Mr M Davies v White Dove Garages Ltd: 1604218/2024

EMPLOYMENT TRIBUNALS

Case No 1604218/2024

Between

Mr M DaviesClaimant

White Dove Garages LtdRespondent

Before

Employment Judge R Harfield

Date 4 February 2026

JUDGMENT

It is the unanimous decision of the Tribunal that:(1) The claimant’s complaints of wrongful dismissal (notice pay); protected disclosure detriment; protected disclosure dismissal and victimisation are not well founded and are dismissed;

(2) The claimant’s complaints of harassment relating to conduct of a sexual nature is well founded and succeeds in relation to paragraphs 7.1.1.1, 7.1.1.3, 7.1.1.4, 7.1.1.5 , 7.1.1.6 in the List of Issues;

(3) The claimant’s complaints of harassment related to sexual orientation are well founded and succeeds in relation to paragraph 7.1.1.7 in the List of Issues;

(4) The claimant’s other complaints of harassment related to a protected characteristic at paragraphs 7.1.1.2 , 7.1.1.8 and 7.1.2 in the List of Issues are not well founded and are dismissed;

(5) The successful complaints will be listed for a remedy hearing, if required.

REASONS

[1]Introduction1.1 The Claimant was employed by the Respondent as a sales executive from 8 April 2024 to 29 April 2024. Acas early conciliation took place from 22 July 2024 to 2 September 2024 and the ET1 Claim Form was presented on 30 September 2024. The Respondent filed an ET3 Response Form denying the claims. A case management hearing took place before Employment Judge Ryan on 8 January 2025. By that time the Claimant had filed some further and better particulars of his claim which formed the basis of discussion. EJ Ryan then prepared the first draft of a List of Issues identifying complaints of harassment related to sex, race, and sexual orientation, victimisation, public interest disclosure detriment and dismissal and a notice pay claim. The parties were directed to file an updated List of Issues setting out the allegations of harassment in date order because the Claimant had set out specific allegations in his further and better particulars but had not included dates, and was directed by EJ Ryan to provide those.

1.2 We had before us a hearing file with index extending to 377 pages. References in brackets [] are references to page numbers in that file. We had written witness statements from the Claimant, James McKeevers and Richard Hughes. We had an updated List of Issues, a Chronology, a Cast List and a set of recordings. The parties had been directed to agree a final version of the list of issues and the Respondent said that had been sent to the Claimant the previous week and the Claimant then confirmed that its contents were acceptable.

1.3 We made an Anonymity Order and a Restricted Reporting Order prohibiting the identification of:1.3.1 A female (not an employee of the Respondent) known to either Ian Robertson and/or Richard Middleton identified here as AB;

1.3.2 A female identified in a tale told by Ian Robertson (again not an employee of the Respondent), identified here as CD;

1.3.3 Three female employees of the Respondent identified here as EF, GH and JK.

1.4 During the course of the hearing we heard evidence from the witnesses. We had written closing submissions from the Respondent. We heard oral submissions from both parties. We were not able to complete our deliberations in the allotted time to deliver judgement and it was therefore reserved to be delivered in writing. EJ Harfield apologises for the delay in delivering this Judgment, which was caused by the pressure of other judicial work.

[2]The issues to be decided2.1 The updated List of Issues is as follows: “[Protected Disclosure] Unfair dismissal

1.1 What was the reason or principal reason for dismissal?

1.2 Was it a potentially fair reason?

1.3 Was the reason or principal reason for dismissal that the Claimant made protected disclosures? If so, the Claimant will be regarded as unfairly dismissed. 2. Remedy for unfair dismissal 2.1 Does the Claimant wish to be reinstated to their previous employment?

2.2 Does the Claimant wish to be re-engaged to comparable employment or other suitable employment?

2.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

2.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

2.5 What should the terms of the re-engagement order be?

2.6 If there is a compensatory award, how much should it be? The Tribunal will decide:2.6.1 What financial losses has the dismissal caused the Claimant?

2.6.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

2.6.3 If not, for what period of loss should the Claimant be compensated?

2.6.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

2.6.5 If so, should the Claimant’s compensation be reduced? By how much?

2.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

2.6.7 Did the Respondent or the Claimant unreasonably fail to comply with it by [specify alleged breach]?

2.6.8 If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?

2.6.9 If the Claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?

2.6.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?

2.6.11 Does the statutory cap of fifty-two weeks’ pay or [£105,404] apply?

2.7 What basic award is payable to the Claimant, if any?

2.8 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent?

[3]Wrongful dismissal / Notice pay3.1 What was the Claimant’s notice period?

3.2 Was the Claimant paid for that notice period?

3.3 If not, was the Claimant guilty of gross misconduct? / did the Claimant do something so serious that the Respondent was entitled to dismiss without notice?

[4]Protected disclosure4.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:4.1.1 What did the Claimant say or write? When? To whom? The Claimant says they made disclosures on these occasions (see F&BP email for details of the colleagues’ alleged behaviour):4.1.1.1 17 April 2024, orally to Richard Hughes, a director of the Respondent company, telling him of the conduct of his colleagues towards him, including in front of other colleagues and within earshot of customers;

4.1.1.2 18 April 2024, orally to Richard Hughes, a director of the Respondent company, and his line manager Colin Snooks, telling them of the conduct of his colleagues towards him, including in front of other colleagues and within earshot of customers;

4.1.1.3 18 April 2024, orally again to Mr Snook telling him of the conduct of his colleagues towards him, including in front of other colleagues and within earshot of customers;

4.1.1.4 29 April 2024, orally to James McKeever, telling him of the conduct of his colleagues towards him, including in front of other colleagues and within earshot of customers;

4.1.2 Did they disclose information?

4.1.3 Did they believe the disclosure of information was made in the public interest?

4.1.4 Was that belief reasonable?

4.1.5 Did they believe it tended to show that the health or safety of any individual had been, was being or was likely to be endangered;

4.1.6 Was that belief reasonable?

4.2 If the Claimant made a qualifying disclosure, it was a protected disclosure because it was made to the Claimant’s employer. Detriment (Employment Rights Act 1996 section 48)

5.1 Did the Respondent do the following things:5.1.1 Summon him to a meeting without due notice to consider his further employment;

5.1.2 proceed to consider the Claimants further employment without any investigation either into his conduct or performance, all the alleged misconduct of his colleagues;

5.1.3 fail to give the Claimant notice of dismissal or payment in lieu of notice.

5.2 By doing so, did it subject the Claimant to detriment?

5.3 If so, was it done on the ground that they made a protected disclosure?

[6]Remedy for Protected Disclosure Detriment6.1 What financial losses has the detrimental treatment caused the Claimant?

6.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

6.3 If not, for what period of loss should the Claimant be compensated?

6.4 What injury to feelings has the detrimental treatment caused the Claimant and how much compensation should be awarded for that?

6.5 Has the detrimental treatment caused the Claimant personal injury and how much compensation should be awarded for that?

6.6 Is it just and equitable to award the Claimant other compensation?

6.7 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

6.8 Did the Respondent or the Claimant unreasonably fail to comply with it?

6.9 If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?

6.10 Did the Claimant cause or contribute to the detrimental treatment by their own actions and if so, would it be just and equitable to reduce the Claimant’s compensation? By what proportion?

6.11 Was the protected disclosure made in good faith?

6.12 If not, is it just and equitable to reduce the Claimant’s compensation? By what proportion, up to 25%?

[7]Harassment related to Sex, Race, Sexual Orientation (Equality Act 2010 section 26)7.1 Did the Respondent do the following things:7.1.1 On 22 April 2024:7.1.1.1 Richard Middleton and Ian Robertson referring to being “sucked off”;

7.1.1.2 Ian Robertson and Richard Middleton referring to losing their virginity;

7.1.1.3 Ian Robertson referring to having sex on a pool table, and using the phrase “she’s a bit rough around the edges”;

7.1.1.4 Nick Randell using the phrases “bit of a slag, was she”, “she the local ride in the area”, “she said I’d rather give the blow job” and “dry up like a prune”;

7.1.1.5 Richard Middleton referring to masturbation and “blow job”;

7.1.1.6 Alex Salway using the phrase “I wouldn’t fuck her with your dick” and “wet and then dry like the Mojave desert”;

7.1.1.7 Alex Salway playing a video in the salesroom which references the beating up of “gay boys”, “cobra cunts” and “skinny cunts”; and,

7.1.1.8 Alex Salway using the phrase “he’s just being a cock”.

7.1.2 On 26 April 2024 Alex Salway using the phrase “yeah they fucking ripped my arse out over that” and “look at this fucking helmet”;

7.2 If so, was that unwanted conduct?

7.3 Did it relate to Sex and/or Race and/or Sexual Orientation?

7.4 Alternatively was it of a sexual nature?

7.5 Did the Respondent treat the Claimant less favourably because the Claimant rejected the sexual conduct?

7.6 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

7.7 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[8]Victimisation (Equality Act 2010 section 27)8.1 Did the Claimant do a protected act as follows:

8.1.1.1 17 April 2024, orally to Richard Hughes, a director of the Respondent company, telling him of the conduct of his colleagues towards him, including in front of other colleagues and within earshot of customers;

8.1.1.2 18 April 2024, orally to Richard Hughes, a director of the Respondent company, and his line manager Colin Snooks, telling them of the conduct of his colleagues towards him, including in front of other colleagues and within earshot of customers;

8.1.1.3 18 April 2024, orally again to Mr Snook telling him of the conduct of his colleagues towards him, including in front of other colleagues and within earshot of customers;

8.1.1.4 29 April 2024, orally to James McKeever, telling him of the conduct of his colleagues towards him, including in front of other colleagues and within earshot of customers;

8.2 Did the Respondent do the following things:8.2.1 Summon him to a meeting without due notice to consider his further employment;

8.2.2 proceed to consider the Claimants further employment without any investigation either into his conduct or performance, all the alleged misconduct of his colleagues;

8.2.3 Dismiss him;

8.2.4 fail to give the Claimant notice of dismissal or payment in lieu of notice.

8.3 By doing so, did it subject the Claimant to detriment?

8.4 If so, was it because the Claimant did a protected act?

8.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act?

[9]Remedy for discrimination or victimisation9.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

9.2 What financial losses has the discrimination caused the Claimant?

9.3 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

9.4 If not, for what period of loss should the Claimant be compensated?

9.5 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

9.6 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

9.7 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

9.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

9.9 Did the Respondent or the Claimant unreasonably fail to comply with it by not conducting an investigation into the Claimant’s behaviour?

9.10 If so is it just and equitable to increase or decrease any award payable to the Claimant?

9.11 By what proportion, up to 25%?

9.12 Should interest be awarded? How much?” 3. Findings of fact

3.1 It is not necessary for us to make findings on every point put before us or in dispute between the parties; only those necessary to decide the issues before us. Where there is a dispute for us to resolve we did so applying the balance of probabilities. The Claimant has worked in the motor trade for since 1990. In 1997 he moved in to a management role and in 2004 started his own company, working as a company director.

3.2 On or around 26 March 2024 the Claimant attended an interview with Colin Snook [CS] Sales Manager, and Richard Hughes [RH], the SEAT/CUPRA Brand Director at the Respondent. The Claimant started employment on 8 April 2024. The Claimant had been referred to the Respondent by an industry acquaintance of CS based on the Claimant’s past sales experience. The Claimant had also known CS a long time.

3.3 The Claimant was part of a sales team for SEAT/CUPRA, sat in a communal office, connected to the Sales Manager’s office and the showroom. Sales Executive colleagues included Richard Middleton [RM], Ian Robertson [IR], Alex Salway [AS], Ed Devonald [ED] and EF (anonymised as above). The Claimant’s line manager was CS, but Nick Randell [NR], Business Manager, also had management responsibilities and interactions with the Claimant as NR was the accredited person for sales and finance. Mr McKeevers [JM] is the General Sales Manager. JM was based in a different building to the Claimant, so they did not see each other day to day.

3.4 The Claimant and NR did not hit it off from the start. The Claimant says that on 10 April 2024 there was an incident where NR snapped at him out of nowhere. The Claimant says NR had overheard the Claimant talking RM about a MOT tester and that NR misunderstood the conversation and snapped telling the Claimant he was his line manager and words to the effect that the Claimant did not fit in with the sales team and should consider his position. NR’s written account found at [156] was that RM had said that NR double checked everything to make sure it was correct for the team, and that the Claimant told a story about a MOT tester who would double check everything and it caused no end of problems. NR’s perspective was that the Claimant told the story to undermine NR. It is apparent therefore that NR took the Claimant’s comment that way and it is not something that came out of nowhere from NR’s perspective. That accords with JM’s evidence that on or around 15 April 2024 JM had a catch up with CS and NR and issues were raised about the Claimant’s behaviour. JM says, which we accept, that NR said that the Claimant was questioning every process as to why they were doing thing one way rather than another way, and NR said he felt the Claimant was intentionally undermining his authority.

3.5 We consider it likely and find that the Claimant joined considering that he had a wealth of experience and knowledge to offer the Respondent. The Claimant from his perspective was not joining as a new, green, member of the sales team. Having had the benefit of seeing the Claimant throughout the hearing we could also see that he is an individual has a very black and white sense of what he considers to be correct, including what he believes to be the correct process to be followed. He is also incredibly detail orientated – for example his time spent cross examining RH about whether RH’s father was or was not the Managing Director or RH’s exact career history; which did not go to anything in the case. The Claimant is also an individual who is not shy in putting his point of view across or in imparting what he considers to be the benefit of his experience and knowledge. We consider it likely, and find, that from the very start of his employment the Claimant would question why things were done a certain way, why processes were the way they were, and also would speak to colleagues in a way the Claimant thought was giving them the benefit of his knowledge and experience. The Claimant spoke in evidence about having had the benefit of business training, and that he could helpfully challenge or have a healthy difference of opinion. The Claimant said in his first week had had raised with NR the pricing of cars and whether they would fail an audit and that with hindsight NR may not have taken that well. We consider it likely and find that NR was not used to the sales team behaving in the way the Claimant was. NR thought that the Claimant was undermining his authority, and would not listen to what NR was telling him, and took against the Claimant.

3.6 On or around 11 April the Claimant was given a Cupra branded shirt to wear. We accept this was because the Claimant was not wearing neutral clothing whilst his branded shirt was ordered, but wearing what RH described as golfing attire.

3.7 There is a dispute about whether anything else occurred on 11 April. We did not hear evidence from CS, but CS’ written account given later on 8th May (found at [172)] says that on 11 April the Claimant came to him saying that he was not comfortable with profanities from the sales team in the Hub and that CS said he would address it in a team meeting on Friday 14 April. CS’ account is that the Claimant said he did not want CS to address the whole team directly in that way as they would know it came from him, and so it was agreed CS would informally speaking to the team on an individual basis. CS says in the email that he did so between 13 and 14 April. The Claimant’s account is that he did not speak to CS on 11 April, but that it was instead the 18 April and 25 April. We accept the Claimant’s account that there was a discussion between the Claimant and CS on the 18 April, and therefore return to this particular point below, when addressing the 18 April.

