Mr M Macken v Skanska UK plc: 2201866/2020 and Others
EMPLOYMENT TRIBUNALS
Case No 2201866/2020, 2202604/2020
Between
Mr M MackenClaimantSkanska UK plcRespondent
Before
Employment Judge A JamesMr L Bronze (instructed by counsel) for claimantMs C Ashiru (instructed by counsel) for respondentDate 13 December 2021
JUDGMENT
(1) Claim 2201866/2020 was not validly presented because the number of the Acas Early Conciliation Certificate on the claim form is not the same as the number on the ACAS Early Conciliation Certificate but it would not be in the interests of justice to reject the claim (S.18A Employment Tribunals Act 1996 (ETA) and Rule 12(1)(da) Employment Tribunal Rules of Procedure 2013 (ETR)).(2) Claims 2202604/2020 and 2204321/2020 were not validly presented because the number of the Acas Early Conciliation Certificate on the claim forms is not the same as the number on the ACAS Early Conciliation Certificate but it would not be in the interests of justice to reject the claims (S.18A ETA and Rule 12(1)(da) ETR).(3) Claim 2204321/2020 was not presented within three months of the dismissal and it would have been reasonably practicable to have presented it in time. The tribunal does not therefore have jurisdiction to hear that claim (ss.48(3) and 111(2) Employment Rights Act 1996 (ERA) (and others)).(4) The particulars of claim, as amended/further amended in claim 2204132/2020 provide further particulars of claims 2201866/2020 and 2202604/2020 in relation to all claims except the whistleblowing detriment claims. The application to amend the first two claims is granted in relation to all claims except the whistleblowing detriment claims (Rule 29 ETR).(5) The application to amend claims 2201866/2020 and/or 2202604/2020 to include allegations of whistleblowing detriments is refused (Rule 29 ETR).(6) The application to strike out the alleged detriments in the draft list of issues at 5.e. and h (selecting the claimant for redundancy; failure to change the selection matrix score when it was allegedly incorrect) and related sections of the pleadings is granted because those detriments are intricately linked to the claimant’s automatically unfair dismissal claims and claims in respect of a dismissal cannot also be pursued as detriment claims (S. 47B(2) ERA (and others) and Rule 37 ETR). Those matters will still be considered as part of the automatically unfair and ‘ordinary’ dismissal claims.(7) All other applications for strike out and deposit orders in relation to the detriment claims are refused (Rules 37 and 39 ETR).(8) The application to strike out the whistleblowing claims because the claimant has not made a disclosure of information is refused (S.43B(1) ERA; Rule 37 ETR).
REASONS
[1]The Claimant has brought three claims:1.1 Claim number 2201866/2020 submitted on 2 April 2020 (Claim 1);1.2 Claim number 2202604/2020 submitted on 30 April 2020 (Claim 2);1.3 Claim number 2204321/2020 submitted on 17 July 2020 (Claim 3). Amended, consolidated particulars of claim were filed on filed on 13 November 2020. Further amended, consolidated Particulars of Claim were served on 8 February 2021.[2]The issues for this hearing are helpfully summarised as follows in Ms Ashiru’s skeleton argument. References in square brackets are to the page numbers in the agreed preliminary hearing bundle. The issues are:2.1 Time Limits: What do Claims 1 and 2 cover? For reasons which follow, the respondent argues that any claims not covered by Claim 1 and Claim 2 are subject to the not reasonably practicable (NRP) test, and the claimant is bound to fail in relation to that test in the circumstances.2.2 Detriments: do the alleged detriments at paras 5(a), (b), (c), (d), (e), (g) and (h) of the Updated Draft List of Issues have no or little reasonable prospects of success such that the claims should be struck out under rule 37 Employment Tribunal Rules of Procedure 2013 (ETR) or subject to a deposit order under Rule 39?2.3 Protected Disclosures:2.3.1 do C’s alleged protected disclosures amount to a “disclosure of information” such that they are capable of being ‘qualifying disclosures’ for the purpose of s.43B Employment Rights Act 1996 (‘ERA’)? (C relies on his speech at the confidential EWC Meeting on 12 November 2019 as the first protected disclosure (‘PD1’) (see para.10 of the RAPoC at [157-158]) and his grievance of 9 December 2019 as the second protected disclosure (‘PD2’) (see [204-205]).2.3.2 did the relevant decision makers at R know about the contents of the confidential EWC Meeting on 12 November 2019 (the alleged first protected disclosure) such that they could have subjected him to the alleged detriments and/or dismissal as a result thereof?2.3.3 Should any or all of C’s whistleblowing claims be struck out or subject to a deposit order in light of the abovementioned issues?[3]In preparing for the hearing, it became apparent to me that there were two further potential issue relating to 2.1, time limits. The first of these was due to a minor error in the transposition of the Acas Early Conciliation Certificate on the first claim (which in the claim form has /50 at the end, not /05 as on the certificate). Given this fact, was the first claim validly presented and if not, should it be rejected? Second, three separate early conciliation certificates were obtained by the clamant, in relation to the three claims submitted. If only one of those is valid for the purposes of extending time (for reasons discussed below), but the three separate claims contained three separate ECC numbers, have Claims 2 and 3 been validly presented, and if not, should they be rejected? I raised these further issues with both counsel at the beginning of the hearing, and both of them concurred that they should be addressed. Both subsequently made submissions in relation to them and neither sought to argue that the points raised were not valid. Those further issues are therefore explored below as part of the time limit issue.
The hearing
[4]The hearing took place on 26 February 2021. There was an agreed hearing bundle of 251 pages. Oral evidence was given by Mr Macken who was crossexamined by Ms Ashiru and asked questions by the judge. Submissions were then made by both counsel. Judgment was reserved. Case management orders were agreed and are the subject of a separate document from the tribunal.
Facts
[5]I have limited my findings of fact to those facts necessary to decide the issues. For the sake of convenience, I have set out those fact findings in the conclusions section in relation to the preliminary issue to which they relate. In the event, it was not necessary to make many findings of fact, in order to determine the issues before me.
