Mr E Ekakitie v Bookachemist Recruitment Ltd: 1804981/2020
EMPLOYMENT TRIBUNALS
Case No 1804981/2020
Between
Mr E EkakitieClaimantBookachemist Recruitment LtdRespondent
Before
Employment Judge T.R. SmithIn person for claimantDate 18 February 2022
JUDGMENT
The Claimant was a worker at all material times within the meaning of section 43K of the Employment Rights Act 1996.
REASONS
[1]The issue for the Tribunal to determine was concisely set out in an order of Employment Judge Buckley dated 29 October 2020.[2]The Tribunal had to determine whether or not the Claimant was a worker, and the Respondent his employer, within the meaning of either section 230 or section 43K of the Employment Rights Act 1996.[3]The material time was the date the Claimant contended he made protected disclosures namely of 12 March, 30 March and 22 April 2020.
The Evidence
[4]The Tribunal had before it a statement from the Claimant and also from Mr Nawaz, a director of the Respondent. Both gave sworn evidence. In addition, the Tribunal had before it a bundle consisting of 51 pages. Findings of fact The Corporate structures
Findings of fact
[5]The Respondent operates under the general trading style of Pharmasurge Partnerships, although that is not a legal entity.[6]Bookachemist Recruitment Ltd, despite its name, is not a recruitment agency. It operates a number of chemists in Yorkshire including, for the purposes of these proceedings, Rotherham Road pharmacy, Winter Hill pharmacy, and Green Arbour pharmacy.[7]There are two associated companies within the Pharmasurge group namely Morthen Group Limited, which operates Wickersley pharmacy and Dinnington Partnership Ltd, which operates the Dinnington pharmacy.[8]The Respondent has a contract to supply NHS pharmacy services with its local Clinical Commissioning Group.[9]The Claimant is a registered pharmacist.[10]He earns his living as a locum pharmacist.[11]The Claimant was formerly a director of Click Heath Ltd from 2012 until 26 July 2019.[12]According to Company House documents placed before the Tribunal the company has a capital of 500, £1 pound shares and all that share capital has been issued to the Claimant. 13.Prior to events giving rise to these proceedings the Respondent believed that Click Heath Ltd was effectively the corporate vehicle used by the Claimant to work as a locum pharmacist. 14.The Tribunal found as a fact that the Claimant controlled Click Heath Ltd, given he had all the issued share capital. 15.The Claimant accepted that Click Heath Ltd invoiced for his services and he then obtained dividends from the company, presumably due to the favourable tax treatment. 16.Mr Nawaz confirmed it was common for locum pharmacists to operate via service companies or sometimes to operate using such companies but with an employment agency intermediary. The Job offer 17.In February 2020 the country was still in the grips of Covid 19. It was important that pharmacies remained open. There was therefore a particular demand for registered pharmacists throughout the United Kingdom. 18.The Respondent placed an advertisement for a locum pharmacy manager/pharmacy manager on a website known as chemistand drugistjobs.co.uk 19.The post was for a full-time pharmacist based at the Rotherham Road pharmacy. 20.The Claimant attended interview with Mr Nawaz on or about 27 February 2020 and provided his CV. 21.An offer of employment was made to commence on 01 May 2020 at the Rotherham Road pharmacy. The Offer. 22.The agreement was recorded in writing. 23.The parties to the agreement was the Respondent, Click Heath Ltd and the Claimant. A copy of the agreement was before the Tribunal (30 to 35) Having set out the services to be provided the agreement stated “this agreement regulates the arrangements by which Click Heath Ltd will provide these services” 24.The agreement provided that there was no right of substitution. 25.The role was full-time Monday to Friday. 26.The Agreement recorded the required duties of the job holder which included as acting as a pharmacy superintendent, training staff and other activities. 27.The contract was labelled “standard service contract for Ltd companies” 28.The Respondent was to make payment for the Claimant’s services to Click Heath Ltd. 29.Having regard to the agreement in its entirety, noting it was produced by the Respondent, and was a pro forma agreement, the Tribunal concluded that the work to be undertaken at the Rotherham Road pharmacy was substantially determined under the terms of that agreement by the Respondent. 30.The Claimant responded indicating that he approved the contract but that there was a minor error as to the spelling of his name, and Click Heath Ltd would invoice bi weekly, as this was the process that they had used on his behalf in other assignments. 32.The Respondent accepted those minor amendments. Events prior to the start of the agreement 33.However, work was undertaken prior to 01 May 2020 and, as it transpired, the offer was withdrawn prior to the start date for reasons that are the subject of the current proceedings. 