Mr M Carr v Bloomberg L.P.: 2203206/2020 and 2205003/2020
EMPLOYMENT TRIBUNALS
Case No 2203206/2020, 2205003/2020
Between
Mr M CarrClaimantBloomberg L.P.Respondent
Before
Employment Judge HodgsonMr J Cook (instructed by counsel) for claimantDate 13 December 2021
REASONS
[1]The claimant issued his claim on 28 May 2020. The claimant brings multiple claims which include the following: unfair dismissal; direct age discrimination; and direct race discrimination. He alleges that he was dismissed because he made protected disclosure and brings a claim pursuant to section 103A Employment Rights Act 1996. - 1 -
The hearing
[2]This case proceeded as a remote hearing. There was an initial case management hearing on 25 June 2020. All parties agreed that the claim for interim relief was suitable for a video hearing. To allow the parties to familiarise themselves with the CVP video platform, and to iron out technical difficulties, there was a short further case management hearing the day before the hearing.[3]Witness evidence was filed, but no party sought an order for cross examination. Both parties were ably represented by experienced counsel, both of whom provided detailed skeleton arguments.[4]The case was advertised on CourtServe. Several members of the public, and at least one member of the press, attended the hearing. Three members of the public were not within the jurisdiction: one was in Australia, one Singapore, and one Hong Kong. They were friends or relatives of the claimant. Each of those individuals agreed not to record either the audio or the video, or to capture any images. I noted that they may not be directly subject to the jurisdiction of England and Wales. I was concerned that allowing them to observe the hearing goes beyond any requirement for a public hearing in this country. Neither counsel nor I were aware of any specific directions or guidance given by either the tribunal or the higher courts. Neither party objected to the individuals outside the jurisdiction continuing to watch the proceedings. As each of the individuals confirmed they would observe the prohibition on recording, and given that their interest was personal, I took the view that they should be permitted to observe, albeit I did not consider I had an obligation to do so. I should note that in the absence of clear guidance, I do not consider I have an obligation to prevent the hearing being viewed outside the jurisdiction.[5]During the first case management discussion, we specifically considered the challenges that such video hearings may present in terms of public access. As outlined above, provision was made for the public to join by means of a video link. We considered how documents should be made available to the public. CVP allows presentation of individual documents on screen. Following my request, one of the respondent's trainee solicitors, Ms Ainsley, agreed to assist by taking responsibility for displaying relevant documents on screen, as they were referred to. The net result was all could see the specific document referred to, albeit only the individual page referred to, was displayed.[6]I considered the possibility of a member of the public seeking greater access than could feasibly be allowed by screen presentation. The respondent agreed to keep a hardcopy of the relevant documents, and it was envisaged that if a greater access were requested, or required, it may be possible to allow inspection of those documents, without removal or - 2 - copying, at a time to be agreed or directed. However, whilst this contingency existed, it was not necessary to exercise it.[7]I would like to express my thanks to all involved, particularly to both counsel for the constructive and helpful way they dealt with the case and to Ms Ainsley for the assistance she gave. Without the helpful approach adopted by the parties, it would have been difficult to deal with this hearing online.
The legal framework
[8]When there is a claim of automatic unfair dismissal contrary to section 103A Employment Rights Act 1996 (generally referred to as dismissal for whistleblowing), section 128 of the same act gives a right to bring a claim for interim relief.[9]Section 103A Employment Rights Act 1996 provides: An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.[10]Section 128 Employment Rights Act 1996 provides: (1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed by his employer and— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i) … section… 103A…, may apply to the tribunal for interim relief.[11]Section 129 deals with the procedure to be adopted when interim relief is granted: 129(1) This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i) section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or … (2) The tribunal shall announce its findings and explain to both parties (if present) …[12]Interim relief is an exceptional form of relief granted pending determination of a complaint of unfair dismissal see Taplin v C Shippam Ltd [1978] ICR 1068. It is common ground that Taplin remains good law. When considering whether it is likely the claimant will succeed, it is not enough - 3 - to show a likelihood on the balance of probability. The claimant must show that his case has "a pretty good chance of" of success.[13]The principles were reviewed and summarised by the Employment Appeal Tribunal in London City Airport Ltd v Chackro [2013] IRLR 610: 10. The correct approach to be applied to the meaning of “it is likely” has been a matter of some controversy. It has been argued by some, not least in the relevant passages in Harvey on Industrial Relations and Employment Law, that it will be sufficient for the employee to show that, on the balance of probabilities, he or she is ultimately going to win at the subsequent unfair dismissal hearing. However, the weight of authority is against a simple balance of probabilities approach. As long ago as the decision of this Employment Appeal Tribunal in Taplin v C Shippam Ltd [1978] ICR 1068 it was held that the appropriate test is higher than simply establishing that the balance is somewhat more in favour of the employee’s prospect of success. It must, on the authority of Taplin, be established that the employee can demonstrate a pretty good chance of success. While that cannot substitute for the statutory words, it has been the guiding light as to the meaning of “likely” in this context that has been applied over the subsequent three of more decades by the EAT. As recently as November 2009, this EAT in a constitution presided over by the then President, Underhill J, upheld the Taplin approach: Dandpat v University of Bath [2009] UKEAT/0408/2009. In that case, the appellant had sought to contend that the authority of Taplin had been undermined by a decision of the House of Lords. This EAT rejected that submission and in due course, held as follows: “Taplin has been recognised as good law for 30 years. We see nothing in the experience of the intervening period to suggest that it should be reconsidered. On ordinary principles we should be guided by it unless we are satisfied that it is plainly wrong. That is very far from being the case. We do in fact see good reasons of policy for setting the test comparatively high in the way in which this Tribunal did in the case of applications for interim relief. If relief is granted, the respondent is irretrievably prejudiced because he is required to treat the contract as continuing and pay the claimant until the conclusion of the proceedings: that is not a consequence that should be imposed lightly.” [20][14]The EAT also gave some guidance on the approach to be taken at paragraph 23:[23]In my judgment the correct starting point for this appeal is to fully appreciate the task which faces an employment judge on an application for interim relief. The application falls to be considered on a summary basis. The employment judge must do the best he can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases. The employment judge is then required to make as good an assessment as he is promptly able of whether the claimant is likely to succeed in a claim for unfair dismissal based on one of the relevant grounds. The relevant statutory test is not whether the claimant is ultimately likely to succeed in his or her complaint to the Employment Tribunal but whether “it appears to the tribunal” in this case the employment judge “that it is likely”. To put it in my own words, what this requires is an expeditious summary assessment by the first instance employment judge as to how the matter looks to him on the material that he has. The statutory regime thus places emphasis on how the matter - 4 - appears in the swiftly convened summary hearing at first instance which must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim. 15. Rule 95 Employment Tribunal Rules of Procedure 2013 applies rules 53 – 56, which concern preliminary hearings, to interim relief applications. It specifies the tribunal shall not hear oral evidence, unless it directs otherwise. 16. The substantive law relating to whistleblowing needs to be considered. 17. Under section 43A Employment Rights Act 1996, a worker makes a protected disclosure in certain circumstances. To be a protected disclosure, it must be a qualifying disclosure. Qualifying disclosures are identified in section 43B Employment Rights Act 1996:(1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. … (5) In this Part 'the relevant failure', in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). 18. The following questions must be addressed: first, is there a disclosure of information; second, does the disclosure of that information tend to show one of the relevant failures referred to in section 43B(1)(a)-(e); third, what was the belief of the employee making the disclosure; and fourth, was a belief reasonably held that the disclosure tends to show one or more relevant failures and was made in the public interest. All of these elements must be satisfied if the claim is to succeed at a final hearing. 19. Disclosure of information should be given its ordinary meaning, which revolves around conveying facts. It is possible an allegation may contain - 5 - information, whether expressly or impliedly (see Kilraine v Wandsworth LBC [2018] EWCA Civ1 1436). Each case will turn on its own facts. 20. It may be possible to aggregate disclosures, but the scope is not unlimited, and it is a question of fact for the tribunal. 21. It may be necessary to indicate the legal obligation on which the claimant is relying, but there may be cases when the legal obligation is obvious to all and need not be spelled-out (see Bolton School v Evans [2006] IRLR 500 EAT). However, where the breach is not obvious, the claimant may be called upon to identify the breach of obligation that was contemplated when the disclosure was made. It may be necessary to identify a legal obligation (even if mistaken), as opposed to a moral or lesser obligation (see Eiger Securities LLP v Korshunova [2017] IRLR 115, EAT.) 22. The reasonable belief of the worker must be considered. The test is whether the claimant reasonably believed that the information 'tended to show' that a relevant failure pursuant to (a) to (f) existed; the truth of disclosure may reflect on the reasonableness of the belief. Reasonable belief requires a subjective belief that is objectively reasonable (see Babula v Waltham Forest College [2007] ICR 1026, per Wall LJ). 23. Reasonable belief is to be considered by reference to the personal circumstances of the individual. It may be that an individual with specialist or professional knowledge of the matters being disclosed may not have a reasonable belief, whereas a less informed, but mistaken individual, might (see Korashi v Abertwe Bro Morgannwg University Local Health Board [2012] IRLR 4). Each case must be considered on its facts.[24]The public interest element was added in 2013 to address the decision in Parkins v Sodexho Ltd [2002] IRLR 109, EAT. This has been considered by the Court of Appeal in Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ979. Underhill LJ gave the lead judgment in the Court of Appeal and addressed whether a disclosure made in the private interest of the worker may also be in the public interest, because it serves the interests of other workers as well (see Underhill LJ, paragraph 32). Underhill LJ declined to interfere with the tribunal’s decision and set out guidance at paragraph 37. .. the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter under section 43B (1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker… The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but Mr Laddie’s fourfold classification of relevant factors which I have reproduced at para. 34 above may be a useful tool… but that is subject to the strong note of caution which I have sounded in the previous paragraph. - 6 -[25]Underhill LJ expressly refused to rule out the possibility that even a disclosure of a breach of a particular worker’s contract will not be in the public interest. The tribunal must consider all the circumstances; Underhill LJ gave some general guidance. Starting at paragraph 26, he dealt with some “preliminaries.” He reiterated that the tribunal must first ask whether the worker believed, at the time he was making the disclosure that it was in the public interest and if so, whether that belief was reasonably held. At paragraph 27 he stated: First, and at the risk of stating the obvious, the words added by the 2013 Act fit into the structure of section 43B as expounded in Babula ... The tribunal thus has to ask(a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and(b) whether, if so, that belief was reasonable…[26]When considering the dismissal, it is necessary to consider the thought processes of the individual or individuals who dismissed.[27]I should have in mind the case of Kuzel v Roche Products [2008] ICR 799, in which LJ Mummery gave the leading decision. The following paragraphs are particularly helpful. 52. Thirdly, the unfair dismissal provisions, including the protected disclosure provisions, presuppose that, in order to establish unfair dismissal, it is necessary for the ET to identify only one reason or one principal reason for the dismissal. 53. Fourthly, the reason or principal reason for a dismissal is a question of fact for the ET. As such it is a matter of either direct evidence or of inference from primary facts established by evidence. 54. Fifthly, the reason for dismissal consists of a set of facts which operated on the mind of the employer when dismissing the employee. They are within the employer's knowledge. …56. I turn from those general comments to the special provisions in Part X of the 1996 Act about who has to show the reason or principal reason for the dismissal. There is specific provision requiring the employer to show the reason or principal reason for dismissal. The employer knows better than anyone else in the world why he dismissed the complainant…57. I agree that when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case, such as making protected disclosures. This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.58. Having heard the evidence of both sides relating to the reason for dismissal it will then be for the ET to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence.59. The ET must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the ET that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it - 7 - was. But it is not correct to say, either as a matter of law or logic, that the ET must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so.60. As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.[28]To determine this interim relief application, it is necessary to take a view on the likelihood of the 103A claim succeeding. I am considering how the case appears to me at present, and then I am projecting forward to consider the likely findings of the final tribunal. This involves considering what must be established, forming a view on the likely strength of the evidence, and forming a view on how that evidence will be interpreted.
Findings of Fact
[29]For the purposes of this application, it is necessary for me to identify the main points about which the tribunal must be satisfied before a claimant can succeed. I should then consider the nature of the dispute in relation to each matter and the likelihood of the issue being decided in the claimant’s favour. First, there must be a disclosure of information.[31]Second, the disclosure of information must be protected. In order for it to be protected, it is necessary to look at the thought processes of the claimant at the time when the disclosure was made. In this case, the main dispute, at present, is whether, in the reasonable belief, of the employee the factors stated in 43B(1)(a)–(f) applied (the relevant failure). It is not conceded that the alleged disclosures were made in the public interest, and it is implicit that the respondent alleges there was a significant degree of self-interest.[32]Third, one or more of the protected disclosures must be the sole or principal reason for the dismissal. It is for the final tribunal to decide, as a question of fact, what is the reason for dismissal. In deciding that reason, it may be appropriate to draw secondary inferences from primary findings of fact. The reason for dismissal is disputed. I must ask if it appears to me likely that the final tribunal will draw an inference, or find directly on the primary finding of fact, that the sole or principal reason for dismissal was the protected disclosure. Documents[33]I received the bundle of documents which includes the claim form and the claimant's response to the respondent’s request for further information, which purports to expand on, or explain, the alleged protected disclosures. - 8 -[34]No response has been filed. The claimant agreed at the case management hearing to an extension of time until 23 July.[35]Both parties served statements. Neither party applied to rely on oral evidence. The claimant filed a statement.[37]The respondent supplied statements for the following: Mr Reed Landberg and Ms Emma Ross-Thomas.[38]I received skeleton arguments from both counsel. I received various authorities.[39]The bundle of documents supplied was extensive, running to over 600 documents. It included reviews of the claimant's performance, various articles, numerous emails, grievances, appeals, relevant responses, and documents relevant to dismissal.
