Mr A Paraskeva v Muller UK & Ireland Group LLP and others: 1403501/2022

EMPLOYMENT TRIBUNALS

Case No 1403501/2022

Between

Mr A ParaskevaClaimant

1. Muller UK & Ireland Group LLP 2. Workforce Staffing Ltd 3. Mierthzeal Ltd 4. JI Dillon Ltd 5. Next Ness Ltd 6. Dorsington LtdRespondent

Before

Employment Judge Oliver

Representing himself for claimant

1. Muller UK & Ireland LLP – Mr Bruce Frew (instructed by counsel) for respondent

Date 18 July 2024

JUDGMENT

[1]The First Respondent’s application to strike out the claims against it is refused.

[2]The First Respondent’s application for a deposit order in relation to the claims against it is refused.

[3]The Second Respondent’s application to strike out some of the claims against it is refused.

[4]The Second Respondent’s application for a deposit order in relation to some of the claims against it is refused.

[5]All claims are therefore to proceed to be considered at a full hearing. Case No: 1403501/2022 _____________________________ Employment Judge Oliver Minor Only use for minor changes like fixes to typos, links, GOV.UK style or metadata. Major This will notify subscribers to ET Decisions. Writing style For style, see the style guide Formatting help Headings Links Bullets Numbered list Legislative list Tables Call to action Abbreviations and acronyms Blockquotes Addresses Footnotes Attachments Add attachment Mr A Paraskeva v Muller UK & Ireland Group LLP and others: 1403501/2022 - Judgment [InlineAttachment:Mr_A_Paraskeva__V_1__Muller_UK___Ireland_Group_LLP_2__Workforce_Staffing_Ltd_3__Mierthzeal_Ltd_4__JI_Dillon_Ltd_5__Next_Ness_Ltd_6._Dorsington_Ltd_-_1403501.2022_-_Judgment.pdf] Mr A Paraskeva v Muller UK & Ireland Group LLP and others: 1403501/2022 - Reasons [InlineAttachment:Mr_A_Paraskeva__V_1__Muller_UK___Ireland_Group_LLP_2__Workforce_Staffing_Ltd_3__Mierthzeal_Ltd_4__JI_Dillon_Ltd_5__Next_Ness_Ltd_6._Dorsington_Ltd_-_1403501.2022_-_Written_Reasons.pdf] Mr A Paraskeva v Muller UK & Ireland Group LLP and others: 1403501/2022 - Judgment [InlineAttachment:Mr_A_Paraskeva_-vs-_Muller_UK___Ireland_Group_LLP_and_5_others_-_1403501.2022_-_Judgement.pdf] Mr A Paraskeva v Muller UK & Ireland Group LLP and others: 1403501/2022 - Certificate of Correction and Amended Judgment with Reasons [InlineAttachment:Mr_A_Paraskeva_-vs-_Muller_UK___Ireland_Group_LLP_and_5_others_-_1403501.2022_-_Certificate_of_Correction_and_Amended_Judgement_with_written_reasons.pdf] Date 24 August 2023 Judgment sent to the Parties on 15 September 2023 For the Tribunal Office Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case No: 1403501/2022 EMPLOYMENT TRIBUNALS Claimant: Mr A Paraskeva Respondents: Muller UK & Ireland Group LLP Workforce Staffing Ltd Mierthzeal Ltd JI Dillon Ltd Next Ness Ltd

[6]Dorsington Ltd Heard at: Bristol (by video) On: 24 August 2023 Before: Employment Judge Oliver Appearances For the Claimant: Representing himself For the respondents: Muller UK & Ireland LLP – Mr Bruce Frew, counsel

[2]Workforce Staffing Ltd – Mr Graeme Lomas, tribunal advocate Mierthzeal Ltd, no attendance JI Dillon Ltd, no attendance Next Ness Ltd, no attendance

[6]Dorsington Ltd, no attendance JUDGMENT having been given orally at the hearing on 24 August 2023 and written reasons having been requested at the hearing in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]I heard applications from both the First and Second Respondents to strike out some of the claims, or in the alternative for a deposit order in relation to some of the claims. Case No: 1403501/2022

Applicable law

[2]The applications for strike out are made under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013: (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success…

[3]In accordance with Cox v Adecco and others

UKEAT/0339/19

I have made a reasonable attempt to identify the claims and issues, and I have taken the Claimant’s case in relation to each claim at its highest.

[4]Case law makes it clear that a discrimination claim should not be struck out except in the plainest and most obvious cases (Anyanwu and another v South Bank Students' Union and South Bank University

[2001] IRLR 305

, HL). Where core issues of fact turn to any extent on oral evidence, these should not be decided without hearing the oral evidence (Mechkarov v Citibank NA

[2016] ICR 1121

, EAT).

[5]The same principles apply for whistleblowing claims. Where there are facts in dispute, it would only be “very exceptionally” that a case should be struck out without the evidence being considered (Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

, CA).

[6]The applications for a deposit order are made under Rule 39 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013: (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.

[7]Deposit order applications involve greater leeway than strike out applications, and the Tribunal can make a provisional assessment of the credibility of a party’s case. This still requires a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or the defence (see paragraph 12 in Hemdan v Ishmail

UKEAT/0021/16

). The First Respondent’s applications

[8]The First Respondent made a clear written application and I also heard submissions from their representative Mr Frew. I do not repeat all these submissions here but I have read and considered them. Direct age discrimination

[9]Strike out. The First Respondent applies for strike-out of the age discrimination claims. The First Respondent says there is a lack of a prima facie Case No: 1403501/2022 case, as there is only one brief reference in the ET1 about passing for “55 when shaven”. They say it is unclear why the cutoff has been given as 60 years of age. The chosen comparator is 58 and therefore it is implausible that any age discrimination would be involved. Mr Frew described this claim as a “stab in the dark”.

[10]The Claimant explained his case as being based on the fact that he was close to retirement age, 63, which the First Respondent did not realise until it was discussed after he started work. He believes he was hired because he looks under 60. He says he was told that other workers were old and coming up to retirement. His comparator was not due to retire for 8 years.

[11]I note the following paragraph in the ET1: the Claimant says he was told during his interview with the First Respondent that “the current team were all long-term employees, older and set in their ways, what he wanted was someone who does not sit around all day and can highlight and fix management issues”.

[12]If this was said, it is prima facie evidence that there may have been age discrimination. This prevents the Claimant’s case from being simply a stab in the dark. This is a matter of evidence that needs to be considered at a full hearing. Taking the claim at its highest, and taking into account the caselaw on not striking out discrimination claims expect in the plainest and most obvious cases, it would not be appropriate to strike the claim out on this basis.

[13]In relation to the comparator being 58, I agree that it would be unusual to have such a small age gap in an age discrimination claim. However, this is based on the Claimant’s point about his proximity to retirement age. I have looked at this in the context of the comment set out in ET1. Again, this turns largely on the evidence about whether this comment was made. On that basis I do not find that the claim has no reasonable prospect of success.

[14]Deposit order. The First Respondent applied in the alternative for a deposit order. I have considered the application for a deposit order carefully. There is a small age difference between the Claimant and his comparator. I have considered whether the claim is sufficiently implausible for it to have little reasonable prospect of success. I find that it is not. This is on the basis of how the claim was put in the ET1 in relation to the comment the Claimant says was made to him, and his explanation today about his proximity to retirement age. Again, this is an evidential issue in relation to whether this comment was said to the Claimant. Although the bar is lower than for strike out, I do not have a proper basis for finding on the material before me today that the Claimant is unlikely to establish these facts. This means it is not appropriate for me to decide today that this claim has little reasonable prospect of success.

[15]Time limits. The First Respondent makes the point that the Claimant is relying on two incidents which are separated in time. They say that the first incident is out of time and does not form part of a continuing act, and should be struck out for this reason. The Claimant’s position is that the claims are linked.

[16]I find that the issue of time limits should be decided at the final hearing. It is necessary to hear evidence to determine if one or both of these incidents were age discrimination, and if so whether they can be linked as continuing acts. In the circumstances it is not appropriate today to make a decision to either strike the Case No: 1403501/2022 claim out or make a deposit order. Whistleblowing claims

[17]Firstly, the First Respondent’s position is that some of the whistleblowing claims are out of time. This might be the case - depending on which claims succeed, whether any of those that do are within time, and whether there is a series of similar acts. However, as with the age discrimination claim, it is an issue of evidence whether some or all of the acts were detriments for whistleblowing, and if so whether they form part of a series of similar acts which ended within time. This is an issue which should be decided at the final hearing.

[18]Secondly, the First Respondent says that there is a lack of a prima facie case in relation to whistleblowing. I have considered their written application. This relies on various denials of the Claimant’s case which are based on documents or other evidence. The Claimant’s position is that he disagrees with what the First Respondent has said, and he says he has evidence that proves otherwise. There is a clear dispute of fact here which will need to be decided on the evidence. As with discrimination claims, strike out in whistleblowing claims should only be used in the most obvious cases. It would not be appropriate to strike out the claim. For the same reason, it would not be appropriate to make a deposit order, as there is no proper basis for finding on the material before me today that this claim has little reasonable prospect of success. The Second Respondent’s applications

[19]The Second Respondent also made a written application and I heard submissions from their representative Mr Lomas. Again, I do not repeat all these submissions here but I have read and considered them. Employment status

[20]The first application relates to whether the Claimant was an employee of the Second Respondent. This issue affects whether the Claimant can bring some of his claims against the Second Respondent. Mr Lomas fairly drew my attention to Evans v Parasol, an EAT decision said it would be a “bold judge” who would strike out a status claim in this type of agency situation.

[21]The Second Respondent says that there is no evidence the Claimant was their employee. The Claimant says that he started work through the Second Respondent, and even if there were potential transfers later he must have been an employee of the Second Respondent at some point. There are unsigned contracts with Respondent 3 to Respondent 6 in the bundle, but the Claimant’s position is that he did not see these at the time, and he was not aware of any transfers of his employment when they are said to have happened.

[22]There is clearly some confusion and dispute about the Claimant’s employment status. The Claimant has explained his reasons why he believes he was employed by the Second Respondent, including the fact his first alleged employment with another respondent was from 12 April 2022, which is after he had started work through the First Respondent. I find that this needs to be considered properly at a hearing with evidence about what happened and when. Taking the claim at its highest, I do not find there is no reasonable prospect of Case No: 1403501/2022 success. I therefore do not strike out the claims. Similarly, I do not make a deposit order. In the absence of full evidence there is no proper basis for finding on the material before me today that this claim has little reasonable prospect of success. TUPE

[23]The Second Respondent says that the Claimant was not their employee at all, and therefore there can be no TUPE claim for failure to inform and consult. Alternatively, even if the Claimant was their employee, any claim would be out of time as the first transfer happened on April 2022. The Claimant says it’s not clear if there was a valid transfer at all. He also says he didn’t know about any transfers until September or October as he wasn’t told about them at the time.

[24]The validity of the TUPE claims turns on the issue of employment status. The Claimant’s state of knowledge about the potential transfers may also provide a reason why it was not reasonably practicable to bring his claim earlier. However, it would be premature to decide this issue at this hearing. If the Claimant was not an employee there would have been no TUPE transfer at all. If he was an employee, then there may be a time issue with his claim against the Second Respondent. This is an issue that needs to be decided at the final hearing. I therefore do not strike out the claim or make a deposit order. _____________________________ Employment Judge Oliver Date 25 August 2023 Reasons sent to the Parties on 15 September 2023 For the Tribunal Office Case Number: 1403501/2022 1 of 84 EMPLOYMENT TRIBUNALS Claimant: Mr A Paraskeva First Respondent: Muller UK & Ireland LLP (R1) Second Respondent: Workforce Staffing Ltd (R2) Third Respondent: Mierthzeal Ltd (R3) Fourth Respondent: JI Dillon Ltd (R4) Fifth Respondent: Next Ness Ltd (R5) Sixth Respondent: Dorsington Ltd (R6) Heard at: in person at the Bristol Tribunal with one witness giving evidence via CVP On: 3 – 7 June 2024 and then 13 June 2024 (in chambers) and 18 July 2024 (in chambers) Before: Employment Judge Woodhead Mr Hanif Patel Ms Yvonne Ramsaran Appearances For the Claimant: Representing himself For R1: Mr Bruce Frew, counsel For R2: Mr Graeme Lomas, tribunal advocate For R3: not in attendance For R4: not in attendance For R5: not in attendance For R6: not in attendance – and no ET3 submitted Case Number: 1403501/2022 2 of 84

[25]The first respondent presented a response asserting that the claimant was engaged as an agency worker and was not its employee.

[26]The second respondent asserted that the claim was unclear and generally denied the allegations.

[27]The third respondent accepted that the claimant was an employee of it, stated that the claimant had commenced work on 6 September 2022 and was placed at the first respondent’s premises by the second respondent. It stated that it had no control over the actions of the first or second respondent and the issues were for them to resolve.

[28]The fourth respondent accepted that the claimant was its employee from 30 April 2022 until the 17 June 2022 and was placed at the first respondent’s premises by the second respondent. It, too, stated that it had no control over the first or second respondents and suggested that matters were for them.

[29]The fifth respondent stated that the claimant was its employee Case Number: 1403501/2022 4 of 84 between 17 June 2022 and 6 September 2022, that the claimant was engaged at the first respondent’s premises by the second respondent and that it had no control over the actions of the first or second respondent.

[30]On 24 January 2023 Employment Judge Cadney directed that the hearing scheduled for 13 July 2023 would be relisted for a three hour open preliminary hearing to identify the claims, consider striking out the claims and give further directions. He ordered that the claimant provide further information about which claims were being brought against which respondents.

[31]On 1 February 2023 the claimant sent 30 pages of further information.

[32]On 20 February 2023 the parties were sent notice of a three hour video hearing to take place at 10 AM on 13 July 2023.

[33]Meanwhile, on 31 January 2023 Employment Judge Gray indicated that he was considering joining the second and third claims so that they would be heard together. Although no order was ultimately made in that respect, a joint response was presented which stated that the claimant was not engaged by either of those respondents, either as an employee or a worker or an agency worker. It stated that the claimant has never worked at any of the respondent sites or locations. It asked that the case be linked with claim number 1403501/2022. A telephone case management hearing was listed for 1 August 2023 in respect of the case against Culina Group Ltd.

[34]However, on 10 May 2023 Employment Judge Cadney stated that all of the claims would be considered together at the next telephone case management preliminary hearing and the claimant must confirm whether he accepted that he was employed by Workforce Staffing Ltd and was neither an employee nor agency worker for either of the Culina respondents. The parties were sent notice at the hearing would take place on 13 July 2023 at 2 PM.

[35]The claimant replied on 10 May 2023 to say that he was under the belief that he was an agency worker from Workforce Ltd who was sent to work for Muller Milk. He stated that he brought the claim against Culina to prevent him not being able to pursue a claim which would be out of time. 11. At the August PH EJ Oliver [HB243] declined to consider strike out or issue deposit orders on the Claimant’s claims pursuant to applications by R1 and R2. EJ Oliver listed his hearing for 3, 4, 5, 6, 7,10, 11 June 2024 (inclusive) and noted in her decision from the August PH: Direct age discrimination […] 10. The Claimant explained his case as being based on the fact that he Case Number: 1403501/2022 5 of 84 was close to retirement age, 63, which the First Respondent did not realise until it was discussed after he started work. He believes he was hired because he looks under 60. He says he was told that other workers were old and coming up to retirement. His comparator was not due to retire for 8 years. 11. I note the following paragraph in the ET1: the Claimant says he was told during his interview with the First Respondent that “the current team were all long-term employees, older and set in their ways, what he wanted was someone who does not sit around all day and can highlight and fix management issues”. 12. If this was said, it is prima facie evidence that there may have been age discrimination. This prevents the Claimant’s case from being simply a stab in the dark. This is a matter of evidence that needs to be considered at a full hearing. Taking the claim at its highest, and taking into account the caselaw on not striking out discrimination claims expect in the plainest and most obvious cases, it would not be appropriate to strike the claim out on this basis. 13. In relation to the comparator being 58, I agree that it would be unusual to have such a small age gap in an age discrimination claim. However, this is based on the Claimant’s point about his proximity to retirement age. I have looked at this in the context of the comment set out in ET1. Again, this turns largely on the evidence about whether this comment was made. On that basis I do not find that the claim has no reasonable prospect of success. […] […] It is a live issue whether the Claimant was an employee or worker of R2. 71. I drew the case of United Taxis Ltd v Comolly and Tidman

[2023] EAT 93

to the attention of the parties. In this case, the EAT found it was wrong for the ET to find that a claimant was an employee and a worker for two different employers for the same work. The EAT said that the Court of Appeal and the EAT have both considered that to hold that a person was, simultaneously, the employee of two different employers in respect of the same work would be "problematic" (para 44). They also said that the same difficulties would equally arise from dual worker contracts with two different employers, and “the same would be true, therefore, of dual employment with one employer as a worker and the other as an employee. While the EAT in Cairns observed that the problems may not be insuperable, I have not been referred to any authority which discusses how they could be overcome or holds that dual employment is legally possible. I cannot for my part see how they could be overcome” (para 46). […] Case Number: 1403501/2022 6 of 84 74. R6 has not submitted a response to the claim against it. I decided it would not be appropriate to issue a default judgment at this stage, as that would have the effect of finding that the Claimant was an employee of R6 and so prejudge live issues about employment status with the Second Respondent. 12. EJ Livesey held a CMPH on the claim on 25 April 2024 [HB786] (the “April CMPH”). In his note of the April CMPH he said: […] A hearing for Alternative Dispute Resolution was listed for today. Case management directions were made which, in summary, were as follows;14.1 Schedule of Loss; 7 September 2023;

14.2 Disclosure (on a staggered basis); completed by 20 November 2023;

14.3 Hearing bundle to be prepared by the First Respondent; index agreed by 14 December and provided to the other parties by 21 December 2023 (limited to 400 pages + 5%);

14.4 Witness statements; 4 March 2024. 15. Thereafter, things did not go smoothly. 16. To start with, the Second Respondent applied for a postponement of the final hearing due to witness availability problems, which was refused in November 2023. Then, later in November, an application was made to postpone the ADR hearing listed today. That too was refused. 17. In February 2024, the Claimant made a specific disclosure application. That was clearly some significant time after the disclosure process was supposed to have been concluded according to the August Order. He sought;

17.1 Copy contract between the Second Respondents and the Third, Fourth, Fifth and Sixth Respondents;

17.2 Payment transfers made by the First and/or Second Respondent to the Claimant between April and October 2022;

17.3 Copies of BACS payments made by the First and/or Second Respondent to the Claimant in the same period. 18. The Respondents’ resisted the application for a number of reasons. In the meantime, they applied for extension of time in relation to the exchange of witness statements. Extensions were granted to 19 and 26 March 2024 respectively, as was requested. 19. Further, on 26 March, the First Respondent applied for an extension to the hearing bundle, although it did not indicate how many additional pages were being sought. Case Number: 1403501/2022 7 of 84 With Easter, the outstanding disclosure application, the need to finalise the hearing bundle, a condensed bundle for the ADR and exchange witness statements, the First Respondent requested a postponement of the ADR hearing for a minimum of 2 weeks. 20. In reply, on 27 March, the Claimant clarified that he was making 7 applications for specific disclosure against the First Respondent and 3 applications against the Second Respondent. The application was more extensive and nuanced than that which had been advanced initially. 21. It was at that point that Employment Judge Cadney decided to convert the ADR hearing into a Preliminary Hearing to address the disclosure application and give further, consequential directions. 13. EJ Livesey then set out his determination of the specific disclosure application which included the following: 29.7 The respondent to confirm that video evidence supplied by a current employee of the condition of fuel island One will be included as evidence. This was not an application for specific disclosure. The Claimant has the evidence already. If he wishes to play it at the hearing, he should bring suitable playing facilities but, in giving that indication, the Judge sought to give any indication as to its relevance. The Tribunal hearing the case will have to determine that. […] 30.3 Copies of contracts between Workforce and respondents Three, Four, Five and six. Copies of Bacs Payments made by Workforce to these respondents. The Claimant’s case is that he was employed by the Second Respondent, an agency which placed him to work at the First Respondent. The Second Respondent’s case is that he was employed by the Third, Fourth, Fifth and Sixth Respondents and paid by them. There are documents in the hearing bundle which reflect payments made by the First Respondent to the Second Respondent in respect of the Claimant’s work and/or the work of other agency workers. It will be relevant to a determination of the identity of the Claimant’s employer to understand how he was paid; if the money received from the First Respondent was passed on to the other Respondents by the Second Respondent and then paid to him, it might lend credence to the Claimant’s case that the use of these payroll companies was merely a sham to hide the real relationship between him and the Second Respondent. Evidence of those payments was relevant as, too, were the contractual relationships between the Second Respondent and those other Respondents. Those documents ought to be disclosed. THE HEARING 14. This claim was listed for a hearing of 7 days on 3, 4, 5, 6, 7, 8, 9 June 2024. In advance of the hearing the parties were advised that regrettably the Tribunal only had judicial resource to sit on the first five days of the listing. We discussed this at the outset as part of timetabling and it was apparent that it should be Case Number: 1403501/2022 8 of 84 possible to conclude the evidence and submissions before the end of the fifth day. We kept the timetable under review as the hearing progressed. We were able to sit as a Tribunal on 13 June 2024. Unfortunately that was insufficient time to reach a reserved decision and we were not able to come back as a Tribunal until 18 July 2024. It then took some time to prepare this written

THE HEARING

[36]During the fourth day the Claimant started to refer to an email that was not in the bundle of 15 July 2022 with the subject “Pre-Despatch Daily Shortage Report – 15.07.2022”. The R1 and R2 did not object to us being provided with copies but ultimately the Claimant chose not to put questions on it to Mr K Farmer.

[37]It was already approaching 12:30 when Mr K Farmer’s evidence concluded by all the parties wanted to press on to hear the evidence of Mrs Sutton. At 13:05 the Claimant had further cross examination to complete with her but all present wanted to press on. In the event her evidence did not conclude until around 13:35 and after housekeeping the hearing did not adjourn until around 15:45. We recapped the process of submissions for the Claimant and the parties agreed that they would exchange with each other and send to the Tribunal written submissions at 9:30 the following morning. We agreed that we would then hear any verbal submissions at 11:30am. We made clear that our Judgment would be reserved, that we would have Friday afternoon and Thursday 13 June 2024 to deliberate, that we would seek to update the parties as to our progress after 13 June 2024 but that we would not be able to deliberate on 14 June 2024 and after that date I would not be sitting in the Bristol region until October but we would do our best to avoid delay in reaching and preparing our decision. We acknowledge here that the Claimant had made clear that he has terminal cancer which of course makes it even more important to avoid delay.

[38]Early in the morning on day five, Friday 7 June 2024, the Claimant sent correspondence to the Tribunal saying that he had not been able to prepare written submissions. We made clear in email correspondence to him and the parties that he was not required to make written submissions and we could hear oral submissions from him after R1 and R2 had spoken to their written submissions. After the Claimant had had time to read and consider the written submissions of R1 and R2 they spoke to those submissions. The Claimant did not want any further time to counter their submissions or to make his own oral submissions and the hearing concluded for us to deliberate at around 12:15. THE LAW Time limits

THE LAW

[39]Given our findings in this claim we have not gone on to make findings in respect of time limits under the ERA, EqA, the Order or TUPE (each as defined elsewhere in this judgment). We do not therefore set out the law applicable to time limits. Employee / worker under the Employment Rights Act (ERA)

[40]According to section 230(1) ERA an “employee” is “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.’ Case Number: 1403501/2022 13 of 84

[41]S.230 (2) ERA provides that a “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

[42]S.230 (3) ERA provides that “worker” […] means an individual who has entered into or works under (or, where the employment has ceased, worked under)(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. It provides further that and any reference to a worker’s contract shall be construed accordingly.

[43]S.230 (4) ERA provides that “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

[44]S.230 (5) ERA provides that “employment”(a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b) in relation to a worker, means employment under his contract and that “employed” shall be construed accordingly.

[45]Although one person can have two jobs with separate employers at the same time, case law affirms that an employee cannot usually be employed by two employers at the same time on the same work (Patel v Specsavers Optical Group Ltd

UKEAT/0286/18

). Instead, it is possible for an employee to have a contract of employment with one employer, but to be seconded to work for a different employer or an agency worker relationship may exist. ERA provisions on notice

[46]Section 86 ERA (Rights of employer and employee to minimum notice) provides:(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more— (a) is not less than one week's notice if his period of continuous employment is less than two years, (b) is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and (c) is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.

(2) The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week.

(3) Any provision for shorter notice in any contract of employment with a person who has been continuously employed for one month or more has effect subject to subsections (1) and (2); but this section does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice.

(4) Any contract of employment of a person who has been continuously Case Number: 1403501/2022 14 of 84 employed for three months or more which is a contract for a term certain of one month or less shall have effect as if it were for an indefinite period; and, accordingly, subsections (1) and (2) apply to the contract. (6) This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party.

[47]There is no corresponding right for those with worker status. Agency Worker Regulations 2010 (AWR)

[48]The term Agency Worker is defined in regulation 3 of the Agency Worker Regulations 2010 as: “an individual who—is supplied by a temporary work agency to work temporarily for and under the supervision and direction of a hirer; and has a contract with the temporary work agency which is—a contract of employment with the agency, or any other contract with the agency to perform work or services personally.”

[49]An agency worker can be an employee or a worker of the agency. It is also possible for relationships to exist where there are additional parties, often called intermediaries, involved. There is also the possibility of implying a contract between the agency worker and the end-user, but this is inconsistent with current case law (James v Greenwich London Borough Council

[2008] IRLR 302

, CA).

[50]Although the starting point is usually the written agreements that are in place, the label that the parties may put on an arrangement is not determinative. It may be necessary to consider the reality of what happened in practice and look to other communications between the parties rather than rely on the contractual documentation entered into between the parties (Uber BV and others v Aslam and others

[2021] UKSC 5

[51]In the Uber case, important considerations which led to the Supreme Court deciding that the documentation should not be relied upon included:(a) the documentation did not reflect the reality and appeared to have been put in place deliberately to avoid the Uber drivers gaining employment rights;

(b) there was a significant imbalance in the commercial bargaining power of the respondent and the drivers; and

[52]The parties did not address us on the principles of contract law or the law on claims for breach of contract and wrongful dismissal under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the Order”).

[53]However, for any contract to have been formed, there are a number of essential components: Case Number: 1403501/2022 15 of 8453.1 an intention to create legal relations;

53.2 offer;

53.3 acceptance;

53.4 consideration; and

53.5 sufficient certainly as to the terms.

[54]There is no legal requirement for an employment contract to be in writing. It therefore follows that there is no requirement for a contract to be signed by both parties to be binding.

[55]Contracts of employment can be formed, varied and terminated through express agreement, whether in writing or orally. They can also be formed and varied through conduct. Acceptance of a new or varied contract can be implied where an employee has been issued with a contract and works under it, even though they do not sign and return it.

[56]The test as to whether a contract has been formed, varied or terminated is objective. The tribunal must have regard to what a reasonable observer would think. That is not to say that the subjective states of the minds of the parties involved are entirely irrelevant. They are part of the overall factual matrix that needs to be considered. Public Interest Disclosures

[57]Whistleblowers are protected from suffering any detriment or dismissal from their employer as a consequence of making a public interest disclosure of alleged wrongdoing. The ERA defines a public interest disclosure in the following way: Section 43B states: 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 has been 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, […] (e) the environment has been, is being or is likely to be damaged; 43C provides: Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith: Case Number: 1403501/2022 16 of 84 (a) to his employer. […] 43K provides (extension of meaning of “worker” etc for Part IVA) (1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who— (a) works or worked for a person in circumstances in which— (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them, […]

(2) For the purposes of this Part “employer” includes—(a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged, Part V ERA - Protection from Suffering Detriment in Employment Whistleblowing Detriment S.47B ERA (Protected disclosures)

[58]Section 47B of the ERA states:(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—(a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a) from doing that thing, or (b) from doing anything of that description. (1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a) the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b) it is Case Number: 1403501/2022 17 of 84 reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B).]

(2) … this section does not apply where— (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of [Part X]).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “worker”, “worker's contract”, “employment” and “employer” have the extended meaning given by section 43K. 47K provides: (1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who— (a) works or worked for a person in circumstances in which— (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them, (b) contracts or contracted with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”, (2) For the purposes of this Part “employer” includes— (a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,

[59]A protected disclosure may be made during the employment, but also after its termination (Onyango v Berkley Solicitors

[2013] IRLR 338

EAT).

[60]In Babula v Waltham Forest College [2007] 346 the Court of Appeal held that: ‘An Employment Tribunal hearing a claim for automatic unfair dismissal has to make three key findings. The first is whether or not the employee believes that the information he is disclosing meets the criteria set out in one or more of the subsections in ERA 1996, section 43B(1)(a)-(f). The second is to decide objectively whether or not that belief is reasonable. The third is to decide whether or not the disclosure is made in good faith’. The ‘reasonable belief’ statutory test is a subjective one. The ERA states that there must be a reasonable belief of the worker making the disclosure (Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

, EAT). In Korashi the Court of Appeal stated ‘as to any of the alleged failures, the burden of proof is upon the Claimant to establish upon the balance of probabilities, any of the Case Number: 1403501/2022 18 of 84 following,(a) there was in fact, and as a matter of law, a legal obligation or other relevant obligation on the employer in each of the circumstances relied on;

(b) the information disclosed 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.’ The Court continued, ‘Belief seems to us to be entirely centred upon a subjective consideration of what was in the mind of the discloser. That again seems to be a fairly low threshold.’

[61]In Simpson v Cancer Fitzgerald Europe

[2021] IRLR 238

an individual presented whistle blowing claims based on the assertion that he had made protected disclosures in respect of traders engaging an illegal practise is known as ‘front running’. The Tribunal rejected the allegation that there was any causal link between these matters and the treatment of the Claimant. It did so on the basis that the communications contained ambiguity and the Claimant had not, as had been his duty as an FCA approved professional, reported his concerns to Compliance. The Court of Appeal, Bean LJ stated ‘obviously it was open to the Tribunal to find that his failure to make any explicit report to Compliance indicated that he did not genuinely, unconscious, conscientiously believe that there had been any such breaches’.

[62]Qualifying disclosures must involve a disclosure of information, i.e. they must convey facts, rather than merely raise an allegation. There must be the disclosure of information. In Williams v Michelle Brown AM [2019]

UKEAT/0044/19

the EAT stated: ‘If the Tribunal properly concludes that the factual content of the claim disclosure cannot reasonably be construed as tending to show a criminal offence [or other relevant breach of section 43B(1)] then that conclusion will by itself be fatal to the proposition that there was a qualifying disclosure relying on section 43B(1). That will be so regardless of what the Claimant subjectively believed, and regardless of whether or the other elements are shown'.

[63]The distinction between information and comment or assertion was illustrated by Slade LJ in Cavendish Munro Professional Risks Management v Geduld

[2010] IRLR 38

as follows (paragraph 24): ‘the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around.” Contrasted with that would be a statement that “You are not complying with Health and Safety requirements”. In our view this would be an allegation not information.’

[64]The question is whether there is sufficient by way of information to satisfy Section 43B. This will be very much a matter of fact for the Tribunal. The more the statement consists of unsupported allegation, the less likely it will be to qualify, but this is as a question of fact, not because of a rigid information/allegation divide (Kilraine v London Borough of Wandsworth Case Number: 1403501/2022 19 of 84

[2018] ICR 1850

). For a statement to be a qualifying disclosure, there must be sufficient factual content and specificity to show that one of the listed matters in Section 43B(1) is engaged. ‘If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure that he makes has a sufficient factual content and specificity such that it is capable of tending to show that matter listed, it is likely that his belief will be a reasonable belief’.

[65]It is then necessary to determine that the worker has a reasonable belief that the disclosure is in the public interest and tends to show one of the six statutory categories of 'failure'. The definition of a qualifying disclosure is ‘disclosure of information which, in the reasonable belief of the worker, is made in the public interest’. Disputes that are essentially personal contractual disputes are unlikely to qualify (Millbank Financial Services Ltd v Crawford

[2014] IRLR 18

, EAT). It is not sufficient that the Claimant has simply made allegations about the wrongdoer especially where the claimed whistleblowing occurs within the Claimant's own employment, as part of a dispute with his or her employer (Cavendish).

[66]Under paragraph (1)(b) there must be an actual or likely breach of the relevant obligation by the employer (Norbrook Laboratories (GB) Ltd v Shaw

[2014] ICR 540

, EAT). The word 'legal' must be given its natural meaning. The fact that the individual making the disclosure thought that the employer's actions were morally wrong, professionally wrong or contrary to its own internal rules may not be sufficient (Eiger Securities LLP v Korshunova

[2017] IRLR 115

, EAT). The source of the obligation should be identified and capable of certification by reference for example to statute or regulation. ‘Likely’ means probable or more probable than not. It is not sufficient that the Claimant reasonably believed that the relevant disclosure of information tended to show that a person ‘could’ fail to comply with a legal obligation, or that there was a possibility or risk of noncompliance (Kraus v Penna Plc

[2004] IRLR 260

[67]In Norbrook Slade J said ‘… an earlier communication can be read together with a later one as embedded in it, rendering the later communication of protected disclosure, even if taken on their own, they would not fall within section 43B(1). Accordingly, two communications can, taken together, amount to a protected disclosure. Whether they do is a question of fact’.

[68]An employee wanting to rely on the whistleblowing protection before a tribunal bears the burden of proof on establishing the relevant failure (Blackbay Ventures Ltd v Gahir

[2014] IRLR 416

, EAT). As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following:(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on; and

(b) the information disclosed 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.

[69]In the event that a qualifying protected disclosure was not made in good faith, at the remedy stage 'the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the worker by no more Case Number: 1403501/2022 20 of 84 than 25%'. Detriments

[70]It is for the Claimant to show that he was subjected to a detriment by an act or a deliberate failure to act by his employer or co-worker. The claim would only be made out if the Claimant was subjected to the detriment on the ground that he had made the protected disclosure. The relevant test is whether the protected disclosure materially influenced, in the sense of being more than a trivial influence, the treatment of the Claimant (Fecit & Others v NHS Manchester

[2011] IRLR 111

[71]Section 48(2) of the Act states that the onus is on the employer to show the ground on which the act or deliberate failure to act is done. The ‘on the ground that’ test focuses on the relevant decision-makers mental processes. The test is not satisfied merely because there was some relationship between the protected disclosure and the detriment complained of, or because the detriment would not have been imposed but for the disclosure (London Borough of Harrow v Knight

[2003] IRLR 140

[72]The Court of Appeal decision in Jesudason v Alder Hay Childrens NHS Foundation Trust

[2020] IRLR 374

stated ‘It is now well established that the concept of a detriment is very broad, and must be judged from the view point of the worker. There was a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment’. Section 103A ERA – protected disclosure dismissal

[73]Section 103 ERA provides: 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 disclosure.

[74]The statutory question is what motivated a particular decision maker to act as they did? (Kong v Gulf International Bank UK Ltd

[2022] IRLR 854

[75]The reason or principal reason for the dismissal means the employer’s reason. This can be the reason of the dismissing officer, but the inquiry may be a broader one (Royal Mail v Jhuti

[2019] UKSC 55

). It is a matter to be explored in evidence.

[76]On the issue of the burden of proof the Court of Appeal stated in Kuzel v Roche Products Limited

[2008] IRLR 530

: ‘The Employment Tribunal must then decide what was the reason or principle reason for the dismissal of the Claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the Tribunal that the reason was what he asserted it was, it is open for the Tribunal to find that the reason was what the employee asserted it was. But it is not correct to say, either as a Case Number: 1403501/2022 21 of 84 matter of law or logic, that the ET must find that if the reason was not that asserted by the employer, that it must have been for the reason asserted by the employee. That may often be the outcome in practise but it is not necessarily so. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for the dismissal was not that advanced by either side. In brief an employer may fail in its case for fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason’.

[77]A case of whistleblowing dismissal is not made out simply by a 'coincidence of timing' between the making of disclosures and termination (Parsons v Airplus International Ltd [2017]

UKEAT/0111/17

). Equality Act 2010 (EqA) - Direct Age Discrimination

[78]Section 39(2) of the Equality Act 2010 prohibits an employer discriminating against one of its employees by dismissing him or by subjecting the employee to a detriment. This includes direct discrimination because of a protected characteristic as defined in section 13.

[79]Section 41 of the EqA (Contract workers) provides as follows:(1) A principal must not discriminate against a contract worker— (a) as to the terms on which the principal allows the worker to do the work; (b) by not allowing the worker to do, or to continue to do, the work; (c) in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d) by subjecting the worker to any other detriment.

(2) A principal must not, in relation to contract work, harass a contract worker.

(3) A principal must not victimise a contract worker— (a) as to the terms on which the principal allows the worker to do the work; (b) by not allowing the worker to do, or to continue to do, the work; (c)in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d) by subjecting the worker to any other detriment.

(4) A duty to make reasonable adjustments applies to a principal (as well as to the employer of a contract worker).

(5) A “principal” is a person who makes work available for an individual who is— (a) employed by another person, and (b) supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it).

(6) “Contract work” is work such as is mentioned in subsection (5).

(7) A “contract worker” is an individual supplied to a principal in furtherance of a contract such as is mentioned in subsection (5)(b).

[80]Section 13 of the Equality Act 2010 provides that ‘A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less Case Number: 1403501/2022 22 of 84 favourably than A treats or would treat others’.

[81]Under section 23(1), where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or hypothetical comparator.

[82]In order to find discrimination has occurred, there must be some evidential basis on which we can infer that the Claimant’s protected characteristic is the cause of the less favourable treatment. We can take into account a number of factors including an examination of circumstantial evidence.

[83]We must consider whether the fact that the Claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.

[84]In many direct discrimination cases, it is appropriate for a tribunal to consider, first, whether the Claimant received less favourable treatment than the appropriate comparator and then, secondly, whether the less favourable treatment was because of age. However, in some cases, for example where there is only a hypothetical comparator, these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as she was.

[85]Section 136 of the Equality Act sets out the relevant burden of proof that must be applied. A two-stage process is followed. Initially it is for the Claimant to prove, on the balance of probabilities, primary facts from which we could conclude, in the absence of an adequate explanation from the Respondent, that the Respondent committed an act of unlawful discrimination.

[86]At the second stage, discrimination is presumed to have occurred, unless the Respondent can show otherwise. The standard of proof is again on the balance of probabilities. In order to discharge that burden of proof, the Respondent must adduce cogent evidence that the treatment was in no sense whatsoever because of the Claimant’s age. The Respondent does not have to show that its conduct was reasonable or sensible for this purpose, merely that its explanation for acting the way that it did was non-discriminatory.

[87]Guidelines on the burden of proof were set out by the Court of Appeal in Igen Ltd v Wong

[2005] EWCA Civ 142

;

[2005] IRLR 258

and we have followed those as well as the direction of the court of appeal in the Madarassy case. The decision of the Court of Appeal in Efobi v Royal Mail Group Ltd

[2019] ICR 750

confirms the guidance in these cases applies under the Equality Act 2010.

[88]The Court of Appeal in Madarassy, states: ‘The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities, the Respondent had committed an unlawful act of discrimination.’ (56) Case Number: 1403501/2022 23 of 84

[89]It may be appropriate on occasion, for the tribunal to take into account the Respondent’s explanation for the alleged discrimination in determining whether the Claimant has established a prima facie case so as to shift the burden of proof. (Laing v Manchester City Council and others

[2006] IRLR 748

; Madarassy v Nomura International plc

[2007] IRLR 246

, CA.) It may also be appropriate for the tribunal to go straight to the second stage, where for example the Respondent assert that it has a non-discriminatory explanation for the alleged discrimination. A Claimant is not prejudiced by such an approach since it effectively assumes in his favour that the burden at the first stage has been discharged (Efobi v Royal Mail Group Ltd

[2019] ICR 750

, para 13).

[90]In addition, there may be times, as noted in the cases of Hewage v GHB

[2012] ICR 1054

and Martin v Devonshires Solicitors

[2011] ICR 352

, where we are in a position to make positive findings on the evidence one way or the other and the burden of proof provisions are not particularly helpful. When we adopt such an approach, it is important that we remind ourselves not to fall into the error of looking only for the principal reason for the treatment, but instead ensure we properly analyse whether discrimination was to any extent an effective cause of the reason for the treatment.

[91]Allegations of discrimination should be looked at as a whole and not simply on the basis of a fragmented approach Qureshi v London Borough of Newham

[1991] IRLR 264

, EAT. We must “see both the wood and the trees”: Fraser v University of Leicester

UKEAT/0155/13

at paragraph 79.

[92]Our focus “must at all times be the question whether or not they can properly and fairly infer… discrimination.”: Laing v Manchester City Council, EAT at paragraph 75.

[93]Direct age discrimination is unique in that it has the potential to be justified. We do not set out the law in that respect here because it is not relied upon in the claim. Breach of contract and wrongful dismissal

[94]The Order provides at Article 3 (Extension of jurisdiction) that Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if—(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;

(b) the claim is not one to which article 5 applies; and

[95]We take into account Oni v UNISON Trade Union

2018 ICR 1111

, EAT in which the Honourable Mr Justice Soole concluded [para 40] that there is no jurisdiction for an employee to bring a claim on a contract with an associated company of the employer under the Order. Employment Act 2002 (“the 2002 Act”) - Failure to give statement of employment particulars etc

[96]Section 38 of the 2002 Act provides: Case Number: 1403501/2022 24 of 84(1) This section applies to proceedings before an employment tribunal relating to a claim by [a worker] under any of the jurisdictions listed in Schedule 5.

(2) If in the case of proceedings to which this section applies—(a) the employment tribunal finds in favour of the worker, but makes no award to him in respect of the claim to which the proceedings relate, and (b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996 (c 18) (duty to give a written statement of initial employment particulars or of particulars of change) or (in the case of a claim by an employee) under section 41B or 41C of that Act (duty to give a written statement in relation to rights not to work on Sunday), the tribunal must, subject to subsection (5), make an award of the minimum amount to be paid by the employer to the worker and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.

(3) If in the case of proceedings to which this section applies—(a) the employment tribunal makes an award to the worker in respect of the claim to which the proceedings relate, and (b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996 or (in the case of a claim by an employee) under section 41B or 41C of that Act the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.

(4) In subsections (2) and (3)—(a) references to the minimum amount are to an amount equal to two weeks' pay, and (b) references to the higher amount are to an amount equal to four weeks' pay.

(5) The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable.

(6) The amount of a week's pay of a worker shall—(a) be calculated for the purposes of this section in accordance with Chapter 2 of Part 14 of the Employment Rights Act 1996 (c 18), and (b) not exceed the amount for the time being specified in section 227 of that Act (maximum amount of week's pay). (6A) The provisions referred to in subsection (6) shall apply for the purposes of that subsection—(a) as if a reference to an employee were a reference to a worker; and (b) as if a reference to an employee's contract of employment were a reference to a worker's contract of employment or other worker's contract.

(7) For the purposes of Chapter 2 of Part 14 of the Employment Rights Act 1996 as applied by subsection (6), the calculation date shall be taken to be— (a) if the worker was employed by the employer on the date the proceedings were begun, that date, and (b) if he was not, in the case of Case Number: 1403501/2022 25 of 84 an employee, the effective date of termination as defined by section 97 of that Act or in the case of all other workers the date on which the termination takes effect. Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”)

[97]Regulation 3 of TUPE provides, so far as relevant: 3(1) These Regulations apply to— […] (b) a service provision change, that is a situation in which— […](i) activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client's behalf (“a contractor”);

(ii) activities cease to be carried out by a contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (“a subsequent contractor”) on the client's behalf; or

(iii) activities cease to be carried out by a contractor or a subsequent contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf,and in which the conditions set out in paragraph (3) are satisfied. […] (3) The conditions referred to in paragraph (1)(b) are that— (a) immediately before the service provision change— (i) there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client; (ii) the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and (b) the activities concerned do not consist wholly or mainly of the supply of goods for the client's use.

[98]Regulation 4 of TUPE provides, so far as relevant: 4 (1) …a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such Case Number: 1403501/2022 26 of 84 contract shall have effect after the transfer as if originally made between the person so employed and the transferee.

[99]HHJ Eady QC summarised the effect of these provisions in Costain Ltd v Armitage and another

UKEAT/0048/14/DA

as follows: “So, first, there must be an organised grouping of employees dedicated to the client (reg 3(3)(a)(ii)) and, second, the employee must be assigned to that grouping. Those questions are “analytically distinct” per Underhill P (as he then was), at para 16 Eddie Stobart Ltd v Moreman (2012)

UKEAT/0223/11/ZT

[2012] IRLR 356

[2012] ICR 919

[100]The concept of an organised grouping implies an element of conscious organisation by the employer of its employees, in the nature of a team, which has, as its principal purpose, the carrying out of the activities in question. There must be deliberate putting together of a group of employees for the purposes of the relevant client work it is not a matter of happenstance Seawell Ltd v Ceva Freight UK Ltd

[2012] IRLR 802

at para 17 and Eddie Stobart Limited v Moreman

[2012] IRLR 356

EAT at paras 18-20.

[101]In Seawell Ltd v Ceva Freight UK Ltd

[2013] CSIH 59

[2013] IRLR 726

, 2013 SC 596, the Court of Session approving the Judgment of Lady Smith in that case, reported at

[2012] IRLR 802

stated “There will not be an “organised grouping of employees” with the relevant purpose if the employees in question simply happen to be working on that activity at the time of the transfer, perhaps because shift arrangements mean that they are working on a particular contract at a particular time without their actually being dedicated to it, or they are working on that activity, even if for 100% of their time, for some other entirely fortuitous reason.

[102]On the second question, that of a particular employee's assignment, the starting point is generally taken to be the Judgment of the European Court of Justice in Botzen and others v Rotterdamsche Droogdok Maatschappij BV [1985] ECR 519,

[1986] 2 CMLR 50

, where it was stated: “An employment relationship is essentially characterized by the link existing between the employee and the part of the undertaking or business to which he assigned to carry out his duties. In order to decide whether the rights and obligations under an employment relationship are transferred under [the Directive] . . . it is therefore sufficient to establish to which part of the undertaking or business the employee was assigned.”

[103]That talks of assignment in terms of a business undertaking or part, rather than any service provision change, but the language of assignment remains the same. In approaching that question, it is often tempting to try to establish assignment by reference to the percentage of time an employee is engaged in working in the relevant undertaking or part or on the particular activities in question. That might not be an irrelevant question, but it is not the test. Failure to inform and consult

[104]Regulations 13, 14, 15 and 16 of TUPE set out requirements for the election of employee representative and for informing and consulting representatives in circumstances of a transfer under TUPE. We do not set out here those obligations given that we have found that there was no transfer of the Claimant’s employment Case Number: 1403501/2022 27 of 84 under TUPE and we have not therefore had to go on to consider whether these Regulations were breached. FINDINGS OF FACT, ANALYSIS AND CONCLUSIONS

[105]The parties will note that we have structured our decision chronologically around the factual and legal issues as set out in the LOI. We have noted those claims which were withdrawn.

[106]Whilst we have structured our analysis and conclusions by issue, we were also careful to look at the evidence ‘in the round’ to determine whether it suggested that the Claimant had been subjected to the unlawful treatment of which he complains. Having done so we did not find cause to change our decisions on any issue or issues.

[107]We make our findings of facts on the balance of probabilities having considered all the evidence. The parties will note that not all the matters that they told us about are recorded in our decision. That is because we have focused on the factual issues which we considered were most relevant to the legal issues. R2 and employee or worker of R2? (LOI 5.6)

[108]R2 is a small recruitment agency with around 50 employees at its 4 offices (two in Redditch, one in Coventry and one in Worcester). As we will explain in more detail, it was R2 that placed the Claimant for work with R1.

[109]We accept R2’s evidence that it engages outsourced payroll providers, also known as Umbrella Companies, who pay its agency staff. They do this to reduce the administrative burden placed upon R2 and to remain commercially competitive. Mr Alekna explained that they do annual reviews of all suppliers to R2 (including the Umbrella Companies they use) to make sure that they are getting the best service within the relevant marketplace whilst remining fully compliant. Mr Alekna said that they sometimes change umbrella companies to “protect all within the extended labour supply chain”. In response to our questions he said that:109.1 They might move to an umbrella company that provided better driver negligence insurance or stronger market ‘perks’;

109.2 At any one time they might use two umbrella companies and that they mainly moved umbrella companies used for their driver and logistics based agency workers.

[110]We find that the structure was as follows. R1 was the hirer or ‘end user’ in the relationship between the parties. R2 contracted with three umbrella companies over the relevant period being [SB8-44 and JAWS19]:110.1 WK1 Ltd from 5 July 2020 to 30 April 2022;

110.2 Powbrella Ltd from 30 April 2022 to 6 September 2022; and

110.3 Mayfair Outsourcing Ltd from 6th September 2022. Case Number: 1403501/2022 28 of 84

[111]R2’s position was that the Claimant was then employed by companies used by each of those Umbrella Companies as follows (being R3, R4, R5 and R6 to this claim):111.1 With WK1 by R6 from 8 April 2022 to 30 April 2022 (we were taken to payslips and a P45 issued by Dorsington Ltd (R6) [HB385-389];

111.2 With Powbrella Ltd by:111.2.1 R4 from 30 April 2022 to 17 June 2022 (we were taken to a P45 issued by JI Dillon Ltd (R4) [HB428-430]; and then

111.2.2 R5 from 17 June 2022 to 6 September 2022 (we were taken to a P45 issued by Next Ness Ltd (R5) [HB492-494]; and then

111.3 With Mayfair Outsourcing Ltd by R3 from 6 September 2022 (we were taken to Key Information Document and contract of employment referencing Merirthzeal Ltd as the employer [HB361, 351]

[112]Mr Alekna explained under cross examination, and we accept his evidence, that R2 used mobile applications called Sirenum and PayLinks to communicate with the agency workers on its books, including the Claimant.

[113]Sirenum was used primarily to manage the hours and shifts that the Claimant worked for R1.

[114]PayLinks was used to send the Claimant:114.1 the contracts of employment with R3-R6 (Dorsington Ltd (R6) [HB315- 326], JI Dillon Ltd (R4) [HB327-338], Next Ness Ltd (R5) [HB339-350] and Meirthzeal Ltd (R3) [HB351-362) (the “Contracts of Employment”) all appeared to be identical in terms (no differences were highlighted to us) and comprised:114.1.1 the terms and conditions of employment;

114.1.2 a data protection consent form and privacy notice;

114.1.3 a key information document.

114.2 the Terms of Engagement for Agency Workers (Contract for Services) document [at HB303-306] (the “Terms of Engagement”);

114.3 his payslips (the Claimant was paid weekly on a Friday for the previous week’s work) [JAWS23].

[115]The Contracts of Employment:115.1 Did not set out the capacity in which the Claimant was employed;

115.2 Made clear that the Claimant would remain employed by the Company during any period when he was not on assignment and the termination of an assignment would not automatically terminate employment; Case Number: 1403501/2022 29 of 84

115.3 Provided for a one week period of notice for employees with 1 month up to 2 years continuous service.

115.4 Made clear that the Claimant did not have a normal place of work (and could be required to work at any of the Company’s premises or at the premises of its Customers, Clients, Suppliers or Associates) and did not have normal hours of work (which would be in advance of his starting each assignment).

115.5 Included an Agency Workers Regulation provision which said: 8. Agency Workers Regulations (AWR)

8.1 The AWR came into force on 1 October 2011, giving you the entitlement to the same basic employment and working conditions as if you had been recruited directly, if and when you complete a qualifying period of 12 weeks in the same job. The Company will be treated as a “Temporary Work Agency” for the purposes of these Regulations.

8.2 Under the AWR, from day one, you will become entitled to receive access to certain collective facilities and amenities and information relating to vacancies, as are available to a comparable worker as identified by the Client.

8.3 When the qualifying 12 week period has been completed, you will also become entitled to “basic working and employment conditions” as if you had been recruited directly. Such rights include equal treatment on pay, duration of working time, night work, rest periods, rest breaks and annual leave, commonly known as “Regulation 5 Rights”.

115.6 As regards holiday said: 9. Holidays

9.1 You are entitled to 5.6 weeks holidays per year which will be pro rated for part time staff and which includes public/bank holidays.

9.2 The holiday year commences on 1st January and finishes on 31st December.

9.3 If your employment commences or finishes part way through the holiday year, your holiday entitlement will be prorated accordingly.

9.4 Entitlement to leave accrues in proportion to the amount of time worked by you during the leave year.

9.5 You will earn holiday pay at the rate of 12.07% of the pay shown as “Gross for Tax” on your pay slip (which is represented as the National Minimum Wage/National Living Wage in force at the time entitlement to holiday pay accrued). Unless otherwise agreed, the accrued amount will be retained in a holiday fund and will be paid to you when you take annual leave. You will be paid for each day of holiday authorised by the Case Number: 1403501/2022 30 of 84 Company at an hourly rate calculated on the basis of your average income over the 52 weeks preceding the holiday.

9.6 Holidays must be taken at times convenient to the Company. You must obtain approval of proposed holiday dates in advance from your Company representative. You will not be allowed to take more than two weeks at any one time, save at the Company’s discretion. You must not book holidays until your request for approval has been formally agreed.

9.7 All holiday must be taken in the year in which it is accrued.

9.8 If, on termination of employment, you have exceeded your prorated holiday entitlement, the Company will deduct a payment in lieu of days holiday taken in excess of your entitlement and you authorise the Company to make a deduction from the payment of your final salary. If you have holiday entitlement still owing, the Company may, at its discretion, require you to take your holiday during your notice period or make a payment in lieu of untaken holiday entitlement.

115.7 In the Key Information Document section said: Name of Employment Business: Workforce Staffing Ltd Name of intermediary or umbrella company: [WK1 / Powbrella Ltd/ Mayfair Outsourcing Ltd] Your employer: [Dorsington Ltd / JI Dillon Ltd / Next Ness Ltd / Meirthzeal Ltd] Type of contract you will be engaged under: Contract of Employment Who will be responsible for paying you: Your employer How often the umbrella company and you will be paid: Weekly INTERMEDIARY OR UMBRELLA COMPANY PAY INFORMATION You are being paid through an intermediary or umbrella company: a third-party organisation that will calculate your tax and other deductions and then pay you for the work undertaken for the hirer. We will still be finding you assignments. The money earned on your assignments will be transferred to the intermediary or umbrella company as part of their income. Your Employer will then pay you your wage. All the deductions made which affect your wage are listed below. If you have any queries about these please contact us. Any business connection between the intermediary or umbrella company, the employment business and the person responsible Case Number: 1403501/2022 31 of 84 for paying you: None […]

[116]The Terms of Engagement document said: Employment Business' name: Workforce Staffing ltd […] ('Workforce"). […] "Agency Worker" means the temporary worker named in this agreement, herein ‘you’, supplied by the Employment Business to provide services to the Hirer. […] “Assignment" means assignment services to be performed by the Agency Worker for the Hirer for a period of time during which the Agency Worker is supplied by the Employment Business to work temporarily for and under the supervision and direction of the Hirer. […] ’Engagement" means the engagement (including the Agency Worker’s acceptance of the Hirer’s offer), employment or use of the Agency Worker by the Hirer or any third party to whom the Agency Worker has been Introduced by the Hirer, on a permanent or temporary basis, whether under a contract of service or for services, and/or through a company of which the Agency Worker is an officer, employee or other representative, an agency, license, franchise or partnership arrangement, or any other engagement; and “Engage’, ‘Engages’ and ‘Engaged' shall be construed accordingly; […] “Hirer" means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) to whom the Agency Worker is supplied or introduced; […] 2. The Contract2.1 These Terms constitute the entire agreement between the Employment Business and the Agency Worker for the supply of services to the Hirer and they shall govern all Assignments undertaken by the Agency Worker. However, no contract shall exist between the Employment Business and the Agency Worker between Assignments. These Terms shall prevail over any other terms put forward by the Agency Worker, in the event the Agency Worker is moving to this agreement from a previous agreement it is understood that this agreement supersedes any previous agreement;

2.2 During an Assignment the Agency Worker will be engaged on a contract for services by the Employment Business on these Terms. For the avoidance of doubt, the Agency Worker is not an employee of the Employment Business although the Employment Case Number: 1403501/2022 32 of 84 Business is required to make the Deductions from the Agency Worker's pay. These Terms shall not give rise to a contract of employment between the Employment Business and the Agency Worker, or the Agency Worker and the Hirer. The Agency Worker is supplied as a worker, and is entitled to certain statutory rights as such, but nothing In these Terms shall be construed as giving the Agency Worker rights in addition to those provided by statute except where expressly stated. […] 2.4 The Employment Business shall act as an employment business (as defined in Section 13(3) of the Employment Agencies Act 1973 (as amended) when introducing or supplying the Agency Worker for Assignments with its Hirers. 3. Assignments and Information to be provided

3.1 The Employment Business will endeavour to obtain suitable Assignments for the Agency Worker to perform the agreed Type of Work. The Agency Worker shall not be obliged to accept any Assignment offered by the Employment Business.

3.2 The Agency Worker acknowledges that the nature of temporary work means that there may be periods when no suitable work is available and agrees that3.2.1 the suitability of the work to be offered shaII be determined solely by the Employment Business; and

3.2.2 the Employment Business shall Incur no liability to the Agency Worker should it fail to offer Assignments of the Type of Work or any other work to the AgencyWorker. […] 4. Agency Worker's Obligations 4.1 The Agency Worker is not obliged to accept any Assignment offered by the Employment Business but if the Agency Worker docs accent an Assignment during every Assignment and afterwards whore appropriate, s/he will: […] 9. Termination 9.1 Any of the Employment Business, the Agency Worker or the Hirer may terminate the Agency Worker's Assignment at any time without prior notice or liability.

[117]The Claimant could not initially use Sirenum and PayLinks and only gained access to them when he bought a new phone with a more up to date version of the Android operating system in early September 2022 [CWS60]. Owing to the fact that he did not have that access he spoke to Diane at R2 over the phone about his shifts and pay. R2 also had a contact log (“Contact Log”) which Case Number: 1403501/2022 33 of 84 recorded interactions with the Claimant.

[118]The Contact Log [HB313] records that the Claimant agreed the Terms of Engagement. The Claimant said under cross examination that he did not understand the Terms of Engagement, said that he had just accepted them as part of a tick box exercise and had perhaps accepted them. In support of that assertion he pointed to the fact that the Contact Log recorded him replying ‘No’ to the question ‘Do you have immigration permission to work in the UK?’. However, there was no material evidence of the Claimant querying the Terms of Engagement at the time and on the balance of probabilities we conclude that the Terms of Engagement were the terms under which he contracted with R2.

[119]As the Claimant points out at para 62 of his own witness statement, at a grievance meeting chaired by Mr Godwin on 24 October 2022 [HB588-589] the notes of the meeting record Mr Godwin as saying [HB588]: AP has indicated initially that he wants some clarity on who his employer has been during his time at Muller as he had payslips from different people. MG explained to him that we use different outsource payroll companies and that his employer during his time at Muller was Workforce Staffing Ltd. AP was happy with this explanation.

[120]The notes of this meeting were prepared by Mr O Page. In his witness statement Mr Godwin [MGWS36] said: 120.1 The notes also state that his employer at the time he was placed at the 1st Respondent was the 2nd Respondent. The notes here are inaccurate. I did not say this. At no stage was the Claimant employed by the 2nd Respondent.

[121]Whist the notes record the Claimant being happy with Mr Godwin’s explanation, when the Claimant appealed R2’s grievance decision on 10 November 2022 he continued to question who his employer was [HB623-624]: “In the notes for grievance, you have not mentioned, nor addressed or answered the questions i ask in the notes you requested copies of (below) Who is my employer? I was recruited by Workforce but have been paid by 5 different ltd Companies since April. When i login to my Paylinks account it can change and tells me that i am employed by different companies.”

[122]In replying to the Claimant’s appeal on 18 November 2022 Mr Alekna said [HB631]: 2. Complaint that parts of your grievance were ignored, namely. Who is your employer Case Number: 1403501/2022 34 of 84 Whilst Meirthzeal Ltd issued your contract of employment and pay your wages, Workforce have a significant level of control over any employee related issues. With what process have you been issued with new contracts telling you your employer had changed repeatedly - changed payroll companies a couple of times. You were issued with new contracts, following a change in payroll. However, your date of commencement with the agency remains the same.

[123]In his witness statement Mr Alekna said [JAWS9]: 9. With regards to who his employer is, I explained that Mierthzeal Ltd issued the Claimant with his contract of employment and pay his wages. In my response letter it states that we had a significant level of control over any employee related issue. This is worded poorly. As an Employment Agency, we have no control over the day-to-day issues of an agency worker once they are placed with a client. The client, in this case Muller, would be responsible for managing the day-to-day activities of the Claimant. If the client no longer wanted the agency worker they do not need to give us any notice and we would inform the agency worker accordingly.

[124]Given the importance to their business model, we would have expected Mr Alekna and Mr Godwin to have been far more precise and accurate in what they communicated to the Claimant in respect of who he was employed by. The Claimant’s principal reason for questioning who he was employed by arose in early September when he got access to the PayLinks system and saw the contracts for Dorsington Ltd (R6) [HB 315-326], JI Dillon Ltd (R4) [HB 327-338], Next Ness Ltd (R5) [HB 339-350] and Meirthzeal Ltd (R3) [HB 351-362]. Prior to that time we consider that he was clear that he was not employed by R1 or R2 as this was made clear in the Terms of Engagement which he had seen. We conclude that the contractual documents in the form of the Terms of Engagement and Contract of Employment with Dorsington Ltd (R6) do reflect the basis on which the Claimant was engaged. We find that, notwithstanding the imprecision and inaccuracy of what Mr Alekna and Mr Godwin then said, he was not an employee of R2 and there is no good reason to look behind what those contemporaneous documents say and indicate. We find this in particular because, as submitted by R2:124.1 The Claimant accepted in evidence that if the position at R1 was not to his liking then he could have rejected this assignment.

124.2 The Claimant did not challenge Mr Godwin’s evidence in paragraph 13 of his statement that whilst placed at R1 he would be subject to R1 directions on what needed to be done. The Claimant accepted that R1 solely interviewed him and would be responsible for his training. The Claimant also accepted that R1 would control what the Claimant did on a day-to-day basis. Case Number: 1403501/2022 35 of 84

124.3 It is clear that throughout the correspondence in the bundle that the Claimant considered himself to be an Agency Worker at all times. This was still the case on 6 October 2022 when the Claimant submitted a written grievance to Mr Godwin in which he refers to himself as an Agency Worker [HB 547]. This grievance was raised the day after he was informed by R1 that his last shift was to be on 21st October 2022 [HB 54].

124.4 The Claimant did not give any evidence in his witness statement on why he believed he was an employee of R2.

[125]We find that the Claimant was employed by Dorsington Ltd (R6). We do not find that he was employed by R2 as alleged. The First Respondent and the Stonehouse/Severnside Site

[126]R1 operates a large site covering 42 acres in Gloucestershire. This is at a place called Stonehouse but the site is also often referred to as the Severnside site.

[127]There are around 700 employees at the site and sometimes in excess of 100 agency workers at any one time. 300 trucks might attend the site each day and the site handles milk and other products.

[128]The Severnside site works in conjunction with other sites operated by the R1 including a site at Droitwich.

[129]Insofar as is relevant to this claim, there are staff working on 12 hour shifts four days on, four days off. Some of those shifts are night shifts. There is a transport team who help manage the loading of trucks and running of trucks from the site.

[130]There is a role of Shift Lead at the site within the transport team. The Shift Lead works in conjunction with one or two Shift Coordinators who are subordinate to the Shift Lead.

[131]R1’s site is unionised and there were trade union disputes at the time, the details of which we were not provided with, but which caused there to be picket lines and over the relevant period we were told that there were protests at the site by Animal Rebellion.

[132]In March 2022 two of R1’s day based Shift Leads were off on long term sickness (being a an employee called Gary and an employee called Jez). This meant that Ms Oakhill and Mr K Farmer were working seven days a week, which was unsustainable.

[133]Mr I Farmer therefore spoke to Mr Godwin at R2 about the possibility of filling a Shift Lead role on a temporary basis with an agency worker. We accept Mr I Farmers evidence in this regard as follows:133.1 Mr Godwin and Mr I Farmer had had previous professional contact spanning 15 years but they are not friends; Case Number: 1403501/2022 36 of 84

133.2 Mr Godwin had contacted Mr I Farmer to see whether R2 could help with any of R1’s recruitment activity.

133.3 The relationship started with R2 supplying agency workers.

[134]We accept Mr Godwin’s evidence for R2 that R2 advertises roles on R1’s behalf. Once R2 has received applications for a particular position, R2 then forwards the details of suitable candidates to R1. R1 then conducts the interview process without involvement of R2.

[135]We accept that under the Terms of Engagement R1 is the "Hirer" and R2 is the "Employment Business." We also accept that R2 regularly provide agency workers to R1 on that basis.

[136]Mr Godwin called Mr I Farmer around 17 March 2022 [HB 370] to tell him that he had found a potential candidate for the temporary Shift Lead role, being the Claimant. Mr I Farmer therefore agreed to meet the Claimant. Claimant’s discussion with R2 of work with R1

[137]The next day, 18 March 2022, Mr Godwin of R2 called the Claimant in respect of the Claimant’s online C.V. and whether he was interested in the Shift Lead role at R1 and the same day the Claimant registered for work with R2 [HB 313].

[138]We accept that R1 wanted to fill the role quickly with someone who had the skills to ‘hit the ground running’ and take the pressure off Ms Oakill and Mr K Farmer.

[139]The Claimant was very interested in working for R1 as he had heard good things about R1 and the role was close to where he lived.

[140]The Claimant told Mr Godwin that the role would need to be permanent because he had an offer of a permanent role in Swindon.

[141]The Claimant’s evidence was that:141.1 Mr Godwin told him that he knew that one way or another, R1 would be hiring another permanent Shift Lead in Stonehouse.

141.2 The Claimant would be going Temp to Perm after 6 months (which he said was the industry standard).

141.3 That in order to test this the Claimant asked Mr Godwin how he knew that the role would become permanent and Mr Godwin said that Mr I Farmer was ‘one of his best friends’ and that he had been supplying him with agency workers at every company he had worked at.

[142]Mr Godwin’s evidence was that he told the Claimant:142.1 it was a temporary role and he did not know whether it would lead to a permanent role or how long it would last as it was not his decision. He denied that he said it was temporary to permanent or that becoming permanent was a given. Case Number: 1403501/2022 37 of 84

142.2 R1 was a great place to work as R2 had placed a lot of drivers, as well as office staff, there and always had positive feedback from R1.

142.3 Mr I Farmer would interview the Claimant and that he was a nice person who he had known for a number of years and who was very experienced in Transport.

[143]We consider on the balance of probabilities that Mr Godwin’s evidence reflects what was discussed between him and the Claimant. We do not think it is probable that Mr Godwin made any sort of commitment or promise to the Claimant that he would be made permanent (because this was not in his gift or knowledge). R1 interview of the Claimant

[144]There was a dispute as to the date on which the Claimant was interviewed by Mr I Farmer and Ms Oakhill. The Claimant says it was in person at Stonehouse at 12:30 on 25 March 2022. Mr I Farmer is confident it was a Thursday and was therefore 24 March 2022. Nothing turns on this disagreement [HB 370].

[145]The Claimant alleges that at the interview:145.1 Mr I Farmer said that the current team were all “long-time employees, older and set in their ways,” what he wanted was someone “who does not sit around all day and can highlight and fix issues.”

145.2 He said that he told Mr I Farmer that he would be interested in the role if he knew it would go permanent, subject only to suitability, as otherwise he would have to take a job in Swindon.

[146]The Claimant’s evidence is that he thought Mr I Farmer’s comment was strange, given the Claimant was sixty-three at the time, but the Claimant rationalised the comment because in the Claimant’s own view passes for fifty-five years old when shaven.

[147]Ms Oakhill’s evidence on the interview was:147.1 That it was quite brief;

147.2 The Claimant came across quite well;

147.3 Whilst it was a long time ago, she does not think that Mr I Farmer said anything about the other shift leads during the interview, the conversation focused on the Claimant's suitability.

147.4 She does not recall Mr I Farmer making the age related comment.

[148]Mr I Farmer’s evidence on the interview was:148.1 It was not a particularly long or in-depth; Case Number: 1403501/2022 38 of 84

148.2 It was his son, Mr K Farmer, who would need to sign any decision off, as the role would report to him, but that he would meet with his son to discuss the Claimant.

148.3 That as regards the age related comment:148.3.1 that is not language he would use, being 53 years old himself (close to the age that the Claimant says he himself passes for), and on the basis that he thought all of the other shift leads at the time were around his age or older.

148.3.2 Age did not and does not factor into his decision making.

148.3.3 He certainly did not say anything about age at the interview or anything which would have the potential to upset the existing team who were under significant pressure.

148.4 He tried to get across at the interview that

(a) they needed someone to come straight in and be able to hit the ground running as temporary cover, like an interim manager, as they were really short of people and were on their knees and

(b) there was no guarantee of a permanent role but that they are a fantastic business and opportunities come up fairly regularly for good people.

148.5 He made clear that it was a temporary position to cover two people on long term sick leave and therefore could not recruit on a permanent basis at that time.

[149]Mr I Farmer said that to have recruited on a permanent basis or a "temporary to permanent" basis would potentially have opened R1 up to complaints, grievances or claims from the two individuals who were off sick (creating the suggestion that R1 had pre-judged their ability to return to work). We accept this explanation subject to a point we reference below as regards a the advertisement of a permanent role at the time the Claimant was offered the agency worker role.

[150]On the balance of probabilities we consider that Mr I Farmer’s evidence about what was said at that meeting is a true reflection of the discussion. We do not consider that he made the age related comment. He denied making the comment, Ms Oakhill did not recall him making it and we accept his explanation for why he does not think it is something that he would have said. He was not looking to take the Claimant on because of the performance of the existing Shift Lead team (and there is no contemporaneous evidence that they were in any event ‘older and set in their ways’). He was looking to engage the Claimant because two Shift Leads were not, at that time, in work and he needed someone who could step in and quickly relieve the pressure on the existing team (in particular Ms Oakhill and Mr K Farmer who were having to work excessive hours). The Claimant was clearly older than some of R1’s employees (including Darren, Ms Oakhill and Mr K Farmer) which also suggests to us that this is not a comment that Mr I Farmer would have made. Case Number: 1403501/2022 39 of 84 Findings on temp to permanent commitment

[151]Mr K Farmer’s evidence [KFWS5] was that Jez was in communication with R1 in the weeks following the Claimant’s appointment and it appeared that Jez would not be returning so that gave R1 the go ahead to advertise for a permanent role [HB314].

[152]The Terms of Engagement provide [HB303-306]: “Relevant Period" means the later of(a) the period of 8 weeks commencing on the day after the last day on which the Agency Worker worked for the Hirer having been supplied by the Employment Business; or

(b) the period of 14 weeks commencing on the first day on which the Agency Worker worked for the Hirer having been supplied by Employment Business or 14 weeks from the first day of the most recent Assignment where (hero has been a break of more than 6 weeks (42 days) since any previous assignment; 3.7 If, before or during an Assignment or during the Relevant Period, the Hirer wishes to Engage the Agency Worker directly or through another employment business, the Agency Worker acknowledges that the Employment Business will be entitled either to charge the Hirer a Transfer Fee or to agrees Period of Extended Hire with the Hirer at the end of which the Agency Worker may be Engaged directly by the Hirer or through another employment business without further charge to the Hirer. In addition the Employment Business will be entitled to charge a Transfer Fee to the Hirer if the Hirer introduces the Agency Worker to a third party (other than another employment business) who subsequently Engages the Agency Worker, directly or Indirectly, before or during an Assignment or within the Relevant Period.

[153]We find that Mr K Farmer is mistaken in saying that Jez was in communication with R1 in the weeks following the Claimant’s appointment and it appeared that Jez would not be returning so that gave R1 the go ahead to advertise for a permanent role. The Claimant was not appointed to the temporary position until the end of March and applied for the permanent Shift Lead role directly with R1 on 23 March 2022 [HB 384].

[154]This means that Jez must have been in communication with R1 in early March. We consider that this would have been around the same time as Mr I Farmer contacted Mr Godwin about the potential for temporary agency cover for Gary’s role.

[155]It was therefore the case that, in early March 2022, R1 was looking at both finding a permanent replacement for Jez and temporary cover for Gary in their Shift Lead roles.

[156]Given clause 3.7 of the Terms of Engagement and Mr K Farmer’s explanation in his witness statement, we accept that it was the fact that the Claimant had been introduced by R2 to the R1 on an agency basis that led to R1 not considering the Claimant for the permanent role that he applied for. Case Number: 1403501/2022 40 of 84

[157]The Claimant would have known at the interview on either 24 or 25 March 2022 that he had applied for the permanent position and we consider on the balance of probabilities that, given the uncertainty about what would happen with respect to Gary, R1 would not have given him a commitment that his cover of that employee would lead to him being made permanent in the future.

[158]We consider that the Claimant concluded that, in the circumstances, the opportunity to work on a temporary basis for R1 without the guarantee of the position becoming permanent (but with the uncertainty with respect to when or if Gary would return), was preferrable to taking a permanent role in Swindon which was much further away from his home. We do not find that R1 did give the Claimant any assurance of being made permanent in the circumstances.

[159]We note here that R1 did not find a permanent replacement for Jez (having advertised his role in March 2022) because they readvertised the role in May 2022 and that only led to the permanent employee taking up the role (Ms G Roberts) at the end of August 2022. Of course it is often the case that appointment of a permanent employee takes longer than finding temporary agency cover because those applying for permanent roles are often scrutinized more closely and are in existing employment and have to give notice to their current employers before taking up a new permanent role. Starting work at R1 and seeking to impress

[160]In any event it is not in dispute that the Claimant started work at R1 on 8 April 2022 [HB381]. R1 does not dispute that the Claimant had worker status and accepts that it is potentially liable for the protected disclosure and age discrimination claims against it on the basis of section 43K(1)(a) Employment Rights Act 1996 and section 41 Equality Act 2010.