34.There was no written agreement to cover the work undertaken prior to 01 May 2020. 35.The Claimant himself, in his statement, said that he supplied work for the Respondent via Click Heath Ltd in this period “acting as my agency”. 36.Work was offered by Pharmasurge Partnerships to the Claimant predominantly in respect of those pharmacies owned by the Respondent, but not exclusively. 36.Prescription medication cannot be dispensed without a trained pharmacist being present. 37.Unlike in respect of the written agreement the arrangement did not incorporate any set hours. Work was offered by telephone and the Claimant could accept it or refuse it. He could choose the pharmacies that he wanted to work at. This is clear from the WhatsApp messages placed before the Tribunal in the main bundle. 38.An hourly rate of pay was agreed.no deductions were made. There was no agreement for holiday or sick pay. There was no pension. The Claimant chose how to do the work and as a registered pharmacist he decided how to deal with prescriptions. It was left to him to organise his work and apply his own skill and expertise. 39.If the Claimant was booked by the Respondent, he was expected to attend but the Tribunal accepted Mr Nawaz evidence that had the Claimant, for example, rung up to say he was sick he could send a fellow registered pharmacist, such was the demand to keep pharmacies open. 40.There was no obligation on the Respondent to offer work to either the Claimant or Click Heath Ltd prior to 01 May 2020. 41.No agreement existed between the Respondent, the Claimant and Click Heath Ltd in any periods when services were not provided to the Respondent. 42.Invoices were submitted in the name of Click Heath Ltd to the Respondent and paid. A study of those invoices (found attached to Mr Nawaz’s statement) showed that whilst the Claimant was working reasonably regularly for the Respondent, he was not working full-time. 43.He was not training staff. He was not doing the full range of duties set out in the written agreement. For the above reasons the Tribunal did not accept the Claimants submission that the parties agreed to commence their relationship on the terms of the written agreement prior to 01 May 2020. Discussion. 44.The Claimant made a number of submissions on the law and rather than repeat those submissions the Tribunal has addressed them whilst explaining its judgement. 45.The Respondent made no specific reference to the law and therefore the Tribunal means no disrespect by not repeating those arguments. 46.To the extent of the Tribunal has not referred to each and every argument that either party made no disrespect is meant to the parties and all their submissions were given due regard. The Statutory Framework 47.A worker is defined by S.230(3) ERA as an individual who has entered into or works under (or, where the employment has ceased, has worked under):- “a contract of employment (defined as a ‘contract of service or apprenticeship’) — S.230(3)(a), or any other contract, whether express or implied, and (if express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual — S.230(3)(b).” 48.Section 43K Extension of meaning of “worker” etc. for Part IVA. “(1) For the purposes of this Part “ worker ” includes an individual who is not a worker as defined by section 230(3) but who— (a)works or worked for a person in circumstances in which— (i)he is or was introduced or supplied to do that work by a third person, and (ii)the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them, (b)contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”, ( ba )works or worked as a person performing services under a contract entered into by him with the National Health Service Commissioning Board under section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to, the National Health Service Act 2006 …. (bb)…. (c) works or worked as a person providing services in accordance with arrangements made –(i) by the National Health Service Commissioning Board under section 126 of the National Health Services Act 2006……. (2) For the purposes of this Part “ employer ” includes— (a)in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged, (aa)in relation to a worker falling within paragraph (ba) of that subsection, the National Health Service Commissioning Board, or the Local Health Board referred to in that paragraph,” 49.In McTigue v University Hospital Bristol NHS Foundation Trust ICR 1155 EAT Simler P summarised the correct approach to determining whether an individual is a worker within the meaning of S.43K(1)(a). The relevant questions a Tribunal should answer in sequence are set out below. The Tribunal would interject that not all are relevant to this case.: o for whom does or did the individual work? o is the individual a worker as defined by S.230(3) ERA (the standard definition of ‘worker’) in relation to a person or persons for whom the individual works or worked? If so, there is no need to rely on S.43K in relation to that person for the purpose of whistleblowing protection. However, the fact that the individual is a S.230(3) worker in