Mr R Plauszewski v Industrial Turbine Company (UK) Ltd: 1304958/2023
EMPLOYMENT TRIBUNALS
Case No 1304958/2023
Between
Mr R PlauszewskiClaimantIndustrial Turbine Company (UK) LtdRespondent
Before
Employment Judge BansalIn person for claimantDate 7 November 2024
JUDGMENT
The unanimous judgment of this Tribunal is that the claimant’s complaint that he was subjected to a detriment for making a protected disclosure is not well founded and is dismissed.
REASONS
[1]Following a period of ACAS Early Conciliation between 30 April 2023 and 11 June 2023, the claimant presented a Claim Form (ET1) on 10 July 2023, bringing a complaint of detriment for making a protected disclosure pursuant to s47(B)(1) of the Employment Rights Act 1996. The alleged detriment relied upon is the non-renewable of his fixed term contract.[2]By a Response Form (ET3) filed on 9 August 2023, the respondent resisted the complaint contending that the reason for the decision not to renew the claimant’s fixed term contract was because of his unsatisfactory performance. Further, it denied the claimant made a protected disclosure in any event. In the response the respondent also made an application for a Deposit Order against the claimant to be permitted to continue with this claim pursuant to Rule 39(1) of the Employment Tribunals Rules of Procedure 2013.[3]At a Preliminary Case Management Hearing held on 14 December 2023, Employment Judge Childe discussed and agreed with the parties the factual and legal issues to be determined at this Final Hearing, and also made case management orders that included an order that the parties exchange witness statements by 14 March 2024.[4]At a Public Preliminary Hearing held on 14 August 2024, Employment Judge Perry made a Deposit Order against the claimant on the grounds that the claimant’s complaint has little reasonable prospect of success. The claimant duly paid the ordered deposit to be able to continue with this complaint. The Legal Issues[5]At the start of this hearing, the agreed List of Issues as determined by Employment Judge Childe at the Preliminary Hearing held on 14 December 2023, were confirmed without amendment. These List of Issues are annexed to this Judgment. (Annex A)
Hearing
[6]The claimant represented himself as litigant in person. The respondent was represented by Mr M Dulovic, Consultant, who also represented the respondent at the previous preliminary hearings.[7]The Tribunal was provided with an agreed bundle of 205 pages and a chronology from each party. The claimant also provided the Tribunal with an additional document of 9 pages, titled, “Issue with key evidence documents from respondent”. The respondent did not object to the inclusion of this document.[8]The parties were informed that only documents referred to in the witness statements and in evidence will be read as part of the Tribunal reading and in their deliberations.[9]The Tribunal was provided with a witness statement from the claimant. He served this statement on the respondent and the Tribunal in the early hours of the start of this hearing. This was in breach of the order to exchange witness statements by 14 March 2024. The respondent had made an application for a strike out order of the claim on the grounds of this non-compliance. However, at the start of the hearing Mr Dulovic withdrew this application given that the claimant had served his witness statement in readiness for this hearing.[10]The Tribunal was provided with statements from Mr Paul Rice, (Product Design and Development Team Lead); Mr Vasilious Katsapis (Product Owner/Chief Engineer and Mr Kamran Khan (Export Control Business Partner)[11]All witnesses gave oral evidence and were cross examined. In addition the Tribunal asked questions for clarification. At the end of the oral evidence, the parties provided written submissions which they supplemented orally. The Tribunal considered these submissions as part of their deliberation.[12]The Tribunal was mindful that the claimant was a litigant in person and would be unfamiliar with the Tribunal procedures. Accordingly, at the start of the hearing the Judge explained to the claimant the Tribunal procedure, gave guidance on presenting his case, giving his evidence, the process of cross examination and making final submissions. The claimant was encouraged to have questions prepared for cross examination of the respondent witnesses. During cross examination of the respondent witnesses the Judge had to repeatedly remind the claimant to focus his questions relevant to the agreed legal issues. The Tribunal was satisfied the claimant was given full opportunity to present his case; that he was able to fully engage in the hearing and presented his case to the best of his abilities.
