Mr A J Cambridge v Mott MacDonald Ltd: 1400498/2021
EMPLOYMENT TRIBUNALS
Case No 1400498/2021
Between
Mr A J CambridgeClaimantMott MacDonald LimitedRespondentDate 31 March 2022
JUDGMENT
ON AN APPLICATION FOR INTERIM RELIEF The application for Interim relief pursuant to section 128 of the Employment Rights Act 1996 is refused.
REASONS
[1]On the 22nd of January 2021 Mr. Cambridge, the claimant in this case, presented his ET1 claim form to the Employment Tribunal. He set out therein claims of unfair dismissal contrary to section 103A of the Employment Rights Act 1996 and a failure to make reasonable adjustments contrary to sections 20 and 21 of the Equality Act 2010. Mr. Cambridge had been employed for less than a year at the date of his dismissal.[2]It is common ground that the respondent informed Mr. Cambridge of his dismissal on 18 January 2021 and that the decision was confirmed in a letter dated 19 of January 2021.[3]Cambridge asserts that the reason, of if more than one, the principal reason for his dismissal was the protected public interest disclosures he had made in August of 2020. The character of those disclosures was set out in the claim form and a letter, which he sent to the employment tribunal on the 22nd January 2021: “Whistleblowing The Business Risks that I have identified relate to civil engineering advisory and construction projects delivered for Thames Water, United Utilities, Yorkshire Water, and Southern Water. The Environment Agency do also need to be informed because the projects delivered directly impact the environment. Additional Business Risks that I identified in the manner Mott MacDonald is operating include:• Information Security;• Project Management Systems; and• Concealment. In doing this I highlighted that Chris Bolton (Design Manager) and Charles Wilson (Principal Modeller) were delivering projects that posed further Business, as well as Health & Safety Risk. The legal breaches of the civil engineering advisory and construction projects delivered, as well as the impacts in the manner Mott MacDonald is operating, will be presented during the Employment Tribunal. I have raised requests to provide information and evidence through a Public Interest Disclosure on the 19th January 2021 with the Environment Agency and the Water Services Regulation Authority (Ofwat), and have also submitted a Whistleblowing enquiry to Ofwat on the 21st January 2021, as a direct consequence in acknowledging Mott MacDonald’s pressing need to recover property (laptop, data, and information). Mott MacDonald have not issued an equivalent investigation report for the Business Risks that were identified in the same way was done for the Grievance investigation, and the last communication I had from Paul Hockley on the 21st December 2020 at 15:05 was that there was sufficient information to close out the Business Risk investigation. The reasons as to why an equivalent report for the Business Risk investigation was not issued will require exploration during the Employment Tribunal, as well as indeed the approach that was followed because I was not liaised with nor kept updated on progress. As should be evident in my Claim Statement, I have been overwhelmed with the Human Resource aspects that have caused detriment. Today (22nd January 2021) the Environment Agency have provided a link to report an Environmental Incident, so that evidence can be provided as part of a Public Interest Disclosure.[4]Some of the references above date certain disclosures on, or after the 19th January 2021; they postdate the respondent’s decision to dismiss Mr Cambridge. "Whistleblowing I have raised requests to provide information and evidence through a Public Interest Disclosure on the 19th January 2021 with the Environment Agency and the Water Services Regulation Authority (Of vat), and have also submitted a Whistleblowing enquiry to of vat on the 21st January 2021, as a direct consequence of Mott MacDonald's' pressing need to recover property (laptop, data, and information). Mott MacDonald have not issued an equivalent investigation report for the business Risks that were identified in the same way was done for the Grievance investigation. The reasons as to why an equivalent report for the Business Risk investigation was not issued will require exploration during the Employment Tribunal, as well as indeed the approach that was followed because I was not liaised with nor kept updated on progress. As should be evident in my Claim Statement, I have been overwhelmed with the HR aspects that have caused detriment. Interim Relief I would be grateful if the Employment Tribunal process, at this time especially, was able to grant and order Interim Relief. "[5]Whilst the pleaded references are to disclosures, or requests for information relating to disclosures, which postdate the dismissal, it was not contested before me that on the 31st August 2020 (and sent again seven days later) the claimant submitted a written concern, in part, about the quality, and potential adverse impact, of the respondent's advice and plans for clients who were, inter alia, public water companies supplying fresh water and sewage/drainage services to the public and businesses. That document was supported by 23 appendices.[6]The respondent does not admit that the claimant's complaint contained disclosures, nor that they were qualified. Further the respondent does not accept that the claimant had a reasonable belief that the information tended to show a relevant breach for the purposes of section 43B nor that the claimant had a reasonable belief in the public interest in his disclosures. Finally, I note that the respondent is robust in its assertion that the claimant's dismissal was not tainted by the content of the claimant's complaint.