Employment Judge P CadneyMr D Green for claimantMs R White for respondentDate 1 October 2020
JUDGMENT
The unanimous judgement of the tribunal is as follows: –[1]The reason or principal reason for the claimant’s dismissal was redundancy. It was not that he had made a public interest disclosure, nor was he selected for redundancy for that reason.[2]Accordingly the claimant’s claims of automatically unfair dismissal under section 103A and 105 of Employment Rights Act 1996 are not well founded.[3]The claimant was not subjected to any detriments for making a Public interest disclosure.[4]The dismissal for redundancy was procedurally unfair.[5]If a fair procedure had been carried out there is a 100% chance that the claimant would have been dismissed fairly within the notice period. REASONS.[1]The claimant presented a claim to the employment tribunal on the 25th of April 2019. The respondent responded on the 28th of May 2019. In his original claim form he identified only a claim for unfair dismissal. In July 2019 the claimant applied to amend to add claims of detriment and dismissal for making a public interest disclosure (PID), which was allowed at a case management hearing on 20th November 2019. See pages 36 to 46 of the joint bundle. There is now an agreed list of issues provided by counsel just before the commencement of this hearing, to which some additions were made at the suggestion of the Tribunal during closing submissions.[2]Background chronology. In this part of the judgement the tribunal will refer to the witnesses by their initials as follows: – the claimant as “the claimant” or DC; his supporting witness, Janine Vitaly as JV; the respondent’s witnesses, Patrick Rao as PR, (he was compliance director of the parent company up to 31 October 2019), Stephen Epinette as SE, (he was vice president and general manager of EMEA, and the claimant’s line manager at the time of the claimant’s dismissal on notice on 11 October 2018 with effect from 3 January 2019), and Shaelia Lambarth as SL ( she was Director of global talent acquisition of the parent company, and, from March 2018, she took on the EMEA HR function, to which she was formally appointed as leader on 1 September 2018. The claimant was the only witness to give evidence live to the tribunal, it being a hybrid hearing. JV presented a witness statement but did not give sworn evidence to the tribunal. The respondent’s witnesses all gave evidence to the tribunal by CVP, PR and SL from New York State, and SE from Lyon, France. There are signed witness statements from all of these witnesses. 2.1. The claimant commenced employment with a predecessor of the respondent, Zimmer Ltd, in 1996. In July 1998 the claimant’s employment transferred under TUPE to the current respondent, whose name was subsequently changed to ConMed UK Limited in 2013. 2.2. From March 2015 to January 2016 he was director of marketing, orthopaedics and general surgery. SE joined ConMed as vice president/General manager of EMEA in October 2015, at which time he became line manager of D.C. 2.3. Conmed Corporation, based in New York state is the parent company of a number of European subsidiaries including French, Belgian and Spanish companies as well as ConMed UK Limited. Although it has never been explained fully in the evidence to the tribunal, despite requests, it appears that these companies operated through an entity known as EMEA , “Europe, Middle East and Asia”. At the request of the tribunal an organisation chart was produced by the respondent showing the 2018 EMEA leadership team prior to the claimant’s notice of dismissal, allegedly for redundancy. This identifies SE as vice president/general manager; SL as HR lead; DC, in his then position as director of medical education, Xavier Planas, based in Belgium, as director of marketing orthopaedic; and Laurent Lagarde, as director of marketing general surgery, based in Spain. These were all employed by various of the European Companies except for SL, who remained an employee/Director of the parent Company in New York. The President of ConMed Corporation was Pat Beyer, to whom SE reported. John Farrell was vice president of ConMed, and Mark O’Brien was Corporation director of clinical education. As stated above, PR was compliance director of ConMed Corporation. 2.4. SE did the claimant’s appraisal for 2016 in March 2017. Pages 179 to182. From January 2016, the claimant had been appointed director of marketing, orthopaedics alone and not general surgery, by SE. 2.5. On 7 July 2016 PR delivered a compliance presentation in Barcelona. Papers and power points are at pages 122 to 178. Attendees included the claimant, SE and Mr Beyer. 2.6. On 9 March 2017, SE conducted a performance review with the claimant at a time when he was still director of marketing orthopaedics. The note of that appraisal is at pages 179-182. The claimant’s appraisal score was 2.4 out of 5. Also material to the issues in this case, was a reference to the claimant’s responsibility for building a medical education (Med-Ed) Program with corresponding marketing material, and a reference by SE to “follow up ROI and Conversions”, the significance of which the Tribunal will explain later. The concluding comment by SE at page 182 is also material to the issue whether SE was considered to be performing well in that role or not. 2.7. As from the 1st of July 2017 the claimant was moved from the director of marketing orthopaedics to a new post of director of medical education (Med – Ed). This was a post created by SE, we accept, for the claimant in order to assist him in finding what SE described as his “sweet spot“. The appointment was notified in an organisational announcement dated 29th of June 2017 from SE at page183. A dedicated department of Med Ed was to be created under the claimant’s leadership. There is a job description for the new post dated August 2017 at page 250. The purpose of the position and the principal responsibility was “for all aspects of the professional education, both internal and external“. Of particular importance to the case were two bullet points : “Knowledge of and adherence to all Sunshine Act and compliance requirements for agreements. All activities completed in a well documented and compliant manner. Prepare materials for the compliance committee.”; and “Assessment of the success and failure of educational activities in driving safe and effective use of company products“. 2.8. The business of the respondent, and of EMEA, was the marketing and sale of medical devices. These were demonstrated at courses and seminars for healthcare professional (HCP) attendees, held in Europe and elsewhere and organised by EMEA, the responsibility for which was, from July 2017, that of the claimant. HCPs were also to be appointed under the direction of the claimant to perform the presentations.Consultancy agreements were entered into with the presenters. 