Guest Blog from journalist Philip Whiteley who is covering the whistleblowing case with me

A split emerged between two leading employers in the UK nuclear industry at Leeds Employment Tribunal, in a case where they are both respondents in a whistleblowing claim, in the session on Tuesday 29 June. Representatives of the governing body the Nuclear Decommissioning Authority overwhelmingly backed the version of events put forward by the whistleblower, undermining the defence of Sellafield, the nuclear reprocessing plant.

The case is being brought by Alison McDermott, an experienced equalities professional, who is claiming her sudden termination of contract by Sellafield in October 2018 was in response to her making protected disclosures on acts of bullying at the nuclear reprocessing site in Cumbria. Sellafield’s management initially claimed that the reason for her dismissal was financial only, although at the tribunal it has produced witnesses reporting concerns over her performance.

On Tuesday three senior executives from the governing body, the Nuclear Decommissioning Authority, offered sharply contrasting evidence. All expressed admiration for Ms McDermott’s contribution to improving policies of equality diversion and inclusion (EDI), and all confirmed that there had been concerns over the competence of the HR director who sacked her, Heather Roberts, and the HR function at the nuclear site.

Sellafield Human Resources department ” not fit for purpose”

All said the reason they were given for Ms McDermott’s dismissal was financial. David Vineall, Group HR director at the NDA, said that Ms McDermott had been integral to the EDI ‘journey’ that the industry was embarking on. Under questioning from Ms McDermott’s barrister James Arnold, Mr Vineall conceded that the HR function at Sellafield was ‘not fit for purpose’, the words used in a damning report he had commissioned by external consultancy PricewaterhouseCoopers.

The court heard how the governing body had recommended that Ms Roberts be replaced by Mike Barber, an HR manager at the NDA. Mr Barber, one of the witnesses for the NDA on Tuesday, said he had ‘a very good working relationship with Ms McDermott’ and was ‘surprised’ to hear of her sudden dismissal.

Some of the most damning evidence undermining Sellafield’s case only came to the court’s attention in recent weeks. Mr Arnold pointed to the date of 26 April 2021 when the claimant first learned of an email from 23 October 2018, just a few days before Ms McDermott learned of her dismissal, in which Mr Vineall wrote to colleagues following a meeting with the then Sellafield CEO Paul Foster the day before, where he suggested that Ms Roberts be replaced immediately.

Nuclear Decommissioning Authority ” very nervous” about Ms McDermott’s dismissal

Just last week, the tribunal heard for the first time evidence from Ms Roberts that she had a made a note stating that the NDA was ‘very nervous’ about the timing of Ms McDermott’s dismissal so soon after her critical report.

The revelation that the respondents had hidden evidence from the claimant and the tribunal that was helpful to her case until this year is particularly significant, because there were earlier hearings in the case. There was a preliminary hearing in July 2019, and Ms McDermott had been granted a strike-out hearing, on the basis that her case was strong.

The strike-out hearing took place on 7 July 2020, some nine months before the revelation of Mr Vineall’s email, and 11 months before more evidence from Ms Roberts, also central to the case, was made available during the hearing itself. Judge Lancaster did not rebuke the respondents for this, but it potentially constitutes a breach of tribunal rules by the respondents, as well as a potential breach of whistleblowing legislation, as it potentially caused detriment to the claimant.

Had Judge Batten, sitting alone last July, been made aware of all the relevant evidence, she may have awarded a strike-out in Ms McDermott’s favour, sparing her the ordeal of a further year of litigation and a three-week full hearing.

Section 47 (A) of the Public Interest Disclosure Act 1998, under which the case is being brought, specifically prohibits employers from imposing a detriment on a whistleblower as retaliation for raising issues of concern in the workplace.

Mr Arnold reminded the court that much of the evidence has only been made available to the tribunal as a result of the claimant’s own efforts through subject access requests and Freedom of Information requests. This would indicate a strong claim of failure to follow tribunal rules – potentially a criminal offence by the respondents – though Mr Arnold did not press the case.

Ms McDermott’s data protection rights breached by Sellafield

Sellafield already has a ruling against it in the case. In January, the Information Commissioner’s Office ruled that it had breached Ms McDermott’s data protection rights in the handling of three letters of evidence on which Sellafield is relying to support its case in the tribunal over her performance issues. The letters were produced on non-secure home PCs. The tribunal has permitted Sellafield to use unlawfully produced evidence.

On one of the letters, the metadata was wiped while in possession of DLA Piper, Sellafield’s law firm, temporarily hiding details on the document’s authorship and time of creation. The law firm is separately under investigation by the Solicitors Regulation Authority over the issue.

The case continues.