[7]This hearing was listed for three hours and the parties were asked to inform the tribunal if that listing was insufficient. The respondent produced a bundle of 381 pages and a detailed witness statement. The claimant produced a bundle of around 190 pages. The hearing commenced a little after 10.00. At 12 o'clock, a copy of the claimant's complaint document and its 23 appendices was sent to me by email. It was not possible to consider the documents and determine the merits of the claimant's application in the allotted time.[8]I finally note that the respondent, for the purposes of this interim application, was willing to concede that the claimant had a "pretty good chance" of proving that he had made a protected public interest disclosure in his criticism of the respondent's plans and advice. That offer was a pragmatic one; solely with the purpose of trying to assist me to reach a decision on the day and, as was clearly expressed, did not reflect any acceptance that the claimant could succeed at the eventual liability hearing.[9]It took some time to read the 500 pages of documents and there was a further delay caused by the failure of my computer's hard drive. The issues and the law Interim relief[10]The issues that I have to decide today are those set out in sections 128 and 129 of the Employment Rights Act 1996. Section 128 provides: 128 Interim relief pending determination of complaint(1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (I) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met, may apply to the tribunal for interim relief.(2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date).(3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application.(4) The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing.(5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.[11]In this case, the claimant asserts that the reason or the principal reason for his dismissal was reasons specified in section 103A of the Employment Rights Act 1996 so that he may apply to the tribunal for interim relief. Section 129 provides that: 129 Procedure on hearing of application and making of order(1) This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii) paragraph 161(2) of Schedule to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b) that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met.(2) The tribunal shall announce its findings and explain to both parties (if present)— (a) what powers the tribunal may exercise on the application, and (b) in what circumstances it will exercise them.(3) The tribunal shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint— (a) to reinstate the employee (that is, to treat him in all respects as if he had not been dismissed), or (b) if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.(4) For the purposes of subsection (3)(b) “terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed” means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal should be regarded as continuous with his employment following the dismissal.(5) If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect.(6) If the employer— (a) states that he is willing to re-engage the employee in another job, and (b) specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions.(7) If the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect.(8) If the employee is not willing to accept the job on those terms and conditions— (a) where the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and (b) otherwise, the tribunal shall make no order.(9) If on the hearing of an application for interim relief the employer— (a) fails to attend before the tribunal, or (b) states that he is unwilling either to reinstate or re-engage the employee as mentioned in subsection (3), the tribunal shall make an order for the continuation of the employee's contract of employment[12]I referred to the following cases:[13]In Taplin v C Shippam Ltd [1978] ICR 1068, the Employment Appeal Tribunal held, at paragraph 23 and 24: “23. We think that the right approach is expressed in a colloquial phrase suggested by Mr. White. The Tribunal should ask itself whether the applicant has established that he has a 'pretty good' chance of succeeding in the final application to the Tribunal.[24]Although the Chairman of the Tribunal expressed the burden of proof differently from the way which we have done we do not consider that there is any real difference of emphasis. He thought that 'likely' meant more than 'probable' and he regarded 'probable' as being '51% or more'.” 14. That this is a higher test than on the balance of probabilities is clear from paragraph 24. 15. In Ministry of Justice v Sarfraz [2011] IRLR 662, Underhill J said at paragraph 14, “…in order to make an order under ss.128–129 the judge had to have decided that it was likely that the tribunal at the final hearing would find five things:(1) that the claimant had made a disclosure to his employer;(2) that he believed that that disclosure tended to show one or more of the things itemised at (a)–(f) under s.43B(1);(3) that that belief was reasonable;(4) that the disclosure was made in good faith; and(5) that the disclosure was the principal reason for his dismissal”. 