Law
[6]The relevant legal principles are set out below in relation to Acas early conciliation; time limits; amendment applications; strike out and deposit orders; and protected disclosures - disclosure of information. Acas Early Conciliation[7]From 6 May 2014 it has been mandatory for most prospective employment tribunal claimants to contact Acas to provide certain basic information to enable Acas to explore the possibility of resolving the dispute by conciliation prior to proceedings being issued.[8]Section 18A Employment Tribunals Act 1996 provides, so far as is material:(1) Before a person ('the prospective claimant') presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter. …(2) On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer.(3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.(4) If— (a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or (b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant. … (8) A person who is subject to the requirement in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4).[9]In considering appeals in relation to Acas Early Conciliation (Acas EC) issues, the EAT has interpreted the legislation in ways that avoid ‘disputes and satellite litigation’ and tried to avoid the requirement for undue formality. This is so as to avoid the somewhat tangled procedural web spun by the now repealed statutory disciplinary and grievance procedures which were apt to entrap unwary claimants (see Science Warehouse Ltd v Mills [2016] IRLR 96, EAT – at para 26; and at 31 there is reference to “the limited nature of the requirement and the way in which EC operates as an opportunity rather than a more stringent obligation”; and Drake International Systems Ltd v Blue Arrow Ltd [2016] ICR 445, EAT, at para 35 which states: “It is a happy consequence of my reasoning that the appeal is to be dismissed: if it were not so, there could be a real risk that satellite litigation in respect of the provisions of early consideration might proliferate, with the same stultifying effect that litigation under the 2002 Employment Act had in respect of the provisions of the dispute resolution procedures for which it provided. Since it appears to have been part of Parliament’s intention in enacting the Employment Tribunals Act Sections 18A, B and C in the terms in which they were enacted, and the Rules under them, to avoid such a position (see, for instance, the broad reference to “matter”, and the absence of requiring any particular detail of any particular “matter” to be specified) and to avoid formalities fettering a fast and fair process of justice, I am confident that the view I have reached better serves its purpose than would the adoption of the approach for which Ms Slarks contends”).[10]If the provisions are not complied with, the Employment Tribunal Rules of Procedure 2013 (ETR) require a tribunal to either reject the claim in certain circumstances or, in others, consider whether to exercise discretion to accept it. The material parts of Rule 12 of the ETR, as amended by the Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (S.I. 2020/1003) provide:(1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be— …. (da) one which institutes relevant proceedings and the early conciliation number on the claim form is not the same as the early conciliation number on the early conciliation certificate;(2) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraphs (a), (b), (c) or (d) of paragraph (1). [(2ZA) The claim shall be rejected if the Judge considers that the claim is of a kind described in sub-paragraph (da) of paragraph (1) unless the Judge considers that the claimant made an error in relation to an early conciliation number and it would not be in the interests of justice to reject the claim.[11]The relevant parts of Section 207B Employment Rights Act 1996 provide: 207B Extension of time limits to facilitate conciliation before institution of proceedings(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a 'relevant provision') ….(2) In this section— (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.[12]Only one certificate is required in respect of 'proceedings relating to any matter' in ETA 1996 s 18A(1). EAT decisions have made clear that an application to amend an existing claim to add an entirely new claim which post-dated the original discrimination claim does not require a separate notification to Acas or Early Conciliation Certificate. In the Mills case referred to above for example, the claimant had applied to add a new claim of victimisation. A similar approach was taken in Compass Group UK and Ireland Ltd versus Morgan [2016] IRLR 924 in which Simler P held that an EC certificate issued to a prospective claimant prior to the termination of her employment (relating to a grievance about demotion) could cover a subsequent tribunal claim (relating to constructive unfair dismissal and failure to make reasonable adjustments) without requiring the claimant to go through the Acas EC process again.[13]I note in passing at this point that these cases illustrate the point made above that appellate courts/tribunals have sought to do justice in the circumstances of those particular cases, by avoiding the need for undue formality. However, as we shall see on the facts of the claimant’s case, they potentially create a trap for litigants who are ignorant of those rules, and assume that each time they submit a separate claim, they need to obtain a separate Acas Early Conciliation Certificate and quote that new certificate in the new claim form. This is because any additional certificate issued by Acas in relation to that ‘same matter’ has been found not to count for the purposes of the other statutory provisions relating to early conciliation (Commissioners for HM Revenue & Customs v Garau [2017] ICR 1121, EAT). This conclusion prevents a claimant from gaining additional time limit advantages by submitting EC Form after EC Form relating to the same parties and the same matter. On the other hand, it potentially disadvantages claimants who innocently obtain further certificates through ignorance of the EC Rules.[14]Para 30 of Garau which is relied on by Ms Ashiru states: The present case is different from the Tanveer case on two counts. First, the limitation clock could not stop under the first certificate, because it had never started. Secondly, the second certificate was not a certificate falling within the statutory scheme at all; it was a purely voluntary exercise with no impact on the running of time. (My emphasis)[15]In Garau, the certificate was issued before the limitation period started to run. As for the position where Acas EC starts before the limitation period starts but ends after limitation has started (see the underlined words in para 30 Garau, above), Harvey states: If, however, Day A of the conciliation period occurs before, and Day B occurs after, the start of the limitation period, the question arises as to whether the days that are not to be counted under ERA 1996 s 207B(3) consist only of those days spent conciliating within the three-month ordinary limitation period or whether it includes all days between the day after Day A and Day B, even those which are after the three-month time limit. In the absence of any authority from the EAT, there has been a difference of opinion in the employment tribunals as to which is the correct interpretation of subsection (3). In Fergusson v Combat Stress (Case No 4105592/16) (3 March 2017), ET(S) the employment judge held that the purpose of s 207B(3) was to prevent a claimant from being disadvantaged by having the limitation period effectively reduced whilst engaging in the EC process, and that the subsection is not to be construed as extending the normal expiry date by the whole of the conciliation period, regardless of when it began (see para 16). This approach was followed by the tribunal in Ullah v Hounslow London Borough Council (Case No 2302599/15) (28 March 2017), ET. Whilst the central purpose of s 207B(3) is to extend time limits where days are lost during the limitation period through participation in the compulsory conciliation process, the statutory provisions have not been phrased in a way which orients the calculation around this. Instead, the extension is fixed around Day A and Day B, irrespective of whether any or all of that period occurs during the limitation period. As such, a number of tribunals have disagreed with the Fergusson approach and have held that, based on the natural and ordinary meaning of the statutory words, the period that is not to be counted is not confined to the days lost through participation in the conciliation process following the start of the limitation period (see Fairhurst v Orchid Plastics Ltd (Case No 1400996/17 (29 January 2018), ET; Walsh v Globe Integrated Solutions Ltd (Case No 1300798/17) (15 June 2017), ET; Myers v Nottingham City Council (Case No 2601136/15), ET; Chandler v Thanet District Council (Case No 2301782/14) (27 January 2015), ET). It is suggested that this construction is to be preferred over that adopted in Ferguson and Ullah. I reach my own conclusions on this issue below. Time limits[16]Section 48(3) Employment Rights Act 1996 provides that claims under s.47B must be presented: "before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them". This test – the reasonably practicable test (the RPT) – applies to all of the claims brought by the claimant in the three claim forms (albeit under separate statutory provisions).