Mr L Curtis v Jaguar Land Rover Ltd: 1301486/2022 and Others

EMPLOYMENT TRIBUNALS

Case No 1301486/2022, 1301726/2023, 1307752/2023

Between

Mr L CurtisClaimant

Jaguar Land Rover LtdRespondent

Before

Employment Judge Meichen, Mr E Stanley, Ms J Keene

In person for claimant

Ms L Badham (instructed by counsel) for respondent

Date 19 August 2025

JUDGMENT

[1]The claimant’s claims fail and they are dismissed. JUDGMENT was approved on 19 August 2025 and sent to the parties on 20 August 2025. The claimant’s claims failed and they were dismissed. Written reasons were subsequently requested by the claimant. The following reasons are provided. Full oral reasons were given at the end of hearing on 15 August 2025 and so these written reasons are based on the reasons given orally.

REASONS

[1]The issues for us to determine were agreed between the parties and set out in a list starting on page 144 of the bundle. At the start of this final hearing we asked both parties if the list of issues was still a correct and comprehensive list of all the issues we were asked to determine. Both parties confirmed that it was. Therefore the agreed list of liability issues for the tribunal to determine is as follows: 1.1 These proceedings comprise the complaints made by the Claimant in proceedings under Case No. 1301486/2022 (“the First Claim”); Case No. 1301726/2023 “(the Third Claim”), and Case No. 1307752/2023 (the Fourth Claim”). The Claimant also brought another claim against the Respondent (“the Second Claim”), which has been dismissed on withdrawal. Within the three claims under the above Case Nos, the Claimant brings complaints of:1.1.1 unfair dismissal (Employment Rights Act 1996 (“ERA”)): section 98;

1.1.2 victimisation ((Equality Act 2010 (“EqA”)): section 27, and

1.1.3 detriment for having made a protected disclosure (ERA: section 47B)

[2]Jurisdiction – ERA claims 1 of 512.1 In respect of the Unfair Dismissal claim (1307752/2023), it is accepted that the claim was brought in time. ACAS A was on 25 September 2023, ACAS B was on 10 October 2023, the claim was presented on 03 November 2023. Primary limitation therefore expired on 24 June 2023. The effective date of termination was 29 June 2023.

2.2 In respect of the Detriment claim (1301726/2023), it is accepted that the claim was brought in time. ACAS A was on 23 January 2023 ACAS B was on 25 January 2023, the claim was presented on 29 January 2023. Primary limitation therefore expired on 24 October 2023.

[3]Jurisdiction – EqA claims3.1 Were the Claimant’s victimisation complaints presented within the time limits set out in section 123 EqA? ACAS A was 29 January 2022, ACAS B was 11 March 2022, the claim was presented on 11 March 2022. Primary limitation therefore expired on 30 October 2021.The Tribunal will decide:3.1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the acts complained of?

3.1.2 In relation to any complaints which are out of time, do they form part of a continuing act extending over a period of time?

3.1.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

3.1.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:

(i) Why the complaints were not made to the Tribunal in time;

(ii) In any event, whether it would be just and equitable in all the circumstances to extend time.

3.2 The Respondent’s position is that any allegations that are based upon acts or omissions said to have taken place on or before 30 October 2021, have been brought out of time and it would not be just and equitable to extend time.

3.3 In respect of the victimisation claim arising from the Fourth Claim (Case No. 1307752/2023), part of that claim may be out of time. ACAS A was on 25 September 2023. ACAS B was on 10 October 2023. The claim was presented on 3 November 2023. Primary limitation therefore expired on 24 June 2023.3.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the acts complained of?

3.3.2 In relation to any complaints which are out of time, do they form part of a continuing act extending over a period of time? 2 of 51

3.3.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

3.3.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: (i) Why the complaints were not made to the Tribunal in time; (ii) In any event, whether it would be just and equitable in all the circumstances to extend time.

[4]Unfair dismissal (ERA: sections 98 and 103A)4.1 What was the reason (or, if more than one, the principal reason) for the Claimant’s dismissal?4.1.1 The Respondent says the reason for dismissal was some other substantial reason, the Claimant’s inability to sustain and efficient and regular service by reason of his remand in custody for 3 months. In the alternative, the Respondent relies on conduct or capability.

4.1.2 The Claimant says the reason for his dismissal was his public interest disclosure(s).

4.2 Was the reason or principal reason for dismissal the Claimant’s public interest disclosure(s), in which case the dismissal was automatically unfair.

4.3 If the answer to Issue 4.2 is in the negative, was the reason or principal reason for dismissal one of the reasons listed in section 98(2) ERA, or some other substantial reason of a kind such as to justify the Claimant’s dismissal?

4.4 Did the Respondent follow a full and fair procedure prior to dismissing the Claimant?

4.5 Was the dismissal fair in all the circumstances of the case?

4.6 If the reason was misconduct, did the Respondent act reasonably or unreasonably in the circumstances (including the size and administrative resources of the Respondent) in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide:4.6.1 Did the Respondent genuinely believe the Claimant had committed the misconduct alleged?

4.6.2 Were there reasonable grounds for that belief?

4.6.3 At the time the belief was formed, had the Respondent carried out a reasonable investigation?

4.6.4 Did the Respondent follow a reasonably fair procedure? 3 of 51

4.6.5 Was dismissal within the range of reasonable responses?

[5]Victimisation (EqA: section 27)5.1 It is accepted that the Claimant did a protected act by submitting his employment tribunal claim in 2017 in which he alleged he had been subjected to unlawful race discrimination. It is the Claimant’s case that the issuing of the Third Claim also constituted a protected act.

5.2 Did the Respondent do the following things:5.2.1 Jason Gilbert failing to refer the Claimant for cognitive behavioural therapy (CBT) before 4 October 2021;

5.2.2 Jason Gilbert lying to HR about the Claimant not making contact in line with company policy on 4 November 2021 resulting in a "no contact letter" to the Claimant;

5.2.3 Jason Gilbert not submitting the Claimant's pay details correctly in the week commencing 6 December 2021;

5.2.4 Jason Gilbert disparaging the Claimant to management on 22 February 2022 regarding an allegation of having his feet up in a vehicle;

5.2.5 Failing to deal with the Claimant's initial grievance and subsequent appeal in a fair and reasonable manner, in that Danny Roberts approached matters in a manner which was not impartial including in particular failing to reconvening the grievance meeting in order to obtain the Claimant's response to things which Jason Gilbert had said;

5.2.6 Failing to dismiss Mr Gilbert, or remove him from his position of trust, or to move him from a different role or to a different shift away from the Claimant, despite Mr Gilbert being found to have done various things adverse to the Claimant which amounted to gross misconduct (including giving false evidence among other things);

5.2.7 Allowing Jason Gilbert to work alongside the Claimant following the grievance outcome on the 25 July 2022, allowing him to return to the same 1 OTA ( One off-track area) and on the same shift as the Claimant;

5.2.8 Failing to inform the Claimant that he would meet Jason Gilbert upon his return to work;

5.2.9 Jason Gilbert gesticulating to the Claimant (putting his thumb up) so as to antagonise the Claimant upon his return to the work in or around mid-September 2022;

5.2.10 Failing to acknowledge the Claimant's concerns regarding fabrication by Jason Gilbert in respect of the witness evidence he gave during the investigation: specifically, the Claimant spoke to Sue Ford and Derek Cavanagh in September 2022 to ask them to move Jason Gilbert away to a different role, or a different shift, they were dismissive and took no action;

5.2.11 In September 2022 requiring the Claimant, if he was to continue as stand-in group leader, to attend daily meetings with Mr Gilbert; 4 of 51

5.2.12 In June 2023 refuse to allow the Claimant a longer period of unpaid leave

5.2.13 On 29 June 2023 dismiss the Claimant.

5.3 If so, was the Claimant subjected to a detriment?

5.4 If so, was the Claimant subjected to the alleged detriment(s) because the Claimant did a protected act?5.4.1 In respect of acts 5.2.1 to 5.2.11 above, the Claimant relies on his 2017 tribunal claim

5.4.2 In respect of acts 5.2.12 and 5.2.13 above, the Claimant relies on the issuing of the Third Claim.

5.5 Was the Claimant subjected to the alleged detriment(s) because the Respondent believed the Claimant had done, or may do, a protected act?

[6]Protected disclosure (ERA: sections 43B to 43H)6.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B ERA? The Claimant relies upon the following: In or around August or September 2022 the Claimant reported that a number of employees including DC had committed tax fraud. He reported the matter to the Jaguar Land Rover Investigation Team, using the “Speak Up” reporting method, by email to Bernie Hall and Laura Thomas in Human Resources, and to “Jamie” at HMRC.

6.2 Was any such qualifying disclosure protected? The Tribunal will decide:6.2.1 Was information disclosed?

6.2.2 Did the Claimant believe the disclosure of information was made in the public interest?

6.2.3 Was that belief reasonable?

6.2.4 Did the Claimant believe that the disclosure tended to show that a criminal offence had been committed as per sections 43B(1)(a) of the ERA?

6.2.5 Was that belief reasonable?

[7]Protected disclosure detriment (ERA: section 47B)7.1 Did the Respondent do the following things:7.1.1 In November 2022 DC raised a false sexual harassment complaint against the Claimant

7.1.2 On 21 November 2022 suspended the Claimant. 5 of 51

7.1.3 On 20 December 2022 conducted an investigation meeting with the Claimant in respect of the sexual harassment complaint

7.1.4 Laura Thomas did not provide full and accurate minutes of the meeting of 20 December 2022.

7.1.5 In June 2023 refuse to allow the Claimant a longer period of unpaid leave.

7.2 By doing so, was the Claimant subjected to a detriment?

7.3 If so, was it done on the ground that they had made a protected disclosure? The law that we have considered and applied “Ordinary” unfair dismissal 2. The relevant parts of the ERA state: 94 The right (1) An employee has the right not to be unfairly dismissed by his employer. . . . 98 General (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. … (4) Where the employer has fulfilled the requirements of subsection (1), 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. 3. It is for the respondent to show that the reason for dismissal was potentially fair. The reason relied on under S.98(1)(b) must be of a kind such as to justify the dismissal of an employee holding the job in question. It must be a substantial reason and thus not frivolous or trivial and it must not be based on an inadmissible reason such as race or sex — Willow Oak Developments Ltd t/a Windsor Recruitment v Silverwood and ors

2006 ICR 1552

, CA. 4. The employer is required to show only that the substantial reason for dismissal was a potentially fair one. Once the reason has been established, it is then up to the tribunal to decide whether the employer acted reasonably under S.98(4) in 6 of 51 dismissing for that reason. As in all unfair dismissal claims, the tribunal will decide the fairness of the dismissal by asking whether the decision to dismiss fell within the range of reasonable responses that a reasonable employer might adopt. 5. In other words, to amount to a substantial reason to dismiss, there must be a finding that the reason could — but not necessarily does — justify dismissal — Mercia Rubber Mouldings Ltd v Lingwood

1974 ICR 256

, NIRC. Whether the reason, once established, justifies dismissal is to be answered by the tribunal’s overall assessment of reasonableness under S.98(4). 6. A prison sentence may amount to a frustrating event that brings the contract to an end automatically. However, if a sentence is too short to frustrate the contract, and the employee is dismissed, some other substantial reason can be invoked as the reason for dismissal — Kingston v British Railways Board

1984 ICR 781

, CA. The nature of the offence, as well as the length of service, are relevant to the question of whether the dismissal was fair. 7. We remind ourselves that it is not for us to substitute our own view for that of the respondent and that the band of reasonable responses test applies to all aspects of the dismissal process including the procedure adopted and whether the investigation was fair and appropriate: Sainsburys Supermarkets Ltd v Hitt

[2003] IRLR 23

[8]As part of our decision making the tribunal will consider whether there were any procedural flaws which cause unfairness. Guidance on that part of the exercise was given by the Court of Appeal in the case of OCS v Taylor

[2006] ICR 1602

, which clarified that the proper approach is for the tribunal consider the fairness of the whole of the disciplinary process. The court stated that our purpose is to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at a particular stage.

[9]The Court went on further to say that the tribunal should not consider the procedural process in isolation but should consider the procedural issues together with the reason for dismissal as it has found it to be and decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason it has found as a sufficient reason to dismiss. “Automatic” unfair dismissal

[10]Section 103A ERA states: 103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. Protected disclosures 7 of 51

[11]The relevant parts of sections 43A and 43B ERA state: 43A Meaning of “protected disclosure” In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B Disclosures qualifying for protection (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following – (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

[12]The word ‘disclosure’ does not necessarily mean the revelation of information that was formerly unknown or secret. Section 43L(3) of the ERA provides that ‘any reference in this Part to the disclosure of information shall have effect, in relation to any case where the person receiving the information is already aware of it, as a reference to bringing the information to his attention’. Accordingly, protection is not denied simply because the information being communicated was already known to the recipient. This was confirmed by the EAT in Parsons v Airplus International Ltd EAT 0111/17.

[13]The worker’s reasonable belief must be that the information disclosed tends to show that a relevant failure has occurred, is occurring, or is likely to occur, rather than that the relevant failure has occurred, is occurring, or is likely to occur. In other words, the worker is not required to show that the information disclosed led him or her to believe that the relevant failure was established, and that that belief was reasonable — rather, the worker must establish only reasonable belief that the information tended to show the relevant failure.

