SUMMARY
VICTIMISATION DISCRIMINATION
Protected disclosure
Dismissal
The decision of the Employment Tribunal that the Claimant was not
dismissed by reason of having made a protected disclosure was justified on the
facts found. The Claimant had, however, suffered minor detriment by reason of
such disclosures.
HIS HONOUR JUDGE SEROTA QC
Introduction
1.
This is the hearing of an appeal by the Claimant from a decision at the
Employment Tribunal sitting at the East London Hearing Centre presided over by
Employment Judge Foxwell after a seven day hearing. The Judgment is dated
1 March 2010.
2.
The Employment Tribunal dismissed the Claimant’s claim for unfair
dismissal but found that he had suffered detriment as a result of protected or
health and safety disclosures, contrary to ss.44 and 47B of the Employment
Right Acts 1996 in two respects. The Employment Tribunal dismissed other
claims of such detriments. The Employment Tribunal adjourned claims in respect
of unauthorised deductions from salary and failure to provide him with itemised
wage slips, to a remedies hearing. We believe that this has yet to take place.
3.
The Claimant represented himself in the Employment Tribunal and in
various other applications. He is not unfamiliar with appearing in employment
proceedings. We observe that throughout the hearing he was virtually
bombarding counsel with notes to such an extent that it was less disruptive for
counsel (and the EAT) if he were able to sit next to counsel. We accordingly
invited him to sit next to Mr Jones. During the course of Mr Jones’
submissions the Claimant wished to address us directly. This was an
application we did not feel in the circumstances we should accede to. Further,
during the course of his submissions, Mr Jones had to seek our permission to
absent himself from the court so he could receive further instructions from the
Claimant.
4.
The Employment Tribunal had before it some eight originating
applications; it adjudicated upon seven. This reflects the somewhat obsessive
approach to this litigation by the Claimant and this, coupled with a degree of
ill-efficiency and failure to comply with directions and Orders, largely on the
side of the Respondent, has led to a protracted and “involved” procedural
history (in the words of the Employment Tribunal).
5.
As we have noted, the Claimant presented no fewer than eight originating
applications in which he alleged detriment in his employment, and automatically
unfair dismissal by reason of having made protected disclosures or health and
safety disclosures. He secured a Continuation of Contract Order (“CCO”) on
3 November 2008 pursuant to s.128 of the Employment Rights Act.
This order was unsuccessfully appealed by the Respondent to the Employment
Appeal Tribunal.
6.
The hearing was conducted by Employment Judge Gilbert and she granted
the Claimant a Continuation of Contract Order on the basis that (i) it was
unlikely that the Claimant was dismissed for the reasons given at the time;
(ii) it was unlikely that the Respondent would show the date of the decision to
dismiss the Claimant was on or about 16 September 2008; (iii) it was
unlikely that disclosures made by the Claimant would not be found to be
protected disclosures; (iv) it was likely that the Employment Tribunal would
find the Claimant had been dismissed by reason of having made protected
disclosures. The order provided for the continuance of the contract of
employment until settlement or determination of the claim and required the
Respondent to pay to the Claimant his monthly salary of £3,919.05 two working
days after each month end up until settlement or determination of the claim.
7.
On 1 May 2009 a CMD took place before Employment Judge Goodrich.
Proceedings were described by the Employment Judge as lengthy and highly
contentious. He refused an application by the Claimant that the Respondent
should pay a deposit. He noted that the Claimant had stated his intention of
seeking a costs and preparation time order.
8.
The appeal came before HHJ Ansell on 25 August 2009. The
Claimant appealed against the decisions of the CMD and a refusal to review. We
note at this stage that there was an issue as to whether the order for the
interim continuation of the contract required the Respondent to make payment by
BACS, as for a period the Claimant received the sum in respect of his monthly
salary by cheque rather than by BACS. There is an issue in this appeal as to
whether the effect of the order of 3 November required payment to be made
by BACS. HHJ Ansell observed:
“It seems to me that in specifying a payment, the court does
have power to ensure that payment does take place on the normal pay day, as it
is defined, particularly as in this case, there was contractual provision for
payment by bank transfer, and section 130 is headed "Continuation of Contract
of Employment". I see nothing wrong in the provision specifying in
particular that payment which has to be made on the second day after the end of
the month should be by appropriate bank transfer so that funds are actually in
the account by that date. I would invite the parties on that aspect to agree a
suitable form of wording to amend the Employment Judge's order.”
9.
On 1 October 2009 at a Pre-Hearing Review, Employment Judge Haynes
refused the Claimant’s applications to amend the proceedings by adding additional
respondents and set a new date for the final hearing for seven days commencing
25 January 2010.
10.
On 21 December 2009 the Claimant’s application to strike out the
Respondent’s responses was rejected by Employment Judge Haynes.
11.
On 11 January 2010 the Claimant issued his eighth originating
application.
12.
The hearing before the Employment Tribunal commenced on 25 January
2010. The Employment Tribunal at once had concerns that the Respondent had not
produced bundles in time and the Claimant had produced three lever arch files
with mitigation documents which had not been copied nor seen by the Employment
Tribunal nor the Respondent.
13.
The Respondent did not call any witnesses, although it relied on a
witness statement from the Claimant’s former line manager, Mr Daniel
Wilson, which was read, together with contemporaneous documents.
14.
On 20 March 2010 the Claimant filed his Notice of Appeal and on
6 May 2010 he submitted an Amended Notice of Appeal.
15.
There have been further proceedings in the Employment Appeal Tribunal.
On 22 September 2010 the Registrar granted the Respondent an extension of
time to file an answer; its original answer had been filed one hour late. The
Claimant appealed against this decision. On 30 September 2010 the
Claimant sought a review of this order. On 7 October 2010 the Registrar
refused to extend the Claimant’s time for seeking a review of the order of
22 September, but directed an amendment to that order. On
10 November 2010 HHJ McMullen QC dismissed the Claimant’s appeal
against the Registrar’s order for extending the Respondent’s time, refused to
expedite the hearing of the appeal and refused applications for costs by both
Claimant and Respondent.
16.
On 16 November 2010 HHJ McMullen QC refused an application by
the Claimant to review his order of 10 November 2010. A further
application to review was made in a letter of 22 December which was
rejected by the Deputy Registrar, which led to a further appeal dated
30 December 2010.
Background facts and chronology
17.
The Claimant is an accountant, qualified in the year 2000. He has
worked as an academic in the fields of archaeology and theology between 2003
and 2005.
18.
The Respondent is the holding company of a group of companies that
provides mobile phone services throughout Europe. The Claimant has previous
experience of litigation in Employment Tribunals.
19.
In July 2008 the head of the Respondent’s HR department, Ms Hamer,
came across the Claimant’s CV on a website. This led to the Claimant being
interviewed and ultimately being offered the post of European Financial
Controller of the Respondent from 26 August 2008. His responsibilities
included overseeing European operations, particularly in the Netherlands and Austria but also in Italy and Spain. The Respondent had recently launched
operations in Spain and the administration of its Italian operations were still
incomplete. There were also administrative issues in both Austria and Spain where the Respondent had operated for longer. The European Financial Controller’s
job requires him to identify issues and implement processes to address them; we
refer to paragraphs 45 and 46 of the decision of the Employment Tribunal in
which the relevant provisions of the contract are set out.
20.
The Claimant was entitled to an annual salary of £70,000 together with a
discretionary bonus and various fringe benefits, including BUPA medical
insurance, which would accrue after a probationary three month period.
21.
We feel bound to say that the contemporaneous documents disclose that
the Claimant behaved in an extraordinary way in the four weeks of his
employment. We also note in the context of his claim that he was dismissed by
reason of having made protected disclosures that it was his responsibility to
report on issues that might be the subject of qualifying disclosures within the
meaning of s.43B of the Employment Rights Act (we set this out later in
this Judgment) and deal with them or make proposals for solving them, and that
it would be surprising if he were to have been dismissed for making such disclosures;
it was his job to make such “disclosures”.
22.
At the time the Claimant took up his post the Respondent was concerned
with a VAT issue affecting its operations in the Netherlands and in Austria. The Employment Tribunal set out the issue at paragraph 48 of its decision.
Services in these countries were provided through the Respondent’s Irish
subsidiary. The VAT treatment of pre-payment vouchers in Ireland meant that the transactions were not subject to VAT either in Ireland, or in the Netherlands or Austria. It was important for the VAT authorities to be satisfied that the services
were actually being provided from Ireland and not from another country and the
Respondent wanted letters of comfort from KPMG to satisfy its wholesale
customers that the VAT arrangements were correct. One of the Claimant’s first
tasks was to liaise with KPMG in the Netherlands. On 29 August 2008 the
Claimant attended a meeting in Amsterdam with Mr Wilson, the Respondent’s
Head of Operations and as we have said, the Claimant’s immediate line manager.
Mr Wilson was concerned that at the meeting the Claimant kept drifting off
into other matters; time was short and proposals being made by the Claimant
appeared to be inappropriate.
23.
In early September 2008 the Claimant travelled to Italy and visited Milan and Rome in connection with the Italian operations. It was proposed that he
should become a director of the Italian subsidiary company which he did on
5 September. He also became a director of the Spanish subsidiary. While
in Rome he was driven by an employee of the Italian subsidiary, Mattan. He
claimed that Mattan told him he had to collect cash and travel great distances
all over Italy and that he sometimes slept by the roadside and operated on
little sleep. The Claimant sent an email regarding this conversation to
Mr Guy Leibe‑Munoz, head of the Respondent’s legal department and to
Ms Hamer (head of Respondent’s HR) and copied to Mr Wilson who
accompanied him. He did not deal with the issue himself and as the email was
sent at 09:13am he could only have spoken to Mattan shortly before sending the
email. The email is relied upon by the Claimant as being the first of his
protected disclosures.
24.
The email is set out at paragraph 49 of the decision of the
Employment Tribunal and is to be found at page 203 of our bundle. It contains
the following:
“I have a quick question about Duty of Care for our IT
employees, especially since we need to arrange insurance. This may be a matter
to raise locally in Italy but let me run this by you:”
25.
The email then goes on to say that “M” in the Italian office had
mentioned that he often had to sleep on the road or only for a few hours as he
covered a large territory, with an added concern that cash was in transit.
