Mr D Clarke v Tyres on the Drive Limited: 1302920/2018

EMPLOYMENT TRIBUNALS

Case No 1302920/2018

Between

Mr D ClarkeClaimant

Tyres on the Drive LimitedRespondent

Before

Employment Judge Flood

Mr Braier (instructed by Counsel) for claimant

Mr Searle (instructed by Counsel) for respondent

Date 25 February 2019

JUDGMENT

ON INTERIM RELIEF APPLICATION The Judgment of the Tribunal is that the claimant’s application for interim relief under section 128 of the Employment Rights Act 1996 is refused.

REASONS

[1]The Claimant’s claim is that he was subject to a detriment for making a protected disclosure contrary to s 47B of the of the Employment Rights Act 1996 (“ERA 1996”) and/or because he did a protected act contrary to s 27 (1) of the Equality Act 2010. The claimant also claims that he was unfairly dismissed for making a protected disclosure contrary to s 103A of the ERA 1996 or contrary to s 94 of the ERA 1996. An application for interim relief was presented on 1 June 2018 under s 128 of the ERA 1996 within the prescribed time limit.

[2]For the purposes of this hearing, I had before me the following documents: 2.1. A Skeleton argument prepared by Mr Braier on behalf of the claimant. 2.2. A witness statement from the claimant signed and dated 20 June 2018. 2.3. An agreed bundle of documents (“the Bundle). 2.4. A bundle of authorities prepared by the claimant and two additional authorities provided by the respondent.

[3]Neither of the parties made an application to adduce any oral evidence so I have decided the application on the basis of the written witness statement and the documents in the Bundle. This was sufficient for me to form a view on the issues pertinent to this application.

[4]The parties also confirmed that the focus of the hearing today would not be on whether or not the alleged protected disclosures in the claim were protected disclosures within the meaning of s43A of the ERA 1996, but the key area of dispute was on the “reason why” aspect of s103A and whether or not it was likely that the Tribunal would find at a main hearing that reason or principal reason for the dismissal was the making of the protected disclosures.

[5]I heard oral submissions from both parties, which were completed at 12.30 pm. I then adjourned to deliberate with a view to providing an oral decision. Unfortunately due to a prolonged fire drill at the Tribunal, there was insufficient time complete this so the hearing was adjourned at 3.30 pm for a reserved decision to be produced.

The relevant law

[6]S 103A of the ERA 1996 states that if the reason for the employee’s dismissal (or if more than one reason, the principal reason) was that the employee “made a protected disclosure”, then that dismissal will be unfair.

[7]S 128 of the ERA 1996 makes provision for an employee to be able to make an application for interim relief where an unfair dismissal complaint has been presented and that the reason alleged is one of those specified in certain listed provisions (including s 103A of the ERA 1996). It stipulates that such an application must be made within 7 days of the effective date of termination of employment and a tribunal shall determine the application as soon as practicable after receiving it.

[8]The relevant test under s 129(1) of the ERA 1996 that the Tribunal must apply on an application for interim relief is that it must be satisfied: “..that it is likely that on determining the complaint to which the application relates that it will find- (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in- (i)_section…..103A .”

[9]If the Tribunal is satisfied that this test is made out, it must then make enquiries as to whether the respondent is willing to re-employee or re-engage the claimant pending the final hearing. S 129 (8) of the ERA 1996 deals with what is to be done if the employer is unwilling to do so and if so: “the Tribunal shall make an order for continuation of the employee’s contract of employment”

[10]The correct test to apply as to the meaning of “it is likely” is that a balance of probabilities approach is insufficient. The decision of the Employment Appeal Tribunal in Taplin v C Shippam Ltd

[1978] ICR 1068

found that it must be established that the employee can demonstrate a “pretty good chance” of success.

[11]This was endorsed in the case of London City Airport v Chacko

[2013] IRLR 610

: “It is not sufficient that the employee is able to establish that "it is likely" they were otherwise unfairly dismissed, i.e. for other reasons. They must be able to show that it is likely that it will be found that they have been dismissed for the sole or the principal reason of [their trade union activities]”. It was also confirmed that an employment judge: “must do the best they can with such material as the parties are able to deploy” and requires “an expeditious summary assessment by the first instance employment judge as to how the matter looks to him on the material he has”

[12]The meaning of likely has been confirmed in the most recent judgment on this issues, Wollenburg v(1) Global Gaming Ventures (Leeds) Ltd

(2) Herd (

UKEAT/0053/18/DA

(4 April 2018, unreported) which provides: “Put shortly, an application for interim relief is a brief urgent hearing at which the Employment Judge must make a broad assessment. The question is whether the claim under section 103A is likely to succeed. This does not simply mean more likely than not. It connotes a significantly higher degree of likelihood. The Tribunal should ask itself whether the Applicant has established that he has a pretty good chance of succeeding in the final application to the Tribunal.”

[13]In the recent unreported EAT case His Highness Sheikh Khalid bin Saqr al Qasimi v Robinson (

UKEAT/0283/17/JOJ

) HHJ Eady QC gave guidance as to how such cases should be approached in that: “By its nature, the application had to be determined expeditiously and on a summary basis. The ET had to do the best it could with such material as the parties had been able to deploy at short notice and to make as good an assessment as it felt able…. The Employment Judge also had to be careful to avoid making findings that might tie the hands of the ET ultimately charged with the final determination of the merits of the points raised. His task was thus very much an impressionistic one: to form a view as to how the matter looked, as to whether the Claimant had a pretty good chance and was likely to make out her case, and to explain the conclusion reached on that basis; not in an over-formulistic way but giving the essential gist of his reasoning, sufficient to let the parties know why the application had succeeded or failed given the issues raised and the test that had to be applied.”

[14]HHJ Eady QC also confirmed (and updated) the directions given in the case of Ministry of Justice v Sarfraz

[2011] IRLR 562

(EAT) that in the context of an interim relief application involving a Section 103A ERA automatic unfair dismissal claim, a Judge has to decide that it is likely that the tribunal at the final hearing would find five things:(1) that the claimant had made a disclosure to his employer;

(2) that he believed that the disclosure tended to show one or more of the things itemised at (a)-(f) under s43B(1);

(3) that the belief was reasonable;

(4) that the disclosure was made in the public interest; and

(5) that the disclosure was the reason or principle reason for dismissal. The Sarfraz case also confirmed that “likely” connotes something nearer to certainty than mere probability.

[15]In addition, in carrying out the summary assessment required, the burden of proof provisions in relation to Section 103A complaints which were set out in the case of Kuzel v Roche Products Ltd

[2008] EWCA Civ 380 (CA)

are relevant and I was directed in particular by the claimant’s representatives to paragraphs 56-60 of that judgment. I also note that the Court of Appeal approved the approach to the burden of proof set out by the EAT as being as follows:- “1. Has the Claimant shown that there is a real issue as to whether the reason put forward by the Respondent, some other substantial reason, was not the true reason? 2. If so, has the employer proved his reason for dismissal? 3. If not, has the employer disproved the Section 103A reason advanced by the Claimant? 4. If not, dismissal is for the Section 103A reason.” The same paragraph goes on to note that: “it is not at any stage for the employee (with qualifying service) to prove the Section 103A reason.”

[16]However I take particular note that the burden of proof is on the claimant in this application.