[14]This point was considered by the EAT in Soh v Imperial College of Science, Technology and Medicine EAT 0350/14. It was explained that there is a distinction between saying, ‘I believe X is true’ and ‘I believe that this information tends to show X is true’. 8 of 51

[15]The EAT has stated that the test of ‘belief’ in section 43B establishes a low threshold. However, the reasonableness test clearly requires the belief to be based on some evidence — rumours, unfounded suspicions, uncorroborated allegations and the like will not be enough to establish a reasonable belief (Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

[16]If the claimant reasonably believed that the information tends to show a relevant failure there can be a qualifying disclosure of information even if they were later proved wrong. This was stressed by the EAT in Darnton v University of Surrey

2003 ICR 615

, EAT. The EAT held that the question of whether a worker had a reasonable belief must be decided on the facts as (reasonably) understood by the worker at the time the disclosure was made, not on the facts as subsequently found by the tribunal.

[17]In Kilraine v London Borough of Wandsworth

2018 ICR 1850

, the Court of Appeal held that ‘information’ in the context of S.43B is capable of covering statements which might also be characterised as allegations - ‘information’ and ‘allegation’ are not mutually exclusive categories of communication. The key principle is that in order to amount to a disclosure of information for the purposes of S.43B the disclosure must convey facts.

[18]In Kilraine the Court of Appeal held:(i) In order for a statement to be a qualifying disclosure, it had to have sufficient factual content and specificity such as it was capable of tending to show one of the matters listed in subsection (1).

(ii) Whether that was the case was a matter for the tribunal's evaluative judgement in the light of all the facts. It was a question which was closely aligned with the other requirement of s.43B(1), namely that the worker making the disclosure should have a reasonable belief that the information they disclosed tended to show one of the listed matters. If the worker subjectively believed that the information they disclosed tended to show one of the listed matters, and their disclosure had sufficient factual content and specificity such that it was capable of tending to show that matter, it was likely that their belief would be reasonable (see paras 30-36 of judgment).

(iii) The context in which the statement is made is crucial. The measure of whether the information disclosed could in all the circumstances reasonably have sustained the belief that the information tended to show the relevant failure is the objective element of the test which calls for the evaluative judgment of the ET. Sales LJ emphasised the need for this to be assessed in the light of all the circumstances of the case.

[19]As explained by the Court of Appeal in Babula v Waltham Forest College

2007 ICR 1026

a worker does not have to prove that the facts or allegations disclosed are true, or that they are capable in law of amounting to one of the categories of wrongdoing listed in the legislation. As long as the worker subjectively believes 9 of 51 that the relevant failure has occurred or is likely to occur and their belief is, in the tribunal's view, objectively reasonable, it does not matter that the belief subsequently turns out to be wrong, or that the facts alleged would not amount in law to the relevant failure. Protected disclosure detriment

[20]Section 47B ERA states: 47B Protected disclosures(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a) from doing that thing, or (b) from doing anything of that description. (1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a) the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b) it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B).

(2) … this section does not apply where— (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of Part X).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “worker”, “worker's contract”, “employment” and “employer” have the extended meaning given by section 43K.

[21]“Detriment” does not have a statutory definition. However in Jesudason v Alder Hay Children’s NHS Foundation Trust

[2020] IRLR 374

the Court of Appeal accepted that the discrimination precedents are applicable and in particular applied two general principles: (1) 'detriment' is to be given a broad interpretation; 10 of 51 and it is to be judged from the view point of the worker and (2) there is a detriment 'if a reasonable employee might consider the relevant treatment to constitute a detriment'.

[22]In Ministry of Defence v Jeremiah

1980 ICR 13

, CA, Lord Justice Brandon said that detriment meant simply ‘putting under a disadvantage’. Causation and the burden of proof in the whistleblowing claims

[23]The leading authority on what is meant by the term “done on the ground that” is Fecitt and others v NHS Manchester (Public Concern at Work intervening)

[2012] ICR 372

. In that case the Court of Appeal stated that: “liability arises if the protected disclosure is a material factor in the employer’s decision to subject the claimant to a detrimental act.”

[24]In Aspinall v MSI Mech Forge Ltd EAT 891/01 the EAT held that the words ‘on the ground that’ require a causal nexus between the fact of making a protected disclosure and the decision of the employer to subject the worker to the detriment. This mirrored the approach adopted in the context of victimisation by the House of Lords in Chief Constable of West Yorkshire Police v Khan

2001 ICR 1065

. In that case it was held that the proper approach was not to ask whether ‘but for’ the protected act having taken place the treatment would have occurred, but rather what, consciously or unconsciously, was the employer’s reason or motive for the less favourable treatment. Where a tribunal finds a motive for the less favourable treatment, and is satisfied that this is not consciously or unconsciously related to the protected act, the less favourable treatment cannot be said to be ‘by reason’ of the protected act. Accordingly, there is no victimisation. The EAT in Aspinall followed the approach in Khan when concluding that, ‘for there to be detriment under S.47B “on the ground that the worker has made a protected disclosure” the protected disclosure has to be causative in the sense of being “the real reason, the core reason, the causa causans, the motive for the treatment complained of”’.

[25]Section 48 (2) ERA provides that “…. it is for the employer to show the ground on which any act, or deliberate failure to act, was done”. This does not mean that once a claimant asserts that he or she has been subjected to a detriment, the respondent must disprove the claim. Rather, it means that once all the other necessary elements of a claim have been proved on the balance of probabilities by the claimant — i.e. that there was a protected disclosure, there was a detriment, and the respondent subjected the claimant to that detriment — the burden will shift to the respondent to prove that the worker was not subjected to the detriment on the ground that he or she had made the protected disclosure. 26.In Kuzel v Roche Products Ltd

[2008] ICR 799

, the Court of Appeal considered the operation of the burden of proof as regards the reason for the dismissal in an unfair dismissal case brought by reference to section 103A which protects employees from dismissal for having made a protected disclosure. Mummery LJ explained that the tribunal should decide first whether it accepts the reason for the dismissal advanced by the employer before turning, if it does not find that 11 of 51 reason to be proved, to consider whether the reason was the making of the protected disclosure.

[27]In his judgment Lord Justice Mummery also rejected the contention that the burden of proof was on the claimant to prove that her making of protected disclosures was the reason for her dismissal. However, Mummery LJ was in agreement with the EAT that, once a tribunal has rejected the reason for dismissal advanced by the employer, it is not bound to accept the reason put forward by the claimant. He proposed a three-stage approach to S.103A claims:(i) First, the employee must produce some evidence to suggest that his or her dismissal was for the principal reason that he or she had made a protected disclosure, rather than the potentially fair reason advanced by the employer. This is not a question of placing the burden of proof on the employee, merely requiring the employee to challenge the evidence produced by the employer and to produce some evidence of a different reason.

(ii) Second, 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 findings of primary fact on the basis of direct evidence or reasonable inferences.

(iii) Thirdly and finally, 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, this is not to say that the tribunal must accept the employee’s reason. That may often be the outcome in practice, but it is not necessarily so.

[28]The EAT in Osipov v International Petroleum Ltd

UKEAT/0058/17/DA

explained the approach to be taken to drawing inferences and the burden of proof in detriment claims is analogous to the approach set out in Kuzel. The EAT described it as follows: “Under s.48(2) ERA 1996 where a claim under s.47B is made, “it is for the employer to show the ground on which the act or deliberate failure to act was done”. In the absence of a satisfactory explanation from the employer which discharges that burden, tribunals may, but are not required to, draw an adverse inference: see by analogy Kuzel v. Roche Products Ltd

[2008] IRLR 530

at paragraph 59 dealing with a claim under s.103A ERA 1996 relating to dismissal for making a protected disclosure. …. Mr Forshaw submits and I agree that the proper approach to inference drawing and the burden of proof in a s.47B ERA 1996 case can be summarised as follows:(a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made. 12 of 51

(b) By virtue of s.48(2) ERA 1996 , the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them: see London Borough of Harrow v. Knight at paragraph 20.

(c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found."

[29]In Blackbay Ventures Ltd v Gahir

[2014] ICR 747

the EAT set out a checklist that should be gone through when considering a protected disclosure claim: “1. Each disclosure should be identified by reference to date and content. 2. The alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered or as the case may be should be identified. 3. The basis on which the disclosure is said to be protected and qualifying should be addressed. 4. Each failure or likely failure should be separately identified. 5. Save in obvious cases, if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the employment tribunal to simply lump together a number of complaints, some of which may be culpable, but others of which may simply have been references to legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Unless the employment tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered. If the tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest act or deliberate failure to act relied on and it will not be possible for the appeal tribunal to understand whether, how or why the detriment suffered was as a result of any particular disclosure; it is of course proper for an employment tribunal to have regard to the cumulative effect of a number of complaints providing always they have been identified as protected disclosures. 6. The tribunal should then determine whether or not the claimant had the reasonable belief referred to in section 43B(1) and under the “old” law whether each disclosure was made in good faith; and under the “new” law whether it was made in the public interest. 7. Where it is alleged that the claimant has suffered a detriment, short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied on by the claimant. This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act. 13 of 51 8. The tribunal under the “old” law should then determine whether or not the claimant acted in good faith and under the “new” law whether the disclosure was made in the public interest.” Victimisation 23. Section 27 EA states as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act 24. In this case it is accepted that the claimant did the protected acts as alleged. 25. No comparator is required for the purposes of a victimisation complaint, but the protected act must be the reason or part of the reason why the Claimant was treated as he was – Greater Manchester Police v Bailey

[2017] EWCA Civ. 425

. Again, this requires consideration of the mental processes of the decision maker and again the protected act need not be the primary reason for the detriment, though it must be more than a trivial influence on that decision. 26. In MOD v Jeremiah

[1979] IRLR 436

[1980] ICR 13

the Court of Appeal found that a detriment exists “if a reasonable worker would take the view that the treatment was to his detriment”. A detriment must be capable of being objectively regarded as such; an unjustified sense of grievance cannot amount to 'detriment' (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

). It is not necessary to demonstrate some physical or economic consequence for something to amount to a detriment, as Lord Nicholls said in Shamoon: “while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute 'detriment', a justified and reasonable sense of grievance about the decision may well do so”. The test is not satisfied merely by the claimant showing that he or she has suffered mental distress: it would have to be objectively reasonable in all the circumstances. The situation must be looked at from the claimant’s point of view but his or her perception must be reasonable in the circumstances. 27. The EHRC Employment Code contains a useful summary of treatment that may amount to a ‘detriment’: ‘Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage. This could include being rejected for promotion, denied an opportunity to represent the organisation at external events, excluded from 14 of 51 opportunities to train, or overlooked in the allocation of discretionary bonuses or performance-related awards… A detriment might also include a threat made to the complainant which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment’ — paras 9.8 and 9.9. As this summary indicates, detriment does not necessarily entail financial loss, loss of an opportunity or a very specific form of disadvantage. 28. We must also bear in mind that where it is not entirely obvious that the claimant has suffered a detriment, the situation must be examined from the claimant’s point of view. This point was confirmed in Chief Constable of West Yorkshire Police v Khan

2001 ICR 1065

, where it was held that it was not appropriate ‘to pursue the treatment and its consequences down to an end result in order to try and demonstrate that the complainant is, in the end, better off, or at least no worse off, than he would have been if he had not been treated differently. I think it suffices if the complainant can reasonably say that he would have preferred not to have been treated differently.’ Accordingly, the treatment can still amount to a detriment even if there are no damaging consequences. 29. In terms of causation the protected act must be more than simply causative of the treatment (in the "but for" sense). It must be a real reason: ”the real reason, the core reason, for the treatment must be identified” (Woods v Pasab Ltd (t/a Jones Pharmacy)

[2012] EWCA Civ 1578

). Where there is more than one motive in play, all that is needed is that the discriminatory reason should be of sufficient weight (O'Donoghue v Redcar and Cleveland Borough Council

[2001] IRLR 615

). The burden of proof in the EqA

[30]Section 136 sets out the burden of proof provisions which apply to claims under the EqA. Section 136(2) states: “if there are facts from which the court could decide in the absence of any other explanation that a person (A) contravened the provision concerned the court must hold that the contravention occurred”. Section 136(3) then states: “but subsection (2) does not apply if A shows that A did not contravene the provision”.

[31]These provisions enable the employment tribunal to go through a two-stage process in respect of the evidence. The first stage requires the claimant to prove facts from which the tribunal could conclude in the absence of any other explanation that the respondent has committed an unlawful act of discrimination. This is known as the “prima facie case”.

[32]The second stage, which only comes into effect if the claimant has proved those facts, requires the respondent to prove that he did not commit the unlawful act. That approach was set out in Igen Ltd v Wong

[2005] IRLR 258

and it was reaffirmed in Efobi v Royal Mail Group Limited

[2019] IRLR 352

. 33.The Supreme Court in Efobi confirmed that the burden on the claimant is: “…that the claimant has the burden of proving, balance of probabilities, those matters 15 of 51 which he or she wishes the tribunal to find as facts from which the inference could properly be drawn (in the absence of any other explanation) that an unlawful act was committed. This is not the whole picture since, as discussed, along with those facts which the claimant proves, the tribunal must also take account of any facts proved by the respondent which would prevent the necessary inference from being drawn. But that does not alter the position that, under section 136(2) of the 2010 Act just as under the old provisions, the initial burden of proof is on the claimant to prove facts which are sufficient to shift the burden of proof to the respondent.”

[34]The Supreme Court has emphasised that it is for the Claimant to prove the prima facie case. In Hewage v Grampian Health Board

[2012] IRLR 87

Lord Hope summarised the first stage as follows: "The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden”.

[35]Before the burden can shift there must be something to suggest that the treatment was discriminatory (see B and C v A

[2010] IRLR 400

). Mere proof that an employer has behaved unreasonably or unfairly would not by itself trigger the transfer of the burden of proof, let alone prove discrimination (see in particular Bahl v The Law Society and others

[2004] IRLR 799

). Therefore inadequately explained unreasonable conduct and/or a difference in treatment and a difference in status and/or incompetence is not sufficient to infer unlawful discrimination (Quereshi v London Borough of Newham

[1991] IRLR 264

; Glasgow City Council v Zafar

[1998] ICR 120

HL; Igen, Madarassy).

