Mr I Polonski v Cordant Recruitment Ltd T/a PMP Recruitment: 1800617/2021
EMPLOYMENT TRIBUNALS
Case No 1800617/2021
Between
Mr I PolonskiClaimantCordant Recruitment Ltd T/a PMP RecruitmentRespondent
Before
Employment Judge O’NeillIn person for claimantDate 7 July 2022
JUDGMENT
[1]It is agreed that the Respondents name is Cordant Recruitment Ltd T/a PMP Recruitment and the Tribunal record is amended.[2]The application for interim relief is refused.
REASONS
Claims
[1]The Claimant has brought claims including unfair dismissal for having made a protected disclosure. There are also other complaints which appear to relate to disability and nationality and unfair dismissal.[2]The matter before the Tribunal today is an interim relief application relating to the protected disclosure unfair dismissal claim and no other matter. Case Number: 1800617/2021 2
Evidence
[3]The documents before the Tribunal included: the ET1 and correspondence with the Tribunal, pay slips, texts to Mr Kemptser, a statement from Mr Kempster the ATS Operations Manager for the Respondent, the Claimant’s written contract of employment and texts from Mr Kempster to the Claimant dated 26 and 27 January 2021 and 2 February 2021.[4]The claimant (through the interpreter) and Mr Kempster answered questions at
the hearing.
[5]The claimant is a Russian speaker and the tribunal was greatly assisted by the interpreter Svetlana Cuessar. Law and Issues[6]Under ERA 1996 ss 128(1)(a) and 129(1)(a) and 130 Interim relief may be granted to restore an employee to their employment pending a final determination of their claim for (among other things) unfair dismissal for whistleblowing under ERA 1996 s 103A provided the application is made within 7 days of dismissal.[7]The employee may be restored to employment by means of reinstatement or reengagement on comparable terms or a continuation of contract order[8]The Tribunal must assess the strength of the case and decide whether the Claimant has a pretty good chance of succeeding. (Taplin v C Shippam Ltd [1978] IRLR 450). Pretty good chance is a significantly higher degree of likelihood than more likely than not. (Ministry of Justice v Sarfraz [2011] IRLR 562).[9]Does the Claimant have a pretty good chance of showing that he made one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996 as summarised below? a) What did the claimant say or write? When and to whom b) Does the Claimant have a pretty good chance of showing that this constitutes information in relation to a matter in d below c) Does the Claimant have a pretty good chance of showing that he believed the disclosure of information was made in the public interest? And it was a reasonable belief. d) Does the Claimant have a pretty good chance of showing that he believed it tended to show one or more of the following and that his belief was reasonablea. a criminal offence had been, was being or was likely to be committed;b. a person had failed, was failing or was likely to fail to comply with any legal obligation;c. a miscarriage of justice had occurred, was occurring or was likely to occur;d. the health or safety of any individual had been, was being or was likely to be endangered; Case Number: 1800617/2021 3e. the environment had been, was being or was likely to be damaged;f. information tending to show any of these things had been, was being or was likely to be deliberately concealed.(a cover up) e) Does the Claimant have a pretty good chance of showing that he made the disclosure to his employer or a designated person in sections 43C, 43D, 43E, 43F, 43G, or 43H of ERA 1996. f) Does the Claimant have a pretty good chance of showing that the dismissal (if there was one) was due to the disclosure.
Discussion
[10]The claimant agrees that he is the employee of the respondent and works under an express contract of employment. A copy of which is before the tribunal and is dated 17 September 2020.[11]The claimant agrees that the respondent’s business is to recruit and supply workers to large national companies on an agency basis. Amazon is one such, company and the claimant was supplied to Amazon to work at its distribution warehouse at Pontefract Lane, Leeds.[12]The claimant agrees that under the contract of employment the respondent promises to provide not less than 336 hours of work in any year. Mr Kempster for the respondent company says that the claimant has had over 465 hours of work and been offered over 600 hours. The Claimant agrees this is his contract and that is what it says and he has worked those hours.[13]The claimant says he began his employment on 1 October 2020 but his employment ended on 21 January 2021. The contract says the employment begins on the first day of the assignment as shown on the first payslip. The payslip with payday 16th of October 2024 pay period 28/2020 (which is the earliest payslip before me) gives a commencement date of 28th of September 2020.[14]Mr Kempster explains that client demand may vary and there are peaks and troughs and for a company like Amazon a peak is the pre-Christmas period. The claimant was one of a number of employees taken on to cover the buildup to Christmas. After Christmas the parties agree that Amazon reduced the headcount by 160 people. The Claimant accepts the numbers released from Amazon.[15]Mr Kempster says that there was an objective formula in determining who should be taken out of the Amazon site based on data relating to performance and attendance. According to Mr Kempster the claimant was selected because of his attendance levels. Case Number: 1800617/2021 4[16]In a text to the claimant dated 26 January 2021. Mr Kempster explained to the Claimant that the respondent’s records appear to show that the claimant had been scheduled to work 610 hours since his employment began at Amazon, but had completed only 450 hours because of sickness and other time the claimant had chosen to take off. Because of this level of attendance Mr Kempster says the claimant was issued with a ‘record of concern’ which is in effect a warning. The Claimant agrees that he had had issues and that he had taken time off but he felt he had been treated unfairly regarding the absences and does not accept that he was selected fairly.[17]The claimant felt abandoned by the respondent has having been removed from the assignment on 21 January 2021 . He could not obtain replies to his texts over the weekend of of 22nd 23rd and 25th of January, save that there was one reply to the effect that the manager was away on holiday until the following week. The claimant’s emails came to the attention of Mr Kempster, who replied to the claimant by email on the 26th and 27th of January 2021. In his email, Mr Kempster says ‘I have reviewed a few pieces on this and want to clarify just a few points, this is the end of assignment from Amazon LBA8 and is driven by the reduction in volume, which in turn means a reduction in the requested headcount for PMP recruitment, your employment is still active with PMP recruitment and you can seek alternative assignments via our website (www.PMPrecruitment.co.UK)….. You can reapply Amazon assignment after serving eight week gap in service….’[18]Mr Kempster says that the claimant is still employed by the respondent as confirmed in his email to the claimant of 26 January and he encouraged the claimant to use the respondent company website to seek another position and assured him that there were vacancies within a 20 mile radius. Mr Kempster did not rule out the claimant returning to Amazon if that company increased its demand for workers through the respondent. The Claimant does not accept that there were jobs within 20 miles.[19]The claimant accepts that he has received these emails from Mr Kempster and has been given no letter of dismissal and no P45.[20]The claimant has had difficulty in giving details of the disclosures he relies upon and was unable to recall when and to whom he made his verbal disclosures. He says that he made disclosures on numerous unspecified dates in December to persons unknown.[21]After some prompting from me the claimant gave some examples which he agreed could be summarised as follows: a) The claimant told the respondent that loading the lorries was heavy work and he had a pain in his stomach b) he complained to the respondent that he had been unfairly accused of five unauthorised absences which were due to illness and isolation pending a covid test or following an NHS notice Case Number: 1800617/2021 5 c) he complained to the respondent that he had been required to work to backto- back shifts of six days, i.e., for 12 days in a row without a break, which he asserted was unlawful[22]The claimant agrees that these complaints were never put in writing.[23]The claimant also agrees that these were all complaints relating to his own contract and were about his own concerns in the workplace and how he was being treated.[24]Mr Kempster told the tribunal that he was unaware that the claimant had made any such complaints.