3.8 As already referred to on or around 15 April, JM met with CS and NR when NR expressed his concerns about the Claimant. JM said to NR that the Claimant was new and was probably just trying to gain a better understanding. NR said to JM he believed the Claimant was intentionally trying to be difficult which made training and coaching hard. JM decided to wait and see if things improved. At some point JM also had comments made to him about the Claimant from individuals outside the sales team; in particular from the accounts team and from the body shop. They were comments about the Claimant’s attitude and that they found the Claimant to be a demanding character, wanted things done his way, and was not following the Respondent’s process. JM at the time hoped that the Claimant would settle down and learn the Respondent’s ways.

3.9 The Claimant says that on 17 April he asked to speak to NR to clear the air but NR again said that nobody liked him, or wanted to work with him, and he should reconsider his position or better still leave. The Claimant says that NR swiped his hands in the Claimant’s face and said he did not and would not work with the Claimant. The Claimant demonstrated the movement NR made which was a hand gesture that, in effect, NR was done with working with the Claimant. We accept that this incident occurred, but we do not accept that NR was being physically aggressive with the Claimant as the Claimant would suggest. The Claimant himself accepted in evidence that he did not fear for his safety at this time.

3.10 On 17 April 2024 there was a chance meeting between the Claimant and RH on the stairs. RH casually asked the Claimant how the Claimant was getting on. RH’s evidence is that the Claimant said he thought there was a bit of an atmosphere in the sales team generally but otherwise things were fine. RH says the Claimant made some passing remarks that were slightly critical of the sales processes relating to the passing on of customer messages and that RH said he would catch up with CS and find out what was going on. RH’s evidence is that it was a brief exchange and that the Claimant did not mention aggressive behaviour, harassment or any kind of concern about health and safety. RH says the Claimant did not at any time request a formal meeting to discuss other matters, and did not raise any grievance with him.

3.11 The Claimant’s account in his witness statement is that: “I explained that I had been impacted by the aggressive and bullying behaviour of Nicholas Randell twice now. I revealed he had stated that he would not and did not want to work with me. I also raised my concerns in relation to the daily unwanted conduct of a sexual nature. The racism, misogyny, homophobia and the abhorrent tone within the sales office/hub all of which had the purpose or effect of violating dignity and or creating an intimidating, hostile, degrading, humiliating and offensive environment, all of which a breach of the Equality Act 2010. I also revealed concerns over processes and compliance processes. I also discussed freely at the invitation of Richard Hughes other observations within my first few days. I advised Richard Hughes I felt that the sales team could do more, I felt they sat back and relied on Colin Snook to do too much. I suggested that Colin could maybe delegate more and make the team more accountable for the presentation of the display areas. I advised him that used cars outside where unpriced and unprepared, that new cars within the showroom were not price pointed and without number plates or finance examples… and that this could possibly cause a failure at audit. I explained that I had been the victim of poor process in relation to a visit from West Wales by a customer… Richard Hughes listened, reassured me and told me that he would speak to Colin Snook in relation to these concerns and that of the conduct of Nicholas Randell.” The Claimant’s witness statement also speaks of feeling threatened by NR on 10 April and 17 April. In the List of Issues the protected disclosure complaint is brought on the basis that the Claimant made a disclosure of information that in his belief tended to show that his health and safety had been, was being, or was likely to be endangered. The Claimant’s further and better particulars at [32] allege that he told RH that he felt uneasy with the aggressive behaviour directed towards him by NR and that he was concerned, and that RH said he would speak to CS about it.

3.12 There is also an account from CS at [172] where on 8 May he recorded that on 17 April he was called by a member of the team after work to say that individual had overheard the Claimant speaking to one of the Directors saying the Claimant was not happy with how the sales department was being run. CS records how he felt it was disrespectful for the Claimant to go over his head rather than raising issues with him first.

3.13 The Claimant’s witness statement seeks to present his discussion with RH as more of a formal meeting where he describes himself as raising concerns with RH in accordance with the staff handbook. The Claimant on his own account did not have the staff handbook at that time and it was not a formal meeting. It was a chance, unplanned encounter between the two individuals on the stairs. In those circumstances we do not consider it likely that it was a long discussion.

3.14 On the balance of the evidence before us, and on the balance of probabilities, we do not consider that the Claimant raised with RH complaints about unwanted conduct of a sexual nature or racism, misogyny, homophobia, or that he had been exposed to conduct that had the purpose or effect of violating dignity or creating a hostile degrading, humiliating and offensive environment which was a breach of the Equality Act 2010. It is implausible that the Claimant would use this kind of formal, legal language when having a chance, unplanned encounter with RH on the stairs, or that RH would then do nothing about it. We consider it more likely that this is language and descriptors that the Claimant has adopted after the event and does not reflect what the Claimant actually said at the time.

3.15 The Claimant in cross examination accepted that he did not fear for his safety in relation to NR’s behaviour by this point in time. The Claimant also did not cross examine RH about allegedly having told RH on the 17 April about NR’s aggressive behaviour. Within this context, on the balance of probabilities, and weighing the conflicting accounts, here we prefer the evidence of RH. We do not find that the Claimant directly complained to RH about NR displaying aggressive and bullying behaviour towards him on two occasions or that the Claimant feared for his safety at the hands of NR. We consider it more likely that the most the Claimant said was about there being a bit of an atmosphere within the sales team.

3.16 We consider it more likely that the burning issues for the Claimant at that point in time that he wanted to speak to RH about was firstly about the Claimant’s concerns that there was going to be a complaint coming his way from the West Wales customer and he wanted to get across he considered it was not his fault and that messages had not been properly passed on to him. Secondly, by this time the Claimant had formed the opinion that he did not think the sales team was well run by CS. In our judgement, the Claimant approached the discussion with RH from the perspective he was having a chat one businessman to another businessman and was giving RH the benefit of his observations so far, which included his observations about CS. So he likely made comments about how the sales team could do more, that CS could delegate more, with examples such as the display areas and car pricing. This also accords with what the sales team member overheard and reported back to CS. The Claimant also accepted in evidence that he told RH in no uncertain terms his opinion about CS’s management skills, or lack of them.

3.17 On 18 April RH spoke with CS and asked CS to look into whether there was an issue with the Claimant’s messages being forwarded. RH says he also asked CS how the Claimant was getting on at that point and that CS’s response was along the lines that it was too early to tell.

3.18 Also on 18 April CS called the Claimant into his office and spoke of his dissatisfaction with the Claimant going behind CS’ back to RH. CS said the Claimant had undermined his authority in not speaking with him first. The Claimant alleges that CS told him not to speak to RH again. We think it more likely that CS was making the point that if the Claimant had an issue he should come to CS first, as CS was his line manager and manager of the team. The Claimant, however, did not understand that context to what CS was saying.

3.19 In his further and better particulars the Claimant says that he also disclosed to CS on 18 April the bullying incident with NR the day before, and that he relayed concerns about the continued verbal and aggressive conduct of NR towards him. He says that CS said he would speak to NR and RH. The Claimant also says in his further and better particulars that he complained to CS about the abhorrent conversations that were the daily norm in the sales office, the consistent use of the words “fuck”, “fucking”, “shit” and “cunt” and that he had been subjected to talk of RM’s Friday night masturbation habits and drug taking tales. He says there that CS gave a shoulder shrug and said that was just the way it was in the sales department, to just get on with it, and to tell them all to shut up. The Claimant says in his further and better particulars that he said he was not happy with CS’ position, that he would not be telling anyone to shut up, and that he believed as Sales Manager it was CS’ role to create and control the environment within the sales team.

3.20 In his witness statement for these proceedings the Claimant describes it in a different way saying he had “called out to Colin Snook the daily unwanted conduct of a sexual nature, the racism, misogyny, homophobia and aggression, the abhorrent environment with the sales office/hub the boundaryless conversation topics whilst trying to conduct sales calls.”

3.21 We did not hear evidence from CS, but in his email of 8 May CS accepts that he spoke to the Claimant on 18 April, that he had said he felt it was disrespectful for the Claimant to go over his head to RH, and that if the Claimant had any issues he should address CS in the fist instance and they would work through them together. CS wrote that the Claimant said he did not think he could work like this and would consider his position over the weekend. CS wrote that on the following Monday, 22 April, the Claimant said that he had spoken to his wife and understood why CS felt the way he did and that the Claimant would be mindful in the future. CS wrote that the Claimant said that he should be able to raise his concerns with a director and that CS agreed but said a set process should be followed with the Claimant talking to CS in the first instance. CS wrote that he was left with the impression that the Claimant did not agree with this.

3.22 Within that email CS also wrote that the Claimant had only raised with him profanities within the hub at an earlier date on 11 April, and after that the Claimant did not bring it to his attention again. I.e. CS’ account appears to be that the Claimant did not raise issues with language again on 18 April. Whereas the Claimant’s account is that he raised it on 18 April, not the 11 April. In the Claimant’s witness statement he also asserts that he spoke to CS again on the 25 April about the West Wales customer complaint and also that: “I repeated again my concerns of the unwanted conduct of a sexual nature. The racism, misogyny, the homophobia and the aggressive conduct of Nicholas Randell and the abhorrent environment within the sales office/hub. I told Colin Snook the unwanted conduct had the purpose or effect of either violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment and that I had been advised that this was a breach of the Equality Act 2010. Colin Snook told me that I should not voice my opinions within the sales office. He again told me that “That’s just the way it is within the sales department”, and to “get on with it.” … I did not agree with Colin Snook that this is how the sales environment should be.” The Claimant was not directly cross examined about his allegation relating to the 25 April, albeit the 25 April is not a pleaded occasion in the sense of the Claimant alleging that he made a protected disclosure or protected act on that date. The 25th April is not in the List of Issues. The 25th April is also not in the Claimant’s further and better particulars.

3.23 The Claimant said in evidence he also first sought legal advice around the 20 April, which would have been over the same weekend that CS refers to. On the 22 April the Claimant made his first covert recordings of the conversations amongst the sales team in the hub.

3.24 On the balance of the evidence before us, and applying the balance of probabilities, we consider it likely that the Claimant’s discussion with CS on the 18 April was about more than the Claimant having spoken to RH behind CS’s back about CS and CS’ management abilities. What was happening led to the Claimant seeking legal advice and also starting to record his colleagues to prove the nature of the conversations that were taking place in the hub. But we also do not consider it likely, and do not find, the Claimant told CS on 18th April that he was being subject to daily unwanted conduct of a sexual nature, racism, misogyny, homophobia and aggression. Again, it is extremely unlikely that the Claimant would have used such formalised language. We do not consider that at that point in time the Claimant was complaining to CS of discrimination in the Equality Act sense, or of being exposed to language of a sexual nature. In our judgement, on the balance of probabilities, what the Claimant was complaining about was the language itself that was being used that he did not like and did not consider professional, such as fuck, shit and cunt, and also that it was noisy when he was trying to work and whilst trying to speak to customers etc on the phone. That accords with CS’s account (albeit CS related it to a different date).

3.25 At the subsequent dismissal meeting the Claimant complained that when he raised the issue of language with CS, that CS had told the Claimant to tell them to “shut up.” At that meeting CS disagreed with the Claimant saying that he told the Claimant to tell them to shut up if the Claimant was on the phone and the noise levels were getting too high. At that dismissal meeting CS said he told the Claimant he would address the complaint at the next team meeting with everyone, with the Claimant interjecting at that dismissal meeting that he did not want that to happen. CS then said at the dismissal meeting he had addressed it with the staff and the Claimant had not mentioned anything else to him. The Claimant therefore accepted at the dismissal meeting that CS had offered to address language with the staff at a team meeting, but he had asked CS not to do so. This subsequent exchange at the dismissal meeting helps us to conclude, on the balance of probabilities, that there was not a further discussion between the Claimant and CS on the 25 April about language in the hub. With CS commenting that the Claimant had not raised the issue with CS again, we considered it unlikely that there was a discussion between them about language on the 25 April because it is too close in time to the dismissal meeting date. Further, it is notable that the 25 April did not feature in the Claimant’s further and better particulars or within the List of Issues.

3.26 Our conclusion is therefore that there was one discussion between the Claimant and CS about language in the hub which took place on the 18 April. We consider it likely, and find that CS did offer to raise the issue a staff meeting but the Claimant said he did not want him to do so. Therefore CS said he would raise it one to one, but that if it was noisy, particularly when the Claimant was on the phone, the Claimant should also tell them to keep it down. We also consider it likely, and find, that CS also said words to the effect that it had always been like that in the sales hub, because that was CS’s experience of it too. In the recordings subsequently taken by the Claimant, there is one in which CS features, where music is being played. CS engages in a discussion about the music [308], but is largely talking about work. In those discussions CS himself uses expressions such as “Its like fucking children I tell you” (in the sense of it being like working with children). CS was not permanently sat with the sales team as he had his own office. But in our judgement, it is likely CS’ experience was of it being a noisy team environment, and with swearing being common place. We do not think it likely that CS knew the true detail of the type of some of the discussions that could happen in the sales team that the Claimant went on to subsequently record, rather than there being for example, the playing of loud music, general chatter and the use of swear words. The Claimant said to CS words to the effect that he considered it was CS’ job to deal with the sales team and was not for the Claimant to do so himself. The Claimant said similar things to NR. The Claimant had regimented views as to what was a managerial responsibility and early on the Claimant reached the view point that he felt both NR and CS were failing in their managerial responsibilities. As such it made it less likely that the Claimant would follow their directions, unless he himself saw sense in it.

3.27 We do also consider it likely on the balance of probabilities that the Claimant said something to CS on 18 April about NR’s behaviour of the previous day. It had only been the previous day, which makes it likely that it was mentioned. We also consider it more likely that the Claimant would get into more detail in his discussion with CS than he did with RH the previous day which had been a short, chance, encounter on the stairs. Further at the dismissal meeting there is a record of an exchange where JM raised with the Claimant that he had “shushed” NR when HR was explaining a process. The note records the Claimant saying it did not happen that way, with JM saying that NR had said the Claimant was interrupting him when NR was trying to confirm a process and that the conversation became so heated that NR walked away and had gone to CS and said he could not work with the Claimant any more. The note records the Claimant then saying that CS had not spoken to NR about his conduct. CS then said that he had, and had reminded NR about NR’s conduct too [152]. This exchange is also recorded in the typed note at [155]. The note says the Claimant then said he had not been told by CS that CS had spoken to NR. This demonstrates to us that there were discussions happening between the Claimant and CS about the Claimant and NR’s relationship. In our judgement, there was also an incident where it was perceived the Claimant “shushed” NR when NR was trying to explain something; albeit we do not know the date of this. But we do not consider it likely that the Claimant said to CS on 18 April that he feared for his safety. Again, the Claimant accepted in cross examination that he was not actually in fear of his safety at this point in time. We consider that here the Claimant has used exaggerated language to describe NRs conduct after the event.