2.9. On 19th July 2017 PR made a further presentation on healthcare compliance in Copenhagen, the notes of which are pages 187-221. Attendees again included the claimant, SE and Pat Beyer, the President of the parent company, and SL. Of particular relevance is a PowerPoint at page 191 which summarised the requirements of the ConMed policy on consulting agreements, which must be in writing; must have a legitimate need and purpose for the services in advance; selection based on qualifications and expertise NOT on past, present or future sales; compensation based on the fair market value of the services; and, the services must be documented. 2.10. Compliance. The provision of medical education in the form of seminars and conferences gave rise to significant compliance issues. It was recognised in the 1990s and early 2000s that there had been impropriety and abuses in the payments offered to HCP attendees and presenters in the form of bribes, incentives and other improper payments designed to promote the sale of particular manufacturer’s products. This was also a feature of the pharmaceutical industry. This is described by PR in paragraphs 7 to 8 of his witness statement. We broadly accepted his evidence to the tribunal as being accurate and truthful. PR had given presentations on compliance issues in 2017 and 2018. We accept that he was an expert on the topic. We now describe in summary form the the various features of the safeguards in place in the US and elsewhere to prevent the abuses described. In the US, these included the Sunshine Act and the Foreign Corrupt Practices Act , which applied to foreign officials, defined as officers of government organisations which, in Europe and in the UK, could include National healthcare organisations such as the NHS; and thus to medical consultant presenters and attendees who could be in a position to influence the sale and purchase of the medical products of particular manufacturers. The FCPA had extraterritorial effect with regard at least to American companies and their subsidiaries abroad. It provided for criminal sanctions and deferred prosecution agreements with the US Department of Justice. Specific provisions prohibited the making of payments or other improper inducements such as excessive expense payments, or the linking of payments to the sale of a manufacturer’s products in the past or in the future. There was an investigation body set up to police these provisions, the OIG. The federal provisions were reflected in Conmed’s healthcare code of ethics of 2011 (pages 95 to 104), and 2015 (pages 112 to 118); and the healthcare compliance programme of 2016 at pages118A to M. These provisions included a mechanism for employees to report suspected violations and that the respondent would not allow retaliation against employees found to have reported in good faith. 2.11. Much of the cross examination of the claimant by Ms White, and of PR and SE by Mr Green, was taken up by the meaning and significance of the expression ROI (return on investments). If there was evidence that a manufacturer was collecting data relating to sales in connection with training seminars, that could be relied upon by the investigating authorities as evidence of an intention to breach the restrictions upon improper payments. The claimant’s position may be summarised that the context in which he was requested to produce evidence of ROIs was that he should demonstrate that there was a direct correlation between the Med- Ed programmes arranged by him and sales of Commed’s products of a kind clearly prohibited by the US federal laws and Conmed’s codes of ethics. The respondent’s position was that, while financial ROIs were prohibited, There were other indirect ways of demonstrating return on investment directed towards educational and training activities in terms of the assessment of the value of the training provided by means of feedbacks, and in assessing the subsequent use of the training . It accepted that there were strict limitations on the remuneration which could be offered to HCP presenters. 2.12. Returning to the chronology of events, on the 29th of January 2018 there was a performance appraisal of the claimant by SE to be found at pages 298-301.. This was a review of the 2017 period goals. The claimant was ascribed a score of 3.1 out of 5. SE is recorded as commenting in relation to the goal of “follow up ROI and conversions“ – I didn’t see any work on ROI or conversions yet. This is yet to be implemented in 2018”. As for the goals for 2018 the claimant records: “ensure follow up and engage with directors to validate our ROI”. SE records: “ensure follow up and develop a sustainable process to analyse ROI for each event”. 2.13. There are a series of communications in the first part of 2018 which the respondent relies upon to demonstrate genuine concerns at the performance of the EMEA against projections for the first quarter onwards . See in particular 16th of March 2018 at page 314 where a headcount freeze on recruitment is imposed; and SE’s email to the claimant of the 14th of June 2018 at page 332. These demonstrate a need for savings. On the 27th of August SE emailed to the team concerns about the projections for the third quarter against budget. See page 412. SE asked for an action plan to recover the lost ground “by the end of this week“. One of the attachments was the weekly forecast for week five in August. The claimant’s response to these communications is that there is little hard documentary evidence of these concerns of the kind one would have expected in an organisation of this size. 2.14. On 17th July 2018 PR gave a compliance update presentation in Naples attended by the claimant, SE and others. At page 341 there is a repeat of the basic prohibition on making or offering to make a corrupt payment to a foreign official for the purposes of obtaining or retaining business. 2.15. On 19th of July 2018 the claimant gave a presentation on ConMed Med Ed to the ELT in Naples (pages 364 to 386). At paragraph 21 of her witness statement SL is critical of the claimant’s performance at this presentation, although there is no evidence that this view was ever expressed at the time. 2.16. There are however emails between SL and SEo dated the 20th of August page 393 and 23 August page 395 expressing negative views of the claimant at a talent review. There is a reference to “performance management”. 2.17. On 3 September 2018 SL emailed John Ferrell, ConMed corporation’s vice president headed “DLA Piper,” the respondent’s UK solicitors, with specific reference to DC. See page 424: – “We are moving forward with a plan for (DC).I am hoping to connect with some questions from our council (sic) DLA Piper. Can you point help point me in the right direction? We are looking into a couple of things: – 1. Could we do a role elimination versus performance management? 2. If we put him under David (David Kearns) and then terminate – will there be issues? 2.18. These matters all took place before a chain of events set in motion on 4 September by SE’s email of that date and leading to the claimant’s claimed PIDs. SE’s email is timed at 8:53 am. “I am working on the agenda of the next ELT. Can you prepare a 15 to 30 minute presentation on the methodology to calculate our return on investment for our Med Ed courses? I also would like to see the first dashboard with data of our past courses from this long in the past as possible. This dashboard can then be also included in the monthly business review. I think Tableau should now help to get very accurate data.”