[17]In R J Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379, Lord Denning MR stated (at 381) that 'If a man engages skilled advisers to act for him — and they mistake the time limit and present [the complaint] too late — he is out. His remedy is against them'. Lord Denning repeated the principle in Wall's Meat Co Ltd v Khan [1978] IRLR 499, [1979] ICR 52 (at 502, 56, respectively), where he said: I would venture to take the simple test given by the majority in [Dedman]. It is simply to ask this question: had the man just cause or excuse for not presenting his claim within the prescribed time? Ignorance of his rights — or ignorance of the time limits — is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences.[18]Dedman concerned advice from a solicitor. So allegedly negligent advice from a solicitor will require consideration against that principle. However, the Dedman principle does not make a finding of reasonable practicability inevitable in every case where a claimant instructs solicitors and misses a time limit having relied on wrong advice. Analysis is required of whether the wrong advice was reasonable. Whilst that may be unusual, in Riley v Tesco Stores Ltd [1980] IRLR 103, CA, Waller LJ pointed out (at 108, para 37) that there may be circumstances where there are special reasons which justify such a conclusion. Once a man knows of his right it is more difficult to say that it was not practicable to give notice within a reasonable time. If he reasonably does not discover his right until a short time before the last days of the three months have elapsed, then obviously it would probably not be reasonably practicable to give notice in time. This case has been concerned, however, because of the intervention of the Citizens Advice Bureau. What is the position if, knowing of your right, you ask another to take the necessary action? In my opinion, you cannot then be in a better position than if you had retained the power to act yourself. If you have retained a skilled adviser and he does not take steps in time, you cannot hide behind his failure. There may be circumstances, of course, were there are special reasons why his failure can be explained as being reasonable. Like my Lord I am, however, doubtful whether this situation depends on the skill of the adviser. The defence of not being reasonably practicable might fail, whether or not the adviser was skilled, if in fact he was properly acting. Amendment of claims[19]The leading case in relation to amendment of claims is Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 which held that when considering whether or not to allow an amendment, regard should be had to all the circumstances of the case and in particular, the Tribunal should "consider any injustice or hardship which may be caused to any of the parties ... if the proposed amendment were allowed, or as the case may be, refused".[20]The EAT in Selkent Bus Company Ltd (trading as Stagecoach Selkent) v Moore [1996] IRLR 661, ICR 836, held that, when faced with an application to amend, there is to be a careful balancing exercise of all the relevant circumstances. Discretion is to be exercised in a way that is consistent with the requirements of "relevance, reason, justice and fairness inherent in all judicial discretions". The balancing exercise may include consideration of the nature of the amendment, the applicability of time limits (especially where a new complaint or cause of action is proposed by way of amendment) and the timing and manner of the application. In relation to the nature of an amendment, distinctions may be drawn between(i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint;(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim (often referred to as ‘re-labelling’); and(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all. Time limits are a more substantive issue in relation to the latter. In Galilee Commissioner of Police of the Metropolis [2018] ICR 634, Hand J held that time limits must be considered at the time that the amendment application is decided, although the final question as to whether or not the claims were submitted in time can be deferred until the final hearing.[21]Pruzhanskaya v International Trade & Exhibitors (JV) Ltd UKEAT/0046/18 (17 July 2018, unreported) is an example of category (i). The claimant had brought a claim for unfair dismissal in good time and subsequently applied to amend his claim to include an allegation that he had been dismissed for whistleblowing. The employment tribunal had rejected this application on the basis that it would entail the introduction of 'a substantial new issue which plainly is brought considerably out of time' and would cause prejudice to the respondent employer. An appeal was allowed on the basis that an application to amend an existing complaint of unfair dismissal to allege a new reason did not involve bringing a new complaint outside the time limit. For the claimant to amend his claim to include the argument that his dismissal was unfair by virtue of whistleblowing under Employment Rights Act 1996 s 103A was not to bring a new claim since it was held to be 'simply a form of unfair dismissal'.[22]Judge Richardson considered that this approach was consistent with the approach adopted, (although in cases addressing slightly different points), in New Star Asset Management Holdings Ltd v Evershed UKEAT/0249/09 (31 July 2009, unreported), where Underhill P indicated that a whistleblowing claim under s 103A is a form of unfair dismissal claim. However, in Conteh v First Security (Guards) Ltd UKEAT/0178/17 (11 September 2017, unreported), in which the claimant sought to amend his claim by whistleblowing as a new basis for an existing unfair dismissal claim, it was held that to seek to add allegations of whistleblowing detriment was to seek to bring a new cause of action outside the applicable time limit. [Note – it is appreciated that the authorities set out in relation the RPT and the last three authorities above on amendment applications were not put forward by either counsel. Therefore, to the extent that either counsel considers that the above summary does not properly reflect the legal position and that analysis has materially influenced the outcome of this judgment, they are invited to apply for a reconsideration].[23]Mummery J re-iterated at 844B of Selkent: Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. This point has recently been re-emphasised by Tayler J in Vaughan v Modality Partnership (UKEAT/0147/20/BA). Strike out and deposit orders[24]Rule 37 of the ETR 2013 provides: At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds: (a) that it is scandalous or vexatious or has no reasonable prospect of success (r37(1)(a)) … [Note, the other four grounds do not apply here][25]Before making a strike out order on any of the grounds, the tribunal must give the party against whom it is proposed to make the order a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing (rule 37(2)).[26]According to Harvey, the striking-out process requires a two-stage test (see HM Prison Service v Dolby [2003] IRLR 694, EAT, at para 15; approved and applied in Hasan v Tesco Stores Ltd UKEAT/0098/16 (22 June 2016, unreported). The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid. The rationale for this two-stage test is, according to Harvey, that the rule is permissive, not mandatory. Ms Ashiru submitted that the two-stage test was no longer valid under the 2013 Rules. Mr Bronze disagreed. I prefer the analysis in Harvey. In any event, I consider myself bound by Hasan. Further, nothing turns on that issue in this case.[27]Rule 39 provides:(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.[28]Where there remain significant conflicts of fact, it may be preferable for the tribunal to proceed to a merits hearing rather than conduct a mini-trial at preliminary stage to determine whether to make a deposit order (which might frustrate the point of the rule (to avoid delay and expense)): Hemdan v Ishmail [2017] IRLR 228, EAT. Disclosure of information[29]In order to qualify as a protected disclosure, the disclosure must involve the ‘disclosure of information’ (s.43B(1) Employment Rights Act 1996). In Cavendish Munro Professional Risks Management Ltd v Geduld [2010[ IRLR 38, EAT it was held that it is not sufficient that the claimant has simply made allegations about the wrongdoer. Slade J said the following: ''… 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.''[30]Subsequently, in Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, [2018] IRLR 846, one of four alleged protected disclosures was ruled out by the tribunal under the Cavendish approach, as falling into the category of 'allegation'. In the EAT ([2016] IRLR 422) Langstaff J upheld the decision on the facts but said at [30]: 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 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.[31]On further appeal to the Court of Appeal, the court (in a judgment given by Sales LJ) held that what Cavendish decided was that whatever is claimed to be a protected disclosure must contain sufficient information to qualify under the ERA 1996 S.43B(1). Agreeing with Langstaff J, the position is that in effect there is a spectrum to be applied and that, although pure allegation is insufficient (the actual result in Cavendish), a disclosure may contain sufficient information even if it also includes allegations. Such an analysis is necessarily highly factsensitive.
