Mr D Farrell v Shaw Trust Ltd and Mr C Luck: 1300309/2021

EMPLOYMENT TRIBUNALS

Case No 1300309/2021

Between

Mr D FarrellClaimant

Shaw Trust Ltd and Mr C LuckRespondent

Before

Employment Judge Britton

In person for claimant

Mr D Northall (instructed by Counsel) for respondent

Date 31 October 2022

JUDGMENT

It does not appear to the Tribunal that it is likely that on determining the complaint to which the application relates that it will find that the claimant has been unfairly dismissed by virtue of Section 103A of the Employment Rights Act 1996. The claimant’s Interim Relief application is refused.

REASONS

CONCLUSIONS

[1]By his Claim Form presented on 27 January 2021 the claimant asserted that he had been dismissed for what might broadly be described as “whistleblowing”. The claimant alleges that this was the reason or principal reason for his dismissal and that his dismissal was therefore automatically unfair. Pending resolution of his unfair dismissal claim, the claimant has applied for interim relief pursuant to Section 128 of the Employment Rights Act 1996 (“ERA 1996”). Although there are two named respondents, this application can only be made against the First Respondent as they were the claimant’s employer (hereinafter “the respondent”).

[2]On the face of the Claim Form, the relevant disclosure on which the claimant appears to rely was made on 18 March 2020 by an anonymous email from the claimant to an anonymous email account maintained by the respondent for the purpose of facilitating anonymous disclosures of this type.

[3]The issue to be determined is whether I am satisfied that “it is likely that on determining the complaint” the Tribunal will find that the reason or the principal reason for dismissal is the prohibited reason under Section 103A ERA 1996 which the claimant has asserted. In determining that issue, I have been provided with an agreed bundle running to 393 pages, 2 audio recordings, a skeleton argument from the respondent’s representative and witness statements made by the following on behalf of the respondent: Sharon Barton – HR Business Partner Manager Jennifer Dillon – Head of Work and Health Program Jenny Woodrow – Director of Job Entry Targeted Support

[4]The application for interim relief was heard by CVP and it was set down for a full one day hearing. The full day was required largely due to the fact that there were difficulties with the CVP connection. Although both parties made lengthy oral submissions and, as indicated, I was furnished with a large bundle of documentation, no oral evidence was called.

Relevant Law

[5]Sections 128-132 ERA 1996 set out the procedure for an application for interim relief. Section 128(1) provides that:- “An employee who presents a complaint to an Employment Tribunal that he has been unfairly dismissed and –(a) that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in – (i) Section 100(1)(a) and (b), 101A(d), 102(1), 103 or 103A, or (ii) –

(b) – may apply to the Tribunal for interim relief. (2) the Tribunal shall not entertain an application for interim relief unless it is presented to the Tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date).

[6]As to the ground on which interim relief may be granted, Section 129(1) ERA states as follows:- (1) this Section applies where, on hearing an employee’s application for interim relief, it appears to the Tribunal that it is likely that on determining the complaint to which the application relates the Tribunal will find – (a) that the reason (or, if more than one, the principal reason) for the dismissal is one of those specified in – (i) Section 100(1)(a) and (b), 101A(d), 102(1), 103 or 103A, or (ii) – (b) –

[7]Section 129 ERA also deals with the position that arises if the Tribunal is satisfied that it appears likely that on determining the complaint the Tribunal will find that the reason (or if more than one the principal reason) for the dismissal is one of those specified, as set out above, and for the purpose of this claim, the primary remedy is either reinstatement or re-engagement. If the employer is unwilling to reinstate or reengage the employee pending the hearing of the unfair dismissal claim, the Tribunal shall make an Order for the continuation of the employee’s Contract of Employment.

[8]The burden of proof is on the claimant to satisfy the Tribunal that it is “likely” he was dismissed for an automatically unfair reason: Bombardier Aerospace v McConnell

[2008] IRLR 51

[9]The test that a Tribunal is required to apply when determining an application for interim relief is whether “it is likely that on determining the complaint” the Tribunal will find that the reason or the principal reason for dismissal was the reason which the employee has asserted. It is not sufficient that the employee is able to establish that “it is likely” that they were otherwise unfairly dismissed, ie. for other reasons. In this case, the respondent contends that the reason or principal reason for dismissal was conduct, which is not a prohibited reason, and if that appears to be the real reason the application for interim relief will fail.

[10]The correct approach to be applied to the meaning of “it is likely” has been resolved by case law. It is not sufficient for the employee to show that, on the balance of probabilities, he or she is going to win at the subsequent unfair dismissal hearing. It was held in Taplin v C Shippam Limited

[1978] ICR 1068

that the appropriate test is higher than simply establishing that the balance is somewhat more in favour of the employee’s prospect of success. It must, on the authority of Taplin, be established that the employee can demonstrate a pretty good chance of success.

[11]The EAT endorsed the Taplin approach in Dandpat v University of Bath [2009]

UKEAT/0408/009

[12]For the interim application to succeed, the claim that the claimant was dismissed for an automatically unfair reason under Section 103A ERA must therefore stand “a pretty good chance of success” or, alternatively, as referred to by the EAT in Derby Daily Telegraph v Foss [1991]

UKEAT/631/921

it is necessary for the claimant to establish that his case looks like “a potential winner”.

[13]As identified by the respondent’s representative within his skeleton argument, the threshold of “likely” in the context of an interim relief application is set comparatively high. Set out within this skeleton argument is the extract from the EAT judgment in Dandpat, in response to the assertion that interim relief applications rarely succeed because the legislation as interpreted is set too high, as follows:- “Taplin had been recognised as good law for 30 years. We see nothing in the experience of the intervening period to suggest that it should be reconsidered. On ordinary principles, we should be guided by it unless we are satisfied that it is plainly wrong. That is very far from being the case. We do in fact see good reasons of policy for setting the test comparatively high, in the way in which this Tribunal did in the case of applications for interim relief. If relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the Contract as continuing and pay the claimant until the conclusion of the proceedings: that is not a consequence that should be imposed lightly”.

[14]As stated by the EAT in Ministry of Justice v Sarfraz

[2011] IRLR 562

for an application for interim relief to be granted, it must appear to be likely that a Tribunal will find that: -• The claimant has made a disclosure to their employer;

• They believed that the disclosure tended to show one or more of the matters set out at (a)-(f), Section 43B ERA 1996;

• The belief was reasonable;

• The claimant believed the disclosure to be in the public interest;

• The disclosure was the principal reason for the dismissal.

[15]The respondent plainly does not concede that the reason or principal reason for the claimant’s dismissal was his protected disclosure. In order to determine the true reason for the claimant’s dismissal, it is going to be necessary to make determinations in relation to disputed facts. It is not the role of an Employment Judge to make findings of fact when considering an application for interim relief. However, it is necessary for me to weigh the evidence available to me in order to make an assessment as to whether it appears that the claimant would be likely to succeed in his unfair dismissal claim on the basis that his dismissal was for a prohibited reason.

[16]In London City Airport Limited v Chacko

[2013] IRLR 610

the EAT stated as follows:- “The Employment Judge must do the best he can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases. The Employment Judge is then required to make as good an assessment as he is promptly able of whether the claimant is likely to succeed in a claim for unfair dismissal based on one of the relevant grounds. The relevant statutory test is not whether the claimant is ultimately likely to succeed in his or her complaint to the Employment Tribunal but whether “it appears to the Tribunal” in this case the Employment Judge “that it is likely”.

[17]In London City Transport Limited the EAT went on to hold that what is required is an expeditious summary assessment as to how the matter looks to the Employment Judge on the material available and stated that this “must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim”. Factual Background as it appears from the material available

[18]The claimant was first employed by the respondent between June 2008 and December 2009 when his employment ended by reason of his resignation. Shortly prior to the claimant’s resignation, he had been suspended pending an investigation into an allegation of fraud.

[19]The claimant was re-employed by the respondent into the role of Support Manager with effect from 28 October 2019. A CV for the claimant that had been provided to the respondent, on or about 22 August 2019, in support of his application for employment did not state that he had previously been employed by the respondent.