26.
On 11 September 2008 the Claimant was in Ireland working for the
Irish subsidiary and it was arranged on 12 September that he should travel
to Vienna on 16 September for three days to deal with a number of issues,
including in particular the important matter of obtaining the letter of comfort
of KPMG relating to VAT.
27.
On 13 September 2008 a junior employee of the Respondent,
Ms Sony, who worked at the London office, left a voicemail that the
Claimant had been booked into the Avis hotel in Vienna. On 14 September
2008 the Claimant sent an extraordinary email to Ms Sony,
Mr Allirajah (the Respondent’s CEO) and Mr Khan, his personal
assistant. The email is in these terms:
“Baskaran/Ujala/Salma
The Avis Hotel is STUDENT hostel with shared facilities! I need
a secure place and I’m not prepared to have shared showers/toilets etc and not
to worry about laptop at the same time.
Now of course it’s short notice to book and there’s evidently
something going on in Vienna on Weds as the Expedia prices have shot up to over
300 euro and there’s limited availability. The hotel Mercue Josefhof is the
only one I’ve found with availability and reasonable rate on the Wednesday.
Ujala please prioritise this and I will not be staying in the
Avis Hotel and this may jeopardise the Austrian travel.
Baskaran - in future may I attend to my bookings? I dealt with
this on Wednesday/Thursday and it was only confirmed on the Saturday. This is
not a criticism of Ujala by any means but the likelihood is that I will be
familiar with the European cities more so, the distances involved and the
locations with reference to my meeting. At present I do not want to incur huge
costs on my cards especially when the expenses process from what I have been
told takes 6 weeks. I am therefore dependent upon Ujala to book this for me
immediately.
Baskaran - Ujala is evidently working very long hours and at the
weekends for these bookings. Please can we not get Ireland (Marzena) to start
helping out especially for AT, NL and IE - this would also help the VAT
argument about demonstrating substance in IE is [sic] there’s one more service
being provided out of IE and free up Ujala. Conceivably, Marzena can do the
searches and then Salma can approve and booking with CC can be done in UK but
groundwork done in IE etc.
Thanks and regards
Adam”
28.
The Employment Tribunal was critical of the Claimant’s conduct:
“56. In short, the Claimant made it plain that he would not stay
at this hotel and if the arrangement were not changed he would not go to Austria. We found the tone of this email surprising when we first read it and we found the
Claimant’s evidence that his was an appropriate and measured communication
difficult to understand and impossible to accept. In oral evidence the
Claimant at first said that this was a perfectly innocent email. To his credit
he did then accept with the benefit of hindsight that he could have raised his
concerns in a more diplomatic way. The impact of the email was three-fold.
Firstly, it showed that the Claimant was willing to jeopardise the trip to Austria and the crucial meeting with KPMG. Secondly, in making comments about
Ms Sony’s working hours in an email addressed to her and the CEO he showed
no appreciation of the difficult position in which employees at opposite ends
of the company structure had been placed. Thirdly, the email demonstrated a
lack of any initiative on his part: he did not sort the issue out himself but
passed it to others to deal with. It is all the more remarkable that the
Claimant did this when he was only in his third week in employment. In our
view it demonstrates poor judgment and a lack of any sense of proportion.”
29.
The email seemed somewhat petulant and it was not an appropriate matter
with which to bother the CEO. Mr Allirajah, unsurprisingly, was annoyed
and called the Claimant in to see him on 15 September 2008.
30.
The Claimant did not challenge the substance of the minutes of the
meeting which are substantially reproduced in paragraph 57.
Mr Allirajah made it clear he was “very disappointed” with the Claimant’s professional
behaviour. He did not know what action to take but he regarded the matter as
so serious that it was the first meeting he was conducting on
15 September. He made the point that the Claimant should concentrate on
the jobs he was given rather than making suggestions as to who should be
responsible for making travel arrangements.
31.
The Employment Tribunal had these observations to make about this
meeting:
“58. During his evidence the Claimant told us that he did not
think that Mr Allirajah was referring to his continued employment and
whether he was right for the job during this meeting. We find this impossible
to accept in the light of the words used, for example ‘you need to focus’, ‘let
others do their job’, ‘I am very disappointed’, ‘Is this how you are going to
behave’, ‘I suggest you go and listen’. We noted the persistence of the
Claimant’s evidence that Mr Allirajah was simply losing his temper over a
single incident and one where the Claimant felt (at least originally) that he
had done little or nothing wrong. We simply cannot read it that way. This was
a watershed in our judgment. The Claimant had been working for just three
weeks and the Respondent by now had a flavour of him. At this stage the only
matter which the Claimant had raised which he characterises as a potential
protected disclosure was the email of 5 September; the Claimant accepted
in evidence that he had suffered no detriment by this time as a result of it
other than, he says, that it had not been replied to in writing. All of these
factors suggest to us that Mr Allirajah had genuine concerns about the
Claimant’s qualities as a reliable employee. We observe also that the only
basis for the Claimant’s assertion that Ms Sony was working long hours
(the assertion which so upset Mr Allirajah judging by the minutes) was
that she had called him at the weekend. This tends to corroborate
Mr Allirajah’s assertion that the Claimant focussed on issues more
properly addressed by others and without a full understanding of the facts or
time for reflection on them.”
32.
On 16 September 2008 the Claimant (for whom an alternative hotel
had been arranged) was in Vienna and attended a meeting about the VAT letter of
comfort with KPMG. Mr Wilson was confident the Claimant understood what was
going on and the purpose of the meeting with KPMG. He was surprised to receive
a telephone call from Mr Liebe‑Munoz, who had spoken to the
Claimant, and it had become apparent to him that he did not understand the
Respondent’s requirements. Mr Wilson, who was on holiday, telephoned in
order to intervene in the meeting on the speakerphone.
33.
He later telephoned Mr Allirajah and the Employment Tribunal was
satisfied that a decision was made on or about 16 September 2008 in principle
to dismiss the Claimant. The decision was, according to the Employment
Tribunal, taken by Mr Wilson who was concerned at the Claimant’s failure
to do what he had been employed and instructed to do. He had not opened bank
accounts in Italy, he had failed to deal adequately with the invoices generated
by the subsidiary, VMDL (Vectone Mobile Distribution Limited). He was also
concerned that the Claimant’s responsibilities were to deal with issues rather
than simply reporting them, as he appeared to be doing.
34.
On 16 September the Claimant also sought advice from a family
friend who was a solicitor, Mr Mitzman, as to his liability as director of
the Italian subsidiary if its health and safety policy was inadequate; he made
no reference as to this to the Respondent.
35.
The Claimant evidently raised concerns about the application of the
Spanish health and safety requirements to the Respondent’s workforce on
18 September 2008; this being the second of the protected disclosures upon
which he relied.
36.
The Claimant returned to London on that date but then returned to Milan on 19 September where he met, inter alia, with a payroll company, HTLC, and he
obtained advice about Italian labour law, including issues such as the banking
of cash. The Employment Tribunal did not accept the Claimant’s evidence that
this was an operational issue for Mr Wilson to resolve; this was rejected
by the Employment Tribunal (see paragraph 68) as the Claimant was the “financial
man” for Europe who had been given the task of sorting out cash collection. In
the end it was Mr Wilson who had to sort out the issue.
37.
On 20 September 2008 the Claimant consulted the solicitors who
represented him before the EAT for advice in relation to his directorship of
the Italian company and on 21 or 22 September he resigned his directorships
in the Italian and Spanish subsidiaries; he had not given any forewarning to
the Respondent. The letter resigning his directorship was sent by email to
Mr Allirajah on Sunday 21 September; a copy was hand delivered on
Monday 22 September and a further copy sent by recorded delivery. The
letter is at page 206 of our bundle. The Employment Tribunal did not know why
he thought it necessary to send this letter three times.
38.
The Claimant relies upon the letter as his principal disclosure. He
explains his decision to resign his directorships because he had discovered on
Friday 19 December that, as a director of the Italian and Spanish
subsidiaries, he was personally liable for the issues of non‑compliance
with local legislation. He made it clear he was not resigning from his
position as European Financial Controller but his concern was to remove himself
from the existing liabilities of the various European entities:
“I anticipate that when I have received full reassurance the
issues listed below have been attended to, I will resume the directorship.”
39.
He goes on to explain his concerns which relate to health and safety
issues concerning mandatory assessments and training and he repeats, again as
questions rather than providing information, the matters referred to in his
email of 5 September. The Claimant did not know whether health and safety
policy which had been drafted in English would be compliant with Italian or
Spanish law and whether it would be adequate for employees whose mother tongue
was not English. He went on to raise matters relating to payroll and
verification of employee status and pointed out criminal sanctions for failure
to notify the employment office at the start of an employee’s work activity in
Italy. He drew attention to the fact that he had been advised it was a
criminal offence not to pay the benefits for workers such as work accident
insurance and social contribution and pension fund contributions. The
Employment Tribunal (paragraph 71) was satisfied that the letter contained some
information which constituted a qualifying disclosure. For some reason,
although the letter was sent to Mr Allirajah, the Claimant did not send it
to his line manager, Mr Wilson, who was also the director with
responsibility for health and safety.
40.
On 22 September the Claimant sent an email account of his meeting
with Sorefisa, financial consultants in Milan. The email contained a list of
22 things the Claimant said he had been told were not being done properly by
the Italian subsidiary. The email concluded with the words, “more to follow”.
The email was sent at 03:46am.
41.