relation to one person does not prevent the individual from relying on S.43K o in relation to another person for whom the individual also works and citing that person as a Respondent in Tribunal proceedings o if the individual is not a S.230(3) worker in relation to the Respondent for whom the individual works or worked, was the individual introduced/supplied to do the work by a third person, and if so, by whom? o if so, were the terms on which the individual was engaged to do the work determined by the individual? (If the answer is ‘yes’, the individual is not a worker within S43K(1)(a)) o if the answer to the above is ‘no’, were the terms substantially determined (i) by the person for whom the individual works or worked,(ii) by a third person, or(iii) by both of them? (If any of these is satisfied, the individual is a worker for the purposes of the subsection.) In answering this question, the starting point is the contract (or contracts), the terms of which are being considered. There may be a contract between the individual and the agency, the individual and the end-user and/or the agency and the end-user that will have to be considered. In relation to all relevant contracts, terms may be in writing, oral and may be implied. It may be necessary to consider whether written terms reflect the reality of the relationship in practice o if the Respondent alone (or with another person) substantially determines (or determined) the terms on which the individual works or worked in practice (whether alone or with another person who is not the individual), then the Respondent is the ‘employer’ as defined by S.43K(2)(a) for the purposes of the protected disclosure provisions. There may be two employers for these purposes. 50.In this case work was done for the Respondent. 51.The starting point is whether the Claimant was a worker within the meaning of section 230 of the employment rights act 1996. If he was at the material time then he succeeds and it is not necessary to consider the extended definition. 52.There is a myriad of case law on the definition of a worker. The Tribunal had particular regard to Jivraj -v- Haswani [2011]UKSC 40, Pimlico Plumbers Ltd -v- Smith [2018] UKSC 29 and Windle -v- Secretary of State Justice[2016] IRLR 628. From those decisions it derived the following principles. Firstly, the individual must be under an obligation to do the work personally, secondly the person to whom the work is done must not be a client or customer of a business being run by an individual, thirdly the Tribunal must look at the reality of the situation and a limited right of substitution was not necessarily fatal. 53.The Tribunal determined the Claimant was not a worker within the meaning of section 230 Employment Rights Act 1996 pre 01 May 2020. 54.It did so for the following reasons. 55.Firstly there was no direct contractual relationship between the Claimant and the Respondent. The contractual relationship was between the Respondent and the Claimants company Click heath Ltd. This is evidenced by the fact that all payment was made by the Respondent to Click Heath Ltd. The Claimant in turn extracted remuneration from that company in a tax efficient manner. 56.Secondly the Tribunal is satisfied that prior to 01 May 2020 there was no personal responsibility on the Claimant to undertake work for the Respondent. He could choose to accept it or not accept it. This differed greatly from the proposed position post 01 May 2020.He could send a substitute pre 01 May 2020. The Tribunal preferred the Respondent’s evidence on this point that the need to maintain opening hours of pharmacies was such that any qualified pharmacist would suffice. 57.Thirdly the Claimant was undertaking his own business. He utilised a company that he controlled. He could work for any pharmacies he wanted. He was only paid when he worked. The the Claimant was working on an assignment-by-assignment basis. He could accept or refuse work. The reality was the Claimant was in business on his own account and marketed his services where he wished. 58.It is proper to record the Claimant made reference to Gilham v Ministry of Justice 2019 UKSC 44, SC, where the Supreme Court held that a district judge was able to bring a whistleblowing claim despite not meeting the literal definition of ‘worker’ in S.230(3) because she did not work under a contract. The Court went on to hold that the appropriate remedy was for S.230(3) to be interpreted purposively to include judicial office holders, relying on the Court’s obligation under S.3 of the Human Rights Act 1998. However, that case is distinguishable on the facts given there was no dispute that Ms Gilham had to provide her services personally and could not send a substitute. She was not in business on her own account. 59.The Claimant also made reference to the decision in Community Based Healthcare Ltd -v-Dr Narayan UKEAT/0162/18/JOJ but in the Tribunal’s judgement that does not set out any principle that assists the Claimant. Whilst it is true that the doctor in that case utilised a service company and was held to be a worker within the meaning of section 230 it was a case that turned on its specific facts and in particular on the point of whether there was an undisclosed principal and what points had or had not been taken below. It does not assist this Tribunal in the determination of the matter it faced. 60.the Tribunal having established that the Claimant was not a worker within section 230 the next question was whether he was a worker under the extended definition set out in section 43K. 61.The Claimant relied on section 43K (1) (a). 62.There are two limbs to that definition. The first requires that the Claimant is introduced or supplied to do work by third party. The Tribunal was satisfied the agreement placed before it fulfils that requirement. The Claimant was being introduced to the Respondent via Click Heath Ltd. The mere fact there was a service company does not mean that this limb cannot be satisfied, see Croke -v- Hydro Aluminium Worcester Ltd 2007 ICR 1303 EAT 63.The second requirement namely whether the terms of engagement were substantially determined not by the Claimant but by the person he worked for, by third party or by both of them is also fulfilled The Tribunal reached this conclusion having regard to the very prescriptive nature of the agreement. However, none of the above assists the Claimant because the agreement dated 01 May 2020 never came into force given the Claimant ceased his relationship with the Respondent prior to that date. 64.The Claimant next relied on section 43K(ba) on the basis providing he was providing services to the National Health Service. Again, that does not assist the Claimant because it was not the Claimant who entered into a contract with the Clinical Commissioning Group but the Respondent. 65.Nevertheless the Tribunal was satisfied that the Claimant met the extended definition under section 43K and in particular subparagraph (1)(c ). Section 126 of the National Health Services Act 2006 provides:- “(1)The Board must, in accordance with regulations, make the arrangements mentioned in subsection (3). (2)The Secretary of State must make regulations for the purpose of subsection (1). (3)The arrangements are arrangements for the provision to persons who are in England of— (a)…. (b)…. (i)…. (ii)…. (c) …. (d) such drugs and medicines and such listed appliances as may be determined by the Secretary of State for the purposes of this paragraph and which are ordered for those persons by a prescribed description of person in accordance with such conditions, if any, as may be prescribed, in pursuance of functions in the health service, the Scottish health service, the Northern Ireland health service or the armed forces of the Crown, and (e) such other services as may be prescribed. (4)The descriptions of persons which may be prescribed for the purposes of subsection (3)(d) are the following, or any sub-category of such a description— (a) persons who are registered in the register maintained under article 5 of the Health Professions Order 2001, (b) persons who are registered pharmacists……” 66.Prior to 01 May 2020 the Claimant worked as a person providing services in accordance with arrangements made by the National Health Service Commissioning Board. He was a registered pharmacist. Whilst on the Respondents premises, he was dispensing NHS prescriptions. Although as the Tribunal observed the Claimant used a service company it was he who personally signed off the prescriptions and he was personally accountable to his regulator in respect of those prescriptions. 67.It follows therefore the Claimant is entitled to bring his claim.[19]The Tribunal has received submissions from both the Claimant and Counsel for the Respondent. It means no discourtesy to either party by failing to repeat them here in detail. For present purposes, it may be noted that the Claimant contends that he made protected disclosures and that in direct retaliation, members of staff employed by the respondent made groundless complaints and criticisms of him. These, he says, “infected” Mr Nawaz against him and led to the withdrawal of the offer of a permanent locum manager position at Rotherham Road. It is also the Claimant's case that the other aspects of detriment were carried out in direct response to the COVID related concerns which he had communicated.[20]On behalf of the Respondent, Counsel submitted that there were no qualifying protected disclosures. Insofar as any concerns were raised by the Claimant at all, they were in the nature of the sharing of information intended to protect his own personal position. It is said that the Claimant did not at the material have time any authentic or sincere belief that there was a breach of any legal obligation on the part of the Respondent. Finally, it is submitted that there were no detriments visited upon the Claimant. Insofar as there was any criticism, challenge or conflict, with other members of staff, they were the product of the Claimant’s working practices and entirely unconnected with any expressions of concern which he had raised in respect of COVID.
The Law
[21]Section 43B of the Employment Rights Act 1996 (ERA) provides: (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 8 of 15 (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.”[22]The Tribunal must be satisfied of a number of matters before it may conclude that a qualifying disclosure has been made. Where those conditions are met, the maker of the putative disclosure is provided with protection. The primary form of protection is the right not to be subjected to a detriment on the ground that the relevant disclosure has been made. Section 47B(1) of ERA provides: “A worker has the right not to be subject 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.”[24]It is not every exchange between a worker and an employer which qualifies for protection under Part IVA of ERA. Further, since the PIDA regime does not have its provenance in EU Law, its provisions are subject to the conventional rules of statutory interpretation: Gilham v Ministry of Justice [2017] IRLR 23. The mere raising of expressions of discontent and/or unhappiness will not suffice. As noted in Cavendish Munro Professional Risks Management v Geduld [2010] IRLR 38: “24….Further, the ordinary meaning of giving "information" is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating "information" would be "The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around". Contrasted with that would be a statement that "you are not complying with Health and Safety requirements". In our view this would be an allegation not information.[27]Even if we are wrong in our conclusion that the Employment Tribunal erred in holding that the letter of 4 February 2008 disclosed information within the meaning of the ERA, we consider whether the Employment Tribunal erred in considering whether the letter of 4 February 2008 amounted to or contained a disclosure within the meaning of the section. The natural meaning of the word "disclose" is to reveal something to someone who does not know it already. However section 43L(3) provides that "disclosure" for the purpose of section 43 has effect so that "bringing information to a person's attention" albeit that he is already aware of it is a disclosure of that information. There would no need for the extended definition of "disclosure" if it were intended by the legislature that "disclosure" should mean no more than "communication". (per Slade J)25. In Kilraine v London Borough of Wandsworth [2016] IRLR 422 it was observed: “30. I turn now to the cases in respect of the third and the fourth disclosures. These were rejected. So far as the third is concerned, this was upon the basis that it was an allegation and not a matter of information. I would caution some care in the application of the principle arising out of Cavendish Munro. The particular purported disclosure that the Appeal Tribunal had to consider in that case is set out at paragraph 6. It was in a letter from the Claimant’s solicitors to her employer. On any fair reading there is nothing in it that could be taken as providing information. The dichotomy between “information” and “allegation” is not one that is made by the statute itself. It would be a pity if Tribunals were too easily seduced into asking whether it was 9 of 15 one or the other when reality and experience suggest that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one or rather the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information. If it is also an allegation, that is nothing to the point.”26. The analysis of Langstaff J outlined above was affirmed by Sales LJ in the Court of Appeal [2018] EWCA Civ 1436: “30. I agree with the fundamental point made by Mr Milsom, that the concept of "information" as used in section 43B(1) is capable of covering statements which might also be characterised as allegations. Langstaff J made the same point in the judgment below at [30], set out above, and I would respectfully endorse what he says there. Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between "information" on the one hand and "allegations" on the other. Indeed, Ms Belgrave did not suggest that Langstaff J's approach was at all objectionable.[31]On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision.[32]In my view, Mr Milsom is not correct when he suggests that the EAT in Cavendish Munro at [24] was seeking to introduce a rigid dichotomy of the kind which he criticises. I think, in fact, that all that the EAT was seeking to say was that a statement which merely took the form, "You are not complying with Health and Safety requirements", would be so general and devoid of specific factual content that it could not be said to fall within the language of section 43B(1) so as to constitute a qualifying disclosure. It emphasised this by contrasting that with a statement which contained more specific factual content. That this is what the EAT was seeking to do is borne out by the fact that it itself referred to section 43F, which clearly indicates that some allegations do constitute qualifying disclosures, and by the fact that the statement "The wards have not been cleaned [etc]" could itself be an allegation if the facts were in dispute. It is unfortunate that this aspect of the EAT's reasoning at [24] is somewhat obscured in the headnote summary of this part of its decision, which can be read as indicating that a rigid distinction is to be drawn between "information" and "allegations".