Conclusions
[32]Bearing in mind the facts found where relevant, as indicated below, and the relevant legal principles, the conclusions on the preliminary issues are as follows. Acas Early Conciliation[33]I accept the evidence of the claimant, as set out at paragraph 37 of his witness statement, and as clarified at the hearing, that it was his genuine understanding, at the time he submitted the first and second claims, that the first claim had to be submitted within three months of the last of the detriments he was complaining about, which he thought had occurred on 4 December 2019. That is why he submitted that claim first, setting out the detriment claims. He then submitted the second claim, which was intended to deal with his dismissal. He did not seek legal advice before doing so, either from his trade union or elsewhere.[34]He subsequently took legal advice from Thompsons Solicitors, who currently represent him, through the union’s legal services scheme. He first spoke to them on 3 July although it has not been established when they were first sent the paperwork. Thompsons then submitted the third claim, with details of claim which were intended to tie all three claims together and to provide further particulars of the first two claims. The claimant candidly accepted that the situation was as a result ‘a bit messy’.[35]In relation to the mistake in the transposition of the Acas ECC in Claim 1, I conclude that Rule 12(1)(da) applies. There is an error in the ECC number, and I consider that it would not be in the interests of justice to reject the claim. This appears to me to be precisely the sort of circumstance that additional Rule 12(1)(da) is designed to deal with. The fact that it was apparently not spotted on the initial vetting of the claim by the tribunal, two firms of solicitors, and two counsel, shows how easy it is for such errors to be made, and subsequently overlooked. Although Ms Ashiru did not seek to argue to the contrary, I consider it best to make a formal decision on it at this juncture, so that it cannot be raised at a later stage by, for example, the tribunal at the final hearing.[36]As for Claims 2 and 3 and the argument that those claims have not been properly presented because they contain respectively the numbers on the second and third Early Conciliation Certificates, instead of the first Early Conciliation Certificate number, I again conclude that whilst the claims were not presented in accordance with the relevant requirements, the claims should nevertheless be accepted under Rule 12(1)(da). I arrive at that conclusion for the following reasons.[37]The provisions of section 18A(1) and (8) of the Employment Tribunal Act 1996 have been complied with. The claimant does have a valid certificate. He initiated the ACAS early conciliation process properly and in good time. Due to an error on his part, and (in relation to the third claim only) a subsequent error by his solicitors too, the Acas ECC number on Claims 2 and 3 is not the same as the Acas ECC number on the first certificate, which it appears both parties agree it should have been.[38]Those claims have previously been accepted; but since this issue goes to jurisdiction, it must still be considered, now it has been raised. The issue is before me for the first time and hence the amended Rules apply. Applying Rule 12(1) (da), I conclude that the claimant and his solicitors did make an error. I reject the contention by Ms Ashiru that they made a ‘mistake’ and not an error; or indeed that any such distinction applies in the application of this rule. The words ‘mistake’ and ‘error’ are synonymous, according to both an online Thesaurus search, and the hard copy of Collins Thesaurus in my possession. Further, it is not in my judgment, in the interests of justice to reject the claim in the circumstances of this case. Those circumstances are as follows.[39]The claimant has complied with the ACAS early conciliation process. His mistake was to obtain too many early conciliation certificates, due to a misunderstanding of the rules. Those rules remain somewhat complex, and a trap for the inexperienced. The claimant also misunderstood the position in relation to time limits, which led him to mistakenly submit two claims, when he could have just submitted the matters complained of in Claim 1 in Claim 2, which was submitted just under a month later.[40]Further, there is no disadvantage to the respondent in these circumstances. On the contrary, the respondent potentially had two further opportunities to settle the claim via Acas. This is not a case where the claimant was trying to gain an additional time advantage by submitting EC form after EC form, in relation to the same parties and ‘same matter’. He made an error. It has certainly created a ‘bit of a mess’; but that ‘mess’ can be cleared up through appropriate case management including the consolidation of the claims, pleadings and issues, as has been done already.[41]Yet further, the argument by Ms Ashiru that the claimant’s solicitors should have spotted the mistake does not sit well with the fact that Claims 2 and 3 survived the initial tribunal vetting process; nor was it spotted by two firms of solicitors employing specialist employment lawyers; nor the two experienced employment counsel who appeared before me. The claimant and his solicitors were in good company in relation to their error. It can hardly be said in such circumstances to have been obvious.[42]Finally, in considering the application of the relevant law in these circumstances, I have taken due notice of the overall purpose of the rules in relation to early conciliation, and that in seeking to apply them and make sense of them, appellate courts have tried to avoid undue formality and to avoid applying them in a way which would lead to satellite litigation or which would prevent access to justice on a ‘technicality’. Time limits[43]Having dealt with the early conciliation issue, I now turn to the question of time limits. There is no issue in relation to the actual date that Claim 2 was submitted since it was submitted well within the initial three-month time limit, regardless of any Acas EC extension. The respondent argues however that there is a time limit issue in relation to Claim 3 because time is not extended by the first ACAS early conciliation certificate as ACAS early conciliation was commenced prior to the time limit commencing. Therefore, since there is no continuing act after the dismissal, the claim is out of time. This issue requires careful analysis.[44]The first period of Acas Early Conciliation commenced on 3 March 2020 and ended on 30 March. The second period of Acas Early Conciliation commenced and ended on 2 April 2020. The third period of Acas Early Conciliation commenced and ended on 18 June 2020. It is not disputed that the second and third certificates do not count towards an extension of time; it is only the first certificate that can extend time, if at all.[45]If there was a series of similar acts or failures, the last act was the dismissal. For the purposes of this hearing, I am entitled to assume that the claimant’s case will be made out in that respect (although that remains a live issue, for the final hearing). The dismissal was effective on 20 March 2020. There are no acts alleged to have occurred after that date. Therefore the normal time limit expired on 19 June 2020, if there is no extension due to Acas Early Conciliation.[46]The relevant case law on the question as to whether the period of Acas Early Conciliation extends time is referred to above. Garau does not apply in these circumstances, since in that case, Acas Early Conciliation commenced and ended before limitation started to run. I understand that I am not bound by prior appellate authority on the issue. I prefer the reasoning in the line of cases which concludes that in these circumstances, all of the period of early conciliation serves to extend limitation. Section 207B Employment Rights Act 1996 and similar provisions elsewhere do not allow for the apportionment of time in these circumstances between the period of time when limitation started to run and the period of time afterwards, as Ms Ashiru contends. It must be all (of the extension) or nothing. I conclude that it is the former.[47]Ultimately however this does not assist the claimant because adding the whole of the first period of Acas Early Conciliation to the normal limitation period (assuming the last act was the dismissal) extends time for submission of the ET1 to 16 July 2020, the day before it was actually submitted. It is therefore out of time, unless it was not reasonably practicable to submit the claim in time; and if not, if it was submitted within a reasonable time thereafter.