The Employment Tribunal was again critical of the Claimant’s conduct:
“73. Stepping back from the train of events for a
moment, it seems that the Claimant was given information on Friday 19 September
in Italy which alarmed him. Rather than report this to, and discuss it with
his colleagues, he instantly sought legal advice and tendered his resignation
from his directorship to the CEO. Looking at the terms of his email at page
874, he sought to place some responsibility for resolving these issues entirely
on the shoulders of others without asking himself why he had been employed in
the first place (see also page 873). The matters that the Claimant described
in his letter to Mr Allirajah were important and needed to be dealt with
by the Respondent. We find it difficult to understand, however, how anyone
could reasonably conclude that they were of such significance and such urgency
that the Claimant needed to resign his directorship forthwith that weekend
without real or complete explanation to Mr Allirajah or his line manager
Mr Wilson. This demonstrates to us a lack of any sense of proportion,
proper consideration for others or understanding of what he had been employed
to do, which was to identify and find solutions to problems such as these. We
note that the Claimant had done nothing to investigate or verify Mattan’s
original comments to him made at the beginning of September; nor had he
resolved the cash deposit issue notwithstanding that he had been entrusted with
this on 9 September (page 479); nor had he acted on Mr Allirajah’s
suggestion that two people should be detailed for large cash collections for
the improvement of security on cash collection despite his trips to and
responsibility for the Italian subsidiary (page 36 of Appendix 2) and we
contrast this with the obligations set out in his contract of employment. We
find the Claimant’s approach unimpressive. The question remains, however,
whether, having made qualifying disclosures, he was dismissed as a result of
them.”
42.
On 22 September 2008 Mr Wilson returned to the office after
his one week holiday. While he had been away the Claimant had sent the email
of 14 September, had been upbraided by Mr Allirajah, he had had to
intervene in the Vienna meeting with KPMG, he had learnt that the VMDL invoices
had not been transferred to Ireland and that €33,000 had not been banked in
Italy, nor had bank accounts in Italy been set up. Mr Allirajah was
furious about the letter of 21 September.
“This was the second occasion within a week in which the
Claimant had acted crassly. He was employed in a senior capacity to identify
and solve problems arising out of the Respondent’s European operations. He was
paid well for this. On the contrary, however, he had threatened to jeopardise
important meetings the previous week because he was unhappy with his hotel and
on this occasion he was rescinding forthwith his directorship without thought
that the matters he raised required explanation and discussion almost certainly
face to face. In our view, his conduct as revealed by the papers showed a lack
of judgment and this is why he was dismissed. We think that there is a
distinction to be drawn between the message contained in the Claimant’s letter
and the way in which it had been communicated. The matters he mentioned though
serious were all capable of resolution and indeed some suggestions to resolve
them had already been made by his colleagues.”
43.
The Employment Tribunal then turned to consider the evidence in
paragraph 8 of Mr Wilson’s statement (repeated at paragraphs 18 and
19 of the Respondent’s first ET3 of 30 October 2008):
“8. After my telephone conversation with Adam and KPMG, I
telephoned Baskaran [Allirajah] to tell him the timescale we could expect from
KPMG and also to raise my unhappiness that Adam had failed to successfully
manage the meeting. During our conversation, I told Baskaran that I did not
think that Adam was the right person for the job of European Financial
Controller. He was not getting on with key duties in implementing Vectone’s
launch in Austria, such as locating offices and obtaining critical tax advice.
He had not demonstrated any initiative and seemed to be unable to prioritise
his responsibilities. For these reasons, I didn’t think that he fitted into
the company - Vectone expects its employees to be proactive in resolving
problems and finding ways for the company to run more efficiently. Baskaran
does not like employees to go to him with problems, rather he expects to be
presented with solutions. I told Baskaran that I wanted to terminate Adam’s
employment and find someone better suited for the role. Baskaran told me that,
if I wanted to sack him, then that was my decision, but suggested I dealt with
it when I came back from holiday. I therefore decided that I would terminate
his employment the following week.”
44.
The Employment Tribunal specifically noted that this evidence had not
been tested in cross‑examination, but concluded that it had the ring of
truth given the papers its members had seen and the Claimant’s own evidence.
The Employment Tribunal went on to find on the balance of probabilities that a
decision had been made in principle to dispense with the Claimant’s services on
16 September; this was delayed only because Mr Wilson was on holiday
that week. That was consistent with the events on Monday 15 September
(meeting following the hotel email) and the phone calls Mr Wilson says he
received that led him to intervene by phone in the Claimant’s meeting with KPMG
Austria. The Employment Tribunal also noted that the Claimant was still in the
early stages of his probationary period when those events occurred.
45.
On 22 September 2008 the Claimant was invited by letter to a
disciplinary hearing on 26 September. The Employment Tribunal was
satisfied this was a step 1 letter. The grounds given to the Claimant for
disciplinary action were his failure to prioritise his workload and for being
engaged in another business (he was operating through a service company). The
Claimant at some time during this week emailed Ms Hamer asking time off
for two days of the Jewish high holidays but received no reply. The dates were
both after his dismissal. The Employment Tribunal found there was no evidence
of any detriment and the treatment he received was not by reason of having
raised health and safety issues or made protected disclosures.
46.
The Claimant sought legal advice on 23 September 2008 and raised a
claim for expenses in the sum of £611.02. On 24 September 2008 he again
wrote to Mr Allirajah and relied upon this letter as a qualifying
disclosure. The letter did not raise new matters but added details to earlier
comments about employment contracts in Italy and arrangements for cash
collection. This letter reinforced the Employment Tribunal’s view that the
Claimant had acted precipitately on 21 September because clearly he felt
the need to explain himself further. Further, the decision to dismiss had been
made before that letter was sent. The Employment Tribunal went on to note that
Mr Wilson made appropriate arrangements for the deposit of cash in Italy and resolved with little difficulty what the Claimant had described as a substantial
problem. Mr Wilson did not have the advantage of speaking Italian.
47.
The disciplinary meeting took place on 26 September 2008. The
Claimant was accompanied by Ms Mina Rocher. The Employment Tribunal was
satisfied this was a step 2 meeting under the statutory disciplinary and
dismissal procedures then in force. Issues raised by Mr Wilson concerned
the existence of the Claimant’s private limited company and his alleged failure
to complete preparatory work for the end of month accounts. The Employment
Tribunal accepted the Claimant’s evidence he had disclosed the existence of his
limited company to Ms Hamer at his first interview and that he had
undertaken the necessary preparatory work for the month end accounts. The
Employment Tribunal continued:
“Our impression is that the Respondent was ‘going through the
motions’ at the hearing looking for reasons to justify its decision to
dismiss. The real reason was dissatisfaction with the Claimant’s performance
and a lack of trust in his judgment. Had this been a case of ordinary unfair
dismissal the claim may have succeeded on this basis (perhaps with a large
element of contribution); but it is not. Critically we find that the reason
the Claimant was in this meeting at all was because of his performance and
attitude in the short weeks of his employment and not because of his
disclosures.”
48.
In his witness statement (paragraph 20) Mr Wilson stated that:
“In every situation where Adam had been required to make a
decision or find a resolution, he had failed to do so. He needed a great deal
of ‘hand-holding’ and seemed incapable of making a decision on his own. Simply
put, he wasn’t cut out for the job.”
49.
The Claimant did not suggest at the disciplinary meeting or during the
course of the subsequent appeal that he was being dismissed by reason of having
made a protected disclosure. Nonetheless, on 4 October 2008 he lodged a
grievance in which he alleged having been victimised by reason of his
“whistle-blowing”.
50.
The Claimant was invited to an appeal meeting on 7 October 2008
when his grievances could also be discussed. However, at this time he was
having medical treatment in Israel and the appeal and grievances were overtaken
by his award of interim relief. Mr Wilson in his witness statement
described as “ridiculous” the suggestion that the Claimant was dismissed
because of his emails.
51.
On 3 November 2008, as we have already recounted, a Continuation of
Contract Order, under s.128 of the Employments Right Act was made in the
Claimant’s favour.
52.
On 23 December 2008 the Respondent offered the Claimant the
services of a recruitment consultant or “headhunter” in an attempt to find him
alternative employment. The Employment Tribunal was satisfied that this was
not a detriment. On or about 23 July 2010 HMRC made an application to wind up
the Respondent in the Companies Court. On 15 December 2010 the HMRC withdrew
that petition, which we believe may have been supported by the Claimant, but we
may be wrong about this.
The Claimant’s case before the Employment Tribunal
53.
The Claimant’s principal claim before the Employment Tribunal was that
his dismissal was rendered automatically unfair by reason of s.103A of the Employment
Rights Act by reason of his having made protected disclosures of health and
safety complaints and that he had suffered detriments as a result. These
detriments included the following: (i) failure to pay expenses on
6 November 2008; (ii) holding disciplinary hearings on the grounds that he
had made protected disclosures; (iii) failure to respond to his request for
time off for Jewish holidays; (iv) failure to reply to a number of letters; (v)
late payment of salary and contravention of the Continuation of Contract Order;
(vi) failure to update the Claimant’s PAYE coding; (vii) failure to pay monthly
instalments in respect of salary pursuant to the CCO via BACS; (viii) the
provision of the services of the headhunter while he was still employed, which
amounted, it is said, to interference.
The Decision of the Employment Tribunal
54.
The Employment Tribunal reminded itself of the procedural history and
the parties’ failures of preparation.
55.
At the outset, as we have already noted at paragraph 4, the Employment
Tribunal expressed surprise that the Respondent had called no witnesses but had
tendered Mr Wilson’s witness statement. The Employment Tribunal made
clear that it had borne in mind that the Claimant had been subjected to
cross-examination, whereas the potential witnesses for the Respondent had not.
The Employment Tribunal reminded itself that it had to decide the case on the
primary facts revealed by the original documents and the evidence which the
Claimant gave:
“We could, of course, take into account Mr Wilson’s
statement and what is written in the Respondent’s Responses but the weight that
we can attach to these documents is affected by the fact that they have not
been tested to the same extent in cross‑examination.”
56.
At paragraphs 6-22 the Employment Tribunal identified the Claimant’s
claims under ss.103A and 100(1)(e) of the Employment Rights Act, as well
as his claim for PIDA detriments under s.47B, as well as detriments by reason
of making health and safety disclosures under s.44 of the Act. The Employment
Tribunal also identified a claim for unlawful deduction from wages by reason of
its failure to comply with the CCO and make payment according to the terms of
the Employment Tribunal’s Judgment. It also identified a claim in respect of
failure to provide itemised wage slips.
57.
At paragraphs 23-27 the Employment Tribunal determined that the claims
for automatically unfair dismissal and for detriment suffered were properly
before it, contrary to submissions made by the Respondent; if the Employment
Tribunal was wrong about this it would have allowed the Claimant to amend to
raise these matters.
58.
The Employment Tribunal declined to allow the eighth originating application
to be heard at the same time as the other seven. It had only been lodged on
11 January and the Respondent had not yet entered a response.
59.