The factual background
[40]I did not hear evidence; I cannot resolve any disputed facts. There is significant agreement; it is appropriate for me to outline the relevant circumstances, and indicate where there is dispute. If I set out, incorrectly, any matter which appears to be agreed, it is not my intention to bind a future tribunal.[41]The respondent is a global news and information supplier. It has a substantial London office. One department is Bloomberg News. It employs journalists who provide copy that is disseminated through the respondent's terminals and other outlets. It has its own journalistic code of practice, which is referred to by the claimant, but which he has neither described nor produced. Mr Laddie's unchallenged submission was the code of conduct is not legally binding.[42]Both parties referred to the general journalistic code of conduct, but neither party produced it, nor relied on any specific section. The respondent contends, it appears without contradiction, that the journalism required by the respondent is fact-based and not campaigning.[43]The claimant was employed as a journalist and commenced employment in 2000. At the date of dismissal, he was a reporter within the respondent's European gas, power and renewables team. His primary responsibility was to cover the gas markets. He was permitted to report more widely on carbon emission issues. The team leader who exercised editorial control was Mr Reed Landberg.[44]It is the respondent's position that the claimant's performance had been unsatisfactory for a number of years and was under scrutiny. It is agreed there are interim and year end evaluations, and some alleged that his - 9 - work was unsatisfactory. It is the respondent's case the claimant responded poorly, and sometimes abusively, to feedback.[45]The respondent alleges that on 12 July 2019, following discussions with his manager, Mr Will Kennedy, it was decided to place the claimant on a performance improvement plan (PIP) I do not need to record the detail. It is accepted by the claimant that a PIP was instigated, albeit there is a dispute as to when this was decided on, and the motivation for it.[46]It is common ground that between 8 June and 8 July 2019, the claimant contacted the Navex ethics hotline, a whistleblowing hotline. He raised various complaints, which he now alleges to be protected disclosures.[47]It is the respondent's case that Mr Landberg was not permitted to, and did not, view those alleged disclosures, albeit that he was interviewed as part of the claimant's grievance, and would have gained some understanding of the claimant's complaints, as they impinged upon his editorial decisions.[48]The respondent believes the claimant’s complaints related to the breadth and depth of the respondent's climate coverage and there were specific complaints about Mr Landberg's editing of the claimant's work. The grievance was rejected on 23 August 2019. The claimant appealed, and the appeal was dismissed on 4 December 2019.[49]The respondent alleges that throughout the PIP, Mr Landberg offered close constructive guidance during both informal meetings and, I understand, eight minuted meetings.[50]The PIP ran from 30 August 2019 to 13 May 2020. During this time, there were disciplinary hearings which led to an initial warning and then a final warning. Whilst these are described as disciplinary hearings, it appears to me that they were largely concerned with the claimant's performance, which is put forward primarily as a capability matter and not specifically as conduct. I observe, this may suggest some procedural confusion, or unfairness.[51]All appeals were unsuccessful. The final disciplinary hearing which led to his dismissal was conducted by Ms Emma Ross-Thomas. It is alleged that she concluded the claimant's performance had not improved sufficiently and she dismissed him.[52]It is the claimant's position that he had a history, dating back to 2016, of raising weighty concerns about the respondent’s coverage of climate change. He alleges he repeatedly expressed concerns in emails to HR and senior managers, including the editor-in-chief of Bloomberg news, Mr John Micklethwaite.[53]He alleges on 8 June 2019 he made a whistleblowing report via the Navex global website, which is an external whistleblowing hotline. His concerns are recorded as follows at 35.2 of Mr Cook's submissions - 10 - 35.2 On 8 June 2019 the Claimant made a whistleblowing report via the Navex Global website (“Navex”) [243]-[244]. The whistleblowing report was apparently updated on 19 June, 2 July and 9 July [245]-[250]. Navex is an external whistleblowing hotline service which provides a vehicle for employees of the Respondent to raise concerns. The Claimant’s Navex disclosures raised, inter alia, “a culture of retaliation” with specific reference to the fact that the Claimant had been retaliated against for his prior disclosures; Bloomberg was failing to cover climate change stories properly; certain managers were potentially improperly boosting the values of oil customers and fossil fuel companies in contravention of the Bloomberg Journalistic Code of Conduct; and Bloomberg managers had “campaigned for fossil fuels and delayed climate action”. The Claimant specifically identified his line manager, Reed Landberg, and other senior leaders at Bloomberg News, as parties involved or potentially involved in this wrongdoing.[54]He accepts his concerns were investigated as grievances; he alleges that, whatever may have been said in response to his grievances on appeal, that the respondent, resolved to manage him out because it did not believe he would cease raising concerns about its own climate change coverage. He says that is the true reason why he was put on the performance improvement plan. He alleges the performance improvement plan was instigated on 30 August, one day after he had appealed the 23 August 2019 outcome. He does not accept that the decision had been made earlier, but that any implementation had been delayed pending consideration of his grievance.[55]The claimant’s skeleton argument says this at 35.6: 35.6 The Respondent, chiefly through the person of Mr Landberg, manipulated the PIP process. Mr Landberg set quantitative targets which were likely to be difficult for the Claimant to attain. When the Claimant met those targets, Mr Landberg simply shifted focus and said that the Claimant was not meeting “qualitative” targets that had also been set. The balance of the evidence suggests that Mr Landberg was primarily, if not solely, responsible for determining whether the Claimant had met those targets and that Mr Landberg consistently “moved the goalposts”. This represented a concerted attempt to manage the Claimant out of the business, chiefly because of the Navex disclosures.[56]The main focus in the skeleton argument concerns Mr Landberg's position and the allegation that he manipulated the process.[57]The claimant's submissions say of Ms Emma Ross-Thomas, who dismissed the claimant: 35.7 While Emma Ross Thomas, now Managing Editor for Energy and Commodities, ultimately held the final meeting with the Claimant on 13 May 2020, it is apparent from the evidence that Mr Landberg exercised significant control over the outcome by his subjective interpretation of the Claimant’s performance against the PIP. Mr Landberg had effectively already taken the decision to dismiss in February 2020, prior to Ms Ross Thomas becoming involved. Further, the documentary evidence suggests that Ms Ross Thomas was, herself, aware of the Claimant’s Navex disclosures. - 11 -[58]It follows from the skeleton argument, that it is the claimant's case that Ms Ross-Thomas’s decision was, in some manner, directly and consciously manipulated by Mr Landberg. He therefore invites the tribunal to conclude that it is Mr Landberg's actions, thought processes, and motivation which falls to be considered, and that in some manner Ms Ross-Thomas was manipulated. I should note that the respondent alleges that this submission in the skeleton argument is in conflict with the claimant's case. At paragraph 82 of his statement the claimant says the following: 82. Ultimately, it wasn’t Reed who dismissed me, but Emma Ross-Thomas, who knew about my protected disclosures because I told her in a meeting on or around 4 February 2020., and in subsequent emails. Reed was ultimately shooting down my contributions to our news and he was able to manage me in such a way as to create the illusion of poor performance.[59]It is unclear how the claimant is putting his case. The submissions in the interim relief hearing do not acknowledge the claimant's case that he told Ms Ross-Thomas of the disclosures, but do assert that there is documentary evidence that she knew. This is puzzling. Why the claimant needs to rely on inferences to be drawn from documentary evidence, when his statement is that he expressly told, is unclear.[60]It is clear the claimant asserts the PIP was a sham process. He alleges that the final review pre-dated the final written warning.[61]The claimant does not accept that his performance was poor. He says this at paragraph 30 of his statement: 30. I was issued with an unfair and inaccurate 2018 performance appraisal in early 2019, even though my performance metrics surged to record levels. The number of my stories that won “breaking news” and “top worldwide’’ performance indicators jumped 60% and 30% year on year in 2018. It wasn’t appropriate that all three of my line manager Reed Landberg, Will Kennedy and Stuart Wallace declined to show how they concluded my performance was “steady on the low end of what’s expected” [181-184 JHB]. They were dismissive when I asked how they concluded I underperformed.[62]As noted above, paragraph 82 of his statement refers to the respondent creating the "illusion of poor performance."[63]The claimant does not accept that the PIP was appropriate or reasonable. He says that it contained quantitative and qualitative measurements. He refers to the plan (R1/311) and states that he largely fulfilled the quantitative objectives, which concerned the number of articles delivered. I do not need to give the detail. He says he was unfairly criticised on the qualitative analysis. It is the respondent's case that there were there ‘qualitative' areas. The first two concerned pitching ideas and conducting interviews, which the respondent maintains are measurable. The third item is termed as follows - 12 - Filing coherent copy that’s complete and well organised, where assertions are supported by facts and quotes, and where a constant theme is maintained and developed throughout the piece.[64]My understanding of the detail of the dispute between the parties must be, to a large extent, impressionistic. However, it is clear to me, on the basis of all that I have read, and having regard to the submissions, that there is a fundamental dispute between the parties concerning the quality of the claimant’s journalism. In brief, it is the respondent's case that the claimant consistently and persistently produced poor quality journalism which is characterised by lack of coherence, poor organisation, and inadequate structure. It is respondent's case that it was necessary to heavily edit the claimant’s copy.[65]I sought clarification as to whether the claimant's case was based on or supported by any allegation that there was any specific alteration of any fact he advanced, or the suppression of any article he wrote. The claimant has identified no single piece of journalism which he proposed for publication which was suppressed. He has identified no editorial intervention which changed the meaning of any single piece of journalism. He has identified no fact advanced in any piece of journalism which was suppressed or removed by the respondent. The disclosures[66]The claim form identifies the following disclosures at paragraph 39 39. The Claimant relies upon the following protected disclosures: 39.1. The email to Ms Mills on 20 May 2016 about the Respondent’s coverage of climate change. 39.2. The early January 2017 email to Mr Micklethwait regarding coverage of climate issues. 39.3. The 20 January 2017 email to various recipients regarding the carbon budget and the Respondent’s coverage of climate issues. Nations have agreed to protect the budget so policy needed to be reported on by media companies, without bias. 39.4. The 13 March 2019 letter to HR. 39.5. The Navex reports of 9 June, 19 June and 9 July 2019. 39.6. The 29 August 2019 appeal against the grievance outcome. 39.7. The oral disclosures to Mr Fraher in the meeting on 21 October 2019.[67]It was accepted on 25 June 2020 that the information had not been adequately identified. The claimant agreed to answer the respondent's request for further information, and this is now set out at pages 36 to 57 of the bundle. The claimant has not applied to amend the claim. For the purpose of the interim relief application, the claimant has relied only on disclosure 5. It is unclear why he has ignored the other disclosures. They have not been withdrawn.[68]The further particulars given by the claimant in relation to disclosure 5 are extensive. They are discursive and unfocussed. I have not been able to - 13 - summarise them. I have set them out below. First, he deals with the date of the disclosures. Here are some of the key parts of the reports relied on: 19 June 2019: “I’d like to highlight possible problems in the culture, including behavior by managers that potentially contradicts company policies, including rules that prevent retaliatory conduct. Behaviour of some managers that needs to be investigated: *Culture of retribution; I've attempted to do the right thing and point out flaws in our news sense and focus to higher-up managers *After doing so I receive unfair performance evaluations that downplay key metrics. In follow-up meetings with managers I find managers evasive and unwilling to engage properly; address key issues (they are helpful to some extent) *Needs to be looked into whether there's a culture of bad news story management that's retaliatory...potentially designed to frustrate reporters and lower their work satisfaction, potentially even prod them to move teams or resign *Yes man culture; people who speak out are potentially hounded to dissuade them from speaking out” 19 June: “Big picture is I've been blowing the whistle on Bloomberg's failure to tackle the climate change story properly for years. It needs to be investigated whether my higher ups don't like it and are continuing to retaliate against me.” “Last week, I challenged a senior manager about the inadequate quality of our climate coverage. A few hours later a group email was sent by Reed to our team about a new team member, who will perhaps be focussing on green issues. This is a good thing. But it also occurs to me that I was never asked if I'd like to do that job. I'd like someone completely neutral to look into how clever this communication was, and whether it's part of a retaliatory pattern. It might be incompetence, too, which perhaps I've put up with for too long.” June 19 attachment: “The possible retaliatory behavior I’m experiencing might be related to the fact that I’m pushing my managers to report the climate action story in a better way…and the retaliatory behavior follows my assertion to senior managers that the Financial Times seems to have overtaken us on this front and is doing a better job than us.” “I've spoken to a few people about my situation and it seems that instead of dealing with the issues I'm bringing up, middle management and HR may be attempting to SPIN THE STORY to focus on MY PERFORMANCE.” “Months ago, my double skip manager said he may replace my team leader, yet it has not happened. Meantime, the retaliatory behavior toward me seems to be ramping up. Is it too much to ask for the retaliatory behavior to stop and high-quality management installed?” - 14 - 19 June continued: “*Improved coverage of the UN climate talks (or is this difficult given Mike Bloomberg’s role in helping to replace US funding for the UNFCCC?). Climate protection will only work if it’s global. It puzzles me that we are not describing the process better for our readers. Every pension fund in the world is grappling with the energy transition and is wanting to know how UN rules and guidelines might shape future national policy for all nations. It’s not reader numbers that are important here. It’s quality of readers. Ie if 100 of our pension fund customers want a story, surely it’s worth doing, even if it only gets 100 hits. *We need to do more market structure stories because it is the structure of energy markets (and others) that will determine how investors make money/lose money during the climate transition over time. I'm a bit shocked that my managers still argue against this. *Improved coverage of banking, insurance, pension funds, prudential regs and finance and their role in enabling the climate crisis…and potentially their role in enhancing the energy shift. (Maybe Mike Bloomberg’s role in the on the Task Force on Climaterelated Financial Disclosures is also making this difficult. If so, why is this not being more openly discussed and addressed within Bloomberg News? ) Senior executive editor John Fraher says he has been looking into expanding the finance team to include climate – he’s been doing this for many months.” “I’ve already pushed our oil team to include the climate frame in their stories. While I’ve had some success, the retaliatory behavior seems to continue/get worse. I thought this sort of behaviour from a senior reporter would be rewarded, but it appears to me that it’s punished. This is despite the fact we very consistently get told to ``do the right thing.’’ 9 July: “It's against Bloomberg's News - Journalistic Code of Conduct policy to cause Bloomberg to disseminate news for the sole purpose of affecting securities prices. It needs to be investigated whether certain managers (maybe not those listed above) are doing this to boost the value of oil companies and other fossil fuel companies, against the interests of customers that do not benefit from fossil fuel money/profits and against the interest of the company founder's philanthropic efforts. It is also against the code to campaign on behalf of a particular issue in a way that could give rise to the appearance of partiality. It needs to be investigated whether Bloomberg managers have campaigned for fossil fuels and delayed climate action even though the they knew the world struck a deal in 2015 to limit greenhouse gas emissions. It needs to be investigated whether those who spoke out against the apparent campaign and its potential harm to customers (eg pension funds) have been harassed and retaliated against.” “Also it needs to be investigated whether – instead of rationally listening and responding to fair suggestions and criticisms – the managers sought to distract from their failings by inventing performance problems in those calling out their bad behavior.” - 15 - July 9 on some of the retaliation against the Claimant: ‘’Bad 2018 evaluation after I went to senior management with concerns about the Financial Times beating us on the climate story. Please read my evaluation to see how much nonsense is contained in it. Where is there mention of my surge in exclusives and to pww play ...helped by some very kind and talented team members to be sure?; Please read emails sent by me to John Fraher, Will Kennedy ...and not just the recent ones...check out the ones from more than a year ago pertaining to climate talks in Bonn (emails that apparently have the magic quality of coming back after disappearing) Managers turn other managers and reporters against reporters they don’t like Stories can be edited with a pro-U.S. bias? Do managers get work colleagues to send coded messages to reporters down the pub? Do managers seek to entrap reporters by getting contacts to make unethical requests? I write these words with some regret, because it underpins my inability to address this stuff better directly with management. I really do just want to do the right thing. I hope Bloomberg does too, but I'm beginning to doubt it.”[69]As to the alleged breach, the further and better particulars state: Section 43B(1)(e) – damage to the environment; section 43B(1)(f) – concealment of damage to the environment. As PDs 1-4 above. Section 43B(1)(b) – breach of a legal obligation under s.47B Employment Rights Act 1996. The information disclosed tended to show that the Respondent was in breach of s.47B ERA because the Claimant was being subjected to retaliation due to prior protected disclosures regarding damage to the environment and/or deliberate concealment of damage to the environment and this represented a cultural issue at the Respondent. Section 43B(1)(b) – breach of a legal obligation. Bloomberg Journalistic Code of Conduct. Specifically that disseminating news for the sole purpose of affecting securities prices was a breach of that code and may breach rules designed to prevent market manipulation. Also that the way in which climate and carbon issues were covered was a breach of the requirement for impartiality in the code.[70]Mr Cook’s skeleton argument describes the relevant information as follows: 38. It is submitted that the Navex disclosures, both individual and collectively, contained sufficient factual content to amount to disclosure(s) of information. The following passages are particularly salient: 38.1. “It needs to be investigated whether certain managers (maybe not those listed above) are doing this to boost the value of oil companies and fossil fuel companies, against the interests of customers that do not - 16 - benefit from fossil fuel money/profits and against the interest of the company founder’s philanthropic efforts.” (9 July) [249]. 38.2. “It's against Bloomberg's News (sic) - Journalistic Code of Conduct policy to cause Bloomberg to disseminate news for the sole purpose of affecting securities prices” (9 July) [249]. 38.3. “It needs to be investigated whether Bloomberg managers have campaigned for fossil fuels and delayed climate action even though the they knew the world struck a deal in 2015 to limit greenhouse gas emissions” (9 July) [249]. 38.4. “Needs to be looked into whether there's a culture of bad news story management that's retaliatory...potentially designed to frustrate reporters and lower their work satisfaction, potentially even prod them to move teams or resign…Yes man culture; people who speak out are potentially hounded to dissuade them from speaking out” (19 June) [246]. 38.5. “Related is a repeated failure to tackle the climate change story properly: Examples just in recent days…Big picture is I've been blowing the whistle on Bloomberg's failure to tackle the climate change story properly for years. It needs to be investigated whether my higher ups don't like it and are continuing to retaliate against me” (8 June) [244].[71]He goes on at paragraph 40 to deal with the reason for the belief as follows 40. The Claimant’s case is that he subjectively believed that the Navex disclosures tended to show the following: 40.1. That the climate (and therefore the environment) was being damaged by carbon emissions and a lack of awareness of the damage to the environment caused by fossil fuel companies and polluters (s.43B(1)(e)). 40.2. That the Respondent was contributing to damage to the environment by campaigning for fossil fuels, or at least directing its coverage in such a way as to minimise criticism of fossil fuels, and thereby contributing to delaying climate action (s.43B(1)(e)). 40.3. That Bloomberg managers were deliberately concealing damage to the environment caused by carbon emitters, for fear of upsetting fossil fuel clients and investors (s.43B(1)(f)). 40.4. That he had been retaliated against for making protected disclosures and that this evidenced a “culture of retribution” at the Respondent contrary to s.47B ERA (s.43B(1)(b)).[72]It is clear from the alleged breach for disclosure 5 that the Bloomberg journalistic code is said to be a legal obligation. Any suggestion that the code amounted to a legal obligation was not pursued in submissions. The code has not produced. There was no attempt to counter Mr Laddie's assertion that it created no legal obligation. It is unclear why this has been advanced, and then ignored, but not abandoned.[73]I sought clarification of the claimant's case from Mr Cook. I asked about the journalistic code, there is no suggestion that it created legally binding obligations, and the code has not been reviewed by counsel.[74]As to the legal obligation relied on, Mr Cook referred to section 47B Employment Rights Act 1996, and his right not to be subject to a detriment for making a protected disclosure. He agreed that there was no legal obligation identified in the claim form. - 17 -[75]The damage to the environment relied on is a general assertion that burning fossil fuels leads to an increase in global temperatures and causes consequential environmental damage. It was agreed that the claimant has identified no specific act of an individual, company, or country on which he relies; he relies only on the general principle.[76]I enquired what was being concealed. Mr Cook stated the concealment concerns the contribution to environmental damage caused by burning fossil fuels. It is said there is a lack of awareness amongst companies about the effect of emissions on global warming. This lack of awareness is caused by the failure to disseminate sufficient information by appropriate reporting from the respondent, and particularly, underreporting of matters relevant to the Paris agreement.[77]Mr Cook agreed that, in principle, journalistic outlets are subject to editorial control and may choose what stories to run, and within those stories, the weight to be given to particular stories or facts.