3.28 Also on or around 18 or 19 April JM was spoken to by two separate members of the sales team, RM and IR, who commented to JM that the Claimant was increasingly hard to work with and they felt the Claimant was making derogatory comments and belittling people. They said that the Claimant would talk about people when they were not in the room. They said that some of the junior sales team had been referred to as “Kiddo.” The Claimant accepted in cross examination he had used the expression “Kiddo”. They also described the Claimant to JM as being rude and condescending when trying to offer help. We accept JM’s evidence about what he was told about how the Claimant was coming over to the sales team.

3.29 JM says that a few days later (so around 20 to 23 April) he spoke with CS for a catch up. JM says CS said he had a number of concerns about the Claimant’s temperament and attitude towards management. JM says he was told the Claimant was not following the practices and procedures to a satisfactory degree. The Respondent has a 12 step process and the steps include giving the customers an offer sheet detailing the financial services available in a compliant way. JM says it had been noticed the Claimant had failed to present the offer sheet to certain customers where the Claimant did not feel it appropriate, that it had been brought to the claimant’s attention, but the Claimant had refused to adhere to the management instruction. The Claimant in cross examination gave differing answers about his position on whether he used the offer sheets. But he did say that if a customer paid in cash then an offer sheet was not the best vehicle to use because it could alienate the client. The Claimant in cross examination also raised issues about his training. We consider and find that the Claimant understood the Respondent had a process that required offer sheets in all cases, including cash purchasers. Amongst other things it meant that cash purchasers could understand all their options. We consider and find that the Claimant did refuse to use them when he did not consider it appropriate. We further find this was a topic of concern and discussion between JM and CS.

3.30 JM says CS also said the Claimant appeared to have little self-awareness as to how he came over to others in the team and was condescending, to the point of rudeness, to work colleagues. JM says CS said the Claimant would make remarks about other sales executives being bad at their jobs or not doing things the way he thought they should be done. JM was told that RM, NR and IR were so unhappy they were looking to leave for roles elsewhere. JM says CS told him that when CS tried to raise these issues with the Claimant, the Claimant was confrontational and dismissive and the Claimant challenged CS’s right to tell him what to do, despite being the Claimant’s manager. JM says he also became aware the Claimant had made comments to RH that he considered the sales team was being run the wrong way. JM says it was becoming clear to him that the Claimant was creating a toxic environment on a number of levels within the Respondent. JM says he told CS to monitor the situation closely and keep JM updated. We accept all of JM’s evidence in this regard about what CS said to him about the Claimant. We saw for ourselves that the Claimant is a direct speaker, and also that if the Claimant considers something is correct/incorrect he will voice that. In our judgement, the Claimant’s perspective is that he does not see anything wrong with that approach. But the risk is that others may take it as rudeness or condescension or obstruction or a lack of respect for process or authority. Further, as we have already said the Claimant did not rate CS as a manager or CS’ management skills and he made his views known on that. In our judgement, that made it likely the Claimant was not inclined to follow CS’s direction unless the Claimant chose to do so, and that it is likely he would have displayed a lack of respect for CS’ authority and that he challenged CS’s right to tell him what to do. In turn it is likely that CS would have spoken to JM about such matters.

3.31 On 22 April 2024 the Claimant made four covert recordings of the sales team. We listened to the audio recordings we were given. We also have in the bundle the Respondent’s transcripts and the Claimant’s transcripts. The Claimant’s version is more helpful because it identifies the individuals speaking and the Respondent did not ultimately seem to dispute that version and it is therefore the version that we worked from.

3.32 One of the recordings shows the Claimant being on a phone call with a customer whilst IR and RM are having a wide ranging conversation. In that conversation IR said: “I remember [AB] right?” RM said: “she didn’t suck you off did she?” RM then also said: “I… [AB] sucking me off…”, and when on to make what seems to be a joke about AB resembling someone else. There is then laughter recorded on the audio recording.

3.33 The Claimant continues on his customer phone call with laughter and noise in the background. The customer call then ends. IR then moves the conversation on to recount a story about CD. The story is about an individual making a bet that if he hit a tricky shot in a game of pool he would have sex with CD on the pool table, and about that eventuality then unfolding in front of those present, with CD being a willing participant. IR describes CD as being “she’s a bit rough around the edges.” On the audio recording NR is asking questions about the event, including about CD saying: “A bit of a slag is she?” and: “the local ride in the area, was she?” The audio recording also records RM commenting: “Nick’s wank, Nick’s wank tonight that is.” NR also said as a joke: “Salway will be down there now” with AS then saying “Absolutely not, but, by the sound of it I wouldn’t fuck her with your dick.”

3.34 The conversation then moved on to jokes about AS’ fertility, and whether EF was interested in AS. EF said that she did not want kids. NR then said about EF: “ I think she’s dried up” and “At least, I think [inaudible] she’s gonna dry up like a prune though.” There is laughter recorded. AS then says not long after: “She’s listening to a full fucking table song, she’s wetter [inaudible] now she’s like the fucking Mojave Desert.”

3.35 Shortly afterwards AS asked RM if he could borrow 20 quid, with RM saying: “Yeah, you can [laughter] I want it back Friday, [laughter] or a blow job.” Further laughter is then recorded with NR saying: “She says, serious, I rather just give the blowjob.”

3.36 A different audio recording seems to show a video clip being played and a male on the video clip saying: “Cobra cunts [?] [inaudible] Fucking get in there [?]. Now, what have they always taught you lot? If you catch someone staring at you, you slam’ em. Grab their arse, slam’em. If someone smells your pipe [?], you knee them in the bollocks. What the fuck is your problem you little Backstreet Boy wannabe?” A woman on the clip then says: “Yeh, I went to the Chinese last night’?] That Chinese man over there punched me.” The same man on the video clip then said: “[inaudible] we gonna see that. All right, guys? I smell cock [inaudible] [laughter].” AS then comments: “Does that ryme [inaudible] small cock.” The man on the video clip then says: “A skinny cunt and a Chinaman[?]. Everyone behind me in case I fucking blow. Cobra [inaudible].” The man in the video clip also says: “So you like beating up gay boys? Not homophobic are you, but? I have two friends who are gay [inaudible] [laughter] the skinny cunt. He’s skinny but not sleeping on back. Sounds like that skinny cunt had it coming to me but[?]? He no fan of a Backstreet Boy. Look [inaudible] over there you skinny cunt. [inaudible] cant you defend yourself? He’s skinny…”

3.37 A further video recording shows AS complaining to his colleagues about a customer trying to belittle him and in the course of doing so says: “And he’s just being a cock.”

3.38 A further video recording from the 26 April has AS complaining that someone had responded to a customer lead in AS’ name. NR asks if AS had been asked why it was on the system and AS responded: “Yeah, they fucking ripped my arse out over that.” There is also a recording of AS saying, seemingly when observing as customer: “who is this fucking Helmet, and why has he parked the fucking car there.”

3.39 On Friday 26 April JM, RH and CS met to discuss the Claimant. The Claimant disputes that this discussion ever happened, or that it happened on that date. Applying the balance of probability, we accept the evidence of JM and RH that the discussion did happen. In the meeting CS said things had not improved in the sales team but rather had declined. CS said the Claimant had continued to ignore the 12 step sales process and was aggressive and confrontational to anyone who attempted to give the Claimant instructions. JM was also told the Claimant had received a customer complaint. It was a complaint from the West Wales based customer that the Claimant had anticipated was likely to be made; albeit the Claimant thought it would be because other sales executives had told the customers to just drop in without an appointment, and when they arrived he was dropped in it. The actual complaint came on 23 April and the transcript can be found starting at [330]. The customer in fact complained that the Claimant seemed to have a strange attitude towards the customer’s wife in assuming that the male customer would be the only person test driving the car. The customer said he found the Claimant’s attitude condescending. The customer said the Claimant did not seem to know anything about the car. He said the Claimant asked his wife unnecessary questions about her health conditions. The Claimant says there were reasons why he asked the customer’s wife the questions that he did, and that he had been dropped in it when given the test drive to do. But the point ultimately is that the customer complaint was made and was genuine and raised concerns about an apparent condescending attitude by the Claimant. The Claimant seemed to dispute that the complaint was genuine, and appeared to be suggesting it had been manufactured or induced by the Respondent. We do not accept that. We accept that it was genuine customer feedback and was another source of concern. The Claimant says that in the transcript CS says that is the first he has been told about a condescending attitude so it must mean that CS had not heard that/ did not think that before. We do not accept that is the case. We find that instead CS was simply trying to manage the customer’s call. The Claimant in turn then describes that as a lie. But in our judgement it is more of a demonstration of the subtleties and nuances of these kinds of human interaction that the Claimant seems have struggled with.

3.40 JM says that the collective conclusion reached was that the Claimant was unmanageable and was damaging the team cohesion. We accept JM’s evidence. JM said he was also concerned the Claimant could seriously harm the Respondent’s public reputation if the Claimant was getting complaints three weeks into employment. Again, we accept JM’s evidence that was one concern. JM and RH were keen to meet with the Claimant immediately to address the concerns with the Claimant and which they anticipated was likely to lead to the Claimant’s dismissal. But CS was concerned about staffing levels over the weekend when the Claimant was scheduled to work so they decided to meet with the Claimant first thing on Monday 29 April 2024.

3.41 In our judgement, the plan was to meet with the Claimant on the Monday and speak to him. The general viewpoint and expectation was that it was not looking good and was very likely to end in the Claimant’s dismissal. Hence why the decision was delayed to the Monday so that the Claimant was in work over the weekend. But the decision was qualified to the extent that if the Claimant showed genuine contrition or material personal mitigation and a willingness to change there may have been scope to reach a different plan.

3.42 Further events then unfolded over the weekend. On Saturday 27th April there was a further incident between the Claimant and NR. The Claimant describes NR standing in his way at the key cabinet with NR then pushing past the Claimant into CS’s office, with CS telling NR to calm down and NR then getting up and leaving the office. The Claimant says he told CS they could not carry on like this. The Respondent’s case as we understood it was that this incident did not occur or at least did not occur in the manner described by the Claimant, with the suggestion being that the area in question was a confined space where it was easy for someone to get in someone else’s way. On the Claimant’s own case NR had not said anything to the Claimant at the time of this interaction by the key cabinet but the Claimant had taken from NR’s manner that NR was being aggressive. The Claimant also accepted in evidence that there had been an interaction between him and NR where the Claimant had asked NR to call a customer back, NR had passed it back to the Claimant, and the Claimant had said words to the effect that it was not outside of NR’s capability or remit to make the call. In our judgement this was a classic example of the type of behaviour by the Claimant that NR was finding it difficult to handle. The Claimant was not following the direction of a manager, was showing no respect for him and was questioning his authority and competence. It is likely that NR was annoyed with the Claimant and the claimant perceived that. But we do not consider it likely that NR was aggressive towards the Claimant. If he had been it is likely that it would have featured in CS’ subsequent message exchange with RH.

3.43 On Sunday 28 April at about 3:50pm the Claimant was challenged in the office by AS about whether he was recording them. Others also joined in the challenge including IR and IR’s wife, Emily, who worked in another part of the business. The Respondent says the Claimant initially denied making the recordings but later admitted it. The Claimant disputes this. We find it likely that he did initially deny it; it is a classic human response to that kind of situation. The Claimant recalled IR stating that he did not trust him and the Claimant had said to them that he had made the recordings to capture the conversations that were not to his liking and that they should be raising their bar and not expecting the Claimant to lower his. The Claimant accepted that he had told Emily that it was not a matter that concerned her and to stay out of it. JM was contacted by AS and told that the Claimant had been noticed trying to record his colleagues. CS and RH are in a message group with Edward Hughes and Steven Millar, the accountant. At 16:56 CS sent through the weekend sales figures and went on to say to RH: “We need to have a conversation regarding Matthew, he has been recording conversations in the sales pod of other staff members without them knowing, they have all phoned [me] today and they don’t want to work with him.” RH asked: “How do they know that?” CS said: “He admitted it to Emily & Ian today.” RH said: “That’s ridiculous carry on I’ll call you on my way back to the office from the car. Tomorrow… morning.” CS said: “Ok, will talk to you tomorrow. Don’t know what he is thinking he is doing, don’t think he is a good fit for the team or any team to be honest.” RH replied: “If he doesn’t fit in then he can go.”

3.44 The Claimant pointed out in relation to these messages that they make no reference to the previous discussion on the Friday. This is one of the reasons why the Claimant disputes that discussion about him happened on the Friday. He also points to the fact there are no written records of the meeting and that subsequently in the appeal process Edward Hughes (EH) referred to a discussion between CS and JM but made no reference to RH. We did not hear evidence from EH and therefore do not know what information he was proceeding on the basis of, from whom, at appeal stage. We do not read anything into that or the absence of EH as a witness because the handling of the appeal is not a point directly before us in the List of Issues. It is therefore difficult to see how the Respondent could have anticipated a need to call EH as a witness. On the point in general about whether the Friday meeting occurred, we did fully evaluate all the evidence and arguments put before us in our deliberations. But we were ultimately satisfied, taking into account JM and RH’s direct evidence that the discussion on the Friday had happened. The subsequent message discussion between CS and RH on the Sunday is short, with short expressions used, as they tend to be with written messages. The messages show CS reporting and RH responding to a new piece of information about the Claimant with RH’s view being in our judgement, that it was now even more likely that the Claimant needed to be dismissed. Viewed in that way, the absence of the reference to the Friday’s discussion did not in our judgement mean that we ultimately concluded (weighing all the evidence before us) that the Friday discussion had not taken place. As already stated, we concluded on the balance of probabilities that it did happen between JM, CS and RH. Another factor we weighed into account here is that the Claimant was causing various individuals at the Respondent various concerns; it was inevitable that there were going to be discussions about the Claimant and that things would have to come to a head and a decision made about his future employment.

3.45 JM and RH then had a further discussion on the Monday morning. They agreed that the plan was for the Claimant was to be dismissed that day as previously discussed. That remained subject to the qualification that if the Claimant accepted the allegations, showed contribution and could convince JM that he was going to change his behaviour then JM had some freedom to decide differently or at least to agree an amicable departure with the Claimant and/or pay him for a period of notice. This position is shown in paragraph 22 of JM’s witness statement and RH also stated something similar in cross examination. In our judgement, the position had moved from it being highly likely on the Friday that the Claimant would be dismissed, and a presumption that would happen with JM authorised to do so; to it becoming exceptionally likely the Claimant was to be dismissed. Dismissal was the anticipated plan going in to the meeting. That can be seen from the fact that JM did not at any point, for example, pause the meeting to reflect, or to speak to RH. JM required director approval to dismissal a meeting of staff and he already had that in place from RH. In our judgement, the collective view was that it was highly unlikely that the Claimant was going to offer JM what JM was looking for, and that became even more the case after the Sunday developments when faced with a team who were in all likelihood up in arms about being recorded, and saying that they could not work with the Claimant.