[33]I also reject Mr Milsom's submission that Cavendish Munro is wrongly decided on this point, in relation to the solicitors' letter set out at [6]. In my view, in agreement with Langstaff J below, the statements made in that letter were devoid of any or any sufficiently specific factual content by reference to which they could be said to come within section 43B(1). I think that the EAT in Cavendish Munro was right so to hold.[34]However, with the benefit of hindsight, I think that it can be said that para. [24] in Cavendish Munro was expressed in a way which has given rise to confusion. The decision of the ET in the present case illustrates this, because the ET seems to have thought that Cavendish Munro supported the proposition that a statement was either "information" (and hence within section 43B(1)) or "an allegation" (and hence outside that provision). It accordingly went wrong in law, and Langstaff J in his judgment had to correct this error. The judgment in Cavendish Munro also tends to lead to such confusion by speaking in [20]- [26] about "information" and "an allegation" as abstract concepts, without tying its decision more closely to the language used in section 43B(1). 10 of 15[35]The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a "disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in subparagraphs (a) to (f)]". Grammatically, the word "information" has to be read with the qualifying phrase, "which tends to show [etc]" (as, for example, in the present case, information which tends to show "that a person has failed or is likely to fail to comply with any legal obligation to which he is subject"). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). The statements in the solicitors' letter in Cavendish Munro did not meet that standard.[36]Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.” 27. Clearly, the statement relied upon must be made in the public interest. In any event, at the time of making the statement, the Claimant must hold a reasonable belief that the information tends to show one of the eventualities provided for in section 43B ERA: Korashi v Abertawe Bro Morganwg University Local Health Board [2012] IRLR 4: “17. The introduction into the Employment Rights Act 1996 of protection for whistleblowers by reason of the Public Interest Disclosure Act 1998 (“PIDA”) provided rights to workers amenable in the Employment Tribunals. Part IVA and V deal with the law and the procedure. For the purposes of this case, a “protected disclosure” by section 43A must be a “qualifying disclosure” for the purposes of s43B: it is a disclosure which in the reasonable belief of the worker making the disclosure tends to show one or more of matters such as a criminal offence or a failure to comply with a legal obligation. It is common ground that the disclosures relevant in this appeal are qualifying disclosures under s43B”. (per HHJ McMullen) 28. Where the Claimant relies upon multiple disclosures, it is necessary for the Tribunal to engage with each putative disclosure discretely: Barton v Royal Borough of Greenwich UKEAT/0041/14. (adopting Bolton School v Evans): “80. A protected disclosure must be a disclosure of information; a linked point is that one cannot convert a disclosure that does not qualify, for example because it is not a disclosure of information, by associating it with another disclosure that does qualify.” (HHJ Serota) 29. In consequence, it is for the Claimant to satisfy the Tribunal that the putative disclosure:(i) was made in the public interest; and(ii) tends to show’ one of the statutory categories of failure (i.e. those detailed in section 43B(1) ERA. The burden 11 of 15 of proof is clear: Boulding v Land Securities Trillium (Media Services) Ltd UKEAT/0023/06” 24. “As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following. (a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on. (b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. 