[48]I have found this question a difficult one to answer. On the one hand, the claimant is a trade union health and safety representative. That does not in itself mean that he is an expert in time-limit issues or the submission of employment tribunal claims. He was clearly aware however of the three-month time limit, which is why he submitted Claim 1 when he did, within three months of the last of the detriments. It is why on his case, which I accept, Claim 2, which deals solely with the dismissal, was submitted slightly later. As a member of Unite he was able to seek legal advice and representation through solicitors contracted to carry out that work for Unite Legal Services. He did not however speak to a solicitor about his claims until 3 July 2020, and he approved the contents of Claim 3 on 17 July 2020, just 2 weeks later, the day Claim 3 was submitted. No explanation is given as to why it took so long to speak to a solicitor. Further, no evidence was led as to what information the solicitors had before submitting Claim 3, and in particular, whether they were aware of the previous claims and/or the previous early conciliation certificates.[49]The assumption clearly was that the third Acas ECC, which was applied for on 18 June 2020, before the time limit expired, extended the time limit for submission of Claim 3. It was assumed that time was therefore extended by a month after the date on the third Acas ECC, i.e. one month after 18 June, which is 18 July 2020.[50]Since evidence has not been led on the point, as to what information was in the hands of the solicitors at the time Claim 3 was submitted; and as to why a third claim was submitted, rather than an application being made to amend the first two claims; I am not in a position to answer the question as to whether or not the claimant solicitors were negligent in failing to submit Claim 3 in time. I conclude however that even if there was no negligence, it would have been reasonably practicable to have submitted the claim in time, had the claimant sought legal advise through his trade union at an earlier stage. The difficulty was therefore of the claimant’s own making. I conclude that in these circumstances, it was reasonably practicable for Claim 3 to have been submitted in time.[51]I take due notice of the fact that this issue was not picked up by the respondent’s solicitors (see para 9 of the Grounds of Resistance which appears to assume that the Acas Early Conciliation Certificate was valid, a position maintained in the amended Grounds of Resistance dated 4 December 2020). The result seems harsh but the test of reasonable practicability is well known to operate somewhat harshly and the discretion given to a tribunal by the rule is far less than applies to e.g. Equality Act 2010 claims. This result may also be compared with the conclusion above that it would not be in the interests of justice to reject Claims 2 and 3 because they were not validly presented. But the test of reasonable practicability is a different test and has ended up with a different result.[52]Had it been necessary to consider the point, I would have concluded that since the claim was submitted a day after the time limit expired, it was submitted within a reasonable period afterwards. However, that issue is academic in the light of my above conclusion. Amendment application[53]Given the conclusion in relation to time limits, only Claims 1 and 2 are valid. In considering the amendment application therefore, it is necessary to first consider what legal claims were raised in those Claim forms.[54]Claim 1 refers to “continuing detriment”; there is reference to the following: the claimant being a Unite health and safety rep; refusal to allow him to carry out his own investigation into accidents and dangerous currents on sites; and a reference to “the victimisation I have endured and continue to endure from Skanska/SRW because of my role and the work as a health and safety rep”. I conclude therefore that Claim 1 raises potential claims that the claimant has suffered detriments short of dismissal because of his role as a health and safety representative. Since it is clear that the claimant’s health and safety role arises from his union membership, I conclude that Claim 1 also raises potential claims under both section 146 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA) and section 44 Employment Rights Act 1996 (ERA). The former is encompassed within the latter, although may not add anything, since it is the trade union health and safety activities which it appears that the claimant is alleging led to the detrimental treatment he complains of. Claim 1 does however contain virtually no detail about the detrimental treatment he has allegedly suffered and is crying out for further particularisation.[55]Claim 2 refers to “a detriment I suffered through unfair dismissal/redundancy… because of my H&S work and whistleblowing as a union rep”. Specific reference is made to S152 Trade Union and Labour Relations (Consolidation) Act 1992. Since there is reference to redundancy, I conclude that Claim 2 raises potential claims of ‘ordinary’ unfair dismissal (S.98 ERA), automatically unfair dismissal under ss.100, 103A and 105 ERA (health and safety/whistleblowing), and dismissal/selection for redundancy due to trade union activities (ss.152/3 TULR(C)A).[56]In the original details of claims in claim 3 it is stated: “The Grounds of Claim refer to new claims and also serve as further and better particulars of the Claimant’s previous two submitted claims”. The claims raised by the third claim can be summarised and are agreed to be: unfair dismissal, automatically unfair dismissal pursuant to section 152/153 TULRA and/or sections, 100, 103A and 105 ERA (in essence, the claimant puts his dismissal down to trade union activities, health and safety activities and/or whistleblowing); and detriments because of health and safety activities or whistleblowing or trade union activities (sections 44 and 47B Employment Rights Act 1996 and s.146 Trade Union and Labour Relations (Consolidation) Act 1992). The respondent argues that Claim 2 does not identify the protected disclosure and neither Claim 1 or 2 identify the health and safety or trade union activities that are said to give rise to any detriment. Claim 2 does refer to the claimant’s speech at the European Works Council meeting (EWC) which is the first protected disclosure relied on but not to the claimant’s subsequent grievance. Again, there is a clear need for further particularisation of the disclosures, although since these claims were submitted by the claimant, rather than by solicitors, that is not altogether surprising. (The re-amended details of claim, served on 8 February 2021 also withdraw numerous alleged detriments together with various miscellaneous claims such as for wages, redundancy pay and notice pay but those do not need to concern us any further here).[57]In considering the amendment application, I turn first to the Selkent factors. As to the nature of the amendment, the particulars of which are set out in the details of claim annexed to Claim 3, as amended and further re-amended subsequently, I conclude that, insofar as they seek to clarify the claims which I have found are raised by Claims 1 and 2, they provide further information about those existing claims. However, insofar as Claim 3 also alleges that the detriments were due to whistleblowing, those are new claims, and amount to a type (iii) Selkent amendment because they are adding a new cause of action – see Conteh, above.[58]As to time limits, those are something I need to consider in relation to existing claims that are further clarified. However, even if the amendment by way of further clarification occurred outside of the normal time limit, time limits are only a factor to be taken into account and are not determinative. It is only where new claims are sought to be added, that time limits become more of an issue which the tribunal must determine, either at the time the amendment application is considered, or at the final hearing. I have determined that Claim 3 was submitted one day late, and therefore time limits are a more decisive factor in relation to the whistleblowing detriment claims.[59]As to the timing and manner of the application, a formal application to amend was not in effect been made until Mr Bronze served his skeleton argument shortly before the hearing. In reality however the respondent has known that it faced potential claims for trade union/health and safety detriments/dismissal, and whistleblowing dismissal, from the date that it received Claim 2, which itself was submitted only just over a month after the time limit, without any ACAS early conciliation extension, would have expired. Whilst the claims potentially raised by Claims 1 and 2 have required extensive further particularisation, much of that information is set out in the grounds of claim attached to Claim 3, submitted just one day outside of the normal time limit. It is important in these circumstances, in my view, to distinguish between form and substance here. A formal amendment application has only been made at a relatively late stage because it was assumed until very recently that there was no issue in relation to time limits for Claim 3. But the respondent has known about the details set out in that claim for much longer.