[36]There is a well-established principle that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status and a difference in treatment. Those facts only indicate the possibility of discrimination. They are not, without something more, sufficient material from which the tribunal could conclude that the respondent had committed an unlawful act of discrimination. This principle is most clearly expressed in the case of Madarassy v Nomura International plc 2007 [IRLR] 246.

[37]The issue of what the ‘something more’ is and whether the burden shifts is not subject to hard and fast rules and the answer will vary depending on the nature of the case and the evidence given before the Tribunal. It is important to bear in mind that in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of discrimination. The outcome at this stage of the analysis will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal (see paragraph 4 of Appendix to Judgment of Court of Appeal in Igen v Wong). Further, we should note the word “could” in s 136(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them (see paragraph 5 of Appendix to Judgment of Court of Appeal in Igen v Wong). 16 of 51

[38]In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts (see paragraph 6 of Appendix to Judgment of Court of Appeal in Igen v Wong). However, the Employment Tribunal is entitled to take into account the fact it disbelieves the employer's explanation (even though the employer's case is primarily relevant at the second stage): Birmingham City Council v Millwood [2012] EqLR 910, EAT. The tribunal may also draw inferences from the fact that there are inconsistencies in the employer’s explanation: Veolia Environmental Services UK v Gumbs [2014] EqLR 364, EAT.

[39]In Denman v Commission for Equality and Human Rights and ors

2010 EWCA Civ 1279

, CA, Lord Justice Sedley made the point that ‘the “more” which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred. The Court of Appeal approved such an approach in Base Childrenswear Ltd v Otshudi

2020 IRLR 118

, CA. It was open to the tribunal to take into account when drawing inferences a false explanation given for the treatment complained of and the fact that the explanation given had changed, even though it had been argued that this had been done so as to spare the employee's feelings. Lord Justice Underhill observed: ‘Giving a wholly untruthful response when discrimination is alleged is well-recognised as the type of conduct that may indicate that the allegation is well-founded.’

[40]An employer’s failure to call evidence from key witnesses may result in adverse inferences being drawn. In Efobi v Royal Mail Group Ltd

2021 ICR 1263

the Supreme Court held that tribunals should be free to draw, or decline to draw, inferences in the case before them using common sense. Whether any significance should be attached to the fact that a person had not given evidence depended entirely on the context and particular circumstances. Relevant considerations would include whether the witness was available to give evidence, what evidence the witness could have given, what other evidence there was bearing on the points on which the witness could have given evidence, and the significance of those points in the context of the case as whole.

[41]If the burden of proof shifts the last three paragraphs of the Appendix in Igen v Wong should be considered. They state: To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive. That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge that burden of proof on the balance of probabilities that sex was not a ground for the treatment in question. 17 of 51 Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully the explanations for failure to deal with questionnaire procedure and/or code of practice.

[42]If the burden of proof shifts the need for the respondent to set out ‘cogent evidence’ explaining a non-discriminatory reason for its conduct is particularly relevant. In Bennett v Mitac Europe Ltd

2022 IRLR 25

the EAT observed that the requirement for ‘cogent evidence’ does not apply a standard of proof beyond that of the balance of probabilities. Nonetheless, it is the respondent that generally is in a position to provide evidence about the reason for the claimant’s treatment. 43.Much of the well known case law on the burden of proof is about discrimination claims but as was confirmed by the Court of Appeal in Greater Manchester Police v Bailey

[2017] EWCA Civ 425

the provision applies to victimisation claims aswell and “it is trite law that the burden of proof is not shifted simply by showing that the claimant has suffered a detriment and that he has a protected characteristic or has done a protected act”. Convictions as evidence in civil proceedings

[44]Section 11 (1) Civil Evidence Act 1968 states that: In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section. The findings that we have made

Background

[45]We will first set out our findings on the relevant background before considering our findings specifically on the matters that we have to determine.

[46]The claimant worked as a production operative for the respondent between March 2014 and June 2023.

[47]The claimant’s line manager between August 2021 and February 2022 was Jason Gilbert, a production leader.

[48]In early October 2021 the claimant was signed off sick. Mr Gilbert referred the claimant to occupational health on the first day of his absence. The claimant had an occupational health assessment on 21 October 2021. The claimant reported to occupational health feelings of low mood and poor sleep as he had been 18 of 51 facing stressful personal circumstances over the last few months and that had impacted on his mental health and well-being. The claimant was initially signed off until 15 November 2021 and this was later extended.

[49]On 4 November 2021 Mr Gilbert sent the claimant what is known as a no contact letter. This letter describes how all associates who are absent from work were required to contact their production leader ahead of the start of shift on their first day of absence and subsequently to make contact as agreed with their production leader. In the letter Mr Gilbert said that he had a record of the claimant attempting to make contact via text message however no attempt to contact him via phone had been made by the claimant despite Mr Gilbert asking the claimant on several occasions to call. Mr Gilbert said that as a result the claimant’s absence would be recorded as unauthorised and his pay would be suspended. The claimant was asked to urgently contact Mr Gilbert via telephone and if he did not he may be liable to disciplinary action.

[50]The claimant’s pay was not suspended and he was not subject to any disciplinary action.

[51]On 5 November 2021 the claimant raised a grievance about the no contact letter issued by Mr Gilbert. The claimant complained that the no contact letter was false as he had made contact. The claimant said he had lost confidence in Mr Gilbert due to his blatant deceit. He directly accused Mr Gilbert of lying.

[52]On 8 November 2021 the claimant was written to by a member of the respondent’s HR team who asked him to first raise his concerns with his line manager in accordance with the grievance procedure in order to give an opportunity for his complaint to be resolved informally in the first instance. The claimant was advised that if after having raised his concerns informally they remained unresolved he could complete a grievance report which would enable his grievance to be formally raised.

[53]On 30 November 2021 the claimant responded to HR’s email. He said that he wished to exercise his right to raise a formal grievance. He did not take the opportunity to see if the grievance could be resolved informally. We think that was a shame. We do not think that Mr Gilbert had acted vindictively in issuing the no contact letter. Had the claimant spoken to Mr Gilbert informally we think the matter could have been sensibly resolved. However the claimant’s reaction to the no contact letter was extreme.

[54]On 8 December 2021 the claimant wrote with further information in support of his grievance. He pointed out that he remained off sick with stress/mental illness. He alleged that Mr Gilbert had breached discrimination law and victimised him. He accused Mr Gilbert of having committed misconduct and failing in his duty of care. He repeated the allegation that Mr Gilbert had lied and said that this has caused him distress and worry.

[55]The respondent conducted a grievance hearing with the claimant on 21 December 2021. The grievance was chaired by Daniel Roberts, formerly a technology manager and now retired. The claimant again said that Mr Gilbert 19 of 51 had lied. He raised further concerns about Mr Gilbert including that he had asked Mr Gilbert to give him cognitive behavioural therapy and Mr Gilbert had not done so. He said that Mr Gilbert had always victimised him for no reason and that he was a victim of racism.

[56]In the meeting with Mr Roberts the claimant referred to his “history”. This was a reference to the fact that the claimant had brought a previous tribunal claim against the respondent in 2017 which was resolved by agreement. Mr Roberts said he wouldn’t take any history into account and if the claimant hadn’t mentioned it he wouldn’t have known about it. The claimant said that he felt victimised because of the previous case. This was part of a pattern in that the claimant repeatedly brought up his 2017 claim and he believed it was a reason for his mistreatment as he saw it. However, the people who were dealing with the claimant from 2021 onwards (which is the period we are concerned with) did not have any knowledge about the claimant’s 2017 claim until he brought it up. When the claimant did bring it up they regarded it as irrelevant. It was only the claimant who still thought about his 2017 claim. It had no impact on how others treated him from 2021 onwards.

[57]Mr Roberts conducted further investigations, including a meeting with Jason Gilbert on 22 February 2022. In his investigation meeting Mr Gilbert reported that he thought he had a good relationship with the claimant. He referred to the claimant having been late on a few occasions but Mr Gilbert knew he was going through a difficult time with his girlfriend so he had a quiet word but didn’t do anything formal.

[58]Mr Gilbert was asked about the occupational health referral for the claimant given the claimant’s complaint about not being provided with cognitive behavioural therapy. Mr Gilbert described how the claimant asked for an occupational health appointment and Mr Gilbert had booked him in for a referral. In relation to the referral for cognitive behavioural therapy Mr Gilbert simply said that the claimant had asked for cognitive behavioural therapy and so he referred him to occupational health. He said that the claimant had phoned in sick and then he made the referral on the same day.

[59]Mr Gilbert was asked about the no contact letter and he explained his concern that during the claimant’s sickness absence the claimant had been texting him but he had not received a phone call. He explained that he did receive a voice note but as per the respondent’s absence procedure and his own expectations the claimant ought to have phoned. As a result he had given instructions to HR to send a no contact letter. Mr Gilbert accepted that on 27 October he had received a voicemail from the claimant but he didn’t see it as it was a new phone and he had already instructed HR to send the no contact letter by the time he realised he had a voicemail. He referred to the company policy as being that if somebody makes no contact they always get a letter – “it is simple”. Evidently, Mr Gilbert’s view was that he had not treated the claimant any differently from anyone else.

[60]Mr Gilbert mentioned an occasion where the claimant was sat in the back of the car with his headphones in and his feet up and he said he was writing an email 20 of 51 to HR about his grievance. When Mr Gilbert challenged him he said “I am not having this” and put his hands up and walked away. Mr Gilbert explained that he didn’t say anything to anyone about that at the time and he just dealt with it informally at the time. Mr Gilbert brought this incident up because he was trying to give an example of an occasion when he had treated the claimant leniently, in response to the claimant’s allegation that he treated the claimant unfairly. Mr Gilbert said overall that the claimant’s work was good. We found that Mr Gilbert was not trying to create an adverse impression of the claimant – he was just trying to defend himself against the allegations the claimant was making.

[61]The claimant remained off sick with stress-related illness. In January 2022 he raised a concern that he had not been paid correctly. This related to the claimant’s pay in December. The claimant had initially been overpaid and then the overpayment was taken off his subsequent payslip. Overall the claimant was paid correctly once the overpayment had been clawed back. It transpired that the original error which resulted in an overpayment was because of Mr Gilbert incorrectly inputting the claimant’s hours. This was in relation to the week commencing 6 December 2021 Mr Gilbert was not involved in the subsequent clawback because he himself went off sick on 15 December 2021. As a result of this incident however the claimant raised further concerns about Mr Gilbert having caused the mistake in his wages. In a meeting with Mr Roberts the claimant described this as incompetence and he accused Mr Gilbert of not being able to do his job properly.

[62]On 11 March 2022 Mr Roberts held a grievance outcome meeting with the claimant. The claimant was informed that Mr Roberts was going to uphold part of the claimant’s grievance in that he considered Mr Gilbert should have referred the claimant to occupational health earlier. Mr Roberts accepted that Mr Gilbert had referred the claimant to occupational health on the first day of his absence but he also accepted the claimant’s evidence that he had had earlier conversations with Mr Gilbert in which he asked Mr Gilbert for a referral.

[63]Mr Roberts said that Mr Gilbert had some personal issues and this was the reason why the error in the claimant’s pay was made and the reason for his subsequent absence. He said that there was no evidence to suggest that Mr Gilbert had inputted the claimant’s details incorrectly on purpose. Mr Roberts said he was not upholding that part of the claimant’s grievance. The claimant said he would appeal and the next step would be tribunal.

[64]In relation to the process followed when the claimant had been off sick and the no contact letter Mr Roberts said that the claimant had failed to follow the company’s process. The claimant vociferously disputed that. Mr Roberts had to adjourn the meeting to allow for a cooling off period. When the meeting resumed Mr Roberts attempted to explain his findings again to the claimant. He pointed out that Mr Gilbert had asked the claimant to call and he had not done so. He acknowledged that messages had been sent and one voicemail left but his decision remained that the claimant had not been in contact as the respondent’s policy and Mr Gilbert had expected. The claimant indicated he was going to escalate his complaint to tribunal and he was going to speak to ACAS. 21 of 51

[65]On11 March 2022 the claimant emailed HR submitting an appeal against the grievance outcome. The claimant re-emphasised his complaint about the no contact letter. He further accused Mr Gilbert of telling more lies about him in relation to the point about him sitting in a vehicle with his feet up. The claimant described that as an attempted character assassination, a deflecting tactic exhibiting narcissistic behaviour, not having any regard for his feelings and causing injury to feelings/mental health damage as a result. The claimant accused the respondent of failing in its duty of care and being negligent in dealing with his absence with mental health issues.

[66]Mr Gilbert mentioning the occasion when the claimant had his feet up in a vehicle had not resulted in any disciplinary or other action against the claimant but nevertheless the claimant again had an extreme reaction to what Mr Gilbert had said.

[67]On 30 March 2022 Mr Roberts sent the claimant a grievance outcome letter. The letter confirmed that the claimant’s complaints in respect of the no contact letter and the pay issue were not upheld. The delay in referring to the claimant to occupational health was upheld. Overall Mr Roberts recorded that he had not found anything that demonstrated victimisation against the claimant because of a protected characteristic - which is how the claimant had characterised his complaint against Mr Gilbert.

[68]The claimant attended a grievance appeal meeting on 12 May 2022. The appeal was chaired by Paul Preece, a production manager. Mr Preece conducted an investigation and he then held a grievance appeal feedback meeting with the claimant on 21 July 2022. On 25 July 2022 Mr Preece sent the claimant a grievance appeal outcome letter.

