27] during which they were asked directly if they had sent emails. D2 on 15 and 16 February 2024 did [NAME_61] tell the claimants to attend a meeting with the Mortuary Manager, [NAME_16], to discuss the mortuary policy? 107. The Tribunal has made a finding of fact that [NAME_27] asked the claimants to attend a meeting with [NAME_16], they were not told to do so. Both declined to do so as a result of the previous meeting. The claimants were not forced to go to this meeting, they had the option to decline. 108. The Tribunal has determined that [NAME_27] asking them to go to the meeting was not a detriment. The Tribunal has accepted the evidence from the note produced by [NAME_27] on 22 February 2024 that the meeting was to sort things out and not to be of a detriment to the claimants. The claimants may have perceived it as a detriment, but it was not reasonable to do so. They had the option to decline, which they did.

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15 D3 on 16 February 2024 did [NAME_61] conduct a witch hunt against the claimants by approaching their colleagues to find out who had jumped the chain of command. 109. The Tribunal has made a finding of fact that [NAME_61] spoke to the other porters to find out who had sent the email. [NAME_27] had become aware that there was an issue from the email sent to her by [NAME_9] that an email needed to be sent about procedures. 110. [NAME_16]’s evidence was that [NAME_27] had found out about the email that he had received from [NAME_7] and it is clear from [NAME_27]’s note that she had spoken to another colleague about the situation. As a result, [NAME_27] began to question the other porters. It was not a witch hunt against the claimants. 111. When [NAME_27] spoke to [NAME_16] he identified the claimants as the possible authors of the email. The claimants were then spoken to by [NAME_27]. [NAME_27] wanted to find out who had sent the email. This was not against the claimants and when she found out it might be the claimants she spoke directly to them. [NAME_62] on 16 February 2024 did [NAME_14] revoke the first claimant’s access to the mortuary? 112. The Tribunal has found that on 16 February 2024 [NAME_16] removed the first claimant’s access. The [COMPANY_17] position is that this was not a detriment because there were only two jobs in the mortuary that day that were covered by the claimant’s colleagues. The Tribunal takes the view that this is fortuitous. 113. The first claimant’s role, as we know from the job description, involved mortuary duties. He was, for a number of hours, unable to fulfil his job description had he been required to do so. The Tribunal does not accept that the first claimant brought on public humiliation around this decision. It was reasonable to tell his colleagues that he could not help as his access had been removed. 114. The first claimant’s perception of this was that he was placed at a disadvantage. The respondent had taken a view he was not safe to be in the mortuary. There was a lack of trust. The Tribunal has determined that the first claimant was reasonable to take this view. The fact it did not stop the first claimant doing his job on the day is irrelevant. The respondent was sending a message to the first claimant about the lack of trust and so therefore it is a detriment. [NAME_40] on 16 February 2024 did the first claimant become the target of derogatory and untrue comments, jokes and speculation amongst his colleagues and people outside of work. 115. The Tribunal has made findings of fact that the first claimant was in receipt of such messages from colleagues outside of work. The first claimant says that this amounted to questioning of his professional conduct which was to his disadvantage. 116. The Tribunal has determined that it was reasonable for the first claimant to take this view given that each message suggests that he has been acting

