Mr A Ghaffar v Age UK Calderdale and Halifax: 1805837/2018

EMPLOYMENT TRIBUNALS

Case No 1805837/2018

Between

Mr A GhaffarClaimant

Age UK Calderdale and HalifaxRespondent

Before

Employment Judge D N Jones

Mr Falcao (instructed by solicitor) for respondent

Date 10 June 2019

JUDGMENT

[1]The claimant was unfairly dismissed by the respondent.

[2]The reason for the dismissal was not because the claimant had made a public interest disclosure.

[3]Had the respondent adopted a fair procedure there was an 80% chance the claimant would have been retained in employment on a contract at 25 hours per week.

REASONS

[1]On 30 January 2018 Mr Ghaffar, the claimant, received written notice that his employment with Age UK Calderdale and Kirklees, the respondent, would end after 11 weeks, on 30 April 2018, by reason of redundancy.

[2]In these proceedings the respondent has admitted that this dismissal was unfair, because errors occurred in the scoring exercise. The managers undertaking it had misapplied the guidance in respect of the selection criteria concerning the duration and frequency of sickness absence. Had it been applied correctly, all candidates would have received the same score overall. Because of the mistaken computation of the claimant’s score in respect of sickness, he had a lower overall mark than the other three in the pool and was the one who was made redundant.

[3]The principal issue in this hearing was whether dismissal was unfair for another reason, because the claimant said he made a number of public interest disclosures. Further issues were whether the dismissal was unfair for additional reasons, being a failure properly to consult and apply the redundancy policy, to consider and offer the claimant suitable alternative employment and whether he would or might have been dismissed in any event had a fair procedure been adopted. The facts/background

[5]The respondent is a registered charity, operating under a brand partnership agreement with Age UK. It receives funding from a variety of sources including charitable donations, grants from local government and health authorities and the profits derived from the sale of insurance products by a separate company called Age UK Calderdale and Kirklees Training Ltd (“Trading”).

[6]The claimant commenced employment with the respondent on 8 October 2007. He was employed as an Information and Advice worker.

[7]On 25 August 2017 a number of staff of the respondent attended at a social event at the Percy Shaw public house in Halifax. Mr Hillyard, who is a trustee and non-executive director of the Board of the respondent, was present throughout the evening. Whilst in the company of a small group of the staff, which included the claimant, he initiated a discussion as to how the charity could do better. A number of suggestions were made. At one point during the evening, the claimant said to Mr Hillyard that he did not believe the appropriate recruitment policies had been followed for the appointment of three members of staff. One was Mrs Susan Cromack, the insurance supervisor at Trading. In his evidence the claimant said that others had complained that Mr Cromack and Carol Rodmell, who was at the time the quality manager, adopted bullying practices and that he then volunteered that Mr Cormack was guilty of misusing the charity’s funds by creating jobs for family and friends and recruiting to those posts without following standard procedures, in breach of the charity’s guidelines. Mr Hillyard denied that the complaints were as extensive as this.

[8]I prefer the evidence of Mr Hillyard about what had been said on this occasion. Inevitably, both accounts suffered from the substantial elapse of time. The witnesses were recalling a discussion which took place months before over a short period. Neither made a record of it. The claimant’s recollection was unreliable. He was adamant at the outset of the hearing that Mrs Rodmell and Rachel Horner, financial executive, had been present when the discussion took place. He was reluctant to accept that Mrs Rodmell was not present even after she had produced documentation which conformed that she had been on holiday overseas. Only when she produced a photograph of herself in Portugal with friends, dated 25 August 2017, did the claimant reluctantly concede the point. This was an example of the tricks that the memory can play. I bear in mind that it is the claimant who has the burden of proving facts relating to the alleged protected disclosure. I am not satisfied, on the evidence, that the conversation went beyond him raising concerns about the appointment of three members of staff contrary to recruitment practices and policies, one of whom was Mrs Cromack.

[9]On a date in September 2017, which the parties have not identified, a further discussion took place between the claimant and Mr Hillyard, who had attended at the Batley office. Mr Hillyard has no recollection of what had been said. I accept the claimant’s evidence that he complained that Mr Cromack had misused charitable funding. In his witness statement, he said that he also had said that the respondent’s whistleblowing procedure was non-existent. I do not find that was likely. It was not included in the further particulars provided by the claimant in these proceedings. He had been required specifically to identify what he had said.

[10]Although not in his own witness statement, I consider it likely that the claimant raised concerns about recruitment practices and promotions, referring to the fact that Mrs Cromack had been interviewed by her husband before being appointed to a more senior post at Trading. I also consider it likely that the claimant said he had raised the matter before, in August 2017. I take this from the email of Shazad Sadiq, dated 30 August 2018. He was one of the Information and Advisory team. He had been specifically asked about these matters, in an email, by Mrs Butland, for the purpose of the preparation of this case by the respondent. He was not called as a witness and his evidence is hearsay. It requires some caution and would normally carry far less weight as evidence than that tested by cross-examination. However, Mr Hillyard had no recollection of this conversation. The claimant produced a briefer account of what had been said. There was no suggestion from either party that Mr Sadiq had any other motive than to do his best to recall what had happened. His first remark in the email makes it clear he was unsettled to become personally involved in the matter. Given all the difficulties surrounding the accuracy of discussions which took place over a matter of a few minutes, based upon recollections many months later, I find the consistency between the account of the claimant and Mr Sadiq persuasive and the further detail in Mr Sadiq’ email summary likely to be correct.

[11]On 23 January 2018, Mrs Butland received notice that the Calderdale CCG was not to renew a grant which had been provided annually for a number of years, from 31 March 2018. That would reduce funding by £180,000. Mrs Butland had to review the service in the light of the reduced budget. The CCG grant had provided funding for one member of the Information and Advisory team, one advocate and all 3 staff in the home from hospital service. The reduced funding led to the loss of all three staff from the home from hospital service and the advocate. In addition all four members of the Information and Advisory team were given notice of the termination of their employment, by letter of 30 January 2018. The service was to be continued by the re-appointment of three of the four, following a consultation process, albeit that was not made clear in the letter. The Information and Advisory service was a core part of the respondent’s provision.

[12]Mr Cormack held a meeting with those employees who were affected by the redundancy situation on 30 January 2018, before giving letters to each. He explained how the situation had arisen. He said that there would be a consultation period with meetings with staff on a one-to-one basis. They could put forward any ideas to avoid the situation. He said that attempts would be made to fill the funding gap.

[13]Mrs Butland secured an extension of the funding from the Calderdale CCG to 30 April 2018.

[14]In the letter of 30 January 2018. the claimant was given notice of 11 weeks to expire on 30 April 2018. He was informed there would be a period of consultation during the notice period and that opportunities would be given for suitable posts within the organisation for alternative employment if vacancies arose. Priority would be given to those at risk.

[15]On 1 February 2018 the claimant telephoned Mr Hillyard. He raised an issue concerning a printer at the Batley office and then asked Mr Hillyard whether he was aware that he had been made redundant. He asked Mr Hillyard if he recalled him mentioning the recruitment of Mrs Cromack the previous year. Mr Hillyard said he did. He was shocked to learn that the redundancy notices had been issued because, as a trustee, he considered the Board should have been consulted. He was annoyed. He immediately contacted Mrs Butland about how this had come about. Mrs Butland sent an email to the Board the next day to explain the loss of funding and the urgent plans which were taking place to salvage any jobs.

[16]On 5 February 2018 Mrs Butland informed those affected employees by email that she had not persuaded the CCG to extend the funding further and she encouraged the staff to book their one-to-one meeting with Mr Cromack or herself.

[17]On 12 February 2018 the claimant met Mrs Butland at a one-to-one consultation meeting.