[161]We accept the Claimant’s evidence [CWS21, 24] that he was trying to impress R1 in the hope that he would be considered for a permanent role. Unfortunately the Claimant, rather than focusing on doing well what he had been asked to do, sought to suggest or make improvements which were not in his remit and overlooked the fact that he did not have the necessary understanding of R1’s business and operations (including its dynamic with the Trade Unions it recognised). The Claimant also overlooked the fact that many of the more senior managers and others with whom he worked were long serving and did have a greater understanding of business and operational matters. The Claimant’s attempts to impress sometimes had the opposite effect and the manner in which he sought to impress was not well judged. We accept R1’s evidence [KFWS33] that the Claimant came across as quite pompous and he liked to brag about his previous roles and experience. Claims Against the 2nd, 3rd, 4th, 5th and 6th Respondents TUPE

[162]The Claimant claims that he transferred under TUPE (on each alleged occasion pursuant to Regulation 3 (1) (b) (ii) - service provision change). The alleged TUPE transfers were from R2 to R6, R6 to R4, R4 to R5, R5 to R3. He says that the activities that were passed between these alleged employers were payroll Case Number: 1403501/2022 41 of 84 services and that R2 was the client and it was then each of the individual umbrella companies (WK1, Powbella Ltd and Mayfair) that was the client.

[163]The Claimant alleges that the first transfer under TUPE took place between R2 and R6 on 12th April 2022. R2 denies that it employed the Claimant and says that a claim in respect of any such transfer is in any event out of time. We conclude that there was no TUPE transfer of employment of the Claimant as alleged. This is because the Claimant was not employed by R2, he was employed directly by R6. Further reasons for there having been no TUPE transfer are that:163.1 There would have had to have been a transfer of payroll activities from R2 (as the client) to R6 but there is no evidence that there was any such transfer of those activities. This would have had to have been a Regulation 3 (1) (b) (i) (not (ii) transfer – i.e. one where activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client's behalf (“a contractor”);

163.2 the Claimant could not be said to have been (either on his own or with others) an organised grouping of employees which had as its principal purpose the carrying out of those payroll activities on behalf of R2. To the extent that there was a client in the circumstances it was not R2 it was WK1. The Claimant was not engaged in the activities which he said transferred.

[164]We also find that TUPE was not the mechanism by which the Claimant’s employment transferred from R6 to R4 (on 30 April 2022), R4 to R5 (17 June 2022) or R5 to R3 (6 September 2022) - if it did in fact transfer between these entities. The Claimant, as we say, was employed by R6 but, to the extent that there was any transfer of payroll activities from R6 to R4 and then from R4 to R5 and lastly from R5 to R3 the Claimant was not engaged in the payroll activities which he said transferred. It is also clear from the caselaw that the client must remain the same for there to be any Regulation 3 (1) (b) (ii) TUPE transfer. In the circumstances presented to us, the client for the purposes of the payroll activities was not R2 (they were a work finding service) and the client could only be said to have been the umbrella companies (WK1, Powbella Ltd and Mayfair) and, as regards the alleged transfer from R6 to R4, the client changed from WK1 to Powbella Ltd. The client (Powbella Ltd) remained the same in respect of the alleged transfer from R4 to R5 but then did not remain the same in respect of the alleged transfer from R5 to R3 (the client changed from Powbella Ltd to Mayfair).

[165]There remains a question as to whether the Claimant’s employment with R6 was validly terminated with R6 and then transferred between R6 to R4 (on 30 April 2022), R4 to R5 (17 June 2022) or R5 to R3 (6 September 2022) because no notice appears to have been given and the Claimant was not aware of the transfer of his employment until he gained access to the PayLinks app sometime in September 2022. Clearly the relevant Respondents did not apply good practice in this regard. However, this is not a matter that we have to resolve for the purposes of this claim. It is clear that if employment did move between these companies then it did not do so under TUPE. As such there was no failure to Case Number: 1403501/2022 42 of 84 inform and consult with the Claimant as required under TUPE and we have not gone on to consider whether any such claim would in any event have been out of time. Early period of engagement and training

[166]We accept Mr K Farmer’s evidence that the Claimant’s assertion that he did not have a formal induction or training is incorrect. We accept Mr K Farmer’s evidence that the Claimant had an induction on 8 April 2022 before he started his 4 on 4 off shift pattern the following day [HB 369]. Mr K Farmer ran that induction session and the Claimant would not have been able to do the role had he not been trained. We also accept Mr I Farmer’s evidence, as referenced above, that they needed someone to hit the ground running. The Claimant was then told to shadow an employee called Darren.

[167]On Sunday 17 April 2022 at 15:16 the Claimant sent the following email to Mr K Farmer and Ms Oakhill: Hi Keiran Just to help me identify and understand priorities and details I have put all the runs this depot goes and the route ID/Despatch Window time/Average round route time/Round route distance and Target Arrival widows on one sheet to make viewing and understanding easier. Can I ask for your comments if I have missed off anything or appear to have misunderstood this aspect of the operation? I am planning to train up on the JMP system tomorrow. It seems to me that some of the figures entered into the daily reports will vary dependant on the person who inputs the data, I.E. some fields in the SIC report and the Trunking Tracker. So I do not cause any issues or problems with the guys as I am not sure whom is compiling them correctly perhaps Charlie can show me how you would like those details populated, I can then write them up. Hope your move went well.

[168]The Claimant described the attachment to the email which he had prepared (and which was not provided to us) as a “training guide” and said that his email was ignored and that he never received a reply. However we accept Mr K Farmer’s evidence that:168.1 Mr K Farmer was off that day because he was moving house (as reflected in the Claimant’s email);

168.2 he replied on 2 May 2022 saying "Looks good to me" (albeit we were not provided with this email but the Claimant did not challenge this evidence in cross examination).

168.3 Ms Oakhill had replied to the Claimant on Monday 18 April 2022 to Case Number: 1403501/2022 43 of 84 confirm that she would pick it up with the Claimant the following day (SB132). The Claimant did not put it to Ms Oakhill that she then failed to do as she indicated that she would in her email. Alleged R1 PD1 3.1.1.1 - On 27th or 28 April 2022, to Charlie Oakley, verbally that agency staff were being entered onto payroll sheets for hours not worked.

[169]The Claimant did not advance any evidence with respect to this alleged protected disclosure. The Claimant’s witness statement covered issues at this time with respect to the differing rates at which Agency providers were providing staff to R1 but the Claimant did not assert in his witness statement that agency staff were being entered onto payroll sheets for hours not worked or that he pointed this out to Ms Oakley verbally or otherwise on 27 or 28 April 2022. Ms Oakley was clear in her denial that any such disclosure was made to her on those dates and we accept her evidence. Alleged R1 PD2 3.1.1.2 - By email dated 5 May 2022 to Ian Farmer, Kieran Farmer, Wendy Sutton, and other Muller Shift lead Managers, that diesel fuel and Ad Blue was leaking into the drainage system.

[170]The Claimant accepted at the hearing that this alleged protected disclosure was his primary focus in his whistleblowing related

claim.

[171]There are some substantial disputed issues as regards what happened on 5 and 6 May 2022. Mrs Sutton gave the most complete account of what happened and we found her evidence to be clear and compelling. She is a long serving employee of R1 and is a specialist health, safety and environment adviser. We accept her evidence that she and R1 have a good relationship with the Environment Agency (“the EA”) and that it could be far more problematic to cover up an incident than to be open with the EA in order to resolve and incident in an acceptable way. We accept that R1 is frequent audited by the EA and the fire service.

[172]R1 has sophisticated controls on waste water and liquids that cannot be discharged into the water courses and which are stored and treated on site until they are safe to be discharged into the waterways. R1 has a modern and very large Effluent Treatment Plant on its site.

[173]Hundreds of vehicles enter and leave the Stonehouse site each day and use the diesel and AdBlue refilling pumps that are on the site. AdBlue is a water soluble additive which we understand is added to diesel to reduce emissions. As one would expect, and as one might see at commercial petrol filling stations, fuel and AdBlue drips from the nozzles onto the ground and causes staining on ground around the pumps – this is particularly the case at a site as large and busy as Stonehouse.

[174]On 5 May 2022 Mrs Sutton asked Darren to get the fuel pump area cleaned ahead of an audit. The site was due an IS045001 Occupational Health and Safety audit on 6 May 2022. The Claimant says that he instigated the cleaning of the area but we find that he is mistaken in that assertion and accept that it was Mrs Sutton who did so. On the balance of probabilities we consider that Darren mentioned it to the Claimant who then asked an employee called Terry (Yardsman for R1’s Transport Department) to carry out the clean. Case Number: 1403501/2022 44 of 84

[175]R1’s site has blue painted drains, which are for rainwater, and red painted drains which are internal drains which take waste water, milk and other chemicals to the Effluent Treatment Plant.

[176]The Stonehouse site’s blue drains are fitted with sluice gates and sensors. If the sensors detect anything which is not water, they automatically close to stop the flow going to the river and an alarm goes off:176.1 in a hut by a gate (which also has a flashing light on the side) and

176.2 in the Effluent Treatment Plant office.

[177]We accept Mrs Sutton’s evidence that on 5 May 2022 she attended the fuel pumps and when she got there:177.1 She found that Terry, because there is no water supply near the fuel pumps, had filled an IBC (Intermediate Bulk Container - a large tank) with water and soap and had taken it over to the area and started rinsing and scrubbing the area with a brush;

177.2 Terry forgot to put covers over the adjacent blue drains;

177.3 Terry seemed panicked to Mrs Sutton (he was worried he had let Mrs Sutton down) because he had forgotten to cover the drains;

177.4 Mrs Sutton did not consider that Terry had let her down;

177.5 Those present at the fuel area were Terry, the Claimant and at least one but possibly two engineers.

[178]We accept that Mrs Sutton then checked the sensors and nothing had been detected. Because the situation involved approximately 1000 litres of soapy water with a small bit of residue (diesel and AdBlue) entering the drains she was satisfied that there was no risk to the environment, that nothing unlawful reached the river and that it was not a reportable incident (Mrs Sutton in her role being legally obliged to report any breaches of R1’s permit to the EA). It was not at issue in the claim that soapy water entering the waterways was problematic.

[179]We also accept Mrs Sutton’s evidence that, had there been a spillage of diesel and/or AdBlue, the sluice gates would have closed and the alarm would have gone. That would have triggered a procedure under which an organisation called Envirocycle would pump everything out and clean the sump inside the drain. The sensors are checked every morning and afternoon and are serviced every 3 months. The Claimant said that the alarm had gone off. Mr K Farmer also said in verbal evidence that he thought the alarm had been triggered. We accept Mrs Sutton’s evidence that the alarm had not in fact been triggered because it is not mentioned in an email that the Claimant sent the same day and because we accept Mrs Sutton’s evidence that the Envirocycle process was also not triggered. Mr K Farmer was not on site at the time and we conclude that he was misremembering or confusing his evidence with what the Claimant had said. Case Number: 1403501/2022 45 of 84

[180]As referenced above, at 15:24 on 5 May 2022 the Claimant sent the following email to Mr K Farmer, Mrs Sutton, Mr I Farmer and others including a number of ‘Group’ email addresses used by R1 [HB393, 402, 517, 707]. The email read: Subject: Safety and drains Hi please see item from todays log Pump no 1, wet with diesel, got terry to mop up spill, and wash with water and washing up liquid Area shows long standing diesel stains entering the nearby drain. Potential for large fine drain too close to fuel pump. Met site safety and engineering managers, they also suggested that that drain should be put out of Commission due to its proximity to fuel pump, Also Pump 1 needs small bund/drip as its been leaking for a long while. Pump 2, trip hazard, hose for fuel pump, engineering to come up with solution. Terry did not use a drain seal so caused a panic.

[181]This is the email which the Claimant says amounts to protected disclosure 3.1.1.2 (“R1 PD 2”).

[182]For completeness (and because it was an email that the Claimant later sent on to his personal email account) at 17:19 on 5 May 2022 the Claimant sent the Shift Lead who was about to take over from him the following handover email (398): Subject: Handover Follow Up Flag: Follow up Flag Status: Flagged Hi Adam Expense Sheets for Chris Rickard & Ron Chapman emailed to Kieran for signatures. Returned signed on email. Shunter YJ61NZO Reported intermittent misfire, called terberg out. They Suspect fuel pump or bugs.still in use. Safety conversation with Slawomir Kraus, negative due to speeding. Good safety conversation with Steve Manning. Safety conversation,ALS Driver Bogden, seen trying to unload trailer without switching engine off. Case Number: 1403501/2022 46 of 84 Pump no 1, wet with diesel, got terry to mop up spill, and wash with water and washing up liquid Site shows long standing diesel stains entering the nearby drain. Met site safety and engineering managers, they suggested that that drain should be put out of Commission due to its proximity to fuel pump, Also Pump 1 needs small bund/drip as its been leaking for a long while. Pump 2, trip hazard, hose for fuel pump, engineering to come up with solution. Terry did not use a drain seal so caused a panic. 5 Trailers ready at Bristol to collect. 2 being collected before 18:00, the other 3 are T371 T193 T450

[183]The Claimant in his witness statement made other potentially more serious allegations (such as “The fuel pump was faulty it would not stop the flow of fuel when the tank was full and would empty the diesel in the length of the hose when drivers tried putting them back on the pump and they would at times fall off due to excessive wear”. This is not reflected in the contemporaneous documents (some of which was prepared by the Claimant) and we do not accept his evidence as being a reflection of the position at the time.

[184]The Claimant disputed that Mrs Sutton was present during the discussion at the site of the pumps with the Claimant, Terry and the engineers. We accept Mrs Sutton’s evidence that she was and this is reflected in the R1 PD 2 email where it says “Met site safety and engineering managers”, Mrs Sutton being the person referred to as ‘site safety’.

[185]We also accept Mrs Sutton’s evidence that she remembers later in the day walking out to the pump area with the Claimant and talking about it. We accept that she put an action plan in place such that the pumps were cleaned more regularly so that there was less build of diesel and AdBlue drips. We accept that she also instructed a team to carry out some maintenance on the pumps (replacing drip trays).

[186]An area of confusion and dispute arose out of Mrs Sutton’s assertion in her witness statement [WSWS10] that most of the soapy water that Terry used to clean the pump area was running to a red drain (rather than a blue drain). This conflicted with the photographic evidence we were provided with (grid to the right of picture at HB 424). Mrs Sutton fairly conceded in cross examination that her evidence was not accurate and that in fact the drains nearest to the area were blue. Taking this into account we accept Mrs Sutton’s evidence that what happened “was not a big drama of the day” and in any event it was not the Claimant that raised it, it was an engineer who called Mr K Farmer who then called Mrs Sutton. We accept her evidence that:186.1 the issue was as a result of unavoidable drips from daily use of the fuel pumps, not leaks. The Claimant presented photos to the hearing (HB423-4) taken on 27 May 2023 which we accept reasonably do not give Mrs Sutton cause for concern. The Claimant, if he thought these Case Number: 1403501/2022 47 of 84 photos evidenced a risk, did not send them on to Mrs Sutton.

186.2 Neither she nor any engineering manager said (as suggested in the R1 PD 2 email) that a “drain should be put out of commission due to its proximity to fuel pump." The site has been open since 1976 and the pumps were installed over 20 years ago. The Environment Agency and Fire Service are aware that the fuelling and AdBlue pumps are there and of the proximity of the blue drain to them. The location of the nearby blue drain had never been raised as an issue by anyone - internal or external.

186.3 The site had been inspected and the drain had been in that position without any cause for concern that the measures already in place were not adequate and required the drain to be decommissioned and we heard no evidence that, in the two years since, that has been necessary.

186.4 The R1 PD 2 email presents an exaggerated version of that day's events as the pump was not "wet with diesel" and it had not been "leaking for a long while".

186.5 The last line of the R1 PD 2 email sums the situation up "Terry did not use a drain seal so caused a panic” but no harm was done and there were no ongoing health and safety or environmental risks.

186.6 Had there been a leak R1 would have known before via its system of daily swipe reports (all drivers knowing of the requirement to report HSE incidents and they use the pumps the most).

186.7 Terry was relatively new in the role of Yardsman and he had not let Mrs Sutton down.

[187]We accept Mrs Sutton’s evidence that ordinarily in a situation like this she would have provided verbal feedback. However, because Mr K Farmer was off site at the time she responded in writing on 6 May 2022 as follows [HB403] and forwarded the Claimant’s R1 PD 2 email to her manager [HB402]: Hi Just been following this up with Andy from transport and Chris Holbrow and Jon Minett. Just be clear there was no spill of AD blue. Going forward action is Jon to provide quote for the materials for dip trays and hose hooks Transport will raise PO Site services to complete work when materials arrive Team Severnside working together [smiling emoji] Case Number: 1403501/2022 48 of 84

[188]The evidence about why Mrs Sutton had attended the fuel pump area was somewhat confused. Mr K Farmer’s recollection [KFWS14] was that it was because of an email that the Claimant sent that afternoon (the alleged protected disclosure 3.1.1.2 which we address below). Mrs Sutton’s recollection, which we accept because she was more closely involved in the events of the day and so is likely to have a better recollection of those events, was that she attended the pumps because, when Terry realised his mistake, he notified one of the engineers who was passing and they contacted Mr K Farmer who then telephoned Mrs Sutton.

[189]On 5 May 2022 and 11 May 2022 the Claimant sent on to his personal e-mail address his two emails of 5 May 2022 [HB393, 399, 408]. We accept R1’s submission, in the context of the Claimant’s experience of Tribunal litigation, that he did so to build a case against R1. The Claimant’s evidence was that he started to feel isolated, was not having the contact with management that he wanted (other than non-stop digging at him to the point that on 11 May 2022 he considered walking out). In this regard he says he was reminded of this by an email to his wife but he did not refer us to that email.

[190]The Claimant’s evidence was that having sent his alleged R1 PD 2 email:190.1 The incoming shift lead Adam said to the Claimant: “mate your fucked they will get you for this”

190.2 When the Claimant asked Adam why, Adam suggested that the Farmers were only concerned with their image.

190.3 On an unspecified date presumably around the time that an application by the Claimant for a permanent shift lead role was rejected a group of staff (the Claimant does not attribute the comment to anyone in particular) said: “that’s what happens if you fuck them off, they get rid of you” and “the only people that are going to last at Stonehouse are the ones too scared to mention or too stupid to understand what’s going on, or their mates who will help them screw Muller”.

190.4 Darren said in a conversation about the fuel pumps: “what the fuck have you done why is Health & Safety after you” “you are in trouble they will not forgive you for embarrassing them”

[191]We have taken into account comments that employees made in an investigation of these events as a result of a grievance that the Claimant raised on 31 October 2022 [HB601 and 687-700, 710-716] but conclude that these comments were not made. We reach this conclusion taking into account that:191.1 By this time the Claimant was sending on work related emails to his personal email address; Case Number: 1403501/2022 49 of 84

191.2 He was experienced in handing employment related processes;

191.3 He was experienced in Tribunal litigation; and yet

191.4 He presented no contemporaneous note made by him evidencing that these comments were said; and

191.5 We do not consider that it is probable that they were said given that we accept that the events of 5 May 2022 and the Claimant’s emails of that date did not cause any sort of drama or present any sort of problem for R1 or its employees.

[192]The Claimant’s evidence was “I also met three guys from maintenance who were keen to apportion blame on the leak until I asked them why the pumps were not bunded? why an open drain 3 foot away? they mention a few issues with paying for works and not necessary etc, that stopped when I said “my last role was 7 years in Hazardous Waste Disposal what you had just said would be a £50,000 fine”. If the Claimant said this there was no contemporaneous evidence of him having done so or that it was taken by R1 or any of its employees to be a fair reflection of the position. We find that there were subsequent health and safety committee meetings (the second of which was chaired by the Claimant) which record that the matter was closed: 20 May 2022 – chaired by Mr K Farmer [HB414-417] […] 1. Review of actions arising from last meeting: Pump Area Slippery – Needs Clean. Terry Sims now cleaning & issue is removed. – Action/who – Closed 29 June 2022 – chaired by the Claimant [HB438-442] Pump Area Slippery – Needs Clean. Terry Sims now cleaning & issue is removed. [Added to Terry Sims cleaning plan & checked on safety sweep to mitigate risk.] . – Action/who – Closed – Date – 27/07/22

[193]The text in square brackets was in red font.

[194]We accept Mr K Farmer’s evidence in chief that the pump issue did not stand out at these committee meetings and that of greater significance were: “Cage Bay Staff – Not operating the Dock Leveller once finished emptying unloading the trailer. Drivers need to report immediately so that individuals can be spoken to.” and “Straps on HET’s when loading empty trolleys. Review the sign off & check all are trained to the updated procedure. Is current procedure correct? Is there a RA for this?” Case Number: 1403501/2022 50 of 84

[195]Whist jumping ahead in the chronology we note that the Claimant sent Mrs Sutton an email on 6 July 2022 saying [HB446]: The Fuel island is being cleaned everytime diesel or Ad Blue shows evidence of spillage into the drain, This is at least once per week, sometimes 3 times. Thought you need to be aware.

[196]In this respect we accept Mrs Sutton’s evidence that the pumps were on a regular cleaning regime to clean up drips from frequent use, and not spillages or leaks. The Claimant said that he sent this email because: “the random leakage of fuel and Ad Blue continued resulting in [him] contacting the EA for [name] (she had left but I didn’t know) I tried contacting her because the leaks were still happening weekly and on the 6th July 2022 I contacted Wendy Sutton again..”.

[197]However, the Claimant withdrew his allegation that he had made a protected disclosure to the EA and in any event, on his case, he had contacted the EA on 7 September 2022 (two months after his email to Mrs Sutton on 6 July 2022).

[198]We do not accept that the R1 PD 2 email discloses to R1 that “diesel fuel and Ad Blue was leaking into the drainage system” as alleged. The email does not mention Ad Blue. We conclude that there were small amounts of wet diesel on the ground at the pump area because of ordinary usage and drips from the fuel nozzles but there had not been a spill of any significance nor had there been a leak.

[199]It was Mrs Sutton who had initiated the request that led to Terry cleaning the area. The email does not mention any alarms having been triggered and we conclude that they were not triggered and that there was no incident of any significance.

[200]As such, even if there was a disclosure of information made in the public interest, we do not consider, given the innocuous nature of what had happened, that the Claimant could reasonably have believed that the information he had disclosed tended to show that either a criminal offence had been, was being or was likely to be committed or that a person had failed, was failing or was likely to fail to comply with any legal obligation or that the environment had been, was being or was likely to be damaged. The Claimant must have known that a small amount of diesel and Ad Blue had entered the watercourse diluted by a large amount of soapy water and that the sensors on the blue drain had not been triggered.

[201]We accept R1’s submission (contrary to the Claimant’s assertions) that:201.1 The Claimant had not raised an issue based on health and safety and that was fundamentally embarrassing to R1;

201.2 R1 had not had sweep it under the carpet; Case Number: 1403501/2022 51 of 84

201.3 R1 did not removed the Claimant from their site because of it. Alleged detriment 4.1.1 - On 5 May 2022, Keiran Farmer shouted at the claimant that a report was sent five minutes late.

[202]We accept the Respondent’s submission and find that, as the pleaded disclosure of the Claimant was sent at 15:24 on 5 May 2022 and in cross examination the Claimant said that this alleged detriment happened between 11am and 11:19am that day, the detriment alleged could not have been caused by the Claimant’s alleged protected disclosure that day.

[203]In any event we accept Mr K Farmer’s evidence that he did not shout at the Claimant. There is no contemporaneous evidence of him having shouted at the Claimant.

[204]As referenced above, we also conclude that there was no protected disclosure on 5 May 2022 and, as such, the Claimant could not have been subjected to a detriment as a result of a protected disclosure (there had not been one at this point - the alleged protected disclosure on 27 or 28 April 2022 also not having occurred). Alleged R1 PD3 - 3.1.1.3 On 6 May 2022 the claimant repeated the disclosure verbally to Wendy Sutton.

[205]The Claimant’s case is that he verbally repeated the protected disclosure alleged to have been made by email in R1 PD 2 to Mrs Sutton on 6 May 2022. The disclosure actually made in the email is not the disclosure relied upon in 3.1.1.2 and we conclude that it is also not the disclosure relied upon in 3.1.1.3. For the reasons set out in respect of alleged disclosure 3.1.1.2/PD2, there was no verbal protected disclosure on 6 May 2022 to Mrs Sutton. Alleged detriment 4.1.2 - From 6th May 2022 Charlie Oakley ostracised and ignored the claimant.

[206]Charlie Oakley is in fact Ms Oakhill. The Claimant does not specify which disclosure is linked to this detriment. The only disclosure pleaded prior to 6 May 2022 to Miss Oakhill is said to be on 27 or 28 April 2022. We have found that this disclosure did not happen and nor were there any other protected disclosures which could have led Ms Oakhill to ostracise or ignore the Claimant. In any event we accept Ms Oakhill’s clear and credible evidence that she did not ostracise the Claimant. We accept that she engaged with the Claimant in a normal and unchanged way. We find that the Claimant was not subjected to the alleged detriment.

[207]The Claimant’s allegation is further undermined by the fact that he himself alleges in his witness statement [CWS15] that from 20 April 2022 he was ignored by Ms Oakhill and Mr K Famer “on the rare occasions they were at the Stonehouse site”. Even on his own evidence he was being ignored before any of his alleged protected disclosures. As pointed out in submissions by R1, the Claimant further confused his own case by saying in his witness statement [CWS17/18]: […] Mid-April 2022 around the 11 April I am sure […] In hindsight I regret mentioning my experience in uncovering any dishonest behaviour as I Case Number: 1403501/2022 52 of 84 suspect it played a part in my being ignored, not trained in all aspects and the plan produced to replace me with Darren […]. Alleged detriment 4.1.3 - On 9 May 2022 advertising the claimant’s role of Shift Lead.

[208]The Claimant withdrew this alleged detriment. Alleged detriment 4.1.4 - On 10 May 2022, rejecting the claimant’s application for the role of Permanent Transport Shift Lead

[209]The Claimant withdrew this alleged detriment. Alleged detriment 4.1.5 - On around 10 May 2022, Kieran Farmer and Charlie Oakley ignored the claimant’s requests as to why the role he was doing (Transport Shift Lead) was being advertised.

[210]In the context of this alleged detriment the Claimant said [CWS39] that: Around mid-May I listened as [Ms Oakhill’s name misspelt] offered a Shift Team leader role to Darren [Surname] in my presence loudly whilst smiling at me. This was offered at least three more times over the next few days, as Darren gloated it to me. I recall him saying to me the “job is not for you” I recall saying to him and the office in general with [Ms Oakhill’s name misspelt] and [Mr K Farmer] present “I would be shocked if I was gotten rid of for raising health & Safety concerns given the twelve golden rules and the office went quiet. Darren [Surname] told me he was not interested in the role of shift lead as he was better off where he was. This I now can see after my DSAR was him lying to me PAGE 419, Darren [Surname] applying for shift lead

[211]We accept Ms Oakhill’s evidence [COWS13f] that:211.1 this did not happen;

211.2 she was not a member of the senior leadership team;

211.3 she was not involved in the recruitment of a permanent shift lead; and

211.4 she did not have the authority to offer the role to Darren.

[212]We further accept her evidence [COWS8(b)] that she was not involved in the recruitment of a permanent shift lead and the Claimant did not ask her about why the role was being advertised (and had he done so she would have raised the concern herself with Mr K Farmer).

[213]We accept Ms Oakhill’s evidence was that it would have been more natural for the Claimant to have raised this query with Mr K Farmer (as the Claimant’s line manager). We also accept Ms Oakhill’s evidence that the Claimant did not say to her "if [they] wanted to get rid of him for reporting H&S issues he would be amazed.". As she said in her witness evidence, she was not ignoring the Claimant [418].

[214]We accept Mr K Farmer’s evidence [KFWS20-22] that: Case Number: 1403501/2022 53 of 84214.1 He did not ignore any questions from the Claimant about “why the role he was doing was being advertised”.

214.2 Requisition 67545 was advertised from 22 March-20 May 2022 [HB314].

214.3 Requisition 74361 was advertised from 20 May-27 August [HB413].

214.4 On 10 May 2022, the Claimant was not working and Mr K Farmer’s diary was blocked out all day doing 1-2-1 consultation meetings with the drivers impacted by the strike.

214.5 If the Claimant had raised it with him, he would not have ignored him.

214.6 The Claimant did not say to him “that if we wanted to get rid of him for reporting H&S issues he would be amazed”.

214.7 He would not ignore a health and safety incident and he would not just ignore someone or smile and walk away and it is part of his job to have difficult conversations.

214.8 The fact that R1 has a Health & Safety Committee which meets monthly evidences that R1 takes H&S issues seriously and actively encourages reporting by employees.

[215]For the reasons we have explained, this could not have been a detriment linked to a protected disclosure because we do not find that the Claimant had made a protected disclosure at this point. Alleged detriment 4.1.6 - Refusing to allow the claimant to apply for the role of Permanent Shift Lead when it was advertised on 23 May 2022.

[216]On 20 May 2022 R1 advertised for a Permanent Transport Shift Lead (Req 74361) [HB 413].

[217]On 25 May 2022:217.1 Mr Godwin and the Claimant exchanged the following text messages [HB 422]: Claimant to Godwin: hi Maek its andy, i work for you at muller in gloucester.. is it ok with you if i apply to work there permanently? Or should i stay temp till 6 months up? i want to do the right thing.. sorry Mark typo Godwin to Claimant Hi Andy, I will have a chat with Muller and see what the score is

217.2 the Claimant then applied for the role [HB421-422]. Case Number: 1403501/2022 54 of 84

[218]We accept R1’s submission that this alleged detriment is misconceived:218.1 R1 did not have the ability to refuse to allow the Claimant to apply for the role of Permanent Shift Lead; and

218.2 the Claimant did in fact apply.

218.3 Whilst the Claimant tried to frame questions to identify that, although he had no barrier to applying, the barrier was in relation to being interviewed, that is not the Claimant’s pleaded case.

[219]In any event the Claimant had made no disclosures by this date that amounted to protected disclosures and so could not have been subjected to an unlawful detriment on this date. Alleged R2 PD1 - to R2 - 5.7.1.1 - On the 25th May 2022, did the Claimant verbally disclose to Mark Godwin of the second respondent that he was being harassed and victimised for raising concerns at Müller (the first respondent)?

[220]We find that the Claimant did not make R2 PD1 as alleged on 25 May 2022 to Mr Godwin:220.1 The Claimant did not allege this in his witness statement.

220.2 There is no evidence that the Claimant verbally disclosed to Mr Godwin that he was being harassed and victimised for raising concerns at Muller on 25 May 2022.

220.3 Whilst the Claimant did call Mr Godwin (as Mr Godwin accepted – albeit he could not recall the date) at the most the Claimant said that he had raised an Ad-Blue incident and said that he had “ruffled some feathers”.

220.4 The Claimant did not say that he was being harassed and victimised and did not disclose information meeting the requirements of the statutory test. Alleged R1 PD 4 - 3.1.1.4 on 7 July 2022, by letter to the 1st respondent’s finance directors that payments were bring altered.

[221]The Claimant’s case [CWS48] was that on 7 July 2022 he started writing his thoughts down about:221.1 continuing Health & Safety issue as well as financial irregularity;

221.2 the victimisation and detrimental treatment he thought he was being subjected to for raising them for discussion.

[222]The Claimant said that [CWS48 -49]: “it seemed clear by then that The Farmers were aware of the discord and managed it by refusing to acknowledge it and forcing people out who dared to raise anything or gossip. I could not find a name of a finance director, so I addressed my whistleblowing letters to the Finance Directors. I posted two copies to Market Drayton. I ask in that Case Number: 1403501/2022 55 of 84 Whistleblowing statement that the Muller Family receive a copy as if it was my money being played with”.

[223]We find that the Claimant did not make this protected disclosure as alleged. There is no evidence that the Claimant sent a letter to R2’s finance directors. The Claimant received no response and there was no investigation.

[224]When the Claimant did send a letter as an attachment to an email dated 31 October 2022 [HB 601], an investigation was carried out and resulted in the investigation report dated 22 November 2022 [HB 635-636].

[225]We accept that, if we are wrong and the Claimant did in fact send this letter, it cannot have caused any subsequent detrimental treatment because we find that it was not known about by any of the relevant decision makers. Alleged detriment 4.1.7 - On 20 July 2022 the claimant was denied the opportunity to apply for a Permanent Transport Shift Lead role.

[226]On 20 July 2022 an advert for a Transport shift role at Muller Stonehouse was placed for which the Claimant applied that day.

[227]At 14:38 on 20 July 2022 the Claimant received a reply confirming that he had been unsuccessful. The Claimant then sent multiple emails asking why he had been unsuccessful without reply.

[228]By the evening of 20 July 2022 the role was marked as no longer available.

[229]We accept R1’s submission that this alleged detriment is misconceived:229.1 R1 did not have the ability to refuse to allow the Claimant to apply for the role of Permanent Transport Shift Lead; and

229.2 the Claimant did in fact apply.

229.3 Whilst the Claimant tried to frame questions to identify that, although he had no barrier to applying, the barrier was in relation to being interviewed, that is not the Claimant’s pleaded case.

[230]In any event the Claimant had made no disclosures by this date that amounted to protected disclosures and so could not have been subjected to an unlawful detriment on this date. Alleged detriment 4.1.8 - On 21 July 2022 the claimant was denied the opportunity to apply for a Permanent Transport Shift Lead role.

[231]The Claimant did not address this in his witness statement and R1 did not address it in submissions. We find that R1 did not have the ability to refuse to allow the Claimant to apply for the role of Permanent Transport Shift Lead and did not in fact stop him applying and in any event the Claimant had made no disclosures by this date that amounted to protected disclosures and so could not have been subjected to an unlawful detriment on this date. Case Number: 1403501/2022 56 of 84 Alleged detriment 4.1.9 - On 30 July 2022, Kieran Farmer ignored the claimant’s request for a few hours training.

[232]The Claimant did not appear to address this in his witness statement and we accept Mr K Farmer’s evidence [KFWS37] that the Claimant did e-mail that day asking for some training on planning [HB 460] but on checking his e-mails for that day in preparing his witness statement he could not find a copy of the email. We accept that Mr K Farmer did not reply but that this was not intentional. In any event, the Claimant had made no disclosures by this date that amounted to protected disclosures and so could not have been subjected to an unlawful detriment as alleged in the LOI.

[233]In August 2022 Industrial Action started at Severnside site [HB 467-468] and on 18 August 2022 Mr K Farmer interviewed Ms G Roberts for the permanent Transport Shift Lead role [HB 541]. That led to the decision being taken on 23 August 2022 to appoint Ms Roberts to the role [HB480].

[234]In September 2022 Animal Rebellion started protests at the Severnside site [HB481-482, 488]. Alleged detriment 4.1.10 - On 1 September 2022 Kieran Farmer ignored the claimant’s request for a few hours training.

[235]On 1 September 2022 the Claimant sent an email to Mr K Farmer saying [HB483]: Route 75 today, Chill say they cannot do this as there are 2 drops on sequence 2 I really would like some training on planning so I don’t have to bother you Kind Regards Andy

[236]Mr K Farmer replied within a minute to say: Hi Andy, Will get it moved now. Just have not got time or people to train anything at the moment.

[237]Mr K Farmer did not therefore ignore the Claimant’s request for training, he acknowledged it and explained that there were not the resources at that time to give the Claimant what he had asked for. We accept that this was the same day that R1 had drivers on strike [HB467] and the threat of imminent Animal Rebellion protests [HB481 and 484-488, KFWS46]. We accept also that planning is a business critical task which Mr K Farmer and Ms Oakhill were covering. In any event the Claimant had made no disclosures by this date that amounted to protected disclosures and so could not have been subjected to an unlawful detriment as alleged. Case Number: 1403501/2022 57 of 84 Alleged detriment 4.1.11 - On 5 September 2022 the claimant was accused of not completing the cost tracker.

[238]The trunking tracker is a tracker used by R1 to track every delivery run every day [COWS8c]. It is the shift lead's responsibility to complete this on a daily basis [HB312]. Ms Oakhill trained the Claimant on how to complete the tracker and the Claimant been completing it since he started in April.

[239]The Trunking Tracker was not filled out when the Claimant was on shift on 3 September 2022.

[240]Mr K Farmer therefore e-mailed the Claimant on 5 September 2022 [HB490] saying “Why was there nothing in the Trunking Tracker? I explained the importance of this last week & Charley will now have to spend hours trying to work it out again.”. Ms Oakhill therefore had to go back through the A3 sheets and input all the data. We accept that this was not a false accusation - the task had not been completed properly. Ms Oakhill e-mailed the Transport Group on 9 September [HB500] to confirm that she had tidied up the document.

[241]On 8 September 2022 Mr K Farmer and the Claimant then exchanged the following emails [495]: Claimant to K Farmer 12:58 Subject: FAIL HANDOVER Hi Kieran I share your shock and sorry if you had wasted time on this. Its just happened to me at 12:00 as well, between Zuzzie, Darren and I have we understood whats happened. The Trunking Tracker I had updated up to 12:00 when reopened at 12:15 had the majority missing. Darren and Zuzzie saids its happened to them, we checked and found the file was open on other peoples PC as well and would not save. To ensure this never happens again on my shift I will save to my docs before uploading. K Farmer to Claimant 13:26 Subject: RE: FAIL HANDOVER Brilliant, thank you.

[242]It was not therefore a case of the Claimant simply omitting to do something that he knew he should.

[243]Mr I Farmer also stressed the importance of this data being correct at 14:30 on 9 September 2022 [HB501-502]. A Mr A Wilson then e-mailed to say why he thought some of the entries were incorrect [HB501] and the Claimant replied, with a question directed to him.

[244]The Claimant was not subjected to a detriment. This was part of necessary line management of the Claimant. It may not have been the Claimant’s fault (it seems he understandably overlooked the fact that someone else had the tracker Case Number: 1403501/2022 58 of 84 open and so his changes would not save) but it was not unreasonable for Mr K Farmer to raise it with him as he did. The correspondence was by email and the Claimant was not humiliated in front of anyone (the email from Mr K Farmer was only addressed to the Claimant).

[245]In any event the Claimant had made no disclosures by this date that amounted to protected disclosures and so could not have been subjected to an unlawful detriment as alleged. Alleged R1 PD 5 3.1.1.5 - On 7 September 2022 to Hayley Peters at the Environment Agency that diesel and Ad Blue were entering a drain at Muller Stonehouse and were being ignored.

[246]The Claimant withdrew his alleged protected disclosure to the EA. Alleged R1 PD 6 - 3.1.1.6 - On 25th of September 2022, by email to Kieran Farmer, that some agency workers were being paid 15 hours repeatedly for only working 12 hours and signing out sheets were not being completed.

[247]This alleged protected disclosure was made on 26 rather than 25 September 2022 as alleged. The Claimant sent the following email to Mr K Farmer which he asserts is his R1 PD 6 [HB508]: Subject: Payroll Anomolie [sic] Hi Kieran Doing the MTS for yesterday I was surprised to see only the 2 shunters had hours entered and both had been entered as 15 hours. [NAME] was shift lead last night and he told me this was one of the things he had not completed as Ian went off sick halfway through shift and he was swamped. The only other people in the office last night were Lynn and Ian. I have not asked anyone else about this in case there is a special deal for these 2 guys in being paid 15 hours for working 12. The timesheets have a start time but finish time is not filled in, Tachomaster shows both of them have worked 12 hours on all these 3 days. No other shunters have increased payments. If its all ok and I should not look at or its for another person understood.

[248]This email did not amount to a protected disclosure. Whilst it was a disclosure of information the Claimant cannot reasonably have believed that it tended to show that a person had failed, was failing or was likely to fail to comply with any legal obligation. In his witness statement the Claimant simply said [CWS53] “25th Sept I reported that 2 Agency drivers had their hours altered to overpay them 6 hours, the immediate response from Kieran Farmer was its Ok.”. He advanced no evidence as to the applicable legal obligation. The email was no more than a Case Number: 1403501/2022 59 of 84 question and a question which the Claimant himself acknowledged might involve a special deal for the shunters in question.

[249]Before waiting for a reply the Claimant then forwarded his e-mail to his personal e-mail address [HB508]. We accept Mr K Farmer’s explanation [KFWS52-55]. Owing to the industrial action taking place at the time [HB503] R1 had an agreement that if agency workers would shunt (the hardest job because they had to continually drive past the picket line) R1 would pay them 15 hours for working 12 as an acknowledgement and thank you for what they were going through.

[250]Mr K Farmer replied to the Claimant to confirm that the payroll anomaly was authorised on 26 September 2022 [HB510]. Alleged detriment 4.1.12 - On 26 September 2022, engaging a new Shift Team Lead but not informing the claimant in advance.

[251]On 26 September 2022 Ms G Roberts commenced employment as permanent Transport Shift Lead for R1. We accept Mr K Farmer’s evidence [KFWS56, 58] that:251.1 he met with the Claimant that day to let him know that Ms Roberts had started;

251.2 the Claimant seemed fine with it and said "ok no worries."

251.3 The Claimant did not seem humiliated or distraught and there was no change in his demeanour.

251.4 Mr K Farmer did not leave site "promptly" and it wasn't a "flying visit" as alleged by the Claimant as Mr Farmer was on site doing Ms Robert’s induction all day.

251.5 R1 had assessed that the Claimant was not right for the role but he was better than not having anyone covering the role at all (given the pressure on him and Ms Oakhill) before Gary came back.

251.6 On Tuesday 27 September, Mr K Farmer e-mailed the team to tell them that Ms Roberts had started as the new Shift Lead [HB520].

251.7 The Claimant had therefore been informed before the rest of the team.

[252]The Claimant was not subjected to a detriment and the Claimant had no entitlement to know in advance of Ms Robert’s appointment. In any event the Claimant had made no disclosures by this date that amounted to protected disclosures and so could not have been subjected to an unlawful detriment as alleged.

[253]On 04 October 2022 the Claimant made a data subject access request to R1 [HB539] which he sent to Mr K Farmer and Mr I Farmer. Case Number: 1403501/2022 60 of 84 Alleged detriment 4.1.13 - On 5 October 2022 Kieran Farmer ignored the claimant’s calls and texts.

[254]The Claimant alleges [CWS55] that on 5 October 2022:254.1 after waiting to see Mr K Farmer all day, at 16:39 he texted him to ask if he could see him but got not reply;

254.2 at 16:56 called Mr K Farmer to ask if he could see him but again got no reply.

254.3 At 17:15, after a colleague told him that he and Mr K Farmer had finished a meeting with a driver the Claimant went upstairs to see Mr K Farmer who was in the main office;

254.4 Mr K Farmer did not want to see or speak to the Claimant because he ran out of the office in a startled manner.

254.5 the Claimant sat down to wait to see if Mr K Farmer would return and sometime later he did;

254.6 Mr K Farmer opened the door but did not come towards the Claimant and was holding his phone towards the Claimant so the Claimant assumed he was recording him;

254.7 Mr Farmer said that he “knew that the Claimant had sent 3 or 4 letters in, and what was it he wanted?”

254.8 The Claimant asked why the Claimant was not interviewed or considered (presumably for the role that Ms Roberts had been appointed to) and Mr K Farmer replied: “don’t have to, don’t want to, you are staying until the 26th October and that’s it”

254.9 The Claimant, despite being very angry and insulted kept his cool as it seemed clear Mr K Farmer “had no idea what he was doing as a hiring manager”.

254.10 “Possibly because Mr K Farmer was recording him” the Claimant left saying “ok have it your way”.

[255]The Claimant acknowledges that he has no idea how Mr K Farmer was aware of any letters other than his single Subject access request.

[256]The next day, 06 October 2022 the Claimant raised a grievance and DSAR with R2 [HB 547-548] . Notwithstanding the harsh, upsetting and odd behaviour that he alleges Mr K Farmer subjected him to the previous day, the Claimant did not in his grievance complain about anything that happened on 5 October 2022. His focus was entirely on events of 26 September 2022.

[257]We do not find the Claimant’s allegations in this regard probable. Case Number: 1403501/2022 61 of 84

[258]There is a report that regularly needs to be sent at R1 which is called a “SIC”. We accept that it was a regular occurrence that the Claimant would forget to send this three-hourly report at 8am, 11am, 2pm and 5pm. This is part of the Shift Lead role that the Claimant performed [HB312].

[259]As regards Mr Farmer’s evidence we find that:259.1 First thing on 5 October 2022 he was in Bristol for a budget review.

259.2 Mr K Farmer had asked for an update on the SIC;

259.3 The Claimant had sent the 8am SIC and replied with a question directed at someone who was not included in the e-mail (and who would not therefore have seen his query). Mr K Farmer viewed this as an example of the Claimant’s lack of attention to detail [HB542-544].

259.4 The Claimant sent a further e-mail asking a question about Cups and Bars. He could have got an answer to this from colleagues who were sitting in the office with him rather than by sending an email and Mr K Farmer pointed this out to him and so he raised this with him [HB545].

259.5 Later in the day Mr K Farmer travelled to Severnside to complete a welfare meeting with an employee at 16:30 [HB538]. He walked past the Claimant on his way in and the Claimant asked to see him. Mr K Farmer replied, "not right now because I've got a welfare meeting upstairs."

259.6 Despite this, the Claimant then called Mr K Farmer while he was in the welfare meeting and also text him at 16:40 asking to speak to him [HB541].

259.7 When Mr K Farmer came out of the welfare meeting he phoned Mr I Farmer (his father) to update him on the welfare meeting and whilst he was on the phone the Claimant appeared.

259.8 Mr K Farmer walked down the corridor because he needed to talk in private and when he back the Claimant was sitting in the upstairs office waiting for him.

259.9 Mr K Farmer and the Claimant had a discussion during which Mr K Farmer told him that he would no longer be needed and that he would inform the agency of an end date of 21 October 2022. He did not say "don't want to, don't have to" or "you are staying until 26th and that's it.’

259.10 Mr K Farmer reminded the Claimant that he had just been covering for Gary.

259.11 The Claimant did then “get a bit funny with him” at that point and said he wanted a session to go through why he was not good enough to stay. Mr K Farmer said he was more than happy to have that session with him and take him through the areas in which he had underperformed and asked him to schedule a session but the Claimant did not then do so. Case Number: 1403501/2022 62 of 84

259.12 Mr K Farmer then had a further welfare meeting scheduled for 18:00 [HB 538].

259.13 Mr K Farmer’s phone was in his hand because he had come back from being on a phonecall and he did not record his interactions with the Claimant.

[260]Mr K Farmer did not ignore the Claimant’s calls or texts, he was in meetings all day and then met with the Claimant as soon as he was free. He did not subject the Claimant to a detriment as alleged and, in any event, the Claimant had made no disclosures by this date that amounted to protected disclosures and so could not have been subjected to an unlawful detriment as alleged.

[261]On 6 October 2022 Mr K Farmer confirmed the end of the Claimant’s engagement in an e-mail to Mr Godwin at R2 [HB546] and confirmed that his last shift would be on 21 October 2022.

[262]On 11 October 2022 Mr K Farmer had a number of issues with the Claimant [KFWS74]:262.1 he sent that day's SIC but didn't copy in the appropriate people [HB552- 553]; and

262.2 he sent an e-mail to the whole of Chill Operations and the Transport Managers stating that the reason for a load leaving late was due to a driver shortage [HB554-557]. If there was a driver shortage Mr K Farmer would have to justify to the business the planning error and there had in fact not been a driver shortage.

[263]On 11 and 13 October 2202 the Claimant send a number of work related emails on to his personal email address as detailed in Mr K Farmer’s witness statement [KFWS75, 76]. Alleged R1 PD 7 - 3.1.1.7 On 13 October 2022, by email to Liam McNamara and Rob Hutchinson, both directors of Muller, that large amounts of money were being paid to sub-contractors unchecked and not earned

[264]On 13 October 2022 at 11:41am the Claimant sent the following email to a number of R1’s directors (Liam McNamara, Rob Hutchison and Nicola Watson [HB578]: Subject: Confidential Whistleblowing update Dear Sir Sorry to trouble you with this, I have gotten your name from the web as a person with or authority and have no faith with Local management and indeed am worried for myself. I do not have any contact details for the Muller Family. I am a Transport Shift Lead working at Muller Stonehouse on a Temp to Perm employed by Workforce since April 2022. Case Number: 1403501/2022 63 of 84 As instructed at Interview I have been looking at ways of increasing productivity and managing costs. My original disclosure identifies suspected over payments of approx £30,000 a month to Workforce. Given the amount if, as I suspect fraudulently, I cannot raise with anyone on site as it cannot be 1 person only involved. I have raised issues by letter to Head office. I have had no reply to my letter to the FD 7/7/22. A new concern is evident in large payments being made to agencies and 3PLs that are not checked and not audited. £16,000 one month alone. Kind Regards

[265]Mr R Hutchinson called the Claimant the same evening at around 18.30 ask questions about the Claimant’s email and the call lasted about 30 minutes [CWS56].

[266]The Claimant’s email (R1 PD7) clearly does constitute a protected disclosure and R1 conceded that it did. Alleged detriment 4.1.14 - On 14 October 2022 Kieran Farmer cancelled all of the claimant’s remaining days booked for work and he was left unemployed.

[267]Mr K Farmer did not know of the R1 PD7 at that time that he cancelled the Claimant’s engagement on 13 October 2022. Mr K Farmer was in Wolverhampton doing a budget presentation on 14 October 2022 when he first found out that the Claimant had made allegations of fraud against Mr K Farmer. That is when Mr K Farmer was made aware that Mr C Dunphy (Head of Finance Controlling) was going to be doing an investigation into alleged financial irregularities. Before this, on 13 October 2022, Mr K Farmer had told R2 that R1 was cancelling the Claimant’s remaining days of engagement [KFWS78 and MGWS27].

[268]It had become apparent to Mr K Farmer that the Claimant was holding interviews with other companies in the open plan office and telling the other shift leads that he was going to put in a grievance about Mr K Farmer and that they should do the same and that he was going to build a case against Mr K Farmer [KFWS78]. In addition Gary, who was on a phased return to work and who the Claimant had been covering, told Mr K Farmer [KFWS61] that it was counterproductive having the Claimant in the office, that he was spreading rumours about Mr K Farmer and encouraging Gary himself to put a grievance in about Mr K Farmer. Mr K Farmer and Gary had needed to mediate to repair a breakdown in their working relationship and Mr K Farmer was glad that Gary could be honest with him about what was happening. Mr K Farmer, on 13 October 2022 and without knowing about R1PD7, therefore asked R2 to cancel the Claimant’s engagement early because the Claimant had become increasingly disruptive. As a result R2 told the Claimant that 13 October 2022 was his last shift over the phone and then in writing on 14 October 2022 [HB364, 581]. Case Number: 1403501/2022 64 of 84

[269]We find that the Claimant was not subjected to the alleged detriment on the grounds of R1 PD 7. His remaining days were cancelled for the unconnected reasons explained by Mr K Farmer.

[270]Between 12 and 14 October 2022 the Claimant was in communication with R2 with respect to his grievance [HB571-577, Mr Godwin quite reasonably having pointed out that his grievance appeared to focus on complaints against R1 and not R2. Alleged R2 PD 2 to R2 - 5.7.1.2 Did the Claimant verbally disclose a complaint regarding the constant transfer without consultation and who his employer genuinely was to Mark Godwin of the second respondent in his grievance around 13 or 14 October 2022

[271]We accept R2 submission that the Claimant makes no mention of this alleged R2 PD 2 in his witness statement. We accept Mr Godwin’s evidence that no such verbal disclosure was made concerning a complaint regarding the constant transfer without consultation and who his employer genuinely was in his grievance around 13th or 14th October 2022. There is no evidence in the bundle that such a verbal disclosure was made. R2 PD2 was therefore not made.

[272]On 14 October 2022 R2 arranged a grievance hearing with the Claimant to take place on 18 October 2022 [HB 580]. Alleged detriment R2 7.1.1 – Inform the Claimant on 14 October 2022 (by Mark Godwin’s secretary and then confirmed by Mark Godwin) that the first respondent no longer wanted him on their premises.

[273]The Claimant made no reference in his witness statement to this alleged detriment.

[274]The decision that R1 no longer wanted the Claimant on its premises was a decision solely taken by R1 and had nothing to do with R2. In accordance with the Terms of Engagement the Hirer can terminate the Claimant’s assignment at any stage without prior notice.

[275]In any event, the Claimant had made no disclosures by this date to R2 that amounted to protected disclosures and so could not have been subjected to an unlawful detriment as alleged. Alleged detriment R2 7.1.2 - Fail to offer the claimant work after 14 October 2022

[276]The Claimant had made no disclosures by this date to R2 that amounted to protected disclosures and so could not have been subjected to an unlawful detriment as alleged.

[277]Further we accept R2’s contention that as an Employment Agency it was not their role to offer the Claimant work. All it could do is put the Claimant forward for potential positions to its clients. We do not consider that there is any evidence that R2 failed to contact the Claimant about opportunities because of any complaint or disclosure that the Claimant had made.

[278]In any event the Claimant was informed by R2 of a position going at R1 [HB372] after 14 October 2022 and in April 2023 [HB 372]. Case Number: 1403501/2022 65 of 84

[279]The Claimant in evidence said that he only sent his CV to R2 and did not himself actually ask R2 for work.

[280]The Claimant did not suffer the alleged unlawful detriment. Alleged detriment R2 7.1.3 - Fail to provide the claimant with notice pay.

[281]The Claimant did not explain why he believed he was not paid notice pay that he was entitled to or link any failure to pay him notice pay due with the disclosure he alleged that he made to Mr Godwin. The Claimant was not an employee of R2, was not entitled to notice pay and there was no failure to pay him notice pay.

[282]Even had there been a failure to pay the Claimant notice pay, the Claimant had made no disclosures by this date to R2 that amounted to protected disclosures and so could not have been subjected to an unlawful detriment as alleged.

[283]On 18 October 2022 R2 e-mailed the Claimant to rearrange grievance hearing for 24 October 2022 [HB587]. Claimant’s email of 31 October 2022 to Ms L Edwards at R1

[284]On 31 October 2022 the Claimant sent Ms L Edwards of R1 an email which copied in its body the correspondence he said he sent to finance directors of R1 on 7 July 2022 which said [601]: Good Morning Lorraine, i write as ACAS have asked me too. I am not sure of what information other than below you wish for but please ask. Kind Regards Andy Muller UK & Ireland Group Shrewsbury Road U.K. - Market Drayton Shropshire, TF9 3 SQ Fao The Finance Directors 7th July 2022 Whistleblowing Statement Firstly, I am sorry to be the bearer of what I believe is bad news. I have written it as a statement so that some of my thoughts and reasonings are clearer. I have spent some time considering this and now can only leave it to you and the Muller Family to decide. Background of Start as a Temp to Perm Transport Shift Lead Muller StoneHouse. [Mr Godwin] called me on the 18th of March 2022, he had seen my C.V. and wanted to discuss a Job he needed to fill. He discussed the role of Transport Shift Lead at Stonehouse and that it was a Temp role. I told Case Number: 1403501/2022 66 of 84 him I was extremely interested in working for Muller as I had heard good things about them, also it was 15mins from home, but I needed a permanent role and had one offered to me in Swindon. [Mr Godwin] told me that he knew that one way or another Muller would be hiring another permanent Shift Lead in Stonehouse and I would be going Temp to Perm. I asked how he knew that, and he replied “Ian is one of my best friends I have been supplying him at every company I have worked at” I understood him saying if I were not suitable for the role, they would discuss with me, and the agency and I would not be staying. I recall replying that I would be interested in an interview, this did not phase me with 40 years’ experience in similar and higher positions. I attended an interview at Muller Stonehouse 12:30 on the 25th of March 2022 with [Mr I Farmer], also present was [Ms Oakhill – name misspelt], his assistant. During the interview I asked what my focus should so I could have a clear measure of my progress and Ian told me the current team were all long-time employees, older and set in their ways, what he wanted was someone “who does not sit around all day and can highlight and fix management issues. I thought it strange given my age of sixty-three but was aware that I pass for fifty-five when shaven. We discussed my work history, and I confirmed I would be interested if I knew it would go permanent, subject only to suitability as otherwise I would have to take a job in Swindon. At the end of the interview [Mr I Farmer] said the role would report to a [Mr K Farmer] but that [Mr K Farmer] would normally accept [Mr I Farmer]’s Judgement, or I could expect another interview. I received a phone call from [Mr K Farmer] on the 25th of March 2022 offering me the role with a start date of Friday 4th April 2022. Induction – very brief Synopsis. There was no formal induction or Training for me, the training consisted of shadowing whoever was covering the Team Shift Lead, the 2 Day shift leads were long term absence. I was shadowing [Darren] a Driver Trainer. I had been given a task list that shift lead is required to carry out and I learnt some at the same time as Darren was learning them. Whilst Darren was trained in some tasks and given access to all files and folders, and I was not. When I requested training, I was ignored. Case Number: 1403501/2022 67 of 84 The culture was very different to any I had ever experienced in that all staff were openly critical of their management, in ways and areas that I found inappropriate and offensive. At one time in the office 5 or 6 of them were making thinly veiled comments of fraud that “went up so far you could see heaven” I stopped this straight away as nonsense “as any half decent manager could spot fraud just by the most basic of management overview and ability and that as part of a previous role as a contract Manager I had uncovered major fraud by just tripping over it”. In hindsight I regret mentioning my experience as a fraud investigator. I suggested to all they stop their comments whether joking or not. The response I got was “careful of him he is a company man.” As part of my role, and to understand the business and hopefully impress my line manager [Mr K Farmer] and the Business, I started looking at different rota options that only allocated 3PLs at the most advantageous routes that benefited Muller, example if REID would do Lidl Belvedere at £402 we should not be booking Owens for the same run at £650. I was told that the Rotas and 3PL planning were being done by [Mr K Farmer] & [Ms Oakhill – name misspelt], so I stopped. I compiled labour cost reports for Muller staff against Employment Agency Staff and could see that 3 Employment Agencies being used with overall similar rates of pay, the slight variances being on weekend and night rates. I planned rotas to use the exact same drivers and agency staff but route to the most cost effective. This resulted in a potential saving of £1260 per week. Trying to impress or show off I asked about implementing it I was told not to bother as new rotas were planned and changes to shift pattern to five on two off as opposed to current shift pattern of five on 3 off. Not deterred I started planning a rota for the new shift pattern by using the latest labour MT at the end of April. I went through these on several occasions at night. The employed FTE to plan was the same and I used the same drivers in the same routes as best fit possible but found that my labour costs had increased by over £8,000 per Week. Later I found that at W/C 17th April 2022 one of the employment agencies (Workforce) labour costs had increased their rates. For Sunday per hour from £22.52 to £29.38. Mon to Fri from £16.29 to £20.03 & Sat from £21.94 to £24.37. My immediate thought that was great, and I look forward to a pay rise. After the initial thought and contacting Workforce to ask what the payrates to Staff were I got the curt reply “no increases to staff” the penny dropped that this did not smell right. A few days later I witnessed [Ms Oakhill – name misspelt] tell [Darren] that they wanted to get as many of the Agency Drivers to work for Workforce and get rid of the other 2 Agencies, but the company could Case Number: 1403501/2022 68 of 84 not be seen to be asking. Darren then spoke to Zuzana and asked her to speak to two [Mr A Hall] & [Mr Cimp] both Logistics People drivers and ask them to swop over to Workforce. I witnessed both being asked and being told it was a great company to work for. I am aware they both declined later after talking to Workforce drivers as LP rates “the same overall” Trying to get drivers to move to a more expensive Agency also did not smell right. I discussed with [Darren] that it was a bit worrying as was the lack of management controls around the payroll after I had reported that people had extra hours added to pay when the where not on duty and not signed in and out, answer “management will deal with” shocked as I was being ignored or told it was ok everytime I raised it by management. I recall this was around the 4th & 5th of May 2022. Also on the morning of the 5th May I carried out a site safety sweep. I could see clearly on Fuel Island No 1, wet slick Diesel fuel going into an unpainted drain some ten feet away, also liquid stains from the AD Blue pump three feet away from the same drain and large area of dry ad blue crystals. Photos. I affixed spill socks and pads to stop anymore entering the drain. The Yard cleaning Forklift operative [Terry] was passing, told about the spill, and instructed to soak up as much as possible and then wash the area to avoid slippage and accidents. It turned out later that Terry whilst having been employed there for many years did not know how to fit a drain seal. I also met 3 guys from maintenance who were keen to apportion blame on the leak until I asked them why the pumps were not bunded? why an open drain 3 foot away? they mention a few issues with paying for works and not necessary etc, that stopped when I said “my last role was 7 years in Hazardous Waste Disposal what you had just said would be a £50,000 fine” I returned to the office and was met by [Darren] his opening “what the fuck have you done why is Health & Safety after you” I told him about fuel leaks and clean-up and I had been told that we not record that fuel island as a risk as leaks all old, response “you are in trouble they will not forgive you for embarrassing them” to which I replied “why have you not been reporting them, are you scared” A while later [Mr K Farmer] called me shouting that the 11:00 report was 5 mins late. Darren laughing said “dig at you for a report 5 mins late, haha, I send them over an hour late sometimes no problems, they do not like you. I reported this H&S incident in the Shift Handover. The incoming shift lead [Adam] after reading the handover said “mate your fucked they will get you for this” Case Number: 1403501/2022 69 of 84 I went to report this to Wendy in H/S, was not there so I emailed to see her next morning. 6th [Mrs Sutton] came to see me with the attitude that the washdown had triggered an alarm and was a problem. We discussed it a bit and after I mentioned I had an IOSH & NEBOSH she backed off and agreed with me that remedial works were needed. I pressed the point that this risk has clearly been going on for a long why was it still a Hazard. Her email to get it fixed has been ignored by all. On the 6th [Mr Williams], [Ms Oakhill – name misspelt] & [Mr D Williams] were all around Fuel Island 1 as if they had never seen it before. Nobody else has ever discussed this with me. As of this date I started to feel isolated, no contact with the management other than the start of non-stop digging at me got to the point that on the 11th May I considered walking out, I am reminded by my email to my wife. Having given it time to become clearer, there is in my mind no management overview or control on most major financial costs here. There are so many people with access to financial input documents as to make it impossible to determine or hold anyone responsible. I have seen a Management system previously on a Contract we had taken over with the same signs, Nepotism, inexperienced Management, managing via bullying and gossip, poor management systems to allow blame on overspending to fall on staff. Hiring friends and then using them to undermine experienced managers. Around mid May I listened as [Ms Oakhill – name misspelt] offered a Shift Team leader role to [Darren]. This was offered at least three more times as he gloated it to me. The job was not advertised, I just thought it was I wind up. A few days later it was advertised, and I applied for it only to be rejected straight away. I called Workforce [Mr Godwin] to ask why the job I was doing was advertised? Had the client complained about me? To which he replied no to all. He asked if anything had happened and I said I had a few concerns, the H&S “embarrassment to them” we discussed, and I recall saying that I was aware that as an Agency Worker I did not have the same protection as an employee raising safety concerns but would raise it anyway. The atmosphere here is divisive, it seems to me that it is on purpose. My view is based purely on 30 years of taking over operations under TUPE. This site should be a paradise to work in. Should you require more detailed information I would be willing to give it. Case Number: 1403501/2022 70 of 84 I would like your assurance that this letter will reach the Muller Family. If it was my money being played with I would like to know about it. I believe all the facts in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[285]Despite R1’s grievance policy [HB307-311] not applying to agency workers, due to the seriousness of the issues raised, the advice from HR and Ms L Edwards (Employee Relations Manager), was to treat it like a grievance. Mr Dunphy, Head of Finance Controlling, had already concluded an investigation into the allegations about financial irregularities [635-636] so Mr Reece focused on the other issues.

[286]On 24 October 2022 Mr Godwin (R2) held a grievance hearing with the Claimant [HB588-589].

[287]On 02 November 2022 the Claimant sent his 31 October 2022 email to Ms L Edwards to her again and to another group of employees at R2 (called MD PUKAD) [HB601-606].

[288]On 05 November 2022 the Claimant issued his Tribunal Claim (ET1) against R1- R6 [HB 10-30].

[289]On 09 November 2022 Mr Godwin of R2 sent his grievance outcome decision to the Claimant [HB 621-622] which said: I am writing to confirm the outcome of the grievance hearing held on 24th October 2022. You chose not to be accompanied. Oliver Page Customer Success Manager was also present as note taker. A copy of the notes of the meeting is attached for your information. I have given the issues you have raised detailed consideration and investigated each of your concerns as fully as I am able and my conclusions are as follows:  Complaint that you applied for a permanent Shift Lead position twice with Muller but were not successful for reasons due to discrimination and as a detriment for raising concerns. My investigations have found that you have applied for a full-time position direct with Muller whilst working for Workforce as a temporary shift lead. Workforce have no influence on how your application would be taken forward. We have attempted to address your concerns with Muller via email, however they confirmed by return on the 8th November that they are dealing directly with you concerning this matter and if not already, will be in touch in due course. To conclude, I can confirm that your grievance is not upheld in relation to Workforce’s involvement in the recruitment and selection process of this Case Number: 1403501/2022 71 of 84 particular role and that Muller will be responding to you direct in relation to your claim against their company. No further action is necessary on our part. You have the right of appeal against this decision, and if you wish to do so you should write to [Mr Alekna] setting out your reasons, within five working days of receipt of this letter

[290]On 10 November 2022 the Claimant appealed this decision by R2 [HB 614- 619/623-624]. I am writing this as an appeal against the Grievance outcome letter i have just received along with a typed letter titled Grievance notes. The Grounds of appeal are that you have failed to carry out a reasonable investigation and failed to provide any copies of interviews carried out with questions asked and replies. You have ignored parts of my grievance entirely and your outcome decision is contradicted by your response to my subject access request. The full details of any investigation and notes regarding my Grievance I am entitled to under GDPR 2016/679EU. There is no communication provided to between you and Muller in my SAR putting me forward as a candidate. Either you did and they rejected me, or you rejected me and therefore did not put me forward or I have not had information disclosed to me from you. Any investigation would have identified the number of times i have applied for the permanent Shift lead role and the same number of communications putting me forward or rejecting me. As previously stated, you have not provided any even after i point out that your SAR response is lacking data and specifically point out "no communication between you and Muller about me?" Can you clarify the number of applications you have had from me that you have considered though they would be in the investigation notes? it's not 2 or 3. In the notes for grievance, you have not mentioned, nor addressed or answered the questions i ask in the notes you requested copies of (below) Who is my employer? I was recruited by Workforce but have been paid by 5 different ltd Companies since April. When i login to my Paylinks account it can change and tells me that i am employed by different companies. What is the process under which i am transferred to a different employer? Case Number: 1403501/2022 72 of 84 The notes you have supplied are not agreed as they have omissions and errors.

[291]The Claimant then provided further information in an email on 11 November 2022 [HB 615-616 & 612-613]. R2 invited the Claimant to a grievance appeal hearing but the Claimant chose not to attend and asked that Mr Alekna continue without him and all he was going to say was in his emails [HB 610-612 and JAWS4].

[292]Mr Alekna conducted an investigation and then wrote to him with his decision on 18 November 2022 [HB 630-632].

[293]On 22 November 2022 Mr Dunphy concluded his investigation into the Claimant’s whistleblowing update [HB 635-636] (the allegation he investigated being that Mr I Farmer and Mr K Farmer were choosing to engage with Owens as a supplier rather than cheaper logistics firms suggesting that they were benefiting from this preferential treatment). He concluded that there was no evidence of suspicious behaviour.

[294]05 and 6 December 2022 the Claimant issued his Tribunal Claims (ET1) against R7 and R8 respectively [HB 99-119 and 124-144].

[295]As referenced above, on 10 December 2022 the Claimant applied for a Temporary Shift Lead role at R1’s Severnside site via R2 [HB717-718].

[296]On 14 December 2022 R1 rearranged the grievance hearing with the Claimant for 29 December 2022 [HB641], Ms L Edwards recording in correspondence: “Further to our attempts to arrange a meeting to hear your grievance on 30th November and 6th December, I can confirm that a further meeting has been arranged with [Mr Reece], on Thursday 29th December at 12pm at Severnside, Please can you confirm asap if you are able to attend? If you are unable to attend this rescheduled hearing, I must inform you that it will go ahead in your absence. I would request that you provide [Mr Reece] with any further information that you would want to be taken into consideration, no later than Wednesday 28th at 10am.

[297]Mr R Reece of R1 chaired the grievance hearing with the Claimant on 29 December 2022 [HB650-658].

[298]On 16 January 2023 the Claimant was offered the role of Operations Manager – Solid Waste at Wessex Water Enterprises Limited to commence 23 January 2023 [HB669-680] and the following day R2 contacted the Claimant about interviewing for a further temporary assignment with R1. The Claimant confirmed that his was interested and available [HB681-682]. Alleged detriment 4.1.15 - Failing to give a timely outcome in respect of the claimant’s grievance dated 29 December 2022.

[299]On 31 March 202 Mr Reece of R1 wrote to the Claimant to give him his decision on the Claimant’s grievance [HB709-716] and explain why he did not uphold his complaints. Case Number: 1403501/2022 73 of 84

complaints.

[300]Mr Reece was incorrect to say in his witness statement [RRWS9 and 10] that it took him time so speak to individuals at the Severnside Site he was located two and a half hours away in Raunds and wanted to conduct the interviews in person. The evidence in the bundle suggests, as one might expect, that his discussions with witnesses took place remotely via MS Teams .

[301]We nonetheless otherwise accept Mr Reece’s evidence and explanation for the time it took him to reach his grievance decision (it being a peak time of year, Mr Reece having two sites to run, difficulties in finding mutual availability to speak to relevant witnesses, the fact that he was managing a separate disciplinary process and a misunderstanding having arisen between him and the person supporting him in HR as to who was going to document his final decision). It did take him a long time but the time it took had nothing to do with any disclosure made by the Claimant. Automatic unfair dismissal by R2 (Employment Rights Act s. 103A)

[302]The Claimant alleges that as a result of making two protected disclosures to R2, he was unlawfully dismissed by R2 [List of Issues 6.1 and 6.2]. We have found that the Claimant made no such protected disclosures to R2 and therefore any dismissal could not have had as its reason or principal reason the making of a protected disclosure. In any event, the Claimant was not an employee of R2 and the reason his engagement ended with R1 did not have as its reason or principal reason the fact that the Claimant had made a protected disclosure to either R1 or R2. There is also no evidence that R2 influenced R1’s decision to bring the Claimant’s engagement to an end or to end it earlier than planned. Direct age discmimination 5.2.1 - Fail to appoint the claimant to the role of Permanent Transport Shift Team Leader.

[303]We accept the R1’s evidence that Ms Roberts started work for the R1 as Transport Shift Team Leader on 26 September 2022 but had been appointed in August [HB478] at the age of 58. The Claimant knew about her appointment on the day she started. At this time the Claimant was between the ages of 63-64.

[304]Gary was in his mid-sixties when he returned to work (leading to the end of the Claimant’s engagement at R1).

[305]We accept Mr K Farmer’s evidence about the Claimant’s under performance in his role at R1 and, as we have said, Mr I Farmer did not make the age related comment to the Claimant. Whilst not referred to elsewhere in this judgment we accept Mr K Farmer’s evidence, as an example of the Claimant’s performance in the role, as follows:305.1 R1 has two different business units at the Severnside site

(i) MMI Chill and

(ii) MMID Transport;

305.2 Management try to make sure that the two units work together as one team;

305.3 The Claimant had a tendency to walk down to the bays and send an email to the whole site saying things like: "Bays x, y, and z have got green lights on, why aren't you loading anything?" Case Number: 1403501/2022 74 of 84

305.4 Mr K Farmer had to speak to him on more than one occasion about this, to ask him to stop and let him know that it was creating divide between the departments.

[306]We also accept that Ms Roberts’ experience with Trade Unions from her previous role at Royal Mail was of particular benefit to R1 given the industrial relations difficulties it had been having. We accept that this trade union expertise was more valuable to R1 than having a transport management cpc qualification (which the Claimant had but which she did not). We accept Mr K Farmer’s evidence that, whilst advantageous to have that qualification, it was not essential and R1 sometimes funds people to train to get the qualification. We accept that, notwithstanding the fact that Ms Roberts did not have that qualification, she nonetheless had other transport experience which compensated.

[307]As such we do not consider that R1 failed to appoint the Claimant to the role of Permanent Transport Shift Team Leader because of his age. Direct age discrimination 5.2.2 Fail to give the claimant training on the first respondent’s systems, including on A400 (which the first respondent says was not necessary for the claimant’s role). (229). The Claimant says this training should have taken place on 11 or 12 May 2022.

[308]We accept that Darren (HGV driver Trainer) was appointed to the role of Transport Shift Team Leader in March 2023 (the Claimant said it was ‘after July 2022’). He was aged between 45 and 46 at the time and was a long serving employee who was known and trusted by R1. He was not interested in the Transport Shift Team Leader role until his children had left University because he could earn more in overtime in his HGV driver trainer role.

[309]We find that R1 did not fail to give the Claimant training on R1’s systems, including on A400 because of the Claimant’s age. It is entirely understandable that Ms Roberts and Darren were given more training, as permanent employees, than the Claimant (as an employee who was engaged as short term cover for a permanent employee who it was hoped and who did return to work). There is no evidence that the Claimant was denied any training because of his age or for any reason related to his age. The Claimant was given the training that he needed to have for the role he was there to perform. Wrongful dismissal by R2 - notice pay

[310]The Claimant claims that R2 wrongfully dismissed him without notice and failed to pay him notice pay. The Claimant did not advance any evidence on this in his witness statement. In any event the Claimant was not an employee of R2 and so had no statutory entitlement to notice or to notice pay. He also had no contractual right to notice or notice pay from R2 as the Terms Engagement provided “9. Termination 9.1 Any of the Employment Business, the Agency Worker or the Hirer may terminate the Agency Worker's Assignment at any time without prior notice or liability.”. Failure to provide a written statement of terms by R2

[311]As we have not found in favour of the Claimant in respect of any applicable Case Number: 1403501/2022 75 of 84 proceedings (Section 38 (2)(a) of the Employment Act 2002 (the “2002 Act”)) and have not made an award to the Claimant in respect of a claim to which the proceedings relate (Section 38 (3) (a) of the 2002 Act) the Claimant is not entitled to any award under Section 38 of the 2002 Act. We make no findings of fact as to whether there was a breach of a duty to the Claimant under section 1(1) or 4(1) of the ERA. Time Limits

[312]Given the findings that we have made, we have not gone on to decide whether alleged acts and/or omissions pre-dating 2 July 2022 were out of time.