The relevant facts

[17]Although it is not the function of the Tribunal when considering this application to make findings of fact, some background information is required to put the case into context. I was referred to many documents by the claimant and respondent’s representative in their submissions, which I have read. The relevant facts as I saw it are briefly as follows: 17.1. The claimant was until 26 May 2018 employed by the respondent (a business which he himself founded in April 2011) latterly as Strategic Adviser having formerly been its Chief Executive Officer (“CEO”). 17.2. The respondent is a mobile tyre fitting company, which allows customers to book online or by telephone to have new tyres fitted/punctures repaired at a location of their choice. It has around 200 employees. 17.3. In December 2016 the claimant stepped down as CEO but stayed on in the capacity of Strategic Adviser. The claimant alleges he was pressured to step down by the investors, and the respondent acknowledges that some of its investors were indeed reluctant to have the continued involvement of the claimant in the business from December 2016 onwards. He remained a major shareholder in the respondent. A settlement agreement was signed at this time. What exactly the claimant’s role was to entail seems to have been the subject of some dispute and there were a number of outstanding matters relating to the settlement agreement, the claimant’s shareholding in the respondent and the on-going employment of the claimant. 17.4. One advantage suggested by Mr Braier to the on-going employment was that this projected externally a happily mutually agreed parting of the ways and a smooth transition. What is clear is that whatever the perception externally, this was clearly not the case and the relationship was strained from this point. 17.5. Both parties agree that perhaps the main reason for the continued employment of the claimant was that he needed to remain so employed to take advantage of entrepreneurial tax relief. It is not clear how long the arrangement was to continue. In March 2017 the respondent appointed Ray Fernandez as interim CEO. 17.6. The claimant relies on having made a total of six protected disclosures between April and November 2017. Details of the alleged disclosures are set out in the claimant’s amended ET1 and the claimant’s witness statement; where documents exist, copies are in the Bundle. The alleged disclosures can be summarised as follows: 17.6.1. Disclosure on 24 April 2017 relating to an alleged discriminatory attitude towards female customers (p 1-7 of Bundle); 17.6.2. Disclosure on 24 April 2017 regarding a potential breach of data protection relating to a well known client of the respondent (p 4-6 of Bundle); 17.6.3. Disclosure on 27 July 2017 relating to some faults/failures in safety standards noted by the claimant when the respondent was carrying out repairs to the claimant’s BMW car (p 12 of Bundle); 17.6.4. Disclosure on 13 August 2017 re failure to comply with safety standards (p 23-25 of Bundle); 17.6.5. Disclosure on 6 November 2017 to board members about the same matters and an issue with the maintenance of a car jack (p 85 of Bundle); 17.6.6. Disclosures made at a meeting on 22 August 2017 between claimant and Mr Fernandez of the respondent followed up with a dossier, which was presented to the respondent the next day 23 August 2017 (p 28-63 of Bundle). A number of matters were raised here in particular: i. that an issue of shares was prejudicial to the rights of shareholders and contrary to the Articles of Association of the respondent; ii. that the respondent traded as insolvent whilst failing to inform shareholders; and iii. that the respondent’s board were making decisions on pay with regard to the female members of its staff and the board that were discriminatory on the grounds of sex. Mr Braier confirmed that this paragraph 17.6.6 was his strongest case relating to protected disclosures and the reason for dismissal. 17.7. The respondent accepts that all the above were protected disclosures so I do not need to examine the details of the disclosures too much further than this. 17.8. During August and September there were a large number of e mails between the claimant and Mr Fernandez and/or Mr Macfarlane of the respondent, which both parties drew my attention to in part during their submissions. The chronology was not entirely clear from the Bundle but in particular I was referred to e mails from: 17.8.1. Mr Fernandez to Mr Macfarlane forwarded to the claimant by Mr Fernandez dated 4 August 2017 (p 25 of Bundle); 17.8.2. The claimant to Mr Macfarlane dated 13 August 2017 (p 23-25 of Bundle); 17.8.3. Mr McFarlane to the claimant dated 15 August 2017 (p 22 of Bundle); 17.8.4. The claimant to Mr Fernandez dated 23 August 2017 (enclosing the dossier referred to above) 17.8.5. Mr Fernandez to the claimant of 4 September 2017 (p 75 of Bundle; 17.8.6. The claimant to Mr Fernandez dated 11 September 2017 (p 73-74 of Bundle) where the claimant listed “the main issues relating to my employment and issues with my settlement and employment contracts” and then went on to set out 13 numbered points 17.9. The claimant met with Mr Fernandez in September 2017 and the claimant followed this up with an e-mail on 25 September 2017 (p 77 of the Bundle). There were some further short e-mails between the claimant and Mr Fernandez with the claimant chasing up a response and Mr Fernandez explaining that a response would be forthcoming (p 78-79). The respondent responded substantively to the points made in an e-mail from Mr Fernandez to the claimant dated 3 November 2017 (p 80-83 of Bundle). 17.10. In this e mail the Mr Fernandez stated “ “ I am now able to confirm that it is not the case as you alluded to at our meeting, that the Board is seeking to end your employment. However, as you will appreciate, the role of Strategic Adviser has not been utilised in the way it was originally anticipated when it was created for you last year. The Board has therefore had to consider whether or not this role is viable going forward and as things stand, it appears that it is not. It is therefore possible that the role of Strategic Adviser may be at risk of redundancy in the near future – a decision has yet to be made on that. However as part of our commitment to you to and to assure you that we value your input and want you to remain within the business, I would like to discuss with you a change in role which would ensure you retained continuity of employment (I understand that this is important for you to continue benefitting from entrepreneurs relief) and would provide you with a more pro-active role within the business” The letter then goes on to state: “However, you will appreciate that in order to allow both sides to more forward, we would need an assurance from you (in the form of a legally binding agreement) that a line has been drawn under the last 12 months, particularly in terms of the threat of litigation from you. It is simply not possible for us to move forward and continue working with you, with the constant threat of litigation in the background.” The letter went on to respond to a number of the outstanding queries raised by the claimant, numbered 1-9, which seem to correspond to some of the 15 numbered points raised in the claimant’s e-mail of 11 September (see 17.8.6 above). 17.11. The claimant e-mails Mr Fernandez on 19 November (p 93-94 of the Bundle) requesting access to files, e-mail and also to be able to recover his physical property and states that he will take action for recovery through the courts if this is not done. 17.12. As the above summary demonstrates, there are many disputed facts relating to the on-going discussions and disputes on many different levels between the claimant and the respondent after the settlement agreement was entered into. I make no findings to resolve these factual disputes. At the full hearing a Tribunal will have to make findings on a number of these matters. 17.13. The respondent writes to the claimant on 5 December (p 96-97 of the Bundle) confirming that he is at risk of redundancy. It stated: “we have not needed to seek your advice on strategy at all over the course of the last 12 months and for that reason, I write to confirm that the role is now formally at risk of redundancy” The letters goes on to set out details of the consultation process that will be followed and states that an independent HR adviser will be appointed to assist with the process. The letter also stated: “As you are aware in your role of Strategic Adviser, you are required to provide advice as and when required. For the avoidance of doubt, if evidence emerges that you are continuing to work during the consultation period, in particular with Halfords, we will treat this as a disciplinary matter. “ 17.14. The consultation period then ensued and there was initially a meeting on 14 December, the notes of which were set out at page 103-109 of the Bundle. During this meeting, the claimant challenges the respondent as to whether it is a genuine redundancy situation. He also asks whether the fact that he has made protected disclosures is the reason why he was being made redundant which is denied by the respondent: “DCL- With regard to the issues I have raised that amount to protected disclosure. Is this the reason why the business wants me out? It is because I’m holding the business accountable? RF-The issues you have raised with regard to corporate governance has nothing to do with this process.” 17.15. There was further e-mail correspondence between the parties following this meeting. The claimant complains at the meeting and following this about the redundancy consultation process adopted by the respondent and the way that it was carried out alleging that it is a “sham” and that it had closed its mind to the outcome of the consultations. He also complains about the way the search for alternative employment was handled and in particular that he was not interviewed for any role he applied for, even those roles that were well below his ability (such as call centre operative). I make no comment on the quality of the redundancy consultation process generally as it is not directly relevant to the issues I have to determine. These will be relevant for the main hearing of the claimant’s complaint for unfair dismissal. The key issue in this application is the reason for the dismissal of the claimant and it is only if these matters shed any real light on showing what the reason might be that they are worthy of comment or full consideration at this stage. 17.16. A further consultation meeting took place on 4 January 2018 attended by the claimant, Mr Fernandez, Ms Cuddy the HR representative and Ms Atkinson Williams, who was the claimant’s representative. Minutes of this meeting were at pages 148 A-J of the Bundle. Mr Braier referred me to page 148F of these meeting minutes, where Mr Fernandez states about the claimant: “you have berated the company , and its employees and I’m not sure that would be considered strategic advice. I advised you that I don’t and haven’t had the need for strategic advice as our focus is on operational improvement” Mr Searle referred me to page 148G where there was an exchange between the claimant and Mr Fernandez as follows: DCL- It was agreed that I would remain and employee, give strategic advice and be the face and founder of the business. I would then be able to benefit from the Entrepreneurs Tax Relief, I don’t know why you are now breaking that. DCL – Ray I feel sorry for you that the people who made the agreement have now gone back on what was agreed without paying me for it. DCL- My role hasn’t changed so there is no redundancy. The role is similar to a Fire Warden. Just because you don’t get called doesn’t mean the role is redundant. RF- And you would expect this arrangement to go on forever, providing no contribution to the business? The Company pays you a salary of £120,000 per year. As an investor/shareholder you would expect to see value and contribution in that role. What would you expect the role to be in existence for?” 17.17. The meeting was acrimonious and ended early. There was again further e-mail correspondence between the claimant and the respondent where a number of allegations were made, the claimant again stating that the respondent had failed to respond to his protected disclosures. The claimant applied for a number of positions within the respondent but was unsuccessful in these applications. The remaining consultation process was conducted in writing. The claimant was issued with notice of redundancy on 23 February 2018 confirming that his employment would end on 26 May 2018 and would be placed on garden leave until this date. The claimant appealed against his redundancy on 26 February and an appeal meeting was held on 22 March 2018, the notes of such meeting being at p175A-175G of Bundle. His appeal was rejected by a letter dated 26 March 2018 (p176-179 of Bundle). Submissions