[18]On 19 February 2018 Mrs Butland wrote again to the affected employees to offer fortnightly one-to-one meetings to answer any questions. She took up a suggestion for each affected team to meet and asked Mr Cromack to arrange that.

[19]On 19 February 2018 the claimant wrote to Mrs Butland to say she had not responded to his questions raised in the one-to-one meetings and she responded that day to say she was seeking external advice upon it which was sent by post later that day. In response to the query she said that if the claimant were to be offered reduced hours and he turned it down he would not be entitled to a redundancy payment if it was suitable for him. She reiterated that there would be fortnightly updates. She informed him that there would be home help positions available if he wished to apply.

[20]On 28 February 2018 the respondent’s internal weekly newsletter included reference to the withdrawal of the CCG grant with the cessation of part of the service. It stated that the information and advice service would continue but with reduced staff.

[21]On 1 March 2018 Mrs Butland wrote to the claimant and informed him that the Board of Trustees had met to discuss the implications of the withdrawal of the CCG grant. She informed him that the team would have a reduction of hours of between 30 and 37.5 hours per week. She invited ideas as to how that could be achieved by 6 March 2018 and asked for any expression of interest in redundancy.

[22]On 1 March 2018 the claimant sent an email to Mrs Butland and asked what the total allocation of hours in the information and advisory service would be after reduction. He also asked what specific hours would be allocated to each adviser. In response, the following day, Mrs Butland informed the claimant that the managers were not offering specific hours to specific staff but were looking to them to come up with a solution during the consultation process. She said this had been done with another team.

[23]On 3 March 2018 the claimant replied and asked for further details about which team had agreed to redistribute its hours. Mrs Butland replied on 5 March 2018 and informed the claimant that it was the insurance team. It had to make savings. She said she would ask Sue Cromack, of that department, if she would be happy to speak to members of the claimant’s team.

[24]Ms Connor requested details of the reduced hours. Mrs Butland stated it would be 85 to 87. On 7 March 2018 the four members of the team met to discuss any suggestions to move matters forward. Following the meeting Mrs Butland emailed Ms Connor to ask her the outcome. On 9 March 2018 Ms Connor replied by email. She said there was a need to provide the service in three extensive areas, North Kirklees, Great Huddersfield and Calderdale, on reduced hours. She said the team had explored options, that some ideas were constructive and wide-ranging and hopefully they could make a positive contribution during the one-to-one meetings. She posed questions about the vision for the future of the service and said that she would be able to give relevant suggestions following the answers. In response Mrs Butland said she would be consulting with the executive team to agree the future composition of the information and advisory team and that she would be in touch.

[25]On 6 March 2018 the claimant sent an email to his team colleagues and Mrs Butland which said simply, “Read it in the insider……”. This was an ironic reference to the fact that information concerning the reduction of the team had first been published in the internal weekly newsletter and not provided first to the team members. Another employee had posted comments upon Facebook. Mrs Butland sent an email to the team to inform them that she expected all to behave in a professional manner. She attached a copy of the code of conduct. She considered regarded the actions of the claimant and other member of the team as falling short.

[26]The claimant had a second one-to-one meeting with Mrs Butland on 12 March 2018. A short note of this meeting was made by Mrs Butland. The claimant said in evidence that he handed her the code of conduct and drew attention to the passage which related to recruitment practices. Paragraph 15 of the Code states that ‘in order to avoid any possible accusation of bias, employees should not be involved in an appointment where they are related to an applicant, or have a close personal relationship with him or her’. The claimant said that he asked Mrs Butland to act upon it with respect to Colin Cromack having created a job for his wife and recruiting her himself. He says his words were “Colin has effectively been stealing money from age UK by giving this job to his wife and nobody cares and nobody will do anything!’. He said Mrs Butland passed the code back to him.

[27]Mrs Butland denies there was any such conversation. It is not referred to in her notes. There is a reference at the commencement of the meeting to the claimant saying executives were not telling the truth. At the end of the meeting there is also reference to the claimant still being upset about the insider (the weekly newsletter). The remainder of the notes concern the plans of the executive and the claimant’s concern of a lack of information.

[28]I am not satisfied the claimant had the discussion he set out in his witness statement and evidence. It is not referred to in the claim form at all. He only mentions discussions with an Age UK trustee in late 2017. This is plainly a reference to the discussions with Mr Hillyard. In explaining its omission in cross-examination, the claimant said that he was not familiar with legal procedures and had been advised by Mr Wharton that he could add further information at a later stage.

[29]I do not find this a convincing explanation for the omission. This alleged disclosure would have been critical to the events which followed. That is, if the reason for the claimant’s selection for redundancy was because he had made public interest disclosures, the most significant one would have been that to one of the decision-makers, Mrs Butland, the most senior executive officer. The discussion with a trustee, who he had no reason to believe had been involved in that process directly, would have secondary importance. I find it inconceivable that the claimant would have failed to refer to this important fact. It is not a question of understanding legal procedures, but rather that in the mind of any litigant this part of the history would be critical and so would be set out in the factual account in the claim form.

[30]A further difficulty is that there are variations in the account he has given about what he actually said. His witness statement differs from the further particulars. Employment Judge Rogerson had ordered the claimant to explain what precisely was said. The particulars do not make reference to a suggestion that a job had been created for Mrs Cromack and in re-examination the claimant said he had never alleged that Mr Cromack had created the job for his wife. But his witness statement specifically states, at paragraph 17, that he told Mrs Butland, on 12 March 2018, that Mr Cromack had created a job for his wife. At paragraph 11 he stated that he told Mr Hillyard on 25 August that Mr Cromack had created jobs for family and friends. This could only be a reference to the job Mrs Cromack had been appointed to, because the other two promotions the claimant had mentioned were not relatives of Mr Cromack. This shift in respect of what had actually been said was damaging to the claimant’s reliability as a witness.

[31]I also had regard to the contemporaneous note of the meeting Mrs Butland had made, which supported her recollection and not the claimant’s as well as the letter she wrote, of 15 March 2019, in which she recorded some of the queries the claimant had raised.

[32]On 12 March 2018 Mr Cromack wrote to the team to arrange a further meeting. On 30 March 2018 a letter was sent to all team members and expressions of interest were invited for posts, two at 37.5 hours per week and one at 15 hours per week, in the proposed new structure. The claimant’s request for an extension of time, because he was on leave, was refused because of time limitations. In the event, none of the team wrote to express an interest.

[33]On 23 March 2018 Mrs Butland, Ms Horner and Mr Cromack met and allocated marks in the redundancy scoring exercise. A blank copy of the scoring matrix had been sent out with the redundancy policy in the letter of 30 January 2018. The claimant was allocated an overall score of 110. The other three received a score of 125. The differential arose from the scoring of duration and frequency of sickness absence. The managers used the claimant’s total absences over the last three years. The requirement was to divide that by the number of years recorded and, if duration was for fewer than six days and frequency fewer than three occasions, the top mark should have been allocated. The managers did not divide the total by three years, as required. The claimant’s redundancy was confirmed by letter dated 23 March 2018. He was informed that although he had not expressed an interest in any of the posts, it had been deemed fair to consider him as against them.

[34]Mr Wharton submitted that neither the meeting nor the scoring exercise took place. Mr Wharton relied upon an inconsistency, a different date in paragraph 24 of Mrs Butland’s witness statement, in which she stated that the meeting was on 21 March 2018. I am satisfied that this was simply an error. Mr Cromack said the meeting was on 23 March 2018. In cross examination Mrs Butland said that she had checked her diary and the correct date was 23 March 2018.