Conclusions
[25]The claimant has failed to show on the balance of probability that he has a pretty good chance of succeeding at the final hearing in his claim for unfair dismissal under section 103 A ie for having made a public interest disclosure (otherwise known as whistleblowing).[26]The claimant has failed to show on the balance of probability that he has a pretty good chance of succeeding at the final hearing in showing that he was dismissed at all.[27]The written contract of employment document shows the respondent to be the employer, that they have an obligation to provide a yearly minimum number of hours which they have fulfilled, it provides for assignments with a particular client to be ended and places no specific obligation on the respondent to find other work within any specific period or location when such an assignment comes to an end.[28]The claimant was not singled out but was one of 160 people who were taken off the Amazon assignment after Christmas. Mr Kempster told the tribunal that facilities were set up on the site for all staff affected to obtain information about other vacancies.[29]Mr Kempster’s emails to the claimant tend to show on an ordinary reading of the text, and the tribunal at the final hearing may well find, that the respondent regarded the claimant as continuing in their employment and that other work was available through the PMP website and return to Amazon could not be ruled out, if demand from Amazon increased.[30]The claimant was told on 19 January 2021 that his assignment was ending on 21 January 2021. I am told he was given no less notice than the rest of the cohort and that the contract provides for only two days’ notice. The claimant was understandably worried having lost his position with Amazon and having no alternative employment lined up. He felt abandoned when no one from the respondent company replied immediately to the texts he sent on Friday 22, Saturday 23 and 25 January 2021 (except to tell him that the manager was on Case Number: 1800617/2021 6 leave and would be back next week). However, Mr Kempster replied by emails of the 26 and 27 of January 2021, which are likely to be found to have been sent in a reasonable period of time and to be reassuring as to the Claimant’s continued employment position and job options and that there has been no dismissal.[31]The claimant has failed to show on the balance of probability that he has a pretty good chance of succeeding at the final hearing in showing that he made a qualifying disclosure (i.e. a disclosure about a matter listed in S43B) which was in the public interest. The claimant agrees that the matters he relies on as a disclosure relate to his own contract and personal interest and his treatment in the workplace. A tribunal at the final hearing is in my view unlikely to find that the claimant has shown a disclosure made in the public interest, save for the possible matter of the respondent’s alleged policy relating to Covid isolation which the claimant alleges is contrary to public policy.[32]Even if the claimant could show that he made a qualifying disclosure in the public interest the claimant has failed to show on the balance of probability that he has a pretty good chance of succeeding at the final hearing in showing that his assignment at Amazon was brought to an end or that he has been otherwise dismissed because of such a disclosure. He was but one of 160 people released from the assignment in January 2021 and according to Mr Kempster those 160 were selected using an objective formula for selection criteria (although given the claimant’s objections I make no finding as to whether the formula was objective and/or properly applied, and leave that to the tribunal hearing the case). Mr Kempster denies being aware of any disclosure, the claimant accepts that there had been issues concerning his attendance. Mr Kempster has from the outset asserted that a selection criteria had been applied related to performance and attendance and in the circumstances on the material before me today, it looks likely that the claimant will be found to have been selected under a procedure based on that data.[33]In all the circumstances I refuse the application for interim relief and make no
Background
[34]We concluded that Mr Polonski did tell Harshal that he suffered from depression. We also concluded that Harshal was aware that Mr Polonski experienced difficulties in communicating in English when he was stressed. The key reasons for our conclusions are:34.1 Mr Cottrill stated that the supervisors did not need to escalate all matters to him. For example, he said that Mr Polonski’s email in November regarding his Covid-related absence should have been pass to administrative team, rather than to him;34.2 contrary to Mr Cottrill’s evidence, it is clear that the shift supervisors did not always raise matters with him relating to health concerns. For example, Mr Cottrill was not aware of Mr Polonski’s email of 11 January 2021, in which Mr Polonski complained of stomach pain and asked to change his working hours and duties; Case Number: 1800617/21 834.3 Mr Polonski’s evidence was that Harshal and the other shift supervisors were aware of his depression and dealt with it well on day to day basis. Mr Polonski said that it only became a particular problem when tried to discuss issues with management (because the stress of explaining those problems affected his ability to express himself in English). Mr Polonski’s complaints regarding his stomach pain[35]Mr Polonski emailed PMP’s general email address for the Leeds Site on 11 January 2021 to complain that he was suffering from stomach pain. Mr Polonski’s email stated: “Good afternoon my name is Igor Polonski (id:poloigor ). I want ask help please, second time I have absences abcens becouse I have second time pain in stomok ( stomok Muscles ), think current job issue. I very happy in my job on Amazon, and I want continue my job for future , please I want ask help to change my current job to the line scanning, happy to any hours shift.”[36]Mr Smith (a shift supervisor) responded to Mr Polonski’s email and arranged for him to work a reduced number of shifts.[37]Mr Polonski stated that he had previously raised concerns regarding his stomach pain with Harshal at the PMP management desk at the Leeds Site. He said that Harshal told him to ‘go home’. PMP denied that Mr Polonski had previously raised this with Harshal and they said that:37.1 Mr Polonski was not required to lift any heavy weights on his own – the Leeds Site induction training stated that employees should not lift package weighing 15 kg or more;37.2 Mr Polonski had not sought assistance from the on site First Aid team;37.3 Harshal did not raise this issue with Mr Cottrill;37.4 PMP’s managers would not tell an employee to ‘go home’ – it would be the employee’s choice to leave site.[38]Mr Polonski said in response that his complaint was that he suffered from stomach pain due to the heavy workload during his shift, not because he was lifting heavy weights or following any accident.