3.46 JM also had a discussion with another director about what to do if the Claimant brought out his recording and wanted to play it. The Respondent is a relatively small employer, employing around 55 staff. There is no designated HR team. JM was advised not to listen to the recordings until they had further clarification from a solicitor because if they were obtained without consent and in breach of the GDPR and captured, for example, customer voices, then through playing them the Respondent could themselves end up in breach or further breach. JM also spoke to CS and said they would meet with the Claimant about 9:30am once the whole sales team were in work so that there was sufficient cover.

3.47 The Claimant arrived at work on Monday 29 April at about 8:20am. He said good morning to CS when CS arrived, and CS said it was not going to be a good morning for the Claimant. Again, this shows that the anticipated plan in place was one of dismissal. At about 9:25am JM invited the Claimant for a word with him and CS in a pod in the showroom.

3.48 There is a dispute as to what was said and by whom at this meeting found at [149]. There are no entirely contemporaneous notes. There is a handwritten note prepared by JM which he said he wrote about 45 minutes to an hour after the end of the meeting. The Claimant disputes this and disputes that the notes are an accurate representation of what was said. In effect the Claimant argues they were written after the event as a cover up. We accept JM’s account that he did write the notes at that time and that they were a summary of some of the key points from JM’s perspective at that point in time. Given how the meeting went JM would have anticipated some further action by the Claimant. JM is an experienced manager, and it would be the type of management practice JM would follow to write a note no longer afterwards. We also accept, as stated, that the note is largely representative of some of what was said at the meeting and captures what JM thought it was important to record from JM’s perspective. The Claimant was going in to the meeting with a different perspective to JM, so it is not surprising that they came away with differing reflections. But some of what the Claimant denies was said is linked to his general denials that there was anything wrong with his conduct in the workplace. But we have found that he genuinely was causing various managers concerns and with that finding, it does make it likely that particular issues that were concerning to JM were being raised by JM at the meeting. The Claimant also did not himself write up a note of his own recollections following the meeting. JM’s handwritten note is therefore the most contemporaneous account that we have and was in our judgement largely the most helpful guide to making our findings about what was said.

3.49 JM also prepared a typed note about 7 days later that can be found at [154]. It largely follows the same theme to the handwritten notes but there are some differences and different language is used. The typed note is written more as an overall summary compared to the handwritten note which is written more as a transcript, albeit it was not an actual transcript taken live at the meeting. By way of an example as to the differences, in the typed note there is a reference to the West Wales client complaint that is not in the handwritten note. There is also a difference between the notes and JM’s witness statement. In particular, JM’s witness statement says that it was CS who raised that the Claimant could come across as confrontational and had “shushed” NR, whereas the handwritten notes attribute this to CS. At the time of giving evidence JM struggled to remember definitively but thought it had been CS. We do not see the discrepancy as being a major point of concern. It is likely that both JM and CS were speaking given CS was the Claimant’s direct line manager. It would not be unusual for a witness to struggle after the event, particularly as time passes to definitively remember who said what. But it is easier to remember if a key point or issue was covered.

3.50 In our judgement, the Claimant entered the meeting anticipating a discussion about the recordings he had taken. Whereas JM and CS entered the meeting with a view to discussing the Claimant’s wider conduct and the likelihood of dismissal. Part of JM’s handwritten note says that after the agenda was laid out, the Claimant said he wanted to make a complaint. The Claimant disputes this saying that no agenda was presented or read out. We do not find, however, that JM was referring to a formal meeting agenda. What he was referring to was that he went into the meeting with a plan of points to raise with the Claimant. We accept and find that JM planned to run through with the Claimant what JM has recorded in his handwritten note at [149] being: failure to follow the White Dove sales process; that the Claimant was found to have an aggressive and confrontational nature; that a toxic environment had developed in the hub; concerns about the Claimant’s attitude towards management; and the Claimant’s resistance to conform to procedures. JM did not get into the detail at that point because the Claimant intervened to say that he wanted to make a complaint about sexism, racism, discrimination, homophobia and aggression. The Claimant said he had made a recording to back up his complaints that he wanted to play the recording.

3.51 JM told the Claimant that he was happy to investigate the Claimant’s complaints but was not comfortable listening to recordings. JM asked the Claimant to provide a transcript. The Claimant said again he wanted to play the recordings and JM said again he was happy to investigate but the Claimant should provide transcripts. The Claimant disputes that these things were said. The Claimant says there was no mention of an investigation or the provision of a transcript. We, however, accept JM’s evidence and JM’s handwritten note that there was. It accords with the discussion that JM had before the meeting with the other director about concerns relating to listening to the recordings. It also accords with the Respondent’s conduct after the event, which was always a willingness to investigate any complaint made by the Claimant provided a process was followed.

3.52 Returning to the dismissal meeting, the Claimant said he should not have to listen to the type of words he was being subject to like fuck, wank, bellend on a daily basis, it was vile and offensive and the Respondent should be providing a safe environment. JM said he agreed and that the Claimant’s complaints would be investigated as a separate matter. The Claimant continued to say he wanted to talk about it then, and he did not feel he should have to listen to the sexual experience of other sales executives and that he had previously spoken to CS about the language and had been told to tell the team to shut up. CS disagreed, saying he had told the Claimant to say that if the Claimant was on the phone and the noise levels were getting too high, and that CS had he would address the complaint at the next team meeting. The Claimant then said he had said he did not want that team discussion to happen as the team would know it came from him. CS then said he had addressed it and the Claimant had not mentioned anything since to him.

3.53 JM tried to bring the meeting back to the issues JM wanted to address but the Claimant continued to speak about the language he believed he should have to be exposed to in the workplace. The Claimant’s account is that he went into some detail at this point in time, that he described the foul and offensive language, that no boundaries were respected and there had been laughter at a broadcasted inciteful homophobic video that encouraged homophobic violence, described gay people as skinny cunts, and referred to the smelling of cock. The Claimant says that he said he did not want to listen to unwanted conduct of a sexual nature or the objectification of women, that women were not pieces of meat to be done to. He says he said he did not want to listen to tales of women being nailed/fucked on pool tables, or women being called birds, slags, sluts or talk of shagging them and did not want to listen to salesmen being proud of getting them pregnant, not wanting to fuck them with your dick, if they were the local ride or if the were fit, or that they were a bit rough around the edges, or that after a few beers, you probably would like. The Claimant says he said he did not want to listen to the masturbation habits of RM, and that he also referred to other comments made about female members of staff and he also made reference to some comments about matters relating to race in the workplace. He says he said it was not acceptable to continually listen to the words fuck, fucking, wank, wanker, cock and cunt and it was not ok to call potential customers dull cunts, bell ends and to tell them to fuck off. The Claimant’s account has not been entirely consistent as to exactly what he said at this point in the meeting (for example, it differs to what he said in his appeal grounds) and the detail that he went in to. JM’s evidence was that he was not given specific examples. But, on balance, we would accept that the Claimant probably did say something to this kind of effect and with some examples given which largely to relate to the recordings the Claimant had the week before. The specific examples are not recorded in JM’s handwritten note at [140] and JM’s evidence is that he did not have specific details or examples. But JM was not taking a contemporaneous note at the time. We consider it likely that the Claimant was delivering a barrage of information that JM would have been struggling to take in and process, let alone record in writing or recall in any detail. Moreover, it was not what JM was there to talk about, and JM was trying to get the Claimant to submit a written complaint. Hence, why not all the detail is set out there in the notes at [149]. There was also a discussion about whether CS and JM would be happy for their own daughters to work there.

3.54 JM then said he would investigate the Claimant’s complaints once the Claimant had documented them and moved the meeting back to what JM intended to discuss. JM raised that there was a toxic environment in the sales hub and two members of the team had said they were looking to leave because of the Claimant, that people were saying the Claimant was condescending and aggressive, was trying to cause trouble and they did not trust him. JM referred to the Claimant recording his colleagues over the weekend and that they found that extremely uncomfortable. The Claimant responded with words to the effect that the sales team should look to raise their bar and he should not have to lower his. JM asked the Claimant whether he was saying JM should change the whole sales team and the Claimant said not. There was a discussion about whether the Claimant could be relocated to work elsewhere on his own, but JM said that was not viable as the Claimant needed to be near NR and CS and the sales hub was a brand standard.

3.55 JM raised with the Claimant that he was not following the sales process in relation to offer sheets. The Claimant denies that this was raised but we accept that it was. It is in JM’s note of the meeting. It is also something we have found was a concern about the Claimant and indeed the Claimant confirmed in evidence his view that offer sheets were not the appropriate vehicle for cash purchasers. It is therefore likely that it was raised at the meeting. At the meeting the Claimant said he did not use them for cash customers as they did not need to see all the options. JM explained again why they needed to be used in all cases. We find that the Claimant said that he would only follow the processes that he saw value in.

3.56 It was raised with the Claimant that team members were saying he was aggressive and confrontational and there had been an incident when he had shushed NR when NR was explaining a process. It was said that the Claimant was interrupting and talking over NR, and the conversation became so heated that HR walked away, and had gone to CS to say he could not work with the Claimant any more. The Claimant said he had not happened that way and that CS had failed to speak to NR about his conduct. CS said he had and had reminded NR about his conduct also. The Claimant says in his witness statement that he told JM that he had previously called out to CS and RH the aggressive bullying attitude of NR. On the Claimant’s own account he does not say that he told JM that he believed NR had endangered his health and safety or words to that effect, or that he felt in fear of violence. There was clearly some discussion about NR’s own attitude back towards the Claimant. The Claimant did also in his general overall comment about what he wanted to complain about, use the word aggression. But we do not find that the Claimant told JM that NR had behaved aggressively in some particular regard or regards that had endangered the Claimant’s health and safety, or that he was in fear of violence, , or words to that effect.

3.57 JM also raised with the Claimant, the Claimant’s attitude towards CS and that CS deserved some respect. The Claimant repeated words to the effect that he did not consider CS was running the team properly. JM felt that the Claimant was becoming aggressive in his tone and body language by this point. The Claimant denies this saying that the atmosphere was charged but not aggressive. But we accept that this is what JM felt at the time. According to JM’s handwritten note he said words to the effect that the business was prepared to coach and train anyone who wanted to learn, but the Claimant had made it clear that he was not going to change, had no respect for his line managers, and JM did not think this was going to change going forward. JM said the Claimant had broken the trust of his colleagues in recording them without their knowledge and JM could not see a way he could integrate the Claimant into the team. JM said he was terminating the Claimant’s employment.

3.58 There was a discussion about commission and the Claimant asked if he could say goodbye to some people in the dealership. This included the accountant, Steve Millar, who told the Claimant he already knew the Claimant was leaving that day. Again, this indicates that the reality was that the decision had been made the Claimant was going to be dismissed unless the unlikely eventuality occurred that the Claimant’s response meant that JM was prepared to follow a different course.

3.59 According to JM’s typed note at [155] during the course of the meeting there was also a discussion about the customer complaint. We consider it likely that it was mentioned given that it occurred so close in time to the meeting in question.

3.60 After the meeting JM spoke with NR and asked for a breakdown of the concerns about the Claimant which NR provided [156]. This records concerns such as the Claimant not agreeing with the process for cash customers; the Claimant would want to do things in his own time and his own way, or act as if he had not been shown something when he had been; the Claimant was generally difficult to deal with and it felt as if the Claimant was being purposely awkward and was condescending when people trying to help; if you tried to show the Claimant something he would speak over you; he had hushed NR when trying to explain something which was disrespectful; the Claimant had told a story about an MOT tester who would double check everything causing no ends of problems which NR considered had been told to undermine what NR was doing with the team; and that the Claimant had recorded conversations in the office without the knowledge of the team. NR said that the Claimant had been confronted by AS and had initially denied it but when AS pressed it and said he had seen the Claimant’s phone recording then the Claimant admitted it and said he saw nothing wrong in what he had done. NR said that the Claimant was then rude to Emily when she expressed her unhappiness that he had been recording her husband without him knowing. NR said the Claimant had made the team feel very uneasy and uncomfortable in the workplace.

3.61 On 29 April at 5pm JM emailed the Claimant to confirm the termination of employment [158]. This says: “Further to our meeting this morning where we discussed the working environment within our CUPRA/SEAT sales department and your employment with White Dove Garages. In our conversation you stated that you felt that the culture of the department and the behaviour of your sales colleagues was discriminatory. You didn’t directly support your suggested allegations of malpractice with specific substantiated information. You did state however, that you had been secretly recording conversations with colleagues and general chatter within the sales hub, this by nature, would have included conversations with the general public. We take any report of incorrect conduct seriously and therefore I would ask you to detail these to me in writing so that I can investigate the instances to which you have referred. Your actions, whereby you have recorded conversations without the permission or consent of your colleagues or the company, have eroded the basis of trust between you and your colleagues. The resulting consequences are such that your colleagues are not prepared to work in the same workstation as you. You are aware that the Sales Team operate in a hub, specifically mandated by the CUPRA/SEAT Brand. You are aware also, that there have been complaints about your aggressive and provocative comments which has affected the harmony within the Sales Team. You suggested this morning you could work from a different location, segregating the Sales Team. The Sales team consists of Six Sales Executives, a Business Manager and a Sales Manager. It is therefore not a workable proposition from either the Brand or company’s perspective to alter these arrangements.”

3.62 The email went on to say that expanding on the issue of trust the business manager and CS had raised issues about disruptive behaviour and resistance to conform to policy, that the Claimant had challenged and undermined his line manager, and had circumvented the sales process in favour of individual procedures. It was said the Claimant had exposed the company to potential FCA safeguards and Brand audit rules and the recording of conversations potentially violated GDPR rules. It was said: “whilst in time intense coaching and supervision could resolve the behavioural mannerisms, your attitude to your colleagues and line manager have adversely impacted on the chances of this becoming a success.” It was said that in view of the above it has been decided that the Claimant’s position in the sales team had become untenable and therefore they had decided to terminate his employment with immediate effect. The Claimant was told he was not entitled to a notice period given the short term of employment. The Claimant was offered the right of appeal.