Findings of Fact
[13]The Tribunal having considered all of the evidence, on the balance of probabilities made findings of fact as set out below. A reference to a page number is to the relevant page number in the bundle.[14]The respondent is an independent subsidiary company wholly owned by the Siemens Group and is part of the wider Siemens Energy business. The respondent business which is based at Warwick, England, sells and supports aero derivate gas turbines in the industrial field globally.[15]By a contract made between NESUK Limited (an employment agency), Pay Stream My Max 2 Limited ( the contractor) and Siemens Energy Limited (parent company of the respondent) the claimant was assigned to work as a CAD Design Engineer at the respondent under a temporary assignment based at its Warwick site. The assignment was for an initial period of 6 months from 15 August 2022 to 1 February 2023, or such other date as may be agreed between the parties. The assignment was subject to renewal conditional upon the satisfactory performance and integration into the wider team. (p37)[16]It was accepted the claimant’s status was that of an agency worker within the meaning of section 47B(3) of the Employment Rights Act 1996.[17]Throughout the duration of this assignment the claimant’s Line Manager was Paul Rice. The claimant’s role was to generate 3D models and create and re-master engineering drawings. He was required to utilise his skills with PLM TeamCentre and Siemens NX Software.[18]At the start of his assignment the claimant was provided with mandatory training on export control. It was common ground that in his training the claimant would have been informed that any breach of export control regulations could amount to a criminal offence with a risk of imprisonment. Claimant’s performance issues August 2022 to January 2023[19]Paul Rice explained that within a few weeks of the claimant’s start he began to receive complaints about him. He explained the claimant was taking too much time raising queries with others, which he discussed with the claimant on 26 October 2022 and confirmed in an email sent on 28 October 2022 (p45). In this email Paul Rice summarised the complaints he discussed with him, which fell into two categories. Firstly the claimant was taking too long on his calls with others, and secondly he was making too many calls to others on any given subject. In the same email Paul Rice raised an additional issue with the claimant, that he was “overstepping the mark by editing or up-issuing other people’s models”. He asked the claimant to stop doing this. It is at this point that Paul Rice expressly instructed the claimant to come to him first before setting up a meeting with any colleague or sending an email that would take the recipient some time to reply.[20]The Tribunal noted that on 26 October 2022, in a Teams message sent by Rob McCluskey (Line Manager to Paul Rice) to Paul Rice, he wrote, “Michael Bowley has been in touch- Robert is now bothering people in Lincoln and they’ve made their displeasure known to colleagues in Montreal”. In reply, Paul Rice, wrote, “I’ve spoken to Robert. Not sure anything is going to change but I have spoken to him. I have instructed him (as clear as I can) that whenever he wants to ask a question of anybody, he MUST ask me first…..” (p155).[21]Again, during the period 28 October to 31 October 2022, Paul Rice spoke to the claimant repeating to him his direct instruction that he (i.e the claimant) must not contact anyone first before he contacted him. Paul Rice explained this was to ensure the claimant did not approach others who had complained about the time the claimant was taking of their time.[22]On 5 December 2022, Paul Rice emailed the claimant to inform him of his concern about the quality of his work. He wrote,“ I am concerned about your standard of modelling and how many errors are being highlighted. The excuse of “I am learning” is no longer acceptable. You need to take more care and assess your own work before sending it off for approval. If you are having trouble understanding the drawing then please approach me but for the last couple of issues it appears that they are just oversights. You have mentioned a couple of times that you have double or triple checked your work but not enough attention is being spent on actually assessing your own work. I would perhaps suggest that you should print a drawing off and maybe cross out the dimensions of the features you can actually see on your model(s). Please make sure that you introduce a sufficient level of review before you submit it for approval. Thank you. (p48)[23]Paul Rice also highlighted the lack of attention to detail shown by the claimant. In particular, he referred to the claimant sending either the wrong drawing or part number reference. He explained that a part number information is most important/critical and errors can cause reputational and commercial problems. This issue was raised with the claimant by an email dated 22 December 2022, in which Paul Rice wrote, “.. you really need to be more careful with your work. Read the part number in the title and your email and then the one in the attachment.”(p55) 12 January 2023[24]On 12 January 2023 Paul Rice held his weekly team meeting. At that meeting the claimant approached Paul Rice if he could stay behind to speak to him. Neither party produced any written note of the conversation held. According to Paul Rice, the claimant asked him about his contract renewal as this was coming to an end. Paul Rice said, he told the claimant that it was “our intention not to renew”. In cross examination, the claimant’s recollection of this discussion was that “there was conversation and at the time he was being told that if his performance was good and if he kept going without errors his contract would get extended”. Further, the claimant claimed that he was promised a contract extension because other members in the team got an extension. Paul Rice disputed this account given by the claimant.[25]On 12 January 2023 at 16:43 Paul Rice sent an email to Rob McCluskey, copied to Vasilis Katsapsi, in which he wrote; (p58) “Rob, Just so you are aware. I had my normal team weekly 3 o’clock meeting today and Robert asked if I would stay behind after. He asked me directly about renewing his contract as the 6 months limit is only 4 weeks away. I did not want to lie to him and told him that it was our intention not to renew it. Obviously this is not what he wanted to hear but I calmly talked him through the issues that had been raised about him. These being……. taking up too much of people’s time, expanding on the line of questioning, hearing but not listening, having to constantly repeat instructions to him, sometimes going ahead and doing things that had been directly asked not to. I even said that he was taking up 90% of my time, leaving only 10% for the rest of the team. Apparently that was my fault as I asked him to send me all of his emails. He promised that things would improve 100% but I have been constantly hearing this for 5 months already. I did plan on asking you to join me when I spoke to him and informed him that we are not going to renew his contract and I planned this early next week, but I never made it that far. The only concession I made was that I would speak with Ian Sheppard next week, but I think we both know what the outcome of that is going to be. If you hear anything, can you please give me a shout. Kind regards, Paul ”[26]Rob McCluskey and Vasilis Katsapis replied to this email the same day. Rob McCluskey replied at 17:09 and wrote; (p59) “Paul, Thanks for letting me know. It’s unfortunate that Robert asked these questions today because, like you said, we were expecting to discuss the issues with him together next week. However, it sounds like you’ve explained things very clearly to him and been fair in describing our concerns over his performance. If he contacts me in the meantime, I’ll let you know. @Katsapis, Vasilis: as we’re not going to renew Roberts contract, I can contact Andrew Burrow at NES Fircroft to see if a replacement can be found and explain the situation with Robert. Thanks Rob”[27]That same evening at 20:5, Vasilis Katsapis also responded and wrote; (p56/57) “Yes please, Rob. Difficult discussions and difficult decisions are unfortunately part of life and work gents. Please provide Robert with an as constructive as possible feedback aiming to help him for his next steps; our intention as managers and team leads should always be that when people leave our team (for any reason), they do so having been improved in both, if possible, professional and personal level. That incurred improvement on people is what discerns the good from the less good managers .”[28]The claimant in cross examination asked Paul Rice,“ what was the key moment you decided you were not going to extend my contract ”. Paul, in reply said, “informally December 2022. The complaints and the problems we were having with yourself were becoming difficult to handle but because I am not hard enough or I am too soft, perhaps I could have cancelled your contract before Christmas or arranged for that to happen but because I am a softy I couldn’t do that before Christmas and February was right around the corner so I let you carry on until then.”[29]Based on the email evidence and Paul Rice’s reply above, the Tribunal found Paul Rice to be a credible and consistent witness. The Tribunal was satisfied that the decision not to renew the claimant’s contract was in the mind of Paul Rice before his discussion with the claimant held on 12 January 2023. In fact, Paul Rice had made his decision in December 2022. The Tribunal also concluded from Paul Rice’s contemporaneous email to Rob McCluskey sent on 12 January 2023 at 16:43 that he informed the claimant that his contract would not be renewed. This email exchange clearly contradict the claimant’s understanding of his conversation with Paul Rice on 12 January 2023 about the renewal of his contract.[30]Also, from the email exchange between Paul Rice and Rob McCluskey of 12 January 2023 the Tribunal found they had agreed they were not going to renew the claimant’s contract beyond 1 February 2023. It is clear from the reply given by Vasilis Katsapis that same evening that he gave his endorsement to their decision.[31]On 17 January 2023, The VCR Team emailed Paul Rice reminding him that the claimant’s contract renewal was to expire in 4 weeks. Paul Rice replied by email on 18 January 2023, at 09:49. He wrote, “My apologises for not replying earlier as we wanted to be sure of our decision, but we do NOT want the WO extended beyond the current date. The project of work scope has been reduced and there is no longer a requirement for Robert’s services past the closure date.” (p59)[32]The claimant, in his submissions pointed to a meeting he said he had with Paul Rice on 17 January 2023. The document disclosed in the bundle by the claimant, was a Microsoft Teams invite sent on 17 January 2023 at 10:20 initially for a meeting starting at 10:30 that same day then changed to 11:00 (p126). The claimant informed the Tribunal that “on 17 January 2023 I had a meeting with Paul, where we discussed the process for approving these parts. Paul disagreed with me on the way of transferring. I wanted to get advice first on export control because Paul’s guidance was opposite”. The claimant did not mention this alleged meeting in his witness statement and neither was Paul Rice questioned about it in cross examination. Whilst it is not direct evidence that the meeting took place, the message attached to the Microsoft Teams invite, pointed the Tribunal to what was in the claimant’s mind at the time, and what he was seeking to discuss with Paul Rice. In the invite, the claimant wrote that he “wanted have this meeting to agree plan regarding access to section C1 S22, as there is very high number of military components” and added, “Lets discuss best way to approach this during meeting. Best point of start would be to approach Kamran Khan” (p126). Claimant’s meeting with Export Control Officers – 18 January 2023.[33]On 18 January 2023 between 14:00 -14:32 the claimant had a Microsoft Teams meeting with three Export Control Officers from the respondent’s Canada Office, namely Claire Martel, Patricia Huynh, and Patric Warywonda (p63) This meeting was arranged by the claimant without the knowledge or prior agreement of Paul Rice. According to the claimant the purpose of this meeting was to seek guidance on the correct way to transfer military data from the UK to Canada. The claimant in his witness statement (page 3) , explained the reason for arranging this meeting was because, “I wanted to protect myself and do the legitimate thing I can do-get a professional advice because the matter was so serious”. The claimant’s evidence was that the meeting started in a friendly manner but when he told the Export Control Officers about military classified data being transferred via Microsoft Teams to Canada they appeared concerned. According to the claimant this was the protected disclosure. He believed he brought to the respondent’s attention a breach of a legal obligation in how this classified data was being transferred and/or that a criminal offence may have been committed.[34]There were no minutes or notes from this meeting in the bundle, and the respondent did not call any of the three Oficiers, Claire Martel, Patricia Huynh, or Patric Warywonda as witnesses for this hearing. The claimant disclosed the Microsoft Teams message exchange between him and Patricia Huynh shortly after the meeting started. Patricia Huynh wrote to the claimant at 14:56 saying “this is a major issue I have already book a meeting with Vasilis” and later at 14:59 explained to the claimant that “this meeting is to explain to Vasilis the situation and for him to tell me what are the business requirements on this project. This needs to be done before we can even tell you what the solution for your work is. Once I have a clear view we can have a meeting all of us”. Later at 17:01 Patricia Huynh sent a message to the claimant after speaking with Vasilis Katsapis, to say “We do not have a confirmed solution yet for working on Military parts in PLM, so lets put on hold the work on military parts at the moment and only work on the industrial parts for the A20. Rob, if you have any questions for that you can reach out to Paul Rice and/or Vasilis. Once we have discussed and found a compliant solution for UK and CA we will communicate to the teams. Currently export control UK and CA need to discuss further” (p62).[35]Vasilis Katsapis account of his discussion with Patricia Huynh confirmed in paragraph 6 of his witness statement, as “a quick call in Teams” with “no mention at all by anyone of any issues with ECC regulations”.[36]According to the claimant’s belief, following the discussion between Vasilis Katsapis and Patricia Huynh, Vasilis Katsapis called Paul Rice and informed him about the concern he raised, which then led Paul Rice not to extend his contract. The claimant accepted that he could not provide any evidence to support this belief. Nevertheless, he was convinced in his mind, that there must have been a discussion between Vasilis Katsapis and Paul Rice. The Tribunal rejected this assertion. It is was pure speculation on part of the claimant. Both Paul Rice and Vasilis Katsapis denied any such conversation.[37]The claimant asserted that because in his discussion with the Export Control Officers he made a disclosure, which caused concern to the Officers, this would have prompted a call with Vasilis Katsapis. Given this exchange of messages the Tribunal concluded that something was said by the claimant to trigger Patricia Huynh to arrange a Microsoft Teams call with Vasilis Katsapis. Also, an issue must have been identified to cause Patricia Huynh to ask the claimant to temporarily pause work on military parts for the A20.[38]At 09:49 on 18 January 2023, several hours before the claimant’s meeting with the Canadian Export Control Officers, Paul Rice responded to an email from “Siemens Back Office” to confirm that he will not be renewing the claimants contract (p59). The reason given in his email is that “ the project of work scope has been reduced and there is no longer a requirement for Roberts services past the closure date”. This is inconsistent to the respondent’s pleaded case. At paragraph 13 of his witness statement, Paul Rice accepted this inconsistency, and explained that he gave this explanation in order to be polite. The Tribunal accepted Paul Rice’s explanation for this and accepted the fact that the claimant’s contract was not renewed due to issues with his performance.[39]At 14:35 on 18 January 2023, Rob McCluskey sent a Microsoft Teams message to Paul Rice and Vasilis Katsapis, informing Vasilis Katsapis that Paul Rice had “drafted an email to formalise our decision not to renew Robert Plauszewski’s contract”(p156). Vasilis Katsapis and Rob McCluskey exchanged further messages that afternoon to discuss the claimant’s end date and the work he can do until then.[40]At 15:44 on 18 January 2023, Paul Rice sent an email to the claimant, “Hi Robert. Further to our discussions started during and after last weeks Thursday team meeting 12th Jan, I would like to confirm that your contract is NOT going to be extended past the 01/02/2023 end date. We would like to thank you for your contributions and wish you all the best for your future endeavours” (p80). In cross examination the claimant asked Paul Rice what triggered him to send this email at that specific time. Paul Rice replied “there were a couple of things that happened, one was having to reply to the back office at 9:49 that morning, also during the day I realised I hadn’t formally written to you, and from my point of view we’d had that discussion on 12th Jan”. The Tribunal accepted that these were the reasons for the timing of Paul Rice’s email, and not the claimant’s meeting with the Canadian Export Control Officers that took place that same afternoon, which Paul Rice had no knowledge about at that time.[41]Between the period 18 to 31 January 2023 the claimant did not raise the issue of export control licenses or his arranged meeting with the Canadian Export Control Officers with Paul Rice. The claimant accepted that he did not inform Paul Rice or anyone in the UK team about this meeting. Paul Rice confirmed he had no knowledge of what was discussed at this meeting from anyone.[42]On 31 January 2023 at 10:23 the claimant responded to Paul Rice’s email that confirmed the non-renewal of his contract. (p80) He wrote, “ Thank you for email and ALL time with you and other members of team. I did enjoy my time and Siemens and hugely regret as cannot get chance regardless so many improvements and Latest work quality-which been delivered with 100% of success rate. It was pleasure to work with you and other members of team-you have very skilful people in your team. Could I have a reference from yourself, please? They are hugely important for myself and future carer. Best Regards Robert[43]Later on 31 January 2023 there was a cordial exchange of Microsoft Teams messages between the claimant and Paul Rice relating to timesheets and further emails discussing the return of company equipment (p81/82).[44]On 1 February 2023 at 16:28, the claimant sent a detailed email to Paul Rice attaching information relating to his meeting with the Canadian Export Control Officers that took place on 18 January 2023 (p97). In this email, the claimant wrote, “ Thank you very much for your time. I am attaching an all required documents, which are self-explanatory. I believe my disclosure in in good faith and will protect Siemens Energy from potential Multi million GBP fines. I am sure, company will take adequate steps to carry on investigation, which may take some time. I am fully committed to A20 team and really like working with everyone. I am hugely disappointed with lost of my contract extension and believe it is due me speaking out and raising concern about military classified data. I will keep all details confidential to follow company policies, but in moment when company will cut me off the Systems-I will understand Siemens Energy position and will take further steps to inform relevant organization. As first step would recommend ensuring company PC, which I am taking care of is not cut off from IT systems. Then I am happy to be part of the investigation or continue work on next project. This e-mail is confidential at this stage, between myself and Siemens Energy. If I will be treated fairly-will remain all duties regarding confidentiality and will do the same in return.[45]In the bundle, the claimant included a video/audio he referred to and wanted the Tribunal to view. The Tribunal viewed this in the Tribunal room on the claimant’s laptop. It was some 8 minutes long. The video/audio had been recorded covertly. It was about a Microsoft Teams meeting allegedly between himself and Paul Rice. The claimant told the Tribunal that the recording was taken on 1 February 2023. This was not challenged by the respondent. The Tribunal accepted this Microsoft Teams meeting may have taken place on 1 February 2023 but it is was unclear whether this was before or after the claimants email to Paul Rice of the same date. The recording captured the claimant ‘sharing his screen’ and talking through the various documents that were also attached to his email of the same day, as well as expressing much the same sentiments. The slides shown in the video were disclosed in the bundle, headed “Export Control Breach”. (p83-96) The video was similar to a presentation exercise, which the claimant was giving. In this presentation the claimant was explaining how he believed there have been data breaches by the respondent. The audio also appeared to refer to the claimant speaking to someone but there was no voice heard from the other person. The claimant said the conversation was with Paul Rice. In evidence Paul Rice confirmed did not have any recollection of this conversation.[46]Following the claimant’s email of 1 February 2023, Paul Rice forwarded this same email that afternoon within 10 minutes at 16:39 to Vasilis Katsapis and Rob McCluskey, in which he wrote, (p154) “Robert is proposing to take this the authorities if we do not give him his job back or extend his contract. He actually used the term “blow the whistle” Can I have a quick chat. I just hung up on him[47]This led to an internal investigation, the outcome of which confirmed there was no basis for the claimant’s allegations. Mr Kamran Khan (Export Control Business Partner, who deals with and is responsible for the compliance and licence matters for the respondent. In evidence, Kamran Khan referred to an email exchange he had with Nicola Beaumont (HR) and Kate Branney (Compliance) on 31 July 2024, in which he confirmed, (p161) “..Just to confirm, we have an Open General Export License in place since 2017 (updated 2022) for the transfer of military technologies to Canada. Our internal investigation into this issue determined that although best practice/ internal processes for technology transfer had not being strictly followed there was no actual breach of the export control regulations due to the held export license.”[48]In evidence Kamran Khan repeated the point that no breach of any regulations had occurred. The transfer of any data relating to the goods was not illegal. The claimant did not challenge this evidence. The Legal Framework Protected disclosures – S43 Employment Rights Act 1996 (“ERA”)[49]Section 43A ERA provides that 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.[50]Section 43C deals with disclosures made to an employer.[51]Section 43B provides: (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, … Protected disclosure detriment[52]Section 47B ERA provides: (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”. 53. ‘Detriment’ is given a wide interpretation. It means putting a worker under a disadvantage, or doing something that a reasonable worker would consider to be to their detriment (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11).[54]The test for whether a detriment was done ‘on the ground that’ the worker has made a protected disclosure is set out in Fecitt and others v NHS Manchester [2012] IRLR 64, CA. What needs to be considered is whether the protected disclosure materially influenced (in the sense of being more than a trivial influence) the employer’s treatment of the worker. Burden of proof in protected disclosure detriment[55]In a complaint of detriment, section 48(2) provides that it is for the employer to show the ground on which any act, or deliberate failure to act, was done. This means that the burden shifts to the employer where the other elements of a complaint of detriment are shown by the claimant.[56]Unlike the operation of the burden of proof under the Equality Act 2010, a failure by the employer to show positively the reason for an act or failure to act does not mean that the complaint of whistleblowing detriment succeeds by default. It is a question of fact for the Tribunal as to whether or not the act was done ‘on the ground’ that the claimant made a protected disclosure (Ibekwe v Sussex Partnership NHS Trust UKEAT/0072/14/MC). Analysis and conclusion[57]The Tribunal reached their decision on a unanimous basis having considered carefully all of the evidence, the submissions of the parties and the applicable legal principles as summarised above.[58]The issue the Tribunal had to determine was whether the reason for not renewing the claimant’s contract was because the claimant had made a protected disclosure on 18 January 2023 at his meeting with the Export Control Officers.[59]Based on the chronology of events, the email evidence disclosed and the oral evidence of the witnesses heard, the Tribunal had no hesitation in finding that;(a) the decision not to renew to claimant’s contract was made before the claimant is alleged to have made a protected disclosure to the Export Control Officers;(b) there was no evidence or basis for the claimant’s belief and pleaded claim that Paul Rice knew of or could have been materially influenced at all by the alleged protected disclosure;(c) Paul Rice decided not to renew the claimant’s contract was because of the claimant’s unsatisfactory performance, which he highlighted and discussed with the claimant during October 2022 and January 2023.[60]The Tribunal reached its decision based on the following evidence and reasons.(i) Paul Rice, had in his mind not to renew the claimant’s contract, in December 2022. The Tribunal accepted Paul Rice’s evidence that because of the Christmas and New Year period, he did not inform the claimant then, and decided to defer this to January 2023. This decision was before the alleged disclosure made on 18 January 2023.(ii) From the email exchange between Paul Rice and Rob McCluskey, it is abundantly clear that by 12 January 2023, Paul Rice communicated his decision to Rob McCluskey.(iii) Paul Rice informed the claimant in his discussion on 12 January 2023 that their intention was not to renew his contract.(iv) Paul Rice, in his email to the back office, sent on 18 January 2023, at 09:49. confirmed his decision not to extend the claimant’s contract, which again was before the meeting the claimant had with Export Control later that afternoon.(v) Paul Rice had no knowledge of the claimant’s meeting with the Export Control Officers held on 18 January 2023, and what was said and discussed at that meeting.(vi) There was no evidence before the Tribunal to support the claimant’s held belief that on 18 January 2023, between the hours of 14:59 when he claimed that Patricia Huynh spoke with Vasilis Katsapis to 15:44, which was the timing of the email from Paul Rice to the claimant confirming that his contract would not be renewed, that Paul Rice had a discussion with Vasilis Katsapis or was made aware of the discussion with the Export Control Officers that the claimant had made a disclosure. The Tribunal concluded the claimant has speculated about this in an attempt to show a causal link to the timing of Paul Rice’s with his alleged disclosure. The Tribunal concluded that the claimant is mistaken in his belief which is unsubstantiated.(vii) Contrary to the claimant’s assertions made in evidence the email exchange between Paul Rice, Rob McCluskey and Vasilis Katsapis on 12 January 2023 were genuine emails which they had at that time. These were not made up emails merely produced for this hearing as alleged.[61]On the basis of the Tribunal’s decision and reasons as set out above, the Tribunal did not consider it necessary to determine whether the claimant made a protected disclosure at his meeting on 18 January 2023 with the Export Control Officers. However, the Tribunal concluded that, even if, the claimant did make a protected disclosure in that meeting, the complaint would have failed for the following fundamental reasons;(i) when Paul Rice sent his email on 18 January 2023 at 15:44, he had already made his decision as concluded in the paragraphs stated above.(ii) Paul Rice could not have been materially influenced by the alleged disclosure because at the relevant time, he had no knowledge or was made aware of the discussions held at the meeting on 18 January 2023.[62]Accordingly, for the reasons stated above the claimant’s claim is not well founded and is dismissed. Signed by: