Mr M Charalambous v Barnsley College: 1802552/2021
EMPLOYMENT TRIBUNALS
Case No 1802552/2021
Between
Mr M CharalambousClaimantBarnsley CollegeRespondent
Before
Employment Judge BuckleyIn person for claimantMr. Wilson (instructed by Counsel) for respondentDate 22 November 2021
JUDGMENT
[1]The claimant did not make a protected disclosure. The claims of detriment and automatically unfair dismissal are dismissed.[2]The belief relied on by the claimant is not a philosophical belief that falls within s[10]Equality Act 2010. The claim of direct religion or belief discrimination is dismissed. 3. There are no remaining claims to determine and therefore a separate order has been issued vacating the final hearing.
REASONS
[4]The preliminary issues for me to determine are:a. Whether the claimant made one or more protected disclosures as specified in para 3.1.1.1 on p 52 of the preliminary hearing bundle.b. Whether the belief/lack of belief relied on by the claimant falls within s 10 Equality Act 2010 (EA). Introductory remarks[5]It is not for the tribunal to express any view as to the merits of the Black Lives Matter Movement or of the Claimant’s beliefs or opinions. Further, although one of the issues before me is whether or not the Black Lives Matter movement is a ‘belief’ within s 10 EA, I have been provided with limited evidence on the nature of the Black Lives Matter movement and any underlying belief system. It is important to stress that my findings of fact are necessarily limited to those justified on the basis of the evidence put before me by the parties. It is not open to me to undertake my own research online as to the nature of the Black Lives Matter movement. The following findings must be read with that in mind. Evidence[6]I heard evidence from the claimant and from Duncan Bulloch on behalf of the respondent. I was referred to and read documents in the bundle and also watched a number of excerpts from YouTube videos.[7]I found both witnesses to be doing their best to give honest evidence to the best of their recollection. The law Section 10 Equality Act
The law
[8]Section 10 EA deals with religion or belief. The relevant section provides: (2) belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.[9]Section 10 must be read and understood conformably with the European Convention on Human Rights (ECHR). The rights under Article 9 and 10 are closely linked and the approach to be taken is to consider the case law in relation to the most directly applicable right, interpreted where appropriate in the light of the other.[10]Article 9 provides: Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.[11]Article 10 provides: Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licencing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[12]Before considering whether or not a belief falls within s 10 it is necessary to begin by identifying the belief relied on. Some beliefs are capable of being summed up in a single sentence. Others may defy concise definition and in those cases a precise definition of the aspects relevant to the claims in question will suffice. It may be appropriate to identify the ‘core’ elements of a belief in order to define it. (Forstater v CGD Europe and ors [2021] IRLR 706 and Gray v Mulberry Co (Design) Ltd [2020] ICR 715 (CA).[13]After identifying the belief in question the tribunal must determine if it amounts to a philosophical belief within s 10 EA.[14]The EAT in Grainger PLC V Nicholson (2009) [2010] ICR 360 set out the criteria to be applied in determining whether a belief qualifies for protection at paragraph 24 as follows:(i) The belief must be genuinely held.(ii) it must be a belief and not, as in McClintock v Department of Constitutional Affairs [2008] IRLR 29, an opinion or viewpoint based on the present state of information available.(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.(v) it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others (paragraph 36 of Campbell v United Kingdom (App 7511/76) (1983) 4 EHRR 293 and paragraph 23 of Williamson [2005] 2 AC 246).[15]These threshold requirements are ‘modest, objective minimum requirements’. The requirement that a belief has to relate to a ‘substantial’ aspect of human life or behaviour means an aspect that is more than merely trivial. A belief must be coherent in the sense of being intelligible and capable of being understood. It must be a belief on a fundamental problem. Although these threshold requirements are implicit in article 9 ECHR, the bar must not be set too high. The requirements should not be set at a level which would derive minority beliefs of the protection that they are intended to have under the Convention. It is not the role of the tribunal to enquire as to the validity of a belief. Individuals are at liberty to hold beliefs however irrational, inconsistent or surprising they may be. (R (on the application of Williamson) [2005] UKHL 15).[16]These threshold requirements are reflected in the Employment Statutory Code of Practice 2011 (‘the Code of Practice’) which must be taken account of where relevant. The Code provides: 2.57 A belief which is not a religious belief may be a philosophical belief. Examples of philosophical beliefs include Humanism and Atheism. 2.58 A belief need not include faith or worship of a God or Gods, but must affect how a person lives their life or perceives the world. 2.59 For a philosophical belief to be protected under the Act: it must be genuinely held; it must be a belief and not an opinion or viewpoint based on the present state of information available; it must be a belief as to a weighty and substantial aspect of human life and behaviour; it must attain a certain level of cogency, seriousness, cohesion and importance; it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others. Protected disclosures[17]Section 43B of the Employment Rights Act 1996 (ERA) makes provision for disclosures that qualify for protection: 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, is being or is likely to be deliberately concealed.[18]The necessary components of a qualifying disclosure are clearly set out in section 43B ERA. They were summarised helpfully by HHJ Auerbach in Williams v Michelle Brown AM UKEAT/0044/19/OO: 9. It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.”[19]It is important that a structured analysis to qualifying disclosures is adopted. HHJ Auerbach stated in Williams: 10. Unless all five conditions are satisfied there will be not be a qualifying disclosure. In a given case any one or more of them may be in dispute, but in every case, it is a good idea for the Tribunal to work through all five. That is for two reasons. First, it will identify to the reader unambiguously which, if any, of the five conditions are accepted as having been fulfilled in the given case, and which of them are in dispute. Secondly, it may assist the Tribunal to ensure, and to demonstrate, that it has not confused or elided any of the elements, by addressing each in turn, setting out in turn out its reasoning and conclusions in relation to those which are in dispute.” The scope of my findings of fact – the beliefs relied on by the claimant[20]I include this before my main findings of fact because it informs the findings of fact that I need to make. I only need to make findings in relation to the belief, or lack of belief, relied on by the claimant as the basis for the less favourable treatment.[21]In his witness statement the claimant stated ‘We are not here directly because of my beliefs, it is more that I do not believe in the BLM movement and do not support the BLM movement. It is my non-belief’. However Mr. Charalambous goes on to give evidence about a variety of opinions/political views/beliefs that he holds.[22]Mr. Charalambous gave evidence, for example, that he believed in certain British values such as democracy and the rule of law, that some of his philosophical beliefs are based on Buddhism and that he believed in, or at least was comfortable with, capitalism. The only beliefs that are relevant to these proceedings are those which Mr. Charalambous asserts to be the reason for the less favourable treatment i.e. the beliefs that he relies on in these proceedings.[23]It is important to start with the way the claimant puts his claim in the ET1. He states on the second page of his details of claim (p 15 of the preliminary hearing bundle) that he had expressed the fact that he did not support the BLM movement and that he did not think that it was correct that the respondent openly supported their ideas, ways and philosophical beliefs.[24]The claimant states that he had informed the respondent on the morning of 22 September 2020 that he believed that “the college should not be supporting any particular political movement, especially Marxist ideology (not a problem in itself), anti-Israel position, its anti-police views, lack of respect for law and order was some examples that I gave, and non-democratic way of achieving its goals”.[25]The claimant states that this, in effect, led to his suspension. Further down the same page he states that he was questioned in his investigation meeting about the BLM movement and that Mr. Bulloch’s opinion during the probation review was that if he did not support the BLM movement he was racist, ‘or at least it was ok to suggest that I may be’.[26]This is consistent with the discussion at the previous preliminary hearing – paragraph 38 of the case summary states as follows: The claimant says that he did not go along with supporting the Black Lives Matter movement, which the college did. The claimant’s belief is that a college should not be pushing what he called political agendas. His belief is that a college should not be biased. He maintained that the Black Lives Matter movement, which the respondent was supporting, was a Marxist one.[27]On this basis it is clear that the claimant asserted in the ET1 and in the previous preliminary hearing that the reason for the less favourable treatment was either(i) the claimant’s lack of belief in the BLM movement or(ii) his belief that the respondent should not support a political movement like Black Lives Matter, i.e. a movement with the characteristics set out in his ET1 at p 15 of the preliminary hearing bundle.[28]I asked Mr. Charalambous at the conclusion of his submissions what he asserted to be the reason for his less favourable treatment. He was clear that he asserted that the reason for his treatment was the fact that he did not support the Black Lives Matter movement and that it was a question of non-belief.[29]As stated above, the claimant also asserts in the ET1 (and in the previous preliminary hearing) that he was treated less favourably because of his belief that the respondent should not support a political movement like Black Lives Matter, i.e. one which had the characteristics set out in his ET1 at p 15 of the preliminary hearing bundle. Mr. Wilson suggested in his closing submissions that the claimant had withdrawn his reliance on this positive belief. I am not convinced that the claimant did clearly withdraw his reliance on this alternative position, which is explicitly set out in his ET1 and at the previous preliminary hearing, and so I have also considered whether this is capable of amounting to a belief under s 10.[30]On the basis of the matters set out above, it is not necessary for me to determine whether or not any other beliefs that the claimant might hold, for example a belief in democracy, or a belief in capitalism, fall within s 10 EA. He does not assert whether in the ET1, or at either preliminary hearing, that he was treated less favourably than others because, for example, he believed in democracy or because some of his philosophical beliefs are based on Buddhism or because he believed in, or at least was comfortable with, capitalism.