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16 inappropriately in the mortuary and has been removed from doing so and therefore amounts to a detriment. [NAME_63] has the respondent failed to hold a formal hearing to consider a grievance raised by the claimants? 117. The Tribunal has found that the respondent did follow the grievance process. The claimants had two grievance meetings, one in June 2024 and the next in April 2025. The Tribunal has seen correspondence from ACAS to the respondent in June 2024 setting out that the claimants wanted to progress via ACAS rather than the internal process. 118. In January 2025 the first claimant raised the lack of response to the grievance with [NAME_13] and confirmed in February 2025 that the claimants wanted an outcome. [NAME_31] was appointed as the grievance manager and carried out the interviews in April 2025. The outcome was provided in June 2025. Therefore, the alleged detriment is not proven. Were the detriments caused by the protected disclosures made on 31 January 2024 and 8 February 2024? 119. In accordance with the case of [NAME_57], the claimant must prove the ground or reason for the detrimental treatment. In addition, the burden of proof is also on the respondent to show why those things happened, i.e. that the claimants were not subjected to the detriments because they made protected disclosures. If the respondent is unable to do so, the Tribunal can draw inferences from findings of fact. 120. When answering the causation question the Tribunal is focused on the reason for the detriment. The Tribunal has, in particular, considered the case of [NAME_53] in which the test was set out that a protected disclosure must materially influence the employer’s treatment of the whistleblower. [NAME_60] – the cause of the inappropriate interrogation 121. The [COMPANY_17] position is that this was not because the claimants made a protected disclosure but because [NAME_27] wanted to address the concerns raised. 122. The evidence provided to the Tribunal from [NAME_27] is the note dated 22 February 2024. There is no witness statement from [NAME_27] and the Tribunal is aware [NAME_27] left the [COMPANY_17] employment in September 2024. The Tribunal has determined that [NAME_27]’s actions on learning of the email to [NAME_7], then on learning of the earlier disclosure to [NAME_16] on 31 January 2024 was to interrogate the claimants to find out if they were responsible for breaking the chain of command. 123. The disclosure made on 8 February 2024 materially influenced [NAME_27]’s treatment of the claimants when subjecting them to the detriment. The Tribunal accepts that once [NAME_27] had spoken to both claimants she gave them the option to meet with [NAME_16], which was declined, in an effort to address their concerns. However, her initial actions were to go behind the formal process to

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17 ascertain who had gone above her head and involved senior management in the operation of the porters at the [COMPANY_17] site. [NAME_62] - the cause of the removal of mortuary access 124. Ms [NAME_64]’ note records that [NAME_16] was unhappy about [NAME_7]’s email. [NAME_13]’s evidence was that [NAME_16] was upset. [NAME_27]’s note also records her discussion with [NAME_16] on two separate occasions they discussed removing the first claimant’s access. 125. [NAME_16] said in the grievance that he acted in haste and was hot headed and he was aware he should not have removed the access. The explanation given is that [NAME_16] was concerned about the first claimant’s comments that there could be DNA contamination. [NAME_7]’s email to [NAME_16] makes no reference to DNA contamination concerns. This was something raised by the first claimant on 31 January 2024 in conversation with [NAME_16]. 126. The Tribunal has determined in the absence of evidence from [NAME_16], who the Tribunal understands still works for the respondent, that his decision to remove the first claimant’s access was materially influenced by the disclosures made on 31 January 2024 and 8 February 2024. 127. The fact that [NAME_7] does not refer specifically to PPE in her email does not mean that the first disclosure was not operating in [NAME_16]’s mind when he made his decision. The claimants describe [NAME_16] as being dismissive after the first disclosure. When the claimants escalated the matter to senior management [NAME_16] took action to restrict the first claimant’s access. The Tribunal has determined that this was not because [NAME_16] had concerns about DNA contamination but rather to limit the first claimant’s ability to escalate concerns over the mortuary practices. [NAME_40] – the cause of the derogatory messages 128. The messages were received by the first claimant whilst he was off sick. Immediately prior to going off sick the first claimant had told his colleagues that his access to the mortuary had been removed. The content of the messages makes it clear that the authors still think that the first claimant’s access has been removed. This is the reason the messages are sent to the first claimant, not because he had made disclosures to the respondent. 129. The disclosures did not materially influence those who sent the messages but rather the removal of the access to the mortuary by [NAME_16] was the motivation for the sending of those messages and therefore not caused by the making of the protected disclosures.

Approved by

Employment Judge Ainscough

22 May 2026

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18

REASONS SENT TO THE PARTIES ON

26 May 2026

FOR THE TRIBUNAL OFFICE

Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

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19

ANNEX

LIST OF ISSUES

Protected disclosures (Employment Rights Act 1996 section 48)

1. Did the Claimants make one or more qualifying disclosures?

The Claimants say that on 31 January 2024, they made a disclosure to [NAME_14], Lead mortuary technician, regarding poor mortuary practice and policy. The Claimants allege that they raised the following concerns:

PD 1.1 that there was inadequate PPE in the mortuary, particularly to protect against splashback from bodily fluids and that the system for assessing exposure to infections was inadequate as it was overly reliant on ward staff completing ‘yes/no’ answers on the paperwork.