[20]The claimant sent an anonymous email to the respondent’s CEO (the second respondent) on 18 March 2020. It stated that the claimant was exercising his right to raise a protected disclosure and went on to state the following:- “I would like to disclose that I have evidence of the following: 1. Criminal activity (fraud) that has been committed by senior leadership. 2. Senior leadership deliberately putting the health and safety of its delegates and employees at risk during the current COVID-19 period by failing to follow government guidelines. 3. Senior leadership are bullying Support Managers to achieve unrealistic targets with the threat to manage them out of the business even though the targets set are virtually impossible to achieve. My reason for raising this protected disclosure is to allow the business to investigate and take action where it is deemed necessary. I believe this to be in the public interest and I have a legal obligation to report criminal activity and the failings to follow government guidelines that put the public health and safety at risk.”

[21]The matters raised within the claimant’s email dated 18 March 2020 were investigated by Anthony Pearce, the respondent’s Head of Safeguarding, under their Whistleblowing Policy, with the support of Sharon Barton. As part of the investigation, the claimant met with Mr Pearce on 11 May 2020.

[22]By email sent to the claimant on 31 July 2020 he was informed by Mr Pearce that the activities undertaken on 13 February about which he had been concerned were part of an agreed programme and that his investigation found no evidence of fraud. The claimant was also informed by this email that Mr Pearce had been unable to find any evidence that Senior Leadership had deliberately put the health and safety of delegates and employees at risk or that the duty of care owed to the claimant was not being taken seriously.

[23]The claimant was not entirely satisfied with the feedback that he received from Mr Pearce and entered into further correspondence with him that was initiated by email sent on 3 August 2020 in order to express his concerns about the investigation and its conclusions. The claimant wanted to meet with Mr Pearce again in relation to his disclosures, but his request was declined, as Mr Pearce did not consider it appropriate or necessary to do so.

[24]By email sent on 26 November 2020 to Tori Matthews (Deputy Area Manager), the claimant attached a letter to be forwarded to “HR”. Ms Matthews duly forwarded the claimant’s letter to “HR” in the form of Kath Keating (HR Business Partner) who in turn forwarded it to Ms Barton on 26 November 2020. Amongst other things the claimant’s letter, which was headed “formal grievance” reiterated the gist of the concerns that had been set out within the anonymous email that he had sent on 18 March 2020. Also on 26 November 2020 Ms Barton forwarded the claimant’s grievance to Mark Earl, Chief People Officer, within which she stated “As I am unaware who raised the whistleblowing issue, I wanted to run this past you in case it’s the same person as I don’t want to repeat an investigation if the individual is trying to instigate another via other means ie. grievance!”.

[25]As a result of an investigation conducted by Ms Barton (which appears to have been prompted by Mr Earl), it came to be suspected by Ms Barton that the claimant had deliberately not declared that he had previously worked for the respondent when making an application for employment in August 2019.

[26]The claimant was suspended pending further investigation by Amy Hordley, the Claimant’s Line Manager, supported by Ms Barton, on 7 December 2020, which was confirmed to the claimant in writing by letter dated 7 December 2020, that was signed by Ms Barton. The allegations related to the claimant’s conduct, namely, the alleged willful omission of information and the provision of false information to gain employment.

[27]The allegations against the claimant were investigated by Ms Barton and she prepared a formal report dated 13 December 2020. Ms Barton considered that the allegations constituted gross misconduct and it was her recommendation that the matter be escalated to a disciplinary hearing. The claimant was invited to attend a disciplinary hearing by letter dated 15 December 2020. The respondent intended that the disciplinary hearing would be chaired by Laura Burrough, Regional Operations Manager, which HR support from Ms Barton. In response to objections received from the claimant, regarding their suitability, due to the previous involvement of Ms Barton and the fact that Ms Burrough had been implicated in alleged wrong doing by the claimant’s email dated 18 March 2020, the disciplinary hearing was re-arranged.

[28]The claimant’s disciplinary hearing was held on 6 January 2021. It was chaired by Jennifer Dillon and HR Support was provided by Rachael Goodson. The main arguments relied upon by the claimant were that: a) he had told the interviewers at the time that he had previously worked for the respondent and that this was supported by a covert recording of that particular part of the conversation between him and the interviewers; b) although the original CV/application made was incorrect and had omitted to include his previous employment by the respondent, this was an error by his recruiter and he had not been aware of the error and; c) that the claimant had sent the respondent an updated CV which did include his previous employment with the respondent and that this CV had been sent to the respondent’s Head Office prior to his interview.

[29]The claimant provided Ms Dillon with the recording and supporting evidence following the disciplinary hearing. Ultimately, Ms Dillon upheld the misconduct allegations and decided to dismiss the claimant without notice for gross misconduct. This was confirmed to the claimant in writing by letter dated 21 January 2021. The rationale for Ms Dillon’s decision to dismiss the claimant was that she had not been satisfied with his explanation for omitting the information regarding his prior employment by the respondent from his application form and CV and in Ms Dillon’s opinion the claimant’s comment regarding his prior employment had not been heard by the interviewers. It was also believed by Ms Dillon that the updated CV that the claimant had allegedly forwarded to the respondent had almost certainly been created subsequent to his interview because it had contained a reference to him having worked on a Work and Health Programme contract, that had not existed at the time that the claimant made his application and that the claimant’s CV appeared to reference and describe his job role as “Support Manager” for the respondent, rather than his previous role according to his CV.

[30]The grievance that the claimant had raised by letter dated 26 November 2020 was then the subject of a fact-finding grievance meeting on 16 February 2021. The grievance was heard by Yolande Mitchell, Regional Operations Manager, and also in attendance was Kath Keating (HR Business Partner) as note taker. When questioned by the claimant, Ms Keating informed the claimant that the grievance had been taken away from her by Ms Barton and Ms Mitchell confirmed to the claimant that the meeting on 16 February 2021 was the first stage of the grievance process and that there had not been any prior formal or informal questioning or interviews regarding the claimant’s grievance. The claimant stated that there had been an inconsistency within the emails that he received from Ms Barton which he alleged had said on more than one occasion that his grievance was being investigated, that the investigation had been completed and that he was going to receive an outcome. It is my understanding that at the time of the Interim Relief hearing the claimant’s grievance was still to be concluded.

[31]The claimant appealed against his dismissal and an appeal hearing was held on 17 February 2021. It was heard by Jenny Woodrow. The claimant’s appeal was unsuccessful and this was confirmed to the claimant following the hearing, in writing by letter dated 11 March 2021. Submissions Claimant’s submission

[32]The claimant contended that he had made protected disclosures on 18 March 2020 and that these disclosures had been repeated, and therefore the subject of a second disclosure, within the grievance letter that he had attached to his email to Ms Matthews on 26 November 2020.

[33]It is the claimant’s case that the disclosures that he allegedly made on 18 March 2020 and 26 November 2020 were both qualifying disclosures in that he had disclosed information which tended to show that a criminal offence had been, was being or was likely to be committed and that the respondent had failed, was failing or was likely to fail to comply with a legal obligation and/or the health and safety of any individual had been, was being or was likely to be endangered. The claimant contends that he had a reasonable belief that the information that he had disclosed had been true and that to make the disclosures had been in the public interest.

[34]It is the claimant’s contention that the connection between his dismissal and his alleged protected disclosures is evidenced by the following:- i.Having made the protected disclosures; ii.His expression of dissatisfaction with the outcome of the investigation into his disclosures by email dated 3 August 2020; iii.The refusal of Mr Pearce to meet with the claimant again to discuss his disclosures following Mr Pearce’s investigation; iv.The decision of Ms Keating, who was the HR Business Partner directly responsible for the claimant to forward his grievance to Ms Barton; v.The investigation that Ms Barton carried out to establish his identity and her decision to involve Mark Earl because she did not want to reinvestigate, even though, the claimant contends, that she would have been obliged to investigate if the anonymous whistleblower in March 2020 had not been the same person who had raised the grievance. vi.The message from Ms Barton to Mr Earl which included the word “bingo”, when reporting that she had confirmed the claimant has being the individual who had previously resigned in December 2009; vii.Ms Barton removing the grievance from Ms Keating and putting it on hold; viii.Ms Barton misleading the claimant regarding the progress of his grievance; ix.The involvement of Ms Barton in the previous investigation of his anonymous whistleblowing complaint, in conjunction with Mr Pearce, her involvement and decision to park his grievance, her initial fact finding in relation to the disciplinary allegation, the decision to suspend the claimant and the preparation of the formal investigation report in connection with the disciplinary allegations that proceeded to a hearing. x.That he had no motive for deliberately omitting to refer to his previous employment by the respondent within his application form/CV because the respondent had accepted his resignation in 2009 on the basis that there would be no further action because all allegations were to be dropped; xi.The speed with which Ms Barton had proceeded to a formal disciplinary hearing, without interviewing him as part of her investigation in accordance with company policy; xii.Both decision makers, Ms Dillon and Ms Woodrow were aware of his grievance and protected disclosures. xiii.The respondent obstructed his attempts to obtain copies of his interview notes; xiv.Neither of the original interviewers were questioned as part of the investigation or during the disciplinary hearing and nor was the screening company contacted as part of the investigation. xv.The decision makers inexplicably chose to ignore the claimant’s covert recording; xvi.The claimant’s explanations at the disciplinary hearing and appeal were ignored and/or given insufficient weight (the claimant appealed the decision to dismiss primarily on the ground that the decision had been biased and had not taken account of the evidence); xvii.In contrast to the speed with which the disciplinary action was taken, the claimant’s grievance that had been raised on 26 November 2020 had been delayed and put on hold, despite the fact the claimant chased Ms Barton for progress.