Findings of fact
[31]The claimant started work for the respondent on 9 September 2020 as a Brickwork Trainer. His role was to support and guide apprentices through their apprenticeship and help them to achieve their NVQ. He had previously worked at Wakefield College in a similar role. Facts relevant to whether or not the claimant made a protected disclosure Was information disclosed?[32]On Monday 21 September the claimant received a phone call from his former boss from Wakefield College informing him that one of his former apprentices had been awarded his NVQ. His former boss asked the claimant if he knew anything about it. They knew that there was some sort of error because the apprentice still had at least 1 more year to do on his apprenticeship. The claimant’s former boss knew that Wakefield College had not signed off the apprentice’s NVQ and suspected that this could only have been done by the respondent. The claimant informed his former boss that he would look into it and they agreed to keep each other updated on any developments.[33]The student had come to Wakefield College from the respondent in about November 2019. When he arrived at Wakefield College he had not had any evidence of prior attainment towards his NVQ and had started as a first year apprentice. As the student had been with the respondent the claimant was able to check his ‘One File’ where all his NVQ evidence had been recorded. The claimant saw that there was not enough evidence in the file for the student to be awarded an NVQ by the respondent.[34]The protected disclosure is said to have occurred orally and in an email on 22 September 2020.[35]On that date the claimant orally informed Mr. Bulloch, his boss, that a student had been awarded an NVQ that he should not have been awarded, that it was possible that it may have been from the respondent and that the student had not completed his course during his time at the respondent.[36]The claimant sent the following email on the same date to Hannah Stansfield and copied to Mr. Bulloch: Joe Doody is a NVQ brickwork student that completed this summer and has been claimed for. What exactly has been claimed I do not know. Round about November last year Joe Doody left Barnsley college and joined Wakefield College. Joe was not able to produce evidence of any prior learnings, so Wakefield took him on as a first year apprentice. Joe Doody has just informed my previous boss that he will not be returning to Wakefield because he has been issued with his qualification from the awarding body/Barnsley. I do believe that Joe may not have been withdrawn from Barnsley when he left. I will this morning see to withdrawing the apprentices that are not continuing. I can see how something like this can easily get over looked at it as it is something that I did not prioritise Did the claimant believe that the disclosure(s) tended to show one or more of the matters in sub-paragraphs (a) to (f)?[37]At the time the claimant was not sure where the error was. Wakefield College has told him that he they had not passed the student, and therefore, as the claimant stated in evidence, he believed that it was ‘possible that anything could have happened. It could be an error by the awarding body, it could be the college, it could be the student making it up’. The claimant believed that it may have arisen because the student had been left on the register. That would not have been the whole reason, but could have contributed to how somebody made the error.[38]When it was put to the claimant that Mr. Bulloch in para 2 of his witness statement said, ‘Mario said he was not sure what happened but something did not seem right’, he said that was a ‘fair comment’. He said he was not going to go in there pointing the finger. He stated that he had his suspicions as to what may have happened but he was not sure. He suspected that maybe the respondent had done something wrong. He did not think it was the student or the awarding body but he was open to all three and did not come in with a closed mind. He stated that he ‘really did not know what had happened’. He stated that ‘you have to be open minded. You need to start looking for evidence. I did not have all the facts and an investigation needs to take place’.[39]I find as a fact that the claimant did not believe that disclosure tended to show any of the matters in sub-paragraphs (a)-(f). He believed that it was possible that a mistake had been made by either the respondent or the awarding body, or the student had made it up, although his suspicion was that it was the respondent who had done something wrong.[40]I do not accept that this amounts to a belief that the information disclosed tended to show that any of the matters in sub-paragraphs (a)-(f). He did not, at that stage, believe that the facts tended to show that fraud had been committed, nor that they tended to show that the respondent had failed to comply with its legal obligations in the sense of breaching any of the contractual terms set out in his witness statement. He certainly did not believe that a miscarriage of justice had occurred. He accepted in evidence that he did not believe at the time that the health and safety of any individual had been, was being or was likely to be endangered. He clearly did not believe that any information tending to show any matter falling within one of the other paragraphs had been, was being or was likely to be deliberately concealed. Was that belief reasonable?[41]The claimant accepted that the fact that the student had been ‘claimed for’ (in essence included in the list of students who had passed an NVQ) could have been as a result of an error by the respondent, or by the awarding body. The claimant accepted that the student might not have been telling the truth. In the light of all these alternative explanations, I do not accept that it would have been reasonable to conclude that the information tended to show any of the matters set out in subparagraphs (a)-(f). Did the claimant believe that the disclosure was in the public interest[42]I find that the disclosure was made because the claimant was concerned that a student had been awarded an NVQ that he had not earned, and that he thought the issue needed to be investigated. I find that he believed that it was in the public interest for an investigation to take place to ensure that qualifications were not awarded to students that had not earned those qualifications. Facts relevant to s 10 Equality Act 2010 The Black Lives Matter Movement belief[43]As set out above, the claimant confirmed in the hearing that he relies on a lack of belief under s 10, and the belief that he lacks is belief in the Black Lives Matter movement. The belief that I have to consider is therefore ‘belief in the Black Lives Matter movement’.[44]According to the case law, before considering whether or not a belief is protected under s 10 EA, it is essential to define exactly what the belief is.[45]I have been provided with some material in the bundle on the nature of the Black Lives Matter movement. My factual findings and conclusions as to the nature of the Black Lives Matter movement are necessarily limited by the evidence before me in this case and the following findings should be read with that in mind.[46]On the basis of the information I have before me I find as follows. The Black Lives Matter movement is a broad political movement. From the limited information in the bundle and in the YouTude videos I find that it includes those in the US who are campaigning for legislative change, namely the ‘Breathe Act’, which would, for example, introduce legislation to decriminalise and retroactively expunge drug offences and develop a time bound plan to close all federal prisons.[47]It also includes Black Lives Matter UK which is described as a ‘coalition of activists and organisers across the UK’ who are guided by ‘a commitment to dismantle imperialism, capitalism, white-supremacy, patriarchy and the state structures that disproportionately harm black people in Britain and around the world’.[48]From the videos that the claimant showed it also includes people who think it is legitimate to take direct action, including looting and violence.[49]It also includes activists such as Bree Newsome whose views are set out in the article at p 173 of the bundle, who defends rioting and looting as a legitimate, politically informed response to state violence.[50]It includes the Chicago Black Lives Matter group which, according to organiser Ariel Atkins, supports violent looting on that basis that it is ‘reparations’.[51]There are others who support the movement on much broader grounds, such as the respondent, which appears to support the movement on the basis that it is highlighting the demonstrable difference between the way black people and white people are treated in the developed world (see p 97) or because the respondent is ‘determined to condemn and challenge racism’.[52]There is no evidence in the bundle which would enable me to make a finding that there are any common principles underlying or unifying all the different parts of the Black Lives Matter movement, other than that the disparate groups falling under its umbrella broadly relate to racism and ways to tackle racism. The belief that the respondent should not be supporting a political organisation like Black Lives Matter[53]When asked if his belief was that further education colleges should be politically neutral or not support any particular political belief he replied that that was ‘just an opinion really’.[54]He stated that ‘my belief goes deeper down… it is sort of… you’ve got to take care, where does the borderline stop where your views or belief is extreme and I think the college were going beyond… it’s not just my opinion it’s .. how would you feel if your child was going to school being indoctrinated?’ He agreed that in certain circumstances it was in order for a college to espouse a political opinion but that Black Lives Matter was, in his opinion ‘ a violent narrow minded organisation’ that does not respect the legal systems.