[39]We noted that paragraph 6.1.9 of PMP’s amended Grounds of Resistance said that Mr Polonski’s sickness absences during the Amazon Assignment related to Covid and a complaint of stomach problems. We considered the electronic records of Mr Polonski’s working hours during the Amazon Assignment (which were not disputed by either party) and noted that Mr Polonski’s absences on 24 November and 25 November were due to Covid issues (as set out in Mr Polonski’s email to Mr Mitchell Kempster at PMP on 24 November 2020).[40]Mr Polonski had three other absences:40.131 October 2020 – Mr Polonski left the Leeds Site at 20.20, 40 minutes before he was scheduled to leave work at 21:00. He was then on sick leave on 3 and 4 November 2020; Case Number: 1800617/21 940.2 on 10 December 2020 – Mr Polonski left the Leeds Site after 17 minutes and was recorded as “UK sick partial unpaid” for the rest of the day; and40.311 January 2021 (relating to his stomach pain, as set out in his email of the same date) – Mr Polonski left the site and was absent on sick leave for the rest of the day.[41]We concluded that it is likely that on 10 December 2020, Mr Polonski complained of suffering from stomach pain to the PMP management desk and he was told that he could go home early if he felt unwell. The reason why we concluded that Harshal did not tell Mr Polonski to ‘go home’ is because Mr Polonski’s email of 11 January 2021 does not refer to any manager or supervisor telling him to go home.[42]We also concluded that Mr Polonski’s complaints related solely to his own stomach pain and not to any difficulties affecting any other staff. Mr Polonski accepted in his oral evidence that he was the only person suffering from stomach pain. Mr Polonski stated that he told Harshal that other employees were ‘tired’ because of the heavy workload. However, we do not accept that Mr Polonski raised this with Harshal because he does not refer to this in his email of 11 January 2021. Mr Polonski’s complaints regarding his scheduled shifts for 1-11 December 2020[43]Amazon’s working week starts on a Sunday and finishes on a Saturday each week. Mr Polonski and PMP agreed that shifts for PMP employees working at the Leeds Site were normally allocated a couple of days before the start of the working week. Mr Polonski stated that shifts were normally allocated on the Thursday, Friday or Saturday for week commencing on the Sunday immediately following those days. Mr Cottrill stated that shifts are normally confirmed on the Friday for the week commencing on the Sunday immediately following, but that sometimes it would take until the Saturday to confirm shifts.[44]We note that Amazon operate an app called the “A to Z app” which all of Amazon’s employees and any PMP employees can load on to their mobile phones. The A to Z app is in a calendar format and shows:44.1 all shifts which the employee has already worked with the dates blocked out in a solid colour;44.2 all shifts which are provisionally scheduled and/or which have been confirmed with the dates blocked out in diagonal stripes. The A to Z app does not distinguish between shifts which are provisionally scheduled and shifts which have been confirmed; and44.3 any shift that an employee is currently working highlighted with a bold circle and a single diagonal stripe.[45]There is one key difference between the information on the A to Z app provided to permanent Amazon employees and PMP employees (who work at Amazon on temporary assignments). Permanent Amazon employees have a fixed shift pattern. Mr Polonski showed us the A to Z app on his mobile phone during the hearing and we saw that:45.1 he had worked on a fixed shift pattern during June 2022 and early July 2022; and Case Number: 1800617/21 1045.2 he was scheduled to continue working on that fixed shift pattern for the remainder of July 2022 and for August 2022.[46]By way of contrast, the screenshot of the A to Z app that Mr Polonski provided for the hearing file showed that as at Friday 4 December 2020 for the month of December:46.1 he had already worked on 1, 2 and 3 December 2020;46.2 he was currently working on 4 December 2020; and46.3 he was scheduled to work from 5-11 December 2020. However, as noted above, the app did not state whether Mr Polonski’s shifts from 5-11 December 2020 were shifts that were provisionally scheduled or shifts that were confirmed.[47]We accept Mr Cottrill’s evidence in relation to PMP employees that:47.1 PMP’s office-based administrator, based at the Leeds Site, is responsible for arranging shifts for PMP employees. This task is not undertaken by any PMP managers or shift supervisors;47.2 Amazon provide hours of work that they want PMP to use PMP employees to fulfil each Wednesday for the week starting on the following Sunday;47.3 PMP then provisionally schedules the shifts manually on Amazon’s My Time system – on this system the PMP administrator can only see the shifts scheduled for one week at a time;47.4 PMP then looks at a summary page on PMP’s own systems. This summary page will throw up red flags if the shifts that are provisionally scheduled would breach any Amazon working time policies; and47.5 the administrator would then manually delete any shifts that would otherwise breach those working time requirements.[48]We accept Mr Polonski’s evidence that:48.1 the shifts that were provisionally scheduled for him to work from 1-11 December 2022 meant that he was scheduled to work eleven shifts in a row. This was in breach of Amazon’s working time policies which stated that any member of staff (including PMP’s employees) must not work more than seven days in a row and/or more than 60 hours per week;48.2 he complained twice to the PMP desk managers about the number of shifts that he had been scheduled, but that no changes were made to his shifts. We concluded that he probably raised this with PMP on Wednesday 2nd and Thursday 3rd December 2020, because PMP did not provisionally schedule shifts until Wednesday;48.3 Mr Polonski raised his concerns with Rob and Anna (whose surnames are unknown but who were both Amazon Managers at the Leeds Site at that time) on Friday 4 December 2020. All three of them approach the PMP desk on that day and raised Mr Polonski’s concerns about the number of shifts that had been scheduled; and Case Number: 1800617/21 1148.4 Mr Polonski’s shifts for Sunday 6th and Monday 7th December 2020 were cancelled by PMP shortly after he spoke to the PMP desk on Friday 4th December 2020. As a result, Mr Polonski was no longer scheduled to work eleven shifts in a row.[49]However, we have concluded that the reason why Mr Polonski’s shifts for Sunday 6th and Monday 7th December 2020 were cancelled was not because he raised any concerns. We concluded that these were cancelled because PMP’s systems flagged that this would be a breach of Amazon’s working time policies.[50]We note that Mr Polonski would not have been aware of PMP’s normal practices when allocating shifts. This is because the A to Z app does not distinguish between shifts which have been provisionally scheduled by PMP and those that PMP have confirmed.