[35]In summary, the claimant’s contention was that the connection between his protected disclosures and his dismissal was made out by putting together with broad sequence of events that I have set out above which he says cumulatively point to the conclusion that the real reason for his dismissal was his protected disclosures, rather than the alleged misconduct. Respondent’s Submission

[36]I will not set out the respondent’s submission in detail, because it is a matter of record and I have had regard to it. It was supplemented by the respondent’s representative orally during the hearing in a number of respects, most notably, the following: i.The claimant’s submission was criticised on the basis that it amounted to no more than an extended narrative of the claimant’s complaints and concerns that did not draw any connection from those matters between the claimant’s protected disclosure and his dismissal; ii.That the complaint must be considered at the Interim Relief hearing solely in relation to the matters set out within the existing ET1 Claim Form and, therefore, on that basis, the only disclosure that the claimant may rely upon is the one allegedly made on 18 March 2020. It was asserted that the grievance on 26 November 2020 had not been pleaded as an alleged protected disclosure; iii.That any complaints that the claimant may have with regards to the fairness of the disciplinary procedure did not amount to enough to suggest that the respondent had an alternative motive for the claimant’s dismissal, rather than the misconduct relied upon; iv.That whilst it could be argued that the grievance raised by the claimant on 26 November 2020 had indirectly set in course the chain of events which had lead to his dismissal by reason of misconduct, this did not constitute evidence that the reason or principal reason for the claimant’s dismissal was a protected disclosure; v.The decision makers, namely, Ms Dillon and Ms Woodrow, were both impartial and there was no evidence to suggest that either were aware of the claimant’s alleged protected disclosure or that they had been manipulated in some way by Ms Barton or anyone else; vi.The respondent had fully and dutifully investigated the respondent’s alleged disclosure in March 2020 and as a result of the investigation they had been able to exonerate all those implicated by the claimant in alleged wrong-doing. As a consequence, the claimant’s alleged protected disclosure did not provide the respondent with any motive to dismiss; vii.The alleged protected disclosure insofar as it related to a health and safety failing did not amount to a disclosure of information and had been a bare allegation, without an assertion of any facts. It was also contended that this allegation had not been made in the public interest because it had concerned the respondent’s self contained workplace; viii.There had been sufficient evidence at the disciplinary and appeal hearings for the decision makers to reach the conclusions that they had, with regards to the veracity of the allegations against the claimant and the lack of a credible explanation; ix.At no stage had the respondent accepted that the recording provided by the claimant had been authentic; x.The claimant’s dismissal followed 10 months after the alleged protected disclosure, by which time the claimant had passed his probation. If the respondent had wanted to victimise the claimant for having made the protected disclosure, then it would have done so much sooner. xi.The explanation for the respondent’s delay in dealing with the claimant’s grievance was the simple fact that the grievance and the matters that were the subject of the disciplinary action were unconnected. This meant that it made sense from the respondent’s point of view to deal with the disciplinary action ahead of the potentially more time consuming grievance investigation process.

[37]In summary, therefore, the respondent’s representative submitted that the claimant had not been able to show any demonstrative link between his alleged protected disclosure and his dismissal. Therefore, his case did not “look like a winner” and that the application should therefore fail.

Conclusions

[38]For the purpose of this ancillary relief application I accept that the claimant has only pleaded one alleged protected disclosure which he contends was made by email on 18 March 2020. In my assessment, the claimant does appear to have disclosed information qualifying for protection within the meaning of Section 43B of the Employment Rights Act 1996. On the basis of the information available to me, it appears that the Claimant reasonably believed the information disclosed tended to show the relevant failures that he asserted. It also appears on the information available that the scope and ramifications of the alleged failures that were the subject of the claimant’s alleged disclosure were matters that the claimant reasonably believed were in the public interest. In my assessment, therefore, it is likely, in the sense that the claimant has a pretty good chance, that the claimant will establish at a full hearing that he made a protected disclosure on 18 March 2020.

[39]Notwithstanding that I have concluded that the Claimant is likely to establish that he made a protected disclosure, it seems to me that the real issue in this case is one of causation. It is for the claimant to demonstrate that there is evidence from which it appears that he is likely to be able to establish that the reason for the dismissal was the making of the protected disclosure, as opposed to something else.

[40]It seems to me that one of the claimant’s strongest points is the context of timing. In other words, the fact that his suspension followed swiftly after the receipt of his grievance on 26 November 2020. However, his grievance was not the protected disclosure. The protected disclosure had been made some months previously. Moreover, it has not been the respondent’s case that the suspension so soon after the claimant’s grievance was purely a coincidence. The respondent acknowledges that there is a connection between the claimant’s grievance and the fact that the claimant was then subsequently suspended and dismissed. The respondent have explained that the claimant’s grievance was the catalyst for the chain of events which lead to Ms Barton discovering that he had previously been employed by the respondent, which in turn lead to his suspension and the subsequent disciplinary action. This explanation appears to have merit and may well be accepted by the Tribunal at the full hearing.

The Law

[41]A further point that I have considered that could potentially support the claimant’s case is the apparent disparity between the expedition with which the disciplinary investigation and procedures were addressed, as compared to the much less prompt response to the claimant’s grievance. It appears to me that this suggests that the respondent viewed the subject matter of the claimant’s grievance and the subject matter of his disciplinary investigation to be two entirely separate matters, which enabled them to progress one more quickly than the other. It appears to me to be the case that the Tribunal at the full hearing may well be persuaded by the respondent that the only reason why the disciplinary investigation was progressed more quickly was purely down to the fact that its subject matter was relatively straightforward and if it cumulated in the claimant’s dismissal, this would obviate the need for them to address his grievance or at least address it timeously. Of itself, this point therefore does not have sufficient weight to lead me to the conclusion that the claimant’s claim appears likely to succeed.

[42]The claimant’s criticisms of the procedure followed by the respondent, and, in particular, the involvement of Ms Barton may or may not have some slight bearing upon the general fairness of the process followed by the respondent. However, it does not appear to me that there were any significant failings on the part of the respondent which give the appearance that the real reason for the claimant’s dismissal was the fact that he had made a protected disclosure rather than the misconduct upon which the respondent relies.

[43]It is not apparent from the information available that either Ms Dillon or Ms Woodrow were aware of the protected disclosures, never mind influenced by the existence of them or manipulated by a third party. The evidence of both decision makers as appears from their witness statements which will be given under oath to the Tribunal in due course, appears to be that they were both impartial, unaware of any protected disclosures and were not manipulated in any way. In order to succeed with his claim, the claimant would have to persuade a Tribunal that one or both decision makers had been manipulated and/or had not acted in good faith. This is not currently the claimant’s pleaded case. In order to succeed with his claim, the claimant is going to have to successfully establish at the final hearing that there had been a conspiracy between Ms Barton, and/or others, as well as the Dismissing and Appeals Manager, to bring about a “sham” misconduct dismissal. I cannot say that the documentation available and the submissions that I have heard have persuaded me that it appears that the claimant is likely to succeed in this task.