[55]When asked if it was simply the Black Lives Matters movement that he was opposed to, he replied ‘no its about indoctrination… these people are at a very influential age and me as a teacher and colleges and schools have to take care that we are setting the best possible example’. He stated that his big concern was the importance of ‘not encouraging people to get involved in that sort of thing’.[56]When asked if his concern was that the school was indoctrinating children into the Black Lives Matter movement ideology he replied ‘no that’s a bit strong’. He referred to ‘danger’ if students saw the videos of Black Lives Matters activists looting etc. and the respondent approved of the movement. He stated that ‘it might be better to take a step back’. He stated that he was concerned about what the respondent’s support of the movement ‘tells children’, given, for example, that the movement is very political and anti-police.[57]It is clear from the claimant’s evidence, and his identification with the views expressed by, for example, MP Esther McVey, that he holds a genuine belief that the respondent should not be supporting a political organisation like the Black Lives Matter movement, because of the particular characteristics set out in his ET1 at p15 of the bundle including, for example, its anti-police views and lack of respect for law and order. Conclusions Protected disclosure
Conclusions
[58]It is clear that the claimant disclosed information.[59]I have found as a fact that the claimant did not believe that the information tended to show any of the matters in (a) to (f). Further, I find that if he had held that belief it would not have been reasonable on the basis of the facts known at the time, which had a number of possible innocent explanations. The disclosure is therefore not a protected disclosure.[60]It is not therefore necessary to determine the public interest issues, but I would have accepted that the claimant reasonably believed that the disclosure was made in the public interest – there is a clear public interest in investigating why a student has apparently been awarded an NVQ that he has not earned. Belief or lack of belief under s 10[61]I have set out above my findings in relation to the beliefs relied on by the claimant, which are limited to:a. A (lack of) belief in the Black Lives Matterb. A belief that the respondent should not have been supporting a political movement like the Black Lives Matter movement particularly one which had the characteristics set out above.[62]These are the beliefs that I must consider under the Grainger criteria. Belief in the Black Lives Matter movement[63]It is not entirely clear to me if, or if so precisely how, the first criterion in Grainger applies in a case of lack of belief. The Grainger criteria are to be applied to the belief rather than to the claimant’s lack of belief, but it is not meaningful to assess whether or not others’ belief in the Black Lives Matter movement is genuine.[64]For the sake of completeness I accept both:a. that the claimant genuinely lacked belief in the Black Lives Matter movementb. that other individuals genuinely hold a belief in the Black Lives Matter movement.[65]Mr. Wilson rightly submitted that the beliefs relied on do not fit into the McClintock category and therefore I find that Grainger (ii) Is satisfied.[66]In the light of my findings of fact on the nature of the Black Lives Matter movement I find that Grainger (iii) and (v) are clearly satisfied.[67]Under Grainger (iv) I have to consider whether the belief attains a certain level of cogency, seriousness, cohesion and importance. There is insufficient evidence before me to support a finding that the Black Lives Matter movement meets the Grainger criteria of cogency and coherency. On the basis of the limited information before me I find that it is an umbrella description of an amorphous and undefined set of political opinions broadly concerning the question of racism and how it should be tackled.[68]It may well be that underlying the different groups with their different views and approaches there is a sufficiently coherent and cogent set of beliefs but there is no evidence before me upon which I could base that finding. I find that Grainger (iv) is not satisfied. The belief that the respondent should not have been supporting a political movement like the Black Lives Matter movement i.e. one which had the characteristics set out in the ET1 at p 15 of the preliminary hearing bundle.[69]I have found as a fact that the belief was genuine and therefore satisfied Grainger (i)[70]As stated, Mr. Wilson rightly submitted that the beliefs relied on do not fit into the McClintock category and therefore I find that Grainger (ii) Is satisfied.[71]Turning to Grainger (iii) the belief must relate to matters that are more than merely trivial. I accept that the belief relates to the question of what movements or organisations it is and is not appropriate for the respondent to support. This, is my view, is not a trivial matter. I find that Grainger (iii) is satisfied.[72]I accept, particularly in the light of Forstater v CGD Europe and others [2021] IRLR 706 that such a belief is worthy or respect in a democratic society, is not incompatible with human dignity and does not conflict with the fundamental rights of others. I find that Grainger (v) is satisfied.[73]Under Grainger (iv) I have to consider whether the belief attains a certain level of cogency, seriousness, cohesion and importance. It is not my role to enquire as to the validity of a belief. When considering this criterion I bear in mind that the bar must not be set too high. The requirements should not be set at a level which would derive minority beliefs of the protection that they are intended to have under the Convention. I bear in mind that a belief must be coherent in the sense of being intelligible and capable of being understood. It must be a belief on a fundamental problem.[74]I take account of the fact that this is a belief focussed primarily on this particular movement. The claimant’s belief is not a broad belief that education should be apolitical. It is a narrow belief that the respondent should not be supporting a political organisation which has the particular characteristics of the Black Lives Matter movement. I accept that the belief is not explicitly stated to be ‘Barnsley College should not be supporting the Black Lives Matter movement’ but it is difficult to identify the ways in which the claimant’s belief is asserted to be of any significantly wider scope. On this basis I accept Mr. Wilson’s submission that the claimant’s belief is confined and parochial.[75]The underlying philosophy is difficult to discern: the claimant struggled to articulate the core of his belief. The essence of his concern appeared to be that it was important that young people were not encouraged to get involved in ‘that sort of thing’. I do not accept that the claimant’s belief attains a high enough level of seriousness and importance. He has concerns about the respondent endorsing an organisation that, in his view, involves disrespect for law and order because he is worried that children will be encouraged to get involved in unlawful acts. This is the foundation for his belief that the respondent should not have been supporting a political movement like the Black Lives Matter movement. This does not in my view, have a similar status and cogency to a religious belief.[76]Taking into account all those factors, I do not accept that the claimant’s belief satisfies the criterion in Grainger (iv).[77]On that basis I find that the beliefs relied on by the claimant do not amount to beliefs within s 10 EA.[78]On the basis of my conclusions above, all the claimant’s claims must fail and they are accordingly dismissed.
Conclusions
[1]There is no reasonable prospect of the original decision being varied or revoked for the following reasons.[2]The grounds for reconsideration are set out in a five and a half page statement. There is an additional one page statement. The claimant relies on: 2.1. The interests of justice 2.2. New evidence.[3]Much of the statements consist of attempts to reargue the case or challenges to the tribunal’s findings of fact. Taking into account the important principle of finality of justice it would not be in the interests of justice to reconsider the judgment on any of these grounds. The tribunal made findings of fact which were justified on the basis of the oral and written evidence before it.[4]The question of whether or not Mr. Bulloch’s description to the tribunal of the way the qualification is awarded was accurate or misleading is not relevant to the issues that I had to determine. It is not relevant whether Mr Bullock or the Respondent’s representative were accurate in stating to the tribunal that what happened was an administrative error. Other new evidence which the claimant wishes to obtain which might prove that the Respondent was or was not dishonest or incompetent is similarly irrelevant. It is not the tribunal’s role, when deciding whether or not there has been a protected disclosure, to determine whether or not the respondent did something wrong. The question for the tribunal to determine relates to the claimant’s belief at the time and whether or not that belief was reasonable on the basis of the facts known to him at the time.[5]The claimant wishes to rely on a series of emails on 17, 18 and 22 September 2020. It is not in the interests of justice to reconsider the judgment on the basis of this new 7.6C Deposit not paid – Judgment - claimant Rule 39 evidence. First, these emails could have been obtained with reasonable diligence for use at the original hearing. Second, although they are at least broadly relevant to the question of the claimant’s belief at the time, they would not have had an influence at the hearing in the light of the claimant’s clear evidence that there were a number of explanations and that he was open-minded at the time he made the disclosure.[6]I do not accept that it is in the interests of justice to reconsider the judgment because Duncan Bulloch's witness statement was provided late. This is a matter that should have been raised and dealt with at the start of the hearing.