. (Tableau is an aid to the presentation of information, which could include financial information, but is not in itself the source of that information). At 9:49 am the claimant emailed Mark O’Brien, ConMed corporation’s director of clinical education, under the subject heading “Measuring adoption (ROI) of medical education programmes”. O’Brien was on holiday at the time and did not respond until the 12th of September with a paper and attachment headed “Measuring search and education effectiveness”. In the meantime, the claimant emailed a copy of SE’s email to PR at 16.36 pm asking for advice. He stated: – “I understand that there may be an issue with correlating actual financial ROI and medical education and it may be a problem from a compliance perspective. I know that Mark O’Brien has been working on an alternative system of recording conversion of customers following medical education courses. My question is how should I respond to SE? It looks to me if he is asking me to do the impossible? I clearly don’t want to make an issue but if I reply saying that what he is asking me is not in compliance, how should I word that response please?”. At 16.41 pm that day the claimant responded to SE’s email of 8:53 am above: – “I will investigate the best way to get what we need. I have been speaking to Mark O’Brien on the system that he is working on to measure adoption, within the compliance rules. I will ask to see what the latest compliance position is so that we remain within those rules. As you know there is a difficult correlation between recording medical education results and the actual ROI, however there may be alternatives that I will look into”. See page 425. This exchange is identified as being the claimant’s first PID. 2.18. PR responded to the claimant’s questions in his (C’s) email at 21.06 (New York time) on 13 September . Page 476. This was headed “Attorney Client Communication. Privileged and Confidential”. “You have asked for guidance regarding whether and how it would be appropriate to measure ROI For ConMed sponsored surgeon training events. As you actually note, this activity has compliance and legal risks. For example in the US the OIG (whose functions include investigation into waste, fraud and abuse of federally funded medical programs) has issued guidelines requiring that the payment of educational grants should not be connected to sales and marketing activities. While these guidelines are more focused on industry sponsored CME., the same underlying concerns apply to company sponsored training. This does not mean, however ,that we cannot or should not measure the effectiveness of our training programs, however. Instead of measuring whether our training classes have resulted in an increase in surgeons using our products, we can, for example, measure whether the training resulted in more positive patient outcomes. As I told you when we spoke, you are not the only person that has asked for guidance on this subject. Other parts of our business are seeking to evaluate the effectiveness of the surgeon education programs as well. Given the risks involved here, and the fact that we are looking to do this type of activity on a broader scale, I am proceeding as follows: – I will come up with some guidelines as to the specific types of information we can evaluate, and that means for obtaining that information. I would appreciate your input on this, as you are closer to the activity. To this end, I will set up a call for us to discuss this next week. Once we have developed the draft guidelines, I will review them with the compliance committee, which meets at the end of the month. Once approved by the committee, I will release them to the organisation. In the meantime , I ask that you hold off on performing any type of ROI analyses on our training programmes”. 2.19. The claimant did not forward this to SE until 15.08 19 September 2018. See page 477. He wrote: “Let’s discuss this more in Geneva”. This is identified as the claimant’s second PID. 2.20. The meeting between the claimant and SE did take place in Geneva on 21 September. The claimant compiled a handwritten list of topics he wished to discuss in a notebook which , it is agreed, he habitually used and carried around with him. These are listed under 6 headings followed by two #s. It is not clear at which stage parts were written, and if before during or after the meeting, and in what order they were discussed. Most important is the note in the left hand margin where the claimant records what he claims was SE’s verbatim response to the raising of compliance issues – item 6-: “ SE: if you didn’t mention it to Pat Rao (forward arrow) it wouldn’t be an issue”. This is the claimant’s third PID, and is also claimed as a reprimand, and one of a number of detriments for making his earlier PIDs. 2.21. It is appropriate to review now the decisions and actions in respect of DC claimed to have been taken internally by the respondent after 4 September 2018. 2.22. In the meantime, the respondent had been seeking advice from DLA Piper on the way forward with regard to the claimant as first envisaged in SL‘s email of the 3rd of September to John Ferrell. See paragraph 2.17 above. The advice itself is the subject of legal advice privilege claimed by the respondent and the subject of argument before another EJ immediately before the start of this hearing, but the process leading up to it and thereafter was the subject of further communications disclosed at the outset of the hearing at pages 699 back to 695. There is a chain of emails where SL is discussing with Kalisher Banks, ConMEd Corporation’s Director of legal affairs, the obtaining of the claimant’s contract of employment and the respondent’s disciplinary process in a handbook. On 13 September Miss Banks is in direct contact by email with Tim Marshall, apparently a DLA Piper Solicitor, re “ potential redundancy situation in the UK“. See page 704. It appears that a teleconference was fixed, to be attended also by SL and SE, which took place on Thursday, the 20th of September – see page 706. It further appears that a decision was taken at that time or shortly thereafter to go down the redundancy route. There were also a series of telephone discussions SL had with SE prior to the 21st September meeting between SE and the claimant in Geneva. It also appears to have been agreed that the claimant would not be told that his post would be at risk of redundancy at the meeting on the 21st of September, but was told of the necessity for cost savings. 2.23. The claimant was not told by SE that his job was at risk until the second meeting at Lucerne which took place on the 25th of September. SE followed it up with a letter dated the 25th of September emailed to the claimant on 26th of September see pages 482 and 481. 2.24. The letter notified the claimant of a provisional decision to restructure the EMEA medical education function whereby the medical director role would be eliminated and a more junior level events coordinator would be added in Belgium. Not explained to the claimant at that stage was that some of the claimant’s responsibilities were to be shared between the two marketing director roles then filled by Xavier Planas and Laurent Lagarde. A first consultation meeting was arranged by phone to take place on 4 October 2018. 