[51]We also note that Mr Polonski accepted in his evidence that he was only complaining about the shifts that he had been scheduled to work, rather than those of any other employees. Removal of Mr Polonski from the Amazon Assignment[52]Amazon instructed PMP to remove a total of 385 of PMP’s employees from their assignments at Amazon between 7 January 2021 and 10 April 2021. The decisions regarding which PMP employees would be removed and in what order were taken by Amazon. We were provided with several emails in the hearing file from Luke Ellis (Workforce Staffing Manager at Amazon), instructing PMP to remove employees whose names were set out in the lists attached to the emails. Mr Polonski was number 98 out of 385 of those aggregated lists. We note that Mr Ellis was the Workforce Staffing Manager for the region and did not work from the Leeds Site on a day to day basis, although he did attend the Leeds Site from time to time.[53]Mr Ellis instructed PMP to hand the release letters to all employees working a shift that day, informing them that they would be removed from their assignments at Amazon. The email of 18 January 2021, which included Mr Polonski on the list of 90 employees to be released by 24 January 2021 stated: “The release list has been complied based the information below -• Comments from Managers• Absence and conduct warnings• Rankings• Overall behaviour onsite• Volume Overview Please be aware that these associates will be released by via a face to face with the PMP team. Associates will be handed their letter and thanked for the hard work they have done over the peak period. These associates will start to be informed today of their release and will be effectively offboarded in PS latest Sunday 24th January. Case Number: 1800617/21 12 @PMP-I cannot stress enough the importance of this process and getting it right the first time. Please make sure you provide myself with the release tracker (attached) everyday so I could update the relevant stakeholders. All letters are attached, if associates are not on shift, please call these associates and thank them for their time with LBA8. Associates are eligible for CBUS coding if they choose to leave straight away. Please ensure you provide a buffer to your EPT…”[54]The Tribunal Panel asked Mr Cottrill how Amazon decided which employees to remove at which point in time. We accept Mr Cottrill’s evidence that Amazon ranks employees using a system of ‘negative marking’:54.1 if an employee has a ‘clean record’ in terms of conduct, behaviour, safety and absence, they are ranked as an “A” employee;54.2 if an employee does not have a ‘clean record’, then they are ranked according to the number of concerns raised.[55]Mr Cottrill was not privy to the full detail of Amazon’s ranking system, however he was able to provide an overview in his oral evidence of the factors referred to in Mr Ellis’ emails attaching the lists of employees to be removed. These factors included:55.1 an employee’s conduct or behaviour;55.2 any comments received from Amazon’s Operations management;55.3 safety incidents;55.4 absences, including:55.4.1 sickness absence – he noted that on the fourth occasion of sickness absence, an employee is issued with a warning or ‘record of concern’; and55.4.2 unauthorised absence (including ‘no call/no show’ (i.e. where an employee does not turn up for work and does not call to explain why they have not attended work) and ‘late in/early out’ (i.e. when an employee is late starting their shift or finishes their shift early).[56]Mr Cottrill also clarified that the reference to ‘Volume’ in Mr Ellis’ email of 18 January 2021 was a reference to the volume of work that Amazon forecasted and that it was not related to any individual’s conduct, capability or performance.[57]Mr Smith emailed Mr Polonski on 19 January 2021, informing him that his Amazon Assignment would end. The email was marked ‘by hand’ and stated: “On behalf of everyone at Amazon and everyone here in LBA8-SC (Leeds, UK) we would like to thank you for being such an important part of our team during a busy 2020. We have delivered to many customers and none of this could happen without the hard work and commitment you have shown. As this period ends and we start to see the volume of work decrease, we need to reduce the number team members. As a result of this your assignment with Amazon will be coming to an end. Case Number: 1800617/21 13 Your last working day on your Amazon assignment will be 21/01/2021. 15 mins before the end of your last shift, your agency manager will be located near the exit at the Thank You desk. Please head out to meet with them as you would at the end of your normal shift. They will be available to answer any questions you may still have, share with you any important information and to collect your badge. Please do not clock out - this will be completed for you at the time your shift was due to end. Please speak with your AM or Agency Manager if you need any help or more information about this.”[58]Mr Polonski sent messages to the PMP manager mobile phone asking to speak to a manager about his situation on 22, 23 and 25 January 2021. Mr Polonski also emailed Mr Smith on 25 January 2021 stating that he wanted to ask some questions. Mr Polonski stated: “I not have information about status of my job in amazon LBA8 and how much company pay me for last week job”.[59]Mr Polonski was informed that the manager was on holiday. Mr Polonski then emailed Mr Kempster twice on 26 January 2021 stating: “I not have information about status of my job on amazon LBA8 what happen? What happen next? an how much company pay me for last week job…”[60]Mr Kempster responded on 26 January 2021, stating: “I have tried ringing you twice this morning and in the interest to speak to you could you confirm the best telephone number to reach you on including a timeframe better to catch you on. I have reviewed a few pieces on this and want to clarify just a few points, this is an end of assignment from Amazon LBA8 and is driven by the reduction in volume which in turn means a reduction in the requested headcount for PMP Recruitment, your employment is still active with PMP Recruitment and you can seek alternative assignments via our website (www.pmprecruiment.co.uk). Based on your length of tenure with Amazon Assignment you were less than 26 weeks service meaning you can reapply for Amazon Assignment after serving 8 weeks gap in service from this assignment. I would also express that ensuring your absence is under control better upon assignments will support you further as I am aware you were given a Record of concern in regards to your attendance levels and you were contemplating was this role for you at one stage, I am glad you have now disclosed you were happy on assignment with Amazon and would hope to see you in the future on assignment here. Over your 16 weeks tenure you were scheduled for approximately 610 hours, of which for either voluntary time off or sickness absence you only completed 450 hours of work, which gives on average 28 hours worked per week, where you have stated in your email you worked 45 hours per week, please review your knowledge of what Case Number: 1800617/21 14 you believed to have worked each week so we can ensure this matches your records with ours. At this stage I will assume through conversations with my local team and our systems with no pay queries this information to be fully correct. Look forward to your response with a contact number to discuss this fully over the phone.”[61]Mr Polonski and Mr Kempster then had a discussion by phone, following which Mr Kempster emailed Mr Polonski on 27 January 2021 stating: “After discussions on the phone, I fully understand your situation with a wife that is currently unemployed and young family, as advised on the phone currently with volume reduction we do not have the availability in Amazon but once gap in service and increase request from Amazon you are more than happy to reapply. Currently as discussed we do have positions available within 20 miles for you to travel and I know this maybe to far but there is opportunities for you on our website. You mentioned a government support you have been made aware of from friends, as advised please reach out to the job center to support you with any questions on the government supporting network. Your employment is still active and you can seek alternative employment. Please continue to look for updated job adverts on our website.”[62]As stated earlier in this Judgment, there is no dispute regarding the accuracy of the electronic records of Mr Polonski’s working hours and absences during the Amazon Assignment. Mr Kempster stated that Mr Polonski had received a record of concern (i.e. a first absence warning). Mr Polonski did not dispute the number of his sickness absences in his email response to Mr Kempster or during this hearing. APPLICATION OF THE LAW TO THE FACTS[63]We will now apply the law to our findings of fact. Disability status (s6 EQA)[64]We have concluded that Mr Polonski’s depression amounted to a disability for the purposes of s6 of the Equality Act 2010 (“EQA”) at the relevant time. In particular:64.1 Mr Polonski’s depression amounted to a mental impairment;64.2 his depression had a substantial (defined in the EQA as ‘more than minor or trivial’) impact on his ability to carry out day-today activities at various times from 2009 onwards, including:64.2.1 his ability to concentrate, for example to keep track of time;64.2.2 his ability to carry out basic tasks such as getting washed, dressed and preparing meals; and64.2.3 his ability to interact with other people;64.3 Mr Polonski did take medication from time to time for his depression and received cognitive behavioural therapy. He was not taking any medication at the time of the events that are subject to this complaint (i.e. from October 2020 to 21 January 2021). We did not have a full copy of Mr Polonski’s Case Number: 1800617/21 15 medical records and he was unable to specify the periods when he was taking medication. However, we heard clear evidence that Mr Polonski’s depression had a substantial impact on his ability to carry out normal day to day activities, regardless of any mitigation of his symptoms when he was taking medication; and64.4 the effects of the impairment were long-term, in that they lasted more than 12 months from the time of his first episode in 2009 and/or they were likely to recur. Discrimination arising from disability (Equality Act 2010 section 15)[65]Employment Judge Jones described Mr Polonski’s complaint of discrimination arising from disability as follows: “Discrimination arising from disability under section 15 and 39(1)(d) of the Equality Act 2010 (EqA) in respect of the termination of Mr Polonski’s assignment to work at Amazon on 21 January 2021. Mr Polonski says that he has depression which exacerbates his stress and that when he raised complaints with his managers, his stress meant he could not express himself well in English. He believes this led to his managers selecting him, or nor removing him, from the list of employees whose placement at Amazon was to end on 18 January 2021.”[66]The legal questions that we have to consider are dealt with below: Did the respondent treat Mr Polonski unfavourably by terminating his employment with Amazon on 18 January 2021?[67]We concluded that Mr Polonski was treated ‘unfavourably’ when his assignment to Amazon was terminated on 18 January 2021. We note that the word ‘unfavourably’ does not require any comparison with other non-disabled individuals. Did Mr Polonski’s inability to express himself adequately in English arise from stress and, if so did that arise from his disability?[68]We concluded that Mr Polonski did experience difficulties in communicating in English when subject to stress and that this did arise from his disability, as set out in detail in our findings of fact. Was the unfavourable treatment because of any of those things? If so, are they sufficiently connected to fall within the meaning of section 15(1)(a) of the EqA?[69]However, we concluded that Mr Polonski’s assignment to Amazon was not terminated because he was unable to express himself well in English when subject to stress. Mr Polonski’s difficulties did not have a ‘significant impact’ on his removal from the Amazon assignment. Three hundred and eighty-five of Mr Polonski’s colleagues’ assignments to Amazon were terminated during January to April 2021 Case Number: 1800617/21 16 as part of Amazon’s ‘ramp down’ of operations after the busy Christmas trading period. All PMP employees were ranked by Amazon, using specific criteria. Mr Polonski was ranked number 98 on the list due to his level of absence (which was not related to his depression).[70]Mr Polonski’s complaint of discrimination arising from disability therefore fails and is dismissed. Protected disclosure detriment[71]Employment Judge Jones described Mr Polonski’s complaints of detriments related to protected disclosures as follows: “Subjecting Mr Polonski to the detriment of removing him from the assignment to work at Amazon on 21 January 2021 on the ground he had made public interest disclosures, under section 47B of the Employment Rights Act 1976 (ERA).”[72]The legal questions that we have to consider are dealt with below: Did Mr Polonski make one or more disclosures of information?[73]Employment Judge Jones identified the things that Mr Polonski states he raised as follows: Disclosure 1: “Expressing to his managers that he had stomach pains due to heavy workload on several occasions verbally and in an email on 11 January 2021 (as identified by Mr Polonski at paragraph 1 of the Case Summary of Employment Judge Smith and the written statement submitted by Mr Polonski for this hearing)?” Disclosure 2: “Expressing his concern on 4 December 2020 to Harshal that the requirement for Mr Polonski to work back to back shifts for 11 consecutive days was unlawful (as identified at paragraph 3 of the Case Summary of Employment Judge Smith).”[74]PMP accepted that if such disclosures were made, they were made to PMP as Mr Polonski’s employer.