[44]On the basis of the information available to me, it appears that the claimant’s claim for interim relief is largely based upon speculation arising out of the fact that his perception has been that the investigation into the matters that he raised within the email that he sent on 18 March 2020 has not been sufficiently robust and that following on from his grievance, which was raised at least in part to press the respondent with regards to this dissatisfaction, there has been a sequence of events that has lead to his dismissal. However, the factors that support the claimant’s case are, on the face of it, circumstantial at best and the claimant’s assertion that the reason for his dismissal was the protected disclosure appears to be speculation. There is no obvious tangible evidence in support that I can identify within the information that I have seen.

Conclusions

[45]On the other hand, there are a number of matters which appear to demonstrate that the respondent had a genuine and reasonable belief in the claimant’s misconduct which they relied upon as the reason for dismissal.

[46]The claimant was dismissed for gross misconduct, ie. the wilful omission of information or provision of false information to gain employment, which was identified as an act of gross misconduct in the respondent’s disciplinary policy.

[47]It is also the case that on the apparent facts as demonstrated by the available documentation, the claimant did fail to include within his initial application/CV for employment in 2019 the fact that he had previously been employed by the respondent. It is certainly arguable, in my view, that the respondent’s decision to reject the claimant’s explanation for the omission was reasonable on the basis that it was implausible that a Recruitment Agency would provide incorrect information without the claimant’s knowledge.

[48]There also appears to me to be evidence that would support the respondent’s contention that the claimant formed a reasonable belief based on reasonable grounds that the claimant had purported to provide a CV that he had allegedly posted to the respondent prior to his interview which had not in fact existed in that form as of August 2019. Having seen the second, corrected CV produced by the claimant, it does state that the claimant’s position was “Support Manager” and provides details of a role within the profile section, when the claimant did not hold that job role or perform those duties at the time when he has purported to have posted the corrected CV to the respondent.

[49]It was apparent to me from the documentation that the claimant’s original CV had described the claimant as a “Key Account Manager” with Travis Perkins, which was consistent with his most recent role, even though at the time of his application to the respondent the claimant had in fact been unemployed.

[50]Moreover, whilst the claimant is able to point to an audio recording of what he alleges is part of his interview, wherein he appears to make brief mention of having been previously employed by the respondent, I accept that it is the respondent’s case that this recording may not be authentic and that it is the respondent’s contention that the clarity of the recording is such that it was arguably open to the decision makers to discount it. The determination of these questions will no doubt be a matter that the Tribunal dealing with the full hearing will address with great care and detailed findings will be made with the benefit of hearing oral evidence and cross examination.

[51]At this preliminary stage, based upon the information I have available, I cannot reach a conclusion that the evidence, even taking into account the recording upon which the claimant relies, is such that the claimant has a pretty good chance of succeeding.

[52]For the reasons set out above, the claimant’s application for Interim Relief fails.

CONCLUSIONS

[1]The Tribunal does not have jurisdiction to hear the detriment claims which are dismissed. The application for strike out is refused.

[3]The Employment Judge considers that the Claimant’s case has little reasonable prospects of success and the Claimant is ORDERED to pay a deposit of £250 no later than 14 days from the date of this order is sent, as a condition of being permitted to continue with his claim. The Judge has had regard to any information available as to the Claimant’s ability to comply with the order in determining the amount of the deposit.

[4]This open Preliminary Hearing was listed before me for 3 hours on 1 September 2022 to consider the Respondent’s application that the claims be struck out or whether a deposit order should be made, to consider whether the Claimant should pay the Respondent’s costs and to consider whether the Claimant properly complied with ACAS early conciliation in relation to his whistle-blowing claim.

[5]I was the Judge who dealt with the Preliminary Hearing for Case Management in this claim on 27 January 2022, so I did have some familiarity with the issues.

[6]The Claimant is a litigant in person and the Respondent was represented by Counsel, Mr Northall. There was a bundle running to 500 pages. I also had an authorities bundle from the Respondent and the Claimant had also sent in some authorities and a Skeleton Argument. We spent the 3 hours available hearing the submissions of both parties and the Claimant’s evidence as to means. There was no time to deliberate and give Judgment, so I reserved the case to 7 September 2022.

[7]By an ET1 filed on 27 January 2021, the Claimant brought proceedings for automatic unfair dismissal and detriment on account of having made protected disclosures. He accepts he did not go to ACAS for early conciliation at any stage before or after the issue of proceedings.

[8]The Claimant made an application for interim relief. This was heard by Employment Judge Britton on 18 March 2021 and his decision was reserved to 30 March 2021. A copy of his Reserved Judgment was at pages 63-74 of the bundle. He refused the application for interim relief on the basis he concluded it was not likely that the Tribunal would find the Claimant had been unfairly dismissed. I am told that witness statements were prepared for the interim relief hearing, although those witnesses did not give evidence. These included the statements of Jennifer Dillon and Jennifer Woodrow. I did not see those statements in dealing with the application that was before me.

[9]Employment Judge Britton’s Judgment sets out the factual matrix leading to the Claimant’s dismissal on 21 January 2021. The decision maker at dismissal stage was Jennifer Dillon. The Claimant appealed the decision to dismiss him, and the appeal was heard (and dismissed) by Jenny Woodrow.

[10]The Claimant was first employed by the Respondent in June 2008. His employment ended in December 2009 when the Claimant resigned, during a period whilst he was suspended pending investigation into an allegation of fraud.

[11]In 2019, some 10 or so years later, the Claimant applied again to work for the Respondent. He was interviewed by Claire Tynan and Suki Gill of the Respondent. It is his case that towards the end of the interview he informed them that he had previously worked for the Respondent. He chose to make a recording of the interview and says the transcript demonstrates this.

[12]The application that a recruitment agent made on the Claimant’s behalf for the role did not reference his previous employment with the Respondent. It is the Claimant’s case that he realised this mistake prior to the interview and that he wrote to the Respondent with a revised CV, a matter to which I shall return to later.

[13]The Claimant was successful at interview and appointed to the role of Support Manager commencing this role on 28 October 2019.

[14]On 18 March 2020, the Claimant sent an anonymous email to the CEO of the Respondent (which he says amounted to a protected and qualifying disclosure). In the email he referred to criminal activity, health and safety concerns and bullying by senior leadership. This is what the Claimant contends is his first protected disclosure.

[15]The Respondent nominated Anthony Pearce, Head of Safeguarding, to investigate the allegations made. He did so supported by HR Business Partner, Sharon Barton. During the investigation Mr Pearce met with the Claimant on 11 May 2020.

[16]Mr Pearce did not find any wrongdoing on the part of the Respondent and informed the Claimant of this by email dated 31 July 2020. The Claimant takes issue with the extent of the investigation conducted by Mr Pearce and with his conclusions.

[17]On 26 November 2020, the Claimant sent an email headed ‘formal grievance’ to Tori Matthews, Deputy Area Manager. The grievance largely repeated the allegations that the Claimant had made in Mach 2020. The Claimant says this was his second protected and qualifying disclosure. He asked for the correspondence to be forwarded to HR. It was forwarded to Sharon Barton. It appears Sharon Barton suspected the Claimant had previously worked for the Respondent and may not have declared this when applying for the role in 2019.

[18]The Respondent took the decision to suspend the Claimant pending investigation. The allegations concerned the Claimant’s conduct, namely allegedly wilfully omitting to provide information/providing false information. The suspension letter was signed by Sharon Barton on behalf of the Respondent.

[19]Sharon Barton conducted an investigation and prepared an investigation report dated 15 December 2020. She concluded there was a case to answer at disciplinary hearing.

[20]The Claimant was invited to a disciplinary hearing which took place on 6 January 2021. The decision maker was Jennifer Dillon. There is a full transcript of the hearing in the bundle. The Claimant contended that he had told those interviewing him in 2019 that he had previously worked for the Respondent and that he had a recording of this. He accepted the original application (made by the recruitment agency on his behalf) had failed to mention his previous employment with the Respondent but said that was a mistake by the recruitment agent and that he had sent an updated CV which did include his previous employment with the Respondent. He said he sent this before the interview. The Claimant alleged his interviewers in 2019 had the CV with them at the interview. The transcript of the hearing at page 322 records the Claimant stating, ‘before I was interviewed I sent Shaw Trust a letter with my up-to-date CV on it and it not only showed Shaw Trust but showed other things as well.’