[35]Additionally, he suggested Ms Horner could not have been present at such a meeting because in an email dated 8 May 2018, Mrs Rodmell had stated that Ms Horner had not been involved in ‘the process’. That was not a reference to the scoring exercise, but the consultation process. It was made in connection with later events, when an instruction had been given to the claimant only to communicate through Mrs Butland. Ms Horner was asked to collect the claimant’s work equipment. Mrs Rodmell explained in cross examination the context of this email chain and what she had meant when she said Ms Horner had not been involved in the process, namely the consultation process. I accepted that explanation. The claimant had not been dealing with Ms Horner during the consultancy exercise, but with Mr Cromack and Mrs Butland. Any anticipated conflict at a meeting to return work equipment would be less likely with Ms Horner. The claimant had not been informed of her involvement in the scoring exercise.

[36]I reject the submission of Mr Wharton that the meeting at which the scoring exercise took place never occurred. I do not accept that Mrs Butland and Mr Cromack have lied about it on oath.

[37]On 2 April 2018 the claimant wrote to Mr Hillyard. He expressed his concern that he had been selected for redundancy because he had raised concerns with various colleagues about ‘disreputable and unlawful practices’. He asked Mr Hillyard to provide a statement for legal proceedings concerning a discussion about Mr Cromack recruiting his wife in a highly suspect way to the post of insurance manager. Mr Hillyard replied to say he would be happy to provide a statement and he did so on 10 July 2018.

[38]The claimant submitted a notice of appeal on 4 April 2018 (wrongly dated 4 March 2018). He set out four grounds. The first was that no alternatives were considered, the second was that the selection criteria and scoring process did not appear to have been applied, the third was the procedure had not been followed and the fourth was that he was concerned that he had been selected because he was an older Asian person.

[39]The appeal hearing was arranged for 20 April 2018. A management response to the four points of appeal was sent on 16 April 2018. Mr Wharton requested permission to represent the claimant by email of 17 April 2018. This was declined because he was not a trade union representative or work colleague. The claimant was informed, on 18 April 2018, that he could provide representations in writing. He did so, on 19 April 2018.

[40]He included three further points to his grounds of appeal. Towards the end of the submission the claimant wrote, “please confirm that I have made public complaints about the unlawful misuse of charitable funds by my line manager Colin Cromack in employing his own wife for Age UK position under highly suspect circumstances”.

[41]On 20 April 2018 the staffing subcommittee met and considered the appeal. The claimant did not attend. Mrs Ellis and two other trustees dismissed the appeal and wrote to the claimant that day. The letter addressed a number of the points raised in seven numbered paragraphs, but did not specifically respond to the issue of any public interest complaint. The claimant and Mr Wharton alleged that Mrs Ellis and Mrs Butland had not provided the further written submission to the other members of the panel, because there was no email chain copying them in. That was because Mrs Rodmell had made paper copies for the panel. The letter sent by the panel to the claimant specifically addressed an issue which he had raised in his additional grounds of appeal about one member of the panel being a wheelchair user. It is clear from this that the panel had considered the written representations. The suggestion that the panel did not have a copy of it was conjecture, without any evidence in support. I reject it.

[42]One of the issues which the appeal panel considered was whether the claimant’s absences due to illness should have been discounted because, in his appeal letter, he stated he had a disability of diabetes and was carrying for his wife who was also disabled. Ms Dixon, the external human resources adviser commissioned by the respondent, advised that the records needed to be checked. That was done and they did not disclose any obvious connection to diabetes. The panel therefore concluded that the scoring was accurate and was the reason the claimant had been selected.

[43]The panel asked Mr Cromack, who was presenting the management case, about the allegation concerning the appointment of his wife. Mr Cromack told them that she was employed by Trading and not the charity and that he had been involved in the process of her appointment as a technical advisor to Mrs Marsh, the corporate services executive. The appointment had been in 2010. Mrs Cromack had worked for Trading prior to that appointment and was still in its employment at the date of appeal. The panel concluded that this had no bearing upon the selection of the claimant for redundancy. It left the matter for Mrs Butland to investigate, if she saw fit.

[44]On 20 April 2018 Mr Cromack wrote to the claimant and informed him that he had been asked to liaise with him regarding his proposal for a job share to avoid redundancy. He invited him to reply within three days to express how many hours he would wish to consider as an alternative to redundancy. This is because one of the panel members, Mr Felton, was concerned that no stone should be left unturned to assist in this difficult situation. Mr Cromack accepted that suggestion during the appeal hearing.

[45]Mrs Rodmell restricted the claimant’s access to the respondent IT equipment for the last days of his employment. He had been absent on sick leave from 26 March 2018 until 30 April 2018 when his employment terminated. Mrs Butland acted upon the advice of Ms Dixon. She was concerned the claimant might say something inappropriate to other staff if he could use his email.

[46]The claimant lodged formal complaints with the national charity Age UK and with the Charity Commission about Mrs Cromack’s appointment. These were not taken forward by those bodies. The Law Unfair dismissal

The Law

[47]By Section 98(1) of the Employment Rights Act (ERA 1996) it is for the employer to show the reason for the dismissal and that it falls within a category recognised in Section 98(1) or (2), one of which in that the employee was redundant, see Section 98(2)(c).

[48]Under Section 98(4) of ERA “where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.

[49]There is no burden of proof in respect of the analysis to be undertaken under Section 98(4) of the ERA. Material considerations in a case where the reason for the dismissal was redundancy will include whether the employer consulted the employees at an early stage with a view to considering whether the redundancy could be avoided and, if it could not, to provide information about the procedure and the criteria to be used in selecting the employees for redundancy, to consult with the affected employees and provide a right of appeal, see Williams v Compair Maxam Ltd

[1982] ICR 156

[50]By Section 123(1) of the ERA, the amount of the compensatory award shall be such amount as the Tribunal considers just and reasonable in all the circumstances having regard to the losses sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer. If the dismissal is unfair for procedural reasons, the Tribunal may reduce or extinguish any compensatory award, if the Tribunal concludes that the complainant would or might have been dismissed had the procedures been fair1. 1 Polkey v A E Dayton Services Ltd

[1988] ICR 142

[51]By section 103A of the ERA dismissal will be regarded as unfair if the reason or, if more than one, the principal reason for the dismissal is that the employee made a protected disclosure.

[52]The disclosure will qualify for protection if it is a disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show one or more aspects of wrongdoing defined in section 43B of the ERA, one of which is that a criminal offence had been is being or is likely to be committed. If qualifying, the disclosure would be protected if it is made to the worker’s employer, see section 43C of the ERA. Analysis and Conclusions Unfair dismissal on the ground that the claimant had made protected disclosures

[53]I have made findings about precisely what was said by the claimant to Mr Hillyard and Mrs Butland about the information which was disclosed in respect of the alleged protected disclosures. The wrongdoing alleged is the commission of a criminal offence.

[54]On 25 August 2017 the claimant told Mr Hillyard that he believed the appropriate recruitment policies had not been followed for the appointment of three members of staff and this included Mrs Cromack. That, of itself, was not disclosure of information which tended to show that a criminal offence had been committed. A failure to follow policies would not indicate that a criminal offence had been committed.

[55]However, what was said on separate occasions can be taken together, for the purpose of determining whether the disclosures were protected2. The claimant relied upon the August and September disclosures to Mr Hillyard in the further particulars, but not the discussion the following February.

[56]In September 2017 the claimant told Mr Hillyard that Mr Cromack misused charitable funding and that he was concerned about recruitment practices and promotions. He specifically said that Mr Cromack interviewed his wife for the post at Trading where she had worked and she had been appointed to it. Reference to misuse of charitable funds takes the level of wrongdoing further and could, subject to the context and other circumstances, tend to show the commission of a criminal offence. Misuse of charitable funds could amount to theft.