[75]We concluded that:75.1 Disclosure 1 - Mr Polonski did complain that he had stomach pain due to heavy workload both verbally to Harshal on 10 December 2020 and in his email of 11 January 2021 to the general PMP address for the Leeds Site (which was dealt with by Mr Smith);75.2 Disclosure 2 - Mr Polonski did state on three occasions (i.e. Wednesday 2nd, Thursday 3rd and Friday 4th December 2020) to Harshal and other managers at the PMP desk at the Leeds Site that working shifts for 11 consecutive days was unlawful. Did he believe that: i) the information at9.1 tended to show that the health or safety of any individual had been, was being or was likely to be endangered? Case Number: 1800617/21 17 ii) the information at9.2 tended to show that a criminal offence had been, was being or was likely to be committed or a person had failed, was failing or was likely to fail to comply with any legal obligation? If so, was that belief reasonable?[76]We concluded that:76.1 Disclosure 1 - Mr Polonski did believe that Disclosure 1 tended to show that his health and safety had been, was being or was likely to be endangered. This was because Mr Polonski believed that the pain in his stomach muscles was caused by a heavy workload during his shifts, as demonstrated by the fact that he asked Mr Smith to reduce his shifts and change his duties in his email of 11 January 2021. We also concluded that this belief was reasonable – Mr Polonski did not have a previous history of stomach pain.76.2 Disclosure 2 – Mr Polonski believed that working eleven consecutive shifts was a breach of PMP’s working time obligations to its employees. We note that working eleven consecutive shifts is not in fact a breach of the Working Time Regulations 1998 (“WTR”) weekly rest periods (which state that employers may decide to provide workers with one uninterrupted rest period of not less than 48 hours in each 14 day period, rather than two 24 hour rest periods in a fortnight – see Regulation 11(2) of the WTR). However, Mr Polonski was not aware of the WTR. Mr Polonski was aware that working eleven consecutive shifts would be a breach of Amazon’s working time policies (which applied to PMP employees working at the Leeds Site) and this was confirmed by the Amazon managers (Rob and Anna) that he approached regarding his concerns. We have therefore concluded that Mr Polonski’s belief was reasonable. Did he believe the disclosure of information was made in the public interest? If so, was that belief reasonable?[77]However, we have concluded that Mr Polonski did not believe that the disclosure of information was in the public interest or (if he did) that such belief was not reasonable because:77.1 Disclosure 1 - We concluded that Mr Polonski's complaints related solely to his own stomach pain and not to any difficulties affecting any other staff. Mr Polonski accepted in his oral evidence that he was the only person suffering from stomach pain. Mr Polonski stated that he told Harshal that other employees were 'tired' because of the heavy workload. However, we do not accept that Mr Polonski raised this with Harshal because he does not refer to this in his email of 11 January 2021.77.2 Disclosure 2 – Mr Polonski accepted in his oral evidence to the Tribunal that he was only complaining about the shifts that he had been scheduled Case Number: 1800617/21 18 to work. There was no suggestion that Mr Polonski was complaining about his colleagues’ scheduled shifts. Detriment (Employment Rights Act 1996 section 48)[78]Even if our conclusion on the question of public interest is incorrect, Mr Polonski’s complaint of detriment would fail. This is because neither Disclosure 1 nor Disclosure 2 had a material influence on the termination of Mr Polonski’s assignment at Amazon.[79]We concluded that Mr Polonski’s assignment to Amazon was not terminated because he raised either Disclosure 1 or Disclosure 2. Three hundred and eightyfive of Mr Polonski’s colleagues’ assignments to Amazon were terminated during January to April 2021 as part of Amazon’s ‘ramp down’ of operations after the busy Christmas trading period. All PMP employees were ranked by Amazon, using specific criteria. Mr Polonski was ranked number 98 on the list due to his level of absence.[80]In addition, PMP dealt with the concerns that Mr Polonski raised as part of Disclosures 1 and 2:80.1 PMP reduced Mr Polonski’s shifts, as requested in his email of 11 January 2021. Mr Polonski did not raise any concerns regarding stomach pain or his workload with PMP after 11 January 2021;80.2 Mr Polonski’s confirmed shifts in early December 2020 did not require him to work 11 consecutive days because his provisionally scheduled shifts on 6 and 7 December 2020 were cancelled.[81]Mr Polonski’s complaint of detriment related to protected disclosures therefore fails and is dismissed. CONCLUSIONS ON LEGAL COMPLAINTS[82]For the reasons set out above, Mr Polonski’s complaints of discrimination arising from disability and detriment related to protected disclosures fail and are dismissed. We found that the reason why Mr Polonski’s assignment to Amazon was terminated was because of his Amazon ranking, which related to his sickness absence record. Mr Polonski difficulties in communicating in English when he was stressed did not have a significant impact on his removal from the Amazon assignment. In addition, Mr Polonski’s disclosures (even if they were deemed protected disclosures) had no material influence on his removal from the Amazon assignment.[83]Although this is not strictly relevant to Mr Polonski’s complaints, we would like to add that we are not suggesting that Mr Polonski was somehow to blame for his own sickness absences. We concluded that Amazon ranked employees (and instructed PMP to remove them from the Amazon assignment) based on objective criteria, including PMP’s employees’ levels of sickness absence regardless of the reason for that absence. Mr Ellis (on behalf of Amazon) then instructed PMP which of PMP’s employees should be removed from their assignment with Amazon and in what order they should be removed. We would also like to add that we accept that Mr Polonski Case Number: 1800617/21 19 worked hard during his time as a PMP employee at Amazon and that Amazon was happy with his performance. This is evidenced by the fact that Mr Polonski now works as a permanent Amazon employee. DEPOSIT ORDERS[84]Mr Polonski paid two deposit orders prior to the final hearing of his claim:84.1£25 for a deposit order relating to his complaint of disability discrimination made by Employment Judge Smith at the preliminary hearing on 2 July 2021 (the “Disability Discrimination Deposit Order”); and84.2£200 for a deposit order relating to his complaint of detriment arising from protected disclosures. This deposit order was made by Employment Judge Jones at the preliminary hearing on 22 November 2021 (the “Protected Disclosures Deposit Order”).[85]The reasons given by Judge Smith for the Disability Discrimination Deposit Order were as follows: “The Claimant is employed by the Respondent which is an employment agency. The Claimant was placed by the Respondent with Amazon. The alleged acts or omissions the Claimant relies upon are the acts or omissions of Amazon. Amazon is not a party to these proceedings.”
Judge Smith also stated in his summary of the preliminary hearing on 2 July 2021:
[86]“Finally in terms of disability discrimination I made a deposit order against the Claimant because it was clear that on the Claimant’s own case as explained to me he was complaining of the treatment he received at Amazon, not treatment from the Respondent. Amazon is not a respondent to these proceedings. I did not make a strike out order as I have no such power at this hearing. I carefully explained to the Claimant the consequences of proceeding after a deposit order has been made. If the Claimant is un-successful in respect of the matters to which the deposit order relates he will not only lose his deposit but may well face a claim for costs from the Respondent. If the Claimant does not pay a deposit and those complaints will be treated as dismissed.”[87]The reasons given by Judge Jones for the Protected Disclosures Deposit Order were as follows: “The reason for the making of the order is that the Tribunal considers the claims have little reasonable prospect of success because the claimant’s placement was terminated with 380 other employees following a downturn in demand after Christmas by Amazon and the case that it was the decision of the respondent and that it was attributable to the reasons advanced by the claimant is weak and unlikely to be succeed. In addition, the first disclosure does not appear to have been made, in the reasonable belief of the claimant, in the public interest.”[88]We have considered whether Mr Polonski’s complaints of discrimination arising from disability and protected disclosure detriment failed for substantially the reasons given by the Judge Smith and Judge Jones in their respective deposit orders (as per Rule 39(5) of the Employment Tribunal Rules of Procedure). We concluded that: Case Number: 1800617/21 2088.1 Mr Polonski’s complaint of discrimination arising from disability failed for entirely different reasons to those set out by Judge Smith in the Disability Discrimination Deposit Order. We note that at the final hearing, the respondent’s representative agreed wit this conclusion;88.2 Mr Polonski’s complaint of protected disclosure detriment failed for substantially the same reasons as those set out by Judge Jones in the Protected Disclosures Deposit Order.[89]We therefore ordered that:89.1 Mr Polonski’s deposit of £25 (relating to the Disability Discrimination Deposit Order) should be refunded to him; and89.2 Mr Polonski’s deposit of £200 (relating to the Protected Disclosures Deposit Order) should be paid to PMP.[90]We also note that PMP’s representative confirmed shortly before the end of this hearing that they do not wish to make a costs application under Rules 76 of the Employment Tribunal Rules of Procedure, despite the effect of Rule 39(5)(a) (paying party treated as acting unreasonably). Employment Judge Deeley 19 July 2022
The Complaints
[1]The claims are:1.1 Discrimination arising from disability under section 15 and 39(1)(d) of the Equality Act 2010 (EqA) in respect of the termination of Mr Polonski’s assignment to work at Amazon on 21 January 2021. Mr Polonski says that he has depression which exacerbates his stress and that when he raised complaints with his managers, his stress meant he could not express himself well in English. He believes this led to his managers selecting him, or nor removing him, from the list of employees whose placement at Amazon was to end on 18 January 2021.1.2 Subjecting Mr Polonski to the detriment of removing him from the assignment to work at Amazon on 21 January 2021 on the ground he had made public interest disclosures, under section 47B of the Employment Rights Act 1976 (ERA).[2]At the hearing Mr Polonski raised his concern about matters which had arisen in October 2021 when he applied for new work at Amazon, but after he explained these, these are new matters which would have to be addressed in separate proceedings. The Issues Disability
The Issues
[3]Did Mr Polonski have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide: 3.1 Did he have a mental impairment in the form of depression? 3.2. Did it have a substantial adverse effect on his ability to carry out day-to-day activities? 3.3 If not, did Mr Polonski have medical treatment, including medication, or take other measures to treat or correct the impairment? 3.4 Would the impairment have had a substantial adverse effect on his ability to carry out day-to-day activities without the treatment or other measures? 3.5 Were the effects of the impairment long-term? Did they last at least 12 months, or were they likely to last at least 12 months? If not, were they likely to recur? Case Number: 1800617/21 22 Discrimination arising from disability (Equality Act 2010 section 15)[4]Did the respondent treat Mr Polonski unfavourably by terminating his employment with Amazon on 18 January 2021?[5]Did Mr Polonski’s inability to express himself adequately in English arise from stress and, if so did that arise from his disability?[6]Was the unfavourable treatment because of any of those things? If so, are they sufficiently connected to fall within the meaning of section 15(1)(a) of the EqA?[7]If so, was the treatment a proportionate means of achieving a legitimate aim?[8]Did the respondent know or could it reasonably have been expected to know that Mr Polonski had the disability? From what date? Protected disclosure[9]Did Mr Polonski make one or more disclosures of information as follows:9.1 Expressing to his managers that he had stomach pains due to heavy workload on several occasions verbally and in an email on 11 January 2021 (as identified by Mr Polonski at paragraph 1 of the Case Summary of Employment Judge Smith and the written statement submitted by Mr Polonski for this hearing)?9.2 Expressing his concern on 4 December 2020 to Harshal that the requirement for Mr Polonski to work back to back shifts for 11 consecutive days was unlawful (as identified at paragraph 3 of the Case Summary of Employment Judge Smith).[10]Did he believe the disclosure of information was made in the public interest? Was that belief reasonable?[12]Did he believe that the information at 9.1 tended to show that the health or safety of any individual had been, was being or was likely to be endangered?[13]Did he believe that the information at 9.2 tended to show that a criminal offence had been, was being or was likely to be committed or a person had failed, was failing or was likely to fail to comply with any legal obligation? Was that belief reasonable?[15]If Mr Polonski made a qualifying disclosure, it was a protected disclosure because it was made to Mr Polonski’s employer? Detriment (Employment Rights Act 1996 section 48) Case Number: 1800617/21 23[16]Was the termination of Mr Polonski’s placement at Amazon a detriment?[17]If so was it an act or deliberate failure to act of the respondent on the ground that Mr Polonski had made one or more of the above a protected disclosures? Remedy for Protected Disclosure Detriment/Discrimination[18]What financial losses has the detrimental treatment caused Mr Polonski?[19]Has Mr Polonski taken reasonable steps to replace his lost earnings, for example by looking for another job?[20]If not, for what period of loss should Mr Polonski be compensated?[21]What injury to feelings has the detrimental treatment caused Mr Polonski and what sum in compensation is appropriate for that?[22]Is it just and equitable to award Mr Polonski other compensation?[23]Did the respondent or Mr Polonski unreasonably fail to comply with ACAS Code of Practice on Disciplinary and Grievance Procedures such that the award should be increased or decreased by up to 25%? Was the protected disclosure made in good faith?[25]If not, is it just and equitable to reduce Mr Polonski’s compensation by up to 25%? Case Number: 1800617/21 24 Annex 2 – Relevant Law DISCRIMINATION ARISING FROM DISABILITY (S15 EQA) 1. The right not to suffer discrimination arising from disability is set out at s15 of the EQA: 15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 2. The EAT in Sheikholeslami v University of Edinburgh [2018] IRLR 1090 (paragraph 96) held that s15 requires the Tribunal to consider “two distinct causative issues” when considering whether the ‘something’ alleged arose in consequence of B’s disability. The EAT set out the issues as follows: “(i) did A treat B unfavourably because of an (identified) something? and (ii) did that something arise in consequence of B’s disability? The first issue involves an examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the ‘something’ was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.” 3. In Pnaisner v NHS England [2016] IRLR 170, the EAT provided guidance to Employment Tribunals when considering complaints of discrimination arising from disability. This can be summarised as follows:3.1 the Tribunal should decide what caused the treatment complained of – or what the reason for that treatment was;3.2 there may be more than one cause. The “something” might not be the sole or main cause but it must have a significant impact;3.3 motives are irrelevant; and3.4 the Tribunal should decide whether the cause is “something arising in consequence of” the individual’s disability. There could be a range of causal links under the expression “something arising in consequence of…” 4. The Tribunal must apply an objective test when considering whether there was a proportionate means of achieving a legitimate aim, having regard to the respondent’s workplace practices and organisation needs (see, for example, the EAT’s decision in City of York Council v Grosset (UKEAT/0015/16), as approved Case Number: 1800617/21 25 by the Court of Appeal ([2018] EWCA Civ 1105). We note that the Tribunal must make its own assessment as to whether ‘proportionate means’ have been used to achieve a legitimate aim. PROTECTED DISCLOSURES 5. Complaints relating to whistleblowing detriments are dealt with in the ERA. Qualifying disclosures 6. A protected disclosure is defined by s43A ERA as a ‘qualifying disclosure’ under s43B ERA: 43B Disclosures qualifying for protection (1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. 7. S47B of the ERA sets out a worker’s right not to be subjected to a detriment on the ground that they have made a protected disclosure. 47B Protected disclosures (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. … (2) …this section does not apply where – … (b) the detriment in question amounts to dismissal… …. 8. The Court of Appeal in Kilraine v London Borough of Wandsworth [2018] IRLR 846, held that a disclosure must contain sufficient information if it is to form a ‘qualifying disclosure’ for the purposes of s43B of the ERA. 9. The individual must also reasonably believe that the disclosure tends to show one or more of the categories set out under s43B(1). The Tribunal must consider:9.1 whether Mr Polonski genuinely believed that the disclosure tended to show one of the categories listed in s43B (Darnton v University of Surrey [2003] IRLR 133); and Case Number: 1800617/21 269.2 whether such belief was objectively reasonable in the circumstances (see, for example, Phoenix House Ltd v Stockman [2017] ICR 84 EAT). 10. The term ‘likely’ (eg in ‘likely to be endangered’ under s43B(1)(d)) was considered in Kraus v Penna Plc [2004] IRLR 260 to mean ‘probable or more probable than not’. The Court of Appeal held that this was a higher standard than simply ‘a possibility or a risk’. What amounts to a detriment? 11. The test of whether an act or omission could amount to a ‘detriment’ is the same as for a discrimination complaint. The House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 held that whether an act amounts to a detriment requires the Tribunal to consider:11.1 would a reasonable worker take the view that he was disadvantaged in terms of the circumstances in which he had to work by reason of the act or acts complained of?11.2 if so, was the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? 12. We note that the Court of Appeal in Deer v University of Oxford [2015] IRLR 481, held the conduct of internal procedures can amount to a ‘detriment’ even if proper conduct would not have altered the outcome. 13. However, the House of Lords in Shamoon also approved the decision in Barclays Bank plc v Kapur & others (No.2) [1995] IRLR 87 that an unjustified sense of grievance cannot amount to a ‘detriment’. 14. We also note that in the context of whistleblowing, a detriment for the purposes of the legislation can occur even after the relevant relationship with the employer has been ended or terminated (see Woodward v Abbey National plc [2006] EWCA Civ 822, [2006] IRLR 677, [2006] ICR 1436). Reason for the detriment 15. The key question is whether the making of a protected disclosure materially influenced (in the sense of being more than a trivial influence) the employer’s treatment of the individual (Fecitt v NHS Manchester [2012] IRLR 64). This requires the Tribunal to consider the mental processes (conscious and unconscious) of the person who either acted or deliberately failed to act in respect of the detriment. 16. In certain cases, the courts have drawn a distinction between the making of a disclosure and the manner in which the complaint was made or pursued. For example, in Panayiotou v Chief Constable of Hampshire Police [2014] IRLR 500, the EAT upheld a decision by a tribunal that a police officer's dismissal was because of his long-term sickness absence and his obsessive pursuit of complaints. The EAT said that his dismissal 'in no sense whatsoever' connected with the public interest disclosures that he had certainly made earlier. The judgment of Lewis J stresses that such a finding is entirely logical and is not confined to 'exceptional cases': Case Number: 1800617/21 27 ''There is, in principle, a distinction between the disclosure of information and the manner or way in which the information is disclosed. An example would be the disclosing of information by using racist or otherwise abusive language. Depending on the circumstances, it may be permissible to distinguish between the disclosure of the information and the manner or way in which it was disclosed. An employer may be able to say that the fact that the employee disclosed particular information played no part in a decision to subject the employee to the detriment but the offensive or abusive way in which the employee conveyed the information was considered to be unacceptable. Similarly, it is also possible, depending on the circumstances, for a distinction to be drawn between the disclosure of the information and the steps taken by the employee in relation to the information disclosed.'' Burden of proof and drawing of inferences – detriment claims 17. In International Petroleum Ltd and others v Ospiov and others EAT 0058/17, the EAT set out the correct approach to whistleblowing detriment complaints as follows:17.1 the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he is subject is either his health and safety complaint and/or his protected disclosure;17.2 s48(2) ERA then requires the employer to show why the detrimental treatment was done. If the employer fails to do so, inferences may be drawn against the employer. However, these inferences must be justified by the Tribunal’s findings of fact.