[21]After the disciplinary hearing, on 15 January 2021, the Claimant sent documents in support of his position to Jennifer Dillon. These included a document headed ‘Evidence Submission Index – 15/01/2021’ and the first two items in the index were described as ‘1. Letter sent to Shaw Trust on 28th August 2019’ and ‘2. CV sent to Shaw Trust 28th August 2019’. The letter and CV were enclosed with the index. The letter is dated 28 August 2019 and is addressed to ‘Dear HR’ at ‘Shaw Trust’ at an address in Bristol.

[22]The letter states ‘I am writing to inform you that the above application (that was for Support Manager Vacancy Birmingham) was completed on my behalf by someone that works for Passion 4 Progression (HR Recruitment Agency). It was not until I received an acknowledgment email from you on 22/08/2019 that …I realised that they created a CV and application that was not accurate with my job history and experience. Please see my correct CV included in this letter.’

[23]The CV was also provided to Jennifer Dillon. It starts with a ‘profile’ and refers to the Claimant as ‘has worked on numerous programmes including New Deal, Flexible New Deal, The Work Programme and currently working on the Work and Health Programme’. The CV gave the Claimants job title as Support Manager.

[24]The Index that the Claimant sent to the Respondent on 15 January 2021 at item 9 referenced a ‘transcript of recording’ detailing conversation where (the Claimant) discusses previous employment at Shaw Trust. The Claimant enclosed the transcript. It appeared to be a transcript of a recording he made at his job interview in 2019, but only 1 ¼ pages long and appears to be the end of the interview process. In this transcript, ‘Suki’ is noted to ask the Claimant ‘questions from you Dion’ to which the Claimant is said to reply ‘no erm just really obviously you know I’ve worked at Shaw Trust erm and if your (sic) comfortable with that’. Suki is said to reply ‘Sure so we’ve got erm another one more person to interview today and we will be making the decision by tomorrow’.

[25]On 21 January 2021, Jenifer Dillon wrote to the Claimant with the outcome of the disciplinary hearing. Her decision letter confirms that she reviewed all of the evidence the Claimant had provided. She stated as follows “Having reviewed all of the evidence presented both in the meeting and the documents you sent on 15th January 2021, I found there to be a number of discrepancies in your version of events. For example, in the job application we receieved a totally different company (In2Ambition) was mentioned for the 2008/2009 and did not mention Shaw Trust at all. We have a great deal of experience with agencies and recruiters and believe it is highly unlikely that this application from which was submitted to us was incorrect. Recruiters/agencies tend to use the information provided by the candidate.”

[26]She concluded that the CV the Claimant had claimed to have sent to the Respondent on 28 August 2019 could not gave been his current CV at that time as the profile referenced work, a job title, and (Support Manager) he could only have undertaken after starting work with the Respondent later in 2019. She concluded that the Claimant had purposefully hidden his previous employment with the Respondent and that he was dishonest when making the (2019) application. She determined that the Claimant should be summarily dismissed for gross misconduct.

[27]The Claimant appealed this decision. Jenny Woodrow was appointed by the Respondent to be the decision maker and the appeal hearing took place on 17 February 2021. Following the hearing, Jenny Woodrow met with Claire Tynan, who had been one of the Respondent’s employees who interviewed the Claimant in 2019 and with Jenifer Dillon, by way of further investigation. on 11 March 2021. Jenny Woodrow asked Claire Tynan about her interview with the Claimant in 2019. She recalled the interview but did not recall the Claimant saying towards the end of the interview that he had previously worked for the Respondent. She only recalled seeing a CV that she thought came from one of the Respondent’s ‘recruitment suppliers’. Jenny Woodrow sent her decision in writing to the Claimant. She upheld the decision to dismiss. SUBMISSIONS

[28]I heard oral submissions from Mr Northall. He referred me to his instructing solicitors application for strike out/deposit order which appeared at pages 87- 91 of the bundle. Mr Northall confirmed it was his position that the claims had no reasonable prospects of success and that in the case of the detriment claims, the Tribunal had no jurisdiction to hear them as the Claimant had not complied with ACAS early conciliation. He proposed that the Respondent’s application for costs be heard (if appropriate) after I had reached my decision on strike out/deposit.

[29]Mr Northall referred me to the case of North Glamorgan NHS Trust v Ezsias

(2007) IRLR 603

which confirmed that it will only be in exceptional cases that a Tribunal will strike out a claim where central facts are in dispute. His position was that the facts in the case were not controversial. He referred me to Cox v Adecco and others EAT 0339/19 and which dealt with litigants in person and the fact that a Tribunal should take care to understand their claims. He submitted the Claimant this case was sophisticated, and this was bourne out by the filing of his Skeleton Argument on the morning of the hearing.

[30]Mr Northall referred me to Pillay v Inc Research UK Ltd UK EAT/0182/1 where the EAT found the public policy described in Anyanwu and another v South Bank Students Union

(2001) IRLR 305

also applies to whistleblowing claims (namely that such claims should not be struck out except in the most obvious and plainest cases). He referred me to Community Law Clinic Solicitors Ltd v Methuen UK

EAT/0024/11

and submitted that where a claim genuinely meets the strike out test of no reasonable prospects of success, even if it is a discrimination/whistle-blowing claim, the Tribunal can strike it out.

[31]The Claimant’s case must be taken at its highest, but just because this claim involves whistle-blowing that does not mean the claim is immune from strike out.

[32]Mr Northall submitted that the key issue in this claim is the reason for the detriments and/or dismissal – it is one of causation. The Claimant has insufficient service to bring an ordinary unfair dismissal claim so the Tribunal will focus on what was in the mind of the decision maker at dismissal. The reason for dismissal is set out in the dismissal letter. The Respondent’s disciplinary policy listed examples of gross misconduct which expressly included ‘wilful omission of information or provision of false information to gain employment’. The reason given by Jenifer Dillon is squarely covered by this.

[33]Mr Northall argued that the Claimant was not offered the Support Manager role until 16 October 2019. The offer letter bearing this date was at page 194. The CV the Claimant alleged he supplied to the Respondent’s Bristol address on 28 August 2019 cannot have been the up-to-date CV. That CV references a role the Claimant had not undertaken. In fact, his most recent role at that time was with Travis Perkins, the builders merchants. Mr Northall submitted that the only conclusion for the Tribunal at final hearing will be that the Claimant was lying, and simply could not have sent the CV he says he sent.

[34]Mr Northall recognised that the Claimant was since trying to ‘row back’ from that position. In the Skeleton Argument for this hearing the Claimant said in fact that he periodically amends and updates his CV so that the one sent to the Respondent on 15 January 2021 would look different to the one he sent on 28 August 2019. Mr Northall noted the Claimant had not offered this ‘new’ explanation at the interim relief application.

[35]Mr Northall submitted there was nothing to show that Jenifer Dillon or Jenny Woodrow was aware that the Claimant had made the alleged protected disclosures nor that these were the reason he was subjected to any detriment and/or dismissal. The Claimant was not running any argument that these decision makers were influenced by these disclosures and/or by those colleagues who knew about them. When the Claimant made his first alleged disclosure the Respondent did not shy from it. It conducted a thorough investigation.

[36]On the ACAS early conciliation point Mr Northall referred me to s18A Employment Tribunals Act 1996. ‘Relevant proceedings’ in s18 (1) (b) includes Part 5 of the Employment Rights Act 1996 so covers whistle-blowing detriment claims. There is an exemption in the 2014 Regulations for Part 10 claims including applications for interim relief. His position was that the Tribunal had jurisdiction to hear the S103A claim but not the S47B claim. Mr Northall referred me to the case of Webster v Rotala PLC T/A Diamond Bus North West UK

EAT/0015/20/VP

and in particular paragraph 26. In his submission in the (admitted) absence of ACAS early conciliation the detriment claims must be dismissed.

[37]As I have said I had a Skeleton Argument from the Claimant and I also heard oral submissions from him. The Claimant told me that Jennifer Dillon did in fact know about his protected disclosure(s) as she had said so in her witness statement prepared for the interim relief hearing.

[38]In the Claimant’s submission he ought to be provided with an opportunity to cross-examine the Respondent’s witnesses at trial. He felt the mindset of the dismissing officer was important in circumstances where he believed she was aware that he was a whistle-blower. He was of the view that Sharon Barton, who had been involved in the 2009 investigation had taken a disliking to him from that point. He felt the investigation report and decision that he should face a disciplinary hearing was all ‘retaliation’.

[39]The Claimant did not accept he was a sophisticated litigant in person. He told me he only filed a Skeleton Argument as he believed from his experience at the interim relief hearing that this was usual protocol.

