Mr S K Addai v Kings Guardings Solutions Ltd: 1300349/2024
EMPLOYMENT TRIBUNALS
Case No 1300349/2024
Between
MR SAMUEL KOFI ADDAIClaimantKINGS GUARDINGS SOLUTIONS LIMITEDRespondent
Before
Employment Judge N. ClarkeMs C. Goodman (instructed by Counsel) for respondentDate 9 May 2025
JUDGMENT
[1]The Claimant’s claims, for Unfair Dismissal, Whistle-Blowing Detriments and Dismissal are unfounded and are dismissed. EJ N. Clarke 9 May 2025 (as amended)
REASONS
Introduction
[1]We heard the evidence in this case on 6 to 8 May 2025 and gave our decision with oral reasons. These are written reasons following a request from the Claimant. Preliminary matters Respondent’s identity
Preliminary matters
[2]There had been some uncertainty about the correct identity of the Respondent.[3]We determined that the correct Respondent is Kings Guarding Solutions Limited because:3.1 That was the Respondent’s position before us at the hearing.3.2 The payslips within the bundle showed Kings Security Guarding Limited in the main body of form (and whilst it said “Kings Secure Technologies” elsewhere on the form, this was not expressed as a Limited Company.)3.3 A check on Companies House website shows Kings Security Guarding Ltd as the former name of Kings Guarding Solutions Limited. Application to amend.[4]The Claimant had previously applied to amend his claim to add detriments to the Whistle-Blowing claim.[5]We could not establish, from the parties or the file, whether that application remained outstanding, or whether it had been determined. If it had been determined, we could not establish the outcome.[6]We concluded that determining the application today was the appropriate course and in accordance with the Overriding Objective. We heard oral submissions from the parties.[7]The history is as follows:7.1 The Claim was presented on 23 January 2024.7.2 In box 8.1 of the ET1, the Claimant ticked the box headed “I am making another type of claim which the Employment Tribunal can deal with.” In the box underneath, the Claimant stated, “Agency worker S. Begum 14/08/2024 came to work at the Tesco site and did not display an SIA licence and I believe she did not have a genuine licence.” This statement was very similar to the disclosure of information he relies on in the whistle-blowing claim.7.3 Paragraphs 26 and 27 of the Grounds of Resistance indicate that the Respondent believed the Claimant to be making a protected disclosure claim.7.4 The Claimant made an application to amend on 2 April 2024, making reference to a protected disclosure, and detriments and dismissal connected to it.7.5 He repeated or explained that application in a letter of 16 April 2024 and expanded on the reasons for the application in a letter of 7 May 2024.7.6 The matter came before the Tribunal on the 12 June 2024 for a Case Management Hearing. The Claimant represented himself and the Respondent was represented by Counsel, but not Counsel before us at this final hearing. The Order makes no express mention of the application to amend, and it is not clear on the face of the Order whether that application was before the Tribunal and, if it was, whether it was determined. The List of Issues as set out in the order has the appearance of being incomplete. For example, it sets out the full list of the potential matters in section 43B(1) ERA 1996 and does not define the statement relied on by the Claimant as being a disclosure of information in the Protected Disclosure claim.[8]We concluded that the only fair approach was to determine that application today.[9]That put today’s hearing at risk of being ineffective. We informed the parties of that.[10]The Claimant confirmed that the application was to add the three whistle-blowing detriments as listed in the List of Issues in Appendix 1 below, and that he was not pursuing dismissal as a detriment.[11]The Respondent, quite properly, conceded the amendment application in respect of the first new detriment, and we allowed that amendment by consent.[12]We heard submissions in respect of the remaining two detriments and decided to allow the amendment for the following reasons:12.1 On the nature of the amendment:12.1.1 Although the detriments themselves were not absolutely clear on the face of the ET1, a whistle-blowing claim was clear. We took account of the fact that the Claimant was representing himself when he completed the form.12.1.2 This was, therefore, an amendment that sought to add detriments to, in effect, an existing claim.12.2 On the timing of the application:12.2.1 The Claimant had made his application to amend in April 2024, in good time before the Case Management Hearing and a few months after presentation of the Claim. He had done so once he had received some legal advice.12.2.2 The Claimant wrote to the Tribunal on 11 August 2024 to state: On 12 June 2024, we held a telephone preliminary hearing before Employment Judge Murdin. The Judge discussed the application of the amendment on 02 April 2024, whether particular issues like making a protected disclosure and a result subjected to detriment were in the original ET1 forms or not. The Judge acknowledged that and wanted further better particulars regarding the public interest in the protected disclosure and detriment I suffered. The CASE MANAGEMENT ORDERS did not list the detriment I suffered under Section 47B of the Employment Act 1996 as it was discussed on 12 June 2023, of the original ET1 form and in the application, I made to amend and provide better and further particulars on 02 April 2024. As I do not know the law or the Tribunal process, I depend on a friend for advice and help in dealing with the Tribunal issues. This friend, who has been helping me voluntarily, has been on a long holiday since June 15, 2024, and came back to the UK last week to highlight the issue. I am writing to the Tribunal to list the detriment I as part of the list of issues the Tribunal needs to answer on the final hearing date. The Respondent has been copied.12.2.3 On 16 September 2024, the Claimant wrote to Tribunal to state: I am the Claimant in the above case and write regarding the detriments relating to my whistleblowing claim. The record of the preliminary hearing held on the 12th June 2024 records at page 8 that the detriment suffered was my dismissal. I confirm that I believe that my dismissal was a detriment due to the actions of Leigh Jaggard and that the respondent should be held vicariously liable for the actions of its employees that amount to a detriment because of making a protected disclosure. The case of Miss G Treadwell v Barton Turns Development Ltd [2024] EAT 137 confirms that this is possible. Also, I detailed in my amendment application dated 02 April 2024 and 16 April 2024 that the following were also detriments that I suffered and should be included in my claim, [a] subjecting me to disciplinary meeting when I said I have not been trained to work on the site, [b] Increased Patrols from three to ten, refused me an opportunity to change from night to day shift and [c] presenting a wrong image to disciplinary officer for me to be dismissed even though, I said I did not sit on 06/09/2023. I assume that an amendment application is not required but if it is then please treat this email as an amendment application12.2.4 We note that the first of those three detriments pre-dates the disclosure, which is why the Claimant did not pursue it before us.12.2.5 On 23 October 2024, the Respondent wrote the Tribunal to state: With regards to the Claimant's correspondence dated 11 August 2024, the Respondent understands that the Claimant's application to amend his claim dated 2 April 2024 has been responded to by the Respondent and addressed by the Tribunal. We would be grateful therefore if the Tribunal would clarify what further information is required from the Respondent.12.2.6 As we have observed, if the Tribunal had addressed the application, that was not clear to us on the face of the order. The Respondent’s solicitors should have realised that and, as the only lawyers in the case, should have told the Tribunal what the position was.12.2.7 Although the parties had clarified the statement made for the purposes of the protected disclosure claim when they came before Regional Employment Judge Jones on 14 January 2025, neither party pointed out that the List of Issues was otherwise incomplete or that the amendment application was yet to be determined (or if it had been determined, that it was not clear on the face of the order).12.2.8 The Respondent came to the final hearing with a proposed List of Issues. The only Protected Disclosure detriment it identified in that list was dismissal and included, as another issues, whether such a claim could properly proceed in light of s47B(2) of the ERA.12.2.9 Therefore: a) The application itself had been made in April 2024. b) The history suggests, we conclude, that it was not the Claimant’s fault that it had not been determined until the final hearing. c) We would consider adjourning the final hearing if allowing the amendment meant that either party needed more time as a result.12.3 On time limits:12.3.1 The claims were now out of time.12.3.2 The claims would have been in time if they had been included in the ET1.12.3.3 Early Conciliation concluded on the 26 December 2023, so the claims were out of time by the time of the application the 2 April 2024.12.3.4 If the application was to be allowed, these claims would be deemed presented as of today's date (Galilee v Commissioner of the Police of the Metropolis [2018[ ICR 634) and therefore the Respondent would not be deprived of the argument on time jurisdiction.12.4 The core question is the balance of injustice and hardship in allowing or refusing the application, Vaughan v Modality Partnership 2021 ICR 535, EAT:12.4.1 In this case, the Claimant would clearly be prejudiced by refusal of this application in that his potentially valid claims would not proceed.12.4.2 The Claimant had been consistently trying to add these claims by amendment since April 2024.12.4.3 The Respondent stated that it would be prejudiced because Leigh Jaggard (“LJ”) (the employee said to be responsible for the relevant detriments), no longer works for the Respondent and had stated, on a previous occasion, that he was not willing to give evidence in these proceedings.12.4.4 There was no further detail about his availability or, for example, whether the Respondent had contemplated applying for a witness summons. Vaughan (supra) indicates that parties must have sufficient instructions on such matters when these applications are before the tribunal.12.4.5 The Respondent had conceded the application to amend in respect of the first detriment, which was also said to have been inflicted by LJ. That weakened their argument about the prejudice they faced by his absence.12.4.6 Taking those factors into account, we considered that the balance of injustice and hardship was against the Claimant in refusing the application and therefore allow the amendment.12.4.7 Neither party applied to adjourn as a result and the matter therefore proceeded to a final hearing. Additional evidence[13]We allowed the Respondent to rely on the witness statement of Alexandra Pinkney (“AP”) that had not been submitted in accordance with directions, subject to deletion of paragraph 7, which contained impermissible opinion evidence, in our view.[14]We allowed the Claimant overnight to prepare his cross-examination of this new witness. In the event, he did not have questions for her.[15]Both parties were allowed to rely on some additional disclosure. Application to allow remote evidence[16]We allowed one of the Respondent’s witnesses, Bilal Ali (“BA”), to give evidence remotely, despite the Claimant’s objection. BA’s wife had very recently given birth to their child. We considered remote attendance reasonable in the circumstances, and the Claimant was still able to cross-examine him over the link. Claims and Issues[17]The Issues to be determined were, therefore, those set out in Appendix 1 below, which we handed down to the parties during the hearing.
Law
[18]The applicable law is set out in Appendix 2.
Procedure
[19]There was a Bundle of documents as well as two additional supplemental bundles from the Respondent and additional disclosure from the Claimant. There were witness statements.[20]We told asked the parties to proceed on the basis that we had read the pleadings, the witness statements and any documents expressly referred to in those documents. If either party wanted us to consider other documents, then we would have to be taken to them in evidence or submissions.[21]We considered the witness statements. All witnesses gave live evidence.[22]Both parties made closing submissions in writing and had an opportunity to amplify and respond orally.
Findings of Fact
[23]We made the following findings of facts on the balance of probabilities. Where a fact was in dispute, we explain why we made the particular finding. Where it was not in dispute then it is recorded without further comment. We did not make findings on every fact in dispute, but only those relevant to the issues in the claim.[24]The Claimant has continuous service with the Respondent since 25 September 2020, taking account of a TUPE transfer.[25]The Respondent provides security and, in the context of this case, provided security to Tesco in Daventry being engaged as a sub-contractor to NIC.[26]Tesco was a demanding client, and the Respondent was anxious to meet its demands and maintain that commercial relationship. Tesco is a well-known major supermarket chain and it was the Respondent’s second biggest client.[27]The site was susceptible to and had succumbed to theft, being a site where valuable goods, including tobacco, was held. Security was obviously a significant issue for Tesco.[28]One aspect of the security policy was that every person entering and leaving the site had to be subjected to a search. This was conducted using ‘Thruvision’, which is a full-body screening system, a bit like an x-ray. When an individual is searched with this system, an image appears on a screen of them, head to toe, and any object concealed upon them appears as a visible black mark.[29]The Respondent’s case was that it was a requirement for security guards to stand up whilst conducting these searches.29.1 We were not shown, and it was not suggested that there was, any written policy to that effect.29.2 We can understand that it might be better to stand, both in terms of having a clearer view of the screen and in creating a sense of a more diligent search, but standing was in no way essential, in our view, on the evidence we heard.29.3 In April 2023, LJ emailed the guards, and stated: “officer in tobacco slouched in a chair and on his phone - officer contract band and service provider removed from Grocery”29.4 “Slouch” implies sitting, in our view. Whilst the email does not expressly state that the officer was searching at the time, we conclude that the Claimant was on notice, having received this email, of a need to stand whilst searching. (We note that he accepts, in his witness statement, having seen this message)29.5 On 6 September 2023, as we deal with later, after Tesco had raised an issue about guards sitting whilst searching, LJ asked BA whether anything was documented about that as a requirement (“[did you find] any thing documented about standing for searches”). That implies, we conclude:29.5.1 That LJ knew there was no express written policy on the point, and29.5.2 He was not sure about the extent to which guards had been informed in writing about the requirement to stand whilst searching.29.6 BA’s response was to refer to the April 2023 email above.29.7 That all indicated to us some uncertainty about the degree to which this was known to be a hard and fast rule; an absolute as opposed to best or good practice.29.8 Later that day, as is accepted, the Respondent sent the guards (including the Claimant) some definitive instructions that stated, “All officer must stand while conducting searches and act in professional way , while sitting on chair and conducting searches are not allowed..”[30]As to whether and when the Claimant knew that he was required to stand whilst conducting searches:30.1 The Respondent relies on the Claimant’s comments in the investigation meeting of 12 September 2023 as indicating that he knew he was required to stand. We accept that he knew by then, as is clear by the words he used, “when somebody is coming and then you stand up and search the person”.30.2 We are not satisfied that this is a reliable indicator of the Claimant’s knowledge before 6 September 2023 because:30.2.1 By then he had received the Whatsapp message in paragraph 29.8 above, and30.2.2 The investigation meeting itself concerned “officers on the night shift.. sitting down”, so the Claimant was on notice of the issue and under pressure.[31]We conclude, on the evidence, that there was a requirement for guards to stand whilst searching by September 2023 and that the Claimant knew this by 6 September 2023, when he received the message. Before then, we conclude, he would have known it was best practice but, in our judgment, not appreciated that it was a hard and fast rule.[32]The Claimant states that on 14 August 2023 he telephoned BA and told him that an agency worker, Ms Bagam, was on site without displaying her SIA licence, that she did not have any such licence and that this was illegal. This is the alleged disclosure of information in the Protected Disclosure claim. BA’s evidence was that this telephone call did not take place. We have concluded that it did, for the following reasons:32.1 The Claimant has consistently said it did. He said it in the investigation meeting on 12 September 2023 (at page 4 of the minute), which was followed by a WhatsApp exchange about it with LJ the following day.32.2 We had doubts about BA’s credibility:32.2.1 We saw an exchange of messages between BA and LJ (page 242 of the bundle) as follows: BA: Kate asked me to review CCTV manager complained to her guards sitting during searches LJ: What does Kate want us to do about it BA: She asked me to check if it happened or not? BA: Should I say to her everything is fine? Then we do something from own side just a warning? LJ: No mate tell the truth pls LJ: Send her an e-mail copy me Jason and Matt in pls We agree with the implication of LJ’s, “tell the truth”, namely that BA intended to be less than frank with Kate.32.2.2 In oral evidence, BA suggested that the Daily Occurrence Log (at page 314) and the Handover Sheet (at page 317) were in different hands. We are mindful of the fact that we are not handwriting experts (neither is BA, of course), but in our view the two hands are strikingly similar, and for BA to suggest that he was able to tell that these were different hands caused us to doubt his credibility.[33]Those two documents are dated 14 August 2023. Both contain handwritten references to S Bagam not having an SIA badge. We have not otherwise relied on those two documents, and in particular have not relied on them in reaching our conclusion about whether the telephone call on 14 August 2023 took place because:33.1 The Respondent disputed both documents.33.2 The Handover Sheet (At page 317 of the bundle) has some unusual features, notably33.2.1 One explanation for (a) above could be that the bottom had been cut off when the blank document was copied. The evidence was that blank forms were produced by Tesco in bulk at various points. We consider it possible that part of the document got cut off in the process, which is not uncommon when organisations make copies, and then copies of copies. If a document is misaligned on a photocopier, then this sort of thing happens. The Claimant could then have completed the section at the bottom and in so doing left no room for a signature.33.2.2 Another explanation is that the Claimant added the comment at the bottom after the form had been completed by pasting a strip of paper on top and over the manager’s signature.(a) that the bottom of the printed form is partially cut off(b) that there is no Reviewing Manager’s signature, and(c) where the Reviewing Manager’s signature should be there is, instead, the Claimant’s manuscript comment (which itself looks to be partially cut off).33.3 The Respondent had not produced the originals of these documents. Neither had they produced a witness who was able to say, definitively, that they had actually searched for the originals.33.4 Although the Respondent says, which we accept, that Tesco holds (or held) the originals, we conclude that the Respondent would be entitled to obtain copies or to inspect the originals. These documents were completed by the Respondent’s employees, and we consider it likely that the Respondent therefore has a legal entitlement to them. In any event, the Tribunal would, in our judgment, very likely have granted a third-party disclosure order to that extent if asked.33.5 The evidence as to (i) exactly when the Claimant produced/disclosed these documents and (ii) whether and when Tesco might have destroyed documents, was very unclear, and not such that we could make findings.33.6 We were satisfied that Tesco made careful audits of these sorts of documents. Lee Sinclair gave compelling evidence about that, and it seemed to us to be in line with the general character of how Tesco viewed security. We cannot see how the documents, particularly the one at page 317, would have been audited by Tesco and gone un-noticed. However, there is no actual evidence that it was audited by Tesco in the form it appears and no evidence about what such audit resulted in. We do not want to speculate.[34]In short, therefore, there are so many uncertainties about these documents that we cannot come to any conclusion about them on the balance of probabilities. That does not affect the other conclusions we have come to in the case in any way.[35]At some point in August 2023 there was a security incident. LJ’s email of 15 August 2023 suggests it was “this morning” whereas the Claimant stated that he believed it was in the two weeks before that. Nothing turns on the exact date in our judgment. LJ’s email states: “with the removal of the [dog handler] and in light of this mornings incidents I need the below to be implemented asap. Hourly tobacco fence line patrols with all patrol tags in that area to be tagged) these are as well as the full patrols (if a full patrol is being carried out this counts as a fence line patrol)…”[36]The Claimant worked a shift from 6.30 p.m. on 5 September to 6.30 a.m. on 6 September 2023, and it is agreed between the parties that at one point on this shift, on 5 September, sat down while conducting a search.[37]We are satisfied that Tesco raised a complaint, on 6 September 2023, about guards sitting down because:37.1 At 07:01 BA told LJ by WhatsApp that Kate Fairbrother (“KF”), the General Manager at Tesco Daventry, had asked him to review the CCTV, as a manager had complained to her that guards were sitting down during searches. The message is undated. This is one of a number of documents that the Claimant said were “fake”. His reasoning, in this example, was that “Whatsapp messages do not look like this”. He also disputed some emails, because, he explained, “emails always have “reply all”” on the top. We took this to mean that copies of emails always include the “reply all” icon (and others) at the top of the page, when reproduced. This is a matter we feel able to take judicial notice of. The appearance of emails in documentary form depends on how they are produced. A screenshot may well show the “reply all”, etc., icons, but it is also possible to produce an email as a pdf, in which case, it does not include the icons. WhatsApp messages likewise. It is possible to have this data in the form of a text document (Word or similar), in our experience where it has been downloaded as opposed to copied as a screenshot/grab. It is also possible to customise the appearance of WhatsApp on smartphones, so screenshots will vary depending on the individual’s particular customisation. For those reasons, we do not accept that this, or other documents, are “fake”.37.2 At 8:15 a.m. on 6 September 2023 BA emailed KF, copying LJ and others. He said he had reviewed the CCTV camera for the previous night and had seen two guards sitting while searching: Abdul Al-hassan, and the Claimant. KF responded, asking for a meeting about the matter.37.3 At 18:07 and 18:17 on 6 September 2023 BA sent a WhatsApp message to a WhatsApp group containing all the security officers on the Tesco Daventry site reminding them to, “stand and conduct searches in professional way” as “sitting on chair and conducting searches are not allowed”. We know that the Claimant saw this text, as he accepted this in his investigation and disciplinary meetings and in oral evidence before us.[38]The Claimant worked the night shift again on the night between 6 and 7 September 2023. He accepts that he sat down during this night shift while searching someone, and there is a CCTV still at 03:51 on 7 September 2023 that is said to show this.