[57]In Kilraine v London Borough of Wandsworth

[2018] ICR 1850

the Court of Appeal considered the principles under section 43B of the ERA. For a disclosure to be qualifying it must have a sufficient factual content and specificity to be capable of tending to show one of the defined acts of wrongdoing, in this case a criminal offence. At paragraph 36 of the decision Sales LJ said, “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”. To 2 Norbrook Laboratories (GB) Ltd v Shaw

[2014] ICR 540

address that question in the present case, it is necessary to examine both what was said and what it could reasonably have tended to show.

[58]The starting point is what happened and then what became known to the claimant. Mr Cromack’s evidence about his involvement in the appointment of his wife and the account which he gave to the appeal panel, was that he did not appoint his wife to the post, but was present at the interview to give technical advice. She had already been in the employment of Trading and this was an application for a promotion. She and one other internal candidate applied and Mrs Cromack was successful. I accepted Mr Cromack’s evidence. I am satisfied, in common with the present code of conduct of the respondent, this was not good practice and had every possibility of raising the suspicion amongst others of bias.

[59]In her evidence Mrs Rodmell said that she had previously been aware that Mr Cromack had some involvement in the appointment of his wife. The claimant said this was well known and I am satisfied there were rumours about it for several years amongst the workforce of both organisations.

[60]Mr Falcao submitted that the claimant knew that the appointment was to a limited company which was separate to the respondent charity and therefore the charity’s funds were protected and not used for that purpose. He therefore submitted that the claimant could not reasonably believe that the funds were misused. By way of a legal analysis that is a reasonable proposition. But I am not satisfied it is a complete answer to the approach to be undertaken under section 43B of the ERA. Trading was a company wholly owned by the respondent. It sold insurance products and other services. Whilst it operated autonomously its practice had been to donate any profit to the respondent. If its generation of profit was adversely affected by an improper appointment, it could impact upon the respondent, albeit indirectly.

[61]The problem for the claimant is a different one. It is that the facts which came to his attention did not tend to show a misuse of charitable funds, the part of the disclosure which might have tended to show the commission of a criminal offence. The information which had come to his attention, that Mr Cromack had been involved in the appointment of his wife to a post with an associated organisation, could reasonably amount to a belief that the appointment had been tainted with nepotism. That form of bad recruitment practice does not give rise to any criminal offence having been committed. The position might have been different if an unnecessary job had been specifically created for Mrs Cromack, so as to divert resources from another area of funding or to reduce profitability and thereby dividends of Trading. For the reasons I have set out, I am not satisfied the claimant did allege that Mr Cromack had created a job for his wife and he denied making such an allegation in cross examination. To summarise, the facts, or information, which the claimant disclosed could not, in his reasonable belief, have tended to show a criminal offence had been committed, but rather they tended to show poor recruitment practices, with risks of nepotism and favouritism.

[62]Even if I were wrong, and the disclosure was protected, I am not satisfied that the executive officers who dealt with the redundancy situation knew anything about the discussions in August and September 2017, or for that matter February 2018, with Mr Hillyard during the consultation process and the decision-making exercise which led to the claimant’s selection. Mr Hilliard was adamant that he had not taken any action upon the claimant’s concerns nor passed them on to anyone. I regarded him as a truthful and honest witness. He was prepared to provide a statement for the claimant about this matter for legal proceedings when asked. I accepted his evidence that he did not attach any great significance to what the claimant had said, largely because it concerned an appointment some seven years previously and arose from his own initiation of a discussion as to how to do things better. The claimant did not ask Mr Hillyard to undertake an investigation. Mr Hillyard was looking to the future, to improve practices. I have no doubt he would have taken action had he attached the significance now given to the complaint, which has become embellished with the passage of time.

[63]I am not satisfied that the written submission to the appeal panel amounted to a further protected disclosure, for the same reasons set out above. The claimant could not have a reasonable belief there had been misuse of charitable funds by a nepotistic appointment. In his further particulars this is extended to an assertion that this departure from proper practice could lead to the financial abuse of the clients. That is not a reasonable inference from the information disclosed that Mr Cromack had been involved in the appointment of his wife.

[64]Nor do I accept that the appeal committee dismissed the appeal because of the reference made at the end of a two-page written representation to misuse of charitable funds by reason of Mr Cromack appointing his wife. The claimant did not attend the appeal to explain this. In the written document the claimant did not allege that this was the reason he had been dismissed. I accepted Mrs Ellis’ evidence that the panel had relied upon the scoring exercise in its determination to dismiss the appeal. This had nothing to do with any disclosure. One outcome of the appeal was to consider the opportunity for a jobshare with the claimant. He did not respond to this offer within the timeframe. Such an attempt to retain the claimant in employment diametrically contradicts the alleged desire of the respondent to remove him from its employment because he was a whistleblower. Unfair dismissal: general principles

[65]There was a redundancy situation, contrary to the arguments that this was merely a pretext to remove the claimant. Were that so, four other employees from the home from hospital service and an advocate would have been collateral casualties of a vindictive vendetta directed at the claimant. That was a far-fetched proposition which I did not accept.

[66]There were flaws with the redundancy exercise in addition to the admitted one of scoring those at risk as required under the written matrix. I do not accept all of the criticisms. There were several meetings and opportunities for questions to be asked and representations made. That said, the information initially provided was inadequate. The letter did not explain that there would continue to be an Information and Advisory service in some form and further details became known from the newsletter, which was inappropriate.

[67]In addition the respondent unreasonably failed to provide the claimant with the reason he had been selected for redundancy and a copy of the scores he had been given against the matrix. Any reasonable employer would have provided this information to enable the employee to make representations upon it, before confirming its provisional view. The claimant would have been able to comment about his disability, albeit I am not satisfied that would have changed matters, but more significantly about the failure to divide the figures relating to absence by three.

[68]I reject the submission that these errors were because the claimant had been singled out for different treatment, as he believes because of the disclosures. I am satisfied they arose from carelessness and lack of attention to detail. I regarded the witnesses who gave evidence for the respondent to be conscientious and committed, not only to the users of the charity but also to their staff. The serious accusations levelled at them and their representative were not justified.

[69]Mr Wharton made an application for Mr Falcao, Mrs Butland and other managers of the respondent to be referred to the Attorney General for consideration of criminal charges for perverting the course of justice because of concealment of evidence. I could not find anything in the conduct of this litigation which was worthy of such accusations. It is true that there was late disclosure of the email of Mr Sadiq, but the evidence did not allow the inference that this was a consequence of deliberate concealment to pervert the course of justice. Disclosure of evidence and the rules of privilege are not straightforward and I have no information about how this document came to be served so late, following an earlier application before me. The respondent was entitled to rely on the legal professional privilege which applied during the conduct of this case. Mr Sadiq did not give evidence. There was no evidence he had been intimidated not to give evidence by the managers of the respondent, as alleged. I am not satisfied the inference Mr Wharton has invited can properly be made.

[70]In respect of alternative employment, Mr Wharton submitted that a vacancy arose during the notice period but the claimant had not been considered for it. He questioned Mrs Butland about it. Mrs Brawn had been the team leader for the Home from Hospital Service and had other responsibilities. Her post was affected by the withdrawal of funding and she was allocated to other projects. She left in March 2018. Her post disappeared. Her duties were taken on by Kerry-Lee Horton, who was a senior manager in the care directorate. I do not accept that this amounted to a failure to offer the claimant a suitable alternative vacancy, as the post no longer existed. Polkey

[71]Under the written policy of the respondent the last in first out criterion could be used in the event the candidates all scored the same. All candidates would have scored the same had the guidance been applied correctly.

[72]That would have led, in the first instance, to consideration of the redundancy of Ms Stead, who had been in her probationary period at the time. She had previously worked voluntarily for the respondent, but had been employed for about four months at the time of the consultation process. She only worked 12 hours.