[40]He referred to the ‘audio-recording’ he took of his 2019 job interview as being a ‘smoking gun’. He had commissioned an expert report to verify its authenticity. He submitted it was clear from the recording and transcript that he had told those interviewing him in 2019 that he had previously worked for the Respondent.

[41]After hearing submissions, the Claimant gave evidence about his means. He explained he was now working for a recruitment company on a self-employed basis with fluctuating income currently about £520 a week. He said his outgoings outstripped his income and he had been in touch with a debt management company as he owed £11,000 on a credit card and both of his bank accounts were in overdraft. He owns his own home which has a mortgage. He has a dependent daughter. THE LAW

[42]I have referred to the relevant case law above in the section dealing with submissions.

[43]Rule 37 (1) (a) Schedule 1 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 gives me the power to strike out a claim or claims where there is no reasonable prospect of success. A strike out is the ultimate sanction.

[44]It provides “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim… on the following grounds (a) that it is scandalous or vexatious or has no reasonable prospects of success”. For a strike out order to be appropriate the claim or claims must be bound to fail.

[45]The threshold required is high. In Ezsias, the Court of Appeal held where facts are in dispute, a Tribunal should rarely strike out a claim without the evidence being tested at final hearing. Tribunals should not strike out claims as having no reasonable prospects of success, unless the facts as alleged by the Claimant disclose no arguable case in law.

[46]Discrimination (and whistleblowing) claims should only be struck out in the plainest and most obvious cases – Anyanwu. The Claimant’s case must be taken at its highest.

[47]Tribunals must exercise particular care with litigants in person. This does not mean a Tribunal cannot strike out a claim by a litigant in person however the Tribunal needs to ensure it understands the case put forward by the Claimant before doing so.

[48]Deposit orders are dealt with by Rule 39. A Tribunal may make a deposit order if a Judge considers that a Claimant’s allegation have little reasonable prospects of success. It provides “Where at a preliminary hearing…the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospects of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance the case. (2) The Tribunal shall make reasonable enquires into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit”.

[49]Where such an order is made a Claimant should consider carefully whether to pay the deposit and proceed with the claim and perhaps should take legal advice.

[50]The system of ACAS early conciliation became mandatory in 2014. Sections 18A to 18C were inserted into the Employment Tribunals Act 1996 by section 7 and Schedule 1 to the Enterprise and Regulatory Reform Act 2013. S18A sets out the early conciliation procedure that must be followed by prospective Claimant’s before they issue a claim in the Employment Tribunal. Section 18 (1) refers to ‘relevant proceedings’ (which require early conciliation) which ‘means employment tribunal proceedings’ under (a) Part 5 of the Employment Rights Act. There are exemptions where a prospective Claimant need not participate in early conciliation (s18(7)) which are set out in Regulation 3 of the Early Conciliation Regulations 2014, and which include where an unfair dismissal claim is accompanied by a claim for interim relief.

[51]In Webster v Rotala, the EAT had to consider a claim that contained complaints that were both exempt from early conciliation and those that were not. It confirmed the Tribunal was correct to have rejected the claims that were not exempt. At paragraph 26 of the Judgment the EAT noted “The Employment Tribunal was…unarguably required to reject (the claims that were not exempt).”

Conclusions

[52]It is easiest firstly to deal with the detriment claims. The Claimant accepts he never applied for ACAS early conciliation in respect of these claims. Detriment claims such as those as ‘relevant proceedings’ requiring a Claimant to enter into ACAS early conciliation before presentation of the claims. This is a mandatory requirement. There is no applicable exemption here. The Tribunal should have rejected these claims as it has no jurisdiction to hear them.

[53]The dismissal claim is different because the Claimant made an application for interim relief there was no requirement to enter into ACAS early conciliation and the Tribunal does have jurisdiction to hear this claim.

[54]I turn now to the strike out application and remind myself I must take the Claimant’s case at its highest. The Claimant alleges the dismissing officer, Jennifer Dillon, was aware of his protected disclosures. He says she confirmed this in her witness statement prepared for the interim relief hearing. Mr Northall contended she did not know about the protected disclosures. I did not have the statements that were provided for the interim relief hearing but, accepting the Claimant’s case at its highest, it may be the dismissing officer had knowledge of the disclosure, at the time she made the decision to dismiss. The reason for the dismissal is said by the Respondent to be a crucial issue here and I agree. The Claimant’s case must be that the Respondent must have dismissed him because he made protected disclosures. He can only establish that by testing Jennifer Dillon’s mindset in cross-examination and arguing that the reason the Respondent puts forward is false. The Claimant’s case at its highest is that the reason must be false as he did in fact provide a correct CV in advance of his 2019 interview, that CV was in the possession of those interviewing him and that he has a transcript of the interview which proves he mentioned his previous employment with the Respondent. Bearing all that in mind, this is not a case that I can strike out. I cannot say there are no reasonable prospects of success.

[55]I do however conclude there are little reasonable prospects of success. The Claimant provided a copy of a CV to the Respondent after his disciplinary hearing that cannot have been the CV he says he provided in advance of his interview. This is because it plainly refers to a job title and work experience he simply did not have as at August 2019. His explanation that he regularly updates his CV’s has only been made relatively recently and the Respondent is right to argue that this appears an attempt to ‘row back’ from a position which will prove difficult to explain. This may give weight to the reasons put forward for dismissal. With that in mind, I am persuaded to make a deposit order on the basis the claim has little reasonable prospects of success. The Claimant must pay a financial deposit if he intends to pursue the claim. Having regard to the Claimant’s means I order him to pay a deposit of £250.

[1]The claimant was ordered to pay a deposit of £250 following a preliminary hearing held on 1 September 2022. The Order was sent to the claimant on 22 September 2022. The claimant has failed to pay this deposit. The entire claim is therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013.

[2]The hearing fixed for 30 January 2023 will not take place. The Respondents application for costs is refused.

[2]This hearing was listed before me to consider the Respondent's application for costs made on 29 November 2022, such application having been made after Employment Judge Broughton had struck out the claim on 31 October 2022 after the Claimant had failed to pay a deposit.

[3]The Claimant did not attend the hearing. Mr Northall, counsel, represented the Respondent. I had a bundle comprising 140 pages and an authorities bundle from Mr Northall.

[4]This application for costs was previously listed to be heard on 20 February 2023. In advance of that hearing, the Claimant wrote to the Tribunal arguing it should not go ahead for various reasons including the fact he had not received the Judgment of Employment Judge Broughton striking out his claim and saying he wished to seek legal advice.

[5]I agreed to postpone the hearing and my reasons dated were recorded as ‘the Claimant was not aware of the strike out and to allow him to consider that and take legal advice.’

[6]The case was referred to me once more by the Tribunal office on 28 April 2023. The Respondent was keen for the hearing to be re-listed. Given that the Claimant had ample time to take legal advice and consider the strike out Judgment I agreed to re-list the hearing and I asked the Tribunal office to do so and I made Case Management Orders for a bundle to be agreed for use at the hearing and for this to contain ‘any evidence as to means on which the Claimant wishes to rely.’ The Notice of Hearing was sent to the parties on 4 May 2023. I was informed by the Respondent’s solicitors that the Claimant declined to have any input into the bundle.

[7]The costs hearing was re-listed for 28 June 2023 by CVP. The Claimant did not attend. At the outset of the hearing, Mr Northall made me aware of an email the Claimant had sent to the Tribunal on the evening of Sunday 25 June 2023. In this email, the Claimant stated that he was still waiting to hear if he qualified for legal advice/assistance related to insurance cover and that, as he had appealed the decision to make a deposit order to the EAT, he was surprised the hearing listed for 28 June 2023 was going ahead. He said he was unable to attend the hearing on 28 June 2023 and asked if the case would go ahead in his absence. He had sent this email in reply to the Tribunal office email notifying him of the link for the CVP hearing. Notably, the Claimant did not make any application for postponement, nor did he refer to any reason as to why he was unable to attend.

[8]The Tribunal office did not respond to this email. Just after the hearing began at 10:03 the Claimant sent a Skeleton Argument to the Tribunal given his position in relation to the costs application. In this application, he indicated he was unable to attend video hearings and that he had emailed the Tribunal office regarding this. I have not had sight of any such email. The Claimant repeated the fact that he still did not have legal representation.