[39]On 8 September 2023, the Claimant was an invited to an investigation meeting to take place on 12 September 2023, to discuss “Failure to comply with search procedures detailed in the Policy Manual” and “Failure to comply with company policies and procedures”[40]On 12 September 2023 LJ held an investigation meeting with the Claimant. The meeting was 44 minutes long.40.1 The Claimant admitted sitting while searching on the night shift between 5 and 6 September 2023. He said he did this because he had neck pain and felt tired and dizzy due to sleeping uncomfortably the night before.40.2 The Claimant denied that he had sat while searching down on the night shift between 6 and 7 September 2023 and said he had only sat “when there was nobody”. This contradicted the video evidence. The Claimant later admitted (in his disciplinary hearing) that he had sat down while searching on the shift between 6 and 7 September 2023.40.3 LJ put it to the Claimant that he sat down while searching after getting a text reminder on 6 September 2023 that he must not do this. The Claimant denied this.[41]At the end of the investigation meeting LJ decided to refer the matter to a disciplinary hearing.[42]On 14 September 2023, LJ sent to AP (who was providing HR assistance) an email, attached to which was four .jpg images. The file names included “abdul” in two of the files and “samuel” in the other two. Adbul was, it is not in dispute, a reference to one of the Claimant’s colleagues, Abdul Al-Hassan.[43]The two images that included “samuel” in the filename were included by AP in the Claimant’s disciplinary pack. It is not in issue that one of those, a CCTV still of 6 September 2023 at 04:07, was not, in fact, of the Claimant. It is also worth mentioning at this point, having viewed the stills ourselves, that, given the quality of the image, we cannot say whether the guard shown is the Claimant or not (in that or any of the images). We only mention that to point out that, in our judgment, it would be easy to mix up the identities of the guards if looking at the still images alone. By the time of this hearing, the parties were agreed which images showed whom.[44]It is not in dispute that at some stage thereafter, the Claimant accessed the CCTV from 6 September 2023 at the Tesco site and replayed the section that included 04.07 hours whilst filming the moving footage onto his personal mobile phone.[45]At 13:20 on 19 September 2023, shortly before the disciplinary hearing, the Claimant sent three video files to AP by email, explaining that they were videos of CCTV footage and that the CCTV footage on 6 September 2023 was not him.[46]The Claimant had, in the hearing, said that he wanted to play some video footage to the Tribunal. Ultimately, this was not necessary. As we have observed, by the time of the hearing there was no dispute about what the footage showed. However, in oral evidence, the Claimant indicated that the evidence he had proposed to play was the same as the footage he had obtained for the Disciplinary Hearing (and in the above email).[47]The first Disciplinary Hearing was on 19 September 2023 and lasted 4 minutes. The Claimant was asked how he had “attained” (presumably “obtained”) the CCTV footage that he had sent by email. His reply was that’ “I played back the CCTV on the day that I have been accused and I used my phone just to record a portion of it”[48]AP explained that the hearing would have to be adjourned for further investigation as, “this is a major GDPR breach…”[49]The Claimant seemed, before us, to complain about the fact of that adjournment. The Respondent’s evidence was that they wanted to understand where the footage had come from. We also had the sense that they were somewhat shocked by the Claimant producing a video of the CCTV and wanted time to think. In any event, in our judgment nothing turns on their decision to adjourn.[50]The Claimant was sent an updated invitation later that same day, (16:27 on 19 September 2023), for a Disciplinary Hearing to take place on 21 September 2023.[51]At that second Disciplinary Hearing, the Claimant reiterated that the 6 September image was not him but admitted having been seated whilst searching on 5 and 7 September, being consecutive shifts. The Disciplinary Hearing Manager, Mark Wallace (“MW”) accepted that to be the position as is clear from the minutes and from his oral evidence.[52]MW invited the Claimant to explain why he had sat down on shifts while searching. The Claimant explained that he had been feeling unwell on both occasions and that he had only been seated for a short period, a minute or so.[53]MW also asked the Claimant to explain why he had filmed CCTV footage on his personal mobile phone. The Claimant said that he did not know before AP told him on 19 September 2023 that he should not do this. MW checked the Claimant’s personnel file and found that he had had an induction, training on information security, and had signed assignment instructions stating he had read the CCTV policy and GDPR policy. MW found it implausible that the Claimant did not know he should not film CCTV on his personal phone.[54]In his oral evidence to the Tribunal, MW stated, “It’s such a basic standard of something we know, that we can’t take images of CCTV on a personal phone.” He added that if the Claimant did not know this, it was very concerning.[55]MW dismissed the Claimant for gross misconduct. He explained to the Claimant that if the only offences had been sitting while searching, he would have given a final written warning, but that filming CCTV on a mobile phone was serious misconduct in its own right warranting dismissal.[56]In the Dismissal Letter, MW explained: “To summarise you openly admitted to sitting down and searching which is against company policies and procedures and ultimately could have resulted in harm to yourself/others or significant loss to the company. Although I appreciate you were feeling unwell, if you believed you were unable to complete your duties this should have been reported to Control and your Line Manager especially taking into consideration that this occurred on two consecutive shifts. Following on from this incident it was then brought to my attention the serious breach of GDPR that took place. You have completed training and signed the Assignment instructions on site to confirm you have read the CCTV policy and GDPR policy thus meaning that you should have an understanding that CCTV is not property of Kings, this is of the Clients. This meaning that the unauthorised videoing of CCTV on a personal mobile phone device is deemed as theft and a serious breach of GDPR as you did not have the authority to attain this data. Overall, I do empathise with the fact that you were feeling unwell, however this does not excuse the failure to complete your duties correctly after being trained and informed to do so. It also does not exonerate you serious breaching GDPR processes and putting yourself and Kings as a business at serious risk.”[57]The Claimant was sent the transcript of the Disciplinary Hearing on 25 September 2023 and did not dispute its accuracy.[58]The Claimant appealed against his dismissal on 28 September 2023. He provided 6 grounds of appeal. We note that the grounds do not expressly state that he had been dismissed because of any disclosure he made on 14 August 2023.[59]Lee Sinclair (“LS”) conducted the appeal hearing on 11 September 2023. The meeting was recorded and a transcript produced. We note:59.1 The Claimant clarified that his motive for recording the CCTV on his personal phone was to show that one of the three images was not him (04:07 on 6 September 2023). He did not think there was a better way of asking for this to be verified, such as asking the manager to look back through the footage.59.2 The Claimant explained that he had felt unwell and dizzy and this is why he sat down; upon being questioned as to his health condition, he that he is diabetic.59.3 The Claimant felt LJ just wanted to get rid of him.59.4 The Claimant said that he had reported to Bilal [Ali] that an agency worker had been working without an SIA licence and that he had written this in the DOB (Daily Occurrence Book). He felt this was the reason he was under investigation and that MW would never have dismissed him had LJ and BA not investigated him for this reason.[60]LS investigated the grounds of appeal. He verified that the complaint had come from Tesco, both by searching his own email history, which included the original email from Tesco (which was in the bundle) and by speaking to KF on the telephone. He sympathised with the Claimant insofar as the wrong image had been provided in his disciplinary pack but did not consider this justified the misconduct of filming CCTV footage on a personal phone. He investigated whether Ms Bagam had had a licence on 14 August 2023 and found that she had. He decided he did not need to take investigation into this ground of appeal further.[61]LS upheld the dismissal for the reasons set out in his letter of 2 November 2023.[62]The detriments that the Claimant relies on in the Protected Disclosure claim all concern acts by LJ. LJ’s knowledge of the disclosure, and the date of knowledge, are potentially relevant facts.[63]We have concluded that LJ first knew about the fact of the Protected Disclosure claimed was on 12 September 2023 for the following reasons:63.1 The disclosure was made to BA, as we have found, on the telephone in August. There has never been any suggestion that LJ was present or a party to the call at the time.63.2 The Claimant said in evidence that he told BA about a possible break in, referring to having seen torch lights, on 14 August 2023. He referred to a WhatsApp message from LJ to him on 15 August 2023 congratulating him for his “good proactive work” preventing the break in and invited us to infer that because LJ knew about the torchlights, BA would also have told him about the Protected Disclosure. In our judgment, one does not necessarily follow the other and is, in truth, no more than speculation. We are not willing to speculate.63.3 During the investigation meeting on 12 September 2023, the Claimant said to LJ: SA: Leigh, can I plead with you to tell you what is actually going on, on site. I think you are giving Bilal too much power to do whatever he is doing and for the say of Kings which we work for and for the sake of you we do not want you to loose [sic] the contract we need to let you know some of the things he is doing that he is not reporting to you. Did you know that someone came to work and the person didn’t have SIA licence and we called Bilal and said this person hasn’t got SIA licence and he said okay he can work and I said no the government policy no one can work without an SIA licence. The person he told me that he arrived in the UK a month ago, so if he arrived in the UK a month ago when did he register to do the exams and where did apply to get a licence and start working? LJ: When was this? SA: Right, I will tell you I have got all the details, but I just want you to be aware that Bilal should also be checked and punished against when he is doing. He wouldn’t report it to you but what he is doing when you are telling him that’s why he called you and not told you about this person. On that day I am not the only person who sat everybody sat but I am the only person he picked. You go back and watch the CCTV from that day and you watch and you make your decision, but I am telling you what Bilal is doing you need to check him. He thinks he can do what he wants, and he thinks he has the power and that’s why are names have come to you this.63.4 The very fact that the Claimant raised this with LJ and the manner in which he raised it indicates, we conclude, that Claimant did not believe LJ knew about the Protected Disclosure at the time.63.5 The Claimant’s suggestion that LJ was simply pretending not to know seems to us to be no more than speculation.63.6 LJ followed up the Claimant’s point in the Disciplinary Hearing above, by asking the Claimant, in a message on 13 September 2023, “Have you got the details of the officer bilal allowed to work without SIA licence”. That is, in our judgment, inconsistent with someone who had preferred to pretend the allegation had never been made.63.7 There was accepted evidence that LJ had previously, in January 2023, followed up an allegation that guards had not been displaying SIA badges.63.8 We inferred, taking all of the above into account, that LJ would have followed up an allegation of this sort promptly, and that he cannot, therefore, have known about it until 12 September 2023.
Conclusions
[64]For the reasons already given, we found as a fact that the Claimant made the statement in paragraph 1.1 of the List of Issues to BA on 14 August 2023. The Respondent concedes that if the statement was made, it was a Protected Disclosure, and we agree. It disclosed information, and we are satisfied that the Claimant had a reasonable belief that was in the public interest and tended to show that a person was failing to comply with a legal obligation; that was clearly the context.[65]The Claimant’s case is that LJ and BA, “planned to eliminate me”. We have found as a fact that LJ did not know about the Protected Disclosure until 12 September 2023. This is not a case where complicated issues of causation arise. The Claimant’s case is, in simple terms, that LJ knowingly applied the detriments to the Claimant in response to the Claimant having made the disclosure. It must follow, we conclude, that the detriments at 3(a) and (b) of the List of Issues, being matters for which LJ was responsible but which pre-date his knowledge, fail.[66]We accept the Respondent’s explanation, in respect of 3(a) of the List of Issues, for the application of that detriment, in effect that there was an ongoing recruitment process for day shifts roles, and the Claimant was not part of that process (and could not now join):66.1 LJ explained in a message replying to the Claimant’s suggestion he would “change to day shift”, “we are interviewing for the vacancies currently so you won’t be able to change to days”.66.2 The Respondent called AP to give evidence. She was the HR and Recruitment Officer at the time, and produced evidence of two individuals being vetted at this time. Her evidence, which we accept, is that people are vetted after they have already been offered a job.66.3 AP was called to give evidence, and produced her witness statement late in the day, but that was because it went to the issue of detriments that were added by way of amendment at the Final Hearing. We allowed that evidence in the circumstances, and gave the Claimant additional time to prepare his cross-examination of AP. Her witness statement stated, “two people [were] being vetted for the Daventry site which Mr Jaggard refers to in the WhatsApp message”. She had also produced an email of 17 August 2023 headed “weekly vetting update” that named two individuals being vetted for LJ’s team. In oral evidence she was unable to say which role these two people were being vetted for. Clearly, as the Respondent accepts, AP’s evidence was not conclusive as demonstrating that these two people were the same two people who had been offered the jobs which LJ referred to in his WhatsApp message. However, in our judgment that is a reasonable inference, and one we make, looking at the evidence as a whole, LJ’s WhatsApp message and the email are contemporaneous and demonstrate an ongoing recruitment process.[67]In respect of Issue 3(b) (increasing patrols), we accept the Respondent’s evidence that this was not connected to the Protected Disclosure but was because of a need for a change in patrols because:67.1 The hourly patrols were not imposed upon the Claimant specifically but upon all night shift security officers. It is clear from LJ’s email headed “extra hourly patrols” that all officers were expected to carry out the patrols.67.2 There were two additional security concerns. First, a dog handler had just left the site; this removed an added security measure. Secondly, there had been a security incident. For that reason, LJ wanted all officers to patrol the tobacco fence line. Tobacco is valuable stock and at risk of attempted theft.67.3 LS gave oral evidence, which we accept, as it is common sense, that changes to the operation of this sort were common to cater for changing circumstances.[68]The detriment of including the wrong CCTV (3(c)) does post-date LJ’s knowledge of the Protected Disclosure. It occurred, we conclude, 14 September 2023. We conclude that this was an innocent mistake and unconnected to the Protected Disclosure because:68.1 There were stills of two individuals at play and it was difficult to identify the individuals involved from the images. A mistake could easily be made.68.2 The second person was Abdul Alhassan.68.3 The Claimant had sat down on two occasions while conducting searches, and those two occasions were recorded on CCTV. There could be no benefit to LJ in producing the wrong photo. The Claimant had seemed, before us, to be suggesting that LJ wanted to show that the Claimant had sat down on both occasions after the WhatsApp warning about sitting down. We can understand the theory, namely that if LJ was targeting the Claimant unfairly, sitting down after the warning would be a more serious offence, and two occasions worse than one. However, the wrong photograph came before the relevant warning, and so the Claimant’s theory does not hold water.68.4 The evidence we have referred to suggests that LJ took compliance seriously and was not the type of person to try to brush things under the carpet. His involvement in the disciplinary process against the Claimant was consistent with that, and not one that caused us to suspect some other motive.