2.25. The claimant email to himself a description of the meeting, on 26 September 2018 at page 483. It is not in dispute that SE said at the meeting on 25th of September that he was looking to make budget cuts of €500,000. The claimant indicated that he would go away and make proposals for budget cuts. On Tuesday, 2 October 2018 Claimant sent to SE his detailed suggestions for budget cuts which are set out in the document at page 486. 2.26. The only consultation meeting took place by telephone on the 8th of October between 13 and 13:24 hours.See notes at pages 497 to 500. These are the notes prepared by JV who attended as the claimants companion. These are not in dispute. 2.27. Between 8th and 11th of October, as promised at the telephone conference, there were email exchanges between SL and CD concerning vacancies within the business. SL sent a list of 17 open positions in EMEA throughout Europe including the UK. Clearly, these were not at the same level of seniority as the claimant’s then director post.On 8 October the claimant emailed SL to enquire about a project management position related to the RUGBE project. SL responded on 9 October at page 505 confirming initially that no marketing management position in that project was being hired. However later that day SL confirmed that an assistant product Manager role was opening in the Largo, Florida office, but that it would not be open to an internal candidate working from the UK. 2.28. By letter dated 10th of October – Page 507 – SE wrote to CD confirming his dismissal for redundancy and placing him on garden leave in the meantime. The claimant was notified of his right of appeal to Pat Beyer, but subsequently did not do so. There were however further communications, in particular between the claimant’s then solicitor, Kervin Barnes, from 24 October, page 512, setting out in detail a claim for an enhanced redundancy payment. the respondent replied via Kalisher Banks on 25th of October and Kevin Barnes responded on 29th of October. It was not agreed that the claimant was entitled to an enhanced RP. 2.29. The claimant’s notice period expired on the 3 January 2019. There were no direct communications between the respondent and the claimant in the interim period. 2.30. This concludes a chronology of the main events.[3]The relevant statutory provisions and the tribunal’s self directions on law assisted by Counsel’s closing written and oral submissions. 3.1. Whistleblowing. In order to qualify for protection as a whistleblower, the employee or worker must satisfy the tribunal that he or she made a qualifying disclosure as defined in Section 43B of ERA 1996. This contains a list of 6 categories of wrongdoing of which those specified in Subsection (1) (a) and (b) are material: “ … 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. . We are reminded that a mere undetailed allegation, for example ‘you are in breach of a legal obligation’ without more would not qualify for protection. There must be sufficient factual content and specificity to show or tending to show a belief in the particular wrongdoing. See Kilraine v Wandsworth LBC 2018 ICR page 1850. it is not not necessary for the worker to prove that an actual breach of a criminal offence or a breach of a legal obligation had in fact occurred or was likely to occur, or to specifically identify it, although it is not uncommon for a claimant to attempt to prove it at a hearing, and not uncommon for an employer to seek to disprove it, thus wasting time. It is merely necessary to show a reasonable belief, not that it was objectively correct. See Babula v Waltham Forest College 2007 ICR page 1026. A failure or a criminal offence is likely to occur if it is “ probable or more probable than not”. See Kraus v Penna plc 2004 I RLR page 260. It has not been alleged by the respondent during this hearing that, if the claimant made a disclosure of wrongdoing in his reasonable belief, he did not believe that it was in the public interest. It has also not been alleged by the respondent that it did not qualify for protection under section 43C as being made to his employer or other responsible person. If it was a qualifying disclosure, it was made to his line manager,SE, and to PR, who was the compliance director. Accordingly, if the claimant made a PID, the next issue is whether the claimant was subjected to a detriment because he made it. Section 48(1A) sets out the right to make a claim for detriments to a Tribunal. Detriment is not defined in the Act, but it has been defined in Shamoon v Chief Constable of the RUC 2003 ICR House of Lords approving the definition in Ministry of Defence V Jeremiah, a detriment is a disadvantage. A detriment exists if a reasonable worker or might take the view that the actions of the employer were to his detriment. The acts which the claimant relies upon as detriments are set out in paragraph 12(a) to (g) of the list of issues. It is to be noted that Section 48(2) of the. Act reverses the burden of proof to the effect that if the worker proves the act said to constitute the detriment, the burden shifts to “the employer to show the ground on which any act or deliberate failure to act, was done”. The provision protecting a whistleblower from dismissal is in Section 103A. This provides that “ An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or if more than one the principal reason) for the dismissal is that the employee made a protected disclosures.” It is agreed that the burden here lies upon the claimant. 3.2. The claimant’s alternative position is that if at least the principal reason for the initial dismissal decision was not that he had made a PID, but redundancy, the actions of the employer were caught by the provisions in section 105 of the Act expressly relating to redundancy. This section provides that: – “(1). An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if – (a) the reason (or, if more than one the principal reason) for the dismissal is that the employee was redundant,(b) it is shown that the circumstances constituting redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer, and(c) it is shown that any of sections subsections 2A to 7N applies. In this case the relevant subsection is subsection 6A. “This subsection applies if the reason (or, if more than one, of the principal reason) for which the employee was selected for dismissal was that specified in section 103A . It is agreed, by way of amplification of paragraph 9 of the list of issues, that this imports the following 3 stage test:[1]Is it shown , in this case by the employer, that the reason or principal reason for dismissal was redundancy.[2]Is it shown that the circumstances applied equally to, in this case, the two Marketing Directors, Xavier Planas and Laurent Lagarde? Were they employed in the same undertaking? Were they not dismissed? It is not in dispute that neither of them were dismissed. Accordingly the tribunal has to decide whether they were employed in the same undertaking as the claimant, whether they were in similar positions to the claimant’s, and whether and the redundancy circumstances applied equally to them, or their jobs. There is no definition of “Undertaking” in the Act . In his oral submissions Mr Green referred us to a decision of Phillips J. in Kapur v Shields 1976 ICR p26. He refers to ” some evidence of organisational unity, eg concurrent accounting, management, purchasing arrangements… and so on”. This passage is contained in paragraph 8.15 of the IDS brief on Redundancy, dealing with Section 105. This passage also refers to Macaskill v John G McGregor (Stornoway) Ltd EAT 705/79 ( unreported), as authority for the proposition that the effect of the wording of Section 105(1) (b) is that it does not apply to the dismissal of an employee on the ground of redundancy who holds a unique position within the undertaking, although such a dismissal may be unfair under Section 98(4) of the Act. We have not been able to find the case on the EAT website. The term ‘position’ is defined in Section 235 of the Act as meaning the following matters taken as a whole: ‘The status of an employee; the nature of his work, and his terms and conditions of employment’.[3]Was the reason or principal reason for his selection that he had made a PID.? 3.3. Unfair dismissal. Redundancy is one of the grounds for dismissal recognised in Section 98(2). In the context of this case, the issue is whether the respondent has proved that the requirements of the business for a Director of Medical Education, as work of a particular kind under Section 139(2)(b), had ceased had ceased or diminished, or were expected to cease or diminish, and was that the reason or principal reason for the claimant’s dismissal? If yes, the Tribunal then has to apply with a neutral burden of proof the test of fairness under Section 98(4) of the Act: “ The determination of the question whether the dismissal is fair or unfair ( having regard to the reason shown by the employer)-(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case”. In a redundancy dismissal case, As Lord Bridge said in Polkey V A E Dayton Services Ltd 1988 ICR page 142 “the employer will not normally act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and take such steps as may be reasonable to avoid or minimise redundancies by redeployment within his own organisation”. In the present case there are three areas of concern raised by the claimant set out in paragraph 2 of the list of issues. It is said that the process was undertaken within due haste; that the respondent failed to properly to consider the savings identified by the claimant; that there was in this case a failure to identify an appropriate pool for selection, including the two marketing directors who occupied positions previously held by the claimant, as to which the tribunal was referred to Capital Hartshead Ltd v Byard 2012 ICR page 1256; and that was no proper consideration given to redeployment. Were we to find that there was procedural unfairness in any of these respects, it is not open to the respondent to argue that the unfairness made no difference to the outcome such that the dismissal was must be found to be fair. However, that is a matter which the Tribunal may consider at the remedy stage in assessing what the chances were that if a fair procedure had been carried out, the claimant would have been dismissed in any event , and, if so, when.[4]Conclusions. 4.1. We considered the PID issues first: – Has the claimant satisfied us that he made sufficient disclosure of factual information tending to show, in his reasonable belief at the time, that it was more probable than not that a criminal offence or a breach of a legal obligation would occur? The arguments (and the evidence underlying them) are finely balanced. On the one hand, it was within the claimant’s power whether he chose to produce a presentation which included the prohibited FROI which would have raised a risk of a criminal offence or a breach of a legal obligation. All he was doing was seeking advice as to how to produce a presentation using alternatives which would not have constituted wrongdoing. We do not consider after the event, which is consequently not relevant, that SE was in fact asking the claimant to act unlawfully in this respect, but that is not relevant to the claimant’s state of mind as of the 4th of September 2018. In the circumstances we find on the balance of probabilities that at that time, when he gave the original reply to SE at 16.41 on the 4th of September the claimant did have the relevant reasonable belief that, were he to follow the original instruction from SE, which he interpreted as including financial sales Information in his 15-30 minute presentation, there probably would be a serious risk of relevant wrongdoing ( criminal offence or breach of a legal obligation by him and the respondent ), were it to come to light. That risk was substantially reduced by the time of PR’s careful response of 13 September 2018 when, inter alia, he advised the claimant to hold off on performing any ROI analysis. The response confirmed that the measurement of ROI did have ‘compliance and legal risks’. The claimant had, however, established entitlement to protection as a whistle blower in his reply to SE at 16.41 on 4 September, even though he said he would look into alternatives. We are conscious of the necessity of not placing the bar too high for a whistleblower to overcome. 4.2. We next considered whether the respondent has established that the reason or principal reason for dismissal was redundancy. We are satisfied that it was at least the principal reason why he was dismissed for the following reasons: First, there is a coherent chain of evidence from the respondent before any PID pointing to genuine concerns about a fall in income against projection, for example, see page 412, and about the need need to make cost savings. These communications up to 27 August are summarised more fully at paragraph 2.13 above. Secondly, only the day before SE’s email, it is clear that the claimant’s future was already under threat, either by way of role elimination, a less than euphemistic synonym for redundancy, or performance management, which could itself have been a step leading to dismissal. It reflected a less than favourable view of the claimant’s performance, which we accept the SE held and was at least to some extent supported by the claimant’s appraisals in his former marketing jobs, and his previous move from a marketing to the Med- Ed role in attempt to find his ‘sweet spot’. That view may well have played a small part in the respondent’s decision- making process, but it was not the reason or principal reason for his dismissal. Thirdly, it is highly material that the claimant never mentioned a suspicion that he was being dismissed because of his PIDs to anyone at the respondent up to his late application to amend in July 2019, having presented his claim in April 2019. He did not mention it during the redundancy consultation meeting on 8 October 2018. Having taken advice from a solicitor in October about the calculation of his redundancy payment, it is reasonable to conclude from its complete absence from the solicitor’s subsequent detailed correspondence, that the claimant cannot have suggested that there was a completely different reason for his dismissal. The claimant not did take up the respondent’s offer of an opportunity to appeal to Pat Beyer, and having regard to the sympathetic reception he received from PR, we can see no basis for the claimant’s belief that it would not have been dealt with in good faith. Fourthly, we consider it significant that, having regard to the claimant’s particular responsibility in a senior position for compliance issues, and his knowledge of the procedures for raising concerns about such issues within the organisation, the claimant must have been aware of the protection afforded to whistleblowers. That makes it even more surprising that he did not raise the issue in his own case until very late in these proceedings. In all of these circumstances, we consider that it must have been added to bolster the strength of his primary complaint of unfair dismissal. It does not suggest a genuine belief that PID was a reason for dismissal. Finally, there is the fact that a French sales director responsible for sales in North and South France with substantial travelling overheads was also made redundant at the same time as the claimant, and SE also played an important part in that decision, and his duties were shared between two lesser paid sales managers. This supports the proposition that the claimant’s position was also made redundant as a cost saving measure. 4.3. We turn now to the issue whether or not the claimant has established that he was subjected to any detriment because he had made a PID or PIDs. The first detriment claimed relates to the remark which SE is alleged to have made at the meeting in Geneva on 21st September 2018. That requires us to make a specific finding as to what was said by SE, with what intention and why. SE says that he cannot recollect having said it, but that is unsurprising having regard to the time since the conversation took place. We have accepted that SC did in fact say words to the effect of those alleged in the claimant’s hand written note, not least because of the very minor grammatical tense error in the use of the word ‘didn’t’ rather than ‘hadn’t’ , a mistake easily made by someone whose first language was not English, albeit that SE clearly spoke excellent English. However, we do not accept that what is said amounted to a detriment. This is against the background that SE did not accept that the instruction he had given to the claimant had been to collate FROI of a prohibited kind. It has to be noted that the use of the term ROI had occurred at earlier appraisal meetings, used both both by SE and the claimant. The claimant had not raised any issue or concern about it in the past. We accept that SE’s instruction to the claimant had been to find a way of measuring non-financial ROIs. We consider it probable that SE was merely indicating that it was unnecessary in those circumstances for the claimant to have gone to PR. We reject the claimant’s contention that it was a reprimand amounting to a detriment of the kind prohibited by the Act. All of the other detriments short of the dismissal we reject upon the basis that they did not constitute acts, as opposed to unexpressed opinions about the claimant , which were not put to either SE or SL in cross examination. There was no evidence that their opinions about the claimant altered over the period from 4 September, accept for the undoubted fact that at a telephone conference on 20 September , a final decision to go down the redundancy route, was made. It must have been around that time that SL did become aware that the claimant had communicated with PR, as she says in paragraph 22 of her witness statement, but we do not accept that the proximity of the two had any influence upon the decision. There was no basis for a finding that the principal reason for dismissal was the making of a PID. There were no detriments. 4.4. That leaves the alternative way in which the claimant puts his case, that his selection for redundancy was because he had made PIDs. We have set out the issues above. We can summarise our conclusions shortly. First, we accept that both the claimant and the two marketing directors were employed in the same undertaking, namely “EMEA”. There was clear organisational unity of the kind described by Phillips J in Kapur. We do not accept however that the claimant as a Director of medical education was in a similar position to those of the two marketing directors. The claimant had in the past been in those positions but had been moved to a different job created for him; and the performance of the two marketing directors was not in issue. The claimant has not established by evidence that they were similar positions as defined in Section 235. His position was unique within the organisation , as in the Macaskill case. 4.5. We find however that the dismissal was procedurally unfair. It was done with undue haste. The single consultation meeting was done with considerable haste, and did not consider properly or engage with the claimant’s cost saving proposals , which were however, hardly adequate. In addition, the respondent only considered alternatives for redeployment for 3 days, and not during the notice period. We do not find however that it was unfair not to include the two marketing directors within a pool, for reasons similar to the reasons for rejecting the section 105 claim. The claimant’s job was unique. The marketing directors’ jobs were directly income producing and there were no concerns about the marketing directors’ performance. The decision not to have a pool was one that clearly fell within a band of reasonable responses. That noted, however, we find that if a fair procedure had been followed it would not have extended his employment beyond the end of the notice period. We do not accept that any comparable or otherwise acceptable jobs would have become available during a period of cost cutting at a senior level. The claimant has not suggested that any did become available. He did not raise any enquiries in the notice period, and he chose not to appeal his dismissal, in circumstances where he would have had the possibility of enquiring about other jobs. 1 October 2020. Employment Judge Hargrove Online publication of judgments and reasons The Employment Tribunal (ET) is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and written reasons since February 2017 are now available online and therefore accessible to the public at: https://www.gov.uk/employment-tribunal-decisions The ET has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in anyway prior to publication, you will need to apply to the ET for an order to that effect under Rule 50 of the ET’s Rules of Procedure. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness.[1]The respondent’s application for costs is dismissed.[2]The claimant’s application for a preparation time order is dismissed.
REASONS
[1]The final hearing of this claim took place on over five days from 21st – 25th September 2020. On the morning of the 21st September 2020 EJ Christensen separately heard the claimant’s application for specific disclosure which she granted to the extent set out below. The respondent has sought an order for a proportion of its costs relating to the claimant’s whistleblowing claims; and the claimant has sought a preparation time order in respect of the application before EJ Christensen. The whistleblowing claims which form the basis of the respondent’s application were not explicitly brought as part of the claimant’s original claim but were permitted to be added by way of amendment at a hearing on 19th November 2019. EJ Hargrove who chaired the final hearing has now retired and is not available to hear these applications; and EJ Cadney has been appointed by REJ Pirani to hear them together with the non- legal members, Ms Mayo and Ms Meehan who were both part of the panel at the final hearing. ---1--- Respondent’s Costs application[2]The tribunal made the following findings: i) The claimant’s claim for “ordinary” unfair dismissal was upheld as the dismissal was procedurally unfair; ii) No award of compensation was made on the basis of a 100% Polkey reduction resulting from the finding that had a fair process been followed the claimant would still have been dismissed during the notice period; iii) The claimant had on 4th September 2019 made a protected disclosure within the meaning of s43B of the Employment Rights Act 1996 ; but iv) Whilst as a matter of fact the tribunal accepted the claimant’s evidence that the words said to constitute the “first detriment” were spoken, it was held not to be a detriment: and all the other alleged pre-dismissal detriments were also dismissed. v) The reason or principal reason for his dismissal was not that he had made the protected disclosure and the claim for automatic unfair dismissal (s103A ERA 1996) was dismissed.[3]In summary the claimant’s claim that he had been unfairly dismissed was upheld, albeit without any award of financial compensation, but his whistleblowing claims were all dismissed.[4]The factual basis for the respondent’s application are comments/findings made by the tribunal in the reasons. At paragraph 4.2 the tribunal sets out five reasons for accepting the respondent’s evidence that the reason or principal reason for dismissal was redundancy and not the protected disclosure. The tribunal’s finding was that this was ”at least the principal reason”. In summary it accepted firstly that there was evidence prior to the PID relating to the need to make cost savings; secondly that the evidence showed that “the claimant’s future was under threat” on the day before the PID; and fifthly that another sales director was made redundant at the same time as the claimant. The respondent relies on the third and fourth reasons, and in particular the last two sentences of the fourth reason (our underlining below): “Thirdly it is highly material that the claimant never mentioned a suspicion that he was being dismissed because of his PIDs to anyone at the respondent up to his late application to amend in July 2019 , having presented his claim in April 2019. He did not mention it during the redundancy consultation meeting on 8th October 2018. Having taken advice from a solicitor about the calculation of his redundancy payment it is reasonable to conclude from its complete absence from the solicitor’s subsequent detailed correspondence, that the claimant cannot have suggested that there was a completely different reason for his dismissal . The claimant did not take up the respondent’s offer to appeal to Pat Beyer, and having regard to the sympathetic reaction he received from PR , we can see no basis for the claimant’s belief that it would not have been dealt with in good faith. ---2--- Fourthly, we consider it significant, that having regard to the claimant’s particular responsibility in a senior position for compliance issues, and his knowledge of the procedures for raising concerns about such issues within the organisation, the claimant must have been aware of the protection afforded to whistleblowers. That makes it even more surprising that he did not raise the issue in his own case until very late in these proceedings. In all these circumstances, we consider that it must have been added to bolster the strength of his primary complaint of unfair dismissal. It does not suggest a genuine belief that PID was a reason for dismissal.[5]In addition the respondent relies on a “Calderbank” offer made on 14th September 2019 which it submits was a reasonable and sensible offer of settlement when set against the claimant’s original schedule of loss based upon his case of unfair selection for redundancy, but which was very significantly increased after he was permitted to amend to add the PID claims. Law[6]The law is not essentially in dispute. The respondent relies on Daleside Nursing Home Ltd v Matthew as authority for the proposition that ”deliberate untruthfulness” should normally result in an order for costs; the claimant refers to Arrowsmith v Nottingham Trent University [2012] ICR 159 as authority for the proposition that the position is more nuanced, and that Daleside did not establish a proposition of general principle. In respect of the Calderbank offer both parties agree that the failure to beat a Calderbank offer is not in and of itself the basis for making a costs order but is a factor to be taken into consideration. Submissions[7]The respondent contends that the threshold for the making of a costs order within r76 has been crossed in that it is:- i) “Vexatious” to bring a claim in which the claimant has no genuine belief; ii) To act “abusively” “ to bring “a false claim which he must have known was a very significant matter to a company where medical ethics and proprietyand so compliance- were the life blood of the company”; iii) To act “disruptively” to have applied to amend to include a claim in which he had no genuine belief thus causing the postponement and delay in hearing his claim for unfair dismissal; iv) To act “otherwise unreasonably” to have rejected a genuine and reasonable offer to settle his claim and/or to serve an inflated schedule of loss reflecting a claim in which he had no genuine belief.[8]The essence of Ms White’s submissions is that the tribunal’s findings speak for themselves. It is self-evidently vexatious to bring a claim in which the claimant has no genuine belief in order to “bolster” another claim. However it is ---3--- described and within whichever description of behaviour attracting a costs sanction within rule 76 to act in that way is the improper conduct of proceedings.[9]The claimant submits that the threshold for making an order for costs has not been crossed: i) The matters relied upon by the respondent are cherry picked and have to be seen in the light of all the tribunal’s findings. Firstly when looked at overall the claimant succeeded in demonstrating that he had made a protected disclosure and “had established entitlement to protection as a “whistleblower”, succeeded in that the tribunal found as a fact that the matters relied on as the “first detriment” had occurred; and succeeded in that his dismissal was found to be procedurally unfair, as it was carried out with undue haste, and that the consultation did not engage with the claimant’s cost saving proposals. As the selection for redundancy occurred very shortly after the disclosure and in the circumstances described above not only did the respondent retain the legal burden of proving the genuine reason for dismissal but on any analysis those facts as found by the tribunal put the question of the reason for the dismissal genuinely in issue. When looked at in context the findings of the tribunal demonstrate that he had acted entirely reasonably in bringing the whistleblowing claim. ii) Whilst the claimant accepts that this is not an appeal and the costs application must be based on the tribunal’s findings, the findings relied on play no part of the statutory test. Whether the claimant believed in his claim or not is not relevant; and it is commonplace in tribunal litigation for a claimant to place a set of facts before the tribunal from which the tribunal is invited to infer that the respondent’s actions were, for example, discriminatory. It would be counterintuitive if the making of a costs order in those circumstances depended on the fervency of the claimant’s belief in his or her claim rather than an objective analysis of the facts. iii) The evidence which the tribunal accepted, and which allowed the respondent to discharge the burden of proof, had largely only been disclosed on the first day of the hearing (see below) following the ruling of EJ Christensen. It is somewhat remarkable to criticise a claimant for bringing and pursuing a claim which, but for material only disclosed after the hearing had started might well have succeeded. iv) Daleside does not establish a point of general principle (Arrowsmith) but even if it did this case bears no relation to it. Daleside involved the fabrication of a factual allegation. The tribunal has not in this case rejected the claimant’s evidence let alone made a finding that any of it was fabricated. v) Finally the claimant relies on the fact the after giving the oral Judgment EJ Hargrove commented to the effect that although no award had been made to the claimant that the parties should remember that he had in fact won his unfair dismissal claim. The claimant took this a slightly delphic hint that a costs application was at very least not being invited. ---4---
Conclusions
[10]The EJ has been greatly assisted, having not himself been part of the panel which heard the claim, by the non-legal members who were. Their joint recollection is that this was not an easy case to resolve and that there was a significant question as to the true reason for dismissal; there was evidence and argument which supported the claimant’s case which they had to consider carefully. However as is set out in the judgement in the end they accepted that the contemporaneous documentation showed that the respondent was contemplating redundancies, and that the claimant’s position was at risk prior to the protected disclosure; and that the redundancy process was not solely directed at the claimant. As a consequence of accepting this evidence they accepted that redundancy, and not the protected disclosure was the principal reason for dismissal. It is of significance that to a large extent that evidence was only disclosed on the first day of the hearing.[11]In those circumstances the tribunal is unanimously of the view; firstly that the failure to accept the Calderbank offer when the question of the reason for dismissal was genuinely in issue and when a significant part of the evidence had not been disclosed does not fall within any r76 category and has not crossed the threshold for an award of costs either individually or taken together with the other matters. Secondly that the claimant had not acted unreasonably in pursuing the whistleblowing claim, again in particular as the ultimate resolution of the case turned to a large extent on evidence disclosed very late in the day. In those circumstances the tribunal finds the claimant’s submissions, particularly those summarised at paragraph 9 i) and iii) above persuasive. The tribunal has therefore concluded that it is not persuaded that this a case in which it should exercise its discretion to order the claimant to pay all or any of the respondent’s costs. Claimant’s Preparation Time Order application[12]On the morning of 21st September 2020 EJ Christensen heard three applications although she only ruled on the first, the claimant’s “waiver of privilege application”. This related to documents to at paragraph 11 of the witness statement of Ms Lambarth on which the respondent therefore relied but which it refused to disclose as it had not waived legal privilege. In essence the respondent relied on the fact of the documents existence as demonstrating that it was contemplating redundancy but maintained that the contents were privileged. EJ Christensen did not accept that legal privilege had been waived and therefore the application was dismissed. However, in the exercise of her case management powers she ordered disclosure of what are referred as the chain 1 and chain 2 documents with redactions so to avoid disclosure of legally privileged material. She concluded that the redacted documents were relevant to a number of issues in the case (as set out at paragraph 8 of her order) and that disclosure was necessary to ensure a fair hearing.[13]The claimant contends that given that the respondent wished to rely on the documents as they were referred to in Ms Lambarth’s evidence; and given EJ Christensen’s finding that disclosure was necessary for a fair hearing, that the ---5--- failure to disclose them without the necessity of a hearing and an order was unreasonable within the meaning of r76. The claimant is entitled to a proportion of the preparation time of two thirds of 68 hours (£1820.17).[14]The respondent disputes the assertion that it acted unreasonably:- i) EJ Christensen upheld the respondent’s position that privilege had not been waived and did not order full disclosure. They were therefore at least partially successful in resisting the application. ii) EJ Christensen had to rule on the appropriate redaction as the parties could not agree. She adopted a mid-point between the parties positions and directed disclosure with redactions, with which direction the respondent complied. iii) It had not therefore acted unreasonably in resisting the application.[15]It is in our judgement difficult to identify any unreasonable behaviour on the part of the respondent which would cross the threshold for the making of a preparation time order. It is common, indeed unfortunately frequent, that the tribunal is required to rule on disclosure applications as the parties cannot agree. It is very rare, unless one party’s position is entirely without merit for the losing party to be ordered to pay any costs. In this case the respondent was at least partially successful in resisting the application and despite the fact the late hearing caused late disclosure, this does not appear to us in any way out the ordinary run of case management hearings.[16]For those reasons the claimant’s application is also dismissed.