3.63 On 1 May 2024 the Respondent received a complaint from a customer about the Claimant on 29 April attempting to buy the customer’s car directly rather than it being part exchanged, with the Claimant signing off his email as being from “Matthew, The Garage.” This had initially led the customer to believe the Claimant was contacting the customer on behalf of the Respondent. The Claimant said in evidence that he was only contacting the customer to explain he was no longer dealing with the sale. We do not accept this. The content of the customer complaint is clear as recorded by JM [166] and we can see no reason at all why the customer would be untruthful and we do not accept that JM manufactured the complaint.

3.64 On 6 May the Claimant gave notice he wished to appeal [168]. On 6 May he sent a further email to JM [170] headed dismissal appeal in which the Claimant said he was disappointed that JM had declined to listen to the recordings before the summary dismissal, and that they would support the suggestion the culture within the sales team was and is abhorrent. He wrote: “Sexism, racism, discrimination, homophobia, and aggression should have no place in any working environment in 2024.” The Claimant went on to set out some of the language and topics that he took objection to and the playing of the video he described as homophobic and racist and undertaken in open ear shot of customer facing areas. He said that he had taken the best legal advice available to him and that the litany of recordings was contra the Equality Act. The Claimant said if he was not treated fairly and compensated for his loss of position and reputation he would not go away quietly and would present his recordings to the Volkswagen group and would contact his local MP and local press. He said he might also take to social media. In this correspondence he made no reference to having made any earlier complaints to RH.

3.65 On 8 May CS emailed JM saying he wanted to address inconsistencies in the claimant’s email of 6 May 2024 [172]. It was there that CS (as referred to already above) said that the Claimant had raised the issue of profanities with him on 11 April and that he had spoken to members of the team informally about it, and that the Claimant had not raised it again. CS there also raised what he had been told by a team member on 17 April when that team member overhead the conversation between the Claimant and RH.

3.66 JM emailed the Claimant on 15 May 2024 under five headings [169]. JM said the Claimant’s allegations remained unsupported and the Claimant had engaged in the illegal practice of recording customers including workplace colleagues private conversations. JM said the Claimant was in effect asking them to become complicit by listening to the illegal recordings and the position the Respondent would find themselves in if they listened to the recordings without a court order. JM said the Claimant had been asked to detail specific instances with supporting evidence so it could be investigated and the Claimant should ask his legal counsel to document the grievances. JM said the investigation would remain open for 7 days pending that reply. JM then said that the Claimant’s former colleagues had also raised grievances about the Claimant and there had been a complaint from a customer about the Claimant illegally contacting them post dismissal. JM also said: “You are aware from our previous communication that both your line manager and the business manager reported your disregard for adherence to the sales process. This was coupled with abrasive, confrontational, disruptive behaviour and dress code. It was explained to you that your disregard of consumer protection, process and other legal violations, deemed it necessary to terminate your employment. You have not submitted an appeal in respect to these conduct issues and therefore our decision in respect to your employment stands.”

3.67 On 22 May the Claimant emailed to say he did wish to appeal and in effect that he did not wish to deal directly with JM, and that he would not be writing with the supporting allegations because JM had had the opportunity to hear them on 29 April [173]. JM replied on 29 May. Within it JM said: “You have suggested that the decision to terminate your employment was linked to the allegations you have made about your former colleagues. This is incorrect. It has been explained to you that your conduct and failure to adhere to process and policy were the determining factors” [173]. The Claimant was invited to a dismissal appeal on 31 May to be heard by EH. The date was later changed to 7 June.

3.68 There was ongoing correspondence between the Claimant and JM that it is not necessary to detail as it does not relate to any specific allegations in this case. On 3 June JM wrote to the Claimant, within it JM said that the company was obliged to provide a copy of the employment contract within 2 months of the commencement of employment so a copy was attached with a copy of the staff handbook [186].

3.69 On 6 June 2024 the Claimant’s then solicitor wrote to JM [195]. The communication asserted that the fact the Claimant had recorded conversations with colleagues to evidence their conduct, due to the Company’s disbelief, was the reason given at the time to dismiss the Claimant. It was said the Claimant was entitled to see all the evidence supporting the allegations now being raised before his appeal meeting. On 7 June EH replied to say the appeal hearing was therefore postponed to allow time to review the content of the Claimant’s solicitor’s correspondence and in anticipation that the Claimant did not intend to attend on 7 June in any event.

3.70 On 13 June NR emailed JM with a statement [198]. NR made similar comments to those made previously and also said that at the time he had made his line managers aware he was seeking employment elsewhere as he could not work in that environment with the Claimant.

3.71 JM also attempted to undertake an investigation into the Claimant’s complaints, albeit he did not have a detailed complaint from the Claimant or the recordings the Claimant had undertaken. JM’s report is erroneously dated “May 2024” [160] but refers to interviews JM undertook with the sales team on dates in June. The report says its terms of reference were taken from the Claimant’s email of 6 May 2024. The findings include that the sales team was a friendly, professional environment where conversation could take place that was not work related, and that all the individuals viewed the banter environment as healthy banter and did not cross any boundaries. They accepted that swearing happened in the hub but not to the extent listed in the allegations and not in the ear shot of customers. The sales team denied knowledge of any homophobic or racist video being shared or viewed and they felt they would not be incriminated by any recording. They accepted the hub could get loud if members of the team were on the phone or carrying out training webinars and that was one aspect everyone would change. They raised their own complaints about the Claimant. JM also referred to three customer complaints [162]. Two of these post dated the dismissal. JM then said he could not uphold the Claimant’s allegations because all 5 members of the team said that sexism, racism, discrimination, homophobia, aggressive behaviours did not exist in the team. They said they sometimes used choice language which would be monitored and they would implement some ground rules to reduce noise. He said the team’s comments had some similarities with the customer complaints and that the issue might demonstrate the Claimant’s behaviours not the sales team, that it was claimed the Claimant had a very patronising nature, and it was evident the Claimant had failed to follow professes set by line managers. JM said as a precautionary measure he recommended the members revisit the Equality and Diversity training module and CS and NR revisit the manager’s training. JM also wrote the investigation would stay open as the Claimant had been invited to provide transcripts so they could be provided in a medium other than a recording taken without consent.

3.72 On 25 June EH wrote to the Claimant’s solicitor [199]. He proposed holding the appeal on 28 June. It in fact took place on 16 July 2024. There is a long transcript available that it is not necessary to recite at this stage but shows a long stand off between the Claimant and EH about whether the Claimant would hand over or read out a pre-prepared statement or whether EH would first ask the Claimant the questions EH wanted to ask. The Claimant largely did not co-operate with that because he wanted to read out his pre-prepared statement. There was also a discussion about the transcripts of the Claimant’s recordings, with EH saying there was a reason why the Respondent could not listen to them and wanted transcripts. EH said the recordings were in a customer environment and they did not know if there was any breach of data or rules or governance issues that had not been complied with. He said: “so therefore the position we took, before we could take advice, because we’re not lawyers okay? Is to find out are we acting lawfully”. EH said the advice they initially took was that they would need the permission of all parties or a court order, and they did not have that so they asked for the recordings in transcript form.

3.73 EH held open the appeal to allow the Claimant to send his written statement through. The Claimant tried to do so on 23 July 2024 [211] but it would appear there were various IT problems being suffered by people involved. On 25 April EH told the Claimant’s solicitor he still did not have a copy of the Claimant’s statement. Why that was not responded to we do not know although it appears from earlier correspondence that the Claimant’s solicitor had himself been having earlier email difficulties. EH therefore did not see the Claimant’s statement at the time. Within the statement the Claimant disputed the accuracy of the transcript he had been sent of the dismissal meeting on 29 April. He said JM had never asked for transcripts for an investigation. He said that when JM had refused to listen to the recordings that he had described in some detail some of the conversations he had recorded and that the tone was the norm everyday. The Claimant then set out a further summary of what he said he had reported. He said he had reported the matters multiple times to CS and RH. He said that when he was confronted by the sales team about the recording on 28 April that he told them he believed they should raise their bar and he should not be expected to lower his standards of decency to fit in, and that the rancid, abhorrent attitudes and language and tone of the conversation were a disgrace, unprofessional and he would not be ganged up on by them. The Claimant said again that offer sheets were not mentioned or adherence to processes. He said that he had questioned processes constructively with CS and NR but was never disruptive.

3.74 The Claimant was sent the appeal outcome on 9 August 2024 [223]. This said the original reasons for dismissal were: a failure to follow the White Dove sales process; aggressive/confrontational behaviour to other members of the team; interaction with colleagues in the sales hub; attitude towards management; resistance to confirm to brand and company procedures/policies. EH set out the procedural background and said he was still without the Claimant’s statement so had proceeded to make his decision on the information before him. EH said that the decision to dismiss had been reached by JM and CS prior to the meeting of 29 April and the meeting had been called to communicate that dismissal decision. EH said that the week prior JM had been spoken to by several members of staff about the Claimant’s behaviour and that JM had spoken to CS on the Friday informing CS that they needed a meeting with the Claimant the following Monday. It was said that before the meeting they had taken the view they were going to terminate the Claimant’s employment unless there were exceptional reasons for the Claimant’s behaviour and the Claimant providing a satisfactory explanation why he was not following established processes. As already mentioned, EH did not mention any involvement by RH in the decision making. EH said that the fact that the Claimant raised concerns at the meeting about colleagues in the hub had no bearing in the decision to dismiss. It was said the Claimant did not provide satisfactory explanations for the matters that was troubling the Respondent and so JM, as planned, informed the Claimant his employment would be terminated immediately. EH then set out a number of incidents about the Claimant he observed in the documentation before him [215].

3.75 The Respondent only received the Claimant’s recordings of 22 and 26 April at a later date when they were forwarded via Acas. JM told us in evidence that there were then disciplinary proceedings taken against the sales staff involved who were given final written warnings. 4. The relevant legal principles Protected Disclosure

4.1 Under section 43A Employment Rights Act 1996 (“ERA”), a worker makes a protected disclosure in certain circumstances. To be a protected disclosure, it must be a qualifying disclosure. A qualifying disclosure must fall within section 43B ERA and also must be made in accordance with any of sections 43C to 43H. Section 43B says: “(1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”

4.2 Section 43C provides that disclosure to an employer will be a qualifying disclosure.

4.3 There are therefore a number of requirements before a disclosure is a qualifying disclosure. First, the disclosure must be of information capable of tending to show one or more of the types of wrongdoing set out at Section 43B. In order to be such a disclosure “It has to have sufficient factual content and specificity such that it is capable of tending to show one of the matters in subsection (1)” (Kilraine v London Borough of Wandsworth

[2018] ICR 185

). Determining that is a matter for evaluative judgment by the Tribunal in light of all of the facts of the case. The question is whether, taking into account the evidence as to context, the information is “capable” of satisfying the other requirements of the section i.e., could a worker reasonably believe that it tended to show one of the specified matters (Twist v DX Limited UKEAT0030/20).

4.4 Second, the worker must believe the disclosure tends to show one of more of the listed wrongdoings. Third, if the worker does hold such a belief it must be reasonably held. Here, the worker does not have to show that the information did in fact disclose wrongdoing of the particular kind relied upon. It is enough if the worker reasonably believes that the information tends to show this to be the case. A belief may be reasonable even if it is ultimately wrong. It was said in Kilraine that this assessment is closely aligned with the first condition and that: “if the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable to tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

4.5 Fourth the worker must believe that the disclosure is made in the public interest. Fifth, if the worker does hold such a belief, it must be reasonably held. The focus is on whether the worker believes the disclosure is in the public interest (not the reasons why the worker believes that to be so). The worker must have a genuine and reasonable belief that the disclosure is in the public interest but that does not have to be the worker’s predominant motive for making disclosures: Chesterton Global Ltd v Nuromhammed [2018 ICR 731. In particular it was said: “I am inclined to think that the belief does not in fact have to form any part of the worker’s motivation – the phrase “in the belief” is not the same as “motivated by the belief”; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it.”

4.6 In Chesterton it was also said that there was no value in seeking to provide a general gloss on the phrase “in the public interest” but that the legislative history behind the introduction of the condition establishes that the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest. The question is to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but relevant factors may include: (a) the numbers in the group whose interests the disclosure served (b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed; (c) the nature of the wrongdoing disclosed; (d) the identity of the alleged wrongdoer.

4.7 It was also said that the broad intent behind the legislation is that workers making disclosures in the context of private workplace disputes should not attract the statutory protection accorded to whistleblowers. However, there may also be cases where the disclosure is of a matter that relates to an interest that is personal in character but there are nevertheless features of the case that make it reasonable to regard the disclosure as being in the public interest as well as in the personal interest of the worker. The question is to be answered by the Tribunal on a consideration of all the circumstances of the particular case. It was said in Dobbie v Paula Felton t/a Feltons Solicitors

UKEAT/0130/20/OO

that: “Generally, workers blow the whistle to draw attention to wrongdoing. That is often an important component of why in making the disclosure they are acting in the public interest.” The Tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. The Tribunal must recognise that there may be more than one reasonable view as to whether a particular disclosure was in the public interest. Sixth, the disclosure has to be made to an appropriate person (such as the employer). Whistleblowing/ Protected Disclosure detriment

4.8 Under Section 47B(1) a worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. Under section 47B(2) the section does not apply where the detriment in question amounts to a dismissal within the meaning of Part X (because dismissals are governed by Section 103A within Part X ERA).

4.9 There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment (see Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] EWCA Civ 713

applying Derbyshire v St Helens MBC

[2007] UKHL 16

and Shamoon v Chief Constable of Ulster Constabulary

[2003] ICR 33

4.10 There must be a link between the protected disclosure or disclosures and the act (or failure to act) which results in the detriment. Section 47B requires that the act should be “on the ground that” the worker has made the protected disclosure. In Manchester NHS Trust v Fecitt

[2011] EWCA 1190

it was said that “section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistle-blower.” This is a “reason why” test. The Tribunal has to look at why (consciously or unconsciously) the decision maker acted as he or she did. It was said in Jesudason that: “Liability is not, therefore, established by the claimant showing that but for the protected disclosure, the employer would not have committed the relevant act which gives rise to a detriment. If the employer can show that the reason he took the action which caused the detriment had nothing to do with the making of the protected disclosures, or that this was only a trivial factor in his reasoning, he will not be liable under Section 47B.” Protected disclosure dismissal

4.11 Section 103A 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.”

4.12 When asking what was the reason or principal reason for a dismissal it is again a “reason why” question which generally involves looking at the conscious and subconscious mental processes of the decision maker. Protected disclosure - burden of proof

4.13 Where a claimant has established that there has been a protected disclosure and he has suffered a detriment, it is for the employer to show that the detriment was not because of the disclosure; that is, that the disclosure did not materially influence - in the sense of being more than a trivial influence - the employer's treatment of the Claimant (see Fecitt).