The Employment Tribunal then went on to refer itself to the relevant
statutory provisions and authorities. We shall refer to most of these later in
our Judgment but for present purposes we note that the Employment Tribunal
directed itself by reference to the following sections of the Employment
Rights Act: s.103A, s.100, s.47B, s.44, s.43B, s.43C, s.130. The
authorities referred to included the decision of Woodward v Abbey National
[2006] IRLR 677 on an employer’s liability for detriments incurred or imposed
subsequent to the determination of the employment relationship; Kuzel v Roche
Products [2008] IRLR 530, which placed the burden of proof on the claimant
save in cases of dismissal where the burden was placed on the respondent. It
reminded itself again at paragraph 35 that the Respondent called no evidence
and this fact was relevant to findings the Employment Tribunal made in those
cases where the Respondent was unable to show the reasons for its actions.
60.
The Employment Tribunal also directed itself by reference to the
decision in Dowling v Ilic Haulage & anor
[2004] ICR 1176 on the construction of s.130 and Cavendish Munro Professional
Risks Management PRM v Geduld [2010] ICR 325 on the distinctions
between an employee imparting “information” and making an “allegation”.
61.
The Employment Tribunal then set out the factual background largely as
we have described it. We note, as the Employment Tribunal noted, that
Mr Wilson was not called to give evidence although he had been called to
give evidence before the Employment Tribunal on an application by the Claimant
for reinstatement and for a CCO. We do not know why Mr Wilson was not
called, nor do we know what explanation, if any, was given to the Employment
Tribunal as to why he was not called. The Claimant impressed upon us that Mr
Wilson had given evidence at the hearing of 3 November 2008 and his
evidence had not been accepted as to the reason for dismissal. Further, it was
impressed upon us that the Employment Tribunal did not fully accept
Mr Wilson’s evidence in this regard in the decision under appeal. The
Claimant on the other hand had produced a detailed witness statement of some 61
pages and 351 paragraphs and had been cross‑examined upon it.
62.
The Employment Tribunal at paragraphs 51-52 concluded that the email of
5 September 2008 was not a qualifying disclosure in its own right. The
Employment Tribunal did not doubt the Claimant’s good faith but because the
Claimant was seeking advice rather than making a statement of facts he believed
showed a breach of health and safety requirements there was no imparting of
information. Further, were the Employment Tribunal to be wrong as to whether
or not the email constituted a qualifying disclosure, it was satisfied the
Claimant had not been dismissed or indeed suffered any detriment as a direct
result of this email. The Employment Tribunal noted that shares had been
issued to the Claimant on 9 September and this was not consistent with the
Claimant suffering any detriment, nor was it consistent with Mr Allirajah
“taking against him” at that stage. In relation to the email sent on
14 September, to which we have already referred, we have already called
attention to the Employment Tribunal’s criticism of the Claimant in this regard
to be found at paragraph 56.
63.
Insofar as the meeting with Mr Allirajah on 15 September 2008,
the Employment Tribunal, unlike the Claimant, was unsurprised that the Claimant
met with an angry reaction.
64.
In relation to the letters of 21 September the Employment Tribunal,
again as we have noted, accepted that these contained qualifying disclosures
and a health and safety disclosure. The Employment Tribunal at paragraph
73-74, to which we have already referred, was highly critical of the Claimant
for his premature resignation of directorships that demonstrated a lack of any
sense of proportion, proper consideration for others or understanding of what
he had been employed to do. The Claimant had done nothing to investigate or
verify Mattan’s original comments, nor had he resolved the cash deposit issue
notwithstanding he had been entrusted with this on 9 September. Nor had
he acted on a suggestion made by Mr Allirajah that two people should be
detailed for large cash collections for the improvement of security on cash
collection, despite his trips to and responsibility for the Italian
subsidiary. The Employment Tribunal found the Claimant’s approach to have been
“unimpressive”. Although the disclosures were accepted by the Employment
Tribunal to be qualifying disclosures it had to go on to consider whether he
was dismissed as a result of them.
65.
Again, we have already noted that at paragraph 75 the Employment
Tribunal found that a decision in principle to dismiss the Claimant had been
made on or about 16 September; again, the Employment Tribunal directed
itself impeccably when considering Mr Wilson’s statement, but again noting
that it had not been tested in cross‑examination. The Employment
Tribunal was critical of the Respondent at paragraph 80 for “going through
the motions” at the disciplinary hearing looking for reasons to justify its
decision to dismiss. However, the Employment Tribunal was satisfied that:
“The real reason was dissatisfaction with the Claimant’s
performance and a lack of trust in his judgement. […] Critically we find that
the reason the Claimant was in this meeting at all was because of his
performance and attitude in the short weeks of his employment and not because
of his disclosures.”
66.
The Employment Tribunal did not accept the Claimant’s assertion that he
did not suggest at the disciplinary meeting that his dismissal was by reason of
his having made protected disclosures because he believed it would be dealt
with in the course of his grievance. This was specifically rejected by the
Employment Tribunal as it would be a surprising stance to have taken for
someone, as the Claimant claimed that he was, who was trying to keep his job.
Nor did it sit happily with the comments in paragraph 244 of his witness
statement when he said he was depending on Mr Wilson to “see the light” in
the disciplinary meeting.
67.
As we have noted, a number of payments made after the CCO in respect of
monthly salary instalments were paid between one and six days late. As the
Claimant had established a detriment the Employment Tribunal found that it fell
to the Respondent to show the ground for this and it had failed to give any
explanation as to why the payments were made late. Accordingly, that element
of the Claimant’s claim succeeded. There would also be a breach of the CCO in
respect of late payments.
68.
In relation to the assertion that failure to pay by BACS was concerned
and whether this amounted to a detriment, the Employment Tribunal noted that
the CCO did not provide for payment by BACS and that even if the Claimant may
have had a contractual right to payment by this method - paragraph 6:2 of the
agreement entitled the Claimant to have his salary paid “directly into your
bank or building society” - this was not a provision continued by the CCO on
the authority of Dowling, because the CCO did not preserve a
contract of employment as such, but only preserved the obligation to pay as
defined in the order and continuity of employment. Further, although the
Respondent was in breach of the CCO by tendering payment late, it was not in
breach by failure to pay by BACS or paying by cheque. The Employment Tribunal
stated that it took “account of the fact that a cheque is regarded as the
equivalent of cash”. Accordingly it did not find that the method of payment
adopted by the Respondent constituted an actionable detriment, though the late
payment was capable of being such a detriment.
69.
Delay in arranging PAYE coding was found to be a detriment but it did
not occur because of the Claimant having made any actionable disclosures; this
claim, therefore, was not established.
70.
So far as the late payment of expenses was concerned this was a
detriment and again the Respondent had failed to show the ground for late
payment. This aspect of the claim succeeded.
71.
So far as the BUPA and travel insurance claims were concerned there was
no detriment because the Claimant was only entitled to the BUPA insurance at
the end of his three month probationary period, so no right as such was
withdrawn. The travel insurance was for business travel only and the Claimant
undertook no business travel for the Respondent after 26 September so
again there was no detriment. These claims were untenable following Dowling.
72.
The Employment Tribunal then considered the offer by the Respondent of
the services of the recruitment consultant or “headhunter”. This was not a
detriment. So far as the failure to respond to correspondence was concerned
the Employment Tribunal found there was no detriment; the email of
5 September was responded to though not in writing.
73.
There were outstanding issues relating to deduction of wages and failure
to provide itemised payslips. The Employment Tribunal adjourned consideration
of these matters as neither party had adequately prepared for the
determination.
Notice of Appeal and submissions and support
74.
The Claimant’s principal point of appeal related to the evidence of
Mr Wilson because he was not called and so could not be cross‑examined.
The Claimant relied upon the decision of Snowball v Gardiner
Merchant [1987] ICR 719 for the proposition that although an Employment
Tribunal has a wide discretion as to the admission of evidence, it needs to
have regard to well established rules of evidence. There was no explanation as
to why Mr Wilson had not been called. His witness statement was
criticised as not being contemporaneous; he had a motive to be dishonest and
the statement contained multiple hearsay in relation to the meetings that took
place in Vienna and there was no explanation as to how the witness statement
came to be made.
75.
The Employment Tribunal clearly did not accept all of Mr Wilson’s
evidence but accepted the reasons he had given for dismissal. This was an
inconsistency that should have been explained. Further, once the Employment
Tribunal had the CCO hearing the Claimant was entitled to say that supported
the view that the Claimant had been dismissed for “whistle-blowing”.
76.
Eight specific findings of fact were attacked by the Claimant but only
two of these were developed in oral submissions: (i) paragraph 56, the
Claimant’s conduct in relation to the email of 14 September as demonstrating
the Claimant’s poor judgment and lack of sense of proportion; (ii) the finding
at paragraph 58 that the meeting with Mr Allirajah on 15 September
was a “watershed”; (iii) paragraph 63 and the Respondent having concerns about
the Claimant’s ability to deliver; (iv) paragraph 74 the finding that no
doubt Mr Allirajah was “furious”; (v) the finding that the decision to
dismiss the Claimant had been made in principle on 16 September (paragraph
75); (vi) the finding at paragraph 80 that the reason for dismissal was
dissatisfaction with the Claimant’s performance and a lack of trust in his judgment;
(vii) the finding at paragraph 77 that failure to reply to an email in
which the Claimant sought time off for Jewish holidays which occurred after the
date of dismissal was not a detriment and was not by reason of his having done
a protected act; (viii) the finding by the Employment Tribunal at paragraph 87 that
the Respondent was attempting to comply with the CCO and configured the payroll
to do this.
77.
It was also submitted the Employment Tribunal ignored evidence that the
Claimant was knuckling down and taking the Respondent’s concerns on board.
Mr Jones returned to attack the decision of the Employment Tribunal to
make findings against the Claimant on the basis of Mr Wilson’s untested
evidence. The Employment Tribunal should have paid specific regard to the
criteria set out in s.4(2) of the Civil Evidence Act, and quoted from
the decision in Snowball v Gardiner Merchant.
“In spite of the wide discretion which Parliament has entrusted
to an Industrial Tribunal, it must not however be exercised in a capricious
fashion. In particular a Tribunal must not ignore nor totally disregard the
well-established principles of law with reference to the admissibility of
evidence.”
78.
Although Mr Jones recognised the breadth of Employment Tribunal
rule 14(2) he nonetheless submitted that the Employment Tribunal should have
had regard to the provisions of the Civil Evidence Act and indeed was
bound to apply the principles or criteria set out in s.4(2) of that Act.
79.
The Employment Tribunal had given an insufficient answer under s.103A of
Employment Rights Act as to the reason or principle reason for the
Claimant’s dismissal. This question could only be answered by careful analysis
of what was the reason or principal reason for the dismissal and that would
involve exploring the professed reason, the actual reason and motivation,
whether conscious or not. This process was of particular importance where the
professed reason was not accepted. Reliance was placed upon the well known
decision in Anya v University of Oxford [2001] ICR 848.
80.
Where the Claimant’s evidence conflicted with that of Mr Wilson the
decision of the Employment Tribunal was not Meek compliant
because the Employment Tribunal failed to explain why it preferred
Mr Wilson’s evidence. In discrimination cases, oral evidence is of
particular importance. Mr Jones drew our attention to a decision in the
commercial court of HHJ Mackie QC in Webster Thompson Ltd
v JG Pears (Newark) Ltd [2009] EWHC 1070 (Comm).
HHJ Mackie accepted that a court should be careful not to determine the
central issue in a case on the basis of hearsay evidence alone, quoting the
decision of Dyson LJ in Welsh v Stokes [2008] EWCA Civ 796;
we note at this point that the Employment Tribunal in the instant case did not
decide the case solely on the basis of hearsay evidence. It relied extensively
on contemporaneous documents, the Claimant’s own evidence and the unchallenged
minutes of the meeting of 15 September 2008.
Protected disclosures
81.
The Claimant challenges the Employment Tribunal’s treatment of the
disclosures of 5, 21 and 24 September 2008. In relation to the
email of 5 September 2008 the Employment Tribunal was wrong to have found
that the email constituted a request for advice rather than the imparting of
information. There is no reason why a qualifying disclosure could not be in
the form of identifying the problem and asking what was to be done about it.
Mr Jones reminded us that a claimant need only have a reasonable belief in
there being a breach of a legal obligation; see Babula v Waltham Forest College [2007] ICR 1026. In relation to the letter of
21 September 2008, although it is accepted that a distinction can be drawn
between the making of a protected disclosure and the manner in which it is
made, such a distinction should only be drawn in extraordinary cases; see Martin
v Devonshires Solicitors [2010] UKEAT/0086/10/DA.
82.
It was submitted that the Employment Tribunal having found that the
letter of 21 September amounted to a protected disclosure should have held
that it formed the basis for the findings of subsequent victimisation. If this
had acted on the Respondent’s mind insofar as the specific detriments were
concerned, it was inconsistent for the Employment Tribunal not to similarly hold
that it affected the Respondent’s mind as to the reason for dismissal.
83.
In relation to the disclosure of 24 September 2008 the Employment
Tribunal had ignored s.43L(3) of the ERA. There was no reason why information
needed to be new.
Detriment
84.
Failure to pay by BACS was a detriment as well as a breach of contract.
The contract was continued by the CCO; Burton J was wrong in Dowling
to say that the contract was not continued save only for the purposes of giving
effect to the section. We are not able to agree with this submission and we
should follow the decision of Burton J unless it can be demonstrated that
it is clearly wrong. We do not consider that it is. We shall turn to the case
later in this Judgment.
85.
Mr Jones submitted in relation to failure to pay by way of BACS
that the Claimant had the inconvenience of having to pay in cash or cheques.
Just as late payment amounted to a detriment so was non‑payment by BACS.
BUPA and travel insurance
86.
Mr Jones submitted that the Claimant was entitled under s.130 to
the benefit of both BUPA and travel insurance, even though at the date of
dismissal the Claimant’s right to BUPA had not accrued, as it was a benefit
continued by the CCO. Similarly the Claimant lost the benefit of travel
insurance; we put to Mr Jones that it could not be said he had suffered
any detriment because travel insurance was only available for the purposes of
company travel and he undertook no such travel after the date of his dismissal.
Failure to reply to correspondence, grievances and protected
disclosures
87.
The Respondent, it was submitted, was bound to have the grievances
resolved quickly and there was no evidence as to why the Respondent had not
responded. Mr Jones turned to consider complaints made against the
Claimant. Insofar as the Vienna hotel was concerned, the Claimant acted
reasonably. He did not want to book a hotel himself and put the bill on his
credit card without express prior authority as was required by his contract.
In relation to complaints that he had not taken action to remedy issues in Italy, he had no authority to do so.
88.
After the completion of submissions there arose the question of whether
certain documents had been made available to us. We said we would permit those
missing documents to be supplied to us. The Claimant (rather than counsel)
took the opportunity to provide us with a detailed three page letter with
additional documents and authorities. We had at that point in time concluded
our discussions as to our decision even though the Judgment had yet to be
written. These additional submissions largely replicated earlier submissions
and in the circumstances, rather than call for further submissions from the
Respondent and arrange further discussions between ourselves, we decided that
the additional submissions did not assist us or raise any new point but largely
repeated and expanded upon earlier points and inadmissibly attempted to
re-argue facts. Why the Claimant has chosen to lodge such a submission is not
clear to us.
The Respondent’s case and submissions
89.
Mr Timothy Brown submitted that the Claimant had failed to ask
whether the Employment Tribunal had taken the correct approach to the
evidence. He submitted that the correct approach was to ask what were the
primary findings of fact by the Employment Tribunal; was there sufficient
evidence to support those findings; what conclusions were made that were based
on those findings; and did the primary findings support those conclusions. The
Claimant had accepted that the Employment Tribunal was not bound to draw an
inference for the failure to call a witness. It had directed itself correctly
as to the approach to evidence that had not been tested in cross‑examination.
It directed itself correctly as to the burden of proof in paragraph 35.
90.
In relation to the email at page 203 of 5 September, what protected
disclosure could there be? The Claimant had made insufficient enquiries to
enable him to form a reasonable belief. He was unable to say how often and for
how long Mattan had to sleep on the road. Further, the Claimant failed on the
issue of causation; see paragraph 51 where the issues were addressed and
at paragraph 73 the Employment Tribunal concluded that even if the email
relating to Mattan amounted to a protected disclosure no detriment had been
suffered as a result of his making the disclosure.
91.
It is quite clear that in the important paragraphs 55 and 56, the
Employment Tribunal was relying on primary facts from contemporaneous
documents. The Claimant could not possibly show that the conclusions reached
by the Employment Tribunal at paragraphs 56 and 57 were unreasonable, let alone
perverse.
92.
The Employment Tribunal was entitled to describe at paragraph 58
the meeting of 15 September as being a “watershed” in the sense that it
was a “defining moment” in the sense of an important and damaging event in the
parties’ relationship. The minutes were a reliable and highly probative record
of what actually occurred. Concerns about the Claimant’s ability to deliver
were not restricted to Mr Wilson’s witness statement, but also, as
identified by the Employment Tribunal at paragraph 63 and in the minutes
of the meeting of 15 September, Mr Allirajah’s unhappiness was
manifest and, on the findings of the Employment Tribunal, wholly justified.
The Respondent’s concerns were wholly consistent with Mr Wilson
considering that he had to intervene when on holiday in an important meeting
that should have been conducted solely by the Claimant.
93.
Mr Brown dismissed the suggestion that there may have been unconscious
discrimination. Mr Wilson’s expressions were just as consistent with his
considering the Claimant to be a liability as a “whistle-blower” and this view
was supported by the contemporaneous documentation.
94.
The challenge to the finding that Mr Allirajah was “furious” on
receipt of the letter of 21 September was clearly supported by the facts.
The Employment Tribunal found that the Claimant had resigned the Italian and
Spanish directorships unnecessarily and Mr Allirajah would have thought so
too in the light of the Claimant’s earlier conduct. The Employment Tribunal
had recorded Mr Wilson saying that the letter would “not go down well” at
the meeting.
95.
In relation to the finding at paragraph 75, the decision to dismiss
the Claimant that had in principle been taken on 16 September was not
based solely on Mr Wilson’s witness statement but also by reference to the
whole series of events and the Claimant’s own evidence with which
Mr Wilson’s witness statement was consistent. Mr Brown submitted
that although the Employment Tribunal rejected the ostensible grounds for
dismissal it was entitled to find that the Claimant’s poor judgment and
performance rather than protected disclosures were the grounds for his
dismissal. It was not the disclosures that concerned the Respondent but the
fact that the Claimant behaved in an inappropriate manner, bothered the CEO
with problems he was supposed to deal with himself or by contacting other
employees whose responsibility it was to deal with such problems. It was evident
from the minutes of the meeting of 15 September that he was interfering in
areas outside his job description, bothering the CEO over a weekend and failing
to produce solutions himself. We should bear in mind that it was the
Claimant’s job to identify shortcomings and deal with them himself.
96.
Mr Brown submitted the Employment Tribunal was entitled on the
evidence to conclude that the reason for his dismissal was that given by
Mr Wilson. In short, his poor performance, rather than having made
protected disclosures. The Employment Tribunal had directed itself correctly
and there was no error of law. The conclusions were Meek
compliant.
97.
So far as the categorisation of the protected disclosures was concerned,
the Employment Tribunal’s interpretation of the email of 5 September was
correct. The email did not assert that a specific malpractice had occurred
because the Claimant was unclear as to what the facts actually were.
Mr Brown submitted that in cross‑examination he had confirmed he
simply did not know how long Mattan had been driving or what the circumstances
were. He had not exercised any judgment about what he had been told about
Mattan nor had he formed any particular belief based on the information. He
was simply discussing the possibilities of what the actual situation might
amount to once established.
98.
So far as the disclosures of 21 September were concerned the
Employment Tribunal did not accept the Claimant’s contention that simply
because he had made protected disclosures his dismissal was by reason of those
disclosures. The Employment Tribunal had explained why it concluded the
Claimant showed a lack of judgment and it was entitled to conclude that the
dismissal was because of that conduct.
99.