PD 1.2 that they experienced distressing visual overexposure as sometimes the deceased would be fully exposed on a bed or trolley, unprepared for transportation, and that sometimes they would have to unwrap portions of the deceased to check for jewellery.

The first claimant says that on 8 February 2024 he made a further disclosure to the [COMPANY_17] to Speak Up Initiative. The first claimant alleges that he reiterated the concerns outlined at PD1.1 and PD 1.2 above.

2. Did the Claimants believe the disclosures of information were made in the public interest and, if so, was that belief reasonable?

3. Did the Claimants believe the information disclosed tended to show one of the following and, if so, was that belief reasonable?

(a) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(b) that the health or safety of any individual has been, is being or is likely to be endangered.

4. If the Claimants did make one or more qualifying disclosures, were those qualifying disclosures protected? The Respondent accepts that the alleged disclosures were made to the Claimants’ employer.

Detriments (Employment Rights Act 1996 section 48)

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20 5. Did the Respondent do and/or are they continuing to do the following things?

[NAME_60] On 15 February 2024, did [NAME_61], the Claimants’ line manager, inappropriately interrogate The first claimant about who had emailed a board member regarding mortuary issues and say that she would “get to the bottom of who had broken the chain of command”?

D2 On 15 and 16 February 2024 [NAME_61] tell the Claimants to attend a meeting with the mortuary manager to discuss mortuary policy?

D3 On 16 February 2024 did [NAME_61] conduct a “witch hunt” against the Claimants by approaching their colleagues to find out who had “jumped the chain of command”?

[NAME_62] On 16 February 2024 did [NAME_14] revoke The first claimant’s access to the mortuary?

[NAME_40] On 16 February 2024 did The first claimant become the target of derogatory and untrue comments /jokes and speculation amongst his colleagues and people outside of work?

[NAME_63] the Respondent failed to hold a formal hearing to consider a grievance raised by the Claimants?

6. If the Respondent did such things, were they detrimental to the Claimants?

7. If so, did the Respondent subject the Claimant to such detriments because they made protected disclosures on 31 January and 8 February 2024?

Remedy for Protected Disclosure Detriment

1. What financial losses has the detrimental treatment caused the Claimants?

2. What injury to feelings has the detrimental treatment caused the Claimants and how much compensation should be awarded for that?

3. Has the detrimental treatment caused the Claimants personal injury and how much compensation should be awarded for that?

4. Did the Claimants cause or contribute to the detrimental treatment by their own actions and if so, would it be just and equitable to reduce the Claimants’ compensation? By what proportion?

Case Number: 2403670/2024 2403674/2024

EMPLOYMENT TRIBUNALS

Claimants: [redacted]

(2) [NAME_3]

Respondent: [redacted]

Heard at: Liverpool

On: 24-26 November 2025

7-8 April 2026

Before: Employment Judge Ainscough (sitting alone)

Representation: Claimants: [redacted] Respondent: [redacted]

JUDGMENT

1. The claimants made a protected disclosure on 31 January 2024.

2. The first claimant made a protected disclosure on 8 February 2024.

3. The claimants suffered a detriment because of the protected disclosures on 15 February 2024 when the respondent inappropriately interrogated the claimants about who had emailed a board member regarding mortuary issues and said that it would “get to the bottom of who had broken the chain of command.”

4. The first claimant suffered a detriment because of the protected disclosures on 16 February 2024 when the respondent removed his access to the mortuary.

5. The remaining complaints of detriments because of the protected disclosures are unsuccessful and are dismissed.

Approved by:

Employment Judge Ainscough

8 May 2026

JUDGMENT SENT TO THE PARTIES

ON

8 May 2026

FOR THE TRIBUNAL OFFICE

Notes Written reasons will not be provided unless a written request is presented by either party within 14 days of the sending of this written record of the decision.

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.