[69]Mr Preece considered the claimant’s appeal against the original three points of grievance (no contact letter, mistake in pay and delay in referring to occupational health). Mr Preece also considered further complaints made by the claimant, in particular the claimant’s complaint about the allegation Mr Gilbert had made regarding him having his feet up in a car and a further complaint about Mr Gilbert witness tampering during the grievance appeal investigation. Mr Preece’s overall conclusion was to uphold the claimant’s grievance and he made the following findings.

[70]Regarding the no contact letter Mr Preece found that although the claimant had not used the agreed recognised method of communication he had not been challenged for not following the attendance management procedure until 11 October 2021. He further noted that the claimant had not been invited as per the correct process to an absence review meeting within three days of absence. He considered it would have been reasonable for the claimant’s manager to agree a contact routine moving forward to suit all parties taking into account the claimant’s mental health. For these reasons he considered that the situation could have been handled better. 22 of 51

[71]Mr Preece noted that the claimant’s complaint about delay in referring to occupational health had already been upheld and so he did not say much more about that.

[72]In relation to the pay issue Mr Preece reiterated although an error had been made this was not deliberate.

[73]In relation to the allegation about Mr Gilbert lying about the claimant having his feet up in a vehicle Mr Preece found that it had been witnessed that the claimant was not sitting with his feet up, but he was challenged for having his air pods in and being on his phone whilst working. Mr Preece said that Mr Gilbert was well within his rights as a manager to challenge the claimant in these circumstances. Mr Gilbert’s explanation for bringing this up in the grievance investigation meeting was referenced (i.e. to demonstrate that there had been situations where Mr Gilbert had treated the claimant leniently when he could have dealt with him formally) but Mr Preece recorded his view that he believed it should not have been mentioned and it had no relevance to the claimant’s grievance.

[74]In relation to the allegation of witness tampering Mr Preece referred to the fact that it had been established that Mr Gilbert had spoken to a witness, Dan Coward, and he said this would be dealt with separately. Mr Gilbert was subsequently investigated and disciplined for his misconduct in speaking to Mr Coward and he was issued with a warning.

[75]On 11 August 2022 the respondent sent a security alert to its staff regarding rogue tax agents who were targeting its employees. The alert referred to the fact that there were a rising number of rogue tax agents who were offering advice that was “too good to be true”. Typically the rogue agent would recommend an employee register themselves as self-employed to then claim back work expenses on their tax return. The respondent pointed out to its staff that they were paid through PAYE, they were not self-employed and therefore claiming for work related items and expenses as if they were self-employed could be considered fraudulent and illegal. The security alert was in effect a warning to the respondent’s staff that they should not get involved in this sort of behaviour. We understand that this became a significant problem for the respondent and a number of its staff were taken in by these rogue agents and became involved in fraud. This eventually resulted in a number of criminal prosecutions. There were discussions at a senior level about how to manage this issue. The respondent referred its staff to a specific mailbox that HMRC had set up to advise people who may be affected. The respondent encouraged its employees to engage with HMRC for support in resolving any issues.

[76]Despite the ultimate success of his grievance against Mr Gilbert the claimant continued to challenge the grievance outcome and the process that had been followed. He also raised further complaints about Mr Gilbert. Mr Gilbert had not been the claimant’s line manager since he returned to work in February 2022, but the claimant would not let things drop. The claimant set out his further complaints in emails to HR on 19 and 29 August 2022. 23 of 51

[77]In his email of 19 August 2022 the claimant complained that the correct process, policies and procedures had not been followed. He said that the investigation had not been thorough and that there had been bias. He said that the respondent’s conduct had caused him to fall into further depression and was a clear breach of the Equality Act 2010. He said that he believed that Mr Gilbert’s treatment of him was due to his appearance. He said that the respondent had put themselves in a position where they would have to justify their unlawful, slanderous and defaming misrepresentation of him to a judge in an employment tribunal. The claimant said that he had spent three years out of the business due to the toxic environment, misconduct, racism and victimisation that he’d been subjected to.

[78]The claimant followed that up with a further email sent to HR on 29 August 2022. In this email the claimant complained about Mr Gilbert having returned to working in the same 1 OTA (one off-track area) and on the same shift as the claimant. He raised concerns they had already crossed parts as Mr Gilbert had put his thumb up as he drove past in a car. The claimant referred to Mr Gilbert’s actions as sending him into a deep depression. He further complained about not having been contacted regarding Mr Gilbert being in the same area and on the same shift as him. He said that outcome was victimising to him. He also referred to not complying with policies and procedures as constituting victimisation contrary to the Equality Act 2010.

[79]The claimant’s correspondence of 19 and 29 August 2022 was treated as a further appeal against his grievance outcome. The claimant confirmed via email on 23 November 2022 that he did not wish to attend a face-to-face meeting to discuss this further appeal and that his written statements from August contained the relevant information that he wished the respondent to investigate.

[80]The claimant’s further grievance appeal was considered by Greg Niblett, a senior manufacturing manager. The claimant was sent a further grievance outcome on 19 December 2022.

[81]The claimant’s first appeal ground was identified as a complaint about Mr Gilbert having returned to work on the same shift and in the same area as him. On this point Mr Niblett explained that consideration had been given to changing Mr Gilbert’s shift/area but that but that the decision had been taken that a move was not appropriate or necessary. Mr Niblett said that sufficient disciplinary action and sanction had been taken against Mr Gilbert for his misconduct and no relocation was necessary. Mr Niblett accepted that there was a possibility that the claimant might see Mr Gilbert but a reasonable step had been taken of moving the claimants reporting line so as to reduce the potential for interaction.

[82]The second appeal ground identified was that the claimant had not been informed about Mr Gilbert’s return to the workplace and he felt this was victimisation. Mr Niblett said that he appreciated that the claimant may have been surprised to see Mr Gilbert and that there had been an intention to notify him that Mr Gilbert was going to return. Whilst there was no obligation to do so Mr Niblett apologised that it had not been discussed with the claimant in advance. However he said he found no evidence that this was anything more 24 of 51 than an oversight and he did not consider that it constituted an act of victimisation.

[83]For these reasons the first two grounds of the claimant’s further grievance appeal were not upheld.

[84]The third ground of appeal identified was that the claimant had suggested that it was the responsibility of HR to impose sanctions and Mr Niblett found that was not correct and therefore he did not uphold ground 3 of the appeal.

[85]The fourth ground of the further appeal was identified as being that the respondent had not complied with their own policies, procedures and decisions made regarding the claimant’s allegations of gross misconduct against Mr Gilbert. Mr Niblett found that the allegations against Mr Gilbert had been taken seriously, a full and thorough investigation had taken place followed by appropriate action and sanctions applied. He found no evidence to suggest that the company had not complied with relevant policy and procedure and the claimant had not substantiated this ground of appeal. For these reasons ground 4 of the appeal was not upheld.

[86]The fifth ground of appeal was identified as a repeat of the complaint about Mr Gilbert not having booked the claimant into occupational health. Mr Niblett referred to the fact that this complaint had already been upheld in the claimant’s favour, albeit it was not found that Mr Gilbert’s actions were discriminatory. Mr Niblett also pointed out that the claimant had subsequently received occupational health support on numerous occasions. He had reviewed the issue and again found that Mr Gilbert initially not referring the claimant in a timely manner was not an act of victimisation or discrimination. Mr Niblett raised concerns that the claimant continuing to complain about this point could be viewed as a malicious complaint as an outcome had already been provided and therefore the claimant’s conduct could be identified as vexatious which may lead to disciplinary action.

[87]Mr Niblett’s overall conclusion was that he did not uphold the claimant’s further appeal on any of the grounds raised. The claimant was informed that concluded the process and he did not have any further right of appeal.

[88]The claimant went off sick again on 23 August 2022 with stress due to a workrelated issue. He was again referred to occupational health. Occupational heath produced a report dated 3 September 2022. The occupational health report referred to the claimant having gone through a grievance process and him struggling with the outcome. The claimant explained to occupational health that the trigger for his current symptoms was due to work-related concerns and this was ongoing. The occupational health view was that the claimant presented with symptoms of anxiety and depression and this appeared to have been caused by perceived work-related stressors. Occupational health’s view was that the claimant symptoms were consistent with mild anxiety and depression. In their view the claimant was fit for work. 25 of 51

[89]There was a further occupational health report on 16 October 2022. By that stage the claimant was back in work doing his normal hours and duties. The claimant reported that the workplace issues were still ongoing and causing him stress. Nevertheless the occupational health view was that he was fit for work and therefore the recommendation was simply that management should resolve the ongoing operational issues.

[90]On 17 October 2022 the claimant raised a concern via the respondent’s online process, known as the “speak up” reporting method. He reported this concern anonymously. It was a concern about Daniel Coward promoting a tax return via a potential rogue agent named Naomi. The claimant also mentioned that two other members of staff had been recipients of a tax return via this agent.

[91]On 26 October 2022 the claimant raised another complaint with HR about victimisation. The claimant said that a false allegation had been raised against him by Derek Kavanagh, a production manager, who had accused him of kicking a door open. The claimant said that Mr Kavanagh’s deceitful behaviour had resulted in him having a mental breakdown at work. The claimant said that he was still being subjected to detrimental behaviour by some senior management.

[92]The claimant does not rely on this matter as a specific allegation of victimisation however we were referred to it during the evidence and it may be relied on as supporting evidence. We will therefore set out our findings on it now. On 30 September 2022 Mr Kavanagh was having a meeting with Nesha Kakar from HR. Nesha Kakar was an independent eye witness as to what took place. She provided a statement and we consider the contents of that are likely to be true. She described how the claimant suddenly entered the room and pushed or kicked the door open with force. It was disruptive. The claimant stood in the doorway and then walked down the corridor without saying anything. Mr Kavanagh called the claimant and asked “why did you kick the door open?” and he explained that he was having a meeting. The claimant said he didn’t kick the door open and he was just checking to see who was in the room. The claimant was “shouting and being defensive in an aggressive/rude manner”. It is likely that the claimant was annoyed on this day because of the issues around Mr Gilbert being on the same shift.

[93]In light of the above this incident provides no support for the claimant’s case. Mr Kavanagh challenging the claimant over his behaviour was not an act of victimisation. It was because the claimant had behaved inappropriately by barging into the room where Mr Kavanagh was having a meeting.

[94]On 21 November 2022 the claimant was suspended pending a full investigation into allegations of sexual harassment. The investigation was handled by Lee Bateman, a production manager. Mr Bateman informed the claimant that he had been suspended based on an allegation made by another member of staff. The claimant said if the allegations were proved to be false then he would go to ACAS.

[95]The claimant attended an investigation meeting into the allegations of sexual harassment on 20 December 2010. The investigation was conducted by 26 of 51 Kenneth Wilkinson, a production manager. By this stage the claimant was aware that the allegations of sexual harassment had been raised by Daniel Coward. Mr Coward had alleged that the claimant had shown him sexual content on his phone. The claimant denied these allegations and said that they were vexatious and malicious in nature. The claimant did accept having some sexual conversations with Mr Coward. He said that Mr Coward always brought up the claimant’s “manhood” and the claimant played up to that.

[96]The claimant read from a statement at his interview in which he referred to a possibility that Mr Coward had become aware of his confidential report and was making false allegations in retaliation. However, there has never been any evidence that Mr Coward was aware of the claimant’s confidential report about tax fraud and, as we shall explain, the circumstances surrounding Mr Coward’s allegation coming to light did not support the claimant’s suspicion that it had been done in retaliation.

[97]Mr Wilkison only became aware in a very general sense that the claimant had made a disclosure relating to tax fraud because the claimant briefly mentioned it during the meeting n 20 December 2022. He did not know anything more about it. He focused on the sexual harassment complaint because that was what he was tasked to investigate. It was not part of his remit to investigate anything to do with tax fraud.

[98]Mr Wilkinson also interviewed Mr Coward on 20 December 2022. Mr Coward explained that the background to this allegation being raised was that he along with a number of other people had raised concerns about the claimant as they were concerned for his mental health. Mr Coward said that in total 12 people had raised concerns about the claimant and various behaviours he had exhibited. One of the behaviours identified was that the claimant had shown Mr Coward sexual content on his phone. He was asked for more information about that and it was taken forward as a disciplinary matter due to the seriousness of the issue. Mr Coward did not therefore raise this issue to get the claimant into trouble; it came to light because of concerns about his mental health.

[99]In his meeting with Mr Wilikinson Mr Coward explained how the claimant showed him a picture of himself with his “junk” (i.e. his penis) in his hand. Mr Coward described that in the picture the claimant was sitting on a sofa with his legs spread, he could see his face and he had his penis in his hand. Mr Coward said that this had happened about four months ago. He said it was the only time the claimant showed him pictures like this but previously the claimant had shown videos of him “railing” (i.e. having sex with) a woman.

[100]Mr Coward was asked if there were any witnesses to the occasion when the claimant had shown him the explicit picture. The claimant identified Ben Hawkins who he said had heard him saying “what you showing me your dick for” to the claimant. Mr Coward made it clear that Mr Hawkins had not seen the picture but would have heard him say that.

[101]Mr Coward was asked what he wanted for an outcome and he said that he didn’t think the claimant deserved to be sacked but maybe could be moved 27 of 51 out of the area. He described it as “a moment of madness” on the part of the claimant but that he had no problem with the claimant overall and had put up with him over the last couple of months. Mr Coward frankly explained that as far as he was concerned this matter was at the bottom of his list of complaints - he was offended but he did not want to try and get the claimant sacked.

[102]In our view the way in which Mr Coward’s allegation came to light and his reluctance to try and get the claimant into serious trouble does not fit with the claimant’s suggestion that the allegation had been raised vindictively in retaliation.

[103]On 9 March 2023 Laura Thomas from HR wrote to the claimant confirming the outcome of the investigation into sexual harassment. Laura Thomas conveyed to the claimant that it had been found that there was no evidence to substantiate the allegations against him and so he was no longer suspended. The claimant was advised that he should return to work on 14 March 2023.

[104]On 10 March 2023 the claimant responded to Laura Thomas to ask that he remain off work until he received a formal investigation conclusion letter.

[105]Laura Thomas gave permission for the claimant to remain suspended until the formal investigation conclusion letter had been sent to him which would be by the end of that week at the latest.

[106]The investigation outcome letter was sent to the claimant on 16 March 2023. In it Mr Wilkinson explained that he had found that there was no case to be answered and there would be no disciplinary action against the claimant. The claimant’s suspension was lifted with immediate effect and he was required to return to work on Monday 20 March 2023.

[107]Mr Wilkinson also conveyed to the claimant that the collective grievance that was raised in respect in respect of the claimant had been closed as well. This was a reference to the 12 or so of the claimant’s colleagues who had raised concerns about his behaviour and his mental health. Mr Coward’s allegation of sexual harassment had arisen out of that collective grievance, as we have explained. In Mr Wilkinson’s view the matters raised were not in fact a grievance but “an overwhelming concern for the claimant’s mental well-being”.

[108]Mr Wilkinson raised the point that during his investigation it had come out that the claimant was open about his sex life and discussed it with colleagues freely. He therefore drew the claimant’s attention to the dignity at work policy and reminded him that the content of his conversations could be construed as harassment.

[109]The claimant did not return to work on 20 March 2023 as he had been instructed to do. On 26 March 2023 the respondent received a message from the claimant’s former partner to explain that the claimant would not be able to return to work as he had been remanded in custody based on what were described as false allegations of witness intimidation made by another former partner. 28 of 51

[110]Although he had not revealed this at the time it transpired that in 2022 the claimant was arrested following complaints of domestic violence made by a former partner. The claimant was initially charged with two offences - one of assault which involved an allegation that he had pushed his former partner down the stairs, and one of criminal damage which related to damage made to his former partner’s phone.

[111]The claimant was due to attend a trial in the magistrates court for these two charges on 22 March 2023. This trial was not effective because of an interaction which the claimant had with the complainant in his trial i.e. the former partner who had accused him of assaulting her. It was alleged that the claimant had approached the complainant on the steps of the courthouse and intimidated her. He was further arrested and charged with perverting the course of justice. He was remanded into custody.

[112]The case against the claimant was obviously now an extremely serious one and it was listed for trial in the Crown Court, to take place in September 2023.

[113]We consider the claimant has not always been forthcoming about what has happened and even now he continues to assert his innocence despite the fact of his conviction and despite the fact that he has unsuccessfully sought leave to appeal to the Court of Appeal. We were provided with the judgment of the Court of Appeal dated 27 February 2025. We have taken as much of the facts as we can from that document as it seems to us to be the most reliable evidence we have as to what really happened and the claimant’s sentence.

[114]The claimant’s request on 10 March 2023 for his suspension to be extended was strange especially since the claimant had already been suspended for nearly 4 months. During this tribunal hearing the claimant revealed that he was due to attend the magistrates court on 22 March 2023 for the trial of the two charges that we have just described. It is highly likely that the claimant was asking for his suspension to be extended so that he could deal with that trial and any subsequent sentence of imprisonment. This was denied by the claimant, but we found his denials in this respect to be one of the least convincing aspects of his evidence.

[115]Following the claimant being remanded into custody in March 2023 the respondent initially continued his paid suspension and then the claimant was permitted to commence a period of annual leave as the claimant believed he would be released on bail and be able to return to work. However, the claimant’s bail applications were all refused. The respondent then placed him on unpaid leave from 28 April 2023. They undertook an investigation to attempt to understand the circumstances better and to establish when the claimant might be able to return to work.

[116]The respondent received a further message on 11 April 2023 to say that the claimant was making a bail application on that day and hopefully he would be out soon. The claimant remained in custody after that date however. The 29 of 51 respondent was informed that the claimant had a further hearing on 24 April, but even after that he still remained in custody.

[117]The claimant appointed a representative, Laura Hume, to communicate on his behalf with the respondent. On 25 May 2023 Dean Jones, an operations manager, wrote to the claimant’s representative. He explained that he had been asked to review the status of the claimant’s employment. He pointed out that there were concerns about the claimant’s ability to sustain regular and continuous service given his incarceration. He said that the respondent was concerned about the reputation of the business from a PR perspective due to the seriousness of the allegations which they believed had been made against the claimant. The situation by this stage was that the respondent understood that the claimant had been charged with witness intimidation and offences relating to domestic violence and that he was on remand until at least September 2023. Mr Jones asked for as much information as possible to be provided in respect of the claimant’s current situation. He advised that a potential outcome of his review could be the termination of the claimant’s contract.

[118]Mr Jones then conducted an investigation hearing on 12 June 2023. By the time of the hearing the claimant had appointed a different representative, Catherine Halcrow, to act on his behalf and she attended the meeting. A trade union representative also attended on the claimant’s behalf. Catherine Halcrow was a colleague and a friend of the claimant’s. She explained her understanding of the claimant’s current situation. She said that the claimant’s former partner had assaulted the claimant and “to defend himself during an altercation she had fallen down the stairs”. Catherine Halcrow also sought to explain on the claimant’s behalf that he was innocent of the charge of witness intimidation. She said that the claimant had then seen his former partner outside of the court, he had turned away from her but the police arrested him.

[119]The position that was reported to the respondent on the claimant’s behalf was that the claimant had been wrongly charged, that he had been the victim of police corruption or incompetence and that when the evidence was presented to the Judge the case should be dropped and the claimant should be released. The respondent was informed that a hearing was due to take place on 23 June 2023 for this purpose.

[120]Mr Jones decided that he should not make any decisions before the hearing on 23 June 2023 in light of what Catherine Halcrow had explained to him. This was we find a reasonable decision.

[121]Following the hearing in the Crown Court on 23 June 2023 the claimant remained remanded in custody. Evidently the Judge did not agree that the case should be dropped and the claimant should not be released.

[122]Mr Jones reconvened his hearing on 29 June 2023. By that stage the claimant had not been released and the trial was now expected to take place in September. Catherine Halcrow said there was to be another hearing at the end of July when the claimant would attempt to present further evidence to persuade 30 of 51 the Crown Court that the case should be dropped. Mr Jones said he would take some time to think about what to do.

[123]Following this meeting Mr Jones wrote to the claimant to inform him that he was being dismissed for some other substantial reason, namely his imprisonment as a result of which Mr Jones found that he was unable to sustain regular and continuous service. Mr Jones referred to his belief that it was likely that the claimant would remain on remand until at least September 2023 and that therefore this would preclude him from attending work for a considerable length of time. He said that it was therefore reasonable for the claimant to be dismissed with immediate effect.

[124]Catherine Halcrow sent an email on 5 July 2023 on the claimant’s behalf indicating that he wished to appeal the decision to dismiss him. It was suggested that the respondent had not given the claimant reasonable assistance. It was said that the claimant’s case had not reached a verdict and he had not been given the opportunity to present his defence. Reference was made to two occasions where senior managers had been shown more favourable outcomes in similar situations.

[125]An appeal hearing took place on 23 and 24 August 2023. The claimant’s appeal was heard by Georgina Washington, a senior HR manager. The claimant was again represented by Catherine Halcrow. There were also two trade union representatives present on the claimant’s behalf as the plant convener now accompanied the claimant’s usual representative. The claimant could not attend as he remained in custody. All attempts at having the case dropped or getting bail had failed.

[126]Catherine Halcrow explained that the claimant was pleading not guilty to all the charges and that his trial was due to go ahead in September. In addition to the points raised in the appeal letter Catherine Halcrow asked for an adjournment until after the trial.

[127]Georgina Washington gave her decision on the second day of the hearing. She upheld the original decision to dismiss and she did not grant a further adjournment. She referred to the points that were made about the claimant being on remand rather than being convicted and his belief that the evidence against him was weak. However she emphasised that she was not making any judgement on the crime that the claimant was charged with or whether he is guilty or not guilty but the respondent’s decision was instead based purely on whether the claimant was able to attend work and maintain efficient and regular service. She pointed out that the respondent had already granted an adjournment in respect of the hearing in June and that it remained the case that the claimant was remanded in custody even until the point of appeal. There had therefore been no change to the fact that the claimant was unable to maintain efficient and regular service.

[128]Georgina Washington also considered the arguments raised by the claimant about comparators. There were two comparators relied upon by the claimant. The first comparator was Mohneeb Akhtar. He was a former colleague 31 of 51 of the claimant. He had a difficult employment relationship with the respondent and has brought a substantial tribunal claim which is yet to be heard. He had a lot of time off due to health reasons which had been supported by the business. Georgina Washington found that he was not a relevant comparator as the reasons for his absence were different.

[129]The second comparator relied upon by the claimant was Andrew Pollock who it was said had been sentenced to 4 to 5 months in prison but had retained his employment with the company. However this had taken place around 30 years ago. Mr Pollock was employed by Rover Group and not JLR. There were different terms and conditions and different circumstances due to the passage of time. For those reasons Georgina Washington found that Mr Pollock was not a relevant comparator either.

[130]Georgina Washington found that there was no evidence of any process issues or new evidence that would mean the decision taken was incorrect.

[131]Georgina Washington sent the claimant an outcome letter dated 7 September 2023 confirming her decision not to uphold his appeal.

[132]The trial in the Crown Court took place before Her Honour Judge Norton and a jury and was prosecuted by a Kings Counsel. The claimant was convicted on 28 September 2023 of all the offences of which he was charged i.e. criminal damage, assault and perverting the course of justice. He was sentenced to an immediate term of 20 months imprisonment. Evidently the jury rejected the claimant’s arguments including that he had acted in self defence in pushing his former partner down the stairs, that he had not intimidated her on the steps of the magistrates court and that he was a victim of police corruption or incompetence.

[133]The claimant made an application for leave to appeal against his conviction to the Court of Appeal. This application was initially refused on the papers and then renewed at a hearing before a panel of three judges on 27 February 2025. As the judgement described the claimant presented very detailed arguments and raised extensive complaints which he said amounted to grounds for quashing his conviction. The judgment refers to the claimant having “submitted a quite enormous volume of material in support of your application”.

[134]The Court of Appeal gave careful consideration to the points raised by the claimant but concluded that they were “wholly unpersuaded that there is any substance in this application such that we should grant leave to appeal”. Nevertheless, the claimant has made it clear to us that he still regards himself as having been wrongly convicted. He accuses his ex partner, who he was convicted of assaulting and intimidating, of perjury. He thinks he has grounds to further challenge his conviction. The claimant sought to ventilate in the hearing before us many of the arguments designed to undermine his former partner’s honesty and integrity and demonstrate his innocence which had been given short shrift by the Court of Appeal. 32 of 51

[135]The bottom line is that following the refusal of leave to appeal the claimant’s conviction stands and it is evidence that he committed the offences of which he was charged. More importantly from an employment law perspective we consider that the respondent was undoubtedly right to find that by virtue of being charged with very serious offences and remanded into custody for a lengthy period the claimant was not able to provide regular and effective service, which was a fundamental term of his contract of employment. Victimisation

[136]Having set out our findings on the background we will now set out our more specific findings on the claims we have to determine. We will deal firstly with the claimant’s claim for victimisation. We shall adopt the numbering from the agreed list of issues.

[137]As can be seen by issue 5.1 the claimant relies on two protected acts. The respondent concedes, we find rightly, that both the 2017 claim and the claimant’s third claim constitute protected acts as alleged by the claimant.

[138]We turn then to the detriments which the claimant alleges he was subjected to because he had done those protected acts. The list of detriments was set out at 5.2 in the agreed list of issues. In respect of the first 11 alleged detriments the claimant relied on his 2017 tribunal claim as being the protected act which caused the respondent to subject him to detriment.

[139]In respect of many of the first 11 alleged detriments the perpetrator is alleged to be Jason Gilbert who as we mentioned was the claimant’s line manager between August 2021 and February 2022. The tribunal finds that Mr Gilbert was aware on a broad and unspecific basis of the fact that the claimant had brought a claim historically. However, he did not know the details of the claimant’s 2017 claim and indeed he attempted to avoid further knowledge as he considered it to be irrelevant. It was the claimant who tried to tell Mr Gilbert about his 2017 claim. As Mr Gilbert explained in his investigation interview with Mr Roberts when the claimant tried to tell him about it Mr Gilbert said: “you work for me now, I don’t need to know the historical stuff”. As a result therefore Mr Gilbert rightly said “I don’t know the ins and outs of what happened”.

[140]As we have mentioned this was part of a pattern. It was only the claimant who remained interested in his 2017 claim, indeed he was preoccupied by it, but it simply did not come into anyone else’s thinking in the time period we are concerned with.

[141]The tribunal considers that the fact that Mr Gilbert was unaware of the detail of the claimant’s 2017 claim and the fact that he actively sought to avoid finding out more about it undermines the claimant’s case that the 2017 claim was a motivation for Mr Gilbert’s conduct. The tribunal found that the 2017 claim was not a reason for Mr Gilbert’s treatment of the claimant.

[142]We shall in any event explain our findings in relation to each alleged detriment. 33 of 51

[143]The first alleged detriment was that Mr Gilbert failed to refer the claimant for cognitive behavioural therapy before 4 October 2021.

[144]The tribunal finds that this allegation must fail on the facts. It cannot be said that it was a failure of Mr Gilbert not to refer the claimant for cognitive behavioural therapy. Mr Gilbert did not have the power to refer the claimant for cognitive behavioural therapy. Mr Gilbert is not a medical professional and he does not have the knowledge to say whether or not somebody is suitable for cognitive behavioural therapy. Mr Gilbert could only refer the claimant to occupational health, and they would then consider whether to refer the claimant for cognitive behavioural therapy.

[145]In respect of the referral of the claimant to occupational health by Mr Gilbert the tribunal finds that there was no delay. We accept Mr Gilbert’s evidence that he made two referrals but the first one was rejected because the claimant was already in an occupational health process. Mr Gilbert then made a second referral on the first day of the claimant’s absence. An occupational health report on the first day was then produced relatively promptly by 21 October 2021. That occupational health report records that the claimant had “agreed to a referral for CBT/counselling”. The claimant was therefore referred for CBT as he wished.

[146]The tribunal therefore finds that the allegation fails as pleaded, and there was no underlying detriment to the claimant in respect of Mr Gilbert’s referral of the claimant to occupational health.

[147]If we were wrong about that any detriment was not because of the claimant’s 2017 tribunal claim. The claimant’s original complaint which he reported in the investigation meeting with Mr Roberts on 21 December 2021 was that Mr Gilbert “forgot” to refer him to CBT. That is the most likely explanation for any delay. There was no evidence that any delay was because of the claimant’s 2017 tribunal claim.

[148]The second allegation of detriment is that Mr Gilbert lied to HR about the claimant not making contact on 4 November 2021 which resulted in a no contact letter to the claimant.

[149]The tribunal finds that this allegation fails on the facts. Mr Gilbert did not lie. The tribunal accepts Mr Gilbert’s account as set at paragraph 89 of his witness statement and in his oral evidence. The only time the claimant had attempted to contact Mr Gilbert via phone was 27 October 2021. Mr Gilbert’s instruction to send the letter was sent prior to 27 October 2021. Mr Gilbert had issues with his phone which meant that he did not become aware of the claimant’s attempt to call him until after the no contact letter was sent.

[150]The claimant’s pay was not suspended as a result of this letter and he faced no disciplinary action. There was no detriment. 34 of 51

[151]If we were wrong about that, we find that Mr Gilbert did not issue the no contact letter because of the claimant’s 2017 tribunal claim. He did it because he found that the claimant was not acting in line with the respondent’s policy or his expectations around keeping in touch by phone calls during absence. These were reasonable views given the lack of phone contact from the claimant. As Mr Gilbert explained to Mr Roberts it was standard practice to send a no contact letter in these circumstances – “if anyone makes no contact, they get a letter. It is simple.”. Mr Gilbert treated the claimant the exact same as he would have treated anybody else who didn’t make contact.

[152]The third allegation of detriment is that Mr Gilbert did not submit the claimant’s pay details correctly in the week commencing 6 December 2021. The tribunal finds that this allegation succeeds on the facts. We found that Mr Gilbert made an error with the claimant’s pay that resulted in an overpayment to the claimant. There was then a clawback of the overpayment by the respondent. Mr Gilbert was not involved in that clawback because shortly after the overpayment he went off sick with his own personal difficulties. Mr Gilbert had clearly made a mistake. We accept his evidence that he had made similar mistakes in the past.

[153]We do not think there was any detriment to the claimant here because a simple mistake was made and then it was then rectified. Overall the claimant was paid correctly. We did not accept the claimant’s argument - which we found difficult to understand - that the overpayment resulted in him being taxed more that he should have been. It seemed to us that the claimant would have paid the correct tax once the clawback had taken effect. Even if a mistake was made as regards his taxation this was entirely outside of the control of Mr Gilbert and it was something that the claimant could have rectified by informing the Inland Revenue of the overpayment and the subsequent clawback.

[154]Even if there was a detriment it was not because of the claimant’s 2017 tribunal claim. It was a genuine mistake by Mr Gilbert. Mr Gilbert gave this explanation for his error to Mr Roberts which we find was honest and accurate: “We get a lot of hiccups in payroll. The fact it was Christmas didn’t help. This was just before Christmas before I went off sick. I had personal stuff at home with my brother. I had a lot on my mind which is why I think I have booked him in by mistake”.

[155]The fourth allegation of detriment is that on 22 February 2022 Mr Gilbert disparaged the claimant to management regarding an allegation of having his feet up in a vehicle. We found that in his interview with Mr Roberts on 22 February Mr Gilbert mentioned the time when the claimant was sat in the back of a car with his head phones in and feet up, writing an email on his phone to HR about his grievance.

[156]The claimant was committing misconduct by acting in this way when he was supposed to have been working. What the claimant should have been doing was working on the tailgate to a car and he should have been focused on that task rather than having his air pods in and composing an email to HR. Mr Gilbert was, as the respondent rightly later found, well within his rights to challenge the claimant about his behaviour on that occasion. 35 of 51

[157]As we have pointed out Mr Gilbert referred to this issue in his investigation meeting because he was using it as an example of when he had treated the claimant leniently when he could have dealt with him formally. The action Mr Gilbert took at the time was simply to have a word with the claimant and he didn’t take it any further or tell anyone else. Mr Gilbert was correct to identify this as an example of him treating the claimant leniently and he was correct to think that this undermined the claimant’s allegation that Mr Gilbert was out to mistreat him. It was in our view relevant for those reasons for Mr Gilbert to mention it.

[158]In that context and read alongside the other comments made by Mr Gilbert in the interview (“I think his work is good… as his work goes he was fine. He got on well with people”) we do not consider that Mr Gilbert was being disparaging. Moreover the claimant did not face any criticism or disciplinary action because of Mr Gilbert referring to this matter. It was still not taken any further forward. It was just the claimant who picked up on what Mr Gilbert had said. Therefore the tribunal did not consider that the claimant had been subjected to detriment.

[159]Furthermore even if the claimant had been subjected to detriment by Mr Gilbert it was not because of the 2017 claim. Rather, we found that Mr Gilbert honestly and reasonably believed that the claimant had not been doing what he should have been doing and he had been involved in the misconduct as alleged including having his feet up. He referred to this matter in the meeting because he was trying to defend himself against the accusations of mistreating the claimant, as we have explained.

[160]The fifth allegation of detriment is about the claimant’s grievance and grievance appeal. The claimant alleges that his grievance was not dealt with in a fair and reasonable manner. In particular he alleges that Mr Roberts approached matters in a manner which was not impartial by failing to reconvene the grievance meeting in order to obtain the claimant’s response to things which Jason Gilbert said.

[161]The tribunal finds that this allegation fails on the facts. We did not see any evidence that the respondent had failed to deal with the claimant’s grievance and appeal in a fair and reasonable manner. We saw nothing to even hint at partiality on the part of Mr Roberts.

[162]The specific matter which is relied upon by the claimant is that there was a failure to reconvene the grievance meeting in order to allow him to provide a response to things which Mr Gilbert said. However the claimant had the opportunity to address Mr Gilbert’s evidence within the appeal stages of the grievance process. There was nothing in either ACAS guidance or the respondent’s own procedures that required the claimant to have a right of reply to Mr Gilbert at the initial grievance stage. The claimant did not demonstrate that the respondent had failed to follow policy or failed to adhere to a reasonable standard of fairness in the procedure which it undertook. The tribunal finds that there was no detriment to the claimant. 36 of 51

[163]Furthermore the way in which Mr Roberts conducted the investigation was not influenced to any extent by the claimant’s 2017 tribunal claim. As we pointed out when the claimant attempted to tell Mr Roberts about his 2017 claim Mr Roberts was firm that he didn’t even want to know about it. He said this at the time which is an accurate representation of his attitude: “I wouldn’t take any history into account. If you had not mentioned it I wouldn’t have know about any history. I don’t wish to know – thanks”. Like Mr Gilbert Mr Roberts only gained a basic knowledge that the claimant had brought a claim in 2017 because the claimant told him. He was not concerned about the 2017 claim and it did not influence his behaviour to any extent. The same goes for those who handled the claimant’s appeals.

[164]The sixth allegation of detriment was that the respondent failed to dismiss Mr Gilbert or remove him from his position of trust or move him to a different role or shift away from the claimant despite Mr Gilbert being found to have done various things adverse to the claimant which amounted to gross misconduct including giving false evidence.

[165]The tribunal finds that this allegation fails partially on the facts. Mr Gilbert was not found to have done various things adverse to the claimant which amounted to gross misconduct. The only finding of misconduct against Mr Gilbert was in respect of him discussing a confidential investigation with a member of his team. Mr Gilbert accepted responsibility for this to the extent that he accepted he asked Mr Coward after his interview “how did it go?”. Mr Gilbert was subject to a disciplinary process as a result of this conduct. Mr Gilbert effectively admitted the misconduct, but stated that he had been naïve and he did not intend to influence the investigation.

[166]The decision on disciplinary sanction was taken by a production manager, Brian Woodall. Mr Woodall considered the matter carefully and appropriately and he took into account various mitigation factors such as remorse. Mr Woodall did consider the possibility of Mr Gilbert changing shifts but this would have had a severe impact on Mr Gilbert due to his personal situation and in particular his childcare responsibilities. In these circumstances Mr Woodall took the decision instead to move Mr Gilbert to a different part of the work area and he imposed a written warning by way of sanction.

[167]In our view the matter was taken seriously and Mr Woodall issued an appropriate sanction that was reasonably open to him. We don’t consider that there was any detriment to the claimant in the respondent deciding not to impose an even more serious sanction such as dismissal or a change of shift. The claimant did not seek this at an outcome at the grievance or appeal stages and it had not been recommended at any stage by OH that the claimant must be kept separate from Mr Gilbert. As we shall explain that there was no subsequent interaction between the claimant and Mr Gilbert which was detrimental to the claimant.

[168]In any event even if there had been a detriment it was not because of the 2017 claim. It was because Mr Woodall genuinely and reasonably considered the sanction he selected as appropriate taking into account all the circumstances 37 of 51 and the mitigation that was available to Mr Gilbert. Again there was nothing to suggest that the claimant’s 2017 claim had consciously or subconsciously motivated Mr Woodall.

[169]The seventh allegation of detriment is that following the grievance outcome on 25 July 2022 Mr Gilbert was permitted to work alongside the claimant as he returned to the same area and was on the same shift as the claimant. The area in which the claimant and Mr Gilbert worked was known as the one off track area, or “1OTA”.

[170]The tribunal finds that the that this allegation fails on the facts. Mr Gilbert was not working “alongside” the claimant following the grievance outcome. This was an exaggeration. The parties did remain on the same shift and they worked in the same area. But Mr Gilbert no longer had line management responsibility for the claimant and he was moved to work in a different part of the area. Their paths might occasionally cross but they never worked alongside one another following the grievance outcome.

[171]The one off track area which Mr Gilbert and the claimant both worked within was on any view an enormous area. The claimant estimated it to be the size of 3 football pitches and the respondent estimated it to be the size of 10 football pitches. The fact that both parties worked within that huge area does not amount to them working alongside one another and the reality was that contact between them was minimal. The tribunal finds that to the extent Mr Gilbert and the claimant’s paths crossed or the claimant was aware of Mr Gilbert’s presence there was no detriment to the claimant. We considered that the claimant overreacted to certain scenarios such as complaining about Mr Gilbert’s presence even though he hadn’t seen him. Mr Gilbert never behaved inappropriately towards the claimant in this time.

[172]Furthermore and for the reasons we have already explained Mr Woodall’s decision that Mr Gilbert would continue to work in the one off track area was not influenced to any extent by the claimant’s 2017 grievance.

[173]The eighth allegation of detriment is that the respondent failed to inform the claimant that he would meet Jason Gilbert upon his return to work.

[174]The tribunal finds that this allegation fails on the facts. This is because the claimant did not meet Mr Gilbert on his return to work. He was at no stage required to meet or interact with Mr Gilbert upon his return to work. As we have explained it was possible that their paths may cross and that happened on a few occasions. But there was no meeting which the claimant needed to be warned about.

[175]In respect of failing to inform the claimant that he might see Mr Gilbert the tribunal finds that this was not a detriment. There was no obligation on the respondent to warn the claimant of this and it was not necessary because the claimant seeing Mr Gilbert or realising that he was working on the same shift was an entirely innocuous event. It appears from the documents that HR had 38 of 51 intended to inform the claimant but did not do so. This was through oversight and it was not because of the claimant’s 2017 claim.

[176]The ninth allegation of detriment is that Mr Gilbert put his thumb up so as to antagonise the claimant in around mid September 2022.

[177]Mr Gilbert accepted that he may well have put his thumb up towards the claimant and this was because the claimant drove past him at a crossing point. The tribunal finds that is most likely what happened. This was quite clearly in our view a friendly and innocuous gesture rather than an antagonistic one. In his evidence at the time the claimant described this gesture as “blasé” and even in his evidence to the tribunal that the claimant suggested it was “an olive branch”. These descriptions contradict the allegation that Mr Gilbert had an antagonistic motive. In these circumstances the tribunal finds that the claimant was not subjected to any detriment. Even if there was a detriment it was not because of the claimant’s 2017 claim. It was because Mr Gilbert was acknowledging the claimant’s presence.

[178]The tenth allegation of detriment is that the respondent failed to acknowledge the claimant’s concerns regarding fabrication of witness evidence given by Jason Gilbert during the investigation. The claimant specifically complains about the fact that he that he spoke to Sue Ford and Derek Kavanagh in September 2022 to ask them to move Mr Gilbert away to a different role or a different shift but they were dismissive and took no action.

