Mrs M Gowers v Retirement Security Ltd: 1306191/2024

EMPLOYMENT TRIBUNALS

Case No 1306191/2024

Between

Mrs M GowersClaimant

Retirement Security LimitedRespondent

Before

Employment Judge Faulkner

Date 10 August 2024

JUDGMENT

The application for interim relief is refused.

REASONS

Issues

[1]The fundamental issue to be decided in relation to this application for interim relief was, in the words of section 128 of the Employment Rights Act 1996 (“the ERA”), whether it appeared to me that it is likely that on determining the Claimant’s complaint of unfair dismissal, the Tribunal will find that the reason, or if more than one the principal reason, for the dismissal is that specified in section 103A of the ERA, namely that she made a protected disclosure.

[2]In more detail (I will summarise the relevant law more fully below), it was agreed at the outset of the Hearing that I would need to decide whether the Claimant has a pretty good chance of establishing at the final hearing of her complaint of unfair dismissal: 2.1. That she disclosed information. 2.2. Which she reasonably believed was made in the public interest. 2.3. Which she also reasonably believed tended to show that a person had failed, was failing or was likely to fail to comply with any legal obligation to which he was subject. 2.4. That if, as above, she made a qualifying disclosure, it was protected because it was made to the Respondent as her employer, to another responsible person (section 43C of the ERA), or in accordance with section 43G of the ERA. 2.5. That the reason or principal reason for her dismissal was that she made such a disclosure.

Hearing

[3]Both representatives made lengthy submissions, asking me to consider a large amount of documentary material. Mr Islam Choudhury having indicated that if interim relief were granted the Respondent was not willing to reinstate or reengage the Claimant, we then discussed the terms of a continuation of contract order (section 130 of the ERA), in case it was necessary for me to consider the same, and also had a brief discussion about case management. We thus concluded at around 13.40, which meant that given the need for a lunch break, and the volume of material and arguments to consider, I reserved my decision at that point. Ordinarily one would of course seek to decide any such application at the Hearing; I was reassured in this particular case that my not being able to do so did not create adverse consequences for either party, in that it is agreed that the Claimant was paid in lieu of her two-month notice period, therefore effectively up to mid-August 2024.

[4]Before the Hearing commenced, I read the Claim Form and Particulars of Claim, statements prepared by the Claimant and, for the Respondent, by Nick Chriscoli, its Estates Director, and skeleton arguments prepared by both representatives. The parties prepared separate bundles, which was far from ideal even for an urgent hearing, particularly when both are represented by large firms of solicitors. The Respondent’s bundle was over 300 pages, and the Claimant’s over 250, though I was told there was some crossover between them. I made clear that I would not consider any of the documents, even if mentioned in a statement or skeleton argument, unless one of the representatives took me to it during submissions. As will appear below, I was taken to a substantial number. I have read each one of those documents carefully during my deliberations.

[5]Page references below prefixed with “C” relate to the Claimant’s bundle and those with “R” to the Respondent’s bundle.

[6]As will appear below, during the course of the relevant events, the Respondent instructed Joanne Bradbury of Narrow Quay HR to carry out an investigation of certain matters. In the interests of complete transparency, I informed the parties that I was a close colleague of Mrs Bradbury for a number of years when we worked at the same firm of solicitors. I have however had no contact with her whatsoever for at least ten years, and had no prior knowledge of either party. Neither representative wished to advance any objection to my hearing the application.

[7]Given the nature of this Hearing, and in view of rule 95 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, whilst I read the statements referred to above, I did not hear any oral evidence. I have also been careful to avoid any findings of fact in setting out my decision below, except to the extent that the matters I refer to are wholly uncontroversial. Instead, my approach has been to simply record what the parties referred me to, and what I have thus taken into account. Background information

[8]Mr Chriscoli’s statement says that the Respondent provides supported retirement housing across the UK for people who wish to remain property owners but require support to live independently. It owns 32 retirement Courts (blocks of flats and bungalows). Those who live in those Courts are leaseholders and are known as Owners. Each Court is run by a leaseholders’ management company, with its own Board of Directors chosen by the Owners at that Court. For a management fee, the Respondent provides each such company with support on HR, accounting, building matters and so on.

[9]The Respondent’s Board of Directors (“the Board”) currently comprises Bob and Margaret Bessell (who founded the Respondent and are non-executive directors), Michelle Hackett, Linda Clements, Mark Wakeford, Mr Chriscoli and Mike Prince (who was appointed in March 2024). Helen Gregg was at the relevant times Company Secretary. Mr and Mrs Bessell own around 33% of the Respondent’s shares, Mr Wakeford (via Brackley Holdings Ltd (“BHL”)), also holds around 33% and the remainder are largely held by Owners. The Claimant says that there are 349 shareholders in total. BHL owns a business called Aspen Retirement Living which develops retirement living properties.

[10]The Claimant was employed as the Respondent’s Chief Executive Officer from 4 October 2021 until 14 June 2024. For most of that period she too was a member of the Board. In Mr Bessell’s Chairman’s report for the Respondent’s AGM in September 2023 (page C52) he said that the year 2022/2023 had seen many improvements for the Respondent, and that many of them were attributable to the Claimant, who had “firmly established herself as the leader of the Company and a pillar of support to the associated Owners’ companies”. He also said that the Respondent continued to be focused “on improvements to strengthen the [business] model”.

[11]As for the Respondent’s Articles of Association, I was directed only to article 41 (page C34) which says that subject to certain sections of the Companies Act 2006 (see below), and provided they declare any interest as required by the Act, a director can vote on any matter in which they have an interest. Documentation Purchase of shares by Brackley Holdings Ltd (“BHL”)

[12]The Respondent submits that the Claimant colluded with Mr Wakeford for BHL to acquire an increasing number of shares in the Respondent. Page R40 shows that by an email on 24 April 2023 Mr Wakeford introduced the Claimant to a commercial lawyer at Harrison Clark Rickerbys Solicitors (“HCR”), acting for BHL, which “would be the purchaser of shares in the Respondent from willing members”. Mr Wakeford said in the email that he needed his conduct to be legal and beyond reproach as a director of both companies. He then said to the lawyer, that “we [that is the Claimant and himself] hope to purchase adequate shares to gain over 25% of the equity [in the Respondent] to secure our position”. Email exchanges then took place to introduce the HCR lawyer to someone at Womble Bond Dickinson (“WBD”), who were the Respondent’s solicitors.

[13]The Respondent says it only became aware of this correspondence after the Claimant was suspended, but before her dismissal, as to which again see below. Board meeting 16 November 2023

[14]According to her statement at paragraph 8, the Claimant believed it was a risk that people bought their homes and joined management committees at the Courts as directors, without properly realising what that meant in terms of their legal responsibilities. She also believed (paragraph 11) that the Respondent should review and modernise its approach to ensure consistency across all Courts and take over those legal responsibilities.

[15]In an email to the Board on 31 July 2023 (pages C66 to 67), Mr Wakeford stated, “We now find ourselves in a position where Directors [that is, of the Court companies] (and their immediate families) can be liable for the actions of others … I think that the review that [the Claimant] has proposed is sensible” in light of comments by Mr Chriscoli and Helen Gregg about directors of Court companies resigning. He suggested a taskforce to look at remodelling. Mr Chriscoli confirms in his statement at paragraph 11 that the Claimant informed the Board on 31 July 2023 that the current business model exposed the Respondent to risk, and that she was authorised to go away and consider options for change, though he says she was not instructed to propose a complete remodelling.

[16]At pages C60 to 65 (I was not asked to read this document) there is a report for the Board from WBD dated 10 November 2023 headed, “proposed restructuring of the management companies of the Retirement Security Courts”. The Claimant prepared a detailed report for the Board meeting on 16 November 2023, outlining a remodelling of the Respondent’s business (pages R55 to 59), which again I have not read, save to note that it refers to the Board meeting of 31 July 2023, says that reforms were discussed at that meeting, and that the Claimant undertook to offer a remodelling to manage risks in respect of the management of the business and the Courts.

[17]Mr Chriscoli confirms at paragraph 11 of his statement that the report was received ahead of the November Board meeting; he says it proposed a wider restructuring than he anticipated but that he and his colleagues did not really reflect on that. He says the report covered a proposal to cease care provision at the Courts, to restructure Court companies so that they would be run by the Respondent instead of the Owners, and also a staffing restructure. The Claimant says at paragraph 15 of her statement that she gained nothing personally from her proposals.

[18]A PowerPoint presentation accompanied the Claimant’s presentation of her report at the Board meeting – pages R60 to 66. The Respondent asked me to note that it was marked “Information purposes at this stage” and that at page R62, an organisation chart showed the current structure.

[19]There is a transcript of this Board meeting from pages R68 to 134. I have only read those parts of this document I was taken to. Page R124 suggest that the Claimant said she was talking about overall remodelling of the Courts. At page R125, Mr Bessell is recorded as saying to her, “why not put it as a proposal to this board meeting that there should be another meeting … to carry out these changes … it needs to be put down and formalised”. The Claimant is recorded as replying, “… 3 months ago now we had a meeting around there might need to be a change to the model … 3 months later I have returned to the Board with a full proposal”. She is recorded as saying she wanted the Board to agree at this meeting to her going away and preparing a fuller proposal – how the corporate governance would look and so on. Mr Bessell’s reply is said to be that he was happy that she should put that forward as a proposal, as long as there was another meeting to make decisions.

[20]The transcript says that it was then agreed there would be a further meeting in December, with the Claimant saying she needed to do further work on the matter. She is then noted as saying, “but we do need to vote on the fact that you are happy with my initial proposal to restructure”, and then formally proposing “that we move ahead to restructure the Retirement Security Courts and working relationships with Retirement Security as my paper …proposes and report back to the Board in December with further findings and the way forward”. The parties say that this was unanimously agreed. Ms Clements is recorded as asking if they were voting for the organisational restructuring, with the Claimant saying it was not carved in stone, she would go away and do a lot more work on it, putting “more meat on the bones” (page R129).

[21]What the Respondent says is that this was an agreement to the changes in principle, not to their implementation. Mr Chriscoli says at paragraph 14 of his statement that the Board approved an initial proposal to restructure, “which we intended the Claimant to go and do some more work on”. The Claimant’s alleged misconduct and suspension

[22]The Respondent referred me to page R135, an automatic out of office reply from the Claimant on 23 November 2023, naming Helen Gregg as her Executive Assistant (rather than her PA), which it says was something that was part of the proposal. It also referred me to page R54, an email from the Claimant to Ms Gregg on 31 October 2023, asking her to book someone on a course she was also attending, but not in the Respondent’s name as it was top secret that he would hopefully be joining the Company. The Respondent says that this too shows the Claimant clandestinely taking steps to implement change that had not been agreed.

[23]The Respondent also refers to page R136, where it can be seen that on 6 December 2023, Ms Gregg sent the Claimant draft minutes of the 16 November 2023 Board meeting, and the Claimant replied, “Good minutes but I’m concerned there is no mention of acceptance of my entire paper” asking that this be included, which Ms Gregg agreed to do, circulating them to the Board on 11 December 2023 (pages R145 to 150). At page R149, the minutes stated, “The Board confirmed they had read and understood [the Claimant’s] report and there were no questions raised”. At page R150 they recorded “[The Claimant] confirmed that she is asking the Board to adopt her paper in its entirety at today’s Board meeting”, which the Respondent says does not reflect the transcript. The minutes refer to a proposal to “achieve all restructures within a reasonable timeframe; start Dec 23 … the Board are [sic] requested to approve and support the remodelling initiative at the board meeting on 16 November 2023. This will … support the CEO with shaping a corporate structure …, compilation of financial modelling, … and detailed implementation plans”. All are recorded as voting in favour.

[24]On 9 March 2024 (page C84A), Ms Clements wrote to Ms Hackett and other directors saying she had listened to the recording of the meeting and that whilst there were many errors in the transcript, she considered what Ms Gregg had prepared to be accurate – “in fact, the recording only emphasises the level of support the [Claimant] had at that meeting” which, Ms Clements said, made what had happened since 21 December 2023 (see below) even more baffling to her.

[25]As can be seen at page R139, the Claimant wrote to the Board on 8 December 2023. She said that as discussed in her report the Respondent’s remodelled structure would not include the role of Estates Director, which was Mr Chriscoli’s role. Mr Chriscoli says at paragraph 18 of his statement that this was a surprise to him when the Claimant mentioned it to him after the November Board, and that after meeting her subsequent to that, it became clear to him that she did not want him in the new role of Asset and Development Director.

[26]The Claimant recorded in her email of 8 December that she had met with Mr Chriscoli and had decided to advertise the role of Asset and Development Director, which she was delighted to say Mr Chriscoli would apply for. She said the interview process would commence in January 2024, and if anyone had any questions, they should call her. On 10 December 2023 (page R144) she emailed the Board again to say “To avoid any confusion, conflict and doubt around [her email of 8 December]” and in view of Mr Chriscoli’s email of the same date (page R143) saying he was considering his options and wanted to understand what settlement package would be available, she suggested an urgent Board meeting.

[27]There are minutes of a Board meeting held as a result on 12 December 2023 at pages C87 to 88. They record that Mr Chriscoli said he thought the new role should be offered to him as suitable alternative employment. The Claimant is noted as saying she disagreed, was concerned no-one was supporting her, and that Mr Chriscoli had put the business at risk through lack of attention to certain matters. Ms Clements is recorded as saying she fully supported the Claimant. It was then noted that the Claimant had the Board’s support to start investigating a settlement offer for Mr Chriscoli. On 14 December 2023 (page C89), the Claimant confirmed this to him and said the redundancy/recruitment process would be paused.

[28]On 21 December 2023, the day of the next Board meeting when, according to paragraph 23 of Mr Chriscoli’s statement, the Claimant was to present her more detailed restructuring proposal, Mrs Bessell sent an email to Helen Gregg in the latter’s capacity as Company Secretary, copied to the rest of the Board. The Claimant disputes whether Mrs Bessell sent the email, though it appears that it was sent from her account (page R203). It complained about the Claimant “purporting to reconstruct the Company without the authority of the Board of Directors”, and asked that this be reported to that day’s Board meeting with a recommendation that she be suspended. Mr Wakeford (at page C91A) replied referring to the Board’s previous discussions, asking, “Are you now suggesting that [the Claimant] is doing something entirely different to that which was discussed and approved?”

[29]The proposal for suspension was put to a vote by Mr Bessell at the Board meeting. The result was an even split, with Mr Wakeford strongly opposed, and Mr Bessell gave a casting vote in favour. The suspension letter is at page R225. It said that the misconduct allegation being investigated was that the Claimant had “attempted to reconstruct the Company without explicit permission from the Board”.

[30]It appears to be agreed that Ms Hackett picked up the Claimant’s laptop as the meeting ended, and that as they arrived into the Respondent’s main office, Ms Gregg came to try to retrieve it (according to Mr Chriscoli at paragraph 31 of his statement, in an aggressive way). He says the Claimant then came into the office shouting and demanding that Ms Hackett give her the laptop. Caroline Hassani, Head of HR, apparently intervened to say it should be given to the Claimant.

[31]The Respondent then instructed Joanne Bradbury of Narrow Quay HR to conduct an investigation into the allegation that the Claimant had attempted to restructure the business without authority. The Claimant presented a grievance on 16 January 2024 (pages R237 to 245) which I was not asked to read. The terms of reference for Narrow Quay HR (pages R246 to 251) were finalised (though apparently not agreed by the parties) on 12 February 2024. They were asked to investigate the following allegations against the Claimant: 31.1. She had acted outside of her authority by implementing a new business model without express Board approval. 31.2. She had manipulated the Board minutes from 16 November 2023 – Mr Chriscoli says at paragraph 37 of his statement that this was so as to suggest she had been authorised to commence implementation of the remodelling/restructure. 31.3. She had made misrepresentations to the Board, including about Mr Chriscoli’s interest in a settlement package. He says at paragraph 38 of his statement that the Claimant told the Board he had requested a settlement offer when it was she who had suggested it, and had told the Board he was welcome to apply for the new role when she had made clear to him that she did not think him suitable. 31.4. She had misused the Respondent’s finances, incurring “excessive costs without prior Board authorisation” (see below). 31.5. She had behaved inappropriately and aggressively on 21 December 2023.

[32]There was a delay in the progress of the Narrow Quay HR investigation for reasons I do not need to record. According to Mr Islam Choudhury’s skeleton argument, the interim report produced in June 2024 concluded as follows: 32.1. The Claimant genuinely believed her actions were in the Respondent’s best interests, in effect that she has licence to act as CEO without needing explicit authority from the Board, and would continue to act in that way if she returned to work. 32.2. She also believed that her vision for the business was right and anyone with a different view was wrong. 32.3. Mr Bessell resists change and believes anyone who disagrees with his founding principles is wrong. 32.4. These entrenched views seemed to be a cause for significant conflict between those wanting change and those wanting to maintain the status quo.

[33]I understand the report also said that Mrs Bradbury could not decide what the Board had agreed in November regarding what was to happen next about the remodelling and restructure.

[34]On 19 February 2024 (pages R255 to 257) the Claimant wrote to Ms Hassani asserting the right to notice of all Board meetings, and a right to attend and vote at them. I was not asked to read this document. There was then extensive correspondence between the parties and their lawyers about this issue – see for example pages R270 and R281. Again, I was not asked to read this material and do not see the need to do so, except that I was asked by the Respondent to note that in a letter from the Claimant’s solicitors on 6 March 2024 she asked that Mr Wakeford be one of the people who dealt with her grievance and any disciplinary case, as he and another director were the only ones not involved in the allegation of aggressive behaviour on 21 December 2023. The Respondent says the Claimant knew that she was working closely with Mr Wakeford in relation to share acquisitions, and that he had strongly opposed her suspension, and was thus seeking to have someone deal with the grievance and disciplinary issues who she knew would support her.

[35]An email from VWV Solicitors, for the Respondent, to Ward Hadaway, for the Claimant, dated 28 February 2024, at pages C146 to 149 (another document I was not asked to read in full), said, “the only board meetings which have taken place since the meeting of 21 December 2023 [and which the Claimant had not been given notice of or attended] … were on 17 January and 20 February 2024”. The Respondent appears later to have asserted that the former was not in fact a Board meeting. First alleged protected disclosure, 26 March 2024

[36]The Claimant did attend the Board meeting on 26 March 2024. The agenda is at page C209, and included ratification of various reports, including of the Financial Controller, apparently related to increases in pay for Ms Hackett and Mr Chriscoli. Pages C118 to 119 are addendums to their employment contracts increasing their notice periods from 3 to 6 months. It is not clear to me whether this was, or was intended to be, discussed at this meeting as well.

[37]The minutes of the meeting are at pages C210 to 216. There appears to be a dispute about their accuracy. At page C212, Mr Prince was co-opted as a director. The Claimant says at paragraphs 55 and 56 of her statement that numerous changes were being made which she did not believe to be in shareholders’ best interests, specifically that the pay and benefits of Ms Hackett and Mr Prince were being increased and the notice periods of Mr Chriscoli and Ms Hackett were also being increased.

[38]I was taken to the section of the minutes where the Claimant is recorded as having asked questions of the Board, such as making a request for information relating to the meeting on 21 December 2023, and her statements that the questions would lead to the Board making the right decisions for the business, “bearing in mind conflict of interest and acting in the best interests of shareholders, which she doesn’t believe the Board are doing” (which was contested), and that “if any decisions are made or are ratified, that have an impact to (sic) shareholders she will need to let shareholders know” (there was no recorded reply to that). Then at the end of the meeting, she is recorded as asking further questions – who denied her the right to attend the Board, whether the Respondent had an indemnity in place in relation to claims of incorrect advice, who was involved in preparing the terms of reference for Narrow Quay HR, and similar. Second alleged protected disclosure, 28 March 2024

[39]The second alleged protected disclosure (or, as it may be said, set of alleged protected disclosures) was made in writing – pages C221 to 223. The covering email at page C221 makes clear that it was sent to the Board (the Claimant said, “Dear Board/Shareholder”) and, to the extent those Board members were also shareholders, to them in that capacity also. In the email she referred to having made clear at the Board meeting on 26 March 2024 that she believed certain proposals put forward whilst she was suspended were not in shareholders’ best interests, and that her asking that they be reconsidered was ignored. She referred to the Board members’ duties as directors to exercise independent judgment, act in the best interests of shareholders and avoid any conflicts of interest. She said that regretfully she was obligated to write to shareholders as per the attached letter to highlight her absence and her belief that decisions were being made which she believed were against their interests.

[40]The letter itself was only addressed to shareholders and said: 40.1. Certain members of the Board were not acting in shareholders’ best interests. 40.2. She believed that she had authority and support to modernise the business and had engaged with the Board regarding ways to better support the Courts and address the corporate governance obligations “which place a huge burden on Court directors, including in their personal capacity”. She said she believed this to be in shareholders’ best interests. 40.3. She had been suspended, including for purportedly seeking to reconstruct the business without explicit Board approval, and the Board’s vote on the same was split. 40.4. Two directors who voted to suspend her had conflicts of interest. 40.5. She was concerned that as a result of changes in the composition of the Board “certain members of the Board” could act in their own personal interest without an impartial minority being able to overrule them. 40.6. She had not been given notice of the January and February Board meetings, notice of any resolutions at those meetings, or the ability to vote at them, and thus had not been involved in decisions impacting the Respondent, which prevented her representing shareholder interests, though the restrictions had now been removed. 40.7. She had discovered at the Board meeting on 26 March 2024 that increases in remuneration were to be paid to executive directors when forecast profits had significantly reduced, restricting the payment of a dividend. 40.8. A new board member had been co-opted without her input. 40.9. She believed it was fundamentally wrong to change the Board’s composition without her involvement, to increase pay when a restructure was needed, to approve a reduced budget and to leave “risk and exposure on Courts by not taking appropriate steps to modernise”. 40.10. She encouraged shareholders to hold a general meeting.

[41]The Claimant attended the Board meeting on 26 April 2024. She says at paragraph 66 of her statement that the initiatives she had put in place, previously approved by the Board, were not included in the 2024/2025 budget considered on that occasion. She says in her Claim Form that a new restructure was proposed, which she did not believe was sustainable and therefore not in shareholders’ best interests. She abstained from the vote about it. Dismissal

[42]At page R234 is a schedule of “Identified Overspend” produced by the Respondent which included £24,000 on legal fees for the acquisition of shares by BHL and which it says were incurred without Board authority and were not connected to the Respondent’s conduct of its business. As indicated above, the Respondent included in its instructions to Narrow Quay HR in February 2024 an allegation that the Claimant had misused its finances. It says that it only discovered from an exchange between Ms Hackett and WBD at pages R290 and 291, dated 10 and 16 May 2024 that the work was related to the share transfers. Ms Hackett asked what value was provided to the Respondent by this work and was told by WBD that the share sales were “designed to remove the logistical and administrative burdens experienced by the Company in dealing with a large number of minority shareholders”.

[43]The Respondent says that it was this which led to the Claimant’s dismissal, Mr Islam Choudhury saying in his oral submissions that it precipitated the Board meeting of 24 May 2024 (see below). Mr Chriscoli says at paragraph 47 of his statement that he thought that if BHL’s purchases were to continue, and the Claimant was able to start some development schemes, that may provide opportunities for Aspen Retirement Living.

[44]According to Mr Chriscoli’s statement at paragraphs 48ff, Ms Hackett, Mr Prince, Mr and Mrs Bessell, and he were minded to dismiss the Claimant. He says that a fair process would have taken some time, and there was a need to appoint a new CEO to relieve work pressure on others.

[45]The Claimant was removed as a statutory director on 24 May 2024 because (see the email to her from Ms Hackett at page C240) the Respondent said she was in material breach of her duties as a director under the Companies Act and of her fiduciary duties. The Board minute of that date, at pages R292 to 294, refers to “recent correspondence” causing considerable upset and leading many Courts to question using the Respondent as their managing agent. Five directors voted for the Claimant’s removal, two against.

[46]Her employment was terminated with effect from 14 June 2024, by a letter from Mr Bessell of that date (pages C251 to 253). The letter recited what is quoted above regarding the Claimant’s removal as a director and said that specifically: 46.1. She appeared to be focused on protecting her own interests and not what was best for the business. 46.2. The manner in which she conducted herself at Board meetings was disruptive. 46.3. Her decision to write to shareholders “was ill-advised”.

[47]The letter then said that the Board had resolved on 24 May 2024 to terminate her employment because “the relationship between the parties had fundamentally broken down”. It went on, “This conclusion was reached based on your express statement to this effect in your grievance; your letter to the Shareholders; and your conduct at Board meetings and your wider interaction with the Board”. The letter then said that the Board was not satisfied she was acting in the Respondent’s best interests, and that the time taken to investigate her conduct and her grievance, the burden on colleagues and the disruption this was causing the business, was unsustainable. There was no option to appeal, because the Respondent said it would be a sham. She was paid two months’ in lieu of notice.

[48]Mr Chriscoli says at paragraph 53 of his statement that “it would not be possible to re-establish trust and confidence. In particular I was mindful that, in the letter she had sent to shareholders, she had accused us of not acting in the best interests of the shareholders … it is unclear to me whether she genuinely believed that … [but] it was clear to me that there was a fundamental dispute between the Board members [as to the Respondent’s direction]”. Claim Form

[49]After ACAS Early Conciliation from 21 to 24 June 2024, the Claimant submitted a Claim Form, including her application for interim relief, on 21 June 2024 (page R17). In the Form, she referenced the two alleged protected disclosures and said the information she disclosed was: 49.1. That Mr Chriscoli and Ms Hackett had placed their personal interests ahead of shareholders in breach of their duties as directors and/or were not complying with their legal obligation to act in shareholders’ best interests. 49.2. Mr and Mrs Bessell had been unduly influenced or misled by Mr Chriscoli and Ms Hackett. 49.3. She had been denied her rights as a director and under the Articles in not being given notice of Board meetings, being excluded from such meetings and being denied access to Board minutes.

[50]The Claimant alleges that Mr Chriscoli wanted to undo what the Board had agreed in November 2023, as he realised that he would not be part of the new structure. She also says Ms Hackett had previously raised a grievance against her after the Claimant directed that Ms Hackett’s sister be suspended for safeguarding concerns. She says her removal and that of another director meant that Mr Chriscoli and Ms Hackett could use Mr and Mrs Bessell to overrule all Board votes and thus prevent reasonable oversight of their activities. Law on interim relief

[51]I have referred to section 128 of the ERA above.

[52]What is required in addressing an interim relief application is an expeditious summary assessment by the Tribunal, doing its best in the light of the untested evidence of each party. The Employment Appeal Tribunal (“EAT”) in Raja v Secretary of State for Justice

EAT/0364/09

said that where there is a lot of material it is advisable to ask the parties to direct the Tribunal’s attention to the parts of the evidence relevant to the application. In Al Qasimi v Robinson EAT 0283/17, it was said that tribunals should avoid making findings of fact that bind the tribunal at the final hearing and that therefore at this stage there should be very much an impressionistic approach, the Tribunal giving the essential gist of its reasoning and not approaching its task in an overly formulistic way.

[53]That is the approach I have sought to take. As a result, in my conclusions below, I have not found it necessary to refer to all of the documentary material I have summarised above, but have nevertheless taken the time to record in full above the evidence I was taken to, so that the parties can be assured that I was conscious of it in reaching my decision.

[54]It has been well-established since Taplin v C Shippam Ltd

1978 ICR 1068

, EAT that the correct test is whether the Claimant has a “pretty good chance of success” at the full hearing – see Dandpat v University of Bath and another EAT 0408/09 where it was said that there are good reasons of policy for setting the test comparatively high because of the irretrievable prejudice to a respondent of granting interim relief, which is therefore not a consequence that should be imposed lightly. There is thus a greater burden on the Claimant at this stage than the balance of probabilities test which would apply at a final hearing. In London City Airport Ltd v Chacko

2013 IRLR 610

, the EAT said that what was required was something nearer to certainty than to mere probability. Mr Islam Choudhury repeatedly said in submissions that if the Respondent could show that it has “an arguable case” on any of the relevant issues, that would be sufficient to defeat her application for interim relief. I am not sure that is a helpful test to adopt, in that a respondent might have an arguable case even where it is likely a claimant will prove one of the relevant matters. I have therefore focused solely on the statutory wording and its interpretation in the case law just referred to.

[55]As made clear in Simply Smile Manor House Ltd v Ter Berg

2020 ICR 570

, the interim relief test applies to all elements of the complaint in question – there this included the question of worker status, but here both the making of protected disclosures (incorporating all the various elements of that) and whether that was the reason or principal reason for dismissal. Substantive law Protected disclosures

[56]Section 43A of the ERA defines a “protected disclosure” as a qualifying disclosure made by a worker in accordance with one of sections 43C to 43H. Section 43B then defines what counts as a “qualifying disclosure”. For the purposes of this case, this is 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 that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.

[57]As noted, a “qualifying disclosure” is a protected disclosure if made in accordance with one of sections 43C to 43H. As far as relevant to this case, section 43C says: (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure — (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person.

[58]Section 43G says:(1) A qualifying disclosure is made in accordance with this section if— (b) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, (c) he does not make the disclosure for purposes of personal gain, (d) any of the conditions in subsection (2) is met, and (e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2) The conditions referred to in subsection (1)(d) are— (a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F, (b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or (c) that the worker has previously made a disclosure of substantially the same information— (i) to his employer, or (ii) in accordance with section 43F.

(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to— (a) the identity of the person to whom the disclosure is made, (b) the seriousness of the relevant failure, (c) whether the relevant failure is continuing or is likely to occur in the future, (d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person, (e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and (f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

[59]It would of course be for the Claimant to satisfy the Tribunal that she made protected disclosures. As the legislation and related case law make clear, there are a number of matters for the Tribunal to consider in this regard, in relation to each disclosure.

[60]A “qualifying disclosure” requires first of all a disclosure of information by the worker. In Kilraine v Wandsworth LBC

[2018] ICR 1850

the Court of Appeal clarified that “allegation” and “disclosure of information” are not mutually exclusive categories, and so there may be a disclosure of information even if there are also allegations. What matters is the wording of the statute; some information must be disclosed and that requires that the communication have sufficient “specific factual content”. Information disclosed in cumulative communications can constitute a single protected disclosure; whether it does is a question of fact.

[61]Once a tribunal is satisfied that information has been disclosed, the next question would be whether the two remaining requirements of section 43B set out above are satisfied. The first such requirement is whether the Claimant reasonably believed that the disclosure of the information was in the public interest. The second requirement is whether the Claimant reasonably believed that the information she disclosed tended to show that a person had failed, was failing or was likely to fail to comply with a legal obligation.

[62]On the first of these requirements, as made clear in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed

[2018] IRLR 837

, the test is whether the Claimant reasonably believed that her disclosure(s) were in the public interest, not whether they were in fact (in the Tribunal’s view for example) in the public interest. The worker must actually believe that the disclosure is in the public interest and the worker's belief that the disclosure was made in the public interest must have been objectively reasonable. Why the worker makes the disclosure is not of the essence, and the public interest does not have to be the predominant motive in making it. Tribunals might consider the number of people whose interests a disclosure served, the nature of the interests affected, the extent to which they were affected by the wrongdoing disclosed, the nature of the wrongdoing disclosed and the identity of the alleged wrongdoer.

[63]The second of these requirements is assessed very similarly. It is wellestablished that it would be for the Claimant to demonstrate that she reasonably believed the information she disclosed tended to show that a legal obligation had been breached. The cases of Darnton v University of Surrey

[2003] IRLR 133

in the EAT and Babula v Waltham Forest College

[2007] ICR 1026

in the Court of Appeal make clear that a disclosure may be a “qualifying disclosure” even if a worker is mistaken in what they disclose, provided they are reasonably mistaken, in other words that they have the required reasonable belief. This is a question of fact for the Tribunal, looking at the Claimant’s state of mind at the time she made the disclosures.

[64]The EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

said that the assessment of reasonableness in this context involves consideration of the personal circumstances of the Claimant at the time she made the disclosures. In other words, it is necessary to assess reasonableness taking into account the Claimant’s particular experience in the relevant line of work.

[65]On the question of the reasonable belief that there had been a breach of a legal obligation, Blackbay Ventures Ltd v Gahir

[2014] IRLR 416

and other cases make clear that although it is not necessary for a worker to include legal chapter and verse in what they say to an employer, in order for it to be a qualifying disclosure, a tribunal must, save in obvious cases, identify the source of the obligation and it should be capable of verification by reference for example to statute or regulation.

[66]I have set out already when a qualifying disclosure becomes protected, relevantly here whether by way of section 43C or section 43G. Dismissal

[67]As Section 98(1) ERA puts it, it is for the employer to show at a final hearing the reason, or if more than one, the principal reason for the dismissal. The question to be considered is what reason the Respondent relied upon. The case of Abernethy v Mott, Hay and Anderson

[1974] IRLR 2013

is long-established authority to the effect that the reason for dismissal is “a set of facts known to the employer or as it may be of beliefs held by him, which cause him to dismiss the employee”. That case also made clear that the reason given by an employer does not necessarily constitute the real reason for dismissal. The reason or principal reason is to be determined by assessing the facts and beliefs which operated on the minds of the decision-makers.

[68]The Court of Appeal in Kuzel v Roche Products

[2008] ICR 799

(approving in this respect the earlier decision of the EAT) said that the questions tribunals must answer where it is said that the reason or principal reason for dismissal was an automatically unfair one are: 68.1. Whether the Claimant has shown a real issue as to whether the reason put forward by the Respondent was not the true reason for dismissal. 68.2. If so, whether the Respondent has proven the reason for dismissal; 68.3. If not, whether it has disproved that the Claimant having made a protected disclosure was the reason or principal reason for dismissal.

[69]Mr Islam Choudhury referred at length to Perkin v St George’s NHS Trust

[2006] ICR 617

. On my reading of his submissions, he did so only to show that a senior executive can be dismissed because of a breakdown in trust and confidence and board-level relationships, and that this might be some other substantial reason for dismissal within the meaning of section 98 ERA. That seems to me uncontroversial.

[70]Mr Islam Choudhury also referred to Panayiotou v Kernaghan

[2014] IRLR 500

in which the EAT, citing other cases such as Bolton School v Evans

[2006] EWCA Civ. 1653

, held that there is a distinction between making protected disclosures and the manner in which an employee went about dealing with them, saying that a factor related to a protected disclosure might, in certain circumstances, be separable from the actual act of disclosing the information itself. The EAT made those comments in the context of a protected disclosure detriment complaint, but went on to cite the similar approach that can be taken under the victimisation provisions of the Equality Act 2010, citing Martin v Devonshires Solicitors

[2011] ICR 352

which was a dismissal case in the victimisation context, where the EAT accepted that a series of features and/or consequences of the complaints the claimant in that case had raised were properly and genuinely separable from the making of the complaint itself. Tribunals should be careful when examining cases advanced on the basis of such distinctions, but exceptional circumstances are not required.

[71]It is agreed by the Respondent for the purposes of this Hearing only that the Claimant’s dismissal is likely to be found to be procedurally unfair. Company law

[72]Mr Islam Choudhury did not depart from Mr Nuttman’s summary of relevant company law at paragraphs 23 to 27 of the latter’s skeleton argument, except that Mr Islam Choudhury emphasises section 175 of the Companies Act 2006 which requires directors to avoid situations where they have or can have a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the company.

[73]Accordingly, I note that sections 171 to 177 set out a director’s duties to act within their powers, promote the company’s success, exercise independent judgment, exercise reasonable care, skill and diligence, avoid conflicts of interest as just stated, not accept benefits from third parties, and declare an interest in proposed transactions or arrangements.

[74]In addition, citing case law that I was not invited to consider given the representatives’ agreement that Mr Nuttman sets it out correctly, I note the following, which in any event seem to me uncontroversial propositions: 74.1. A director’s responsibilities are ultimately owed to shareholders. 74.2. Board decisions should be taken accordingly. 74.3. Notice of a board meeting should be given to every director within reach of notices, even if they have previously said they would not be able to attend at that time or generally. 74.4. Deliberately excluding a director renders business at the meeting invalid and of no effect.

Conclusions

[75]As with any Tribunal decision, in reaching my conclusions I have not considered all of the arguments presented by the parties, focusing on those which seemed to me most material. I deal with the issues in the order set out at the start of these Reasons, endeavouring to take the impressionistic, rather than overly formulaic, approach encouraged by the case law, whilst recognising that there are a number of issues to consider. I repeat that my conclusions are of course based on the documentary material described above. The alleged protected disclosures

[76]Before dealing with the first alleged protected disclosure, I make two general points: 76.1. First, only two alleged protected disclosures are said to be relied on by the Claimant in her Claim Form, or at least only two sources of protected disclosures – the 26 March 2024 Board meeting and the 28 March 2024 letter to shareholders. Although Mr Nuttman made passing reference to others, as Mr Islam Choudhury said it is not appropriate for me to go beyond the scope of the pleaded case, particularly at the interim relief stage. 76.2. Secondly, Mr Islam Choudhury submitted that the protected disclosures relied upon are not clearly pleaded. I do not see the force of that submission. First, I think it likely the Tribunal at the Final Hearing would find that the Claimant clearly identified at paragraphs 3 and 4 of her Grounds of Complaint that she relies on the two alleged protected disclosures or sources of protected disclosures just referred to. Secondly, the Tribunal would look at the content of the alleged protected disclosures themselves in determining her case. As to the first, it will in all likelihood consider the minutes of the Board meeting of 26 March 2024 and what relevant witnesses say about that meeting. As to the second, it will without doubt look at the letter of 28 March 2024. Even though not hearing oral evidence, I could sensibly be taken to the relevant documents at this Hearing. The first alleged protected disclosure

[77]As to the first alleged protected disclosure, the first question is whether the Tribunal is likely to conclude that the Claimant disclosed information at the Board meeting on 26 March 2024. Mr Islam Choudhury submitted that it was not, because all that the minutes show is that the Claimant raised questions, which he says cannot be disclosure of information. Mr Nuttman’s retort was that the Claimant relies on her witness evidence of what took place at that meeting.

[78]I accept Mr Islam Choudhury’s submission that asking a question is not likely to be held by a Tribunal to amount to a disclosure. At its simplest, asking a question seeks information, whereas making a disclosure provides information. Further, it is not possible for me to say at this stage that the Claimant’s testimony about what she said at the meeting is likely to be accepted by the Tribunal; it may be, but it may not – I am unable to say. What that leaves is the statement in the minutes – which I have noted are disputed – to the effect that she did not believe the Board was acting in the best interests of shareholders. With oral testimony, the position may be different, but I cannot say at this stage that it is likely that the Tribunal will find that this statement had sufficient specific factual content (to borrow the wording in Kilraine) to amount to a disclosure of information. I cannot say it is likely therefore that the Tribunal will find that the Claimant made a protected disclosure at the Board meeting on 26 March 2024. The second alleged protected disclosure

[79]For the purposes of this Hearing at least, and notwithstanding what is written in his skeleton argument at paragraph 36, Mr Islam Choudhury accepted that in her letter of 28 March 2024 the Claimant disclosed information. I need say no more about that, except to make clear that the pleaded case – which, as I say, is what I must assess – is that the second protected disclosure was the letter to the shareholders, as distinct from the covering email to the Board. I will return to that below in relation to the question of whether it is likely that any qualifying disclosure would be found to be a protected disclosure, but record here that accordingly the information disclosed is that summarised at paragraph 40 above.

[80]The next question is whether it is likely the Tribunal at the Final Hearing will conclude that the Claimant reasonably believed the disclosure of that information was in the public interest. It would assess that question in two parts, namely whether she actually believed it was, that is subjectively, and whether that belief was objectively reasonable.

[81]The first point to note is that on neither of these questions did Mr Islam Choudhury seek to argue that what the Claimant wrote to the shareholders was just about the running of the Company and thus could not have been reasonably believed to be in the public interest on this basis. Although accordingly neither party presented any argument on this point, I am in any event satisfied that there is a pretty good chance that a Tribunal will find that there could sensibly be said to be a public interest element to the disclosure. I say this on the basis of the number of shareholders, and the fact that many of the minor shareholders are likely to have been persons of older age whose families and friends would also be concerned in particular about the issue of their potential personal legal liabilities being properly managed (points made by Mr Nuttman). It is not certain that is what the Tribunal will find, but I think it likely.

[82]With that point in mind, I deal next with what the Tribunal is likely to find regarding the Claimant’s subjective belief as to the public interest.

[83]Whilst of course I have not heard oral evidence from the Claimant so as to test what was in her mind, that cannot of itself mean I cannot find it likely she will establish the requisite belief, as it is unusual to hear oral evidence in any interim relief application. Focusing on the letter therefore, it is clear that a Tribunal reading its contents would be likely to start from the perspective that the Claimant believed that at least in part what she was raising was in the shareholders’ interests, even if she was also seeking to serve her own. In other words, the Tribunal is likely to find that this is what the letter suggests on the face of what is written.

[84]The burden of the Respondent’s submissions on this point is that the Claimant did not believe that her disclosure was in the public interest because she was manoeuvring things entirely in her own personal interests, and knew that this was what she was doing, mainly because she had acted covertly and without authority in seeking to implement her desired restructure and, in parallel to that, in concert with Mr Wakeford in the process of BHL acquiring the Respondent’s shares.

[85]In my judgment, based on the documents I was taken to, whilst it cannot be said at this stage what the Tribunal would find regarding whether she acted without authority following the November 2023 Board meeting (I note that Narrow Quay HR apparently could not determine that point after a doubtless more thorough investigation than was available to me) or improperly changed the minutes of that meeting, and whilst final conclusions will also have to take into account oral evidence which could of course be crucial, it is likely the Tribunal at a final hearing will find that: 85.1. The Claimant had nothing to gain personally either from BHL’s acquisition of the Respondent’s shares or the modernisation programme she wished to see take place. I was not taken to any document that suggested the contrary, and note that Narrow Quay HR apparently concluded that she genuinely believed she was acting in the Respondent’s best interests, albeit they went on to highlight some risks to the Respondent resulting from that belief. 85.2. The purchase of shares by BHL was not in fact of material concern to the Respondent in any event, given that Mr Wakeford remains a Board member to this day. I was not told for example that steps have been taken or are being taken to remove him, and Mr Chriscoli’s statement records that the purchases were known to the Board. 85.3. As Narrow Quay HR apparently recorded, the Claimant was absolutely convinced of the need to make changes to the business, with other members of the Board – and not just Mr Wakeford – supporting her approach. 85.4. The Claimant was open with the Board about her activity and discussions regarding Mr Chriscoli’s role, updating Board members on 8 December 2023 and saying that they could call her with any questions. 85.5. As the minutes show, the Board authorised her to investigate a settlement offer for Mr Chriscoli at its meeting on 12 December 2023, notwithstanding Mr Islam Choudhury’s submission that on 12 December 2023 the Claimant proposed Mr Chriscoli be dismissed and that from then the directors were concerned that she was acting without authority.

[86]All of this is to say that, even if written with some mixed motive, and even if she had in part misconducted herself – something I make no assessment of either way – it seems to me likely the Claimant will be able to establish at a final hearing that she believed that at least in part what she wrote on 28 March was in the public interest. For the reasons I have already indicated at paragraph 81 above, I think it also likely the Tribunal will find her belief to have been objectively reasonable.

[87]The next question is whether it is likely the Tribunal will find that the Claimant reasonably believed that what she disclosed tended to show that she reasonably believed the Board, or at least some Board members, were in breach of legal obligations. This also has two elements, namely whether the Claimant subjectively believed it did and whether that belief was reasonable.

[88]Again, not all of what the Claimant wrote in the letter to shareholders would need to satisfy this test in order for it to constitute a qualifying disclosure. Again, on the face of what she wrote, it seems to me likely that the Tribunal’s starting point will be that at least some of what the Claimant said indicated her subjective belief that certain members of the Board were not acting in the Respondent’s best interests. This would include the points about the modernisation programme (specifically to manage the legal risks for Owner shareholders), and indeed those regarding the proposed budget which she said would not serve shareholders’ interests because it would affect any dividend.

[89]The Respondent submitted that, having regard to Korashi, someone as experienced as the Claimant could not have believed, let alone reasonably, that what she wrote about being excluded from Board meetings and what flowed from that, tended to show a breach of a legal obligation, when (it says) she was acting on the basis of a conflict of interest herself, wanting to be present at Board meetings to serve her own interests, not those of the Company.

[90]I think it likely the Tribunal at final hearing will conclude that because this was only one element of what she wrote to shareholders, that does not deprive the whole letter of qualifying disclosure status. Further, there is a pretty good chance the Tribunal will accept that the Claimant identified in the letter matters which she could legitimately believe amounted to legal obligations, in particular the legal duty on directors to act in the best interests of the Company, which as Mr Nuttman says means acting in the best interests of its shareholders, rather than their own interests. The Tribunal is also likely to conclude that she could reasonably believe that this included managing risk to shareholders. The Tribunal is also likely to conclude that these obligations are rooted in the company law Mr Nuttman identifies as summarised above.

[91]That is sufficient to conclude that it is likely a Tribunal will find that the Claimant believed that at least some of what she wrote in the letter tended to show that members of the Board were in breach of a legal obligation, and that whether they were in breach or not, it was her reasonable belief. I do not need to address the parties’ competing submissions about whether the Claimant held such a belief regarding her disclosure about exclusion from the Board and what flowed from that, nor do I need to address the question of whether the point about increasing notice periods would also be likely to meet this test because it was not explicitly referred to in the letter.

[92]In summary, for the reasons set out above, I think it likely the Tribunal will conclude at the Final Hearing that the letter of 28 March 2024 was (or included) one or more qualifying disclosures. The next question is whether the Tribunal is also likely to conclude it was protected.

[93]Mr Nuttman submitted that the issue was straightforward, because the correspondence was also sent to the Board, which was effectively meant that the Claimant was writing to her employer. As I outlined above however, what the Claimant explicitly relies upon is not the covering email but the letter to the shareholders. That is what her Claim Form says, and I think it highly likely that is what a Tribunal at final hearing determining a case based on that Claim Form would find.

[94]Mr Nuttman did not seek to argue in oral submissions that a disclosure of information to all shareholders is synonymous with a disclosure to one’s employer, nor did either party refer me to any authority on that point, although he did make this submission at paragraph 38 of his skeleton argument. I think it unlikely a Tribunal would find that they are the same thing. The employer in this case is the Respondent; the shareholders are multiple individuals. Even if it could be said that the Tribunal at final hearing might resolve this point in the Claimant’s favour, I cannot say that it is likely it will.

[95]As for section 43C(1)(b), it seems clear to me, as Mr Islam Choudhury submitted, that the Tribunal at the final hearing will conclude that the person in view in subsection (i) is the person whose conduct the worker is raising concerns about and in subsection (ii) the person who the worker believes is failing to comply with his legal obligations. In the present case, that would have to mean that the shareholders, to whom the Claimant wrote, had breached (or were responsible for the breach of) the legal obligations she was disclosing and that is clearly not the case.

[96]That leaves section 43G, which has multiple questions the Tribunal would have to consider. As to subsection (1)(b), whilst recognising that the test of reasonable belief that something is substantially true is different to what is required by section 43B, for the reasons I gave when dealing with the latter, I think it likely the Tribunal will find the Claimant had that belief in relation to at least material parts of the letter. Similarly, for the reasons I have already given in dealing with section 43B I also think it likely the Tribunal will find that the Claimant did not make the disclosure of the information which comprises at least material parts of the letter for the purposes of personal gain (section 43G(1)(c)). I cannot say either of these things is certain, and oral evidence may make a substantial difference, but for my purposes, I think they are likely.

[97]The next question is whether the Tribunal at the Final Hearing will find that any of the conditions in section 43G(2) is met. Mr Nuttman did not specify either in his skeleton argument or orally which of the conditions the Claimant relies on, but dealing with each in turn: 97.1. As to section 43G(2)(a), it does not seem likely to me that the Tribunal would find that the Claimant reasonably believed she would be subjected to a detriment by the Respondent if she made a disclosure to it, having only made what she asserts to have been a protected disclosure to the Board (her employer effectively) two days previously, apparently without any adverse consequence resulting from it either at the Board meeting of 26 March or in the short intervening period. 97.2. As to section 43G(2)(b), there is nothing in the material identified to me that indicates the Tribunal is likely to find the Claimant reasonably believed it was likely evidence related to the failures she levelled at the Board would be concealed or destroyed if she disclosed them to the Board. Again, her case is that she had done so two days before, and nothing in the Board minutes or subsequently indicates that the Tribunal will likely identify any such concealment. 97.3. Finally, given my conclusions about the first alleged protected disclosure, namely that I cannot say at this stage that it is likely the Tribunal will find that the Claimant disclosed to the Board on 26 March what she later said to the shareholders, I cannot conclude that it is likely the Tribunal will find that the condition in section 43G(2)(c) is met either.

[98]Accordingly, and taking the overall view required of me, I do not think it likely the Tribunal at the Final Hearing will find that any qualifying disclosure was a protected disclosure.

[99]The application for interim relief must fail on that basis. Accordingly, I will not deal with the question posed by section 43G(1)(e), both because these reasons are already lengthy, but also so as to minimise the risk of trespassing unnecessarily on questions which may be relevant to other aspects of the case at final hearing, such as reductions to any compensation, should that be relevant, under the principle in Polkey v AE Dayton Services Ltd

[1988] ICR 142

[100]I will however go on to consider the remaining question of the reason for dismissal, though will do so only relatively briefly, again to minimise the risk of unnecessary impact on the final hearing of the case. The reason or principal reason for dismissal

[101]The question of the reason for dismissal in this context is not analysed in the same way as a case brought under the Equality Act 2010 where, for example, a protected characteristic only has to be an effective cause of a dismissal to render it discriminatory. As the summary of the law set out above makes clear, the protected disclosure – if there was one – has to be the reason or principal reason for the dismissal if it is to be automatically unfair.

[102]Mr Nuttman’s case was that the position was crystal clear, for at least three reasons: 102.1. He says that the dismissal letter is a smoking gun, because it explicitly refers twice to the letter to the shareholders as one of the reasons for dismissal. 102.2. He also submitted that the fact that Mr Wakeford is still on the Board is further smoking gun evidence, because the Claimant was removed from the business and he was not, she made a protected disclosure and he did not. 102.3. He says that the dismissal is manifestly procedurally unfair and that this too supports the case that it was for the statutorily prohibited reason.

[103]For the following reasons, my impression of the case is that it is far from that straightforward, and that it cannot be said therefore that, if the letter to the shareholders had been a protected disclosure, it is likely the Tribunal would go on to find that it was the reason or principal reason for dismissal. It might do so, but I cannot say that there is more than a balance of probabilities that it will, for the following briefly stated reasons (not listed in any order of importance): 103.1. The letter to the shareholders was only one of the expressed reasons for the dismissal. There was in addition (being careful to distinguish the reasons given for her removal as director and those given for her dismissal, which are not identical) the Claimant’s own statement that her relationship with the Board had broken down, her conduct at Board meetings and her wider interaction with the Board. I cannot say that it is impossible the Tribunal will find the shareholder letter to have been the reason or principal reason, but I cannot say it is likely either. 103.2. Mr Wakeford may not have written to shareholders, but he did not do any of the other things the Respondent relied on as grounds for dismissal either. 103.3. The Claimant was suspended well before she wrote to the shareholders. That might – I put it no higher – lead the Tribunal to conclude that the Respondent had concerns about the Claimant’s conduct and her relationship with other directors independently of the letter. 103.4. The Claimant was not dismissed close after the letter was sent. It might be that the Tribunal finds that this was no more than the Respondent getting its case to dismiss in order, but it might also be – again, I put it no higher – that the Tribunal will accept the Respondent’s case that what it discovered about her incurring legal costs in May 2024 was what led it to decide to dismiss. 103.5. The Claimant herself says, and Mr Nuttman submitted, that the Claimant’s removal from the Board and her dismissal were a powerplay by Ms Hackett and Mr Christoli. Again, I cannot say whether the Tribunal will find that this was the reason or principal reason for dismissal or not, but it is likely to feature in its deliberations on that question. 103.6. Finally, the Tribunal is likely to at least consider the Panayiotou point, for example whether the fact of writing to the shareholders is properly severable from what doing so signalled for relations at Board level, though that is certainly something the Tribunal is likely to scrutinise with great care if it finds, contrary to my expectation, that the letter was a protected disclosure.

[104]In summary, the Claimant may overcome by more detailed evidence and argument all of the above points, but I cannot say at this interim stage that it is likely that she will. For this reason, too, therefore, her application for interim relief must fail.

[105]The application having failed, there is no need for me to go on to consider the parties’ cases on the terms of any interim relief order.

Conclusions

[1]The Claimant’s application for interim relief was heard on 18 July 2024. A Reserved Judgment, with Reasons, dated 10 August 2024, and refusing the application, was sent to the parties on 13 August 2024. I explained in paragraph 3 of those Reasons why it was not possible to give an oral judgment on the day of the Hearing itself. The relatively short delay in preparing the Judgment and Reasons was due to my being on annual leave for two weeks at the end of the working day after the Hearing, that leave being followed immediately by other judicial commitments.

[2]For reasons unknown to me, the Claimant’s application for reconsideration of the Judgment was not referred to me until 24 September 2024, more than a month after it was received by the Tribunal. I directed that a letter be sent to the parties on 24 September explaining the resulting delay in dealing with the application. I apologise to both parties for that delay.

[3]The application for reconsideration was plainly made within the time limit set by rule 71 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”). In accordance with rule 72(1) of the Rules, the first step is for me to consider the Claimant’s application, to determine whether there is any reasonable prospect of the original decision being varied or revoked. I have decided that there is not, for the reasons that now follow.

[4]I refer to the Judgment and Reasons for the relevant background, a full summary of the relevant documentation and submissions, a statement of the relevant law, and my conclusions. I do not repeat that here, except as necessary to explain my decision in relation to the reconsideration application. Except as stated below, references to paragraph numbers relate to the Judgment and Reasons.

[5]There are essentially two grounds for the reconsideration application: 5.1. The first concerns the question of whether it is likely the Tribunal at the final hearing will find that the Claimant’s letter of 28 March 2023 to shareholders was a protected disclosure. Whilst the application refers to my finding that it was not a qualifying disclosure, that is incorrect on two counts. First, I was careful to avoid definitive findings; my task was to decide whether it was likely that the Claimant would establish certain matters at the final stage. Secondly, I found that it was likely that she would establish that the letter was a qualifying disclosure, but that it was not likely she would establish it was a protected disclosure. 5.2. The second ground is essentially that I failed to give sufficient weight to certain matters, or may not have considered them at all, on the question of whether it was likely the Tribunal would find that a protected disclosure was the reason or principal reason for the Claimant’s dismissal. I deal with each of these two grounds in turn.

[7]In relation to the alleged protected disclosure (or, as it may be, disclosures) contained in her letter to shareholders of 28 March 2023, the Claimant submits that I made an error of law and/or reached a perverse decision. In short, she says that if that letter was also sent to the Respondent’s directors, it was thus sent to her employer (the Respondent) and covered by section 43C of the Employment Rights Act 1996.

[8]The first point to make about that submission is that if the Claimant believes that I have made an error of law or reached a perverse decision then her remedy must be to appeal. The reconsideration process is not the appropriate means of challenging a decision on this basis.

[9]In any event, I respectfully disagree with the submission for the following reasons: 9.1. The application refers first to paragraph 92 but, in that paragraph, I did no more than summarise my conclusion on the question of whether it is likely the Claimant will show that the letter was (or included) one or more qualifying disclosures. The question of whether they were protected disclosures plainly has to be considered separately. 9.2. The application then refers to paragraph 39. In that paragraph however, I did no more than set out the content of the covering email by which the Claimant sent the letter to the directors for onward transmission to the shareholders. 9.3. As I set out at paragraphs 79 and 93, that email is not relied on by the Claimant as a protected disclosure, or at least that is not how her case is pleaded, nor was it argued on this basis before me. I refer to paragraph 4 of her Grounds of Complaint, which were professionally drafted. Paragraph 39 of those Grounds, to which the reconsideration application also refers, does no more than recite how the disclosure was sent to shareholders, namely by means of the covering email. 9.4. The Tribunal at the final hearing might come to a different view, but I am confirmed in my conclusions at the interim relief stage by the fact that the dismissal letter – which the Claimant regards as a “smoking gun” in support of her complaint that the dismissal was automatically unfair – said that writing to shareholders was ill-advised. The Claimant must therefore, it seems to me, rely on the fact of writing to shareholders and/or what she said to them (not to the directors) as the basis for her case. 9.5. In no sense do my conclusions mean that “any report prepared by a whistleblower which contained qualifying disclosures, and which was sent to their employer, would not give them the benefit of protection”. My conclusion was simply that I think it likely the Tribunal will find that, if there was one or more qualifying disclosures in the letter of 28 March 2023, it or they were sent to the Respondent’s shareholders and not to the Claimant’s employer. 9.6. Even if this first ground were a proper basis for reconsidering my decision, which I do not accept it is, it would be of no consequence to do so, given that I see no reasonable prospect of the second part of my decision being varied or revoked. That is that any protected disclosure is not likely to be found to have been the reason or principal reason for dismissal, to which I now turn.

[10]Before dealing with the seven bullet points the Claimant sets out in support of this second part of her reconsideration application, I should deal with her general submission that those seven points may not have been taken into account in my deliberations. I note the following: 10.1. First, just because a submission is not expressly recorded does not mean that it was not considered. This is generally accepted to be the case in relation to all employment tribunal judgments and, in this instance, I specifically made this point clear at paragraph 75. 10.2. The delay in deliberating and producing the Judgment and Reasons had no impact on my consideration of the competing arguments. In fact, it enabled me to re-read in full the parties’ written submissions, my detailed notes of their oral submissions, and the various documents to which they referred me – see paragraph 4 – before reaching my decision.

[11]I turn now to the seven bullet points in which the Claimant sets out the matters she believes I may have failed to consider.

[12]The Judgment and Reasons specifically referred to: 12.1. The Claimant’s stated belief that certain Board members were not acting in shareholders’ best interests – see for example paragraphs 37, 38, 39, 40 (including its various sub-paragraphs), 49.1 and 88. 12.2. The fact that Mr Chriscoli was put at risk – see paragraph 25. 12.3. The settlement discussions with him – see paragraphs 27 and 31.3. 12.4. The subsequent proposals to increase pay and notice periods for him and/or other directors – see paragraphs 36, 37 and 40.9. 12.5. The Claimant’s stated belief that Mr Chriscoli had an incentive to remove her – see paragraphs 50 and 103.5. If he did, it does not follow that it is likely the Tribunal will conclude that the incentive was any protected disclosure; it is more likely on the face of the Claimant’s own argument to be that he felt she was seeking to remove him and wanted to avoid that happening.

[13]As to the second bullet point: 13.1. I was aware of, and explicitly recorded, the fact that the documentation shows that the restructure was not a new topic of discussion at the time of the Claimant’s suspension – see paragraphs 15, 16, 19, 20 and 21. Further, I do not agree that Mr Chriscoli’s statement failed to refer to that being the case – the Judgment and Reasons mention in particular paragraphs 11 and 14 of his statement which make reference to previous discussions. The suspension preceded any alleged protected disclosures by three months and thus, even if the Claimant can show that it was “an overreach”, it cannot be said that it is likely to follow that she was dismissed for making the later disclosures. It might, but the fact of the suspension could be viewed as supporting the contrary assertion – see paragraph 103.3. 13.2. The Claimant’s stated belief that elderly directors may have been misled may have been part of her disclosure(s), but I do not see how it necessarily follows that this was something which should have been taken into account in deciding whether it is likely she will show that any such disclosure that was protected was the reason or principal reason leading to her dismissal. Furthermore, whilst the Claimant asserted that elderly directors were being misled, this is not something which it could be said on the face of the documents she is likely to establish at full trial (though she may do so), even accounting for what she says about Mrs Bessell’s email of 21 December 2023.

[14]I explicitly recorded that the Claimant was excluded from Board meetings – see paragraphs 34, 35, 40.6 and 91. I did not, and do not, share the Claimant’s view that it is likely she will show that her disclosures were “the only key event” explaining that fact, particularly when the exclusion from the meetings, like the suspension, preceded any disclosures. See also paragraph 103 and its various sub-paragraphs.

[15]As the reconsideration application recognises, I very much took account of the position of Mr Wakeford, but see paragraph 103.2.

[16]I was not invited either in Mr Nuttman’s written submissions (paragraph 50 thereof did not do so), nor in his oral submissions, to take into account that the Respondent did not await the outcome of the Narrow Quay HR investigation before dismissing the Claimant. In any event, this is not a factor that I consider leads to any reasonable prospect of my decision being varied or revoked.

[17]Whilst it is correct that the dismissal letter did not refer to the issues that led to the Claimant’s suspension or to the purchase of shares by Mr Wakeford, I carefully considered the contents of the dismissal letter in reaching my decision – see paragraph 103.1 in particular.

[18]The burden of proof at the final hearing and the decision in Kuzel were specifically noted at paragraphs 67 and 68. It is clear from what was said in that case by the Employment Appeal Tribunal (a part of its judgment approved by the Court of Appeal) that the Claimant will be required at the final hearing to show a real issue as to whether the reason put forward by the Respondent was not the true reason for dismissal. If she does, the Respondent will then be required to prove the reason for dismissal. Of course, the Claimant had the burden in the Hearing before me of showing that it is likely that she will establish at the final hearing that a protected disclosure was the reason or principal reason for dismissal.

[19]On the basis of what is set out above, I see no reasonable prospect of my changing the decision I have already reached in relation to what it is likely the Tribunal at the final hearing will conclude on the question of the reason for dismissal. I must have regard to the importance of finality in this discrete part of the litigation. Nothing that the Claimant has said or submitted in her reconsideration application in this respect provides any reasonable ground for varying or revoking my conclusions set out at paragraph 103 and its various subparagraphs. In short, the application is an attempt to re-litigate the application for interim relief, in large part rehearsing arguments and evidence already considered and otherwise referring to matters which could have been so rehearsed.

[20]The Claimant’s application for reconsideration is therefore refused.