[18]I considered in detail the written skeleton argument of the respondent. In addition, in oral submissions Mr Braier makes reference to the case of Kuzel v Roche (above) regarding the burden of proof when considering whether the reason (or principal reason) for the dismissal is that under s 103A. He submits that 18.1. It is for the employer to show that it had a fair reason for dismissal and that the reason for not some other reason and potentially fair; 18.2. Next the claimant must call some evidence to suggest that there is a different and inadmissible reason (e.g. making protected disclosures); 18.3. The tribunal hearing the case then needs to make findings of primary fact and draws inferences to decide what was the reason bearing in mind that the employer has the burden to show it has dismissed for a potentially fair reason; 18.4. If the tribunal is not satisfied that the employer has discharged the burden it is open to it to find that it is for the reason the employee asserts (although it is not compelled to do so).

[19]He then goes on to submit that the likelihood is that the tribunal hearing this case will be dissatisfied that redundancy was the reason for dismissal and accordingly go on to find that the sole of principal reason for the dismissal was the protected disclosures, noting that it only needs to be “a protected disclosure”. He therefore argues that the claimant is able to show that he has a pretty good chance of succeeding

[20]He submits that the redundancy came out of nowhere and no evidence has been adduced of minutes, plans or correspondence or of any analysis as to explain why on 5 September the claimant was notified that he was at risk of redundancy. He points to the timing of various events, including the fact that the claimant made disclosures from April 2017 up to August 2017, but when a formal response came in November 2017 he was told that there would be a risk of redundancy. He points out that the formal redundancy came just four weeks after the last protected disclosure of the claimant.

[21]Mr Braier submits that the potential redundancy (and offer of potential new role) was used as leverage (both stick and carrot) to try and attempt to get the claimant to sign a binding agreement in relation to any outstanding claims.

[22]The redundancy process itself is alleged to be a predetermined sham. Mr Braier relies on the lack of any documentation submitted at the hearing today which show how this decision was reached and then points to the various flaws which he submits show the process was a sham. In particular I was directed to the manner in which the possibility of the claimant obtaining alternative employment was dealt with as showing that this was not a good faith attempt to find alternative employment and avoid a redundancy.

[23]Mr Braier then submits that all of this taken together suggests that the claimant’s case exceeds the likely to succeed threshold and it is likely that the tribunal will find that on the facts that the reason for the dismissal was the making or protected disclosures.

[24]He made the further point that as to the argument by the respondent that there could be another reason for the dismissal as well as redundancy that there is no documentation adduced by the respondent to suggest that this was the case. The grounds of resistance had not been submitted as yet (nor was it required to be) but if this were being alleged, he suggests that a draft ET3 should have been submitted setting this out

[25]Mr Searle for the respondent did not submit a skeleton argument and says that one reason for this is that in this application the respondent is not required to prove anything. He then took me to various documents in the Bundle, which he says shows that the application has no merit. He made reference to the case of Wollenburg (above) and refers to paragraph 25 and states that in his submission an application for interim relief does not require the claimant to show that he is more likely to succeed than not on the particular allegation but requires a “significantly higher degree of likelihood” and that he has a “pretty good chance” of success. He contends that the reason this application has been made today is that the claimant needs to be employed by the respondent to claim tax relief and suggests that the dismissal has nothing at all to do with protected disclosures. He submits that the applications under section 129 are really for those situations where there is credible evidence that the employer has dismissed for reasons related to protected disclosures. He made reference to examples of cases where there is an immediate dismissal after a disclosure was made and also where there is a “smoking gun”. Mr Searle suggests that this is not the scenario here. He acknowledges that at the trial for unfair dismissal, the respondent will have the burden of proof. He also indicated that the reason for dismissal that is likely to be asserted by the respondent is redundancy, albeit that there is likely to be a subsidiary argument that in the alternative the dismissal was for another substantial reason, namely the irretrievable breakdown in the relationship.

[26]In persuading me to conclude that the true reason for dismissal was redundancy, Mr Searle points out that the respondent had gone through a full redundancy process with the claimant, and that the claimant on his own case agreed that in 18 months he was never called upon by the respondent to do any work. His role was unique, was created for him and was largely a vehicle for tax relief it is said.

[27]I was referred to page 22 of the Bundle, which Mr Searle suggests shows that on 15 August the respondent had replied to the claimant in relation to his protected disclosures and they were dealing with these by investigating the matters. I was referred to page 25 of the Bundle where the respondent’s response a shown and attached a report of the investigation (which I believe to be page 26) he argues that this was a sensible approach. I was invited me to draw inferences that this showed that the respondent was not trying to “do the claimant in” or dismiss him because of his protected disclosures.

[28]I was then referred to page 64 of the Bundle, which was an e-mail from the claimant to Mr McFarlane where the claimant asks about how his employment issues are being dealt with. He then refers me to page 73 of the Bundle where again the claimant raises issues with the settlement agreement he signed a year earlier. The respondent points out that the issues being raised here are nothing to do with protected disclosures but was related to his on-going employment dispute and his exclusion from the running of the business.

[29]I was then referred to page 77 of the Bundle where the claimant follows up on a meeting held between Mr Fernandez and himself on or around 22 September. Mr Searle suggested that this is evidence that at this stage the employment relationship is not going well and this has nothing to do with any protected disclosures. Mr Searle submits that the dispute at this stage related to employment issues and those are they that are listed at points 1-14 in the e-mail from the claimant of September 11 (page 73). He points to the e-mail of 30 October from the claimant at page 78 and again notes that there is nothing about protected disclosures here. The respondent also contends that the e mail from the respondent to the claimant of November 3rd at page 80-83 also backs up the suggestion that the dismissal of the claimant was not related to protected disclosures as this letter is dealing with the various employment issues raised by the claimant, not the issue of protected disclosures.

[30]Mr Searle submitted that the letter issued to the claimant which notified him of his potential redundancy sets out clearly the basis for the redundancy situation arising, namely that the respondent had not needed to seek the advice of the claimant at all in the 18 months he had been doing the role. He also states that the letter at page 97 clearly shows that the respondent was not happy with something that the claimant was doing with Halfords. He goes on to point out that during the final consultation meeting with the claimant it is clear that the main complaint that the claimant has is that the settlement agreement he signed has been reneged upon and that Mr Fernandez at this time makes it clear that it did not see any value in the claimant’s current role continuing. He also then submits that in the claimant’s appeal against redundancy meeting held on 22 March 2018, the claimant stated that the last good month the company has was October 2016 and also himself acknowledges since that time the company had “never called on my services to help resolve a lot of those issues” .

[31]He invited me to dismiss the application for interim relief contending that the claimant’s dismissal had nothing to do with protected disclosures and that the claimant’s need to be in employment is why the application has been made at all.

Conclusion

[32]I considered carefully all the submissions made by Mr Braier for the claimant but on balance, I preferred the respondent’s submissions and I have reached the conclusion that it is not likely that the claimant can show at trial that the main or principal reason for dismissal was that the claimant had made protected disclosures. I remind myself that it is not sufficient that the employee is able to establish that “it is likely” they were otherwise unfairly dismissed, i.e. for other reasons. They must be able to show that it is likely that it will be found that they have been dismissed for the sole or the principal reason of, in this case, having made a protected disclosure.