[179]The tribunal finds that this allegation fails partially on the facts. The claimant’s concern about fabrication of evidence by Mr Gilbert in relation to having his feet up in a vehicle was acknowledged by the respondent. The claimant raised this as an appeal point and it was specifically looked into by Mr Preece. In fact, Mr Preece reached an outcome on this matter which was favourable to the claimant.

[180]The tribunal finds that the claimant did raise his concerns about Mr Gilbert to Sue Ford and Derek Kavanagh. He was complaining about coming into contact with Mr Gilbert and asking for him to be moved. We do not find however that either Sue Ford or Derek Kavanagh were dismissive.

[181]The relevant context here is that a decision as to the appropriate sanction for Mr Gilbert and whether he should be moved had already been taken by Mr Woodall. What the claimant was requesting was in effect for that decision to be revisited. This would have been a deviation from the proper process. In those circumstances neither Sue Ford nor Derek Kavanagh took the action which the claimant wanted i.e. to move Mr Gilbert away. There was a reasonable and proper basis for them deciding not to do that - namely that a disciplinary process had been gone through, careful consideration had been given to sanction and a decision had been taken by a senior manager that Mr Gilbert was not to be moved shift. Refusing the claimant’s request on that basis was not dismissive.

[182]We have found that there was no detriment to the claimant in working on the same shift as Mr Gilbert but not working alongside him. We therefore 39 of 51 consider there was no detriment to the claimant in Sue Ford and Derek Kavanagh declining to move Mr Gilbert away.

[183]Even if there was a detriment it was not because of the claimant’s 2017 tribunal claim, their decision was taken instead on the basis which we have just described. Once again there was no evidence that Sue Ford and Derek Kavanagh were influenced to any extent by the claimant’s 2017 tribunal claim. Sue Ford knew nothing about it.

[184]The eleventh allegation of detriment is that in September 2022 the claimant would have been required to attend daily meetings with Mr Gilbert if he was to continue as stand-in group leader. This allegation is purely hypothetical. In September 2022 the claimant was not standing in as group leader. As we understood it from the claimant’s evidence he had not stood in as group leader since February 2021. The tribunal finds that there is no detriment to the claimant in respect of a hypothetical situation that did not in fact arise.

[185]In any event the tribunal would accept the evidence from Derek Kavanagh that if the claimant had been appointed as stand-in group leader he would not have to attend meetings with Mr Gilbert as Mr Gilbert could and would in the circumstances have delegated that responsibility to somebody else. There would therefore be no detriment if the hypothetical situation had arisen in reality.

[186]The twelfth and thirteenth allegations of detriment are interrelated and indeed the claimant himself accepted that the twelfth allegation was the other side of the coin to the dismissal allegation. These allegations concern the decisions to dismiss the claimant and to refuse to allow the claimant a longer period of unpaid leave in June 2023. We find that these decisions were taken and they were detrimental to the claimant. The claimant’s case is that these decisions were made because of his third tribunal claim.

[187]However, the relevant witnesses who were responsible for these decisions were Dean Jones, corporate security operations centre manager, who dismissed the claimant and Georgina Washington, senior HR manager transformation projects, who chaired the dismissal appeal meeting. Neither Dean Jones nor Georgina Washington were aware of the claimant’s third claim. It follows that the third claim cannot have been the reason for the treatment complained of. Indeed in our view there was no evidential basis for that suggestion at all. As we shall explain there was a fair reason for dismissing the claimant and declining to extend his unpaid leave and that had nothing to do with the claimant’s third claim.

[188]For these reasons the tribunal’s conclusion in respect of the victimisation claim is that the claimant has not been subjected to any of the detriments alleged because he did one or both of the protected acts. The claimant was not subject to detriment because the respondent believed the claimant had done or may do a protected act. The claimant did not come close to establishing a prima facie case of victimisation. Therefore, the victimisation claim must fail and be dismissed. Protected disclosures 40 of 51

[189]The claimant alleges that he made disclosures in or around August or September 2022. The content of the alleged disclosures was that the claimant reported that a number of employees including Dan Coward had committed tax fraud. The claimant says he made disclosures about that to the Jaguar Land Rover investigation team using the speak up reporting method, by email to Bernie Hall and Laura Thomas in human resources, and to Jamie at HMRC.

[190]The claimant did not evidence that he made disclosures by email to Bernie Hall and Laura Thomas in human resources and to Jamie at HMRC in or around August or September 2022. We were not shown those emails in evidence. We therefore find that the claimant did not make disclosures by email to those individuals as alleged.

[191]However we did find that the claimant reported to the Jaguar Land Rover investigation team via the online speak up process. This report was made on 17 October 2022 which we consider is sufficiently close to the allegation that the claimant made disclosures in or around August or September 2022. The speak up report was a disclosure to the claimant’s employer.

[192]The tribunal finds that in respect of this disclosure there was information disclosed, namely that Daniel Coward was promoting a tax return via a potential rogue agent. We find that the claimant reasonably believed that disclosure of that information was in the public interest because it suggested that a JLR employee was promoting tax fraud. This was part of the wider picture which resulted in a number of JLR employees getting involved in tax fraud. We further find that the claimant reasonably believed that the disclosure tended to show that a criminal offence had been committed, namely tax fraud.

[193]Having found that the claimant did make a protected disclosure we should go on to emphasise the very important point that the claimant made that disclosure anonymously. The claimant said in his disclosure that he wished to remain anonymous and there was nothing in the information which was disclosed which could identify the claimant as the reporter. The obvious point to make here is that the fact that the claimant’s disclosure was made anonymously was an effective means of ensuring that the claimant was not subjected to any detriment as a result of having made it.

[194]We find that the alleged perpetrators of the detriments which we shall go on to consider in a moment were not aware that the claimant had made the disclosure and therefore they could not have subjected the claimant to detriment because of it.

[195]We should mention that in her witness statement Bernadette Hall, HR manager, explained that in around August 2022 the claimant had approached her to explain that he and some of his colleagues including Dan Coward had become involved in a tax scheme which was subsequently found to be fraudulent. He did not however provide the information contained in his disclosure about Mr Coward promoting the rogue tax agent and he did not set anything out in an email as is alleged in the list of issues. Nevertheless, 41 of 51 Bernadette Hall was we find aware in very general terms at least of the claimant’s concerns over the tax refund scheme which he later set out in his disclosure. Bernadette Hall also accepted that the claimant’s online disclosure made on 17 October may well have crossed her desk around the time it was submitted.

[196]This evidence does not take the claimant’s case any further forward however. This is because there is no evidence that Bernadette Hall shared the information which she had about the claimant’s disclosure with anybody else or in particular anybody who the claimant now accuses of subjecting him to detriment. The tribunal finds that Bernadette Hall did not pass the information on. As she explained to us, there was no reason for her to do so. She properly advised the claimant in August that he should report the matter to HMRC. This was consistent with the security alert through which JLR issued that advice to all its employees. It was an issue between them and HMRC. In respect of the claimant’s online disclosure this did include an matter that concerned the respondent directly as it had the information that Mr Coward had promoted a rogue tax agent. However, there was no need for Bernadette Hall to take any action because she was not tasked with investigating that.

[197]In his closing submissions the claimant made a number of trenchant criticisms of Bernadette Hall and amongst those was a criticism that she had not told anybody about his disclosure regarding the tax scheme despite the fact that she knew about it. In effect the claimant accused Bernadette Hall of concealing his disclosure. We don’t think this is a valid criticism because as we have explained there was no need for Bernadette Hall to tell anybody. In fact it probably would have been improper for her to do so in circumstances where the claimant had chosen to remain anonymous and this was a form of protection for him. Perhaps even more significantly however the claimant’s own recognition that Bernadette Hall had not told anybody about his disclosure severely undermines his own case. It reinforces the fact that those who he alleged subjected him to detriment cannot have acted on the ground that he had made a protected disclosure because they simply did not know about it. The claimant does not allege that Bernadette Hall subjected him to any detriment herself.

[198]We shall in any event go on to consider the alleged detriments which were set out at paragraph 7 of the agreed list of issues. Protected disclosure detriments

[199]The first allegation of detriment on the ground of having made a protected disclosure is that in November 2022 Daniel Coward raised a false sexual harassment complaint against the claimant.

[200]Daniel Coward was at the relevant time a colleague of the claimant’s. We have described how he did raise a complaint of sexual harassment against the claimant. The nature of the complaint was that the claimant had shown Daniel Coward a picture of himself on a sofa with his legs spread and with his penis in his hand. The claimant denies this allegation. 42 of 51

[201]We have explained how Daniel Coward did not complain about this incident at the time it allegedly occurred. What happened was that about three months after the incident Daniel Coward was part of a group of the claimant’s colleagues who raised concerns about the claimant’s conduct as they were worried about his mental health. Their concerns were expressed in a group grievance raised by about 12 people. This allegation was raised as part of that and then escalated once the seriousness of it was appreciated.

[202]It was salient in our view that Daniel Coward had not raised the allegation as a complaint to get the claimant into trouble – it was instead framed as part of a group concern over the claimant’s mental health. It was taken forward as disciplinary concern by a different manager. At this stage the claimant was suspended and an investigation was undertaken. The crucial ear witness, Ben Hawkins, could not be interviewed as he was absent and the complaint therefore boiled down to one person’s word against another’s. In those circumstances a decision was taken that there was no case to answer, the claimant’s suspension was lifted and he was able to return to work.

[203]The tribunal had to decide on a balance of probabilities basis whether the complaint raised by Mr Coward was false. We should mention that as we understood it the respondent’s position at the time that the claimant had no case to answer was reached not because they concluded that the complaint was false but because they considered there was not enough evidence in support of it as the ear witness was unavailable and it was one persons word against another. We should also acknowledge that Mr Coward was not called to give evidence and therefore we take into account that Mr Coward did not give evidence to us to substantiate his own complaint. This does not mean however that we must necessarily find that the complaint was as the claimant’s asserts a false one.

[204]In the tribunal’s view there are a number of significant factors which indicate that this complaint was more likely than not to be true. In particular:a. There was a lack of evidence to indicate that Mr Coward was seeking to get the claimant into trouble by raising false allegations against him.

b. The claimant’s case was that Mr Coward made a false allegation because he must have learned of the claimant’s disclosure about tax fraud, however there was no evidence of that, it was speculative and we did not accept it.

c. As we have already observed Mr Coward did not initially complain about the incident he only raised it as part of the group complaint about the claimant’s conduct generally which was framed around concerns for the claimant’s mental health. It was then picked up by Andy Pollock as something which should be looked into properly. In the tribunal’s view the way in which the allegation came to light does not suggest it was done maliciously.

d. In the notes of the interview with Mr Coward he made it clear he was not seeking for the claimant to be dismissed but instead simply for the claimant to be moved out of his area. Again this is not indicative of Mr Coward acting maliciously by inventing a false allegation to get the claimant into trouble. 43 of 51

e. The complaint itself was specific and graphic and there does not appear to us to be any reason why Mr Coward would make something like that up.

f. When he was interviewed the claimant did not show his phone to the investigator to prove his point that he did not have any such content on his phone.

g. There was other evidence of the claimant sharing inappropriate content on his phone with colleagues in particular at 475 in the bundle there is an allegation that the claimant had shown a colleague Richard James a video of his ex-partner whom he accused of beating him up. The content of the videos was her “ranting and raving” and screaming.

h. In his evidence to the tribunal the claimant accepted that such a video existed and he had showed it to another colleague.

i. Another one of the claimant’s colleagues Vicky Gavin told the investigation that the claimant had also shown her content on his phone of a personal and inappropriate nature namely his partner threatening to kill herself.

j. Mr Wilkinson raised the point that during his investigation it had come out that the claimant was open about his sex life and discussed it with colleagues freely.

k. During his investigation meeting the claimant pushed a revealing photograph of his partner towards the investigator. We take into account the claimant’s explanation that this was a gym photo but it still struck us as a strange and inappropriate thing to do.

l. The claimant’s profile picture on his WhatsApp account which he used to communicate with his manager is a picture of him posing topless. Again we take into account that this may well have been set up in a gym context but it still appears to us to be a strange and inappropriate thing to do at least when communicating with your manager.

m. Significantly there was in our view clear evidence that the claimant had engaged in numerous lewd interactions with Mr Coward. These were described by the claimant in an email at page 446 of the bundle and we think that the claimant’s complicity in these conversations is evident as he did not report them until he raised them in retaliation after Mr Coward raised his complaint.

n. Perhaps most significantly of all in his own investigation interview the claimant described how he had lewd conversations with Mr Coward about the size of his penis and, crucially, the claimant accepted that he had played up to that. The theme of the evidence from both the claimant and Mr Coward was that the claimant was boasting about the size of his penis. The picture appears to have been shown to Mr Coward in order to substantiate the boasts.

[205]Taking into account all these factors the tribunal concluded that the complaint raised by Mr Coward was not false and therefore the allegation fails on its facts.

[206]In any event if we had found that the claimant had been subjected to a detriment as alleged then we would not have found it was done on the ground that the claimant had made a protected disclosure. The suggestion that Mr Coward could have become aware of the claimant’s confidential and anonymous 44 of 51 disclosure and made this allegation in retaliation is entirely speculative and not supported by any evidence. The claimant himself has asserted various other motives Mr Coward might have had against him including the claimant’s complaints against Mr Coward of incompetence and nepotism. There is no evidence as to how Mr Coward may have become aware of the claimant’s anonymous disclosure. We find that he was not aware of it and any detriment was not done on the ground that the claimant had made a protected disclosure.

[207]We consider that if the respondent wanted to act with bad faith and dismiss the claimant for his protected disclosure it was presented with the perfect opportunity via the allegation made by Mr Coward. It instead took a decision which was, we think, lenient towards the claimant. This episode again demonstrates a lack of intent on the part of the respondent to act in bad faith or treat the claimant unfairly.

[208]The second alleged protected disclosure detriment is that on 21 November 2022 the claimant was suspended. We accept this happened. The decision to suspend the claimant was taken by Lee Bateman, a production manager. The tribunal accepts the suspension was a detriment. However the decision to suspend had nothing to do with any disclosure of the claimant’s. It was done because of Mr Coward’s allegation. The risk assessment which was carried out at the time gives a reasonable and proper basis for suspension. It was a serious allegation and suspension was appropriate to allow for investigation and to obviate concerns of retaliation.

[209]Furthermore, the fact that Daniel Coward was also suspended at the same time undermines the suggestion that suspension was imposed on the claimant because of his disclosure.

[210]In any event the tribunal accepts Mr Bateman’s evidence that he did not know about the claimant’s disclosure. Mr Bateman was simply a manager of appropriate seniority who was drafted in to handle the suspension. Any suggestion that Mr Bateman must have known about the disclosure was speculative and not based on any proper evidence. Therefore the detriment cannot have been on the ground of the protected disclosure.

[211]The third alleged protected disclosure detriment is that on 20 December 2022 an investigation meeting was conducted with the claimant in respect of the sexual harassment complaint.

[212]The tribunal finds that an investigation meeting was held with the claimant on 20 December 2022 following his suspension on 21 November 2022. The investigation meeting was conducted by Kenneth Wilkinson, the production manager who investigated the sexual harassment complaint.

[213]We do not consider that conducting an investigation meeting was a detriment. The claimant had by this stage been suspended for nearly a month. It was appropriate and in everybody’s interest including the claimant for the matter to be progressed. It was an opportunity for the claimant to give his side of the story. Ultimately the investigation reached a conclusion that was 45 of 51 favourable to the claimant because it found he had no case to answer and he was therefore not progressed to a disciplinary. This outcome could not have been reached without meeting with the claimant to investigate.

[214]The reason why an investigation meeting was conducted had nothing to do with the claimant’s disclosure. It was because a serious allegation had been made, the claimant had been suspended and there was a need to investigate to decide what action to take next. Mr Wilkinson had only a very basic understanding of the claimant’s disclosure because the claimant himself had raised that Mr Coward may have raised his complaint in retaliation. The claimant only raised this point during the meeting itself. This knowledge had no impact on the decision to conduct an investigation meeting on 20 December 2022. The meeting was not conducted on the ground that the claimant had made a protected disclosure.

[215]The fourth allegation of protected disclosure detriment is that Laura Thomas did not provide full and accurate minutes of the meeting of 20December 2022. Laura Thomas worked in HR and she attended the meeting as a note taker. The claimant received a copy of the notes at the time and he made it clear that he considered that certain matters had been omitted. He therefore provided further notes to Laura Thomas which he asked to be added to the meeting minutes. Laura Thomas agreed that the notes the claimant provided should be placed on the file to be used alongside her notes. Accordingly the information the claimant wanted to make sure was included would have been available to any disciplinary manager. However as we’ve already mentioned the case never got to that stage because Mr Wilkinson concluded that there was no case to answer. In that context the tribunal finds that the claimant had not been submitted to any detriment.

[216]In any event even if we had found that the claimant was subjected to detriment there was once again no basis for any suggestion that Laura Thomas was aware of the claimant’s disclosure and she failed to provide full and accurate minutes for that reason. We find that Laura Thomas was not aware of the disclosure and any discrepancy in the notes was not on the grounds of a protected disclosure. Any discrepancy was due to mistake.

[217]The fifth allegation of protected disclosure detriment is that in June 2023 there was a refusal to allow the claimant a longer period of unpaid leave. As we have already observed in reality this is not a separate allegation to the allegation of dismissal because the decision the respondent took was to dismiss the claimant rather than allow him a longer period of unpaid leave. This complaint more properly arises for consideration under s.103A ERA.

[218]If there was a separate detriment related to the refusal to allow the claimant a longer period of unpaid leave then we find that decision was not done on the ground that the claimant had made a protected disclosure. There was no evidence that either Dean Jones or Georgina Washington were even aware of the claimant’s disclosure and we find that they were not aware of it. As we shall explain, there was a fair reason for dismissing the claimant and declining to extend his unpaid leave and that had nothing to do with the claimant’s disclosure. 46 of 51 The specific reasons why Mr Jones did not extend the claimant’s leave in June 2023 were related solely to the claimant’s imprisonment. They were because he was not assured that the claimant would be able to provide regular and effective service in the near future, the claimant had not been able to work since March 2023 and the respondent had already waited to give the claimant the opportunity to be released. Mr Jones was not influenced to any extent by the claimant’s disclosure, which he did not even know about.

[219]We therefore find that the claimant has not been subjected to detriment on the ground that he made a protected disclosure. The protected disclosure which we found the clamant made was not a factor in relation to any of the detriments he complained about. Indeed the alleged perpetrators of the detriments were not even aware of the claimant’s disclosure. The claimant did not show that a ground or reason (that is more than trivial) for detrimental treatment to which he was subjected was a protected disclosure he made. The respondent had clearly shown that there were other reasons for its treatment of the claimant and the disclosure had not influenced its treatment of the claimant. For those reasons the claimant’s claim of whistleblowing detriment must fail and be dismissed. Unfair dismissal

[220]The tribunal finds that the reason for the claimant’s dismissal was some other substantial reason namely the claimant’s inability to sustain efficient and regular service by reason of his remand in custody. We find that this was a substantial reason which justified the dismissal of the claimant holding the job he had.

[221]We find that the respondent acted reasonably in dismissing the claimant for that reason. The decision to dismiss fell well within the range of reasonable responses.

[222]Although the claimant had reasonably long service the offences which he was charged with were extremely serious. And the claimant had already been imprisoned for a lengthy period at the time the decision to dismiss was taken.

[223]The tribunal finds that the respondent conducted a reasonable investigation and followed a full and fair procedure prior to dismissing claimant. The difficulty with contacting the claimant whilst he was in prison was resolved because the claimant was given the opportunity to appoint representatives to speak on his behalf which he did effectively. Through the representatives the respondent gave the claimant the opportunity to explain his situation both in writing and at meetings.

[224]The respondent reasonably waited whilst multiple attempts at bail were tried but were unsuccessful. The respondent reasonably delayed the final hearing to allow the claimant to present his evidence to the Crown Court Judge on 23 June which he hoped would result in the case being dropped. When that failed the respondent was we found reasonably entitled to make a decision. The overall process was fair. 47 of 51

[225]We find that the dismissal was fair in all the circumstances of the case. Whilst we acknowledge that the respondent could have waited until after the claimant’s trial in September we consider that the decision not to do so and to dismiss on the basis that the claimant’s return to work could not be anticipated within a reasonable timescale was one which fell well within the band of reasonable responses. At the time of the decision the claimant was awaiting trial in September and it could not be said on balance when he could resume service. The respondent waited whilst the claimant made various bail applications and attempted to get the case dropped. The offences which the claimant was charged with were very serious and could result in a substantial prison sentence. The respondent was still making payments for example towards the claimant’s pension contributions and was also incurring the cost of additional agency staff to fulfil the claimant’s skilled and necessary role.

[226]The reality was that at the time the decision was made there was limited possibility of the claimant’s release in the near future and by the time the claimant’s dismissal was confirmed at the appeal stage the claimant had been absent for nearly 6 months. Three hearings had taken place with the claimant’s authority at which he had been represented both by his chosen representatives and by his trade union, including at the latter stage by two trade union representatives including the plant convener.

[227]In the circumstances we were of the firm view that the decision maker’s decision to dismiss was one that was reasonably open to him. We were satisfied that he reasonably took into account factors which were in the claimant’s favour such as the possibility of release, the claimant’s length of service and the personal impact upon him of dismissal at a time when he was already struggling due to being in prison.

[228]We consider that Georgina Washington’s decision that the comparators identified by the claimant were not relevant was not only reasonable but also undoubtedly right. Nor was it relevant for the claimant to attempt to compare himself as he did during the tribunal hearing with those serving in the military overseas or on an agreed sabbatical. Those scenarios cannot possibly be fairly compared with an individual who is in prison as a result of serious criminal charges being laid against him.

[229]As with the original decision to dismiss we acknowledge that the decision maker on appeal could have waited longer before making her decision. But we considered that her decision not to do so fell well within the band of reasonable responses, especially given that she was undertaking a review of the decision to dismiss. The claimant was not denied the opportunity of demonstrating that the reason for his dismissal was insufficient. The claimant’s ongoing imprisonment plainly demonstrated that the original decision was correct. Georgina Washington’s reasons for dismissing the appeal were all reasonably open to her. Furthermore, had the appeal been delayed then the result would have been the same anyway as the claimant was convicted at the trial and then sentenced to prison. Therefore even had the decision maker waited it would only have once again confirmed that the original decision was correct. 48 of 51

[230]The tribunal finds that the reason or principal reason for dismissal was not the claimant’s public interest disclosure. As we have already recorded neither Dean Jones nor Georgina Washington were aware of the claimant’s disclosure and there was no evidence that the disclosure played any part in the decision to dismiss. The claimant did not produce any evidence to suggest that his dismissal was for the principal reason that he had made a protected disclosure. There was a clear and obvious reason for this dismissal which was the fact that the claimant was in prison on remand with no likely release date in the near future. The respondent proved it dismissed the claimant for this reason. This reason had absolutely nothing to do with any disclosure.

[231]For these reasons we find that the claimant’s dismissal was fair and not for the reason that he made a protected disclosure. The claimant’s claims for unfair dismissal must therefore fail and be dismissed. The conclusion that we have reached

[232]Before we set out our overall conclusion we should mention two issues.

[233]The first is that we gave the claimant very considerable leeway during this final hearing to introduce new evidence that had not been included within the bundle. We think the claimant added around 40 pages of documents to the trial bundle. The claimant continued to make applications to add new evidence to the bundle including right up to literally the minute before closing submissions. There therefore came a time when we had to say enough was enough because of the risk of unfairness of the respondent but we would point out that the claimant was given much more flexibility that most litigants in the employment tribunal. He had in our view every opportunity to put forward the evidence that he wanted to rely upon.

[234]The second point is that the claimant has presented to us extensive argument in support of his case. We started the case with three sets of written arguments from the claimant (an executive summary, an adverse inferences document and opening submissions), the claimant cross examined the respondent’s witnesses for 4 days and mounted a detailed critique of their evidence, he then provided lengthy written closing submissions which were accompanied by oral submissions as well. It is fair to say that, as in his presentation of his case to the criminal Court of Appeal, the claimant has left absolutely no stone unturned in developing his arguments.

[235]We wish to explain that we have taken into account absolutely everything which the claimant presented to us and considered it carefully. Overall whilst we found that many of the claimant’s arguments were presented articulately and demonstrating impressive legal knowledge he was very quick to point the finger at others and blame them often criticising them in an extreme and vituperative manner which was not justified on the facts of the case. An example of this approach was the astonishing attack which the claimant launched on Bernadette Hall in his closing submissions where he accused her of criminal conduct and said that inconsistencies in her evidence validated every aspect of his case regarding systematic institutional bad faith. This was over the top and 49 of 51 unwarranted. It was also odd that the claimant focused on Bernadette Hall as she was not the perpetrator of any of the allegations he had brought. On the other hand what was strikingly lacking from the claimant’s arguments and evidence was any acceptance of responsibility on his part for the difficult situations in which he often found himself. We felt that position was unrealistic and lacked credibility.

[236]We wont attempt to record each and every point that the claimant has made in his arguments to us but there were perhaps three main arguments which we identified and which we considered in depth. These were as follows:a. Firstly, the claimant invited us to draw adverse inferences from the fact the respondent did not call two witnesses, Andy Pollock and Greg Niblett. We did not draw an adverse inference from this fact because we did not consider them to be key witnesses. They were not named in the list of issues. They were not named as perpetrators in any of the allegations that the claimant brought. They were in our judgement peripheral to the case we have to determine.

b. Secondly, the claimant invited us to conclude that the respondent operated a culture of discriminatory or unfair treatment. His argument on this was primarily based on the evidence of Mr Akhtar. We did not draw that conclusion from the evidence that we saw and heard. Mr Akhtar was we find the epitome of a witness who had his own axe to grind given his ongoing litigation against the respondent. In our view his experiences were separate to and different from those of the claimant and they provided no real support for the claimant’s case.

c. Thirdly, was the various and sometimes vicious attacks the claimant made on the respondent’s credibility and his allegations of bad faith. We have mentioned how this attack came to be focused primarily on Bernadette Hall. In our findings of fact we have preferred the evidence which Bernadette Hall gave in her statement to what she said in her oral evidence and to this extent there was some inconsistency in her evidence. This did not warrant making the extreme findings which the claimant sought to the effect that there was institutional bad faith which should lead to his case being accepted. The claimant did not come close to demonstrating that the respondent’s case overall was incredible and founded on bad faith.

[237]Overall none of the claimant’s arguments could overcome the fatal flaws in his case. These were:a. Firstly, that there was a clear and obvious substantial reason for dismissal which was the claimant’s imprisonment and that had nothing to do with protected disclosures or protected acts.

b. Secondly, the respondent reasonably – in fact we think generously - waited in order to see if the claimant would be released before it dismissed. 50 of 51

c. Thirdly, the assertion that those who the claimant considered subjected him to detriment or dismissal because of his tribunal claims or his disclosure was highly speculative and not based on any proven facts. In our view it was a shot in the dark.

[238]The tribunal’s overall conclusion is therefore that the claim must fail and be dismissed.