25. "Likely" is concisely summarised in the headnote to Kraus v Penna PIc [2004] IRLR 260 EAT Cox J and members: “In this respect "likely" requires more than a possibility or risk that the employer (or other person) might fail to comply with a relevant obligation. The information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable, or more probable than not that the employer (or other person) will fail to comply with the relevant legal obligation. If the claimant's belief is limited to the possibility or risk of a breach of relevant legislation, this would not meet the statutory test of likely to fail to comply":". (per HHJ McMullen) 30. The Tribunal has reminded itself that the six categories detailed in section 43B ERA are not synonymous (Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540) that the act or failure relied upon may relate to the act or omission of a third party (Hibbins v Hesters Way Neighbourhood Project [2009] IRLR 198) and each putative disclosure and detriment must be considered separately(Blackbay Ventrures Ltd v Gahir [2014] IRLR 416). 31. In this respect, whilst there is no statutory definition of the term ‘detriment’, the Tribunal should engage with the concept in a similar manner to that encountered in discrimination cases: (e.g. Shamoon). However, it remains clear that the Tribunal must be satisfied that the act or omission in question said to constitute the detriment must have been “on the ground that”. In discharging the burden of proof upon it, the Respondent must show that the protected acts did not materially influence the decision(s) (Fecitt v Manchester [2011] EWCA Civ 1190). 32. Further, and on the question of causation, clear guidance was provided in Bolton School v Evans [2006] EWCA Civ 1653, namely: “18. But even assuming, contrary to what he has said in paragraph 17, that Mr Evans's whole course of conduct should be regarded as a continuing act of disclosure, the employer's reason for the warning, as found by the ET, was its belief that Mr Evans had at the same time committed an act of misconduct. That was, in the terms of section 103A, the reason (or, if more than one, the principal reason) for what turned into a constructive dismissal. While I agree that the tribunal should look with care at arguments that say that the dismissal was because of acts related to the disclosure rather than because of the disclosure itself, in this case there is no reason to attribute ulterior motives to the employer. Although not seized of this point, the EAT made observations that are very pertinent to it in paragraph 64 of its determination: "In this case the employee had not been subject to any discipline proceedings when he had earlier forcibly expressed views about the security system that should be adopted, nor is there any reason to suppose that he would have disciplined if he had simply informed the school that someone else had hacked into the system. 12 of 15 The employers acted because of their belief that it was irresponsible for him to have done so even if the purpose was to demonstrate the force of his concerns." (per Buxton LJ) Discussion and Conclusions Did the Claimant make any qualifying disclosure? 33. Given these legal principles, the first question for the Tribunal is whether or not the communications transmitted by the Claimant are capable of satisfying the legal test for qualifying disclosures are set out in section 43B ERA. In approaching this question, the Tribunal is mindful of its obligation to consider each of the alleged disclosures in turn. Having done so it has concluded as follows: PIDA 1 12 March 202033.1 The communication transmitted by the Claimant to Mr Nawaz was an authentic expression of concern regarding health and safety in the workplace. The Claimant held the belief that Mrs Gent was not complying with the emerging guidance regarding selfisolation. He raised this with her and met with resistance. The Claimant’s concern was reasonable given the symptoms acknowledged by Mrs Gent. The Tribunal acknowledges that the concern was raised in the public interest given the role undertaken by Mrs Gent within the pharmacy. The information provided by the Claimant to Mr Nawaz tendered to show non-compliance with a legal obligation; namely the guidance issued by Public Health England. In these circumstances, the communication may properly be classified as protected disclosure. PIDA 2 30 March 202033.2 In the view of the Tribunal, this communication was issued by the Claimant in order to communicate to his own operational preferences. The Claimant did not hold the belief that the Wickersley Pharmacy (any particular member of staff, or anyone else) was acting in breach of any legal obligation. Nor did the Claimant have any reasonable grounds to conclude otherwise. This communication was not made in the public interest. It was directed to the Claimant’s own preference and concern for his safety. In the view of the Tribunal this communication was in the nature of the expression of a personal preference and interest and does not qualify as a protected disclosure. PIDA 3. 22 April 202033.3 During the hearing, an issue arose as to whether the third putative disclosure was said to have occurred on 6 April 2020 or 22 April 2020. However, the judgment of Employment Judge Smith of 1 March 2021 records the final putative disclosure to have been made on 22 April 2020. The issues in the proceedings have been defined accordingly and this Tribunal has proceeded upon this basis; and33.4 This communication was transmitted by the Claimant to Mr Nawaz on 22 April 2020. It refers to non-adherence to the 2m rule in Dinnington Pharmacy. It confirms that in response, the Claimant has decided to utilise the consultation room for clinical checks. The Tribunal is satisfied that the Claimant held a reasonable belief that the necessary safety obligations (i.e. the 2m principle) were not being adhered to. Within the dispensary. However, it does not accept that the provision of information was in the nature of a disclosure or made in the public interest. The Claimant was 13 of 15 communicating to Mr Nawaz his own decision concerning his workplace practices at Dinnington and how they might impact upon his own routines. Was the Claimant subjected to a detriment? 34. In addressing this aspect of the case, it is necessary for the Tribunal to consider first that the Claimant was in fact subjected to the treatment complained of and thereafter, whether such treatment was on the ground of his having made a protected disclosure. In this respect, the Claimant relies upon what he considers to be the negative treatment from Mrs Gent and others, the failure to allocate the Claimant shifts and the decision on the part of the Respondent to withdraw from the in principal negotiations around the permanent locum manager role. 35. As previously noted, The tribunal is required to consider each of the alleged detriments in turn and ascertain whether or not, on the evidence before it, those matters occurred on the grounds of the Claimant having made a protected disclosure. In this respect, the Tribunal has reminded itself that the burden of proof rests with the respondent. 36. Having considered each in turn, the Tribunal is satisfied that the detriments relied upon by the Claimant were unconnected to any protected disclosure which he had previously made. In relation to the complaints generated by staff (including Mrs Gent) the Tribunal is satisfied that they represented authentic and sincere expression of dissatisfaction as to the level of the Claimant’s contribution to the pharmacies in which he worked. It is no part of the Tribunal's function to determine whether or not those concerns were justified. However, the evidence which the Tribunal has heard, it is clear that those concerns emanated from individual employees who perceived the Claimant to be either shirking his responsibilities or simply failing to contribute to resolving the operational demands which each of the pharmacies faced.[37]In the cases Mrs Gent, her concern was driven by a desire to meet the needs of patients. She was also concerned that the activities-as she perceived them-of the Claimant were depriving the pharmacy of a much-needed resource and, in operational terms, increasing the workload of others.[38]Mr Nawaz made the decision not to commit to the Claimant’s position at Rotherham Road. He did so for reasons which were unconnected to any putative disclosures. Mr Nawaz is commercially responsible for the operation of these pharmacies. His chief concern was that the pharmacy service provided by them would be continued through the course of the pandemic for the ultimate benefit of patients. The reception of complaints from members of staff raised a legitimate operational concern regarding working relationships and the performance of the pharmacies in which the Claimant had been invited to work. Any doubt in this respect is removed when consideration is given to the shifts offered the Claimant. They continued after each of the alleged disclosures. In the view of Mr Nawaz, he was desperate to retain pharmacists as far as possible. His decision regarding the previously discussed position for the Claimant was, in the view of the Tribunal, wholly attributable to the legitimate concern that the Claimant’s performance would continue to be perceived negatively by his colleagues and would serve as an impediment to the service which he was obliged to deliver and the collaboration of members of staff in that regard.[39]In all the circumstances the Tribunal is satisfied that the allegations of whistleblower detriment are not well founded and must be dismissed.[40]Had it been necessary to do so, the Tribunal would have concluded that insofar as the matters relied upon by the Claimant pre-dated 6 April 2020, they would have been out 14 of 15 of time. They did not form part of a course of conduct. The acts in question were isolated acts. They were not continuing in nature. The Claimant has not laid before the Tribunal any material upon which to conclude that he was in doubt with regard to his legal entitlements or the means by which to pursue them.