[33]I considered the submission of Mr Braier on the burden of proof that will be applicable to the tribunal hearing this case where the reason for dismissal is alleged to be that protected disclosures have been made. Whilst this has been of assistance, I have no doubt that further evidence of what the reason for the dismissal actually was will be explored further at the final hearing. On the information I have seen to date, and without any evidence being adduced by the respondent as to the true reason for dismissal, I do not accept that the claimant has a pretty good chance of being able to show that the respondent dismissed him for the making or protected disclosures. There were many other factors at play that led to the dismissal of the claimant. The relationship between the claimant and the respondent was not a good one and had deteriorated after the claimant agreed to step down from his role in 2016. There was an allegation that the settlement agreement reached between the parties had been breached. The claimant had many complaints about his on-going employment situation, access to data, documents and his property. He remained a shareholder and had many complaints about the way that the respondent was running the business in which he held a significant stake. An element of this complaint formed part of the protected disclosures raised, but my impression was that claimant was largely aggrieved by the way he felt he had been excluded from the business he had set up. The disclosures he made seem to be of less significance, even to the claimant himself, than these other matters in dispute between the parties.

[34]The respondent would appear to have been motivated by factors other than the disclosures the claimant made. There is evidence that the respondent took steps to investigate and address the matters raised by the claimant, in particular those relating to safety and standards. The disclosures made in relation to corporate governance in particular the share issue would appear to have been more relevant to the interests of the claimant as a shareholder and arising out of his frustration around being unable to influence the direction of the business. I found to be compelling the conversation between the claimant and Mr Fernandez on 4 January 2018 when the claimant’s and Mr Fernandez’s frustrations with the situation were revealed. The claimant was largely aggrieved that he felt that his settlement agreement had not been honoured. Mr Fernandez of the respondent was aggrieved that the claimant remained employed at an annual salary of £120,000 having not, in his view, contributed to the company.

[35]There is reference in the various e-mail correspondence and the meeting notes to the protected disclosures made. Mr Braier points to the timing of the disclosures made and the decision to instigate a redundancy process. However I fail to be convinced that this is particularly instructive as there were various other issues in dispute and being discussed in correspondence throughout this period. I do not see that this particularly persuades me that making the disclosures was the primary reason why the respondent chose to terminate the claimant’s employment.

[36]Much was made of the “carrot and stick” approach made by Mr Fernandez to encourage the claimant to reach an amicable settlement on the matters of dispute. However I do not see that this sheds light on whether or not the reason for dismissal is the protected disclosures. There was so much in dispute between the parties at this time as well as the fact of disclosures having been made, and it does not appear to me that the possibility of litigation on the consequences of protected disclosures was particularly what the respondent had in mind at the point of writing this letter.

[37]It is to be remembered that other than the submissions made at the hearing, we have not heard from the respondent yet as to what its case is. Mr Searle gave an indication today that it is likely to contend that the dismissal was on the grounds of redundancy and/or some other substantial reason namely that the employment relationship had irretrievably broken down. There are certainly documents that were pointed out to me that would support both of these contentions. Mr Braier points to the lack of evidence adduced as evidence that redundancy had been concocted from nowhere as a pretext for a dismissal for making protected disclosures. I am not persuaded that the documents show that this is the case. A Tribunal of fact may well come to this conclusion but the evidence will have to be examined in full at the merits hearing, but at this interim stage, I do not believe it is likely that the claimant will be able to establish this.

[38]As to suggestions of the redundancy consultation process being a sham, this is a matter that is directly relevant to the claimant’s complaint for unfair dismissal under s 94 of the ERA. Procedural failings alleged by the claimant will no doubt be explored in detail at the final hearing to determine whether a dismissal was fair in all the circumstances. The claimant may have raised these to invite me to draw inferences on the motive for dismissal. However I am not prepared to draw that inference here. This did not assist me in determining whether the claimant’s dismissal was likely to be found to be for making a protected disclosures.

[39]I also do take note of the common ground between the parties that it was crucial to the claimant for tax purposes that he remain employed by the respondent. This would appear to be the prime motivation for the claimant’s on-going role as an employee in the respondent’s business.

[40]The key issue that is going to have to be decided by the tribunal in the full unfair dismissal complaint is what the reason for the dismissal was. There are conflicting reasons put forward by the claimant and the respondent, which a tribunal will need to decide upon having heard all the evidence. Detailed application of the burden of proof provisions applicable can only take place at a full merits hearing when the facts have been properly found.

[41]It is not a case where I am able to conclude that the claimant has a pretty good chance of succeeding in this particular element of his claim as the weight of evidence I have seen does not point to this conclusion. On a broad assessment of the facts as I see them, I do not conclude that there is a significantly higher degree of likelihood than just a balance of probabilities chance that the claimant will show that his dismissal was for having made protected disclosures. I am conscious that I must avoid making findings that might tie the hands of the tribunal ultimately charged with the final determination of the merits, but my impression is that dismissal is not likely to be found to be for the reason or principal reason that protected disclosures were made.

[42]The application for interim relief is therefore rejected. Directions for further conduct of the case

[43]The respondent is due to submit its response to the claim by 9 July 2018 and that this timescale should remain as it is.

[44]I have determined that it would be helpful to list a telephone closed preliminary hearing for this case so that the issues can be further clarified and directions can be made for future conduct of the case. The parties will be notified separately of when this will take place.

The Facts

[1]The Claimant set up the Respondent Company in 2011 and was founder, shareholder and Chief Executive from that point.

[2]Over the years the Respondent grew quite rapidly and needed new investors from time to time which significantly diluted the Claimant’s shareholding.

[3]It was the Claimant’s evidence that difficulties in his relationship with certain board members and shareholders started in around April 2016, by which time he was a minority shareholder, albeit still the Chief Executive.

[4]Those difficulties, coupled with very challenging financial circumstances, led to a proposal later in the summer and early autumn of 2016 for the claimant to step down as the Chief Executive Officer and negotiations commenced in relation to how best to achieve this.

[5]It appears that, at around this time, following certain pay reviews, the Claimant raised a possible equal pay issue in the company, albeit one that must have arisen during his tenure. However, this was not a protected act or disclosure relied upon and so the claimant’s motive for raising it was not explored.

[6]During the negotiations about the claimant stepping down, the Claimant obtained a recording of a meeting of certain members of the executive and board. The recording seemingly illustrated both a potentially unprofessional response to some of the pay issues and also a clear, preexisting desire on the part of the Board to remove the Claimant. The Chairman, for example, described removing him as “a key deliverable”.

[7]The Claimant was suspended on account of using the recording, albeit he suggested there were other reasons. It may well be that both sides were playing games in the context of the ongoing negotiations.

[8]The negotiations continued and, ultimately, they resulted in a settlement agreement that provided for the Claimant to step down as Chief Executive and from the Board and, indeed, from any executive role.

[9]The only real consideration for the claimant waiving his rights at that stage was that he was offered the opportunity to remain, notionally at least, as an employee. He was to be a “strategic adviser” working one day per month in return for a salary of £120,000 per year.

[10]The new arrangement was stated to be for a minimum period of one year and the settlement agreement waived all claims up to the date of the agreement and, indeed, attempted to waive future claims as well. The total value of the package, therefore, exceeded the Claimant’s potential entitlements were he to have been dismissed and claimed unfair dismissal at that stage.

[11]We found that the settlement agreement could not operate to waive future claims based on disclosures that had not, at that stage, even been made. That said, the agreement clearly anticipated a future termination of the claimant’s employment.

[12]The principal, if not the sole, reason for this settlement structure was so that the Claimant could remain employed by the Respondent. He was endeavouring to sell his shares and, if he remained employed, he would have been able to claim entrepreneur’s tax relief, potentially worth almost £1million.

[13]It seems likely that this structure must have been proposed by his advisors as there was no obvious benefit to the Respondent who, as already indicated, appeared keen to remove the Claimant completely. That said, the Claimant may have wanted to remain involved and indeed the Respondent may have needed him to assist in relation to securing certain future funding investments.

[14]With the benefit of hindsight, and given the contents of the recording and settlement agreement, it seems likely that the Respondent had no intention of actually using the Claimant for strategic advice.

[15]Following the settlement agreement, it was confirmed in a general email in January that the Claimant had stepped down from the Board and relinquished all day-to-day executive responsibilities.

[16]In April 2017, the Claimant emailed the Chairman of the Board requesting a meeting regarding his settlement agreement. The claimant also highlighted certain inappropriate activity on social media by a couple of employees. The issues appeared to relate to overtly sexist posts and a potential breach of the Data Protection Act.

[17]It was acknowledged that these amounted to protected disclosures and, indeed, the one in relation to sexism was also to a protected act for the purposes of the Equality Act 2010.

[18]The contemporaneous evidence showed that the Respondent was grateful that the Claimant had raised these important issues and, shortly thereafter, they took disciplinary action in relation to the two individuals whose social media activity had been highlighted. Ultimately both were dismissed.

[19]That said, we did hear that one of them was potentially re-employed some months later.

[20]There was no evidence that Mr Fernandez, who ultimately became the Respondent’s new CEO, was aware of these issues. Mr Fernandez, at the time of these disclosures, had only just been engaged to provide consulting advice to the Respondent but had not been taken on as an employee.

[21]At around the same time, there was an email from a member of the board confirming the importance of addressing social media issues. The same email also referenced an earlier discussion about “disruptive investors”. It was not clear what the context of that reference was, nor to whom it related.

[22]The Claimant suggested that it must have been a reference to his disclosures but the language did not seem to bear that out. The disclosures appeared to be welcomed and the reference to disruptive investors was plural.

[23]The company felt the need to “monitor” and show “zero tolerance” to some activities they viewed as disruptive but it seems to us that this must have been a reference to something else.

[24]On 27 July 2017 the Claimant raised by email a number of concerns about the performance of the Respondent. The relatively lengthy email was primarily about finances and business operations and also evidenced a considerable ongoing discontent on the part of the Claimant about having to step down from his executive responsibilities.

[25]The email also included a safety concern that the Claimant raised in relation to some work that had been done on his own tyres by an employee of the Respondent. Again, it was admitted on the part of the Respondent, that this part of the communication amounted to a protected disclosure.

[26]Mr Fernandez was employed by the Respondent in or around August 2017 and, shortly thereafter, became the Acting Chief Executive Officer and subsequently the Chief Executive Officer.

[27]The Claimant’s July concerns were, therefore, passed to him. He appeared, both at the time and before us, grateful for the safety issues having been raised. He understood the importance of such matters to the future of the Respondent’s business.

[28]He carried out an investigation and responded to the Claimant.

[29]On 13 August 2017 the Claimant emailed Bruce MacFarlane in response to this response effectively giving further detail around his safety concerns.

[30]It may be that there had been some initial misunderstanding on the part of Mr Fernandez, who we understand had not worked in the tyre industry before. Nonetheless, the Claimant’s concerns were again gratefully received and resulted in a full safety and training review the next month.

[31]No action was taken against the individual concerned as he had flagged a safety issue and it was a unique circumstance given he was working for the founder of the business and, when asked, Mr Clarke had not followed up to suggest that he thought disciplinary action was appropriate.

[32]It seemed to us, from the evidence of Mr Fernandez, that whenever genuine Health & Safety issues were raised by the Claimant they were gratefully received. He fully understood that, for a business such as this, safety was paramount.

[33]The Claimant emailed Mr Fernandez on 20 August 2017 attaching a list of issues to be discussed as they had agreed to have a meeting. Those issues were primarily in relation to business performance and operations but also included certain shareholder and employee issues.

[34]The meeting between the Claimant and Mr Fernandez took place on 22 August and we heard that it was a lengthy and positive meeting.

[35]At that stage Mr Fernandez was unaware of the Claimant’s specific circumstances. He did not know that the Claimant was still being treated as an employee. This, perhaps, further suggests that the Respondent did not require any strategic advice from the Claimant and his ongoing relationship with the company was little more than an arrangement for the purposes of tax and the settlement agreement. As a result it hadn’t been deemed necessary to inform Mr Fernandez about the Claimant’s circumstances.

[36]Nonetheless, at the August meeting, amongst many other issues, it was suggested that further disclosures were made. It is not entirely clear what the precise contents of the meeting were but, ultimately, the Claimant followed it up with a very lengthy dossier of his issues that ran to over forty pages with enclosures.

[37]Within that dossier there were certain protected disclosures as alleged and indeed an alleged protected act. The evidence of Mr Fernandez was that he didn’t actually read the dossier which, at first, sounded surprising.

[38]There was a further meeting between the Claimant and Mr Fernandez in September 2017.

[39]It appears that Mr Fernandez established that the Claimant was treated as an employee and the nature of the arrangement. Specifically, that the claimant was to provide one day’s work per month for £120,000 per annum giving strategic advice.

[40]Mr Fernandez swiftly formed the view that, with the company remaining in very difficult financial circumstances, such a role was unlikely to be sustainable. He was unaware of the Claimant having been called on to provide any strategic advice and it was clearly a very significant sum of money for which the Company did not seem to be getting much in return. That is not surprising given the origin of the arrangement.

[41]Having established this Mr Fernandez emailed the Claimant to inform him that it may be necessary to put his role at risk of redundancy. At that stage, however, he was looking to find a way to keep the Claimant on. He suggested that, in conjunction with the Board, he was contemplating the potential for a role of Franchise Advisor to look at the possibility of opportunities in Europe to franchise the Respondent’s business.

[42]It was stated in that email that, in order to progress this possibility, the Respondent would require a legally binding agreement with the Claimant to resolve any outstanding threats of litigation. In terms of what that may have meant, the parties seemingly agreed that the principal threat of litigation was that of the Claimant, as shareholder, complaining about alleged breaches of the Companies Act and/or the Articles of Association of the Company.

[43]On 6 November 2017, the Claimant emailed the Board of the Respondent to chase a response to some of his earlier safety concerns and also to raise a further issue about a failed jack that he had again discovered on social media.

[44]Again, it appears, that this email was gratefully received by Mr Fernandez and indeed a detailed response to the earlier safety concerns was provided the same day. That appeared to further confirm that the issues had been taken seriously and various changes had been implemented in September, albeit it appears that the Claimant had not been informed of this at the time.

[45]On 19 November 2017, the Claimant raised a threat of litigation over the return of his personal property and generally complaining in relation to his access to the office and office systems. He said he had been denied this for around fourteen months.

[46]On 21 November 2017, Mr Fernandez emailed the Claimant answering several points that had been raised in respect of his employment and to state that he considered the matters raised to be closed.

[47]On 23 November 2017, the Claimant turned up at the Respondent’s office uninvited. Mr Fernandez met with him to discuss access to the office and certain documents. The claimant covertly recorded that meeting.

[48]Mr Fernandez also raised the potential redundancy situation. The Claimant acknowledged in that meeting that the potential for a franchise role was “a tall order” and suggested that perhaps the vacant marketing role might have been more suitable for him, although he had not raised this before.

[49]Unaware he was being recorded, Mr Fernandez expressed an initial view on the Claimant’s suitability for that role. He felt that the claimant would not be able to demonstrate the skills and experience that the Respondent had been seeking for some months. We heard that the Respondent was particularly seeking up-to-date experience in digital marketing to take the company to the next level.

[50]At some point prior to 5 December 2017, it appears that the Respondent appointed Deborah Cuddy to provide independent HR advice for the process they were about to instigate in relation to the potential redundancy of the Claimant.

[51]It appears that the first emails Mr Fernandez sent to her included the Claimant’s dossier from August and another email of his complaints and concerns. The evidence of Mr Fernandez was that this was merely as background. We note that those documents were not initially disclosed.

[52]The Claimant suggested that these emails suggested that part of the reason for his potential redundancy was that he had raised these issues and the concerns included, albeit in a relatively minor part, certain protected disclosures.

[53]As stated the Respondent’s evidence was that this was merely background. We would accept that it is good practice in circumstances such as this to provide an HR advisor with such background information. As a result it doesn’t necessarily prove any causal link between any disclosures therein and the subsequent treatment.

[54]On 5 December 2017, Mr Fernandez emailed the Claimant with a letter formally putting his role at risk of redundancy.

[55]On 14 December 2017, the Claimant attended the first consultation meeting. These meetings were held at the offices of the Respondent’s lawyers. They felt that this may be a more neutral and independent location although the Claimant did not agree.

[56]It appears that, at this stage, the franchise role was still a possibility, but, as mentioned, the Claimant seemingly felt the marketing vacancy may have been more suitable.

[57]On 19 December 2017, Deborah Cuddy emailed the Claimant with the Respondent’s current vacancy list and asked for expressions of interest by 22 December. That was a very short timescale that was ultimately extended.

[58]There was also a board meeting in December, albeit those minutes were, again, not initially disclosed. They appeared to show that the Respondent was, at that stage, looking for someone to be ready to hear the Claimant’s appeal if he was ultimately made redundant and, indeed, did appeal. It was suggested that this may have indicated a level of prejudgment on the part of the Respondent.

[59]On 2 January 2018, Deborah Cuddy emailed the Claimant with an updated vacancy list and gave a deadline of 3 January for applying for the Head of Marketing role.

[60]On 3 January 2018, the Claimant expressed interest in that role and asked for help in obtaining his CV from the work systems. That was seemingly not provided and there was some evidence to suggest that Mr Fernandez felt that the Claimant not providing a CV at that stage may have provided an excuse for not taking his application further.

[61]In any event, the Claimant then worked during the afternoon and early evening to prepare a new CV and sent it in that evening.

[62]On 4 January 2018 the Claimant attended a second consultation meeting. By this stage it appeared clear that the franchise role could not be created due to the Respondent’s finances and it was not something that the investors would support.

[63]It was suggested that the Claimant would be put forward for the marketing role. Ultimately the meeting became quite heated and the Claimant left.

[64]Again we reviewed emails that were disclosed late. It appears that Deborah Cuddy suggested to Mr Fernandez, following that meeting, that they had agreed that Mr Fernandez was going to redact the Claimant’s CV to get a view from the recruiter as to whether he would have put the Claimant forward for interview. She went on to say that this would become the basis for refusing an interview and that she felt that this would satisfy a Tribunal that they had properly considered the Claimant for the role. Again it was suggested that this indicated a level of prejudgment.

[65]Ms Cuddy went on to say that as soon as the Respondent could get this information, they could close down the recruitment process.

[66]Mr Fernandez did send the claimant’s CV to the recruiter asking for an independent view, albeit he had redacted the Claimant’s experience from his time at the Respondent to, it was said, preserve his confidentiality. Of course this meant that the last seven years, which would have included significant marketing experience and indeed some digital marketing experience, were omitted.

[67]Whilst we can understand why Mr Fernandez may have wanted to redact the CV to keep the Claimant’s identity anonymous, it did render the exercise somewhat meaningless.

[68]It appears us that the Respondent and Mr Fernandez did not fully understand the Claimant’s marketing experience. It also appeared that, whilst the Respondent suggested that they had engaged in some sort of recruitment freeze while the consultation was ongoing with the Claimant, this was not necessarily the case.

[69]We saw evidence of a couple of applications from December 2017 that ultimately led to an appointment decision of an external candidate in January 2018. That was a Mr Eden whose CV disclosed what appeared to be significant experience of digital marketing at a senior level.

[70]The Claimant provided written submissions as part of the consultation process on 16 January 2018 and he indicated a willingness to undertake any of the Respondent’s vacant roles which went right down to vacancies for tyre-fitters.

[71]His submissions were considered and a fairly detailed response given about why the Respondent did not believe any of those other vacancies were suitable.

[72]As a result, and having agreed to deal with the last aspect of the consultation process in writing, the Claimant was given notice of dismissal on 23 February 2018.

[73]He appealed that decision and the appeal took place on 22 March 2018.

[74]The dismissal was upheld on the 29 March 2018.

[75]Having been placed on garden leave the Claimant’s effective date of termination was 26 May 2018.

[76]He issued proceedings shortly thereafter, unsuccessfully claiming interim relief.

[77]We only heard oral evidence from the Claimant and Mr Fernandez. We had to base our knowledge and understanding of the decisions of the board on the evidence of Mr Fernandez, including from a time when he was not involved with the company, and the documents that were placed before us.

[78]In relation to the documentation, it was clear that a number of material documents were not disclosed until the early stages of the Hearing before us. Mr Fernandez’s evidence was that he had provided all documents to his solicitor who was present and did not recuse himself.

[79]It seems to us clear that at least some of the documents that ultimately came before us had been provided to the solicitors. They had made reference in some correspondence to the documents adding nothing which suggests that they must have been reviewed. Some of those documents were clearly relevant and should have been disclosed. That is potentially a serious matter and we are mindful of the possibility of drawing adverse inferences from this. The issues and the law

[80]Those are the outline facts as we have found them.

[81]The issues in this case had been agreed between the parties and are annexed to this judgment, as is the relevant law.

[82]The issues were significantly narrowed before us.

[83]In short, the Claimant was claiming unfair dismissal under ordinary principles and also automatic unfair dismissal for having made protected disclosures i.e he was contending that the principal or sole reason for his dismissal was those disclosures.

[84]A number of disclosures were identified and the Claimant was also alleging detriments as a result of these disclosures.

[85]In addition he was claiming victimisation on the basis that a couple of those disclosures were also protected acts under the Equality Act 2010 and it was suggested that the same detriments flowed therefrom also.

[86]The parties were largely in agreement on the legal issues and the manner in which we should approach the issues before us.

[87]In short, regarding the whistleblowing detriment claims, there must be a material link between any detriment and the protected disclosures and it is for the Respondent to show the reason for the treatment in those circumstances.

[88]Regarding the dismissal, the disclosures must be the sole or principal reason for the dismissal.

[89]In relation to the victimisation complaints the Claimant must make out a case from which we could conclude that the detriments, including dismissal, flowed from the protected acts before the burden would shift to the Respondent to show that the protected act played no part whatsoever in the treatment.

[90]The unfair dismissal complaint raises fairly well established principles about the matters which we should consider including whether there was a genuine redundancy situation, an appropriate pool and a fair selection process. In addition, whether the employee was given fair warning and a meaningful consultation process and also whether there was appropriate consideration of alternative employment. The band of reasonable responses would apply to our considerations in these matters.

[91]This is an unusual case resulting in the dismissal of the founder of the Respondent’s business.

[92]The Respondent had initially sought to suggest that the settlement agreement had effectively compromised future claims. Whilst that contention was unsuccessful we cannot ignore the fact that the parties had clearly agreed that the Claimant would step down from any active day to day management role. Moreover, it was clearly contemplated that his role as a strategic advisor would not continue indefinitely as the Claimant rightly acknowledged.

[93]The Respondent acknowledged that all of the alleged disclosures potentially amounted to protected disclosures including those made primarily in the Claimant’s own interests. That said, there was some dispute about whether all of the alleged disclosures at 6.6 in the list of issues were made orally and it was suggested that nobody, including Mr Fernandez, had actually read and immediately digested the follow up dossier to those August disclosures.

[94]In relation to the first two disclosures from April 2017, we are satisfied on the contemporaneous documents that the Respondent welcomed the disclosures and acknowledged that action was required to protect their brand and indeed protect them against potential legal claims.

[95]The respondent seemingly took appropriate action by dismissing both employees involved. Whilst there was a suggestion that one was subsequently re-employed we have no further details of that and it doesn’t change our view that the Respondent was grateful for the Claimant raising this issue as it was essential for them to protect their business and to act on such matters.

[96]The Claimant suggested that the reference in the contemporaneous email to “disruptive investors” referred to him and these disclosures. There was no explanation from the Respondent regarding this reference, but it seems to us that it was not necessarily a reference to the Claimant as it was in the plural and he was a founder shareholder as opposed to an investor.

[97]In any event, it must have referenced a completely separate board discussion, given that the respondent was clearly grateful, and understandably so, for the Claimant having raised the protected disclosure matters.

[98]As a result, it seems to us that if it did reference the Claimant it must have been in relation to something other than the disclosures. Therefore, if the reference was to the Claimant, it could only further confirm that there was a serious breakdown in relationships between him and the board which pre-dated any alleged disclosures.

[99]Furthermore, in relation to those disclosures, we accept that Mr Fernandez was unaware of them as he was only a Consultant in the business at the time. The first two disclosures, therefore, can have played no material part in his subsequent considerations.

[100]The third disclosure on 27 July 2017 came in fairly lengthy correspondence that raised various operational and financial issues that were not protected disclosures, as well as the safety information in relation to an employee’s repair of the Claimant’s car.

[101]Further information in relation to this issue was provided in the followup disclosure of the 13 August.