In relation to detriment Mr Brown submitted that the CCO did not
specify the method of payment, only that it should be made by a particular
date.
The law
100. It
is helpful to set out the relevant statutory provisions defining the protected
and qualifying disclosures so far as relevant to this case and also relating to
health and safety disclosures. S.43A of the Employment Rights Act defines a protected disclosure as follows:
“[In this Act a “protected disclosure” means a qualifying
disclosure (as defined by section 43B) which is made by a worker in accordance
with any of sections 43C to 43H.]”
101. A
qualifying disclosure is defined in S.43B:
“[(1) In this Part a “qualifying disclosure” means any
disclosure of information which, in the reasonable belief of the worker making
the disclosure, tends to show one or more of the following—
(a) that a criminal offence has been
committed, is being committed or is likely to be committed,
(b) that a person has failed, is
failing or is likely to fail to comply with any legal obligation to which he is
subject,
.........
(d) that the health or safety of any
individual has been, is being or is likely to be endangered,
(2) For the purposes of subsection (1), it is immaterial whether
the relevant failure occurred, occurs or would occur in the United Kingdom or
elsewhere, and whether the law applying to it is that of the United Kingdom or
of any other country or territory.
(5) In this Part “the relevant failure”, in relation to a
qualifying disclosure, means the matter falling within paragraphs (a) to (f) of
subsection (1).]”
102. We note in
passing that the Claimant is only required to have a reasonable belief that
there has been a breach of a legal obligation on the part of the employer; see Babula v Waltham Forest College
[2007] ICR 1026. S.43C defines how a qualifying disclosure is made as follows:
“[(1) A qualifying disclosure is made in accordance with this
section if the worker makes the disclosure in good faith—
(a) to his employer, or
(b) where the worker reasonably
believes that the relevant failure relates solely or mainly to—
(i) the conduct of
a person other than his employer, or
(ii) any other matter for which a
person other than his employer has legal responsibility,
to that other person.”
103. S.44
provides that an employee has the right not to be subjected to any detriment on
the grounds he has raised health and safety issues:
“(1) An employee 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—
(a) having been designated by the
employer to carry out activities in
(c) being an employee at a place
where—
(i) there was no
such representative or safety committee, or
(ii) there was such a representative
or safety committee but it was not reasonably practicable for the employee to
raise the matter by those means,
he brought to his employer's attention, by reasonable means,
circumstances connected with his work which he reasonably believed were harmful
or potentially harmful to health or safety,
(4) . . . this section does not apply where the detriment in
question amounts to dismissal (within the meaning of [Part X]).”
104. S.100
protects employees against being dismissed by reason of having made health or
safety disclosures:
“(1) An employee who is dismissed shall be regarded for the
purposes of this Part as unfairly dismissed if the reason (or, if more than
one, the principal reason) for the dismissal is that—
(c) being an employee at a place
where—
(i) there was no
such representative or safety committee, or
(ii) there was such a representative
or safety committee but it was not reasonably practicable for the employee to
raise the matter by those means,
he brought to his employer's attention, by reasonable means,
circumstances connected with his work which he reasonably believed were harmful
or potentially harmful to health or safety,..”
105. S.103A
provides that an employee dismissed by reason of having made a protected
disclosure should be regarded as having been unfairly dismissed.
“An employee who is dismissed shall be regarded for the purposes
of this Part as unfairly dismissed if the reason (or, if more than one, the
principal reason) for the dismissal is that the employee made a protected
disclosure.]”
106. We also
have in mind the principle set out in Woodward v Abbey National
[2006] IRLR 677 that an employer can incur liability for victimisation that
takes place after termination of the contract of employment. We also have
regard to Kuzel v Roche Products [2008] IRLR 530 which
makes clear that the employee has the burden of showing that a dismissal is by
reason of having made a protected disclosure; it is accepted by both the
Claimant and Respondent that the same principle would apply to a health and
safety disclosure.
107. A
distinction needs to be drawn between the fact of making a protected disclosure
and the manner of making it, although there is need to exercise some caution in
this regard; see Martin v Devonshires Solicitors [2010]
UKEAT/0086/10/DA, where the claimant was dismissed after making false
allegations of discrimination even though made in good faith because her
conduct raised mental health issues. The dismissal was not an act of
victimisation but because the employer considered that the further
manifestation of mental health issues was likely to lead to disruptive
behaviour in future; in this regard, see Underhill J at paragraph 22.
“The question in any claim of victimisation is what was the
"reason" that the respondent did the act complained of: if it was,
wholly or in substantial part, that the claimant had done a protected act, he
is liable for victimisation; and if not, not. In our view there will in
principle be cases where an employer has dismissed an employee (or subjected
him to some other detriment) in response to the doing of a protected act (say,
a complaint of discrimination) but where he can, as a matter of common sense
and common justice, say that the reason for the dismissal was not the complaint
as such but some feature of it which can properly be treated as separable. The
most straightforward example is where the reason relied on is the manner
of the complaint. Take the case of an employee who makes, in good faith, a
complaint of discrimination but couches it in terms of violent racial abuse of
the manager alleged to be responsible; or who accompanies a genuine complaint
with threats of violence; or who insists on making it by ringing the Managing
Director at home at 3 o'clock in the morning. In such cases it is neither
artificial nor contrary to the policy of the anti-victimisation provisions for
the employer to say "I am taking action against you not because you have
complained of discrimination but because of the way in which you did it".
Indeed it would be extraordinary if those provisions gave employees absolute
immunity in respect of anything said or done in the context of a protected
complaint.... . It would certainly be contrary to the policy of the
anti-victimisation provisions if employers were able to take steps against
employees simply because in making a complaint they had say, used intemperate
language or made inaccurate statements. An employer who purports to object to
"ordinary" unreasonable behaviour of that kind should be treated as
objecting to the complaint itself, and we would expect tribunals to be slow to
recognise a distinction between the complaint and the way it is made save in
clear cases. But the fact that the distinction may be illegitimately advanced
made in some cases does not mean that it is wrong in principle.”
108. We also
have regard to what Wall J had to say in Hossack v Kettering Borough
Council EAT/1113/01 paragraph 41:
“We see the force of Mr McGrath's anxiety that a differentiation
between the content of a disclosure and the manner in which it is made could,
if not carefully analysed, emasculate the legislation. Plainly, any Tribunal
approaching a protected disclosure will need to be alert to that danger. In our
judgment, however, this Tribunal was so alert, and its conclusions are not
only, in our view, correct in law, they also accord with common-sense and in no
way offend against either the spirit or the letter of the legislation.”
109. We now
turn to consider the law relating to the use of hearsay evidence in Employment
Tribunals. The starting point is rule 14(2) of the Employment Tribunal (Constitution
and Rules of Procedure) Regulations 2004.
“14
(2) So far as it appears appropriate to do so, the chairman or
tribunal shall seek to avoid formality in his or its proceedings and shall not
be bound by any enactment or rule of law relating to the admissibility of
evidence in proceedings before the courts.
….
(5) If a party wishes to submit written representations for
consideration at a hearing (other than a case management discussion) he shall
present them to the Employment Tribunal Office not less than 7 days before the
hearing and shall at the same time send a copy to all other parties.”
110. Mr Jones
argued that in the circumstances of this case the Employment Tribunal was in
effect bound to give specific consideration to the matters relevant to the
weighing of hearsay evidence to be found in s.4 of the Civil Evidence Act
1995 and applied in civil courts. S.4 is as follows:
“4 Considerations relevant to weighing of hearsay evidence
(1) In estimating the weight (if any) to be given to hearsay
evidence in civil proceedings the court shall have regard to any circumstances
from which any inference can reasonably be drawn as to the reliability or
otherwise of the evidence.
(2) Regard may be had, in particular, to the following—
(a) whether it would have been
reasonable and practicable for the party by whom the evidence was adduced to
have produced the maker of the original statement as a witness;
(b) whether the original statement
was made contemporaneously with the occurrence or existence of the matters
stated;
(c) whether the evidence involves multiple
hearsay;
(d) whether any person involved had
any motive to conceal or misrepresent matters;
(e) whether the original statement
was an edited account, or was made in collaboration with another or for a
particular purpose;
(f) whether the circumstances in
which the evidence is adduced as hearsay are such as to suggest an attempt to
prevent proper evaluation of its weight.”
111. He relied
strongly on the decision of the Employment Appeal Tribunal (Sir Ralph
Kilner Brown) in Snowball v Gardiner Merchant [1987] ICR 719 at
page 722.
“In spite of the wide discretion which Parliament has entrusted
to an Industrial Tribunal, it must not however be exercised in a capricious
fashion. In particular a Tribunal must not ignore nor totally disregard the
well-established principles of law with reference to the admissibility of
evidence.”
112. We were
also referred to other cases in the civil courts where the strict rules of
evidence including the Civil Evidence Act apply. In Welsh v
Stokes [2008] 1 WLR 1224 the claimant had fallen from a horse at a road
junction and only hearsay evidence was available as to the circumstances, made
in a statement of an unknown motorist to another witness. The trial judge
accepted the hearsay evidence as reliable. Dyson J had this to say at paragraph 22
of his Judgment:
“22. In my judgment, therefore, the judge was entitled to infer
that the hearsay evidence was reliable and conclude that he should give it
weight. He reached a conclusion that was reasonable and well within the ambit
of conclusions that were reasonable for a court to reach. Even if the hearsay
evidence were the only evidence on which the claim was based, I would not
accept that this was necessarily a reason for giving it no weight. It would
depend on all the circumstances. I accept that there will be cases where it is
so unfair to hold a defendant liable solely on the basis of hearsay evidence
that a court should place little or no weight on the evidence. Consideration of
the factors stated in section 4(2) will point the way, but will not necessarily
be determinative. In some cases the defendant may be able to adduce evidence to
contradict, or at least cast doubt on, the hearsay evidence. But there will
also be cases, like the present, where the defendant is not in that position.
Apart from the unidentified motorist and the claimant, there were no witnesses
to the accident. In such a case, there may be said to be unfairness to the
defendant in having to face hearsay evidence which he cannot directly
challenge. On the other hand, there would be unfairness to the claimant to
place no weight on the hearsay evidence, since without it her claim would
inevitably fail.
23. The decision what weight (if any) to give to hearsay
evidence involves an exercise of judgment. The court has to reach a conclusion
as to its reliability as best it can on all the available material. Where a
case depends entirely on hearsay evidence, the court will be particularly
careful before concluding that it can be given any weight. But there is no rule
of law which prohibits a court from giving weight to hearsay evidence merely
because it is uncorroborated and cannot be tested or contradicted by the
opposing party. I do not consider that the statements in the authorities relied
on by Miss Rodway in her skeleton argument support such an extreme proposition.”
113. It is to
be noted that Dyson J considered that even where a case depended
“entirely” on hearsay evidence the court had to exercise its judgment and reach
a conclusion as to its reliability as best it could on all available material.
In the present case, as we have noted, the Employment Tribunal had
contemporaneous documents and the evidence of the Claimant himself in addition
to Mr Wilson’s witness statement.
114. For the
sake of completeness we also refer to the decision of HHJ Mackie QC in Webster Thompson Ltd
v JG Pears (Newark) Ltd [2009] EWHC 1070 when he
said that the court should be careful not to determine the central issue of the
case on hearsay evidence alone, but again he stressed the importance of the discretion
of the judge as to the weight to be given to such evidence.
115. We now
turn to consider the effect of the order for the continuation of the contract
of employment made under s.130 of the Employment Rights Act.
116. An
employee who is dismissed by reason of having made health or safety disclosures
(see s.100(1)) or for making protected disclosures (see s.103A) is entitled to
seek interim relief under s.128 pending determination of his complaint. The
relevant procedure is set out at paragraph 129. Paragraph 130
provides as follows:
“130 Order for continuation of contract of employment
(1) An order under section 129 for the continuation of a
contract of employment is an order that the contract of employment continue in
force—
(a) for the purposes of pay or any
other benefit derived from the employment, seniority, pension rights and other
similar matters, and
(b) for the purposes of determining
for any purpose the period for which the employee has been continuously
employed,
from the date of its termination (whether before or after the
making of the order) until the determination or settlement of the complaint.
(2) Where the tribunal makes such an order it shall specify in
the order the amount which is to be paid by the employer to the employee by way
of pay in respect of each normal pay period, or part of any such period,
falling between the date of dismissal and the determination or settlement of
the complaint.
(3) Subject to the following provisions, the amount so specified
shall be that which the employee could reasonably have been expected to earn
during that period, or part, and shall be paid—
(a) in the case of a payment for any
such period falling wholly or partly after the making of the order, on the
normal pay day for that period.”
117. The effect
of s.130 was considered by Burton J in Dowling v Ilic Haulage & anor
[2004] ICR 1176. He was considering the statutory predecessor of what is now
s.130, paragraph 24.1:
“24.1 I am satisfied that what is effected by the Continuation
Order is not only not a contract of employment within s230 of the 1996 Act or
Regulation 2(1) of TUPE because of what Dr Davies called the "purely
statutory and unilateral [because no service was required]" nature of
it. It is wholly different from the examples referred to in Miss Morris' third
submission, of employees whose contracts of employment have not terminated but
in which they are absolved from providing services under the contract by the
terms of it, or some statutory implication into it. Those who are the subject
of a Continuation Order are ex-employees, whose contracts have
terminated, such that, as Mr Dulovic put it, there is no subsisting contract of
employment upon which Regulation 5(1) can have any effect (as in Secretary
of State for Employment v Spence [1986] ICR 651). The Continuation Order
could be revoked by application under s165(1) of the 1992 Act, set out in
paragraph 4 above "on the ground of a relevant change of circumstances
since the making of the order". ......
24.3 In any event it is, in my judgment, quite plain that the
Continuation Order is not intended to and does not effect a statutory
continuation of the contract of employment, even allowing for the fact that it
would need to be varied by exclusion of a most significant element of it,
namely the obligation to serve, as discussed above. Section 164 is careful in
its terminology. It prescribes that there are two purposes for which the
contract of employment continues in force, the first ((a)) for the purposes of
pay and benefits, with the applicant being paid an amount to "be
determined as if he had not been dismissed [s164(7)]" and also ((b))
"for the purpose of determining for any purpose the period for which
the employee has been continuously employed". Miss Morris accepted
that these two purposes are the exclusive purposes of s164(1): it is to be
noted that in s79(1) of the Employment Protection Act 1975 (the immediate
predecessor of the consolidating Act of 1992), to which Miss Morris herself
referred, and which she accepted fell to be interpreted in the same way as s164
in the consolidating Act, the slightly different formulation of the same
provision makes it clear that the continuation was "only" for
the two purposes. The first purpose therefore is quite clearly only related to
protecting the employees' rights to payment and benefits. The second purpose
was also at any rate expressed as if it was intended to be only one dedicated
to be towards calculation, i.e. calculation or determination of the period of
continuous employment. This meant for example that, as and when the unfair
dismissal claim was heard, although the effective date of termination would
still remain the same, the calculation, and entitlement, based on
continuity would not be based on that date.”
118. So far as
our general approach to the decision of the Employment Tribunal is concerned,
we remind ourselves of the very high threshold required for a successful
perversity appeal; see Yeboah v Crofton. The need for
an Employment Tribunal to provide sufficient reasons to enable the parties to
know why they have won or lost respectively is well known and set out in the
cases of Meek and Anya so we do not need to refer
to them. There is no need for an Employment Tribunal to refer to all the
evidence or all the submissions, and it is pertinent to bear in mind the
Judgment of Waite J in RSPB v Croucher [1984] ICR 604:
“We have to remind ourselves also of the important principle
that decisions are not to be scrutinised closely word by word, line by line,
and that for clarity’s and brevity's sake Industrial Tribunals are not to be
expected to set our every factor and every piece of evidence that has weighed
with them before reaching their decision. So it is for us to recall that what
is out of sight in the language of a decision is not to be presumed necessarily
to have been out of mind. It is our duty to assume in an Industrial Tribunal’s
favour that all the relevant evidence and all the relevant factors were in
their minds, whether express reference to that appears in their final decision
or not; and that has been well established by the decisions of the Court of
Appeal in the Retarded Children's Aid Society v Day [1978 IRLR 128.”
119. We also
note that there is no need for the Employment Tribunal to refer to all the
evidence and to all of the submissions (see Balfour Beatty Power Networks
v Wilcox [2007] IRLR 63 per Buxton LJ). We mention this because
of a submission by the Claimant that the Employment Tribunal had failed to take
into account the fact that he had apparently “knuckled down” to compliance with
the Respondent’s requirements.
Conclusions
120. The
principal complaint made by the Claimant is the Employment Tribunal’s reliance
upon the witness statement of Mr Wilson and its consequent finding that he
had not been dismissed by reason of having made protected disclosures or health
and safety disclosures.
121. It is
clear that an Employment Tribunal is not obliged to treat hearsay evidence
strictly in accordance with the Civil Evidence Act as made clear in
Employment Tribunal rule 14(2). It is nowadays commonplace for Employment
Tribunals to receive hearsay evidence in witness statements or other documents.
Indeed the Claimant himself relied upon the statements of two witnesses who
were not called to give evidence. We can safely assume the Employment Tribunal
is, therefore, well aware of issues that arise as to the weight of such
evidence, in particular because the witness will not have been subjected to
cross‑examination. We can, therefore, assume the Employment Tribunal was
aware of the matters raised by Mr Jones and it is clear to us that the
Employment Tribunal carried out the appropriate weighing exercise and set
Mr Wilson’s evidence clearly in the matrix of the contemporaneous
documents and the Claimant’s own evidence.
122. The
Employment Tribunal gave clear reasons why Mr Wilson’s evidence was
accepted as to the reason for dismissal. The Employment Tribunal itself drew
attention to the fact it was somewhat surprising the Respondent had elected to
call no evidence; as Mr Singh pointed out during the course of
submissions, that suggests to us that the Employment Tribunal was well aware of
the need for special care in a case where the Employment Tribunal was placing
reliance upon the witness statement of someone who was not called. We reject
the suggestion that the Employment Tribunal was bound to specifically make
reference to the criteria set out in the Civil Evidence Act, as a civil
court might be required to do. The principal reason for concern about
Mr Wilson’s evidence was the fact that he was not cross‑examined.
The Employment Tribunal made it clear at the outset at paragraph 4 that
they needed to bear this in mind. They returned to this matter again at
paragraph 75 and at paragraph 35 when discussing the burden of proof
and that, although the burden of proof was often not determinative, in the
instant case the Respondent had not called evidence of its own and that had a
bearing on some of the findings the Employment Tribunal made.
123. It is
important to stress again that the Employment Tribunal did not rely solely upon
the evidence of Mr Wilson. His evidence was in part complemented and in
part corroborated by contemporaneous documents, including the Claimant’s
letters and emails and the minutes of the meeting with Mr Allirajah of
15 September. The Employment Tribunal noted that these minutes had been
accepted as accurate and the substance of the minutes was not challenged by the
Claimant. The Employment Tribunal also had the Claimant’s own evidence.
124. In a
number of respects the Employment Tribunal rejected his evidence. (a) By way of
example at paragraph 68 they rejected his evidence as to whose
responsibility it was to make arrangements for banking cash in Italy. (b) It rejected the Claimant’s evidence as to the nature of the email of
14 September. (c) It rejected the Claimant’s case that Mr Allirajah
at the meeting of 15 September was simply annoyed as to a single issue as
the Claimant asserted, rather than as the Employment Tribunal found, that he
was concerned about a number of matters which raised issued as to whether the
Claimant could be regarded as a reliable employee.
125. In
considering the evidence the Employment Tribunal was entitled, and indeed
bound, to have regard to the fact that the Claimant was a highly paid employee
whose responsibility it was to identify and resolve problems concerning
financial matters.
126. As we have
said, the Employment Tribunal was entitled to draw conclusions from
contemporaneous documents. We draw attention to the criticism made by the
Employment Tribunal of the Claimant’s conduct in paragraph 56 in relation
to the email of 14 September that he had sent on Sunday because this
showed poor judgment and no sense of proportion on the part of the Claimant,
its tone was “surprising”, the Claimant had initially said this was a perfectly
innocent email although he later accepted “with hindsight” that he could have
raised his concerns in a more diplomatic way, and the Employment Tribunal was
unable to accept the Claimant’s evidence that this was an appropriate and
measured communication; it found such an assertion difficult to understand.
127. The
Employment Tribunal found that the Claimant was willing to jeopardise the
Austrian trip and the vital meeting with KPMG. He appeared to have no
appreciation of the difficulty at which his email placed persons at different
ends of the Respondent’s corporate structure, the CEO on the one hand and a
junior clerk on the other. It also showed a lack of initiative on the
Claimant’s part. He should have sorted out the hotel himself; we did not find
his explanation that he was unwilling to use his own credit card because this
had not been expressly authorised in advance as convincing. We also refer to
the findings of the Employment Tribunal at paragraph 58 where the
Employment Tribunal concluded that Mr Allirajah at this meeting had
genuine concerns about the Claimant’s qualities as a reliable employee and that
he had focussed on issues more properly addressed by others and without a full
understanding of the facts or time for reflection upon them.
128. The
Employment Tribunal was also entitled to conclude that the Claimant’s
resignation from the Italian (and Spanish) subsidiaries as referred to in
paragraph 73 justified the finding that the matters upon which the
Claimant reported were not of such significance and urgency as to justify his
resignation forthwith that weekend without prior reference to anyone in the
Respondent. The Employment Tribunal was entitled to conclude that,
objectively, the Claimant’s actions were unnecessary and Mr Allirajah was
likely to have taken the same view. At paragraph 74 the Employment
Tribunal concluded, as it was entitled to, on the evidence, that
Mr Allirajah was furious when he received the letter of
21 September. That was the second occasion within a week in which the
Claimant had in the words of the Employment Tribunal acted “crassly”. He was
employed in a senior capacity to identify and solve problems arising out of the
Respondent’s European operations and was well paid; on the contrary, however,
he had threatened to jeopardise important meetings the previous week because he
was unhappy with his hotel and he now had resigned his directorships without
thought that the matters he raised required explanation and discussion. The
Employment Tribunal was again entitled to conclude that the Claimant’s conduct,
“as revealed by the papers” showed a lack of judgment and that was why he was
dismissed.
129. Accordingly
we would reject the criticism of the Employment Tribunal’s having accepted
Mr Wilson’s evidence. The decisions of the Employment Tribunal were not
based solely upon Mr Wilson’s evidence but firmly rooted in the
contemporaneous documents. The contents of the Claimant’s own documents reveal
his somewhat petulant conduct and poor judgment that justified the Respondent
in losing all trust in his ability to perform.
130. We accept
the Respondent’s submission (which was not really contentious) that is was
necessary to show that the Employment Tribunal had made primary findings of
fact and that there was sufficient evidence to support those findings of fact.
It was necessary to show what conclusions had been reached by the Employment
Tribunal based on those findings and that the primary findings supported those
conclusions.
131. We are
satisfied that the Respondent has demonstrated that the Employment Tribunal
made primary findings of fact for which there was sufficient evidence and made
conclusions based on those findings which were supported by those findings.
132. We have
considered the various points of criticism made as to individual findings. In
our opinion there was evidence to justify each of the findings and sufficient
reasons were given so as to satisfy the requirements of Employment Tribunal
rule 30(6) and Meek. In particular we are satisfied there was
ample evidence to support the Employment Tribunal’s finding at
paragraph 56 that the Claimant displayed poor judgment and a lack of a
sense of proportion. We are satisfied with the finding at paragraph 58
that the meeting of 15 September 2008 represented a “watershed” in that
the Respondent by now had the “flavour” of the Claimant.
133. We are
satisfied there was evidence to support the Employment Tribunal’s decision at
paragraph 63 that the Respondent had concerns about the Claimant’s ability
to deliver.
134. We also
are satisfied that there was evidence to support the finding at
paragraph 74 that Mr Allirajah was no doubt “furious”.
135. The
Employment Tribunal was also entitled to conclude that the decision in
principle to dismiss the Claimant had been made on or about 16 September
and that the real reason for the dismissal of the Claimant was dissatisfaction
with his judgment and a lack of trust in his judgment.
136. We deal in
particular with issues specifically picked out by Mr Jones. Insofar as
Mr Allirajah’s reaction to the Claimant’s correspondence and conduct is
concerned, as being “furious”, not only is this borne out by the
contemporaneous documents but on the facts it was a likely reaction in the
context of this being the second occasion in a week in which the Claimant had,
in the Employment Tribunal’s words, acted “crassly”. Further, despite his
initial dressing down by reason of the earlier email of 14 September, the
Claimant had again behaved “crassly”. The Employment Tribunal found that the
Claimant’s resignation, as we have said, was unnecessary and bound to cause
great concern as it was uncalled for and made without consultation or notice.
Mr Allirajah would have thought so too in the light of his earlier
criticism of the Claimant and the Employment Tribunal themselves record the
Claimant saying that Mr Wilson told him that his letter “would not go down
well” at the meeting.
137. Mr Jones’
criticism of the use of the term “watershed” is misplaced. The Employment
Tribunal were clearly suggesting that the meeting constituted a defining moment
when in the circumstances the Respondent had come to see that the Claimant was
not a suitable member of the team.
138. There is
nothing that we have seen to suggest that there was unconscious discrimination
on the part of the Respondent, nor a substitutionary mindset on the part of the
Employment Tribunal
139. We now
turn to consider the points made in relation to protected disclosures.
140. In
relation to the email of 5 September we cannot fault the Employment
Tribunal’s decision that this was not a protected disclosure because it was
requesting rather than supplying information. Further, the Claimant did not
assert that there was serious malpractice because he did not know what the
facts were (we note the Respondent says that he accepted this in cross‑examination
and that he did not know how long Mattan had driven for or what distances). In
any event there was no detriment suffered by the Claimant because of the clear
finding by the Employment Tribunal that he was not dismissed by reason of making
a protected disclosure in this email; see Employment Tribunal
paragraph 51.
141. S.43B
protects disclosure of information only, that is to say, facts, as made clear
in Cavendish Munro Professional Risks Management v Geduld. So
far as the emails of 21 September are concerned, the Employment Tribunal
accepted that these were qualifying and protected disclosures but the complaint
was not the making of the disclosures but the manner of doing so, so this is a
clear case, as found by the Employment Tribunal, of the principle illustrated
in cases such as Hossack and Martin v Devonshires.
The real complaint by the Respondent was not the making of the complaint itself
or the information imparted by the Claimant but the wider issues it raised
about the Claimant’s judgment, ability to sort things out himself, his
inappropriate bothering of the CEO over a weekend in the context of his earlier
inappropriate conduct, including his inappropriate resignation as a director of
the Italian and Spanish subsidiaries, leaving them so we believe without
directors, and having done so without any consultation and prior warning. So
far as the letter of 24 September 2008 was concerned, simply because the
Claimant made protected disclosures and that his dismissal followed, it did not
follow that his dismissal was necessarily on the grounds of having made
protected disclosures. The Employment Tribunal was justified in concluding the
contrary.
142. We now
turn to the issue of detriment. So far as the bank transfers were concerned,
although this is of minor significance it is capable of being a detriment.
However, the obligation to make payment by bank transfer was not caught by the
Continuation of Contract Order. We agree with the Employment Tribunal that
this was not an obligation continued by s.130; see Dowling which
we have cited earlier. We note that after HHJ Ansell reinstated payment
by bank transfer we do not accept that he intended to lay down a principle that
s.130 gives an Employment Tribunal jurisdiction to direct not only the time of
the payment but also the manner of payment; if HHJ Ansell did intend that
the Employment Tribunal was given that jurisdiction we respectfully disagree.
S.130 is clear and empowers an Employment Tribunal to require payment of salary
“in the case of a payment for any such period falling wholly or partly after
the making of the order on the normal pay day for that period”; it gives no
power to the Employment Tribunal to determine the manner of payment. This must
be a matter for the Respondent, provided that the payment reaches the Claimant
or his bank on or before the due date. There is no challenge that the late
payment was an actionable detriment. The late payments will also be a breach
of the CCO and as we have said on the findings of the Employment Tribunal at
paragraph 86, these would amount to an actionable detriment. The
Respondent failed to explain the reason for late payments and had therefore
failed to discharge the burden of showing that the late payments were not the
result of a protected disclosure; there has been no cross‑appeal.
143. We would
observe that the fact that payment was made by cheque is irrelevant. Although
for the purposes of summary judgment payment by cheque may be regarded as
equivalent to payment by cash it has nothing to do with the date when payment
of salary is made. When payment is made by cheque, payment is effected when
the cheque is cleared. The Respondent, for reasons we do not know, failed to
ensure that payments were received by the Claimant by bank transfer or
otherwise on or before the due date as provided by the CCO.
144. We are
also unable to agree with the Employment Tribunal in relation to payment of
BUPA health insurance. This was a benefit and this should have continued as a
benefit even if not yet accrued under s.130(1)(a). There is, however, nothing
to suggest that the reason why the Claimant was not provided with BUPA cover was
by reason of having done any protected act, rather the belief, so it would
appear to us, that the Claimant was not entitled to the benefit of health
insurance as he had not completed his three month qualifying period. However,
the failure to give him the benefit of BUPA would have been a breach of
contract by reason of the CCO. In relation to failure to reply to letters, in particular
in relation to Jewish holidays, we see no reason to differ from the Employment
Tribunal that this failure did not constitute a detriment. In any event the
failure was not by reason of his having made protected disclosures.
145. So far as
travel insurance is concerned, we accept the Claimant was entitled to travel
insurance for the purposes of business travel only. As he did not travel for
the company after his dismissal, there can have been no detriment and the
obligation to provide him with travel insurance would not continue under s.130.
146. We see no
reason to differ from the conclusion reached by the Employment Tribunal that
the Claimant’s email of 5 September was responded to, although not in
writing, and there was no post‑employment detriment in relation to the
failure to respond to the letters of 21 and 24 September because
these were not answered as the Claimant was no longer employed by the
Respondent or concerned with the future of its business.
147. Therefore,
save in relation to the issue of BUPA benefit as being a breach of the CCO, the
grounds of appeal all fail and the appeal is dismissed.
148. It only
remains for us to thank counsel for their helpful skeleton arguments and oral
submissions.