[73]Mr Falcao submits that the claimant would have been dismissed in any event. He says that the sickness absence would have been used and that he would have been selected because his record was the worst. I reject that. A concession was made that not only was the scoring exercise misapplied, it would have been fundamentally inappropriate to compare the claimant’s previous three-year attendance with that of Ms Stead. That is because the record of attendance could not give a fair and comparable indicator, because she simply had not been there long enough. That was a proper concession to make. I do not consider the respondent would have resorted to sickness absence in a different approach to that set out under the matrix.

[74]The difficulty which had to be tackled was that there was a reduction in funding of 115.5 hours to something in the region of 85 to 87, as set out in the email of Mrs Butland to Ms Connor. Information provided at the end of the hearing indicated that two of the employees are now engaged on a 37.5 hour contract, albeit one had been previously employed for 36 hours, and Ms Stead remains on a 12 hour contract. It is perplexing that the expression of interest exercise proposed a 15 hour contract. It is the claimant’s belief that Ms Stead turned that offer down. I have no evidence on that and consider it disproportionate to reopen the case as it is of no significance. I am satisfied that there was a little flexibility, as reflected in the estimate of the budget of 85 to 87 hours.

[75]The offer after the appeal to discuss the possibility of job share is, in my judgment, significant. It suggests that Mr Cormack believed there was merit in the proposal and that his discussions with the other members of the team had not exhausted that possibility. It seems to me that there was every likelihood that Ms Stead would have been made redundant, the default position under the policy, leaving a requirement to save a further 16 to 18 hours. The claimant said he would be prepared to reduce his hours to 25. I have no evidence about what the other two staff would have said, but infer reduced hours were a real possibility because of the invitation to the claimant to express his view.

[76]To discount the risk that this would have not been agreeable to the other two, I conclude that there was an 80% chance that the claimant would have been retained on a contract of 25 hours per week.

[77]I was asked to take into account the fact that the claimant did not engage with the offer to consider jobshare after the appeal and so it is said there was no prospect of him agreeing to change his existing terms. I must consider what would have happened under an alternative hypothetical process. Had a fair procedure been adopted, I consider the claimant’s attitude would have been different. I am satisfied he would have taken steps to discuss alternative terms, had he felt he had been treated fairly.

The Law

[1]The respondent shall not be required to re-instate or re-engage the claimant as it is not practicable for it to comply with such an order.

[2]The respondent shall pay to the claimant compensation for the unfair dismissal in the sum of £12,350.56 by way of a compensatory award.

[3]The recoupment provisions apply. The prescribed element is £11,850.56 and the prescribed period is from 30 April 2018 to 24 June 2019. The total award exceeds the prescribed element by £500.

The Law

[1]This is the Remedy Hearing for unfair dismissal. The claimant has sought an order for re-instatement and compensation. The respondent resists an order for reinstatement or re-engagement and has argued that the compensation the claimant is entitled to is limited because it contends he has failed reasonably to mitigate his losses.

[2]I have heard evidence from the claimant and from Mrs Butland.

[3]The relevant legal provisions are contained in sections 112, 113, 114, 115, 116, 117, 123 and 124 of the Employment Rights Act 1996 (ERA). In respect of reinstatement or re-engagement Section 116 requires the Tribunal to consider first whether to make a re-instatement order and, in doing so, must consider whether the claimant wishes to be re-instated, and if he does, whether it is practicable for the employer to comply with an order for re-instatement. Also, if the complainant caused or contributed to some extent to the dismissal, would it be just to make such an order?

[4]If the Tribunal decides not to make an order for re-instatement it should consider whether to make an order for re-engagement by application of similar questions. The terms of re-engagement have to be specifically set out, pursuant to Section 115, including the nature of the employment, the remuneration from the employment, the rights and privilege which must be restored and the date by which the order must be complied with, and in considering whether to order re-employment the Tribunal must consider the same factors in respect of wishes, practicability and contributory fault.

[5]If the Tribunal makes neither order it shall then consider making an order for compensation payment, pursuant to Section 123 of the ERA; it must be such amount as the Tribunal considers just and equitable in all the circumstances and having regard to the loss sustained by the claimant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer, and that includes any expenses reasonably incurred by the claimant in consequence of the dismissal and any loss of benefit which he might reasonably be expected to have had but for the dismissal.

[6]Section 123(7) provides that if any payment by the employer to the employee on the ground the dismissal was by reason of redundancy exceeds the amount of any basic award which would be payable, the excess goes to reduce the amount of the compensatory award. The claimant received a redundancy payment of £518 in excess of what he would have been awarded by way of a basic award. That will be deducted from the compensatory award.

[7]Turning to the facts, the claimant made a number of applications for work after his dismissal on 30 April 2018 but the only recorded applications which have been produced in evidence commenced in or about September 2018. He made applications, identifiable from those records, for in excess of 20 jobs; about 26 jobs were to employers in his locality who had not advertised vacancies. The claimant made enquiries of them for any vacancies in in the administrative field. He applied for a number of jobs with the Civil Service and was interviewed for three, two by telephone and one face to face in Bradford. He was unsuccessful. They were for an administrative or advisory role.

[8]The claimant applied for Job Seekers Allowance in August 2018. He received that benefit until February 2019. As a condition of receiving such a payment he was required to satisfy the Department that he was making a reasonable search for work and, to that end, he registered with an agency. He is unable to recall the name of that agency.

[9]The claimant did not apply for a vacancy at a charity which was similar to that of his previous post as a Customer Advisor. That position had become vacant at the time he was notified of his appeal against redundancy. Mr Cormack notified the claimant that such a vacancy had arisen and said he would get back to him with further details. He failed to provide those details. The claimant is not currently registered with a job agency and, given he is no longer in receipt of Job Seekers Allowance, is not required to do so.

[10]There are vacancies which the claimant could have applied for with associate charities, Age UK in Leeds and Bradford. He says he believed that any application to Age UK Leeds or Age UK Bradford would be jeopardised by the involvement of Mr Cormack and the executives who run the respondent, who have a close association with their contemporaries in those organisations. I have no evidence that that would be the case, and I am satisfied that there are a large number of vacancies available through agency registration; I accept the claimant’s evidence that the illustration printed out by the respondents for Customer Advisors in Bradford or West Yorkshire has thrown up a number of posts for which he would not be qualified or experienced and so would be unlikely to be recruited. That said, I am satisfied that there would be job opportunities from an agency registration.

[11]Relations between the claimant and the executive officers and trustees of the respondent have all but collapsed. That is demonstrated by what has been said in this litigation, to which I shall return.

[12]The respondent had an operating profit in 2017/18 of £9,000. The previous year it had had an operating profit of £6,000. In 2016/17 it had net assets of £191,000 but I have no idea how liquid any of those assets are; they include vehicles and property as well as cash in the bank. There are various streams of funding for the respondent which are renewed and often irregular. There are two significant streams of funding from the Calderdale Council and the Macmillan Charity. The Calderdale Council was due to be renewed on 30 September 2019 and it has been extended to the end of December and the Macmillan contract will be renewed or terminated on 31 December of this year.

[13]In addition, the respondent benefits from legacy payments. In the last couple of years, a significant legacy in each has made the difference between an operating profit and an operating loss. The relevance of which is that planning for its staffing resource is complicated for the respondent because it is not against a background of guaranteed future income.

[14]Mr Wharton argues that the respondent can professionally reorganise and create the vacancy which it made redundant by use of the respondent’s reserve or by dismissing other employees. He says any suggestion that the relationship has soured is largely attributable to the respondent’s manner of conducting this litigation and that the parties should be able to let bygones be bygones and proceed in an adult fashion. The respondent contends it does not have the finances to create a vacancy and that the comments made by the claimant and his representative have created considerable upset and offence such that the prospect of any trust and confidence between the parties is illusory.

[15]Although the claimant wishes to be re-instated or re-engaged and has not in any way caused or contributed to his dismissal, it is not practicable for the respondent to comply with an order for re-instatement or re-engagement. It is an issue of trust; or rather the lack of it. Invariably, when an employment relationship has ended which brings the parties to the tribunal, there is a degree of animosity. In the present case, the verbal or written attacks are more extensive, sustained and personal than is usual and extend well beyond what one has come to expect. Numerous accusations levelled at the respondent were improper and without any proper basis in evidence. A choice had been made to deploy that type of strategy in the conduct of the case.

[16]These are to be found in the earlier reasons as well as the correspondence to the Tribunal and between the parties, but a number of illustrations will suffice. The suggestion that the executives of the respondent had created a redundancy exercise to rid themselves of the claimant was far-fetched. It amounted to saying that the executives and trustees of the respondent had contrived a situation to remove not only the claimant from employment, but they were callously indifferent to four collateral casualties who lost their jobs in the same exercise, driven solely by a desire to remove the claimant from the organisation.

[17]The suggestion that the appeal panel had acted in a conspiracy with the executives to dismiss the appeal, without having been given the claimant’s written representations was unfounded.

[18]Personal accusations have been made about the executives and the charity as a whole. Mr Cormack was described as having given evasive and slippery answers, the charity had been described as carrying out “deliberate, purposeful and spiteful conduct to ensure the claimant was got rid of”.

[19]Central to the case was the allegation that Mr Hillyard had explained to the executives, including Mrs Butland, that the claimant had made disclosures about the appointment of Mr Cormack’s wife and that had been fundamental in the decision to terminate the claimant’s employment. Mr Hillyard was adamant that no such discussion between him and the executive ever took place. I entirely accepted his evidence. He received the stinging accusation, from the claimant’s representative, of not being the happy daft dullard he would have us believe. He was described as destroying his own credibility by lying about the separate entity of trading and lying throughout his statement.

[20]These, and many other attacks upon the claimant’s would-be managers, if he were re-employed, establish, to my mind, that no meaningful employment relationship could survive to the benefit of the respondent and its client group. For the charity to operate successfully with its service users, trust between the employee and his colleagues is critical. All of the managers who would have any responsibility for the claimant have been targeted for unfair and ill-founded accusations by Mr Wharton or the claimant. For these reasons re-instatement or re-engagement would not be practicable.

[21]I turn to the question of compensation. The burden is on the respondent to establish that the claimant has failed reasonably to mitigate his losses. I am satisfied it has discharged that. The claimant should have been more pro-active in applying to online agencies. I accept the submission of Mr Falcao that the claimant has the knowledge to use the internet to access the job market, given his former job with Age UK and advice he provided to the service users. I would have expected a greater number of applications for vacancies, rather than speculative requests to local employers. Not to have applied for the vacancy which was very similar to his job at the respondent, at Carers Count, could not be passed off as being Mr Cormack’s fault, for not having provided further particulars of it. If the claimant had reasonably been looking for work he would have tracked down the details himself, in May of last year.

[22]I must therefore consider what would have happened had the claimant reasonably mitigated his loss. Mr Wharton made a fair point that at this stage in his working life Mr Gaffar may find it more difficult than younger workers. I do not know how many people would have applied for the Carer’s Count post or any of the other vacancies which have been suggested. It is by no means a foregone conclusion that, had the claimant made a better search for work, he would have been successful. Having regard to his skills, experience and the job market, had he made a reasonable search for work he would have extinguished the continuing losses one year after his dismissal, that is by 30 April 2019.

[23]I found that there was an 80% chance the claimant would have been retained on a 25 hour per week contract and that is the starting point. I have to decide what the claimant’s income would have been but for the dismissal, factoring in the loss of a chance.

[24]That would have amounted to a gross income of £11,918 per year. The claimant would have paid national insurance of 12% on £3,494, being £419.28 and income tax of 20% on £418 of £83.60. I take a year’s gross salary of £11,918, deduct those sums and I am left with £11,415.12. To that I add £953.44 pension which is 8% of the gross sum of £11,918. That leaves a sub total of £12,368.56. In addition to that I award loss of statutory rights of £500 which gives a total compensatory award of £12,868.56, but from that I deduct the agreed sum of £518, the excess over the basic award, leaving a compensatory award of £12,350.56.

[25]Because the claimant has been in receipt of Job Seekers’ Allowance the recoupment provisions apply. What that means is that the past loss of earnings to 30 April 2019 must be retained by the respondent, pending the issue of a certificate by the Secretary of State for Work and Pensions which will include the sum the claimant has received as Job Seekers’ Allowance. The respondent will have to pay the balance, which will be the excess over the Job Seekers Allowance received, to the claimant, and it shall pay to the Secretary of State the amount received by the claimant for Job Seekers’ Allowance. The respondent must pay immediately to the claimant that sum which is not attributable to past loss of earnings which is the £500 for loss of statutory rights. Employment Judge D N Jones Date 10 July 2019 SCHEDULE Loss of earnings for 12 months From 30 April 2018 to 31 March 2019 £11,918.00 Less Income tax of 83.60 National Insurance contributions 419.28 Sub-total £11,415.12 Plus Pension at 8% of £11,918.00 - £ 953.44 Subtotal £12,368.56 Loss of statutory rights £ 500.00 Subtotal £12,868.56 Less £518, paid in excess of the basic award £ 500.00 Compensatory Award £12,350.56 JUDGMENT on application for RECONSIDERATION The application of the claimant for reconsideration of the remedy decision, dated 26 July 2019 and sent to the Tribunal by email of his representative on 30 July 2019, is refused. There are no reasonable prospects of the remedy decision being varied or revoked.

[26]Mr Sadiq did not reply to that immediately. On 10 December 2018 Mr Wharton wrote directly to Mr Sadiq by email and copied in Mrs Rodmell. His questions reflected those which Mrs Rodmell had put. Mr Sadiq replied to Mrs Rodmell on 13 December 2018 and copied in the claimant’s representative. He answered the questions directly and in the sixth answer, concerning his presence at a meeting with Mr Hillyard, he stated he had sent emails to Mrs Rutland in August. It is that email which prompted applications to the Tribunal for disclosure which were initially heard by Employment Judge Rostant and later by myself. Although Judge Rostant made orders for disclosure it is not entirely clear from his order to what they specifically referred. He required further clarification in his order and that was provided by the time the case came before me on 8 January. I ordered disclosure of a number of documents which included the email of Mr Sadiq.

[27]The circumstances in which the existence of the email of 28 August 2018 from Mr Sadiq to Mrs Butland came to light raised suspicion on the part of the claimant and his representative that there had been concealment of evidence which might have assisted the claimant’s case.

[28]Mrs Rodmell gave evidence in the costs hearing that she recalled a conversation with Mrs Butland about the email with Mr Sadiq which she could not find, but she found it the following day. Her evidence was vague and unspecific as to when this occurred. I regarded it as of limited assistance, but I considered she was doing her best to assist. The absence of any adequate explanation is a proper basis on which to invite the inference that there was bad faith, with the objective of advantaging the respondent and disadvantaging the claimant in this litigation. Whether such an inference should be drawn involves consideration of the context and all the circumstances.

[29]Mr Wharton alleged on a number of occasions that the respondent’s senior officers had attempted to intimidate Mr Sadiq and others and discourage him and others from having any involvement in the proceedings. The first email of Mrs Butland makes no reference to the proceedings at all. The second gives greater detail, but it is in response to questions raised by Mr Sadiq, before he provided an answer. The content of both of the emails from Mrs Butland are measured and make it absolutely clear that Mr Sadiq was required to tell the truth. They do not apply pressure or seek to influence him. I find it very difficult to construe that language with the type of behaviour which Mr Wharton accused the respondent of. Pursuant to Mr Wharton’s request for witness statements from a number of employees, Mrs Rodmell wrote and asked Mr Sadiq on behalf of Mr Wharton for information. The content of her letter is also balanced and could not be said to place pressure on Mr Sadiq not to take any part in the proceedings or to have no direct contact with the claimant and Mr Wharton. She said it was a matter of personal choice.