[60]These factors must be considered against the balance of hardship in allowing or refusing the amendment. In relation to the further particularisation of the trade union/health and safety detriment claims and the dismissal claims raised by Claim 2, I consider that the balance of hardship is in favour of the claimant. To prevent him pursuing those claims would prevent him from pursuing claims which the respondent has been on notice of from the start, even though they clearly required further particularisation. However, instead of further particularisation of existing claims, a further claim was submitted, which has been held to be out of time due to the complex interaction between the ACAS early conciliation provisions, and the question of time limits. Since the further particularisation of these claims does not amount to the adding of new claims or causes of action, the fact that further particulars were provided just one day outside of the time limit should not in these circumstances prevent the claimant from pursuing them. Following receipt of this decision, the list of issues can be finalised, and the other directions made in separate case management orders can be implemented in plenty of time for the hearing. Allowing the amendment will therefore have no impact on the hearing of this claim, which can still go ahead as planned in September. The main disadvantage to the respondent is that it cannot in these circumstances avoid the claims on a technicality.[61]The respondent says it will have to call four extra witnesses to deal with the detriment allegations, Kieran Barker, about the text message; Danny Gillam – the grievance officer and Darren Sly, grievance appeal officer; and Ms Metalla – who the claimant says attended the EWC meeting 12 November. However, those matters are in any event relevant background information relied on by the claimant in relation to his automatically unfair dismissal claims. I consider that those matters will be important issues for the Employment Tribunal to examine in relation to those dismissal claims, in order to determine where the truth lies. Whether, as the respondent says, there was a genuine redundancy situation and the claimant’s selection for redundancy and subsequent dismissal was for a potentially fair reason. Or whether, as the claimant alleges, there was something not right, or something untoward about that process. It appears to me that the tribunal will be greatly assisted by considering whether or not there was a pattern of adverse behaviour towards the claimant because of his health and safety activities, which culminated in his dismissal. The claimant has set out a case; if that case does not stack up, his automatically unfair dismissal claims are undermined.[62]There will in these circumstances be no saving of time if the detriment claims are knocked out because that evidence is still going to be heard to help the tribunal to arrive at its conclusions on the claims before it. Further, the witness evidence on these points can be brief, and will not significantly add to the length of the hearing. In relation to Ms Metalla for instance, was she present at the meeting as alleged, and if so, who did she subsequently speak to (or write to/email) about what the claimant said at that meeting?[63]When it comes to the whistleblowing detriment claims however, I consider that the balance of hardship is in favour of the respondent. I did ask Mr Bronze, during the hearing, whether the whistle-blowing detriment clams added anything, even if I held that they could proceed. In my judgment, those claims only serve to add a further layer of complexity. When the key issue here is whether the claimant’s trade union related health and safety activities, (which potentially encompass the speech at the EWC meeting, and his subsequent grievance complaining that he was not being allowed to carry out those activities properly), were the cause of the alleged detriments, culminating in his dismissal. Since I have found that the whistleblowing detriment claims were made just outside of the applicable time limit, it would in my view create further time and expense for the respondent, in relation to claims which are out of time and which add little to the pleaded case. Due to the above conclusion on the strike out/deposit order applications, the claimant can still pursue those detriment claims as s.146 TULRA and/or s.44 ERA claims. I therefore refuse the application for amendment in relation to the whistleblowing detriment claims.[64]The comments above in relation to whether or not the arguments that the detriments were caused by whistleblowing add anything on the facts of this case, apply equally to the whistleblowing dismissal claim. It is not in dispute that this was referred to in Claim 2 and on the basis of my analysis above, can proceed. In my view however, arguing that the dismissal was due to whistleblowing only adds a further layer of complexity because of the requirement to show reasonable belief in a S.43B factor; as well as public interest. In light of the decision that the whistleblowing detriment claims are not to be allowed to proceed further, the claimant and his representatives may wish to consider whether it is now worth pursuing the whistleblowing dismissal claim at all. I stress however that this is said by way of guidance only. Ultimately, it is up to the claimant, in conjunction with his legal advisers, to decide whether to pursue the whistleblowing element of the dismissal claim. It may be that there is a sound reason to do so which I have missed. Strike out/deposit orders[65]The penultimate issue to consider is the application for strike out and deposit orders in relation to a number of the detriment claims. I deal with each detriment in turn below. 66 a. Refusal of previously booked holiday by text message from Kieran Barker, on 12 November 2019. The respondent argues that the evidence from the text message suggests that the problem was that the claimant had not filled out the necessary form and the holiday was not actually being refused. The claimant’s response to that is that the holiday had been agreed, and requiring him to fill in the form was an unnecessary administrative burden, and evidence of adverse behaviour towards him. Whilst that is a slightly different slant, it is still a matter on which I conclude that it is necessary for evidence to be heard and a conclusion reached, bearing in mind the evidence as a whole.[67]Further, whilst on its own it may not amount to much, I refer to the discussion above about it being the claimant’s case that there was an adverse pattern of behaviour towards him, following the EWC meeting, of which this was the start. For reasons set out above, consideration by the tribunal hearing this matter of the alleged pattern of behaviour seems to me to be a potentially crucial part of the relevant fact-finding exercise. As stated above, if the claimant fails to establish the alleged pattern of behaviour, his automatically unfair dismissal claims are potentially weakened. Alleging this pattern of behaviour is therefore a double-edged sword and could ultimately work to his disadvantage and to the respondent’s advantage. Without hearing full evidence on this matter, this is not a claim which I can say has no reasonable prospects of success. Nor can I say, at this stage, that it has little reasonable prospects of success. Further, even if this detriment was struck out, evidence in relation to it would still need to be heard in order to determine the automatically unfair dismissal claims. 68 b. Issuing two disciplinary warning letters upon the Claimant’s return from the EWC regarding his absence, dated 09 October 2019 and 21 November 2019. The respondent argues that these letters weren’t formal disciplinary warning letters at all. They were simply warnings to the claimant that if his attendance did not improve, formal action could follow. Further the respondent argues, one was sent before the EWC meeting and the other one afterwards; so the second letter looks to be more like the continuation of a process, rather than having been caused by the intervening meeting. Whilst I accept that Ms Ashiru’s arguments have some force, these letters need to be seen in the context of the alleged pattern of behaviour. Therefore, for the same reasons as set out above, I do not consider, without hearing full evidence on this matter and considering the matter in the round, that it is reasonable to conclude at this stage that this claim has no, alternatively little, reasonable prospect of success. 69 c. Refusing to drop the disciplinary warnings despite the Claimant providing evidence to disprove them. I adopt the same reasoning as set out above in relation to detriments a and b. In my view, full evidence needs to be considered, and the matters determined in the round. 70 d. Refused the Claimant’s request to investigate the dangerous incident (a fire) at the Paddington C405 site, on 04 & 05 December 2019. Ms Ashiru relies on the content of the 4 December 2019 email which confirms that it is the respondent’s case that they genuinely believed that this was not a matter which it was the respondent’s responsibility to investigate. Therefore, even if the claimant disagrees, this does not give rise to a detriment claim on prohibited grounds. The claimant does not however accept the respondent’s evidence on the point and evidence needs to be heard, in order to determine whether the view put forward in the 4 December 2019 email was indeed genuine. Further, since that is part of the pattern of behaviour alleged, I consider that the evidence in relation to it is going to assist the Tribunal at the final hearing. I am not able to conclude that this claim has no, alternatively little, reasonable prospect of success, when the contents of the email are vehemently disputed by the claimant. 71 e. Selecting the Claimant for redundancy. The respondent argues that this cannot be pursued as a detriment claim, where the selection led to the dismissal. See for example s. 44(4) ERA and similar provisions in TULRA. The claimant argues that provisional selection does not always leads to dismissal. That may well be true, but the claimant here is pursuing claims under section 153 TULRA, and section 105 ERA, i.e. claims for automatic unfair dismissal on the basis that his selection for redundancy was ‘because of’ trade union activities/health and safety activities. This claim cannot therefore be pursued as a detriment claim, and is struck out. The striking out of this detriment claimant does not have any impact on the automatic and ‘ordinary’ unfair dismissal claims which are proceeding, and in relation to which the selection process is very much in issue. 72 g. Refusing to postpone an appeal hearing to allow the Claimant’s representative to attend on 11 March 2020. Ms Ashiru referred me to page 222, which shows that the meeting was arranged so that the claimant’s representative could attend. The minutes of the meeting suggest that the claimant was happy to continue with meeting in the absence of his representative. The claimant disputed that in his evidence before me. It is therefore a matter on which full evidence should in my judgement be heard, in order to determine whether the alleged pattern of behaviour is made out. I am not able to conclude that this claim has no, alternatively little, reasonable prospect of success at this stage. 73 h. Refusing to change the Claimant’s redundancy selection matrix scores despite evidence to show they were incorrect, on 11 March 2020. This detriment appears to be tied up with the dismissal process, in the same way that detriment e. above is. This claim cannot therefore be pursued as a detriment claim, and is struck out. As stated above however, the striking out of this detriment claimant does not have any impact on the various unfair dismissal claims which are proceeding, and in relation to which the failure to change the selection matrix score when it was allegedly incorrect is in issue. Disclosure of information[74]The final issue is whether or not the protected disclosures relied on by the claimant, namely the contents of his speech to the EWC meeting, and the contents of his grievance, contain disclosures of information. I was referred to both of those documents. The claimant informed me that there is a video of his speech, and he may well have hand-written notes, which he spoke to, when addressing the meeting.[75]Given that there is likely to be further evidence regarding exactly what was said at the EWC meeting, and given that, as Kilraine makes clear, the distinction between allegations and information is not always clear-cut, it is in my view necessary for a full tribunal to consider this issue in the round having heard all of the evidence. I do not consider myself able to conclude, at this stage, that the claimant has no reasonable prospect of success, in relation to his claim that he did make protected disclosures. However, given the dispute in relation to this matter, this may also be something that the claimant and his advisers want to consider, in determining whether or not it is appropriate to continue with the whistleblowing dismissal claim at all.[76]Finally, as a related matter, Ms Ashiru argued that the EWC meeting was confidential, and that provides a further hurdle for the claimant to overcome, since he cannot show that the contents of the meeting were known to those alleged to have cause the detriments. The claimant however says that Ms Metalla was present. That is something that will need to be determined in due course on the basis of witness and documentary evidence.
Findings of Fact
[77]Following the redundancy appeal hearing Mr Williams sent questions to Messrs Keeler, Card and Bell and to Ms Ackerman to address the points that the Claimant had raised. They all responded in writing to the questions.[78]The Claimant’s grievance appeal was heard by Darran Sly, Head of Health, Safety and Wellbeing, on 16 March 2020.[79]The end date of the Claimant’s employment was extended to 20 March 2020 pending the outcome of his redundancy appeal. Mr Williams sent him the appeal outcome on 20 March. The appeal was not upheld. In his letter he addressed all the points raised by the Claimant and explained, in respect of each of them, why he had not accepted the Claimant’s arguments. The Claimant’s employment terminated on 20 March 2020.[80]The Claimant was sent the outcome of his grievance appeal on 30 March 2020. His appeal was unsuccessful. Mr Sly concluded that the decision not to uphold his grievance had been both fair and reasonable.
Conclusions
[81]It was not in dispute that the Claimant was a member of Unite and that from March 2018 he was a trade union health and safety representative for Unite members working for SRW on the C405 project at Paddington and that as such he carried out health and safety functions and/or trade union activities. Prior to that he had been a trade union health and safety representative at the Crossrail Mile End site from October 2015 onwards.[82]The issues that we had to determine were whether we had jurisdiction to consider the complaints about any alleged detriments that had occurred before 4 December 2019, whether the Claimant had been subjected to the detriments about which he complained and, if he had, whether he had been subjected to them because he had carried out health and safety functions and/or trade union activities and whether the sole or principal reason for his dismissal was that he had been a Unite member, had carried out health and safety functions or trade union activities or had made protected disclosures. Jurisdiction[83]If we do not find any of the complaints about the detriments that allegedly occurred after 4 December to be well-founded, the complaints set out paragraph 2.3 a – c will not have been presented in time and we could only consider them if the Claimant satisfied us that it had not been reasonably practicable for him to have presented them in time. The Claimant has not put forward any evidence to show that it was not reasonably practicable for him to have presented those complaints in time. Furthermore, the Claimant was a member of a trade union and had access to advice from his union and had previously brought a claim to the Tribunal. There was nothing before us to satisfy that us that it had not been reasonably practicable for the Claimant to have presented those complaints within the relevant time limits. If the Claimant does not succeed on any of the complaints about acts that took place after that date, our conclusions will be that we do not have jurisdiction to consider the detriment complaints at paragraph 2.3 a – c above. The detriment complaints[84]In case we are wrong in our conclusion about jurisdiction (above) and because it is necessary to consider the full picture when we consider the later complaints, we set out briefly what our conclusions would have been on the detriments claims at paragraph 2.3 a-c had we considered them.[85]In respect of all the detriment claims, we think that it is important to highlight the following matters. There was generally a good relationship and co-operation between the managers at SRW and the Claimant. They passed on the Claimant’s wishes to be involved in CSJV investigations to them and shared with the Claimant whatever was provided to them from those investigations. They held monthly joint health and safety committee meetings and site safety walks. They were on occasions frustrated with the Claimant repeatedly raising matters that they believed had been addressed. There was not a particularly good relationship between the Claimant and Skanska and Costain employees working on the CSJV. The main bone of contention between the Claimant and his managers was that he believed that he should be involved in investigations that related to matters under the remit of CSJV or should be allowed to carry out his own investigations related to those matters. Their view was that they had no authority to impose him on CSJV investigation and generally felt that he should wait to see what a CSJV investigation revealed before he embarked on his own one.