[9]I firstly considered whether I should go ahead in the absence of the Claimant. I note he has made an appeal to the EAT regarding the making of a deposit order. That appeal has not yet passed the sift stage. The Respondent made its application for costs in November 2022, some seven months ago. There has already been one postponement of the costs hearing. It would be prejudicial to the Respondent to delay further, particularly as a) the appeal in the EAT may not pass the sift stage, b) even if it does it may take many months to determine and c) the Respondent has agreed not to seek to enforce any costs order that may be made until after the decision on the sift is communicated to the parties.

[10]I considered the Claimant’s argument that he is unable to conduct hearings by CVP. I am not aware of him applying to convert this hearing to an in-person hearing or to attend the Tribunal office himself for a hybrid hearing. I take note of the fact there have been several previous hearings in this matter by CVP, namely an interim relief hearing before Employment Judge Britton on 18 March 2021, and a strike out/deposit order hearing before me on 1 September 2022. There was no suggestion before me that the Claimant struggled with CVP hearings. He attended on time, did not appear to have any connectivity issues or issues with the device he was using and was able to make submissions and give evidence on oath as to means. I do not accept the Claimant had any difficulties but in any event no application for a postponement or for an alternative method of hearing the case had been made.

[11]The Claimant asserted he had still not been able to obtain legal advice. The ET1 was filed on 27 January 2021, some two and a half years ago. The Claimant has been a litigant in person throughout. He only raised the possibility of obtaining legal advice after the first costs hearing was listed. I allowed him a postponement and he had had a further 4 months to seek advice. I note the Respondent’s solicitors first wrote to the Claimant by way of a costs warning letter on 13 January 2022 (pages 96-98) of the bundle. In that letter they state ‘If you have any concerns as to the contents of this letter, or if you do not understand any of it, we strongly advise that you get legal advice.’ It appears the Claimant has left it a further 13 months or so before seeking to obtain advice through legal expenses cover. He has had plenty of time since February 2023, when he first raised this with the Tribunal, to do so. It would be prejudicial to the Respondent to delay further.

[12]For those reasons I decided to hear the Respondent’s costs application in the absence of the Claimant. I had his Skeleton Argument which I will refer to further in my deliberations below.

[13]Mr Northall for the Respondent made oral submissions in support of the costs application, which as noted above was sent to the Tribunal on 29 November 2022. The application was made on four grounds as follows: a) The Claimant’s bringing of the claim was unreasonable. b) The Claimant’s conduct of the claim was unreasonable. c) The claim had no reasonable prospect of success. d) The claim pursued against Mr C Luck, CEO of the Respondent, was vexatious.

[14]In Mr Northall’s submission the first 3 grounds stand or fall together. In short, the Claimant was dishonest when he made his application for employment with the Respondent in 2019 and, when this was discovered by the Respondent and the Claimant was the subject of disciplinary proceedings, the Claimant tried to cover up his dishonesty by sending in a doctored CV. The Respondent’s position was the Claimant must have known he had misled the Respondent when making his application for employment and must have know that was the reason for his dismissal. His claim that he was in fact dismissed for making a protected disclosure has to be unreasonable.

[15]This claim came before me on 1 September 2022, to hear the Respondent’s application for a strike out or deposit order. I reserved my Judgment dated 22 September 2022, I sent out a chronology of events that had led to the dismissal of the Claimant.

[16]In short, and it is not in dispute, the Claimant was first employed by the Respondent from June 2008 to December 2009. His employment came to an end when he resigned during a period of suspension pending investigation into an allegation of fraud. He resigned by email on 3 December 2009 with immediate effect citing an ‘irrevocable breach of mutual trust and confidence’, stating that the contract between himself and the Respondent was ‘damaged beyond repair’ (page 121 of the bundle).

[17]On 22 August 2019, some 10 years or so later, the Claimant applied to work for the Respondent once more. He did so by way of an online application supported by a CV. In the application, he referred to being ‘currently employed’ by Travis Perkins as a key account manager. In his employment history he refers to working for In2Ambition from 3 April 2006 and makes no mention of his employment with the Respondent in 2008/2009.

[18]In the accompanying CV, he give his current job title as ‘key account manager’, referring to his role and duties with Travis Perkins and states from 2006-2011 he was working for In2Ambition (pages 122-126).

[19]The Claimant was successful in his (second) application to work for the Respondent and was appointed to the role of support manager by offer letter dated 15 October 2019, with a start date of 28 October 2019 (pages 127-128).

[20]The Respondent says the Claimant was dishonest in his job application as he did not disclose his prior employment with the Respondent in 2008/2009.

[21]At the hearing before me on 1 September 2022, the Claimant told me he had not submitted the application himself. Instead, a recruitment agent Passion4Progression did this for him and any mistakes were theirs. I asked Mr Northall to comment on this. He said it was absurd to argue a recruitment agent would compile a CV on behalf of a candidate and get their employment history so badly wrong and/or not ask the candidate to check it.

[22]The Claimant told me at the September 2022 hearing that before he was interviewed by the Respondent, he realised the application and CV submitted were incorrect and he wrote to the Respondent’s head office enclosing a revised and correct CV. He also told me that he, somewhat inexplicably, made a recording of his interview and later had that recording transcribed.

[23]In November 2020, it came to the attention of the Respondent that the Claimant may have worked for it previously and enquiries were made. The Respondent discovered the Claimant had worked for it in 2008/2009 and was of the view he had not declared this in his application in 2019. The Claimant was suspended and invited to a disciplinary hearing which took place on 6 January 2021. At that hearing, the Claimant referred to the fact he has sent an updated CV in advance of his interview and that he had recorded the interview. After the disciplinary hearing on 15 January 2021, the Claimant sent the decision maker documents in support of these contentions. These included a letter said to have been sent by the Claimant to the Respondent on 28 August 2019 and a copy of the (revised) CV said to have been sent along with that letter. Also sent was a transcript of the recording the Claimant made of his interview.

[24]As to the letter and revised CV, copies were at pages 134-136 of the bundle. The CV gives the current role held by the Claimant as ‘support manager’ (that being the title of the role the Respondent offered to the Claimant in October 2019) and references his duties under the hearing ‘Profile’ as ‘An experienced welfare to work and employer engagement professional that exceeds service expectations and ensures a smooth and consistent link between service users/participants, training providers and employers. Has worked on numerous programmes including New Deal, Flexible New Deal, The Work Programme and currently working on the Work and Programme.’ In his CV there is reference to the Claimant working for the Respondent in 2008/2009. There appears to be no reference to any work for In2Ambition.

[25]The Respondent’s position is that the Claimant cannot have sent that CV to the Respondent in August 2019 because it references his current role and profile as being that which he was carrying out for the Respondent but not until October 2019.

[26]Any correct CV as at August 2019 would refer to the current role being that with Travis Perkins. The Respondent says the Claimant must have been acting dishonesty when he produced this in the disciplinary process as evidence of his trying to correct matters before his interview.

[27]At the hearing before me in September 2022, the Claimant argued that he regularly updates his CV and the one he provided in January 2021, during the disciplinary process, would have been an updated one, updated since his employment with the Respondent began in October 2019, rather than being the exact same one he sent with the letter of 28 August 2022.

[28]I noted he had only offered that explanation relatively recently. He did not appear to have argued it at the interim relief hearing, and I noted the Respondent’s position that this was an attempt to ‘row back’ from a position which will prove difficult for the Claimant to explain. It was this that persuaded me the claim had little reasonable prospects of success and that I should make a deposit order.

[29]Turning to the transcript of the recording of the interview, this appears to refer to one of the interviewers (Suki) at the end of the interview inviting any questions from the Claimant and the Claimant saying ‘no erm just really obviously you know I’ve worked at Shaw Trust before and if you (sic) comfortable with that.’ Suki is said to reply ‘sure so we’ve got erm another one more person to interview today and we will be making the decision by tomorrow.’

[30]As the Claimant was not present at the hearing on 28 June 2023, I raised this transcript with Mr Northall as on the face of it did appear to confirm the Claimant had mentioned his prior employment with the Respondent in his interview. Mr Northall accepted that as the Claimant failed to pay the deposit, and thus his claim was struck out, this matter had never been tested at a final hearing and no determination about it had been made. In his submission the evidence was thin and unpersuasive. The comment made by the Claimant came out of nowhere at the end of the interview and Suki does not acknowledge that she heard it, rather she sets out the next steps. Suki had left the employment of the Respondent by the time the disciplinary hearing that led to the Claimant’s dismissal took place and it did not put the transcript to her. Claire (who was one of the other interviewers) was still employed and was interviewed at the appeal stage and could not recall the Claimant making a comment at interview as to his prior employment with the Respondent.

[31]The Claimant was summarily dismissed by the Respondent for gross misconduct namely dishonesty in purposefully hiding his prior employment with the Respondent in his 2019 job application. By his ET1 the Claimant claimed automatic unfair dismissal and detriment on account of making protected disclosures. He contended the disclosures were made by anonymous email to the Respondent’s CEO on 18 March 2020 and in a formal grievance on 26 November 2020.

[32]In his submissions, Mr Northall referred me the Respondent’s cost warning letter sent to the Claimant in January 2022 (page 96 of the bundle). In this letter, the Respondent’s solicitor set out the Respondent’s position, namely that the paramount issue for it was the Claimant knowingly falsifying his CV and that being the reason for dismissal.

[33]In Mr Northall’s submission, the Claimant knew full well he had done this; at the outset of these proceedings the Claimant knew he had been dishonest.

[34]Mr Northall referred me to various authorities as follows:a. Growcott v Glaze Auto Parts Ltd (UK

EAT/0419/11/SM

) at para 8 where the Respondent’s solicitors had sent a cost warning letter to the Claimant, and the EAT noted ‘the (costs warning) is couched in accurate, straightforward and simple terms. It was wholly suitable to convey to any litigant the way in which the Employment Tribunal was bound to approach the forthcoming hearing… The Employment Tribunal, plainly from their costs Judgment, directed themselves properly as to the applicable law… they regarded that (costs warning) as being a fair and sensible warning to Mrs Growcott of the way in which the Tribunal would approach her unfair dismissal claim and that if she continued to proceed with her claim, she would be running a risk as to an award of costs.’ Mr Northall submitted that the Respondent’s costs warning letter of January 2022 should be similarly viewed and that it accurately predicted the key issue.

b. Opalkova v Acquire Care Ltd (UK

EAT/0056/21/RN

) where the EAT noted that a determination that a response (or claim) did not have a reasonable prospect of success can overlap with a finding of unreasonable conduct on a cost’s application. At paragraph 24 of that Judgment, it states ‘…there are three key questions. First, objectively analysed when the response was submitted did it have no reasonable prospects of success, or alternatively at some later stage as more evidence became available was a stage reached out which the response ceased to have reasonable prospects of success? Second, at the stage that the response has no reasonable prospects of success did the Respondent know that was the case? Third, if not, should the Respondent have known that the response had no reasonable prospects of success.’ This case involved a Claimant pursing costs against a Respondent, and in this case, it is the Respondent making the application. In Mr Northall’s submission plainly the Claimant knew at the outset that his claim had no reasonable prospects of success, and he knew of his dishonesty with regards to his CV.

c. Kapoor v Governing Body of Barnhill Community High School (UK

EAT/0352/13/RN

) in which there was a review of the authorities and at paragraph 13 of the Judgment there was a quote from HCA International Ltd v JL May-Bheemul UK

EAT/0477/10/ZT

, ‘a lie on its own will not necessarily be sufficient to found an award of costs. It will always be necessary for the Tribunal to examine the context and look at the nature, gravity and effect of the lie in determining the unreasonableness of the alleged conduct.’ In Mr Northall’s submission, the context in this case is critical. If the Claimant accepted his application for his role with the Respondent was dishonest he would not have brought the claim. He could not have genuinely believed there was any other reason for dismissal.

[35]Mr Northall put forward an alternative position namely that once the Claimant received the costs warning letter he ought to have withdraw his claim and the Respondent should have its costs from that date.

[36]As to the claim against Mr Luck, the Respondent’s CEO, the Respondent’s position was this was brought only to embarrass Mr Luck or to place commercial pressure on the Respondent to settle. In Mr Northall’s submission this was vexatious.

[37]On the issue of means Mr Northall made the observation that means carries little weight where a Claimant has been dishonest. The Claimant had provided no documentary evidence as to means and it was not possible to make any evidential enquiry as to his ability to pay costs.

[38]The Respondent had provided a breakdown of the costs incurred by it. These exceeded £20,000 but it was content to limit its cost application to £20,000.

[39]As noted earlier in this decision I received a Skeleton Argument from the Claimant. He quoted from my Reserved Judgment of 7 September 2022 in which I refused the Respondent’s application to strike out the claim and in which I made a deposit order stated as follows: - “54. The Claimant’s case at its highest is that the reason (for dismissal) must be false as he did in fact provide a correct CV in advance of his 2019 interview, that CV was in the possession of those interviewing him and that he has a transcript of the interview which proves he mentioned his previous employment with the Respondent. Bearing all that in mind, this is not a case that I can strike out. I cannot say there are no reasonable prospects of success. 55. I do however conclude there are little reasonable prospects of success. The Claimant provided a copy of a CV to the Respondent after his disciplinary hearing that cannot have been the CV he says he provided in advance of his interview. This is because it plainly refers to a job title and work experience he simply did not have as at August 2019. His explanation that he regularly updates his CV’s has only been made relatively recently and the Respondent is right to argue that this appears an attempt to ‘row back’ from a position which will prove difficult to explain. This may give weight to the reasons put forward for dismissal. With that in mind, I am persuaded to make a deposit order on the basis the claim has little reasonable prospects of success. The Claimant must pay a financial deposit if he intends to pursue the claim. Having regard to the Claimant’s means I order him to pay a deposit of £250.”

[40]In the Claimant’s submissions little prospects of success did not mean ‘no prospect’ particularly where witness evidence had yet to be heard and where the Tribunal had not had the benefit of listening to his recording of the interview.

THE LAW

[41]The power to make costs orders is contained in Rules 74 – 79 of Schedule 1, to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. Under Rule 76 (1) “A Tribunal may make a costs order…, and shall consider whether to do so, where it considers that – a) A party…had acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted, or b) Any claim or response had no reasonable prospects of success.”

[42]In Gee v Shell UK Ltd

(2003) IRLR 82

, it was confirmed that costs are the exception, rather than the rule.

[43]I have set out earlier the various authorities that Mr Northall had taken me to. if the threshold for making an order is made out under either Rule 76(1) (a) or (b) it is a matter for the Tribunal in considering all relevant factors to decide whether to exercise its discretion to make an order.

[44]Under Rule 84, when a Tribunal makes a costs order it may take the paying party’s ability to pay into account when considering both whether to make an order and the amount of any order.

CONCLUSIONS

[45]I am unable to accept that the Claimant’s bringing or conduct of the claim was unreasonable, nor that the claim had no reasonable prospects of success. Indeed, on the latter point, at the hearing in September 2022 I refused the Respondent’s strike out application as I concluded it could not be said the claim had no reasonable prospects of success. Whilst I accept the Respondent’s position that it appears the Claimant was not truthful in his job application, I am conscious that he tendered an explanation for this (it was the fault of the recruitment agent) and that he sent in a corrected CV and that he has a recording of his interview where he mentions his previous employment. These arguments may have failed at trial however they needed to be aired and considered. It cannot, without airing these matters, be said the Claimant was dishonest or had lied.

[46]The fact the Claimant failed to pay the deposit that I ordered him to pay meant the issues in this claim were never ventilated. No findings have been made on the merits, I cannot say at the time the claim was filed, or at any time before the claim was struck out due to the failure to pay the deposit, that the claim was unreasonable or had no reasonable prospects of success. I cannot find that the Claimant lied or was dishonest as his arguments to the contrary have not been heard.

[47]As to the 4th ground, the claim pursed against the Respondent’s CEO, I agree it was not appropriate for the Claimant to pursue Mr Luck as a Respondent. It appeared Mr Luck had no direct involvement in any matters concerning the Claimant’s employment or the termination thereof. I note however that by the time I conducted the Case Management Preliminary Hearing in this claim on 27 January 2022, the Claimant had withdrawn the claim against Mr Luck. This withdrawal came relatively early in the proceedings. The Respondent company would have incurred the costs of defending the proceedings in any event and I doubt much by way of additional costs were involved in the filing of a response on the part of Mr Luck. I am not persuaded to award costs on this ground.