[69]We conclude that there was a fair dismissal in this case:69.1 On the evidence, and as the Claimant admits, he committed the acts said to be misconduct, namely sitting down twice during searches and taking a video of CCTV footage on his personal device.69.2 Those acts were misconduct because:69.2.1 Sitting down on the second occasion came after an express order not to do so.69.2.2 Copying CCTV is obviously misconduct, in our view. CCTV is inherently sensitive; it records people undertaking day-to-day life and people do not always know, or at least remember, that they are capable of being seen and recorded. Security guards have privileged access to it. The world is awash with discussions about CCTV, surveillance and data protection. It is inconceivable that the Claimant would not have known about that.69.2.3 The Respondent had a clear CCTV Policy that:(a) set out the relevant legislation and warned readers about the need to comply with the legislation to protect against abuse and(b) made it clear that “release of images or footage can only be authorised by the Head of Operations. That is relevant because first it indicates that the release of footage requires someone in authority and secondly because the Claimant did not have that authority (and must have known he did not).69.3 We conclude that the reason for dismissal was misconduct and not the Protected Disclosure because:69.3.1 There was actual misconduct for the reasons we have concluded.69.3.2 Mr Al-Hassan had been dismissed for sitting down whilst searching in a similar process. Even taking account of some possible differences between his circumstances and the Claimant’s, that was an indication of how such acts were viewed by the Respondent.69.3.3 The dismissing officer said the sitting down offence alone, in the Claimant’s case, was worthy of a Final Written Warning, which we accept. The CCTV tipped the balance to summary dismissal, and that only arose once the disciplinary process commenced. That was a new act that broke the chain of causation.69.4 The dismissal was fair, we conclude, because:69.4.1 There were reasonable grounds for the belief in misconduct because the misconduct happened.69.4.2 There was a reasonable investigation. Again, the misconduct itself was not in dispute69.4.3 It was procedurally fair:69.4.3.1 There is no reason, in our judgment, to conclude that MW was influenced by LJ in his decision to dismiss. We found him to be a fair and careful witness.69.4.3.2 The Claimant had sufficient opportunity to raise points he wished to in process.69.4.3.3 The Claimant complained that the second investigation was too quick, but there was very little to investigate – it was just a question of where the Claimant’s videos of CCTV had come from. As we observe above, we can understand why the Respondent wanted to reflect on this discovery at the time, but in reality, it needed very little time to investigate. In any event, the Claimant has not explained why the speed of that investigation made matters unfair for him.69.4.4 Summary dismissal was within the band of reasonable responses:69.4.4.1 CCTV is sensitive, for the reasons we have already stated, and can include sensitive data. Security guards are in privileged position with access to it. It is essential to have rules and policies in place to ensure that the privilege is not abused. Unauthorised copying of footage is an obvious breach of the actual rules and was, and should have been, obviously wrong.69.4.4.2 The Claimant’s mitigation was that he was facing a “false” allegation because one of the still photographs from the CCTV was not him. We can understand that this was an unpleasant situation for the Claimant to be in, and also that it would have been tempting, given his access to the CCTV through his position, to take the law into his own hands and to obtain evidence in support of his position. However, that was neither necessary nor justified in our view: a) The Claimant was guilty of sitting down twice whilst searching, and so the CCTV still of another officer was largely academic in the circumstances. b) He could easily have raised the objection without resorting to filming the CCTV footage. c) Had he done so, it was likely that the investigators could have reviewed the footage and even produced it for the Claimant.69.4.4.3 The fact that the Claimant had been sitting whilst searching was an additional act of misconduct, but which did not justify dismissal on its own.69.4.4.4 Dismissal was within the band of reasonable responses for the CCTV offence. It was a serious and obvious breach of the rules and policies and should have been obvious to the Claimant.[70]The Protected Disclosure detriment claims, deemed presented in May 2025 were out of time.70.1 Whilst the Claimant was a litigant-in-person when he presented his claim, he had ticked the “I make another type of claim” box in section 8 and had made reference to the Protected Disclosure he relied on. The content of box 8.2 on the form, on a reasonable reading, drew the connection between this disclosure and his dismissal, stating that “the Manager and supervisor planned to eliminate me.” The detriments that the Claimant relied on must have been known to him when he completed that form and there was no explanation, beyond oversight, for omitting them.70.2 He told us he received legal advice in February or March 2024. There was no explanation for delay until April to make the application.70.3 It was, in those circumstances reasonably practicable to bring the detriment claims in the ET1 or, in any event, by February or March 2024 at the latest.70.4 We have focussed on the date of the application to amend in determining the time limit issue. We would likely have concluded that the delay in determining the application thereafter was not the Claimant’s fault, but in the circumstances that has no bearing here.[71]The claims are therefore dismissed. EJ N. Clarke 17 July 2025 APPENDIX 1 LIST OF ISSUES Protected disclosure
LIST OF ISSUES
[1]Did the Claimant make a protected disclosure within the meaning of sections 43A-C of the Employment Rights Act 1996 (the “ERA”)? In particular did the Claimant make the following disclosure of information: 1.1 On 14 August 2023, orally by telephone to Mr Bilal Ali, the Claimant’s supervisor, that there was an agency worker on site who was not displaying an SIA badge/licence which is a criminal offence under the Private Security Industry Act 2001.[2]If the statement above was made, the Respondent accepts that it was a protected disclosure within the meaning of section 43B(1) ERA 1996. Detrimental treatment[3]Was the Claimant subjected to the following detrimental treatment on the ground that he had made the above protected disclosure, contrary to section 47B of the ERA:a. Leigh Jaggard on 15 August 2023 at 16.45 hours, refusing the Claimant’s request (at 16.41 that day) to change his shift from nights to days.b. Leigh Jaggard, on 15 August 2023 at 10.37 hours, increasing patrols from 3 to 10.c. Leigh Jaggard, producing for the Disciplinary Hearing on 19 September 2023, at some point between 12 and 19 September a still image of CCTV, taken at 6/9/23 at 04.07 hours. Unfair dismissal It is agreed that the Claimant was dismissed.[5]Was the dismissal unfair? In particular:a. Can the Respondent establish a potentially fair reason for dismissal? The Respondent says the reason was conduct per 98(2)(b) of the ERA.b. If not, was the reason or principal reason for the Claimant’s dismissal that he made a protected disclosure, rendering the dismissal automatically unfair within the meaning of section 103A of the ERA? The Claimant relies upon the above protected disclosure.c. If the Respondent establishes a potentially fair reason for dismissal, was the dismissal fair in all the circumstances within the meaning of section 98(4) of the ERA? The Tribunal will usually decide, in particular, whether: i. there were reasonable grounds for that belief; ii. at the time the belief was formed the respondent had carried out a reasonable investigation; iii. the respondent otherwise acted in a procedurally fair manner; iv. dismissal was within the range of reasonable responses.
Remedy
[6]The Claimant does not seek re-instatement or re-engagement.[7]If any of the above claims are made out, to what compensation is the Claimant entitled? In particular:a. What losses flow from the detriments set out above including the consequences of the dismissal if any?b. What injury to feelings did the detriments cause if any?c. Should any compensation awarded be reduced to reflect the possibility that the Claimant would have been dismissed in any event had the Respondent acted fairly?d. Should any compensation for detrimental treatment and/or automatic unfair dismissal be reduced pursuant to sections 49(6A) and/or 123(6A) of the ERA on the basis that the disclosure(s) was not made in good faith, and if so, by how much?e. Should any award for unfair dismissal be reduced to reflect his blameworthy conduct which caused or contributed to the dismissal?f. Can the Respondent show that the Claimant has failed to take reasonable steps to mitigate his loss? APPENDIX 2 LAW AMENDMENTS 1. In determining whether to grant an application to amend, an employment tribunal must always carry out a careful balancing exercise or all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment, Selkent Bus Co Ltd v Moore 1996 ICR 836. Relevant factors include: a) The nature of the amendment Applications to amend range, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations that change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action b) The applicability of time limits If a new claim or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim/cause of action is out of time and, if so, whether the time limit should be extended c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the identification of new facts or new information from documents disclosed on discovery. 2. The core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application, Vaughan v Modality Partnership 2021 ICR 535, EAT. 3. The parties must make submissions on the specific practical consequences of allowing or refusing the amendment. The factors identified in Selkent should not be treated as a checklist to be ticked off to determine the application. Representatives should start by considering what the real, practical consequences of allowing or refusing the amendment will be. If the application to amend is refused, how severe will the consequences be, in terms of the prospects of success of the claim or defence? If permitted, what will be the practical problems in responding? Where the prejudice of allowing an amendment is additional expense, consideration should be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party can meet it. 4. In this case, the tribunal had not erred in law in refusing V’s application to amend her whistleblowing claim by adding two further alleged protected disclosures. Although the tribunal’s judgment did not make an express reference to the specific hardship that would be suffered by V if it refused the application, no such specific hardship had been identified by her. Consequently, there was just enough in the tribunal’s decision to show that it had conducted the appropriate balancing exercise. PROTECTED DISCLOSURE
LAW
LAW
[1]Only those disclosures that meet the statutory requirements set out in Section 43B ERA 1996 qualify for protection.[2]A disclosure must be a “disclosure of information” made by the worker bringing the claim and must, in the reasonable belief of the worker: a) Tend to show a relevant failure in one of five specified respects; or deliberate concealment of that failure, and b) Be made in the public interest. c)[3]Early decisions suggested a distinction between “information” and “allegation”, but in Kilraine v London Borough of Wandsworth [2018] ICR 1850 the Court of Appeal rejected the view that information and allegations were mutually exclusive. Allegations can amount to disclosures of information depending on their content and on the surrounding context. By itself, an allegation made by an NHS employee that “You are not complying with health and safety requirements” would be so devoid of specific factual content that it would not fit within the statutory language – such a statement does not disclose information tending to show health and safety is being endangered. If such a statement was made whilst pointing to sharps lying discarded on the ward floor, then this context would give the disclosure sufficient factual content to amount to a qualifying disclosure.[4]Kilraine suggests the following test for determining whether the information threshold had been met so as to potentially amount to a qualifying disclosure : the disclosure has to have “sufficient factual content and specificity such as is capable of tending to show” one of the five wrongdoings or deliberate concealment of the same. It is a matter “for the evaluative judgment of the tribunal in the light of all the facts of the case”.[5]Belief in the relevant failure has to be both genuine and reasonable. Reasonableness involves applying an objective standard to the personal circumstances of the discloser. The definition is concerned with what the worker believed at the time when they made the disclosure, not what they may have come to believe later on, Dodd v UK Direct Solutions Limited [2022] EAT 44.[6]A belief may be a reasonable belief even if it is wrong: Babula v Waltham Forest College [2007] ICR 1026.[7]For breach of a legal obligation (Section 43B(1)(b)), any legal obligation potentially suffices, including breach of an employment contract: Parkins v Sodexo [2002] IRLR 109]. ET cases have held that a wide range of legal obligations are relevant, in addition to the employment contract itself :a. Breach of an equal opportunities policy;b. Pressurising parking attendants to meet targets, such that they falsified entries in a log book – this was breach of the obligation to fairly administer provisions of road traffic legislation;c. Pressure to include false lines of business so as to artificially inflate the accounts;d. A complaint that hospital staff were unable to take proper rest breaks.[8]There is no requirement that the claimant identify a particular legal obligation in the disclosure. Such additional requirements go beyond the statutory wording and are inconsistent with the purpose of the legislation. However, what the worker said about the legal obligation, and whether the matter is obvious are relevant evidential matters in deciding what they believed and the reasonableness of what they believed.[9]The statutory wording requires a reasonable belief on the part of the worker that the disclosure was in the public interest. This requirement has two components – first a subjective belief, at the time, that that the disclosure was in the public interest; and secondly, that the belief was a reasonable one.[10]In Chesterton Global Limited v Nurmohamed [2018] ICR 731. The Court of Appeal considered that a disclosure could be in the public interest even if the motivation for the disclosure was to advance the worker’s own interests. Motive was irrelevant. What was required was that the worker reasonably believed disclosure was in the public interest in additional to his own personal interest.[11]A Tribunal will need to consider all the circumstances, although the following fourfold classification of relevant factors is potentially a “useful tool”:(a) The numbers in the group whose interests the disclosure served – although numbers by themselves would often be an insufficient basis for establishing public interest;(b) The nature and the extent of the interests affected – the more important the interest and the more serious the effect, the more likely that public interest is engaged; gravity(c) The nature of the wrongdoing – disclosure about deliberate wrongdoing is more likely to be regarded as in the public interest than inadvertent wrongdoing(d) The identity of the wrongdoer – the larger or more prominent the wrongdoer, the more likely that disclosure would be in the public interest. Prominence of wrongdoer Detriment[12]If a reasonable worker might regard the treatment as a detriment, and the claimant genuinely does so, that is sufficient to establish there has been a detriment. There does not necessarily need to be any physical or economic consequences.[13]Detriments are defined to include “any deliberate failure to act”, and includes a threat by an employer to take action which would constitute a detriment, provided that the threatened worker was reasonable in regarding it as being to his disadvantage.[14]Typical detriments include suspension, disciplinary action, changing roles or workplaces, exposing the whistleblower, failing to investigate the whistleblower’s complaints properly or promptly, non-allocation of work, failure of a probation period, refusal of permanent work, more stringent performance management, bullying and harassment by management or colleagues and providing a bad reference.[15]An employee cannot invoke Section 47B to complain that their dismissal was a detriment for making a protected disclosure. This is specifically excluded by Section 47B(2) ERA. In such a situation, the employee’s only direct remedy is a claim made under Section 103A for automatically unfair dismissal. The employee may have an indirect remedy if the claim is directed against the dismissing officer as a co-worker under Section 47B(1A), for whom the employer is vicariously liable under section 47B(1B).[16]An employee may be able to rely on a pre-dismissal event as a detriment where the detriment has subsequently led to dismissal. If successful, their remedy can include the financial consequences flowing from the dismissal, Royal Mail Ltd v Jhuti [2018] ICR 982 (CA), Timis v Osipov [2019] ICR 655. Causation[17]The statutory test is whether the worker was subjected to the detriment by the employer “on the ground that” he or she had made a protected disclosure. It is for the worker to prove, on the balance of probabilities that there was a protected disclosure, that there was a detriment and the employer subjected the claimant to the detriment. If so, then the burden shifts to the employer to show the ground on which the detrimental act was done: Section 48(2) ERA.[18]If a Tribunal rejects the reason advanced by the employer, then it is not bound to accept the reason advanced by the worker, namely that it was on the ground of a protected disclosure: it is open to the Tribunal to find that the real reason for the detriment was a third reason.[19]The Tribunal must consider what, consciously or unconsciously, was the employer’s reason for the detriment. It will need to consider whether to draw an inference from its findings of fact. Causation will be established unless the employer can show that the protected disclosure played no part whatsoever in its acts or omissions: Fecitt v NHS Manchester [2012] ICR 372, CA.[20]The result is that there will be a sufficient causal connection if a protected disclosure was one of several reasons for the detriment, even if it was not the predominant reason. It is enough if it was a material influence, in the sense of being more than a trivial influence.[21]As a result, the causation test for detriment claims is less onerous than the causation test for dismissal claims under Section 103A. There is no need to consider how a hypothetical or real comparator would have been treated.[22]The tribunal must focus on the mental processes of the individual decision maker, in asking whether the employer was materially influenced by a protected disclosure. This will require the decision maker to know of the protected disclosure. If one worker influenced by a protected disclosure procures a detrimental decision by another unaware of the protected disclosure, that detrimental decision will not be on the ground that the claimant has made a protected disclosure, Malik v Centos Securities plc UKEAT/0100/17/RN although the co-worker procuring the decision may be personally liable for this detrimental act under Section 47B(1A), and the employer may be vicariously liable for that act (under Section 47B(1B). Dismissal[23]The legislative provision concerning dismissal for making protected disclosures is Section 103A ERA. This provides that a dismissal will be automatically unfair if the reason or the principal reason is that the employee has made a protected disclosure. This is different from the material influence causation test in a detriment claim.[24]The reason for a dismissal connotes the factor or factors operating on the mind of the decision-maker which cause them to dismiss, or which motivates them to do so, The Co-operative Group v Baddeley [2017] EWCA Civ 658 at paragraph 41. This may involve a search for the real reason for dismissal, looking behind any invented reasons planted by a person in the hierarchy of responsibility above the employee: Royal Mail Group Ltd v Jhuti [2019] UKSC 55.[25]Unless the employee has less than two years continuous service, the burden of proof is on the employer to show that the reason for the dismissal is a potentially fair one. Where an employee has less than two years continuous service, the burden of proving on the balance of probabilities that the principal reason for the dismissal is a protected disclosure rests with the claimant.[26]Tribunals should adopt a three-stage approach to deciding the reason for dismissal in a case where the claimant has more than two years continuous service: e. First, the employee must prove that he or she made a protected disclosure and produce some evidence to suggest that they have been dismissed for the principal reason they have made a protected disclosure, rather than the potentially fair reason advanced by the employer; f. Secondly, having heard the evidence of both sides, it will then be for the employment tribunal to consider the evidence as a whole and to make primary findings of fact on the basis of direct evidence or reasonable inferences; and g. Thirdly, the tribunal must decide what was the reason or principal reason for the dismissal, on the basis that it was for the employer to show what the reason was. If the employer does not show to the Tribunal’s satisfaction that it was its asserted reason, then it is open to the Tribunal to find that the reason was as asserted by the employee. However, the Tribunal is not bound to accept the reason alleged by the employee. The true reason for dismissal may be one not advanced by either side. Kuzel v Roche Products Limited [2008] ICR 799 UNFAIR DISMISSAL[1]Section 98 ERA 1996 provides:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.[2]That means that there are two stages:a. The employer must show the reason for dismissal, which can only be one of the reasons in subsection (2), andb. The Tribunal must determine whether the dismissal was fair or not by considering whether the employer acted reasonably in dismissing the employee for the reason given.[3]The burden of proof on employers at the first stage is not a heavy one. It is not a question of whether the reason justified the dismissal, just a question of what the reason was, including whether that was the genuine reason.[4]The question relates to the reason at the time, so employers cannot establish a different reason based on facts that came after the decision. W Devis and Sons Ltd v Atkins 1977 ICR 662, HL.[5]Subsection (4) provides that ‘the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case’.[6]On the second stage, the tribunal must be satisfied that, in all the circumstances, the employer was actually justified in dismissing for that reason. For this part of the test, there is no burden of proof on either party. Whether dismissal was reasonable is a neutral question for the tribunal to decide — Boys and Girls Welfare Society v Macdonald 1997 ICR 693, EAT.[7]This is generally expressed as an objective question, namely what a reasonable employer would have done in the circumstances, NC Watling and Co Ltd v Richardson 1978 ICR 1049, EAT, but will also include the subjective element of genuinely held beliefs of the employer at the time of the dismissal.[8]A tribunal must not, however, substitute itself for the employer and consider how it would have responded to the established reason for dismissal. Employers often have at their disposal a range of reasonable responses to matters such as the misconduct or incapability. Different employers may choose different outcomes. Tribunals therefore apply, the ‘band of reasonable responses’ approach, by asking whether the employer’s action was within (or outside) the band (or range) of reasonable responses open to an employer, British Leyland (UK) Ltd v Swift 1981 IRLR 91, CA.[9]Further guidance was given in Iceland Frozen Foods Ltd v Jones 1983 ICR 17: ‘We consider that the authorities establish that in law the correct approach for the… tribunal to adopt in answering the question posed by [S.98(4)] is as follows:(1) the starting point should always be the words of [S.98(4)] themselves;(2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;(5) the function of the… tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’[10]The range of reasonable responses test also applies to the procedure by which that decision is reached — J Sainsbury plc v Hitt 2003 ICR 111, CA[11]Procedural fairness is an integral part of the reasonableness test under section 98(4), Polkey v AE Dayton Services Ltd 1988 ICR 142, HL. Where an employer fails to take the appropriate procedural steps, the one question a tribunal is not permitted to ask in applying the reasonableness test is whether it would have made any difference if the right procedure had been followed. That question is simply irrelevant to the issue of reasonableness.[12]That means: a) in a case of incapacity, giving an employee fair warning and a chance to improve b) in a case of misconduct, investigating fully and fairly and hearing what the employee wants to say in explanation or mitigation c) in a case of redundancy, warning and consulting affected employees, adopting a fair basis for selection and taking reasonable steps to redeploy affected employees.[13]The tribunal should have regard to the procedures set out in the ACAS Code.[14]Not every procedural defect will render a dismissal unfair. Tribunals need to look at procedural flaws in context and to consider their implications for the overall reasonableness of the employer’s decision to dismiss. It will almost inevitably be the case that in any alleged unfair dismissal a claimant will be able to identify a flaw, small or large, in the employer’s process, and that it is therefore for the tribunal to evaluate whether that defect is so significant as to amount to unfairness. Sharkey v Lloyds Bank plc EATS 0005/15.[15]As to appeals:a. Nothing prevents an employer’s appeal panel upholding a decision to dismiss on a different basis from that on which the original decision was made. Perry v Imperial College Healthcare NHS Trust EAT 0473/10b. Defects in the original disciplinary procedures may be remedied on appeal. Taylor v OCS Group Ltd 2006 ICR 1602, CA,c. There is no limitation on the nature and extent of the deficiencies in a disciplinary hearing that can be cured by a thorough and effective internal appeal, Khan v Stripestar Ltd EATS 0022/15.