[86]If we had jurisdiction in respect of the first three alleged detriments, we would have concluded as follows. Paragraph 2.3a The Claimant had not previously booked the holiday for 18 to 22 November in the manner that he normally booked holidays (paragraph 35 above). Mr Barker did not inform him that he could not take the holiday, but advised him to fill in the form and to speak to Mr Bell. The Claimant did not do that but took the holiday anyway. In those circumstances, it is difficult to see how it could be said that he had been subjected to a detriment. There was no evidence that Mr Barker’s message had anything to do with the health and safety concerns that the Claimant had been raising at Paddington or with what the Claimant had said at that meeting in Norway that evening. The suggestion that Skanska’s Global Head of HR had contacted a supervisor at Paddington or that she had contacted senior managers who in turn had contacted Mr Barker was fanciful and not supported by any evidence. That complaint is not wellfounded. Paragraph 2.3b The Claimant was issued with the letter of 9 October 2019 on that date and not after he returned from the EWC. The two letters were not disciplinary letters but letters of concern. The Claimant was one of three employees who was issued with the letter of concern on 9 October. They were issued with those letters because the HR Business Partners had reviewed the absence on the project and those three employees had had more than three absences in the rolling six month period. The Claimant was not singled out or targeted in any way and there was nothing to suggest that the issuing of the letters was related to anything other than the level of absences of the individuals involved. The letter of 21 November was issued on the advice of HR after it had reviewed the Claimant’s absences and had noted that he had had six further absences since the letter of 9 October 2019. That letter was issued because of the Claimant’s level of absence and had nothing to do with his health and safety or trade union activities or his speech at the EWC. Paragraph 2.3c Although the Claimant challenged the accuracy of the absences recorded in the letter dated 21 November, he never provided the Respondent with any evidence that its records were inaccurate. The evidence that he produced before us did not support him (see paragraphs 44 and 49 above).[87]We then considered the complaints of detriments which had been presented in time. Paragraph 2.3d The incident that the Claimant wanted to investigate was under the remit of CSJV and being investigated by them. SRW could not insist that the health and safety representative of its Unite members should be allowed to participate in the investigation. Mr Bell had no control over who participated in the CSJV investigation and could not impose the Claimant on them. He did not refuse the Claimant’s request to carry out his own investigation; he simply advised him to wait to see what came out of the CSJV investigation before he took any further action. The Respondent did not respond in the way that it did on the ground that the Claimant had carried out health and safety activities or for the sole or main purpose of preventing or deterring him from carrying out his trade union activities or penalising him for doing so. Paragraph 2.3e There is ample evidence that the Claimant was provided with details of alternative employment during his garden leave from 31 January to 20 March 2020. The redeployment pack provided details of how to access internal vacancies and weekly emails were sent listing the latest internal vacancies. Redeployment sessions were held regularly and the Claimant could attend them. The Claimant received the redeployment pack and the emails (see paragraphs 45 and 58 above). A workstation with access to a laptop was provided to employees to search for alternative positions within Skanska (see paragraph 55 above). The Claimant was advised on many occasions how he could and should access vacancies (paragraphs 64 and 65) and recruitment managers and Ms Ackerman assisted him by providing him with job descriptions and forwarding his CV (paragraphs 65, 67, 70). The Claimant was not subjected to the detriment of which he complains. Paragraph 2.3f The hearing was listed to accommodate the availability of the Claimant’s trade union representative. The Claimant did not ask for the hearing to be postponed and it follows, therefore, that the Respondent did not refuse any such request. The Claimant was offered the opportunity to have his trade union representative join over the telephone but he declined that offer. The Clamant was not subjected to the detriment of which he complains. Unfair Dismissal[88]At the EWC meeting on 12 November the Claimant informed those attending that Skanska did not co-operate with and obstructed health and safety representatives in carrying out their functions. We concluded that he disclosed information which he reasonably believed was in the public interest and tended to show that the health and safety of workers was being endangered. We accepted that that amounted to a protected disclosure. We also accepted that his raising the same matters in his grievance of 9 December 2019 also amounted to a protected disclosure.[89]In circumstances where the work on the C405 Project was due to end in the middle of 2020 and all the all the electricians working on it (bar one who secured redeployment) were dismissed for redundancy between the end of 2019 and August 2020 it is difficult to see how it could be argued that there was not a genuine redundancy situation and that it was not the sole or principal reason for the Claimant’s dismissal. The real issue in respect of the claims made by the Claimant was whether he was selected to be made redundant in the first tranche because of his trade union membership or activities or his health and safety activities or because he had made protected disclosures.[90]All the evidence points against that. The selection criteria applied to determine the order of the redundancies were agreed with the two Unite representatives who were involved in the joint consultation. They were purely objective criteria and the scoring was clearly prescribed and there was no scope for making any subjective assessments. The persons being scored were anonymised. The Claimant’s suggestion that everyone must have known that “K” was him because his first name is Kevin is wholly without substance. Even if everyone had known that it was him, the scores that he received were decided on the basis of the data and the scores allocated to that data. It would have been no difference to his score even if people had known that it was him. On the data relating to him, he would have received the same score. The two Unite representatives were involved in the scoring and there was no reason why they would have wanted to give him lower scores because of his trade union or health and safety activities. The Claimant was given low scores for his attendance and time-keeping on the basis of the records provided by HR. The Claimant has not adduced any evidence (either during the redundancy process or at the hearing before us) to suggest that the data used for scoring was inaccurate or would have materially affected the scores and the outcome of the process. The Claimant has not established that there was no basis for the Respondent giving him the two letters of concerns. Even if he had not been given those letters, and had scored 5 for disciplinary record, his score would still have been the lowest. Even if attendance and time-keeping had not been given double weighting, the Claimant’s score would have been the lowest. There was absolutely no evidence to suggest that the Claimant’s scoring had had anything to do with his health and safety or trade union activities or his protected disclosures. There was no evidence to support his claim that he had been selected for redundancy for any of those reasons.[91]We then considered whether the dismissal for redundancy was fair. The employees whose work was to cease gradually in the first half 2020 were first advised on 27 November 2019 that it was likely to happen. The first redundancies took place on 31 January 2020. The Claimant was given adequate warning of the impending redundancy. There was collective consultation with the trade union from 10 December 2019 to 6 January 2020. There were four consultation meetings during that period. The selection process was agreed in the collective consultation and the scoring was carried out by the Respondent and the unions jointly. The selection criteria were fair and appropriate and were scored objectively. There were then two individual consultations with the Claimant. All the evidence shows that both the collective and the individual consultations were genuine consultations and not just rubber stamping. The Claimant was given a redeployment pack, which explained clearly how he could access vacancies within Skanska, on 2 December 2019. Although the Claimant received vacancy lists weekly by email from that date until 21 January 2020, he did not apply for any jobs. The Respondent set up redeployment sessions. The Respondent provided a workstation with access to a laptop for employees to search for alternative work. The Respondent reviewed whether there were any redeployment opportunities in the work carried out by contractors on the project and there were not. The Claimant was not dismissed on 31 January 2020 and paid in lieu of notice (as were the other employees who were made redundant on that date), but was given notice and allowed to remain on garden leave until 13 March 2020 so that he could continue to look for alternative work within Skanska. The Recruitment Manager Infrastructure and Ms Ackerman assisted the Claimant by sending him some job vacancies and forwarding his CV. The Claimant was given a right to appeal against redundancy and he exercised that right. Having considered all the above, we concluded that the Respondent acted reasonably in dismissing the Claimant for redundancy on 13 March 2020.