The Law
[78]I have not found it easy to summarise the claimant's position. However, in order to analyse the claim for interim relief, it is important that I identify the key themes. The following emerges:[79]For the purposes of the interim relief application, the claimant submissions are limited. He relies only on section 43B(1)(e) and (f) he does not rely on (b) as relevant failures.[80]The claimant has not abandoned his assertion that, at the time he made the disclosures, he had in mind a specific legal breach. The nature of that breach is unclear, and it is not referred to at all in counsel’s submissions. This despite the fact the documents do contain clear reference to breach of the Bloomberg journalistic code as being a breach of legal obligation.[81]There is reference to Bloomberg, in some manner, seeking to manipulate news, or failing to publish news, with the purpose of affecting share prices. However, no specific company is identified. No specific article or piece of information, whether said to have been published in order to manipulate, or withheld from publication in order to manipulate, has been identified.[82]As to the effect on the environment, there is no attempt to identify any specific event. The damage envisioned is any damage caused by emissions resulting from the burning of fossil fuels, and any consequential global warming.[83]The allegation of deliberate concealment refers to no specific fact. It is not concerned with the alteration of, or the suppression of, any single piece of journalism. Instead, it is the claimant's argument that, in some manner, companies would either be unaware of, or insufficiently aware of, the potential consequences of global warming from the burning of fossil fuels and that the lack of knowledge or understanding would be caused by a failure of the respondent to publish journalistic reports. As to what journalistic reports, the nature of them, or the content, the claimant is silent. Analysis - 18 -
Analysis
[84]I remind myself that this is a summary process. It is necessary for me to look at the claim form, the documents, and the witness statements. I must bear in mind that the evidence is untested. Moreover, there has not been full disclosure, and I cannot assume that I have seen all of the documents that may be relevant. It is possible the documents may be viewed in one light at present, and viewed in a different light when evidence is heard and further documents have been disclosed. Nevertheless, I must do the best that I can on the information before me.[85]Whilst I must focus on the matters raised before me, I must have in mind that neither party is required at this stage to consider in detail each potential point or argument that may be deployed at a final hearing. The fact that a specific point has not been taken, or elaborated on, does not necessarily mean that I should entirely ignore it when considering whether it is likely the claim will succeed. A party’s failure to set out adequately a relevant position may be relevant to my consideration of whether the claim is likely to succeed.[86]To succeed in the claim, all necessary elements of the claim must be established. It is appropriate to consider whether the claimant is likely to succeed on each of the relevant elements.
Discussion and Conclusions
[87]The first question is whether there has been a disclosure of information. I am hindered in my analysis by the paucity of the pleading. The claim form refers to seven separate alleged disclosures. A number of emails, letters, and reports are referred to. The claimant has chosen not to rely before me on any disclosures other than disclosure 5, which concerns the Navex reports. There is further elaboration in both the further and better particulars and the skeleton argument.[88]The claimant relies on the case of Kilraine and alleges that the principle to be derived is there is no rigid dichotomy between information and allegation. Nevertheless, it is accepted by the claimant that there must be sufficient factual content that is capable of tending to show one or more of the relevant failures. I accept that there is no rigid dichotomy to be drawn between allegation on the one hand and information on the other. It seems to me that the more general the nature of the allegation, the harder it will be to interpret that as a disclosure of information. However, it is important to exercise caution. There are occasions when an employee makes an allegation of some form of wrongdoing which is necessarily based on information that is clear to the parties involved, but may not be readily understood by an observer. The relevant parties may well understand the facts underpinning what may appear to others, at first blush, to be a bare allegation.[89]In this case, I specifically enquired whether, at any time, the claimant had in mind some specific failing either by the respondent, or some other organisation or individual, to which his allegations referred. When making his allegations, he may have had in mind a specific article that he had written which had been suppressed or altered. He may have had in mind - 19 - a specific failure of a particular individual or organisation. However, that is not the nature of his case. This is not a case where it is possible to go from the general allegation and dig into the detail which is implied. The allegations are general; there is no detail. It is necessary to stand back and consider the nature of the disclosure in an equally general way.[90]The disclosures are underpinned by a number of assertions and assumptions. It is claimant's case that the respondent receives money from businesses that have an interest in fossil fuel. He asserts that the respondent does not wish to upset those companies. Implicit is an argument that publishing articles or reports concerning carbon emissions, and their effect on global warming, would be unwelcome to companies with a specific interest in fossil fuels. It is asserted the respondent is repressing relevant journalism to avoid upsetting those companies, which he asserts, implicitly, will maintain their income stream.[91]There is another strand to the claimant’s argument which says that, in some manner, some reporting, or lack of reporting, has been deliberately undertaken in order to have a direct effect on the market, presumably by reference to confidence held in a company and its reflection in the share price. It is difficult to know exactly what is envisaged, because it is not explained by the claimant at any time, and forms no part of the submissions before me.[92]There are, however, those two distinct strands discernible. One is about not upsetting the company. The other is about deliberate manipulation of the market. When asking whether information has been disclosed, it is necessary to keep those matters in mind.[93]As regards upsetting companies, the information disclosed relates to the totality of the respondent's publications in the field of climate change. I cannot identify any specific allegation that the respondent has suppressed, or materially altered, any of the claimant's work. The claimant's assertions appear to be that the respondent should do more, and in some undefined diffuse way, do better. Perhaps there is some force in this. I say that because when he raised his general concerns about the need for more reporting, at least a number of his managers agreed. It appears that Bloomberg is conscious of its responsibility to report climate issues, but has not necessarily found a way to report on these important issues which will interest its readership.[94]I do have a real concern that the nature of the claimant's disclosures are much closer to what may generally be called allegation than what may be termed information. For example, his repeated assertion, “It needs to be investigated…” does not readily suggest information. Whilst I note that there is no strict dichotomy, I cannot readily see how one can infer from the allegations, as they are set out before me, relevant information. It may be that a tribunal, having heard all the evidence, would accept the general principle that there is sufficient information, albeit I think this unlikely. - 20 -[95]As to the suggestion that there is some attempt to manipulate the markets, this does not appear to be founded on any information at all. It may be that the claimant has in mind that any failure to reiterate or affirm the contribution of burning fossil fuels to global warming may have some benefit to companies deal with fossil fuels, by maintaining some form of confidence, and thereby not leading to a loss in share price. I am far from satisfied that this is a disclosure of information. I think it unlikely that the claimant would succeed on this argument.[96]It follows that I think it unlikely the claimant will be able to show a disclosure of information.[97]If there has been a disclosure of information, the next question is whether it is protected. The first question is whether the claimant shows one of the relevant failings identified in section 43 B (1) (a) - (f).[98]In his claim, the claimant relies on subsection (b); he says there has been a legal failure. He does not address in submissions what is the relevant legal failure he had in mind when the disclosure was made. I do not accept that the claimant can simply choose to ignore part of his pleaded case when pursuing his claim for interim relief and limit his submissions to one alleged relevant failure. He could have chosen to withdraw this part of his claim. He has not. It therefore remains part of his claim. If he is to ignore it for the purposes of an interim relief application, he must, at the very least, explain the reason. It may be that one aspect predominates and is so strong in itself that it stands alone. However, this is not something that I should be expected to infer or assume.[99]In this case, it is difficult to identify the legal obligation relied on. To the extent that he says there is a breach of Bloomberg's code of journalistic practice, this could be a claim with merit. It may be possible for the claimant to argue that he believed there was a legal obligation, even if mistaken, but that is not how he advances this claim. The reality is he does not address the point in any meaningful way. Instead, he seeks to obscure his fundamental failure to identify the legal obligation relied on by saying it is not relied on for the purpose of the application for interim relief.[100]The respondent says it is not a legal obligation. Save for bare assertion, particularly in the further and better particulars, the claimant does not explain the basis for any belief that there is a legal obligation to report in a particular manner, as opposed to some moral or lesser obligation.[101]The claimant also relies on having suffered a detriment for whistleblowing as some form of breach of legal obligation. Mr Cook did not develop this argument. As I have noted, the claimant chose not to rely on this at all. It is difficult to understand the nature of this allegation. It seems to assume that there has been a protected disclosure and that he suffered a detriment. He suggests there is further disclosure of information being he has suffered a detriment because of whistleblowing. I can only guess at the factual basis or how it is advanced. It is a weak argument. - 21 -[102]The claimant does rely on subsection (e). For the reasons I have already given, I am not satisfied that an assertion that burning fossil fuels leads to global warming and potential environmental damage is a disclosure of information as envisaged by section 43B. The information must tend to show one of the relevant failings. It seems to me that the assertion that burning fossil fuels leads to global warming and environmental damage is a conclusion. I am not convinced that asserting a conclusion, however sincerely held by the claimant, or widely believed in the population, is showing a relevant failure. It seems to me that the nature of the relevant failure is more specific. If, for example, the company was using coal to generate electricity and agreed to limit carbon emissions to a specific amount, disclosing information that that agreement had been exceeded would clearly be disclosure of information. Whilst it may not have any immediate direct effect, it may be possible to argue that the increasing carbon emissions would demonstrate the likelihood of damage. The fact that fossil fuels are burnt generally may not be sufficient. That said, I do not wholly reject the possibility that asserting a general widely held belief could be information that tends to show a relevant failure.[103]If an assertion of a belief in a state of affairs is information which tends to show a relevant failure, it is still necessary to consider what was the belief of the worker, and whether it was both reasonably held and was made in the public interest.[104]There is little or no attempt to explain the nature of any alleged reasonable belief. It seems to me that the statute envisages that the belief must be that the specific information tends to show the relevant failure. It is not enough in my view for someone to simply say they have a reasonable belief that the environment is being damaged and then say that the information relied on is the environment is being damaged. Such an approach lacks the causative progression envisaged by the statute. It is not, in my view, enough to simply assert the damage is happening and therefore disclosing information that some damages is happening to the environment is itself protected. It seems to me a protected disclosure should be firmly founded on information said to cause or be likely to cause the failure.[105]I think it unlikely that the claimant can demonstrate that there is the relevant information, in relation to damage to the environment, or some manipulation of the market, to which the relevant belief could attach. I do not think it is enough to have a belief in the outcome. He must identify some form of contributing factor, which constitutes information, and the reasonable belief should attach to the way the matter detailed in the information tends to lead to the relevant failure. It appears to me the claimant does not come close to showing anything other than his belief in the conclusion he had reached.[106]A similar difficulty arises when considering public interest. I have no doubt that in a general sense the public has an interest in markets not being - 22 - manipulated and in the environment not been damaged. However, the disclosure of information must be in the public interest. Disclosure of a specific failure by an individual, organisation, or country which may contribute to climate change undoubtedly could be made in the public interest. I am not convinced it is enough to simply assert that a state of affairs exists[107]The respondent's submissions address this point. Mr Laddie puts it as follows "the essence of granting whistleblowers protection is to recognise the special circumstances of those who are brave enough to speak up." Neither side was able to identify any appellate consideration of subsection (e). Mr Laddie says "It makes no sense to refer to a person blowing the whistle if the matter he is speaking about is being spoken about by hundreds of millions of people across the world." He goes on to suggest that a key element must be novelty. This is an intriguing argument. The claimant suggested it cannot be right because that would lead to a situation where once disclosures are made, another person making the disclosure would not be protected. Mr Laddie suggests that the claimant’s submission cannot be right, as the question is one of reasonable belief, and not an absolute consideration of how many people have made the same disclosure. I do think there is force to Mr Laddie's argument. If everybody knows the basic position, a person who reiterates it does not appear to have the fundamental attribute of a whistleblower. Introducing a filter of novelty may be going too far and is unlikely to prove necessary. Whilst making a novel disclosure may well help demonstrate reasonable belief in both the relevant failure and the public interest, I am not convinced that the lack of novelty is fatal, and it may lead to an unhelpful inquiry. It could lead to an unwelcome argument that there can be no protected disclosure, as the failure was well known to numerous people, or that the opportunity for protection is lost, as others have made the disclosure.[108]In this case, it is probably unnecessary to go beyond an analysis of whether the alleged disclosure is truly a disclosure of information. Simply repeating a belief held by millions of people, based on wide scientific consensus, identifies a state of affairs. That is probably not information as contemplated within the act, and I doubt it is necessary to go further.[109]However it is analysed, the claimant's argument is weak.[110]I should deal briefly with the allegation of concealment. It seems to me this allegation is hopeless. The matter which is being concealed, on the claimant's case, is global warming. It does not appear that the argument is nuanced to differentiate between the causes of global warming and the result of global warming. Whatever the claimant may have in mind, it is very difficult to understand why he believes there is deliberate concealment. His journalism dealt with this subject. If he had indicated that there was a suppression of a single article, or fact, he would at least have a starting point. Instead, he suggests that the overall failure of the respondent to do more, or to do what it does better, is concealment. It is - 23 - concealment because in some manner relevant companies are not being sufficiently educated and therefore cannot be expected, in some manner, to know the principles or the dangers. It seems to me that this is fanciful. Even if Bloomberg were to have an editorial policy whereby it denied global warming, or the effect of burning fossil fuels in causing global warming, and even if all of its publications tended towards advancing that argument, given all the other sources of information, and widespread common knowledge of the alleged mechanisms, I doubt it could be said that relevant information was being concealed. Even if I were wrong, and there was some prospect of the claimant arguing that the respondent was in the manner suggested seeking to conceal, the evidence I have seen appears to demonstrate that Bloomberg fully understands the arguments concerning climate change and actively promotes platforms to ensure balanced information is disseminated publicly.[111]I conclude that it is unlikely the claimant will show he made protected disclosures.[112]If the claimant can demonstrate he made protected disclosures, the next question is one of causation. It is clear the claimant does not accept any criticism of his work. It is the claimant's case before me that, in some manner, Mr Landberg manipulated evidence against the claimant and manipulated others who were involved in the dismissal. I do not consider it necessary to look at the minute detail of the various references advanced by the claimant in support of this argument. It is apparent that the claimant seeks to extract from a multitude of documents specific sentences and references. It appears to me that much of what he relies on is taken out of context. I do not think it is appropriate or necessary for me to delve into the minutiae of the matters advanced by the claimant. I cannot do so reliably without hearing all the evidence. I can, however, stand back and look at the totality of the information before me.[113]There is clear, strong documentary evidence of continuing concerns about the claimant's performance over a period of approximately a decade. The claimant has raised grievances. Those grievances were considered by individuals other than Mr Landberg. He has appealed. Those appeals have been considered by yet more people. The claimant's work has been reviewed by numerous managers. There is a strong body of evidence which suggests that numerous managers found his work inadequate.[114]The claimant criticises the qualitative nature of this analysis, whilst at the same time asserting, qualitatively, that his work was good. It is inevitable that there is a degree of subjectivity when considering the quality of any piece of journalism. However, where there is evidence that a number of journalists have reached the same conclusion about the quality of another's writing, that is strong evidence. It is in the nature of capability dismissals that they may be founded on the opinion of a reasonable manager. - 24 -[115]The strongest evidence the claimant advances is the proximity of his whistleblowing to the start of the PIP. This evidence relies on a narrow view of the overall relationship between these parties. The respondent's concerns predates the Navex disclosures. The respondent’s assertion that it is rational to postpone starting the PIP until the grievance been resolved has force and explains the timing. Had the grievance are been resolved in the claimant's favour, it may not be an appropriate to start the PIP at all.[116]The period of the PIP was extensive. The input appears to have been considerable. If the claimant is right, and his work was good, that explains his rejection of the respondent's concerns. However, his rejection of the respondent's concerns is equally consistent with a failure to respond to the PIP. The reality is that the respondent appears to have strong, cogent evidence that many individuals reached the same conclusion about the claimant's work. The claimant's main arguments about timing does not appear to be strong.[117]Before reaching my final conclusions, I should note that the respondent has raised an argument concerning the Human Rights Act 1998. Article 1 provides: Protection of property Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.[118]The respondent's submissions say the following 20. Any interference with the right to property must be lawful, pursue a legitimate public or general interest, and be proportionate to that aim: Beyeler v Italy (2000) 33 EHRR 1224 at [111], ECtHR. It is this tripartite test that is of key significance in this case.[119]It is the respondent's position that an order for interim relief involves an interference with the respondent's right to property. Presuming a continuation order is made, the respondent may be required to part with its property, with no prospect of recovering it, even if the claimant fails in the 103A claim.[120]The respondent’s primary case is that there is no discernible aim to the legislation. Mr Laddie states at para 23 of his submissions. …Indeed, we cannot discern what the aim might be. Any order for interim relief requires the respondent to make an irrecoverable payment to the claimant based on an early assessment of the merits of the claimant’s case. We know no other area of law – not just employment law – where a court/tribunal is empowered to require one party to make substantial - 25 - payments to another from an early stage of the litigation, based upon a preliminary assessment of the merits, without any power to undo that order if it turns out that the preliminary assessment was wrong. The power to order interim relief is unique and its purpose is entirely elusive.[121]It seems to me the aims of the legislation are likely to be identifiable. It provides a degree of financial protection to a legitimate whistleblower who can show a likelihood of demonstrating the sole or principle reason for dismissal was the making of a protected disclosure. The protection it affords may encourage legitimate disclosure made in the public interest and discourages unscrupulous employers. The point Mr Laddie makes in paragraph 23 do not support a contention that there is no legitimate aim, but are relevant to whether the concept of interim relief is a proportionate means of achieving that aim. That theme is developed in paragraph 24 of the respondent’s submissions, but I do not need to consider the detail.[122]It is respondent's case that interim relief is not a proportionate way of achieving a legitimate aim. The respondent recognises that tribunals cannot make a declaration of incompatibility; instead, it urges the tribunal to interpret section 128 Employment Rights Act 1996 in a way which is compatible with the Human Rights Act. The respondent suggests that the tribunal should reinterpret the meaning of ‘likely’ as meaning practically certain. I note that such an interpretation is inconsistent with the existing case law.[123]For the reasons I will summarise in a moment, it is clear that this claim for interim relief fails. In the circumstances, I do not have to consider whether the term ‘likely’ should be interpreted as practically certain.
Conclusions
[124]I think it is unlikely the claimant will demonstrate that there was a disclosure of information. Whilst I accept that there is no clear difference between allegation and information, this does not mean that all allegations are information. There is a serious paucity of information in this case, and I do not accept the claimant is likely to demonstrate a disclosure of any relevant information that tends to show a relevant failure.[125]There are serious difficulties in establishing that any disclosure of information is protected. I think it unlikely that the claimant held the relevant reasonable belief that there was information which tended to show a relevant failure. I have no doubt that he believes, probably reasonably, that burning fossil fuels will lead to global warming and damage to the environment. However, it is not sufficient in my view to say that a conclusion about a state of affairs is, in itself, a reasonably held belief as envisaged by section 43B. A reasonable belief must attach to information that tends to show the relevant failure, and not simply be a general conclusion about a state of affairs.[126]I think it unlikely the final tribunal will find that there was a disclosure of information that tends to show a relevant failure which was made in the - 26 - public interest. There is an element of causation between the information disclosed and the relevant failure. The reasonableness must attach both to the belief in the causational link and the public interest element. Asserting a state of affairs does not engage the public interest as envisaged by section 43B.[127]Whilst I do not go as far as to say there must be novelty, simply repeating something which is now common knowledge, however important the issue, does not have the characteristic of the disclosure of information and it is difficult to see how this could reasonably have been made in the public interest.[128]The claimant's case concerning concealment lacks rationality. The claimant may believe that the actions of the respondent are either leading to a distortion of the share price or leading to the destruction of the environment; however, I think it is unlikely that a tribunal could find those views are reasonably held or reasonably made in the public interest. Sometimes individuals advance arguments in order to bolster their own positions. They may wish to avoid disciplinary action or to secure some financial gain. There are also individuals who have strong moral or political views. They may wish to advance specific arguments or positions because they believe that, in some manner, there will be benefit to society or individuals. It may be very difficult to understand, in that context, whether the disclosures are being made in the public interest.[129]If the disclosure is about an individual's contract and an individual’s own position, then it may be easy to say there is no public interest. It is with that matter that Chesterton is concerned. There are other occasions when an individual is primarily advancing an argument because of his or her own strongly held personal, political, philosophical, or religious view. The matter advanced may also be relevant to society in general and therefore viewed one way may have a public interest. Whether that is the public interest envisaged by the Employment Rights Act 1996 in the context of section 43B, I doubt.[130]Finally, there is the question of causation. It seems to me that there is strong evidence that the claimant's performance was poor and had been for many years. It was not poor because of the quantity of work produced; it was poor because of the quality of work produced. Given the number of managers who appear to have reached the same conclusion about the quality of his work, I think it is unlikely that the claimant will demonstrate causation. It is likely that the respondent will demonstrate that the sole or principal reason revolved around the claimant's capability.[131]It follows that I find the claimant is not likely to succeed in his section 103A claim. For the removal of doubt, I should note that this is not based on any nuanced interpretation of the word likely. Even if I were to take likely as meaning on the balance of probability, I have no doubt that this interim relief application fails. The claimant does not approach the threshold for demonstrating the claim is likely to succeed. - 27 -[132]It follows that I do not have to consider whether likely should equate with practically certain, as contended for by the respondent, whether to give effect to the Human Rights Act 1998 or otherwise. ………………………………………………...[1]By a claim form (Case No: 2203206/2020) presented on 28 May 2020 the claimant brought various complaints, including under s. 47(B) and s.103A Employment Rights Act 1996 (“ERA”) (“whistleblowing complaints”), together with an application for an interim relief pursuant to s.128 ERA.[2]Except for the whistleblowing complaints, other complaints were rejected by the Tribunal, because in bringing those the claimant had failed to comply with the ACAS early conciliation rules.[3]The interim relief application was heard on 7 July 2020 by Employment Judge Hodgson. EJ Hodgson’s judgment, dismissing the claimant’s application, was he thought it was “unlikely that the claimant will demonstrate that there was a disclosure of information”. He went on to say: “Even if I were to take likely as meaning on the balance of probability, I have no doubt that this interim relief application fails. The claimant does not approach the threshold for demonstrating the claim is likely to succeed.”[4]On 1 September 2020, the claimant applied for reconsideration of the EJ Hodgson judgment, which was refused on 30 April 2021.[5]On 11 September 2020, the respondent made a costs order application in relation to the interim relief hearing, which as at the date of this judgment is still pending determination.[6]On 20 August 2020, having gone through the ACAS early conciliation process, the claimant presented his second claim (Case No: 2205003/2020). The second claim contained essentially the same whistleblowing complaints, alleging seven protected disclosures and 18 alleged detriments, including dismissal, and a complaint for “ordinary” unfair dismissal. However, it did not contain age and race discrimination complaints the claimant had made in his first claim.[7]There was a case management hearing on 18 November 2020 before EJ Adkin, at which the claimant sought to make minor amendments to his claim, which were allowed, and to add four individual respondents, which was refused.[8]On 20 October 2020, the respondent applied to strike out the claimant’s whistleblowing complaints on the basis that the claimant’s case that any of the seven alleged disclosures were “qualifying disclosures” within the meaning of section 43B of the Employment Rights Act 1996 (“ERA”) have no reasonable prospect of success. The application was heard by EJ Adkin on 28 April 2021. EJ Adkin struck out two out of seven alleged disclosures and made a deposit order in relation to two further alleged disclosures. The claimant appealed the strike out judgment, and the respondent cross-appealed the EJ Adkin’s decision not to strike out the five remaining alleged disclosures.[9]There was a further case management hearing on 24 September 2021 before EJ Burns, at which the claimant sought, inter alia, to join six individuals as respondents, including Mr. Michael Bloomberg, to amend his claim, an order for specific disclosure, and an order to strike out the respondent’s defence, all of which were refused. EJ Burns gave further case management orders. In giving his reasons EJ Burns observed: “The Claimant seems to be trying to use the Tribunal proceedings as a platform for the ongoing dissemination of his views, and to try to obtain an audit by the Tribunal of the environmental merit of the Respondent’s media output over recent years. That is not the proper purpose of a tribunal claim.”[10]Having heard this case over five days I find EJ Burns’ observation insightful. The claimant’s apparent attempts to turn this case into something akin to a public inquiry into the adequacy of the respondent’s environmental agenda had the unfortunate effect of him repeatedly straying into the areas that had no relevance to the issues in the case and expending the Tribunal’s time on those. Bearing in mind that the claimant is a litigant in person and considering the Tribunal’s duty under Rule 2 of the Employment Tribunals’ Rules of Procedure 2013, I had to intervene several times to assist the claimant in re-focusing his cross-examination of the respondent’s witnesses and his submissions on the relevant issues.[11]On 1 December 2021, the claimant’s appeal and the respondent’s cross-appeal were heard by the EAT. On 3 December 2021, Heather Williams J handed down her judgment dismissing the claimant’s appeal and allowing the respondent’s cross-appeal in full, resulting in the claimant’s whistleblowing complaints being struck out in their entirety. Therefore, the case proceeded to the final hearing as “ordinary” unfair dismissal only.[12]The final hearing of the case was listed over 10 days, starting on 6 December 2021. In the afternoon of day one of the hearing, which was reserved for the Tribunal’s reading up, I held a short case management hearing with the parties to discuss the remaining issues in the case, the composition of the tribunal, whether the hearing should be in person or by video, timetabling and other preliminary matters.[13]The respondent was neutral as to whether the case was heard by the full panel or a judge sitting alone. The claimant expressed his preference to have the case heard by the full panel. Under section 4(3) Employment Tribunal Act 1996 (“ETA”) this case should be heard by an employment judge sitting alone, unless the employment judge decides that it should be heard by a full panel. Having considered the parties’ views and other factors set out in s4(5) ETA, I decided that the case must be heard by an employment judge sitting alone. Having read the papers, it appeared to me that, with the whistleblowing complaints no longer being part of the claim, the case was a regular “ordinary” unfair dismissal complaint with no significant dispute on key facts. As the general rule, such cases are heard by an employment judge sitting alone, and I saw no compelling reasons to depart from that rule and to exercise my discretion in favour of a full panel hearing.[14]It was agreed that the hearing should be in person at London Central Employment Tribunal. However, after the second day of the hearing I received an email from the respondent’s solicitors stating that one member of their legal team, who had attended the hearing, had received a positive Covid-19 test, and requesting that the hearing be converted to video. That unfortunate development coincided with the Prime Minister’s announcement on 8 December 2021 re-introducing the working from home guidance.[15]The claimant opposed the respondent’s application and sought a stay of the proceedings “for a day or two” to get informal advice. I decided that the hearing should proceed by video. I decided that in the circumstances it would be irresponsible to continue with in person hearing, thus subjecting the parties, their representatives and witnesses, and the Tribunal’s staff to potentially lifethreatening health risks.[16]By that stage of the proceedings, the respondent’s key witnesses had given their evidence and had been cross-examined by the claimant. The remaining respondent’s witness was giving evidence on the narrow issue of the claimant’s appeal against dismissal. The respondent was content to cross-examine the claimant by video. There were no apparent technical or organisational issues preventing the parties from joining and effectively participating in the hearing by video. There were no good reasons to delay the hearing, and any such delay would have inevitably resulted in further unnecessary costs. Therefore, considering the overriding objective under Rule 2 of the Employment Tribunals Rules of Procedure 2013, I decided that it was in the interests of justice to convert the hearing to video and proceed on the following day without an adjournment.[17]As a result of the whistleblowing complaints being struck out, the hearing timetable was shortened, and the case was heard over five days, with the oral judgment delivered on the morning of the six’s day.[18]The claimant initially insisted that the originally allocated ten days should be used for the hearing in full. However, the respondent indicated that it was not planning to call all of its witnesses, because their evidence was largely to deal with the whistleblowing complaints. Furthermore, with the whistleblowing complaints being stuck out, the remaining factual and legal issues in the case were much narrower and required far less time to investigate.[19]At the end, the respondent called four witnesses (Mr R. Landberg, Ms E. RossThomas, Mr W. Kennedy and Ms C. Cotterill) and invited me to read witness statements of its other five witnesses and to give such weight to those statements as I consider appropriate. The claimant cross-examined all four witnesses called by the respondent.[20]The claimant was not happy with the respondent’s decision not to call all of its witnesses. He said that he wished to cross-examine all nine of the respondent’s witnesses. I explained to the claimant that it was the respondent’s choice who they call, and that if he thought that the reason for the respondent not calling those witnesses was to avoid them being cross-examined on relevant issues in the case, he could invite the Tribunal to draw adverse inferences from that fact. I also explained that the claimant had the right to apply for a witness order and the basis upon which the Tribunal would decide any such application.[21]The claimant gave evidence and was cross-examined. The claimant also sought to introduce witness evidence of Mr Alexei Komarov, an ex-employee of the respondent. Mr Komarov’s is a claimant in a separate and unconnected Tribunal claim against the respondent. His witness statement dealt with his alleged poor treatment by the respondent and had no information in relation to the claimant’s case, either with respect to events, people involved or other circumstances. It short, it was totally irrelevant to the issues I needed to decide in this case. Furthermore, allowing Mr Komarov evidence in these proceedings on the matters concerning his separate claim against the respondent could prejudice the parties’ position in Mr Komarov’s case. That would be inappropriate and not in the interest of justice. For these reasons I decided not to allow Mr Komarov to give his evidence in these proceedings.[22]On the second day of the hearing the claimant applied for a witness order to compel Mr. Reierson to attend the tribunal and give evidence. I refused his application for the reasons stated in my judgment dated 13 December 2021.[23]Despite whistleblowing complaints no longer being part of the case, the claimant refused to concede that the reason or the principal reason for his dismissal was related to his capability/performance and insisted that he was dismissed for raising issues about the respondent’s inadequate coverage of harmful effects of fossil fuels on the environment.[24]Therefore, there were two principal questions I needed to answer:(i) what was the reason, or if more than one – the principal reason, for the claimant’s dismissal?, and(ii) if the respondent can show that it was a potentially fair reason (the respondent advanced reason was the claimant’s poor performance), whether in the circumstances of the case the responded acted reasonably or unreasonably in treating that reason as sufficient to dismiss the claimant (s.94 ERA)?[25]I was referred to various documents in the bundle of documents of 1707 pages and the claimant’s supplemental bundle of 294 pages.[26]Evidence taking and final submissions were concluded on Friday, 10 December 2021. I indicated to the parties that I would be ready to give my judgment at 9am on Monday, 13 December 2021.[27]On 13 December 2021 at 8:48am, the claimant sent an email applying for a two-day stay of the proceedings. The claimant argued that the stay was necessary because the respondent “sought to reintroduce whistleblowing into the hearing” and he needed more time to consider the transcript of the EAT decision and take “informal advice on the Respondent’s move“. He also stated that he had received a Covid booster jab and had other personal events over the past weekend, that he had not been given enough time to present his case, that he wanted to make sure that his complaint about Mr Laddie, the respondent’s Counsel, was dealt with properly, and that Mr Laddie’s assertion that he had spent the past year doing nothing but working on his tribunal case was demonstrably false because he had set up a successful website in that time.[28]I refused the application. None of the reasons advanced by the claimant were sufficient or relevant to order a stay of the proceedings. Whistleblowing complaints were not live matters in front of me. My judgment was on the claimant’s “ordinary” unfair dismissal claim only. The claimant was given sufficient time to present his case. He was given time for an oral opening statement. He asked for 30 minutes, which I allowed, but used only about two. The claimant was given sufficient time to cross-examine all the respondent’s witnesses over three days. All cross-examinations ended with the claimant stating that he had no further questions to the witness. I gave the claimant sufficient time to re-examine himself. I gave him twice as long as to the respondent for the closing submissions. The claimant’s apparent threat to make a complaint to the Bar Council with respect to a without prejudice conversation Mr Laddie had with the claimant was an irrelevant matter. The claimant did not claim that as a result of the Covid booster jab he was medically unfit to hear the judgment. It appeared that this last minute application was yet another attempt by the claimant to prolong the proceedings. The judgment was ready, and I decided that there were no good reasons not to deliver it to the parties, as planned. Findings of Fact[29]I record my findings of fact in so far as these are relevant to the issues I must decide in this case. As the parties have prepared their respective cases to primarily deal with the whistleblowing complaints, there was substantially more evidence in front of me (both in witness statements and documents) than what was required for the purposes of dealing with “ordinary” unfair dismissal complaint.[30]The respondent is a global news and information provider. It focuses on providing fact-based reporting, analysis and commentary to the worldwide financial markets.[31]The claimant started his employment with the respondent in June 2000 in Sydney, Australia. At the time of his dismissal on 14 May 2020 he held the position of a reporter covering natural gas and carbon power sector in Europe, based in the respondent’s London office. The claimant’s main responsibilities were to produce written content (news stories of various kinds and formats) focusing on that sector. That, in the terminology adopted at the respondent, was his “beat”.[32]The respondent’s news teams produce a wide range of stories. There are quickly produced “BFWs” (Bloomberg First Words), which are very brief market updates where information is stacked up point by point and not as a narrative, that move within a very few minutes after news breaks. There are short news stories written in prose with full sentences that fill out the details of more substantial news stories. There are “scoops”, or “exclusives”, which are news stories obtained exclusively by the respondent’s reporters. And there are “enterprise” stories, which are more substantial analysis pieces, profiles or stories framed around people or anecdotes that draw in a broad audience. All reporters are expected to produce each kind of story. The news teams reporters covering a specific market, are expected to produce a couple of BFWs each day, mainly wrapping up daily developments, along with a steady stream of exclusives and enterprise stories. More experienced reporters, such as the claimant, are expected to rely on contacts they build up over the years to drive the conversation within the beat they cover and produce the more high-value work, a few exclusives a week that get on TOPWW (Top Stories Worldwide), and a couple of more enterprising stories that draw a big web audience or are published in BusinessWeek (the respondent’s weekly business news magazine). 2015-2018, First PIP[33]In February 2015, Mr. John Micklethwait became the new respondent’s Editor-in-Chief. Under his leadership there was a wide reorganisation within the respondent. As part of the reorganisation, the Industry and Markets teams were joined together to provide more coordinated coverage across both energy and commodities companies and markets. A much stronger focus was placed on improving writing and narratives in stories to create more engaging and impactful journalism. That resulted in a cultural shift for reporters in the Markets teams, including the claimant, as prior to 2015 the Markets teams had less focus on enterprise writing and more on technical market reporting.[34]Following the reorganisation, the claimant became part of the Gas and Power Europe team, reporting to Mr Lars Paulsson, the Team Leader.[35]The respondent operates an annual performance appraisal system, known as “EVAL”. Until 2015 the claimant’s performance was good. He received positive EVAL ratings.[36]After becoming the claimant’s manager Mr Paulsson expressed concerns with the quality of the claimant’s writing (“copy”), which ultimately led him to give the claimant a negative EVAL rating and place him on a formal Performance Improvement Plan in January 2016 (“the first PIP”). The main performance concern of Mr Paulsson was that the claimant’s writing was too complicated, hard to follow, and required a considerable amount of time to edit. The same concern was expressed by other respondent’s editors, who worked with the claimant at different times. In the first PIP The claimant was given qualitative and quantitative targets against which his performance would be measured.[37]In May 2016, not being satisfied with the claimant’s performance improvements, Mr Paulsson issued a first written warning to the claimant. The claimant unsuccessfully appealed the warning.[38]The claimant continued under the first PIP until July 2016, when Mr Paulsson decided that the claimant’s performance had improved sufficiently to take him off the first PIP.[39]From 2015 the claimant became increasingly active in, using his words, “agitating” for better climate coverage by the respondent with emphasis on highlighting harmful effects of fossil fuels on the environment. He wrote several emails to various senior managers in the respondent’s organisation advocating his views, at times using rather emotive and not business-like language. In one of such emails, he stated that any story about new fossil fuel projects should include an assessment of the impact on the global carbon budget, like “a warning label on cigarette packets”, suggesting that otherwise the respondent would be open to criticism and reputational risk in the future because omitting this information would deprive investors of the necessary context.[40]The respondent’s executives responded to the claimant’s emails. The general tenet of their responses was acknowledging the importance of coordinated and considered reporting on climate change issues, but at the same time remaining true to the respondent’s way of a neutral and objective news organisation and not a lobbying group. 2018, Mr Landberg becomes the claimant manager[41]In February 2018, Mr Reed Landberg, European Gas, Power and Renewables Team Leader, became the claimant’s manager in the newly created European Gas, Power and Renewables Team. The team’s core responsibilities were to cover natural gas and electricity markets and to feed news on renewable energy to the respondent’s business newsletters. The goals set for Mr Landberg by his management were to broaden the appeal of the respondent’s stories, to address a wider audience and drive up reader interest in the coverage.[42]Mr Landberg cascaded those goals by way of setting corresponding performance targets for his team, including the claimant, and in particular stating that the reporters needed to connect events in separate markets and write in a more lively and readable style. That was recorded in the claimant’s EVAL for 2017.[43]The claimant’s 2017 performance was evaluated by Mr Paulsson with the rating of 3.58 (with 1 being the highest and 5 – the lowest score), which was a minor improvement on his 2016 performance (3.62).[44]Mr Landberg kept a detailed written log of all his interactions with the claimant since becoming his manager. In many discussions with Mr Landberg concerning the claimant’s work, the claimant took defensive and adversarial approach, refusing to accept criticism and feedback and accusing Mr Landberg of undermining him and sabotaging his efforts (“throwing sand in the gears”).[45]At the interim performance evaluation in July/August 2018 by Mr Landberg gave the claimant a preliminary performance rating of 3.74, placing him within the bottom 88th percentile of the peer group of 1661 staff. In appraising the claimant’s performance, Mr Landberg gave the claimant feedback on areas of improvement, in particular on quality of writing and focusing on the gas sector.[46]Mr Landberg also looked back at the claimant’s previous EVALs. He saw that his concerns around the claimant’s quality of writing was shared by his previous managers, in particular Mr Paulsson, and even when the claimant had been given “distinguished” rating in 2011, the EVAL report stated that more was expected from him and that he needed to move from “rush-fill to the big-picture with bells and whistles when needed”. Mr Landberg was concerned that the claimant was not living up to that expectation, whereas, following the 2015 reorganisation, the focus was much more on such “big-picture” stories.[47]During the remainder of 2018 Mr Landberg continued to monitor and provide feedback on the claimant’s performance, which continued to be ill-received by the claimant. For example, in December 2018 in response to Mr Landberg’s feedback that the claimant in his reporting should be focusing more on the current events in the carbon market and not on long-term trends, the claimant accused Mr Landberg of being patronising and said that Mr Landberg should “stop treating [him] like a dick”. The claimant continued to challenge Mr Landberg’s editorial judgment, and on some occasions went to other editors as a way of getting around Mr Landberg’s editorial decisions. First part of 2019[48]In February 2019 Mr Landberg gave the claimant the final EVAL performance rating for 2018 as 3.79. He met with the claimant on 21 February 2019 to discuss his rating and set the performance targets for 2019. Mr Landberg explained to the claimant his concerns, in particular with respect to the quality of the claimant’s writing, which required extensive editing, the claimant’s tendency to stray into campaigning on issues such as climate change, whereas the respondent’s role as an independent news outlet was to analyse, observe and report, not to campaign, and the claimant’s defensive and aggressive attitude towards editorial and management feedback.[49]Mr Landberg set performance targets for the claimant for 2019, including focusing on natural gas market, making stories more interesting and relevant to professional investors, delivering more Market Moving Wins (“MMWIN”) – stories that move the markets, improving the claimant’s writing, with a focus on making it clear and coherent, embracing the respondent’s role as dispassionate observers, not campaigners, and considering the claimant’s attitude towards editors, avoiding confrontation.[50]There was a follow-up meeting on 28 February 2019, at which the claimant challenged Mr Landberg’s evaluation of his performance. The claimant also made a complaint to HR concerning his EVAL 2018, which, with the claimant’s agreement, was dealt with by HR informally. The outcome of that process was accepted by the claimant.[51]In the first half of 2019, Mr Landberg continued to have regular meetings with the claimant, at which he gave feedback on the claimant’s performance, which in Mr Landberg’s assessment remained below the required level. The claimant continued to challenge Mr Landberg on his edits and to try to get his way by going to other editors. The claimant’s attitude towards Mr Landberg’s feedback remained dismissive and aggressive. For example, at a 1-2-1 meeting on 25 June 2019, in response to Mr Landberg’s feedback on the quality of the claimant’s story, the claimant told Mr Landberg that he was “repeating crazy stuff and crazy babble that doesn’t make any sense” and that he was “irrational” and “trying to throw sand in [the claimant’s] face”.[52]On 12 July 2019, Mr Landberg gave interim EVAL rating to the claimant as 4.62, which placed him within the bottom 97th percentile within his peer group of 1661 staff. The score meant that immediate improvements were needed through a formal Performance Improvement Plan.[53]In July 2019, following further examples of the claimant not accepting Mr Landberg feedback and becoming more confrontational with Mr Landberg and using inappropriate language towards Mr Paulsson, Mr Landberg issued the claimant with a formal verbal warning for insubordination. Second part of 2019, Second PIP[54]On 30 August 2019, following a discussion between Mr Landberg and his manager - Mr Kennedy, Managing Editor, Energy and Commodities, the claimant was placed on a formal Performance Improvement Plan (“the second PIP”). The second PIP contained detailed quantitative and qualitative performance targets against which the claimant’s performance was going to be assessed over the month of September (“the first review period”), and a meeting was set for 26 September 2019 to formally review the progress.[55]There were three categories of the performance targets with detailed descriptions of the exiting performance concerns and objectives for each category:a. Breaking News Objective:• Deliver at least 1-2 significant exclusives a week that go beyond the weekly analyst survey. These should be on the gas and power beat and predominantly with you as the lead reporter.• Produce 2 FOLLOWs where you are the lead reporter over the course of the one-month plan.• Produce 4 TOPWW stories where you are the lead reporter over the course of the one-month plan.• Produce 1 MMWIN story where you are the lead reporter over the course of the one-month planb. Enterprise Objective:• Pitch original ideas at least twice a week, for stories that go beyond day-to-day breaking news that you cover. You should aim to turn at least one of these into a story. The pitch can be made by sending me a message. These should include a draft headline, lead paragraph and some idea of the voices you’d have in the work.• Conduct, in person or via telephone, interviews with senior market participants or industry executives over the course of this plan, and write a story based on those contacts. I suggest that a minimum of four interviews per week would garner the level of breaking news and enterprise we expect.• Filing coherent copy that’s complete and well organized, where assertions are supported by facts and quotes, and where a constant theme is maintained and developed throughout the piece.c. Communication and Behavior Objectives:• Working constructively with editors, absorbing feedback and acting on suggestions with the spirt of delivering the best possible product.• Develop stories and enterprise linked mainly to the heart of your beat, which is European natural gas and emissions markets. Where you wish to derogate from this brief, you must agree a way forward with your team leader before discussing with other editors[56]During the first review period there were regular meetings between Mr Landberg and the claimant, at which Mr Landberg gave the claimant feedback on the claimant’s performance. In those discussions Mr Landberg continued to raise his concern with the level of editing that the claimant’s stories required, for example, with the “Banks Lending $100 Billion to Shipping Get Strict on Climate” and “Germany Poised” stories. Mr Landberg also gave positive feedback on the claimant’s stories, for example, “Brexit Ruined” and encouraged the claimant to file more stories of that quality.[57]On 1 October 2019, Mr Landberg and the claimant had a meeting to review the claimant’s performance over the first review period. Mr Landberg noted that while the claimant had met most of the quantitative targets, except on “Follows” and behavioural targets, he was still falling short on qualitative targets (all three Objectives under the “Enterprise” category). Therefore, Mr Landberg concluded that the claimant’s performance had not improved sufficiently, as required by the second PIP, and as a result he would be invited to a disciplinary meeting to discuss his performance and consider a possible disciplinary sanction. First Disciplinary Meeting/First Written Warning[58]On 10 October 2019, the claimant was invited to a formal disciplinary meeting to be held on 11 October 2019. The letter of invitation set out the three key areas of performance failings:(a) failure to pitch original ideas at least twice a week;(b) failure to conduct interviews with senior market participants or industry executives; and(c) failure to file coherent copy that’s complete and well organized and noted that the outcome of the meeting could be a first written warning.[59]On claimant’s requests the meeting was postponed to 15 and then to 18 October 2019. On 18 October 2019, the claimant called in sick. The claimant remained on sick leave until 22 November 2019.[60]Following a phased return to work arranged by the respondent for the claimant, the disciplinary meeting was held on 11 December 2019.[61]At the meeting, attended by the claimant, his companion Mr A Nair, Mr Landberg and Ms. L Mills, Employee Relations Manager, the claimant’s performance was discussed. The outcome of the meeting was a first written warning and the continuation of the second PIP.[62]On 27 December 2019, the claimant appealed the first written warning. The appeal was heard on 10 January 2020 by Ms. Lynn Thomasson, European Commodity Markets Team Leader, and Ms Priya Vora, Employee Relations Manager. They rejected the claimant’s appeal and confirmed the decision to issue the first written warning. Second Review Period/Final Written Warning[63]Mr Landberg continued to meet with the claimant through December 2019 and January 2020 to assess the claimant’s performance during the second review period from 1 October 2019 to 10 January 2020 and to give feedback.[64]On 10 January 2020, Mr Landberg had a 1-2-1 meeting with the claimant to formally review his performance over the second review period. They discussed three stories filed by the claimant, and Mr Landberg gave his feedback on each of them. The claimant did not accept Mr Landberg’s criticism and reacted aggressively, suggesting that Mr Landberg was deliberately “underselling [his] story”.[65]On 17 January 2020, Mr Landberg emailed Ms Mills summarising his assessment of the claimant’s performance during the second review period. Mr Landberg’s conclusion was that the claimant was still falling short on two out of three performance improvement targets in the second PIP.[66]The claimant was invited to attend a disciplinary meeting on 22 January 2020 to discuss his performance. The letter inviting the claimant to the meeting set out the areas of performance concerns, which in addition to the three key concerns discussed at the first disciplinary meeting, also included “failure to deliver the requisite number of stories that are followed by our competitors, indicating the value of the scoops”. The letter included a warning that if the charges were proven this could result in a disciplinary action, up to and including a final written warning. The meeting was twice postponed due to the claimant calling in sick and eventually took place on 11 February 2020.[67]At the meeting, attended by the claimant, his companion – Mr M. Gilbert, Mr Landberg and Ms Mills, Mr Landberg reviewed the claimant’s performance over the second review period concluding that the claimant had failed to meet the targets set out in the second PIP and issued him with the final written warning, which was confirmed in writing on 13 February 2020.[68]On 27 February 2020, the claimant appealed the final written warning. The appeal was heard by Ms C Gage, Executive Editor, Global Finance/Investing/Real Estate, and Ms P Vora, and dismissed on 25 March 2020. Third Review Period/Dismissal[69]Through February and March 2020, Mr Landberg continued to meet with the claimant to discuss his performance. On 28 February 2020, Mr Landberg met with the claimant to discuss his 2019 EVAL. Mr Landberg rated the claimant’s overall performance in 2019 as 4.62 placing him within the bottom 98th within his peer group of 1661 staff.[70]The claimant’s third review period under the second PIP ran from 12 February to 9 March 2020. During that period the claimant’s performance has deteriorated and he failed to meet the qualitative and most of the quantitative targets, including scoring zero on Follows and MMWINs.[71]A further disciplinary meeting was arranged with the claimant on 30 April 2020. The letter inviting the claimant to the disciplinary meeting detailed the performance concerns, which in addition to the four concerns discussed at the second disciplinary meeting included: “Failure to deliver the requisite number of stories tagged as market-moving wins during the performance period, another indicator of the value of the scoop”. The letter warned the claimant that if the charges were proven a possible outcome of the meeting could be his dismissal.[72]The claimant raised objections with Mr Landberg chairing the disciplinary meeting. The respondent agreed to appoint Ms E. Ross-Thomas, Managing Editor, Energy and Commodities, EMEA, who took over Mr Kennedy as Mr Landberg’s direct manager, to chair the meeting.[73]The disciplinary meeting was postponed and eventually held on 13 May 2020. It was attended by the claimant, his companion – Mr J Carrigan, Ms RossThomas and Ms. Mills. Ms Ross-Thomas reviewed the claimant’s performance from the beginning of the third review period (12 February 2020) to the date of the disciplinary meeting (13 May 2020) and concluded that the claimant continued to fail to meet the PIP performance targets. She then proceeded to decide what sanction to apply and decided to dismiss the claimant because of his poor performance and failure to improve it to the required standard during the second PIP period. She concluded that the claimant was unlikely to attain the required performance standards even if more time were given to him.[74]Ms Ross-Thomas delivered her decision to the claimant verbally on 14 May 2020 and confirmed it in writing on 21 May 2020.[75]On 28 May 2020, the claimant appealed his dismissal. The appeal was heard by Mr B Bremner, Executive Editor for Global Business, and Ms C Cotterill, Employee Relations Specialist, and dismissed on 7 September 2020.[76]Between January 2017 and October 2019, the claimant sent various other communications and complaints to the respondent’s senior managers, including via the respondent’s confidential “whistleblowing” Hotline – Navex. Because the claimant’s whistleblowing complaints have been struck out, I do not need to make detailed findings in relation to those communications and complaints.[77]However, as concerned:(i) the claimant’s being placed on the second PIP,(ii) evaluations of his performance by Mr Landberg,(iii) feedback and coaching given to him by Mr Landberg and other managers of the respondent during the entire PIP period,(iv) the first and the final written warnings issued to the claimant by Mr Landberg,(v) dismissal of the claimant’s appeals against the first and the final written warnings,(vi) the claimant’s dismissal, and(vii) the dismissal of the claimant’s appeal against the dismissal - having considered the evidence in front of me, I am satisfied that the claimant’s alleged whistleblowing complaints/disclosures played no part in those acts and decisions by the respondent. The reasons for that finding are explained later in my judgment. The Law[78]The law relating to unfair dismissal is set out in S.98 of the Employment Rights Act 1996 (ERA). “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or, if more than one, the principal reason) for the dismissal; and(b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do; ….. (3) In subsection (2)(a)— (a) “capability” , in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and[79]The relevant case law tells me that a reason for the dismissal “is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.” (Abernethy v Mott, Hay & Anderson [1974] ICR 323).[80]This requires me to consider the mental process of the person, who made the decision to dismiss and to identify the relevant decision maker was. (Orr v Milton Keynes Council 2011 ICR 704, CA).[81]However, when the real reason is deliberately “hidden” from the decision maker behind an invented reason it is the tribunal's duty to penetrate through the invention rather than to allow it also to infect its own determination. In such a case the reason for the dismissal would be the hidden reason rather than the invented reason (Royal Mail Ltd v Jhuti [2019] UKSC 55).[82]If the employer shows that the reason for the dismissal is a potentially fair reason under section 98(1), the tribunal must then consider the question of fairness, by reference to the matters set out in section 98(4) ERA which states: 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)—(a) 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(b) shall be determined in accordance with equity and the substantial merits of the case.[83]The test of a fair capability dismissal (aside from procedure) has two elements:a. does the employer honestly believe the employee is incompetent or unsuitable for the job?b. are the grounds for that belief reasonable? (Alidair Ltd v Taylor 1978 ICR 445, CA)[84]In the great majority of cases employers will not be considered to have acted reasonably in dismissing for incapability unless they have given the employee fair warning and a chance to improve (Polkey v AE Dayton Services Ltd 1988 ICR 142, HL)[85]In James v Waltham Holy Cross UDC [1973] ICR 398, at 404 E, Sir John Donaldson in the NIRC said (my emphasis): “In the field of capability similar problems frequently arise. It an employee is not measuring up to the job, it may be because he is not exercising himself sufficiently or it may be because he really lacks the capacity to do so. An employer should be very slow to dismiss upon the ground that the employee is incapable of performing the work which he is employed to do, without first telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibility or likelihood of dismissal on this ground, and giving him an opportunity of improving his performance. But those employed in senior management may by the nature of their jobs be fully aware of what is required of them and fully capable of judging for themselves whether they are achieving that requirement. In such circumstances, the need for warning and an opportunity for improvement is much less apparent. Again, cases can arise in which the inadequacy of performance is so extreme that there must be an irredeemable incapability. In such circumstances, exceptional though they no doubt are, a warning and opportunity for improvement are of no benefit to the employee and may constitute an unfair burden on the business”.[86]Further, in looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the tribunal's view, have been appropriate, but rather whether dismissal was within the range of reasonable responses that an employer could reasonably come to in the circumstances. The tribunal must not substitute its view for that of the reasonable employer. (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563). Discussion and
Conclusions
[87]There are two principal questions I need to answer to decide this case.[88]First, what was the reason or, if more than one - the principal reason for the claimant’s dismissal?[89]The respondent says the reason was capability (which is a potentially fair reason under s98(2)(a) ERA, namely the claimant’s unsatisfactory performance of his job and his failure to improve it despite being given every opportunity to do so in the course of the formal PIP.[90]The claimant says that the real reason for his dismissal was a retaliation by the respondent for him, as he put it, “agitating” for a better climate coverage by the respondent, especially with respect to harmful effects of fossil fuels on the environment.[91]The burden of proof is on the respondent. If the respondent cannot show, on the balance of probabilities, that the reason (or the principal reason) for the dismissal was one of a potentially fair reasons (in this case related to the claimant’s capability), the dismissal will be unfair, and the tribunal is not required to go on and find the true reason for the dismissal.[92]If, however, I find that the reason was related to the claimant’s capability, the next question I need to answer is - did the respondent act reasonably or unreasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? This question should be answered considering all the circumstances of the case, including the size and administrative resources of the respondent, and in accordance with equity and substantial merits of the case. What was the reason for the claimant’s dismissal?[93]I shall first deal with the claimant’s theory that the real reason for his dismissal was retaliation for him raising concerns and agitating for a better climate coverage by the respondent.[94]I reject this. There is simply no credible evidence, which would allow me to come to such a conclusion.[95]The claimant claims that there was some elaborate ploy by senior executives at the respondent to force him out of the company because he was (in his words) “a pest”, writing emails to senior executives agitating for a better climate coverage.[96]The reality, however, was that the respondent was very much aligned with the claimant’s proposal to increase its climate coverage. However, it wanted to do that in accordance with its principles of neutrality, as a news organisation and not as a lobbying group.[97]It was developing its climate reporting initiative - Bloomberg Green. Mr Kennedy’s email to Mr Fraher, Senior Executive Editor, Global Business, Finance, Legal, Energy & Commodities, of 18 February 2019 clearly shows that the respondent was very much interested in developing a more strategic and holistic approach to reporting on climate change issues. Far from trying to undermine the claimant, Mr Kennedy’s email refers to the claimant’s “Oil’s Twilight” story as an example of a good story on that subject.[98]Mr Kennedy in that email, recognises the Paris climate accord as “a significant milestone”, and suggests that the climate coverage for the respondent’s audience should be in business and finance and gives examples, which appear closely aligned with what the claimant was agitating for.[99]The claimant relies on Mr Kennedy’s email to Mr Wallace, then Executive Editor, Global Energy and Commodities, of 27 January 2017, as showing that the respondent was dismissive of his better climate reporting ideas. He argues that his eventual dismissal was because of him pushing these ideas up the respondent’s management structure.[100]In that email, in reference to the claimant’s email to Ms Harris, then Senior Executive Editor EMEA, in which the claimant, amongst other things, suggests that when reporting news on new fossil-fuel projects Bloomberg must “insist that the reporters consider including the impact of such projects on the global carbon budget, like putting “warning labels on cigarette packets”, Mr Kennedy says that “it’s just all a bit bonkers”.[101]However, firstly it was in January 2017, almost three and a half years before the claimant’s dismissal. Secondly, and more importantly, I accept Mr Kennedy’s evidence that it is not the claimant raising these issues that he considered wrong, but some of the claims the claimant was making in his email that Mr Kennedy considered were misconceived, betraying the claimant’s lack of understanding, and going contrary to the respondent’s principles of neutrality in reporting.[102]In any event, Ms Harris, who was the most senior editor in EMEA, responded to the claimant thanking him for the message, stating that she was ready to discuss his ideas further and referring to the climate coverage as a “critical area”. Hardly a response from someone wanting to retaliate.[103]During the course of the hearing, the claimant kept changing his story as to when the so-called retaliation started and who was involved in the “conspiracy” and the “cover up” to oust him. At one time, it was going all the way to Michael Bloomberg himself, at others - it was some of the respondent’s employees who happened to be tuning into the hearing via video. He also suggested that the “conspiracy” potentially spread even to web designers, who presented his graph on the respondent’s website in a way that some of the columns got cut off, and the occupational health nurse, who changed a sentence in his health appraisal form.[104]In his closing submissions the claimant for the first time said that it was Ms Zelenko, a Global Standards Editor, (who until then had hardly been mentioned in evidence) who was responsible for his dismissal. The reason being, her writing an email on 9 August 2019 to Leslie Paul, of the respondent’s HR, and saying that some of the claimant’s story “could have benefited” from the context on climate the claimant had wanted to include, but in her subsequent paragraph to be used by HR, in what appears to be a response to the claimant’s Navex grievance, saying: “certain oil industry stories could benefit from more context on climate”, and going on to say that there were no evidence that the context had been omitted intentionally because of bias or conspiracy.[105]I am puzzled as to why the claimant thinks that the use of “could benefit” instead of “could have benefited” makes a significant difference, and how all that relates to his dismissal. He was not able to explain that to me, when I asked him.[106]The claimant also claims that the respondent’s motivation for retaliation was because the claimant’s ideas, if implemented, were going to make the respondent to lose millions in terminal revenue from its energy customers (presumably by such customers becoming upset by the respondent more prominently reporting on climate issues).[107]This, however, does not sit well with the claimant’s own assertion in his email to Mr Micklethwait of 18 January 2017 that by not reporting on climate in the way suggested by him the respondent risks “missing out on scores of millions of new revenue”.[108]The claimant was also unable to explain why the respondent’s management in the business unit, in which he worked and which was not responsible for the terminals revenue, would be retaliating against him for that reason, except by suggesting that “the cover up” might have gone up to the very top, and that the respondent was too big and needed to be broken up.[109]The start date of “the retribution campaign” was also sliding from the start of the second PIP in August 2019 to 2016, to 2015, to 2012 and “may be even earlier”.[110]The claimant says that he cannot be sure because the respondent hid all that information from him and did not produce all the witnesses it had originally intended to call.[111]He also claimed that the clear disconnect between his “conspiracy” theory and the documentary evidence in the hearing bundle was because the respondent had been creating such documents on purpose to cover up “the conspiracy”, and because “you cannot believe everything you read”.[112]I reject this. There is simply no evidence of any improper behaviour by the respondent in relation to these proceedings. Further, the respondent has been represented throughout by a firm of solicitors and Queen’s Counsel. They are very well aware of the disclosure obligations and their professional duties to the tribunal. I have no reason to doubt their integrity.[113]The disclosed documents (and there were almost 1800 pages in the main bundle of largely the respondent’s documents) included documents that are clearly not helpful to the respondent’s case.[114]The respondent’s decision not to call all of its witnesses was based on the simple fact that those witnesses’ evidence was predominately for the purposes of the claimant’s whistleblowing complaints and not his “ordinary” unfair dismissal, and as such became redundant with the claimant’s whistleblowing complaints being struck out.[115]The claimant also appears to allege that the respondent deliberately started to create documentary evidence, going back to 2016, to cover up its tracks and firmly having in mind the current tribunal proceedings. This allegation is bizarre, far-fetched and not supported by any evidence. I reject it.[116]The claimant’s claim that document in the bundle showing his falling performance rating from 2012 was “doctored” by the respondent is yet another example of the claimant simply not being prepared to accept the reality of the situation. I have no hesitation in rejecting it.[117]If the respondent was indeed, as Mr Laddie put it, “gunning” for the claimant, it had a far easier route to get him out. The claimant’s abrasiveness with his direct manager and his style of email communications with his other superiors gave the respondent a perfect opportunity to use the claimant’s conduct as a good reason for initiating a disciplinary process against him which could have resulted in much speedier dismissal. The respondent, however, did not do that.[118]The claimant says that there were a lot of “weird things” happening, but he did not have any direct evidence of “the conspiracy” because, he says, it was “a cover up”.[119]It is an impossible task to disprove a conspiracy theory, because by the very nature of such theories it can always be said that the absence of evidence of conspiracy is the best evidence of a sophisticated and wellorganised conspiracy. I am not going to spend any more time on this pointless exercise.[120]Suffices to say that I have no hesitation in rejecting the claimant’s allegation that his dismissal was an act of retaliation by the respondent for his “agitating” for a better climate coverage or in any other way connected to him raising climate issues. I find that the claimant raising these issues played no part whatsoever in the respondent’s decision to dismiss him.[121]As the saying goes, “it is very difficult to find a black cat in a dark room, especially if it is not there”. It seems to me that the claimant’s continuing refusal to take things at their face value, and to accept that other people might have valid views even if he disagreed with them, was what caused him to embark on that downward spiral of tilting at windmills.[122]I equally have no difficulty in concluding that the real and the only reason for the claimant’s dismissal was his unsatisfactory and falling performance. And that was also the real and the only reason for him being placed on the performance improvement plan in August 2019 and being given the first written warning and the final written warning under the PIP.[123]Even without hearing the respondent’s witnesses, whose evidence I accept, the documents alone speak for themselves. The claimant’s performance was falling. His previous manager, Mr Paulsson put him on the first PIP in 2016 for essentially the same performance issues that caused his new manager, Mr Landberg, to initiate the second PIP in 2019.[124]Mr Paulsson’s and Mr Landberg’s concerns about poor quality of the claimant’s copy were shared by other editors who worked with the claimant.[125]The claimant’s EVALs from the year 2017 placed him amongst the worst performing reporters, sliding in 2019 to the fourth position from the bottom.[126]The fact that his stories regularly featured on TOPWW does not tell the full story. I accept Mr Landberg’s and Ms Ross-Thomas evidence that many of those were news flashes of a few characters long, which might stay on the TOPWW only a few minutes. That, of course, does not mean that the claimant producing news that the respondent found sufficiently important to be on its TOPWW screen should be disregarded, but it was not disregarded by the respondent.[127]However, on the other hand, it does not mean that the frequency of the claimant’s stories appearing on TOPWW shall be taken as the conclusive evidence of the claimant’s adequate performance.[128]In any event, it is not for me to decide whether the claimant’s performance was satisfactory or not. My task is to decide whether the respondent genuinely believed that the claimant’s performance was unsatisfactory and whether it had reasonable grounds to hold that belief.[129]Having heard evidence of Mr Landberg, Ms Ross-Thomas and Mr Kennedy and having considered numerous documents in the bundle, to which I have been referred during the course of the hearing, including the claimant’s EVALs, PIPs, Mr Landberg’s log, emails from Mr Landberg, Mr Kennedy and other editors concerning the quality of the claimant’s copies, I have no hesitation in answering both questions in affirmative.[130]I find that the respondent genuinely believed that the claimant’s performance was unsatisfactory, and that it had reasonable grounds for holding that belief.[131]Before turning to the question of the procedural fairness of the dismissal, for the sake of completeness, I shall say that I reject the claimant’s allegation, which he appears to have later withdrawn, that Ms Ross-Thomas was “duped” into dismissing him.[132]I accept Ms Ross-Thomas evidence, which are corroborated by contemporaneous documents, that the decision to dismiss the claimant was hers and hers alone.[133]I find that before making her decision to dismiss the claimant Ms RossThomas thoroughly and conscientiously reviewed all the relevant materials and listen to the claimant. Ms Landberg presented his materials to Ms RossThomas in a neutral fashion, without making any suggestions on what the outcome of the disciplinary meeting should be. Mr Ross-Thomas was not in any way predisposed against the claimant.[134]On the evidence in front of me, I am satisfied that no one else interfered with Ms Ross-Thomas’ exercise of her judgment. I shall deal with this issue in some more detail later in my judgment when addressing the procedural fairness.[135]I find that Ms Ross-Thomas did not know about the claimant’s Navex complaints. I accept her evidence that she did not read his six-page email of 27 February 2020 to Mr Canty, Global Head of Employee Relations, where at the very end of the email the claimant’s refers to evidence presented via Navex. In any event, Ms Ross-Thomas evidence, which I accept, was that at that time she did not even know what Navex was.[136]Mr Landberg was equally unaware of the claimant’s whistleblowing complaints, and, in any event, it is my finding that he had not in any way influenced or tried to manipulate Ms Ross-Thomas decision to dismiss the claimant.[137]Leaving the conspiracy theory to one side, which I have already dealt with, I see no reasons why Ms Ross-Thomas would decide to dismiss the claimant other than because of her genuine assessment that the claimant had failed to improve his performance to a satisfactory level despite the previous warnings, feedback and coaching my Mr Landberg and that he was unlikely to reach the required standard even if more time were given to him. Procedural Fairness[138]Now, having found that the real and the only reason for the claimant’s dismissal was his poor performance and therefore he was dismissed for a reason related to capability, which is a potentially fair reason under s98(2) ERA, I now need to decide whether in the circumstances of the case it was reasonable or unreasonable for the respondent to treat this reason as a sufficient reason to dismiss the claimant.[139]As stated above, I find that the respondent honestly believed that the claimant was incapable or incompetent, that is to say that his performance was unsatisfactory by reason of his capabilities and competencies, and that the respondent had reasonable grounds for holding that belief.[140]However, that is not enough for the dismissal to be fair. Procedural fairness is an important element for the overall conclusion on the issue of s98(4) fairness.[141]In capability dismissals, the usual elements of the procedural fairness are:a. adequate evaluation of the employee’s performance,b. discussion with the employee about the performance concerns,c. warning of the consequences in the event the performance does not improve, andd. giving the employee a reasonable opportunity to improve.[142]In dealing with these elements, I shall, at the same time, address the specific criticism raised by the claimant in his particulars of claim.[143]The claimant’s claims that the respondent “did not have any or any adequate justification to place the Claimant on a performance improvement plan in August 2019”.[144]The reasons for my conclusion on the real reason for the claimant’s dismissal equally answers this point. I am satisfied that the respondent had adequate reasons to place the claimant on the PIP in August 2019.[145]Next, the claimant claims that his performance was not fairly assessed and that he was dismissed despite meeting the quantitative targets.[146]Firstly, at the date of his dismissal in May 2020 the claimant was not meeting the quantitative targets in the third review period. Yes, he had met them in the first two review periods of the PIP, but then his performance, measured by the quantitative targets, had fallen below the required standard (zero Follows and zero MMWINs).[147]Secondly, the quantitative targets were only part, and perhaps the least important part of the PIP. The main area of concerns for the respondent was the quality of the claimant’s copies, and therefore the qualitative targets were at least as important, and possibly more important, than the quantitative. The claimant failed to meet any of them in the three consecutive review periods.[148]In any event, the PIP required the claimant to meet all the targets – quantitative and qualitative, and he clearly failed to do so.[149]I reject the claimant’s contention that Mr Landberg’s assessment was not fair. It is not for me to re-assess the claimant’s performance against the PIP. However, having listen to Mr Landberg’s and other witnesses’ evidence, and that includes the claimant himself, and having considered contemporaneous documents, in particular Mr Landberg’s logs, his emails to the claimant following numerous 1-2-1 sessions, EVALs documentation, notes from the claimant’s appeals, I find that the assessment was fair and not in any way contrived or aimed to make the claimant to fail the PIP.[150]In his evidence the claimant was prepared to admit that his performance was not up to scratch and that “the PIP could be a useful tool”.[151]Mr Landberg discussed his concerns with the claimant, gave the claimant constructive feedback on how to improve his performance, coached him, helped him on many occasions to improve his copies. Mr Landberg was readily recognising and congratulating the claimant on good stories.[152]I, therefore, find that the claimant was given all reasonable information he needed to improve. He might not have used it to his advantage (probably because of his continual denial that his performance was unsatisfactory), but that is a different matter and the blame for that cannot be laid at the respondent’s doorstep.[153]I reject the claimant’s contention that “the qualitative targets were insufficiently clear and open to subjective interpretation”.[154]The targets were clearly spelled out in the PIP and other documents provided to the claimant during the PIP process. These were not materially different to the targets given to the claimant back in 2016 in the first PIP and in his EVAL reports since then. Other than challenging the entire process as unfair, the claimant did not appear to be seeking any specific clarifications on any of the qualitative targets.[155]Even on cross-examination the claimant was unable to explain what it is he found not clear in the targets. He said that the term “significantly exclusive” was open to interpretation, the word “predominately” was vague, and the word “should” should have been “must” (presumably to give the sufficient imperative effect to the set target). This is simply nit picking. The substance of what was expected from the claimant was clearly spelled out in the PIP. In any event, if these were important “interpretation issues”, the claimant could have and should have raised them during his PIP, but he did not.[156]The fact that there is a degree of subjectivity in assessing the targets does not make them or the evaluation unfair. As long as the assessor genuinely and honestly applies his or her mind to the task, and has the necessary competence to do that, the assessment is fair. I find that Mr Landberg had all the necessary expertise and gave his honest assessment of the claimant’s performance.[157]The fact that he did not have as in-depth knowledge of the carbon or natural gas markets as the claimant had, is not relevant. He was assessing the claimant’s copies as an editor from the point of view of their structure, style and their “readability” by the intended audience. As an editor with a considerable experience, he was more than qualified to do that.[158]Mr Landberg was ready to acknowledge good work done by the claimant, gave the claimant constructive feedback and encouragement. I reject the claimant’s contention that Mr Landberg was biased against him, abused his power, or that Mr Landberg wanted somehow to ascribe to himself all good work created by the claimant and then dispense with the claimant because of professional jealousy.[159]Mr Landberg was clear in his evidence, which I accept, that he genuinely wanted the claimant to improve his performance and regarded the claimant’s failure to improve as part of his management failure to find a way to make the claimant to improve.[160]Ms Ross-Thomas was equally competent and open-minded in assessing the claimant’s performance during the final disciplinary meeting.[161]I reject the claimant’s allegations that Mr Landberg bullied him. Having gone through Mr Landberg’s log and having listen to his and the claimant’s evidence, I do not accept that Mr Landberg’s instructions to the claimant, his feedback on the claimant’s copies and his criticism of the claimant’s performance and his professional decisions not to run certain of the claimant’s stories could be reasonably characterised as bullying.[162]The claimant’s bullying allegations had been properly investigated by HR and not upheld. I note from the interview notes of the claimant’s meeting with Mr Canty that the claimant was unable to give clear examples of the alleged “bullying” and was referring to a pattern of behaviour but without specifying what exact actions by Mr Landberg he considered “bullying”.[163]The subject of “bullying” came up in the claimant’s appeal against his dismissal. The allegations were investigated by Ms Cotterill and Mr Bremner and dismissed. Having heard Ms Cotterill evidence and having examined the relevant documents in the bundle, I am satisfied that the investigation was reasonable, and the conclusion not to uphold the claimant’s allegation of bullying was fair. In fact, based on the evidence in front of them, I find that it was the only reasonable conclusion in the circumstances.[164]The claimant’s claim that the respondent was moving goalposts is not supported by any evidence. The PIP and the targets there remain constant through the whole process. The claimant was assessed by Mr Landberg and Ms Ross-Thomas against those targets. There is no evidence in front of me to show that in assessing the claimant’s performance either of them acted arbitrary or inconsistently.[165]The claimant was clearly warned that his failure to improve could result in his dismissal. He was given the first and the final written warnings. He unsuccessfully appealed against both. I find that it was clear to the claimant that dismissal was a real possibility if he failed to improve. I, however, will return to the issue of the final written warning in greater detail later in the judgment.[166]I reject the claimant’s contention that he was not given adequate time to improve. The PIP process lasted from the end of August 2019 to mid-May 2020, that is eight and a half months. It was initially envisaged to last 4 weeks but was extended to take into account the claimant’s absences.[167]The claimant was not a novice, but a seasoned reporter with 20 years of experience. He was not new to the PIP process either and knew what was expected of him. Further, his EVALs reports from previous years raised the same performance issues. Therefore, these would not have come as a surprise to him.[168]As part of the PIP, he was not asked to do a different job, but to do his job to a satisfactory standard. Even considering the claimant’s absences on sick leaves in 2019 and 2020, I find that the period was adequate, and in any event, the length of the period was a matter for the respondent, and I find that it was well within the range of reasonable responses for the respondent to set that period.[169]I also reject the claimant’s contention that he was “too busy” with other matters to meet the targets. The targets were his day-to-day work and that what he was or should have been busy with. He, however, was not doing it to a satisfactory level, as reasonably assessed by the respondent.[170]I also note that during the first written warning appeal meeting the claimant having raised this issue then accepted that additional tasks, he had been arguing distracted him from meeting the PIP targets, “on the whole did not take much time and perhaps he could have executed on things quicker”.[171]Next, the claimant complains that his final written warning was issued to him on 13 February 2020 after the end of his third assessment period from 10 January to 13 February 2020. However, in deciding to dismiss the claimant, Ms Ross-Thomas assessed his performance primarily over the third review period. Therefore, the claimant argues “it was grossly unfair to assess the Claimant’s performance in the period prior to date on which he was given a final written warning and further feedback as to the steps required to improve his performance.”[172]He further argues that this approach rendered the final warning “nugatory and deprived [him] of any reasonable opportunity to improve his performance and implement the feedback given in the 11 February meeting.”[173]I can see some force in that argument. Indeed, if the claimant was given the final written warning for the level of his performance as at 11 February 2020 and then later dismissed by reference to the same period, that would be grossly unfair.[174]Also, even if there were no such “double-jeopardy” (and I accept that there wasn’t), it would still be unfair, if the claimant was told only on 13 February that his performance in the second review period was unsatisfactory, and if it had not been improved in the third review period (that is from 11 January to 13 February 2020) he could be dismissed. It would be simply too late for the claimant to react to the final written warning and address the performance issues.