4.14 In a protected disclosure unfair dismissal claim in Ross v Eddie Stobbart Limited

UKEAT/0068/13/RN

the EAT held that where an employee does not have sufficient qualifying service to bring an ordinary unfair dismissal claim, the burden of proof rests with the employee to establish, on the balance of probabilities, that the reason or principal reason for dismissal was because of the prohibited ground. The Employment Appeal Tribunal distinguished that position from that set out in Kuzel v Roche Products Limited which applies where the employee does have sufficient qualifying service. That said, the EAT also endorsed the proposition that in practice in many cases the Tribunal can make findings of fact about what was operating in the mind of the decision makers and therefore, in practice, only a small number of cases will turn upon a burden of proof analysis. Sex, Race and Sexual Orientation Harassment

4.15 Section 26 of the Equality Act defines harassment as: “(1) A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) A also harasses B if – (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b)… (4) In deciding whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account – (a) the perception of B; (b) the circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.”

4.16 In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

the EAT set out a three-step test for establishing whether harassment has occurred:

• was there unwanted conduct;

• did it have the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them; and

• was it related to a protected characteristic.

4.17 The tribunal must consider both whether the claimant considers themselves to have suffered the effect in question (the subjective question) and whether it was reasonable for the conduct to be regarded as having that effect (the objective question). The tribunal must also take into account all the other circumstances. The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for them, then it should not be found to have done so.

4.18 In Grant v HM Land Registry

[2011] IRLR 748

the Court of Appeal reiterated that when assessing the effect of a remark, the context in which it is given is highly material. A tribunal should not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive” as they are an important control to prevent trivial acts causing minor upset being caught up in the concept of harassment. The Court of Appeal also said: “It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.” In Betsi Cadwaladr University Health Board v Hughes [2014]

UKEAT/0179/13

it was also said by the EAT: “The word violating is a strong word. Offending against dignity; hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.”

4.19 The phrase “related to” a protected characteristic in a harassment complaint is a different, broader test from whether the conduct is “because of” a protected characteristic in a direct discrimination complaint. But it does have its limits. The conduct complained about must still relate to the protected characteristic, which is a matter for the tribunal to determine based on all the facts as found. It was said in Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and Heads

UKEAT/0039/19

the “related to” test may be satisfied by looking at the motivation of the individuals concerned but it is not the necessary or only possible route. It was also said: “Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the Tribunal therefore needs to articulate, distinctly and with sufficient clarity, what feature or features of the evidence or facts found, have led it to the conclusion that the conduct is related to the characteristic, as alleged. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.” Victimisation

4.20 Section 27 of the Equality Act 2010 provides: “27 Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.”

4.21 A protected act involves bringing proceedings under the Equality Act, or giving evidence or information in connection with such proceedings, or doing any other thing for the purposes of or in connection with the Equality Act, or making an allegation (whether or not express) that a person has contravened the Equality Act. Under section 27(3) giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

4.22 The Equality Act does not need to be mentioned in the allegation but it must be expressed to be about a matter which could amount to an allegation that someone has contravened the Equality Act. There must be something about the complaint to show that it is a complaint to at which at least the Equality Act potentially applies: Durrani v London Borough of Ealing EAT 0454/12. It was also said in Duranni that much will depend on the particular circumstances – that is all of the surrounding context about what was communicated by the employee to the employer and how it would be understood by the employer.

4.23 Whether treatment is a “detriment” is established by asking whether the treatment is of a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment. It is not necessary to establish any physical or economic consequence. The assessment by reference to a reasonable worker means that an unjustified sense of grievance will not pass the test.

4.24 There must be a link between the protected act and the detriment; the claimant must be subjected to a detriment because the claimant did the protected act. Here the tribunal has to ask itself whether the protected act had a significant influence on the outcome. Unlike a protected disclosure dismissal, this does not mean it necessarily has to be the main or principal cause. This “reason why” analysis again involves an examination of the mental processes, conscious or unconscious of the decision maker in question. It is not a “but for” test. Burden of Proof under the Equality Act 2010

4.25 The Equality Act 2010 provides for a shifting burden of proof. Section 136 so far as material provides: “(2) if there are facts from which the Court (which includes a Tribunal) could decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”

4.26 Consequently, it is for a claimant to prove facts from which the tribunal could infer (absent explanation from the respondent) that discrimination has taken place. If such facts have been made out to the tribunal’s satisfaction, applying the balance of probabilities, the second stage is engaged. At the second stage the burden shifts to the respondent to prove, again on the balance of probabilities, that the treatment in question was “in no sense whatsoever” because of the prohibited reason / that the protected characteristic was not a ground for the treatment in question. A tribunal would normally expect cogent evidence to discharge that burden of proof.

4.27 In Hewage v Grampian Health Board

[2012] IRLR 870

the Supreme Court approved guidance previously given by the Court of Appeal on how the burden of proof provisions should apply. That guidance appears in Igen Limited v Wong

[2005] ICR 931

, as supplemented in Madarassy v Nomura International Plc

[2007] ICR 867

. Here it is important to note that although the concept of the shifting burden of proof involves that two-stage process, the analysis should only be conducted once the tribunal has heard all the evidence.

4.28 Further, as to what is required to discharge the burden at the first stage; it must be something more than a difference in protected characteristic and a difference in treatment. It was said that 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. It is not necessarily an error of law for a tribunal to effectively assume the burden has shifted and look to the respondent to provide an explanation for the treatment in question. It was said in Hewage that the burden of proof provision may have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another. But the burden of proof provisions do require careful attention where there is room for doubt as to the facts necessary to establish discrimination; see Field v Steve Pye &Co

[2022] EAT 68

and the important guidance there at paragraph 41 onwards. 5. Discussion and Conclusions

5.1 Working through the List of issues our conclusions are as follows. Did the Claimant make Protected Disclosures? (for the protected disclosure detriment and dismissal complaints)

5.2 As we understand the List of Issues the alleged protected disclosures relate to the Claimant’s alleged complaints about NR. We say this because at paragraph 4.1.5 it is identified that the Claimant believed the alleged disclosures of information tended to show that the health or safety of any individual had been, was being, or was likely to be endangered. This can only sensibly relate to the Claimant’s alleged complaints about NR. As we understand it the Claimant’s other alleged complaints about the behaviour of colleagues is brought as victimisation complaints that we address separately below.

5.3 We do not find that the Claimant made a protected disclosure on 17 April to RH (4.1.1.1 in the List of issues). The Claimant did not make a disclosure of information to RH about the conduct of NR towards him that the Claimant believed tended to show that the Claimant’s health and safety had been endangered. On our findings of fact the Claimant did not make any disclosure of information at all to RH about NR’s conduct on 17 April. The most that the Claimant said was that there was a bit of an atmosphere in the sales team. That was not a disclosure of information that in the Claimant’s reasonable belief was made in the public interest and tended to show that his health and safety had been endangered. It would also not be a disclosure of information that had sufficient factual content and specificity.

5.4 In relation to 4.1.1,2 in the List of Issues there is an error in its first part because the Claimant did not speak to RH on that date of 18 April 2024. We therefore read the point as relating to the Claimant’s discussion with CS that day (which is then erroneously also duplicated at 4.1.1.3 in the List of Issues). So we take 4.1.1.2 and 4.1.1.3 to be an allegation that the Claimant on 18 April made a disclosure of information to CS that in the Claimant’s alleged reasonable belief tended to show that NR’s conduct was such that the Claimant’s health and safety had been endangered. Again, on our findings of fact we do not find that the Claimant made such a disclosure about NR to CS on that date. We found there was a discussion between the Claimant and CS about the Claimant’s and NR’s relationship and attitude towards each other, but not that the Claimant said either directly or words to the effect that he was fearing for his safety. Indeed on the Claimant’s own account he was not at that point in time. There also was not sufficient specificity in what the Claimant said to CS. The Claimant did not on 18 April make a disclosure of information that in his reasonable belief tended to show that his health and safety had been endangered. 25 April does not feature in the list of Issues but in any event we have not found that the Claimant and CS had a discussion about such matters that day.

5.5 Turning to 4.1.1.4 in the List of issues, which relates to the dismissal meeting, we again have concluded that whilst there was discussion about the Claimant and NR’s relationship including NR’s attitude to the Claimant (as well as the Claimant’s towards NR), the Claimant did not make an allegation that (or words to the effect) that HR had behaved aggressively towards the Claimant on a particular occasion or occasions and that it had endangered the Claimant’s safety or he was in fear of harm or violence from NR. There was not on our findings of fact sufficient specificity or factual content in what the Claimant said to JM. The Claimant did not make a disclosure of information that in his reasonable belief tended to show that his health and safety had been endangered.

5.6 If there has been no protected disclosures made then the protected disclosure detriment and dismissal complaints cannot succeed and they are dismissed. Did the Claimant make Protected Acts? (for the victimisation complaints)

5.7 We do not find that the Claimant did a protected act on 17 April 2024 in what he said to RH (paragraph

8.1.1.1 in the List of Issues). In particular, the Claimant did not make an allegation that the actions of his colleagues was in contravention of the Equality Act, whether or not express. He did not tell RH he was being subject to daily unwanted conduct of a sexual nature, racism, misogyny, homophobia and aggression. On our findings of fact all that the Claimant said to RH was that there was a bit of an atmosphere in the sales team. What was said was not capable of amounting to a breach of the Equality Act. On what was known to RH in context he would not reasonably understand it to be a complaint of some form of discrimination or conduct that breached the Equality Act.

5.8 Again paragraphs

8.1.1.2 and

8.1.1.3 in the List of Issues seem to duplicate each other and also refer to a conversation with RH on the 18 April when it was the 17 April. We therefore again read 8.1.1.2 and 8.1.1.3 to be referring to the Claimant’s discussion with CS on 18 April 2024. We do not find that the Claimant did a protected act in his conversation with CS on 18 April. The Claimant did not tell CS he was being subject to daily unwanted conduct of a sexual nature, racism, misogyny, homophobia and aggression. On our findings of fact what the Claimant complained to CS about was the use of profanities in the sales team such as fuck, shit, and cunt and about the level of noise. We do not find this this was an allegation that there were contraventions of the Equality Act. The Equality Act was not mentioned, nor was discrimination. Whilst the Claimant may have referred to words such as fuck and cunt which in their literal meanings refer to sexual activity and female genitalia, they are also words that are regularly used as descriptors and expletives without there being a sexual context to what is being said. To acknowledge such use does not mean that individuals are not entitled be uncomfortable with the use of such language – different people have very different attitudes towards swearing. But in our judgement the simple use of those words does not necessarily make use of the such language as being related to sex or being conduct of a sexual nature. Context is very important. Within this context and bearing in mind our findings of fact, we do not consider that CS would reasonably have taken what the Claimant was complaining about to amount to a complaint of discrimination under the Equality Act, or a complaint about unwanted conduct of a sexual nature, as opposed to simply being a complaint about swearing and noise. We therefore do not find that the Claimant did a protected act on 18 April.

5.9 Turning to the 29 April, we would accept that the Claimant did make a protected act at the dismissal meeting. We consider that the Claimant’s reference to sexist, racist, misogynistic and homophobic language by the sales team would amount to an allegation about contravention of the Equality Act, or be reasonably understood in context to amount to that. Further, we found it likely that the Claimant did go on to give some examples from the recordings he had made.

5.10 The Respondent as we understand it argues that it cannot be a protected act because it was made in bad faith. The Respondent refers to the case of HM Prison Service and others v Ibimidun

2008 IRLR 940

where the EAT held that, on its facts, an employee bringing multiple misconceived complaints of race discrimination not just to seek compensation but to harass the employer, which resulted in dismissal, was not victimisation. To use more modern language, the EAT’s analysis in that case was that the reasoning behind the decision to dismiss was separable from the protected acts of the earlier tribunal proceedings. Moreover, on the facts in that case that claimant’s allegations were found to be false and not made in good faith.

5.11 It is not sufficient to say that the allegation was made in bad faith for it to lose protection; the evidence/ information/ allegation must be both false and made in bad faith. The Claimant’s allegation was not false. Describing the language of the sales team as sexist, racist, misogynistic and homophobic, based on what was said the recordings the Claimant took is an entirely valid interpretation of things that were said. The Claimant did therefore make a protected act on 29 April. In relation to the allegation of a bad faith, we return to that theme below when considering the harassment complaints. For the reasons set out there we do not find that the Claimant was acting in bad faith when making his protected act. The victimisation complaints

5.12 We therefore turn to the substance of the victimisation complaints. The first complaint (paragraph 8.2.1 in the List of Issues) is that the Respondent summoned the Claimant to a meeting without due notice to consider his further employment, that this subjected the Claimant to a detriment, and it was because the Claimant did a protected act. The Claimant was summoned to a meeting without due notice (i.e he was not given notice of the meeting) to consider his further employment. Factually the allegation happened, and we accept that it was a detriment from the Claimant’s perspective. However, it did not happen because the Claimant did a protected act. The protected act was not made under the meeting itself. The protected act we have found happened after the Claimant had already been summoned to the meeting without notice. It therefore cannot have caused (in the sense of being a material influence) the summoning of the Claimant to the meeting without notice.

5.13 In our judgement, the summoning of the Claimant to the meeting without notice also cannot have been done in anticipation of the Claimant intending to do a protected act. This is because the decision to summon the Claimant to the meeting on Monday had been made (on our findings of fact) on the Friday and was made because of the Respondent’s concerns about the Claimant’s conduct and performance in the work place. In particular (although some of these interlink): they believed the Claimant displayed a lack of respect for managers, (particularly CS and NR); colleagues and managers found the Claimant to be confrontational and condescending in nature; the Claimant was displaying a resistance to following the Respondent’s procedures or directions of managers unless the Claimant himself saw value in it; with a resulting view that he was creating a toxic environment in the sales hub such that long standing staff were threatening to leave; and the receipt of the West Wales customer complaint. How the Claimant considers he conducts himself and how the Respondent received it and saw it are two different things. We acknowledge the Claimant’s perspective that there was nothing wrong with his own conduct and performance, but we are satisfied and find that these were genuinely held concerns on the Respondent’s part. They were concerns about a very new member of staff who appeared to be causing significant disruption in the workplace in a short period of time. Given the Claimant had such short service the view was that they could and should proceed to dismiss him without giving notice of the meeting – this was an employee far short of having two years’ service. The Respondent’s handbook also says it is not their practice to follow disciplinary procedures for an employee with less than 12 months’ service. RH’s proposal was to meet with the Claimant (without notice) that day, but CS was concerned about covering shifts over the weekend. Car salesrooms are busy over weekends because that is when customers who work Mondays to Fridays have their days off. So the plan was to meet with the Claimant, without notice, on the Monday morning. We find there was no expectation at that point in time, and in that decision making, that the Claimant was going to in the future undertake a protected act.