[102]We accept the contemporaneous email evidence and indeed the oral evidence of Mr Fernandez that he was grateful for this disclosure and that he would take appropriate action. We heard that he subsequently reviewed all safety and training procedures and made appropriate changes. That appears to have happened by the September albeit the Claimant was not informed of this until November.

[103]We accept that a focus on safety in this industry is essential and it would have been very bad business not to respond as the Respondent did and indeed not to be grateful for these matters being raised.

[104]We also accept that no action was taken against the individual employee in this case because of the unique circumstances of him working on the founder’s car. This would inevitably have caused certain difficulties for the individual. A safety issue had been flagged and the Claimant did not suggest that he felt that the individual should be disciplined, when asked.

[105]It is possible that, due to Mr Fernandez not having the same experience as the Claimant in the tyre industry, he may have misunderstood some of the issues that the Claimant was raising. However, that doesn’t alter our conclusion that this disclosure was welcomed and so, again, provided no reason for the Claimant to be subjected to any subsequent detriments.

[106]Similar considerations also apply to any subsequent Health & Safety disclosures.

[107]The Claimant met Mr Fernandez on 22 August 2017. He described that meeting as a positive one. It appears that he wanted greater interaction with the business prior to this in his “strategy” role, so he was grateful for this opportunity.

[108]The fact that the Claimant had had no previous interactions seemingly confirms, from the Respondent’s perspective at least, that the strategy role was little more than a means of preserving the Claimant’s employment for tax purposes.

[109]The Claimant raised numerous issues in the August meeting. The vast majority of these were financial or operational and hence they were not protected disclosures.

[110]He also raised some issues that had previously been resolved in the settlement agreement but, in addition, he seemingly raised certain shareholder issues that included some alleged breaches of the Companies Act and/or the Respondent’s Articles of Association and so they were capable of amounting to protected disclosures.

[111]There was an accompanying threat of litigation in the Claimant’s personal capacity as a shareholder in relation to these issues.

[112]In his dossier the Claimant also repeated allegations that had been made prior to the settlement agreement about equal pay and sex discrimination. In relation to these matters we accept the evidence of Mr Fernandez that, if they were raised, he didn’t register them at the time.

[113]In addition, we accept that Mr Fernandez didn’t read the dossier or at least not in sufficient detail to have registered these matters as an issue.

[114]There was no suggestion that anyone else, other than perhaps Ms. Cuddy months later, had read the dossier so it seems that the equal pay and/or discrimination issue can also have played no part in the Respondent’s subsequent actions. Any similar disclosure, prior to the settlement agreement, that may have been made to the board or others, was not relied on before us as protected and was only mentioned in the context of background information.

[115]As a result, it seems likely that the only disclosures that were potentially operative were those in relation to the shareholder issues that were made in August 2017. We acknowledge that, in relation to the detriment claims, it is for the respondent to show the reason for the Claimant’s treatment, but it is helpful to have identified which alleged disclosures they were aware of and which were welcomed.

[116]Mr Fernandez only discovered that the Claimant was an employee after the August meeting. It is not surprising, given the nature of the arrangement with the Claimant, that Mr Fernandez swiftly formed the view that the strategy role was likely to be unsustainable. The Respondent was almost constantly in difficult financial circumstances and looking for new funding to be able to stay in business. Moreover, the strategic advice hadn’t actually been utilised even though the Claimant was willing to play a more active role.

[117]At that stage Mr Fernandez was looking for a way to retain the Claimant, albeit in a sustainable and justifiable role. He comes up with the possibility of creating a role of Franchise Advisor to support international expansion. The fact that he was even contemplating creating a role for the Claimant suggests the opposite of a detriment and certainly does not indicate any negative disposition towards the Claimant as a result of his disclosures or otherwise.

[118]The possible role was raised with the Claimant and the board. It was not a role which would have returned the Claimant to the board or to any executive day-to-day operational management. That was unsurprising given that the claimant stepping down from such responsibilities had already been required and settled.

[119]Consideration of the role came with a condition of the Claimant waiving his legal claims. It was unclear which claims were being referenced. We saw that there were at least some threats of litigation in relation to matters unrelated to the disclosures, such as the return of the Claimant’s property. It seems likely, however, that at least one of the main issues was the potential shareholder claim.

[120]It was conceded that placing such a condition on a possible role was capable of amounting to a detriment even though, ultimately, the role was not created. Given the financial state of the company that decision was not in dispute before us.

[121]It seems to us that the condition cannot be viewed in isolation. The respondent was considering creating a role for the Claimant which was beyond their obligations. In effect they were contemplating treating him better than was required. Placing a condition on that preferential treatment still left the Claimant in an improved position than one where the creation of a role was not contemplated. Viewed in that way a detriment may not have arisen.

[122]In any event, an honest and reasonable attempt to settle threatened litigation cannot, in our view, amount to a detriment. To conclude otherwise would mean that any settlement offers that involved waiving rights could give rise to detriment claims. We accept the Respondent’s case that the offer to contemplate the creation of a role was an honest and reasonable attempt to resolve the Claimant’s threats of litigation. This was effectively confirmed by the fact that when considering pre-existing alternative roles no such condition was placed on them.

[123]We also accept that it was the threat of litigation in a personal capacity (and, indeed, the manner of disclosures and the numerous other issues that were which were not protected) that caused the condition on the offer. As a result it was not the public interest disclosure itself. We have already explained why we accept that the other disclosures played no part in the Respondent’s actions.

[124]That said, we would acknowledge that it is difficult to sever the Claimant’s threatened litigation from the public interest element of the disclosure, particularly when it was conceded that the disclosures were, at least in part, made in the public interest.

[125]Even if we were wrong on detriment and causation in relation to this issue, on its own it was conceded on the part of the Claimant that this particular detriment claim was presented considerably out of time and it would have been reasonably practicable for him to issue sooner. As a result, this issue only comes into play if it was part of a continuing series of acts on the part of the Respondent continuing through the redundancy consultation process up to and including the Claimant’s dismissal.

[126]The second alleged detriment was the threat of redundancy. We are satisfied that the Respondent has demonstrated that this decision was entirely due to the unsustainability of the advisor role. A £120,000 per annum salary for a business of the size of this Respondent that was in significant financial difficulties in exchange for advice one day per month, advice that had never actually been called on, was clearly unsustainable.

[127]It was clear to us that the potential for the redundancy of the Claimant’s role was inevitably considered by Mr Fernandez almost as soon as he was aware of it. Indeed, it seems likely to us that it was always the intention of the board when the settlement agreement was entered into, given that the role was little more than a sham.

[128]We do not accept that any disclosures played any part in that decision, let alone any material part and they made no difference to the outcome whatsoever.

[129]The Claimant’s third alleged detriment was that he was being ostracized, removed from the workplace and denied access to the resources and documents that were there.

[130]However, from the Claimant’s own email and complaint in November 2017, that had been the case since the time of the settlement agreement. If anything the situation had improved as Mr Fernandez had met the Claimant and was communicating with him. He also agreed to put in place certain access arrangements, albeit these were ultimately unsuccessful.

[131]In those circumstances, there was no detriment arising after the disclosures, nor could any alleged detriment have been caused by such disclosures. It merely was a continued state of affairs put in place because of the pre-existing breakdown of the Claimant’s relationship with the board.

[132]We would accept that it is not uncommon for employers consulting about redundancy at senior executive level to require employees to remain away from work and only have certain supervised access to other employees and company systems and documents for obvious reasons. We further accept that it was for these reasons that Mr Fernandez maintained restrictions on the Claimant’s access and the Claimant’s disclosures played no part in this decision.

[133]The main issue before us, acknowledged by both parties, was in relation to alternative employment.

[134]We note that the Respondent did not start from a position of removing the Claimant. Rather, they were trying to find a role for him and that included going further than they were legally obliged to do by considering creating the role of franchise advisor. Ultimately, given the financial state of the company, the investment required to look into expansion into Europe was understandably considered not to be viable. That was not in material dispute before us.

[135]Regarding the marketing role, Mr Fernandez’s initial view was that the Claimant did not have sufficient recent qualifications and experience to be able to take the company to the next level in digital marketing, although it is equally clear that he was not fully informed about the Claimant’s skills and abilities in this area. Nonetheless, that was his initial reaction and we accept that it was genuine.

[136]It seems to us that the process thereafter in relation to the marketing role suggested prejudgment on the part of the Respondent. We also suspect that the Respondent was seeking to hide this from us and the Claimant. That said, this was unnecessary in our view as, had the Respondent been entirely upfront with the Claimant, it would have resulted in the same outcome.

[137]Ultimately, we are not convinced that there is any adverse inference to be drawn from the Respondent’s failures, including the disclosure omissions, in and around this issue.

[138]It seems clear to us from the settlement agreement and subsequent documents, that the board would not entertain an executive role for the Claimant. It was confirmed by the settlement agreement that he had been required to not only stand down as chief executive but also as director and to cease all day-to-day executive activities. That must have been down to some prior breakdown of relationship with the board and the Claimant, at least partially, accepted this. The respondent’s evidence was that the relationship continued to deteriorate for reasons unconnected to any alleged disclosures.

[139]That was also the initial and genuine view of Mr Fernandez when the Claimant was discussing the marketing role with him. He said that he thought it unlikely that the board would approve him returning to executive duties but he would be prepared to put the Claimant’s name forward.

[140]That suggests, as did numerous other examples, such as the short timescale for the application, the apparent desire not to interview the Claimant and some of the emails between Ms. Cuddy and Mr Fernandez, that the process in relation to the marketing role was a sham.

[141]Nonetheless, we accept the evidence of Mr Fernandez that he genuinely did not believe the Claimant was suitable for the role and, in any event, that the breakdown in his relationship with the board meant that it was impossible. In fact, we consider that it was abundantly obvious that the Claimant would never have been appointed back to an executive dayto-day role and he must have known this.

[142]As a result, we accept that the disclosures, and specifically the disclosures in relation to the shareholder issues, played no part in the Respondent’s decision. Moreover, given that the Respondent had been seeking to place a condition of waiving those claims in relation to the franchise role, if they were to have considered the Claimant potentially suitable for the marketing role, the same condition could have been applied, but it was not. The reason, it seems to us, was because there was no prospect of the Claimant being successful and his disclosures were irrelevant to that conclusion.

[143]Nothing since the settlement agreement showed any improvement in the relationship between the Claimant and the board, quite the contrary. The Claimant remained unhappy about stepping down and continued to want involvement in operational, financial and executive matters.

[144]It was the Respondent’s genuine belief that the Claimant was not suitable for the marketing role. It was a prior breakdown in relationships that led to him being removed from executive roles and nothing that happened after the settlement agreement had any material influence on the decision not to reverse that state of affairs.

[145]In any event, even if the Respondent had conducted a fairer process, and fully understood the Claimant’s abilities, it was clear that the Respondent was looking for something more than the Claimant had to offer in terms of up-to-date digital marketing experience and taking the business to the next level.

[146]They ultimately appointed someone who seemed to meet those requirements in a way that the Claimant could not.

[147]As a result, the unrealistic application and the sham process that followed ultimately made no difference to the outcome and it would not, it seems to us, have been unreasonable for the Respondent to have simply been upfront about the real reasons for rejecting the Claimant. The fact that they sought to conceal the sham could have caused us to draw adverse inferences but, for the reasons given, we do not.

[148]Regarding the other roles, the Respondent appears to have based some of their reasons for rejection on questionable grounds. Again, the email from Ms. Cuddy appeared to suggest some prejudgment on this issue.

[149]The fact that a role may not have met the legal definition of suitable alternative employment for redundancy purposes, does not mean that it is necessarily fair and reasonable for a Respondent not to offer lower level roles. For example, if there are grounds for believing the employee may be capable of carrying them out and indeed willing to step down.

[150]It may well be that the Claimant, wanting to remain involved with the company that he had founded and also to retain a potentially valuable entitlement to entrepreneur’s relief, may have accepted a much lower role than ordinarily we might have found credible.

[151]It seems to us, contrary to some of the explanations given by the Respondent, that the Claimant could probably have done most of the roles that were vacant at the relevant time. However we accept the evidence of Mr Fernandez that it would have been unworkable for the founder, shareholder and former chief executive to be managed at a lower level in the business and that was the real reason for the refusal.

[152]Whilst we are aware that this can sometimes happen and be successful, in our experience this would be highly unlikely and so it was not unreasonable to refuse on those grounds. That is even before returning to the pre-existing breakdown in the Claimant’s relationship with the board who only seemed willing to contemplate a role away from all day-to-day operations even at a lower level.

[153]That breakdown was only confirmed by the Claimant’s ongoing resentment at having stepped down and, indeed, his attempts to remain involved in management. None of that related to any of the disclosures and it was equally understandable that the Respondent wanted to move on without such distractions.

[154]Regarding the victimisation, we have already determined that there was no evidence that the protected acts played any part in the Respondent’s actions. The first from April was both welcomed and unknown to Mr Fernandez. The second was not registered by Mr Fernandez or anyone else. They cannot have led to any of the alleged detriments and the Claimant has failed to establish facts from which we could conclude otherwise.

[155]In relation to the unfair dismissal, we have already identified that we are satisfied that the strategic advisor role was unsustainable. Indeed, it was rightly accepted on behalf of the Claimant that it would not have been sustainable for much longer and that £120,000 pa for one day a month’s work was largely just a mechanism in relation to the previous settlement. The company’s finances could not sustain such a role and there was no strategic advice sought.

[156]It is clear, therefore, that role was potentially redundant and that was the genuine and real reason for the commencement of the redundancy process.

[157]The Claimant’s role was unique and in a pool of one. It was fanciful to suggest that the Claimant should, for example, have been pooled with the new chief executive who had been appointed to replace him after an agreement for him to step down from all executive management. The fact that the Claimant even suggested this at one stage supports our view that his approach was, at times, unhelpful.

[158]The fact that there was an initial attempt to manufacture a role for the Claimant, albeit away from day to day operations, is to the Respondent’s credit, notwithstanding that it subsequently turned out to be unsustainable.

[159]The Claimant was given fair warning of possible redundancy and there was a consultation process and an appeal followed in which he was allowed to be accompanied and given an opportunity to make representations.

[160]That said, we have already found that the Respondent’s response in relation to the alternative vacancies was a sham and that was enough to render the process unfair.

[161]The Respondent seemed initially unwilling to directly address the real reasons for refusing the alternative vacancies especially the breakdown in the relationship with the board that pre-existed and continued unabated. That breakdown had resulted in an agreement for the Claimant to step down from all day-to-day executive activities and it seems to us that it would have been bizarre if he was subsequently reinstated to such a role as a result of the redundancy process when nothing had improved.

[162]The Respondent also failed to fully and directly address the difficulties in managing the Claimant in a lower level role, albeit we accept that this was the real reason for their refusal to appoint him to such a role. That was within the band of reasonable responses.

[163]In a fair process, the Claimant should have been given an opportunity to respond to those issues and so, as stated, those failings render the dismissal unfair.

[164]Nonetheless, it is clear from our findings that we accept there was a serious breakdown in the relationship with the board and that there were genuine and reasonable reasons for the refusal to reappoint him to executive activities or indeed to a lower level role. As such, the unfairness would have made no difference to the outcome.

[165]Finally, we accept that the principal reason for dismissal was redundancy. To the extent that there was a secondary reason it was a breakdown in relationships that existed prior to the settlement agreement and continued thereafter. The protected disclosures played no material part in any of that, let alone being the principal reason for dismissal.

[166]Ultimately, the breakdown in the relationships between the board and the Claimant resulted in the settlement agreement that he step away from the board and executive and day to day duties.

[167]His employment under an arrangement that was largely for tax purposes was always going to end due to the finances of the company and the lack of need for sustained strategic advice. In fact, it was clear that the role was unsustainable beyond the agreed initial term.

[168]We cannot conceive of any circumstance in which the Claimant was likely to have been allowed to return to a board or executive role or even a lower level day to day role.

[169]The outcomes would be have been exactly the same even if there had been no disclosures or protected acts. As a result, all of the Claimant’s other claims must fail.

[170]We have considerable sympathy with the Claimant who worked incredibly hard to build a business. Letting go of that was very difficult. Whilst it is understandable that he wanted to remain involved, he had agreed to step down following a breakdown in relationships and that is what ultimately started the chain of events that resulted in his dismissal from the company.

[171]The settlement agreement attempted to provide for such a subsequent dismissal. Whilst that attempt was unsuccessful a future dismissal was clearly in the contemplation of the parties at that stage before any disclosures or protected acts. No other outcome was a realistic possibility.