[175]It is regrettable that the claimant had not been formally told that his performance in the second review period was unsatisfactory and issued with the final written warning earlier than 13 February 2020. However, there were objective reasons for that, largely of the claimant’s making.[176]First, he was absent on sick leave, which resulted in the respondent extending the second review period until 10 January 2020, and then the disciplinary meeting originally scheduled for 22 January had to be rescheduled three times at the claimant’s request to accommodate his search for a companion.[177]Although the formal disciplinary meeting only happened on 11 February, and the claimant was issued with the final written warning on 13 February, the claimant and Mr Landberg had at least two one-to-one meetings in the relevant period. First - on 20 December 2019 and then on 20 January 2020. At both meetings Mr Landberg explained to the claimant that he was still falling short of the targets and gave detailed feedback. The claimant did not accept that, but he was given all the necessary information. It would have been clear to the claimant that Mr Landberg continued to consider his performance as unsatisfactory.[178]The final written warning letter is confusing. The penultimate paragraph reads as if the PIP was at an end, and the only remaining issue is whether the claimant’s performance in the third review period improved to the required level. This, however, does not sit well with the first sentence in the same paragraph, which says that the final written warning will be disregarded after 13 February if the claimant achieved, maintained and sustained the objectives in the PIP “moving forward”. In short, as Mr Laddie put it, it was a mix-up or a confusion or a mess.[179]To make things worse, on 18 February 2020, in response to the claimant’s email of 16 February 2020, questioning various aspects of the second warning letter, Ms Mills wrote: Next Steps Your final four week review period ran from 13 January to 10 February 2020 inclusive. We have this week undertaken a review of your overall performance during that period and regret that we consider that you have failed to meet the expectations. You will therefore be invited to attend a further disciplinary which as explained at the end of the last meeting could potentially lead to termination of your employment, specifically in relation to your poor performance. You are on leave this week and we will therefore connect with you on your return.[180]This suggests that as at 18 February 2020 (only 2 working days after the final written warning had been issued) the matter was done and dusted, and there was nothing else the claimant could do by way of improving his performance to avoid a possible dismissal.[181]The claimant appealed his final written warning specifically raising the timing point. His appeal was dismissed. With respect to the timing point, Ms Gage and Ms Vora said that they were “satisfied that the performance plan has not changed throughout the course of this process. With this in mind, it was clear to you from the outset as to the targets and expectations. A plan of this nature, generally runs for a four week period, however on account of your absence, and in fairness to you, the time period of this was extended and ran from 1 Oct – 10 Jan. This is also referred to in your final written warning outcome letter.”[182]This, however, with respect, does not deal with the issue. The issue is not whether the claimant was clear or unclear as to the targets and expectations, but whether or not it was fair to issue him with the final written warning after the PIP had ended, and at the same time saying that there would be a further review of his performance between 10 January and 13 February and if it were to be decided that the performance had not improved he could be dismissed.[183]I find that the appeal panel failed to properly engage with this issue, either because they had not understood it properly or mistakenly thought that the setting of the targets and expectations at the outset of the PIP was the answer to it, or for some other reason. The bottom line - the issue had not been properly dealt with on appeal.[184]I have read Ms Vora witness statement (the respondent chose not to call her and therefore it is up to the tribunal what weight, if any, should be given to her evidence). The notes of the appeal meeting were not available. Ms Vora says in her witness statement she could not locate them.[185]However, in the bundle there are email exchanges between Ms Vora and the claimant following the appeal meeting, her notes of the subsequent meeting with the claimant on 18 March 2020 and her meetings with Mr Landberg and Ms Mills on 20 March 2020. (page 1297-1310P). I have carefully read those.[186]The timing issue was one of the issues raised by the claimant after the appeal meeting, which led Ms Vora and Ms Gage to conclude that a follow-up meeting was required.[187]The claimant wrote to Ms Vora on 12 March 2020: Priya -- in the meeting today, you repeatedly mentioned a period from Dec. 27 to Feb. 11 and said those dates were in the March 9 letter. They are not. I still don't understand what you mean. Can you please be clear? You claim you are being sincere, but that claim does not seem credible to me. My third PIP period ran from Jan. 11 to about Feb. 10 I understand. I'm now in a further period, though this seems to be mostly undocumented because Reed/Bloomberg is not doing the right thing according to the PIP rules:[188]Then he included an extract from Ms Mills email of 18 February 2020 (I quoted above) and said: “I'm still waiting for that ``further disciplinary,'' am I not?”[189]From the documents I have seen, it appears that this issue had not been discussed at the follow-up appeal meeting on 18 March 2020, it was not raised by Ms Vora with Mr Landberg. It was raised in her meeting with Ms Mills, and Ms Mills said that the plan had lapsed, and the final written warning had been issued, but the plan had not changed during the whole process and the claimant was clear on the objectives. This, however, again failed to address the real issue of the timing of the final written warning.[190]It seems to me the respondent here got themselves into a real muddle with the dates. It appears the claimant’s absences, his appeals and grievances had thrown the original PIP timeline into a bit of disarray, and the respondent was effectively playing a catch-up against the dates in the PIP. By the time it was issuing its determination on the performance outcome in one review period, it was already passed the end date of the subsequent review period. That created an understandable confusion and the appearance that the claimant was not given proper warnings and an opportunity to improve.[191]However, despite the muddle up with the HR paperwork, the reality of the situation was that after 13 February 2020 the claimant’s performance continued to be assessed and he continued to be given by Mr Landberg constructive feedback in their 1-2-1s. The issue had not been foreclosed, as suggested in Ms Mills email of 18 February 2020, and the claimant was still in a position to turn the tide and improve his performance. The claimant knew that. He acknowledges that in his email to Ms Vora of 12 March 2020: “I am now in a further period”.[192]His performance was assessed at the EVAL meeting on 28 Feb 2020, at the 1-2-1 meeting with Mr Landberg on 10 March 2020, detailing performance between 12 February and 9 March, at a 40-minute phone call on 29 April, at the 1-2-1 meeting on 7 May, detailing his performance up to 7 May 2020.[193]Further, at the final disciplinary meeting on 13 May 2020, his performance was assessed during the entire period from 10 January to 13 May 2020. I accept Ms Ross-Thomas evidence that she also considered the claimant’s performance after 13 February and indeed acknowledged that there had been some good work after 10 February 2020, but the overall performance was still falling short of the required standard. Some of examples of the claimant’s work after 13 February were specifically discussed at the final disciplinary meeting.[194]The timing point was also addressed in the dismissal letter: “In the meeting we explained that whilst your final written warning was not issued until after the final performance review period had concluded. We are satisfied that you had further opportunities to improve during the period following 11 February up to the date of this hearing. Reed held one to one meetings with you and provided you with feedback against your metrics on or around 10 March and 29 April 2020. In reaching our decision we have taken into consideration your performance during this extended period. Whilst there has been in an increase in productivity you still fall short of the expectations.”[195]The issue was revisited on the appeal. Ms Cotterill and Mr Bremner investigated these issues and found that the claimant’s performance continued to be assessed after 10 February 2020, he continued to be given regular feedback on it, and it was taken into account by Ms Ross-Thomas when she had decided to dismiss the claimant. Therefore, they concluded that the claimant had been given sufficient opportunity to improve his performance after the final written warning had been issued.[196]Having considered this matter in the round, I find that although the respondent certainly could and should have done better in addressing the timing issues in the HR paperwork, so to avoid the confusion with the end date of the assessment period, the reality of the situation was that after the final written warning the claimant continued under the PIP and had ample time to improve his performance. He knew that and the respondent continued to assess his performance and to give feedback on the same basis as before 13 February 2020. Therefore, I find that the mix-up with the end date did not create any unfairness for the claimant, and certainly not to the extent to take the whole process outside the range of reasonable responses.[197]The next point I will deal with is the claimant’s complaint that “There is no indication that, in taking the decision to dismiss, the Respondent had any regard to the Claimant’s long service, strong historical record of performance, or any other mitigating factors.”[198]It is true that the claimant was a long-serving employee of the respondent. It is also correct that the length and the quality of the past service of the employer are relevant factors to be taken into account in assessing the overall fairness of the decision to dismiss.[199]Although at the date of the dismissal the claimant had almost 20 years of service with the respondent, the quality of his service in approximately the last 8 years had been constantly deteriorating.[200]I accept Ms Cotterill evidence that it is not that uncommon to see such slide in performance by long-serving employees. I also accept evidence of Mr Kennedy that the downward trend coincided with the respondent in or around 2015 changing its approach on reporting news with far greater emphasis on good story-telling and impactful journalism, the areas where the claimant was performing poorly.[201]Mr Ross-Thomas evidence in chief do not specifically say whether or not she considered the length of service and the claimant’s past record in reaching her decision to dismiss. This point was not put to her in crossexamination, and therefore I heard no direct evidence on it.[202]However, there is no law to say that failure to consider the length of service and the past record renders the dismissal unfair. On the contrary, the EAT on a number of occasions (see, for example, Bevan Harris Ltd (t/a The Clyde Leather Co) v Gair 1981 IRLR 520, EAT,) emphasised that the correct test tribunals must apply is whether the dismissal fell within the range of options open to a reasonable employer in the circumstances.[203]The same considerations and the overall test apply to the issue of whether or not the employer should have considered demoting or moving the under-performing employee to a different role instead of dismissal. Again, I do not have any direct evidence in front of me whether or not Ms RossThomas applied her mind that that option. That was not put to her in crossexamination, nor was it a specific point raised by the claimant in his case.[204]It is, of course, good practice for employers, especially of the size and administrative resources of the respondent, to always consider these matters before deciding whether dismissal is the most appropriate sanction in the circumstances. Ms Ross-Thomas was supported through the process by Ms Mills of the respondent’s HR, and one would have expected such matters to be discussed. I have not been presented with any evidence on that.[205]Mr Laddie in his closing submissions argued that even if these issues had not been considered in deciding to dismiss the claimant, that would have made no difference to the eventual outcome. This, however, is the “Polkey point”, and, when determining the fairness or otherwise of a dismissal the tribunal must not take into account the so-called “no difference” rule.[206]However, I am mindful that I must not fall into the error of substitution, and the relevant question is not whether I or a hypothetic reasonable employer in those circumstances would have decided to apply a lesser sanction because of the claimant’s length of service, but whether in those circumstances the respondent’s decision to dismiss fell within the range of reasonable responses.[207]Considering the circumstances where the claimant’s performance had been steadily declining over a number of years, given his specialist knowledge of his “beat” and the qualitative performance issues that led to his dismissal, I find that even if Ms Ross-Thomas did not specifically apply her mind to the claimant’s length of service and/or to the possibility of moving the claimant to a different role, those omissions by themselves would not have made her decision to dismiss to fall outside the range of reasonable responses.[208]Now, before coming to my overall conclusion on the fairness or otherwise of the claimant’s dismissal, I shall deal with one further aspect, which, I must admit, at first, I found the most troublesome. I am talking about “the exit/no backfill list” and various other emails between higher ranks of the respondent’s management suggesting that the decision to manage out the claimant might have been taken as early as February 2019, some 6 months before the start of the second PIP.[209]Mr Fraher and Mr Wallace, who are the main protagonists of those email exchanges, did not give evidence to the tribunal. I have read their witness statements, in which they explain their reasons for writing those emails and what they meant by including the claimant’s name on the lists. However, because they were not cross-examined on those, in reaching my decision on this issue, I placed no weight on the contents of their witness statements.[210]Mr Laddie described those emails as the high watermark of the claimant’s claim, and I agree. Without full context these emails suggest that the outcome of the PIP had been pre-determined well before it even started.[211]This kind of lists is not an uncommon feature of many dismissal cases, especially related to redundancy dismissals in large multinational employers, where senior management (often to dismay of their HR and legal advisers) create all kind of lists with names of employees who are likely to be leaving the company.[212]However, such lists, as unhelpful as they are in terms of evidence in possible future employment litigation, by themselves do not automatically mean that the dismissal is bound to be unfair. One must put them into the context and look at all relevant circumstances.[213]In this case, I am satisfied that Mr Landberg and Ms Ross-Thomas were not aware of those emails and the lists until the present tribunal proceedings.[214]For the reasons explained above I am also satisfied that the decision to dismiss the claimant was taken by Ms Ross-Thomas, and she was not instructed or manipulated to make that decision.[215]I also accept Mr Kennedy’s evidence that had Ms Ross-Thomas decided not to dismiss the claimant, this would not have been a problem for him or his superiors.[216]Given the claimant’s continuing poor performance, it is not surprising that Mr Fraher, Mr Wallace and Mr Kennedy anticipated that a likely outcome of the PIP would be the claimant’s dismissal.[217]It is also not unusual for the management to plan for that eventuality discussing future resourcing and financial implications, as can be seen in those email exchanges.[218]For the sake of completeness, I also find that Mr Kennedy’s reference to “uncompromising edit” in relation to the Russian gas pipeline story in his email of 11 June 2019 to Mr Landberg, was not an instruction to unfairly edit the claimant’s copy, but to give it the best possible job on the edit. In any event, that was almost a year before the claimant’s dismissal, Ms RossThomas was not privy to that email, and the story was published.[219]For these reasons I find that there was no “pre-determination” as to the outcome of the PIP, and the claimant was not deliberately “managed out” by the respondent. Overall fairness[220]Now, having gone through each of the criticisms by the claimant of the procedure and having looked at each relevant aspect of the process, I must step back and look at the entire picture in the round.[221]I find the process was designed to try and get the claimant to improve his performance and not to manage him out. It was not a sham.[222]I also find that Mr Landberg was genuinely trying to help the claimant, and that the targets were clear, consistent and achievable. The claimant was kept informed of his progress against the set targets. He was not set up to fail and Mr Landberg was not, using the claimant’s expression, “throwing sand in the gears”.[223]He was formally warned twice about him not achieving the targets, he was given the right to appeal the formal warnings. He used that right and his appeals were duly considered.[224]All material decisions during the process were taken based on available evidence and using reasonable management assessment and discretion. I find that all people involved in the PIP process were not biased against the claimant, and there were no apparent conflicts which would have made them unsuitable to deal with those matters.[225]The confusing HR documentation on the final assessment period (the timing point) and the open question whether or not in deciding to dismiss the claimant the respondent considered his length of service, prior record and the possibility of demoting/moving the claimant into another role are the only flaws in the process.[226]However, for the reasons explained above I find that those flaws, did not render the whole process unfair. Therefore, I find that overall the process was fair. That brings home the final element of the exercise I had to undertake in coming to my decision.[227]I find that the respondent’s decision to dismiss the claimant in those circumstances was fair. It follows that the claimant’s claim for unfair dismissal fails and is dismissed.