5.14 The Claimant was then found to be recording his colleagues on the Sunday. This reinforced the decision that had already been made to summon the Claimant to the meeting on the Monday morning. We do not find that this was materially influenced by an expectation the Claimant would in the future undertake a protected act. The Claimant had been known to complain about profanities and noise in the sales team, and there was an expectation the fact the Claimant had been recording colleagues would be brought up at the meeting, but in our judgement there was no anticipation that the Claimant was going to make a protected act. The content of the recordings was not known at that point in time. This complaint of victimisation is not well founded and is dismissed.

5.15 The next complaint is that the Respondent proceeded to consider the Claimant’s further employment without any investigation, either into his conduct or performance, or the alleged misconduct of his colleagues, and this subjected the Claimant to a detriment and was because the Claimant did a protected act. As a matter of fact we accept that JM did not undertake a formal investigation. JM had, however, undertaken some informal information gathering, so it is not the case there was no basis for the actions the Respondent was taking. Again, similar to the above, the Respondent was pursuing this course of action because of the reasons set out above. The Claimant was an individual, for the reasons given above, that was seen by the Respondent to be having a seriously disruptive influence on the sales team and an individual with very short service. The handbook did not envisage a disciplinary process being followed for an employee with short service. The plan was therefore to bring things to a head as quickly as possible (whilst ensuring cover was there over the weekend), without following a formal procedure such as a formal investigation. This plan of how to proceed was in place before the Claimant did a protected act in the course of the meeting itself and there the protected act cannot have been a material influence on the Respondent adopting the process that the Respondent did prior to the protected act being made.

5.16 The Claimant made his protected act during the course of the meeting itself. In our judgement, the fact that the Claimant did so did not have a material influence on the Respondent continuing to consider the Claimant’s further employment without further investigation of the Claimant’s conduct/performance of the alleged misconduct of the sales team. This is because the decision had already been made that the Claimant should be dismissed for the reasons already given. The only qualification to that was if the Claimant showed such contrition, commitment and/or mitigation that JW was persuaded otherwise. But how the Claimant conducted himself during the course of the meeting did not meet that qualification, and merely reinforced the concerns that JW already held. For example, the Claimant was continuing to say he would not always use offer sheets, he was accepting his lack of respect for CS and NR’s authority and did not see that as problematic. The Claimant was not displaying any acceptance or contrition or willingness to change. JW did not see the need for further investigation of the Claimant in those circumstances; JW thought he had all the information he needed in regard to the Claimant. The Claimant’s protected act in raising allegations about the sales team using homophobic and sexist language etc was not a material influence in JW acting in this manner. JW, in terms of his conscious or sub conscious reasoning, did not see it at the time as explaining or mitigating the concerns there were about the Claimant’s conduct and performance which were far more wide reaching than the Claimant not gelling with the sales team. JW said words to that effect in cross examination. JW saw what the Claimant was raising about the conduct of the sales team that the Claimant was saying he had recorded, as being a separate matter that would be investigated separately. The intention to take that course of action pre-dated the actual making of the protected act because JW had already sought some advice about the recordings and there was a pre-existing reluctance to listen to them because of data protection concerns, and an intent to ask the Claimant to instead set it out in writing and deal with it separately. That intention did not change once the Claimant actually made his protected act. There was no reluctance to engage with or investigate the matters the Claimant was raising in his protected act. JW expressed a willingness to investigate separately and continued to do so. This is not a case, for example, where there has been an attempt to silence or bury what the Claimant was raising or seeking to raise in his protected act through dismissal or through a lack of investigation. Hence, the Claimant’s protected act was not in our judgement a material influence on the Respondent’s actions in following the process that they did.

5.17 Likewise we do not consider that the Respondent followed the process that it did in anticipation of a likely protected act being made in the future. As already stated, until the Claimant actually made his protected act the Respondent did not anticipate one and it therefore cannot have been a material influence. Once it was made and the Respondent had an indication of what the recordings may show, as already stated we do not consider that this had a material bearing on how the Respondent proceeded. JW always expressed a willingness to investigate. This complaint of victimisation is not well founded and is dismissed.

5.18 The next complaint of victimisation is the decision to dismiss. This happened and it was a detriment from the Claimant’s perspective. We do not, however, find that it was done because the Claimant did a protected act (in the sense of being a material influence). The reasons for and the decision itself had in reality been made on the Friday before, as summarised above. This was before the Claimant made his protected act. The decision was reinforced and supplemented by it coming to light on the Sunday that the Claimant had been recording his colleagues. On the Monday morning there remained the intention to dismiss, again before the Claimant made his protected act. The only qualification to this had been that there had always been, and remained, an intention to speak with the Claimant and that there remained the possibility of JW deciding to take an alternative course of action if the Claimant show contrition, and an intent to change his ways and if JW could see an alternative pathway ahead. That was considered very unlikely on the Friday, with the expectation that the Claimant would be dismissed and with JW having the pre-existing authority to do so. Hence why the execution of the plan was moved to the Monday so that the Claimant could provide cover over the weekend before the anticipated dismissal. That there would not be a dismissal became even more unlikely by the Monday morning, before the meeting with the Claimant, because of the act of the recording coming to light and the loss of trust between the Claimant and the sales team. The reality of the situation was therefore very much that the decision to dismiss and the reasons behind it had already happened. There was a willingness to talk it through with the Claimant but the prospect of the Claimant saying something that would persuade JW was unlikely in the very extreme. This can be seen by the words that CS greeted the Claimant with on the Monday morning, and also the fact that SM already knew the Claimant was going to be dismissed. This decision making was all before the Claimant did his protected act and therefore cannot have been a material influence upon it.

5.19 During the course of the meeting itself the Claimant then made his protected act. We do not find that this was a material influence on JW’s decision to proceed with the decision to dismiss. As already stated, the Claimant had not acted in a way that met JW’s qualification or caveat. Instead JW saw the Claimant’s behaviour in the meeting as reinforcing the concerns that had already been held. That the Claimant made his protected act was not a material influence on JW’s reasoning. JW saw the complaints that the Claimant wanted to raise about his sales colleagues and the recordings as being something that would be investigated separately. They were not a reason for JW deciding to proceed how he did. Again, as already set out above, it is not the case, for example, in our judgement, that JW was seeking to bury the Claimant’s allegations about the conduct of the sales team. JW was always willing to investigate it but wanted the Claimant to send through the information in writing because of data protection concerns and so that a formal process could be followed. We therefore do not find that the protect act was a material influence on JW proceeding to ultimately dismiss the Claimant.

5.20 Likewise, we do not find that the decision to dismiss was because the Respondent believed the Claimant might do a protected act. There was, in our judgement, no anticipation the Claimant would do a protected act prior to the meeting itself when it happened. Likewise that the recordings might evidence what the Claimant said in his protected act was not a material influence on the decision to dismiss. JW was always prepared to investigate the Claimant’s complaints and the recordings if the Claimant had actually provided the material in writing as requested. Indeed, JW attempted an investigation without the material but it was hampered by its absence and the sales teams denial of discriminatory conduct, without the content to counter that. Once the Respondent had the material the sales team were then disciplined. This complaint of victimisation is not well founded and is dismissed.

5.21 The final complaint of victimisation is that the Claimant failed to give the Claimant notice of dismissal or payment in lieu of notice. Here JW’s belief was that the Claimant could be summarily dismissed. JW went in to the meeting with the discretion to offer the Claimant a payment in lieu of notice depending on what the Claimant said. The meeting did not unfold well, with the Claimant not acknowledging that he was in any way in the wrong, or that he was prepared to change, with showing a lack of respect for managers, and with JW feeling that the Claimant was becoming aggressive in tone and body language. Nothing therefore happened that made JW inclined to exercise that discretion to pay some notice pay. JW’s decision was not materially influenced by the Claimant’s protected act or any anticipated future protected act. JW was always prepared to investigate the complaint the Claimant was seeking to raise about his colleagues. This complaint of victimisation is not well founded and is dismissed.

5.22 We would add that if we assessed what we have addressed above in the victimisation complaints as being protected disclosure detriment/dismissal complaints as well, the reality would be that the same ultimate conclusion would be the same. The earlier alleged protected disclosures would be unlikely to qualify as actually being protected disclosures. But even if there was one or more protected disclosure the complaints would fail because the analysis also involves the same test of causation in the sense of looking at the “reason why.” (Indeed the protected disclosure dismissal complaint would be even harder for the Claimant to succeed in because the protected disclosure(s) must be the principal reason for dismissal as opposed to the lesser test of being a material influence). The Claimant would not succeed in the protected disclosure detriment/dismissal complaints in any event. Equality Act Harassment complaints

5.23 We turn therefore to the harassment complaints.

5.24 The Respondent argues that the Claimant is an unreasonable and vexatious litigant. They refer to the fact that the Claimant in the course of proceedings made allegations of fraud, falsification of documents and breach of regulatory against the Respondent based on the slenderest of evidence and speculation, because the word “unknown” features on some car sales documents where the Claimant says his name should have been there. The Respondent argues that the Claimant was evasive and disingenuous in cross examination, taking needlessly semantic points or giving deflective answers. It is said the Claimant oppressively questioned and exaggerated trivial and meaningless evidential points when cross examining the Respondent’s witnesses.

5.25 The Respondent submits that the conduct that the Claimant complains about was not unwanted conduct. It is said that there is no evidence on the audio recordings of the Claimant ever objecting and no evidence in the Claimant’s accounts or in the contemporaneous evidence of him objecting at the time other than to objecting to some profanity. It is said that the Claimant is a very forthright, confident and headstrong individual who would not shy away from conflict and if he truly was offended would have complained and challenged the language at the time or formally escalated it rather than expressing to CS some discomfort with profanities. It is likewise said that this shows that the conduct did not have the proscribed effect on the Claimant, and that all the Claimant was objecting to was profanity. It is said the conduct was not unwanted, did not have the proscribed effect and it was not reasonable for it to have that effect in the particular context in question.

5.26 The Respondent argues that the context of the work environment is also important and that the language was being used in a small space amongst an established team who were comfortable and relaxed in each other’s company. It is submitted that there is an earthy coarseness to their humour and banter. It is not in a customer facing area. It is said it is relevant that the language was kept within the group and was not directed at the claimant or anyone connected to him. It is said there was no intent to offend or cause hurt and it is at a times a coarse and unrefined attempt at banter between friends. The Respondent says it should have been clear to the Claimant that no offence was intended. It is said that it is in not pejorative language referring to any protected group generally, nor making any generalised sex, racial or homophobic prejudice. It is said that most of the language is adjective i.e. used as an exaggerated descriptive such as “fucking awesome,” and that the Claimant is objecting to profanity per se, which does not qualify as section 26 harassment. The Respondent argues that the Claimant is a very experienced worldly man in his fifties and there is evidence of hypersensitivity on his part such as suggesting NR did not like him because he drank earl grey in his own cup and saucer. It is said that the pool table discussion was in reality an apocryphal tale of outrageous behaviour which attracted corresponding critical behaviour of her and was denigrating or objectifying women generally. It is said it was a conversation within the group that included a female, EF, and no one else of the six others were seemingly offended. It is accepted that some of the language is ripe, but it is again said there is no evidence of the Claimant objecting to it, and that the Claimant had referred in cross examination to shutting it out. It is argued that the comments relating to EF are taken humorously by her. It is submitted that it is not clear what, if any, of the comments, the Claimant actually heard at the time as opposed to only hearing when reviewing the recordings. For example, in relation to the video, the Claimant had said in evidence he did not know what it was shown on as he was minding his own business and was behind a screen. In relation to the video it is argued that it was a silly attempt to voice over a video and was not seen, or probably heard by the Claimant and a lot of the phrases relied on in the List of Issues are cryptic. It is said the Claimant did not seem to understand their discriminatory context. It is said it is evidently a ridiculous parody within a known group with a shared humour that the Claimant did not even hear at the time. It is said that AS’s use of words such as “cock” where just examples of venting and frustration between friends.

5.27 The Respondent points to the Claimant’s correspondence saying he wanted compensation or else would spread the negative allegations far and wide. It is said that this is a form of blackmail and not demonstrative of a higher motivation. It is said it shows a manipulative mind with an agenda. It is said that the Claimant raised a grievance in relation to the same experience of language within the sales team at his next employer and for which compensation is a factor. It is suggested the Claimant was not genuinely offended but may have instead had a grudge against NR and relishes an argument. It is argued that following Ibimidun any suggestion of discrimination made after dismissal was in fact with a view to harassing the Respondent into offering a settlement. It is said that the Claimant raised allegations of discriminatory language at the dismissal meeting as a “first blow” at the start of the meeting.

5.28 Taking allegation 7.1.1.1 in the List of Issues first, as a matter of fact RM and IR did refer to being “sucked off.” We clarified with the Claimant in closing submissions which allegations were said to be related to which protected characteristic, or whether the allegations were said to be complaints about conduct of a sexual nature. The Claimant said about this allegation was conduct of a sexual nature.

5.29 We accept that it was conduct of a sexual nature. It referred to oral sex. We gave due consideration to the arguments raised by the Respondent, summarised above. However, we concluded that these comments by RM and IR (and the others dealt with below) did amount to unwanted conduct from the Claimant’s perspective. Whilst we accept that before the recorded conversations the Claimant had, on our findings of fact, only previously complained about profanities and noise; his general concerns had led to him seeking legal advice. That legal advice must have covered the language he was being exposed to at the Respondent’s workplace because it led to the Claimant deciding to take the recordings. (To be clear that does not mean we have found the Claimant was directly advised to covertly record his colleagues). The Claimant spoke to CS about the language in the hub. The Claimant took legal advice, in part, about it. In our judgement it was a genuinely held concern by the Claimant. The Claimant did not like the language that was being used by his colleagues. He found it offensive and unprofessional.

5.30 We also consider it likely that the Claimant was generally aware at the time it was happening of the language that was being used around him that he captured on his recordings. There were parts when the Claimant was himself on the telephone and he may have been trying to otherwise shut it out and get on with his work, and he was behind a screen but we accept that his ultimate evidence that he did hear it in the background at the time and was offended by it. It is the type of language that would be hard to wholly ignore. The Claimant chose to start the recordings so he must have been aware of the general language. Whilst we accept he was gathering the recordings as evidence to prove their content (as he himself accepts) we find that this did come from a place of being offended by their content, considering it unprofessional, and therefore wanting to be able to prove it was happening. We do not find that the Claimant entered the dismissal meeting seeking to head it off or get in the “first blow” by raising a complaint about matters that he did not genuinely feel offended about. He was concerned about the language the hub and decided to record it. His actions had been exposed the day before. The Claimant was expecting a discussion about it and in that context he went in wanting to make his complaint. Whereas the Respondent was coming to the meeting with an entirely different intention that the Claimant did not know about in advance. The parties were seeking to pursue two different “agendas” but that, in our judgement, does not mean that the Claimant was being manipulative or calculating or that he was not genuinely disturbed by what he had heard individuals in the sales team say.