[30]Whilst it was unreasonable conduct to fail to disclose the email of 28 August 2018, I do not infer dishonest and calculating behaviour as invited. I accept the submission advanced by the respondent that this was an error which was later corrected. The response to Mr Wharton’s request for information by Mrs Rodmell demonstrated a willingness to assist and no pressure was placed upon Mr Sadiq not to co-operate. Whilst his email was relevant to the issue of a qualifying disclosures, the unfair dismissal claim for having made protected disclosures failed for other reasons.

[31]I do not consider that it would be appropriate to make a costs order against the respondent for the failure to disclose and the subsequent late service of that document. I have rejected the serious connotations attached to that allegation. The failures relating to disclosure on this matter did not have any significant effect on the case. In the event neither party chose to call Mr Sadiq. I do not regard it as just to award costs for that aspect of the conduct of the proceedings.

[32]In respect of the wasted costs, I advised the respondent that they were entitled to be separately represented and I explained the conflict of interest. They did not seek an adjournment and were content to speak for themselves.

[33]The wasted costs claim with regard to Mr Falcao is said to be advising his client to hide key documents and omit them from the bundle and obstruct access to witnesses. There was no evidence to support any of these allegations either directly or by way of reasonable inference.

[34]There were said to be numerous acts of negligence but Mr Wharton said the greatest one was failing to acknowledge the unfair dismissal of the claimant and unreasonably applying to strike out claims or for deposit orders. He said that had the unfair dismissal been acknowledged at the time of Mr Falcao’s engagement or earlier, some compromise could have been reached which would have precluded the necessity for endless tortuous exchanges in pursuit of documents.

[35]The respondent formally accepted that the dismissal was unfair because of a misapplication of its redundancy policy on 2 May 2020, within a fortnight of the final hearing. I do not infer that such a late concession arose from negligent, improper or unreasonable advice. The concession was qualified in that the respondent sought to argue the claimant would have been dismissed had the procedure been undertaken properly and fairly. The concession only reduced one of many findings which were required in this case and did not make any material difference to the length of the hearing. The same evidence had to be considered for the purpose of evaluating the Polkey issue and other procedural and substantive allegations of unreasonableness remained to be determined.

[36]The suggestion that an early concession would have led to the settlement of the case is not one I accept. It is clear from the negotiations in correspondence, which were disclosed in the costs hearing, that the claimant was not prepared to accept an offer in compensation which exceeded that ultimately obtained. This was an increased offer and, in respect of both, Mr Wharton made it very clear that he and the claimant would not readily be persuaded to agree any compromise which did not acknowledge that Mr Cormack was culpable of gross misconduct. The tone of the rejection of one of the offers is reflected by Mr Wharton’s remark that the judge would be invited to consider the implication of an officer of the court [Mr Falcao] apparently constructing a defence built upon a bald lie and then knowingly encouraging his witnesses to perjure themselves in the advancement of that lie.

[37]In respect of the more general criticism about unreasonable applications for strike out or deposit orders, this was not supported by any grounds or specifics. I was not aware of any application which would warrant the serious criticism of it being a result of improper, unreasonable or negligent conduct of Mr Falcao.

[38]Had I considered making a costs order against the respondent or a wasted costs order against its representative I would have expected to have been provided with more satisfactory evidence of the circumstances in which Mr Wharton had been engaged by the claimant. The regulation of employment advisors is governed by the Financial Conduct Authority with whom all representatives who act for reward must be registered. I would have ordered further evidence to be produced about what had been paid to Mr Wharton, when and upon what basis as well as confirmation that Mr Wharton, as a paid representative, was registered and authorised by the regulator, as required under the Financial Services and Markets Act 2000 and the Claims Management Activity Order 2018. The application for costs of the respondent

[39]A significant large part of the criticisms upon which the application for costs is based is the conduct of the claimant’s representative, although no wasted costs application was made. Rule 76 provides that conduct of the representative as well as that of the party is relevant. I say at the outset that I have taken into account the fact that Mr Wharton is not a legal representative. The claimant said he was not aware that Mr Wharton had been involved in his own proceedings which had led to him having to pay costs against a respondent for his own conduct. The claimant informed me that he knew very little about Mr Wharton, and his credentials or experience in conducting Tribunal proceedings. Mr Wharton had been recommended by a friend as a person who knew about employment law procedures and this area of the law.

[40]I do not find that the claimant acted unreasonably in bringing claims of race and age discrimination, the first ground of the application. The claimant withdrew those claims at a Preliminary Hearing before me, 7 months after the proceedings were issued. He recognised the evidential difficulties he faced when I pointed them out, given that the comparators shared the very protected characteristics which he says were the basis for the discrimination. Had the claimant pursued those claims then that would have been unreasonable. Mr Falcao alleges that these were revisited by the claimant at a later stage, but I do not consider that was of any real significance, or added significantly to the proper management of the issues in the case.

[41]In respect of the pursuit of the protected disclosure, or whistleblowing claim, I also do not find that the claimant acted unreasonably. This is a difficult area of the law for specialists and I bear in mind the fact the claimant did not have the benefit or advice from solicitors in pursuing that claim. Determination of whether the disclosures were qualifying and, if they were, protected involved hearing the evidence and making findings by reference to technical and precise statutory definitions. Whilst before the evidence was heard the prospects of succeeding on the disclosed materials may have seemed remote, I do not accept that the pursuit of that claim to a final hearing was unreasonable conduct. That said, at the hearing when full disclosure had been completed, issues were explored in evidence and arguments pursued which were hopeless. The proposition that the respondent had falsely constructed a redundancy situation in circumstances in which it had been faced with an immediate cut in income was doggedly pursued to the end. That was unreasonable conduct. The claimant and Mr Wharton could have acknowledged there was a redundancy situation but suggested that the reason the claimant had been selected out of the pool was down to the alleged whistleblowing, but they would give no quarter, however irrational that stance was.

[42]I do not regard the refusal of the claimant to accept offers to settle this case, made on 12 April 2019 in the sum of £10,500 and on 26 April 2019 in the sum of £14,121.80, as unreasonable. They were marked without prejudice save as to costs. The claimant recovered £12,350 in compensation and Mr Falcao says the rejection of an offer in excess of that establishes unreasonable conduct. I take into account that these offers were made within 5 weeks of the hearing and the claimant and his advisor were not legal professionals. In my judgment they were entitled, albeit unwisely, to pursue the case to a hearing without being found to have conducted themselves unreasonably.

[43]Features of conduct, principally of the representative, but also the claimant, about which complaint was made have been listed in a table, prepared by the respondent’s representative. I cite a number of examples:a. On 23 September 2018, Mr Wharton wrote, “Senior officers, in collusion with a member of the board of trustees have colluded in perperation [sic] and concealment of (at least) one act of fraud, and of misappropriating charitable funds”.

b. On 3 October 2018 Mr Wharton wrote, “There are unfortunately too many instances of individuals using charitable purposes as a cloak to hide sinister intent. The principal allegation is against Colin Cromack; however it also appears as if trustees have either been complacent or complicit in the wrongdoing”.

c. On 16 October 2018 Mr Wharton alleged Mrs Rodmell had sent an email in which she had described Mrs Butland intimidating key witness Tony Hilliard.

d. On 4 December 2018, Mr Wharton said the respondent’s solicitor had determined to misuse his position as officer of the court to delay and disrupt proceedings.

e. On 3 January 2019 Mr Wharton stated that Mr Falcao had breached his duty as an officer of the court and that Mrs Butland was guilty of contempt of court for the same concealment. He referred to vital evidence being concealed and that it would be referred to the Attorney General’s office for consideration of criminal charges.

f. On 23 January 2019 the claimant said his representative would be making an application for criminal charges to be brought against the management of the respondent for witness intimidation.

g. On 25 February 2019 Mr Wharton repeated the allegation of witness intimidation as well as concealing evidence against the respondent’s managers and asked them to be referred to the Attorney General for perverting the course of justice along with Mr Falcao.

[44]At the hearing Mr Wharton made a number of offensive remarks about the respondent and their representative. He said they had attack dog lawyers who used every underhand trick in the book to intimidate and threaten legitimate claimants, the casual and brazen dishonesty of Mr Cromack, that he would not want Sue Cromack within 100 miles of his elderly mother’s finances, that the managers and trustees were so determined to reject the claimant’s claim that they had entered into a collective psychosis, that they were unwilling to admit to the scale of corruption, that they had deliberately and purposefully attempted to pervert the course of justice either on the advice from Mr Falcao or under their own volition, that the witness and trustee Mr Hillyard was not the happy daft dullard he would have us believe, that Mrs Butland had attempted to engage in perjury and apparently attempt to pervert the course of justice. In his written submissions he said the respondent was using clients as a human shield and it was a Jimmy Saville defence which was being run. He said the respondent was an insurance brokerage company masquerading as a charity which flogged overpriced insurance and funeral plans to the same client base and it had been infiltrated and taken over by fraudsters, bullies and liars. He said nice people did not behave as the respondent behaved sacrificing decent, honourable, honest and conscientious people in order to protect sly evasive, self-serving and dishonest individuals.

[45]Those are illustrations. The correspondence, which is extensive, is replete with serious allegations conveyed with an aggressive and bellicose tone. This was reflected in the manner in which the witnesses were questioned by the representative of the respondent. I touched upon this in paragraphs 15 to 20 of the reasons for the remedy decision, which were relevant to the question of whether it would have been practicable for the respondent to re-instate or reengage the claimant. The many accusations that witnesses had been intimidated was not supported by the documentation, as I have explained in paragraph 29 above. There was no sound basis on which Mr Wharton could maintain it.

[46]I have regard to what was said by His Honour Judge Richardson in AG Ltd v Holden

[2012] IRLR 648

: “The threshold tests in rule [76(1)] are the same whether the litigant is or is not professionally represented. The application of those tests, however, must take into account whether a litigant is professionally represented. A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals; and since legal aid is not available and they will not usually recover their costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to lay people who may be involved in legal proceedings for the only time in their life. As [counsel] submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal advisor. Tribunals must bear that in mind when assessing the threshold tests in rule [76(1). Further, even if the threshold tests are met for an order, the tribunal has discretion whether to make an order. The discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little access to no or little specialist help and advice…That is not to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience or lack of objectivity”.37. In this case the claimant did not represent himself but chose to be represented and to pay, conditionally, for that service. I must consider these remarks in that context as well as my duty, under rule 2, to apply the overriding objective which includes placing the parties, so far as is practicable, on an equal footing. Mr Wharton was not a legal representative and so the claimant was not on an equal footing to the respondent. I do not measure the conduct of this case by the claimant or his representative by the standard I would have applied to a legal professional.

38. I regard it a significant that the claimant did not distance himself from Mr Wharton’s conduct of the case. To the contrary, he agreed with the entire approach and allied himself with it. Albeit he offered an apology for that conduct at the costs hearing and cites a passage from Mr Wharton’s written submission, I have had no communication directly from Mr Wharton about his non-attendance today. The apology is explained in the context of an excess of zeal in pursuit of the claim rather than improper and malicious behaviour. I drew the claimant’s attention to the provisions concerning wasted costs against one’s own representative, but he did not wish to pursue that.

39. I am satisfied that the conduct of the case, as illustrated above, was unreasonable, abusive and vexatious, even giving every allowance for the lay status of the representative. I recognise this was a whistleblowing case which had wrongdoing as an essential component. That wrongdoing was, or should, have been focussed upon the alleged nepotism. The alleged protected disclosures did not reasonably allow for the wholesale attack on the integrity of the respondent and its managers and trustees which took place, including allegations of financial irregularity and dishonesty including the taking advantage of its client group. I agree with Mr Falcao’s observation that there was a callous disregard for language. That cannot be passed off as excessive zeal or excused as the inexperience or lack of understanding of a litigant in person or his lay representative. It was designed to harass the officers of the respondent and I am satisfied it did so, causing upset and offence. All of that could and should have been avoided. Whilst the failure to disclose the email of Mr Sadiq gave rise to understandable and reasonable suspicion that evidence was being deliberately withheld, when the documents were disclosed they did not support the serious allegations which followed of witness intimidation and attempts to pervert the course of justice. No doubt that was why Mr Sadiq was never called to give evidence.

[47]Under Rule 84 I have regard to the claimant’s ability to pay. I also bear in mind that he is not well. I have read the medical evidence which indicates that he is on medication for mental health conditions and is suffering from anxiety.

[48]The claimant mitigated his losses after having been made redundant by obtaining employment with HMRC. His anxiety state led to him losing that job at the beginning of this year. His doctor, Dr Patel described him as suffering from anxiety and depression from 7 November 2019. There is reference to the litigation and the effect that has had on him. He is not currently receiving benefits.

[49]The claimant owes money to a professor in Singapore, for whom he has collected rent on properties of £4,900. He also has borrowed money from his son of £2,250. He has credit card debts which he did not quantify. In respect of capital he has £4,000 in the bank and half ownership of the property with his wife, which is worth £160,000 to £170,000. She does not work and is in receipt of benefits by way of Personal Independent Payments. That does not release any money for the claimant to discharge any debts.

[50]The claimant recovered £9,946.96 in compensation after the balance was paid to the DWP in respect of recouped benefits. I am not clear how that has been spent save for £2,007 which has been paid to Mr Wharton. The claimant chose to make that payment when there was an outstanding costs application, thereby giving it priority to any legal costs the respondent may recover by depleting the remaining capital. The claimant says he pays £1,000 per month in living expenses, which is realistic.

[51]Having found that there has been unreasonable conduct by the claimant and his representative in the conduct of the proceedings, I have to consider whether to make an order in all the circumstances. I am satisfied that unreasonable conduct added to the complexities in the case and the costs of preparation. Allegations of financial impropriety in respect of clients and more general aspersions of corrupt behaviour, intimidation of witnesses and not recognising an obvious redundancy situation all added unnecessarily to the cost of the hearings. I take into account the claimant’s limited resources and current ill health. He has £4,000 in the bank but I recognise he has many demands on that limited fund with the debts he has and his every day expenditure. I do not feel able to ignore the fact he has received over £9,000 in compensation from the respondent and he was aware of this potential liability to costs when he paid his own representative over £2,000. I have taken into account the guidance that there must be a realistic prospect that the claimant might be able to pay at some point in the future, see Chadburn v Doncaster v NHS [2015] UKEAT0259/14/LA. Having regard to all the circumstances I consider it is appropriate to make a costs order.

[52]The respondent seeks costs in the sum of £12,060 excluding Value Added Tax. That would be the legal expenses incurred for representation at the liability and remedy hearing. An order for that amount would not be appropriate in the light of the that conduct I held was unreasonable. The majority of the costs would have been incurred, regardless. In Barnsley MBC v Yerrakalava

[2012] IRLR 78

Mummery LJ said: “the vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust and passages in McPherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission, I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section had to be analysed separately so as to lose sight of the relevant totality of the relevant circumstances.

[53]Having regard to that guidance I would quantify the extra cost for the work summarised at paragraph 51, as £2,000. I consider the claimant should pay that sum, having had regard to his ability to pay, the fact he has recovered compensation from the litigation, his respective liabilities and responsibilities.