16. The “pretty good chance” test applies to each of the elements in a claim under s103A Employment rights Act 1996. It was also confirmed in that case that ‘likely’ is a significantly higher degree of likelihood than on the balance of probabilities, being 51% or more. The claimant is required to show, therefore, in respect of each element of the claim that he wants to bring that he is likely to be able to prove each of those elements at a final hearing. 17. I referred to a number of other cases including His Highness Sheikh Khalid Bin Saqr Al Qasimi v Robinson UKEAT/0283/17/JOJ and Raja Secretary of State for Justice [2010] UKEAT 0364/09/1502. 18. In Al Qasimi v Robinson, HHJ Eady approved the dicta of His Honour Judge Shanks in Parsons v Airplus International Ltd UKEAT/0023/16: “ On hearing an application under section 128 the Employment Judge is required to make a summary assessment on the basis of the material then before her of whether the Claimant has a pretty good chance of succeeding on the relevant claim. The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself. In giving reasons for her decision, it is sufficient for the Judge to indicate the “essential gist of her reasoning”: this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not say anything which might pre- judge the final determination on the merits.” 19. In Raja v Secretary of State for Justice it was held: “What a Tribunal has to do in an application for interim relief is to examine the material put before it, listen to submissions and decide whether at the final hearing on the merits "that it is likely that" that Tribunal will find that the reason or reasons for the dismissal is one or more of those listed in section 129(1). What is clear is that the Tribunal must not attempt to decide the issue as if it were a final issue” 20. Those cases say that I am not required to make any findings of fact, in fact I ought not to do so for fear of prejudicing any future tribunal, but that I should carry out a summary assessment on all the material before me. Protected disclosures and unfair dismissal 21. The claim that the claimant is bringing is that he was unfairly dismissed under section 103A of the Employment Rights Act 1996. This says: “An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made protected disclosure. 22. A protected disclosure is defined by section 43B of the Employment Rights Act 1996. This provides: 43B Disclosures qualifying for protection (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. (2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. (3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. (4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice. (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). 23. Section 43 C provides, as far as is relevant: 43C Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure . . .— (a) to his employer, or… 24. The elements of a protected disclosure are, therefore,a. that the claimant has disclosed informationb. that she reasonably believed that that information tended to show one or more of the things listed in subsections a - f of section 43B (1)c. that she reasonably believed that she was making disclosure in the public interest; andd. that the disclosure was made to the claimant’s employer[25]For the purposes of this application the claimant must show that it is likely that he will be able to prove each of these matters to the final tribunal.[26]In respect of the disclosure of information I referred to Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR and Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 CA. In Cavendish the Employment Appeal Tribunal made it clear that there must be the disclosure of information consisting of conveying facts rather than the making of allegations. In Kilraine, the Court of Appeal confirmed disclosure of information.[27]The test of reasonable belief in respect of the tendency to show one of the matters in section 43B(1)(a) – (f) is a mixture of a subjective and objective element: was it objectively reasonable for the claimant to believe that the disclosures tended to show a relevant breach?[28]The test of reasonable belief in respect of the public interest is subjective. In Chesterton global Ltd v Nurmohammed [2017] EWCA Civ 979, the Court of Appeal confirmed that private complaints may also include or amount to complaints in the public interest. There is not necessarily a clear distinction between the two - there may be some overlap.[29]The relevant breaches on which the claimant relies are subsections, (b) and (d) of section 43B(1). Namely that a criminal offence has been committed or is likely to be committed, that a person has failed, is failing or is likely to fail to comply with any legal obligation, or that the health or safety of any individual has been or is likely to be endangered.[30]This means that the claimant will at the final tribunal have to show that the disclosures on which he relied in his reasonable belief tended to show that one of these things was happening.[31]In respect of those breaches, there must be something in the disclosures which identifies the breach of legal obligation, criminal offence or health or safety risk which the claimant believes that the information tends to show.[32]In respect of the causal link between any disclosures that claimant makes and the reason for her dismissal, the burden of proving that the reason he was dismissed was the making of protected disclosures will, in the final hearing, fall to him. (Boulding v Land Securities Trillium (Media Services) Ltd (2006) UKEAT/0023/06).[33]In Abernethy v Mott, Hay and Anderson [1974] ICR 323,330, Cairns LJ set out the well-known explanation of what the employer’s reasons for dismissal means: “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.” In El-Megrisi v Azad University (IR) In Oxford UKEAT/0448/08/MAA, Underhill J (P) held: “But in a case where a Claimant has made multiple disclosures s 103A does not require the contributions of each of them to the reason for the dismissal to be considered separately and in isolation. Where the tribunal finds that they operated cumulatively, the question must be whether that cumulative impact was the principal reason for the dismissal”.[34]The claimant is not, therefore, required to identify a direct causal link between particular disclosures and his dismissal - it will be sufficient if he can show that cumulatively, any disclosures (individually or cumulatively) he made were the sole or principal reason for his dismissal.[35]However, I remind myself of the nature of an interim relief application. It must appear to me that the claimant has a “pretty good chance” or proving that, firstly, each of the disclosures on which she relies meet the tests set out above and that, secondly some or all of the protected disclosures (if they so be) were the reason or principal reason for the claimant's dismissal.[36]There is no dispute that the claimant presented a written complaint which, in part, criticised the respondent’s plans and advice on construction and alteration to drains and sewers which served numerous domestic dwellings and commercial premises as well as public highways. The 23 appendices which supported the above complaints disclosed additional information in the form of plans and reports.[37]There is no dispute that the said documents were provided to Mr. Cambridge’s employer, nor that the respondent received and considered the information; I have been referred to the detailed interim and final response prepared by a manager who evaluated the merits of Mr. Cambridge’s complaints. Further, the investigation and report predated the decision to dismiss.[38]The respondent has accepted, for the purpose of this hearing alone, that the claimant has a pretty good chance of establishing that he had a reasonable belief in the information disclosed and, given the claimant’s specialist technical qualifications and professional experience as an engineer (the detail of which he set out in writing and his oral submissions) I find that he has a pretty good chance of establishing that he reasonably believed that the errors which he perceived might cause flooding, damage to watercourses and the escape of sewage; which might reasonably be perceived as likely to cause a risk to health and safety.[39]I am generally less certain of the merits of his assertion that there was an effort to “cover up” any breach of a legal duty or the risk of a breach of health and safety.[40]The respondent has accepted, for the purpose of this hearing alone, that the claimant has a pretty good chance of establishing that he had a reasonable belief in the information disclosed. Given the claimant’s specialist technical qualifications and professional experience as an engineer (the detail of which he set out in writing and his oral submissions) I find that he has a pretty good chance of establishing that he reasonably believed that the errors which he perceived might cause flooding, damage to watercourses and the escape of sewage; which might reasonably be perceived as likely to cause a risk to health and safety.[41]Mr Cambridge also asserts that the conduct of the respondent might have amounted to criminal conduct and an effort to "cover up" it's wrong doing.[42]In Mr Cambridge's bundle he produced excerpts of the statues and regulations to support his argument. These I have read and I accept that he may well establish a breach of a legal duty However, I do not consider it necessary to evaluate his alternative arguments when I have concluded that his case is sufficiently strong on his primary submission. 43. 10. The most contentious issues before me centred on the claimant's reasonable belief in the public interest. The positions can be summerised briefly: Mr. Cambridge states that the potential impact of the errors he perceived were obviously likely to be ones which would adversely affect the public who suffered flooding. He argued that sewage in the water course or damage to water course was an environmental concern. Mr Cambridge reproduced Wikipedia pages for three of the water companies and drew my attention to the degree to which they had been fined for their failures to maintain the expected standards; the adverse press reports and the accounts of their public relations. All of which corroborated his view that he was very likely to persuade a tribunal in his favour on this issue.[44]The respondent's case highlights the chronology of events; each stage of which was cross referenced in Ms. Balmer's skeleton argument to contemporary documents which corroborated her argument. The essence of her argument was simple; the claimant made the asserted disclosures in August 2020; after he became aware that a number of his colleagues, (some junior, some his peers and his line manager) had been expressing concerns about his demeanor towards his colleagues, his unwillingness to do what was asked of him and his preference for doing that which he wished to do. Further, it was only after his probationary period had been extended that he raised his complaints. His complaints were made against those who, by raising their concerns, put the claimant’s employment in jeopardy.[45]Thus Ms. Balmer argues the claimant does not have a pretty good chance of establishing that the public interest was part of his motivation at all.[46]I remind myself that it is perfectly possible for a claimant to establish that a disclosure of information which is in part a private concern can also be reasonably believed to be of public concern.[47]Whilst I have concluded that Mr Cambridge's case on his belief in the public interest is clearly arguable it is also evident that there is a body of documentary evidence which might inhibit his prospects of proving that he believed his disclosures were in the public interest at the relevant time. The Employment Tribunal Panel which decides this case may well hear evidence from the former colleagues of Mr Cambridge, he will be cross examined on his motivations.[48]However, as the respondent has, only for the purpose of this hearing, conceded that the claimant has a "pretty good chance" I will take the matter no further.[49]I record that it is not disputed that following Mr Cambridges' August 2020 complaint the respondent commenced a grievance investigation on the 28th August 2020, a grievance hearing and grievance appeal hearing. Overall that process led to acknowledgments that communication with the claimant by his managers could have been better but otherwise found that the complaints about his behaviour were sincere and reasonable. There were a number of recommendations made with the purpose of enhancing Mr Cambridge's prospects of successfully completing his probation.[50]A separate investigation, considered Mr Cambridge's concerns about the competence and risks in the respondent's plans and advice. It found some merit in his criticisms and made recommendations.[51]Mr Cambridge did not accept that any of the above processes were adequate responses.[52]In December 2020 the respondent remained of the view that Mr Cambridge's performance had not shown adequate improvement and a further extension of his probation was allowed. The Reason for the Dismissal[53]On the 12th January 2021 Mr Cambridge received an invitation to attend a meeting on the 15th January to review his progress in the most recent period of his probation. He declined because he had another meeting. When informed by HR that the respondent would speak to the participant(s) in the other meeting Mr Cambridge did not inform the respondent of the identity of the other participants and subsequently did not attend his probation review. The meeting was rearranged for the 18th January 2021.[54]Mr Cambridge attended that meeting (via telephone) and the respondent made a note of the discussion. The issues which the respondent wanted to consider were: “1. Recent absence without leave (AWOL) 2. Missed meetings 3. Refusal to work 4. Not following process and procedure (timesheets, requesting leave) 5. Not meeting requirements of the fee-earning role 6. Failure to engage with support and recommendations 7. Competencies and behaviours”[55]I have had the benefit of reading the notes of this meeting in detail. The notes identify a series of specific events, absences and alleged procedural failures along with allegations concerning behaviour by the claimant which, on the respondent's account, were of the same character as those raised by Mr Cambridge's colleagues since June 2020. Some of the alleged failings were instances of alleged misconduct rather than performance.[56]Again, from the notes, Mr Cambridge's response was not to deny the factual assertions but to repeatedly state, as mitigation, that his behaviours had to be judged in the context of his August 2020 complaints. He also warned that the respondent should bear in mind his intention to commence proceedings in the Employment Tribunal.[57]It is not my role to make findings of fact and I shall not do so. It is sufficient to record that, if the Employment Tribunal Panel which decides this case found the respondent's allegations to be substantiated or found that they were ones which the respondent genuinely and reasonably believed then, the respondent would have a substantial factual foundation to support its argument that the decision not to further extend Mr Cambridge's probation period (or confirm his employment without a further period of probation0 was wholly based on Mr Cambridge's conduct and underperformance subsequent to the averred protected disclosures.[58]The respondent also has a further, apparently sound, argument that its conduct between the 7th August 2020 and the 18th January 2021 weighs against a conclusion that it was motivated to dismiss Mrr Cambridge consequent to his disclosures; it had twice extended his probation when there was, on its case, a rational basis for dismissal on both prior occasions of the extension of Mr Cambridge's probation.[59]Deciding this case will necessarily involve the evaluation of witness evidence on contentious matters of fact which are evidently in dispute.[60]I also bear in mind the claimant's short length of service and the guidance in Kuzel v Roche Products Ltd [2008] ICR 799, [2008] IRLR which the panel at the final hearing will take into account.[61]Taking into account all of the above, whilst Mr Cambridge has an arguable case and one which may succeed, his claim for unfair dismissal contrary to section 103A of the Employment Rights Act 1996 does not have a "pretty good chance".[62]For the above reasons I must refuse Mr Cambridge's application for interim relief.