5.31 We also do not find that the Claimant is a vexatious litigant. We consider that the litigation comes from a place of the Claimant genuinely feeling offended by the language being used in the sales team and because from his perspective he considers his dismissal unjustified. The Claimant has always had the personal subjective perspective that the Respondent thought that the language and conversations caught on the recording was acceptable. That is not the case, as shown from JW and RH’s evidence and the fact disciplinary proceedings were ultimately pursued against the sales team. But the Claimant did not know the latter until the course of the tribunal hearing itself. The Claimant also does not see himself in the same way that others at the Respondent perceived him, hence his very different perspective on things. But that is not unusual in employment tribunal litigation. The Claimant did make allegations of fraud and procedural irregularity which from our perspective had no real bearing on the case, not being the protected disclosures relied upon and the allegations did appear to be based on speculation and the perspective the Claimant now has that sees everything about the Respondent in a bad light. But it is not unusual for a litigant in person to behave that way. It is often the case, particularly in a conduct related dismissal, that a claimant will see themselves as being under attack and the response becomes one of a counter attack. Similarly, the Respondent’s counsel did not hold back in his cross examination of the Claimant. That is not a criticism as it is necessary in a case like this. But it is then not surprising when a litigant in person is then robust, in their own way when not a lawyer, when cross examining the Respondent’s witnesses.

5.32 The Claimant was pedantic in answering questions and in his own cross examination. He did come across as very confident in his own abilities and with the capacity to come across as condescending. In part that is why we reached the decisions that we have in relation to the whistleblowing and victimisation complaints. But we do not consider that makes the Claimant a vexatious litigant but instead it is just part of his inherent personality type and style. As such he cannot see that it could rub other people up the wrong way. The Claimant also has a very rigid, regimented subjective sense of right and wrong and what a process should be. He then struggles with deviation from that. Hence his insistence at the disciplinary hearing and the tribunal that the recordings should be played, or the fact that he went into the appeal hearing with the belief that he would be allowed to read out his pre-prepared statement to the extent that when EH wanted to take a different course, the Claimant ended up not handing it over at all. We do not consider that the Claimant was actually trying to be awkward rather than not being able to cope with a change to how he considered something should happen, and then reacting in a way that was to his own detriment. But to someone else, such as the Respondent trying to line manage the Claimant, we could see that he could come across as being deliberately awkward and obstructive. It could lead to the Claimant refusing to follow an instruction or process if he did not consider it appropriate. It could lead to the Claimant very directly telling people what he thought of them or others or processes. But we see it as being part of the Claimant’s inherent self as opposed to him acting vexatiously.

5.33 The Claimant’s conduct in contacting the customer after dismissal did trouble us. But it did not ultimately lead us to conclude that he is a vexatious litigant, as opposed to, in this scenario, following his own misplaced moral code. We did also give due consideration to the fact the Claimant seemingly has a similar complaint against his subsequent employer in the car sales trade. But this is an individual who had worked for himself for very many years before returning, for whatever personal reasons the Claimant has, to be an employee in car sales. We do not know what happened at the next employer. We cannot in those circumstances say that the Claimant is pursing litigation just to secure compensation rather than being actually offended by the conduct that he complains about. The language at this Respondent did happen; it is shown on the recordings. It is therefore entirely possible that the Claimant could be genuinely offended by language at two different car sales businesses. Moreover, given how the Claimant was perceived by the Respondent’s employees and his relationship breakdowns with them it is again entirely possible that something similar could play out at his next employer. We did also take account of the correspondence that the Claimant sent to the Respondent threatening them with various consequences if he was not adequately compensated. From an objective view it is distasteful. But in the heat of the moment, following a dismissal that the recipient feels is entirely unjustified, it is not unusual conduct for a litigant and sometimes employers need to have broad shoulders. Employers also often seek to bargain an agreed outcome with litigants.

5.34 RM and IR’s comments about being sucked off were therefore comments of a sexual nature and we are satisfied it was unwanted conduct from the Claimant’s perspective. We do not find that the comments had the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading or offensive environment for him. The comments were not targeted at him at all or anyone associated with him. The Claimant was not involved in the conversation itself. We do, however, find that the conduct had the effect of violating the Claimant’s dignity and creating an offensive environment for him. Whilst the comments were not directed at the Claimant and he was not a participant in the conversation, he was sat there in the hub as part of that sales team. Those involved in the conversations decided to have them in the full knowledge that the Claimant may overhear. That someone who hears it may take offence to it is the risk you take by choosing to have that kind of conversation in open earshot in a workplace. The Claimant. as an employee, was entitled not to want to be exposed to language in the workplace such as conversations about being “sucked off”, even if it was being said as a joke or a houmous exchange (from their perspective) between colleagues in his earshot. That those involved in the conversation were having a humorous exchange does not mean that it was not unwanted conduct from the Claimant’s perspective or that he did not find it to be an offensive environment, or that it was unreasonable for him to take offence. In this kind of context an employee is entitled to consider such language to be offensive, inappropriate and unprofessional, even if others involved in it do not.

5.35 The Respondent argues that the Claimant cannot have been offended because he did not object. But he had spoken to CS about his discomfort with profanities. He did also say in evidence that he had once said to AS that AS’ mother would be ashamed about AS’ language, and we accept that the Claimant in all likelihood did say that to AS. But in our judgement, it was part of the Claimant’s personality style that he did not consider it was up to him to challenge the group as a whole. If you took at the totality of the Claimant’s conduct in the workplace, and the things that others complained about, they were all very individual interactions the Claimant had had, not group interactions. Indeed that is one reason why he was seen as divisive. The Claimant saw management of the group as being a management responsibility falling on to CS. The Claimant had a very strong sense of what was management responsibilities for NR and CS, hence the pinch points between them. In our judgement, it is in that context that the Claimant was not challenging the language, rather than him not actually being offended by it.

5.36 We therefore do find that IR and RM’s comments about being sucked off was unwanted conduct for the Claimant, it was conduct of a sexual nature, and it did have the effect of violating the Claimant’s dignity or creating an offensive environment for him. It was reasonable for the conduct to have that effect. That harassment complaint is upheld.

5.37 Next in the List of Issues is an allegation that IR and RM referred to losing their virginity which the Claimant says was unwanted conduct of a sexual nature. We were unable to find the comments on the transcripts/recordings. As such we were unable to find as a matter of fact that they were said. This particular complaint of harassment is therefore not well founded and is dismissed.

5.38 Next we take a group of complaints that all relate to the pool table tale and CD. Paragraph 7.1.1.3 refers to IR referring to having sex on a pool table and also using the phrase “she’s a bit rough around the edges.” Part of 7.1.1.4 refers to NR using the phrase “bit of a slag, was she” and “she the local ride in the area.” Parr of 7.1.1.5 alleges that RM referred to masturbation. Part of 7.1.1.6 relates to AS using the phrase “I wouldn’t fuck her with your dick.” These were all references to the pool table story and CD. This is a conversation and they are comments that did happen as a matter of fact. The Claimant said this was unwanted conduct of a sexual nature. We agree that it was conduct of a sexual nature as it related to sexual activity and comments about, and reactions to, CD’s participation in it. Whether the tale was actually true or not we do not know, and we do not see would actually affect the analysis. But certainly, IR was recounting it as being a shocking but true story, hence NR’s questions about CD. Again, we accept that it was not a conversation that was directed at the Claimant, he did not participate in it and those that did participate in it do not appear to be offended (including EF) and were having from their own subjective perspectives humorous exchanges about it. But in our judgement the Claimant was genuinely offended by it, the subject matter of the tale itself, the language used and the comments made about CD. The comments made about CD were a reaction to the shocking nature of the tale and may not have been objectifying women in general. But in our judgement, that makes no difference. The Claimant was offended and was reasonably entitled to be so. He was entitled not to want to hear such tales and language in a workplace. The conduct did not have the proscribed purpose as it was not said to offend the Claimant but it did have that effect. It had the effect of violating his dignity and creating an offensive environment for him and it was reasonable for the conduct to have that effect. These complaints of harassment are upheld.

5.39 Paragraph 7.1.1.4 refers to NR saying “She said I’d rather give the blow job” and “dry up like a prune.” Part of paragraph 7.1.1.5 refers to RM referring to “blow job.” Part of paragraph 7.1.1.6 refers to AS using the phrase “wet and then dry like the Mojave desert.” These comments or words to their effect were said as a matter of fact. As we understand it they related to EF. The Respondent makes the point that they were treated humorously by her. The Claimant said in evidence that EF was as guilty as the rest of them, but that did not make it right. Again, we accept that these comments were of a sexual nature; they referred to sexual activity and organs. We also accept that it as conduct of an unwanted nature from the Claimant’s perspective. In our judgement, the fact that EF did not seem to take offense and treated it humorously does not mean that the Claimant was not himself offended, or entitled to be. We find that he was and that it was reasonable for him to be. He was entitled to not want to hear that type of language and conversation in the workplace. The conduct did not have the purpose of creating the proscribed consequences; it was not aimed at the Claimant. But it did have the effect of violating his dignity and creating an offensive environment for him and it was reasonable for the conduct to have that effect in the circumstances. These complaints of harassment are upheld.

5.40 Paragraph 7.1.1.7 in the List of Issues refers to AS playing the video which references the beating up of “gay boys”. “cobra cunts” and skinny cunts.” The Claimant said that this was conduct that related to sexual orientation and was also conduct of a sexual nature. The allegations are factually correct. We do not know, and the parties could not tell us, a specific meaning to “Cobra cunt.” The Respondent says that the clip was some kind of voice over and obviously a parody such that the Claimant should not have taken offence. Without having access to the video clip itself we cannot conclude this or make any particular findings about the context of the clip. We find that the Claimant did overhear the content at the time and that he was genuinely offended by it. We accept that he was entitled to be and to take objection to that kind of video content being played in the workplace, even if it was played in humour, or that others involved in actively watching it saw it as humorous or indeed a parody (if it was). Without having access to the video clip itself or more information about it, its exact content is difficult to entirely discern. But we do accept that the expressions “Cobra cunts,” “skinny cunts” and “gay boys” are all part of a theme that relates to the beating up of “gay boys” and that it was conduct that relates to sexual orientation. Whether it is content that is of a sexual nature is more difficult to discern. Simple use of the word “cunt” does not necessarily make it so rather that it being used as an offensive swear word or used in the sense of being part of an offensive theme that relates to homophobic violence and slurs. There is some other language that could point towards being language of a sexual nature but without access to the video clip itself we are not satisfied that is sufficiently made out to us on the balance of probabilities and nor could the Claimant explain that to us, so it is difficult to see how he would reasonably have seen it as being conduct of a sexual nature at the time, other than the simple use of profanities. In our judgement, simple use of the word “cunt” does not necessarily make the use of the word as being conduct of a sexual nature. It is a profanity and many people are offended by the use of the word; but it is a word that is used by some as an insult, or a swear word, in a descriptor, in the same way people use “fuck” or “dick”; context is therefore important. We therefore conclude on balance that it was conduct that related to sexual orientation but not that it was conduct of a sexual nature. It was unwanted conduct from the Claimant’s perspective. It did not have the purpose of creating the proscribed consequences, but it did have the effect of violating the Claimant’s dignity or creating an offensive environment for him and it was reasonable for the Claimant to perceive it that way. The complaints are upheld on that basis. 5.42 Paragraph 7.1.1.8 in the List of Issues refers to AS using the phrase “he’s just being a cock.” The Claimant asserts that this was conduct of a sexual nature. We do not find it was. Set within context AS was venting about a customer and was using the word “cock” as a swear word and a descriptor to express his frustration with the customer’s behaviour. It was not being used in a sexual sense but as a profanity and a descriptor. Again, the Claimant was entitled to not like the use of such language but that is not the test under the Equality Act. This complaint therefore does not succeed. 5.43 Paragraph 7.1.2 of the List of Issues alleges that AS used the phrase “yeah they fucking ripped my arse out over that” and “look at this fucking helmet.” The Claimant says this was unwanted conduct of a sexual nature. AS did say “they fucking ripped my arse out over that” but set within context he was referring to being rebuked for something in work, and venting about that to colleagues. Again, AS was using a swear word, but he was using it in a descriptive sense, he was not actually referring to any sexual behaviour. The complaint is therefore not well founded and is dismissed. AS also says “Who is this fucking Helmut, and why has he parked the fucking car there.” Again, within context AS is venting about the way in which a customer has parked and is using the expression helmet as a descriptor and a swear word and not in a sexual sense. We do not find, in context, that it was conduct that was a sexual nature and that complaint is not well founded. 5.44 The complaints of harassment that are therefore upheld are 7.1.1.1, 7.1.1.3, 7.1.1.4., 7.1.1.5, 7.1.1.6. and 7.1.1.7 in the List of Issues. Wrongful Dismissal - Notice Pay claim 5.45 The Respondent’s contractual employee handbook states that the right to notice only applies after 1 year of employment. However, at the point that the Claimant had not been dismissed he had not been given this and there had been no express (whether oral or in writing) agreement as to a notice period. The Respondent in summarily dismissing the Claimant was therefore not acting in breach of any express contractual term. 5.46 There can of course be an implied term as to notice. Section 86 of the Employment Rights Act requires a minimum period of notice be implied into all employment contracts. However, it only applies to a person who has been continuously employed for one month or more and the Claimant had not. The provision therefore does not assist him. The common law can also provide that reasonable notice be given where there is no express notice period, which could potentially be a longer period than the statutory minimum. However, no particular evidence or argument was put before us about this and given the Claimant’s short service, that he fell outside of the statutory protection, and the content of the Respondent’s handbook that would set out their standard terms for employees, we are unable to conclude any period of time that would be said to amount to a reasonable period in the circumstances. The complaint of wrongful dismissal is therefore not well founded and does not succeed. 6. Conclusion and next steps

6.1 In conclusion the complaints of harassment that are therefore upheld are 7.1.1.1, 7.1.1.3, 7.1.1.4., 7.1.1.5, 7.1.1.6. and 7.1.1.7 in the List of Issues. The other complaints (including those that relate to the Claimant’s dismissal) do not succeed.

6.2 We have made no decision on whether either party were in breach of the Acas Code and if so whether there should be any uplift or reduction and if so in what amount and it will be addressed at the remedy hearing along with other remedy related questions.

6.3 A remedy hearing will be listed and directions set out separately. However, in view of the complaints that have been upheld and those that have been dismissed the parties are encouraged to see if they can resolve the issue of remedy between them, with the assistance of Acas if required. Approved by

[1]The Claimant is awarded £3000 (three thousand pounds) for injury to feelings;

[2]The Claimant is awarded £429.57 interest on injury to feelings;

[3]The claim for an uplift for alleged breach of the Acas Code is refused; The total award is £3429.57 Approved by: