M Cameron v The Riverside Group Ltd (formerly One Housing Group Ltd): 2203556/2020 M Cameron v The Riverside Group Ltd (formerly One Housing Group Ltd): 2203556/2020

EMPLOYMENT TRIBUNALS

Case No 2203556/2020

Between

Michael CameronClaimant

The Riverside Group Limited (formerly One Housing Group Limited)Respondent

Before

Employment Judge H Travers

Members

Mr L. Purewal

Mr Woodhouse

R. Myers (instructed by Direct Access) for claimant

T. Burton (instructed by Trowers and Hamlin LLP) for respondent

Date 27 May 2025

JUDGMENT

(i) The tribunal finds that the claimant made a protected disclosure under the Employment Rights Act 1996 section 43B(1)(b).

(ii) The claim of protected disclosure detriment pursuant to the Employment Rights Act 1996 section 47B(1) is dismissed.

(iii) The claim of automatically unfair dismissal pursuant to the Employment Rights Act 1996 s103A is dismissed.

REASONS

Issues

[1]At the date of termination of his employment, the claimant had less than 2 years qualifying period of employment.

[2]By a claim form received by the Tribunal on 16 June 2020, the claimant complains:(a) that his dismissal was automatically unfair contrary to s103A of the Employment Rights Act 1996 [‘ERA’] because the reason or the principal reason for his dismissal was that he had made a protected

(b) That he suffered detriment on the ground that he had made a protected The claimant seeks a remedy in respect of both claims.

[3]The parties presented the tribunal with a detailed agreed list of issues. In summary, the tribunal must determine:- Public Interest Disclosure(a) Whether the content of an email dated 10 February 2020 (including attachments) constituted a protected disclosure. The email was sent by the claimant to Ms H Milne, the respondent’s Director of Governance and Compliance.

(b) Whether the 10 February 2020 email and attachments disclosed information which in the claimant’s reasonable belief tended to show one of the following:

• That a person had failed to comply with legal obligations to which he was subject, as detailed at paragraphs 13-21 of the Particulars of Claim and at paragraph 7 of the Further and Better Particulars of Claim;

• And/or that the health and safety of the claimant and other staff had been, was being, and was likely to be endangered. The danger alleged by the claimant, being that the claimant’s line manager attending work intoxicated, being hostile towards the claimant, and causing him significant stress related illness.

(c) If so, did the claimant reasonably believe that the disclosure was made in the public interest. Public Interest Detriment

(d) If a protected disclosure is proven, did the acts or omissions set out in the Schedule of Detriments take place?

(e) If so, do any of the acts of omissions amount to detrimental treatment? Unfair dismissal

(f) Was the making of any proven protected disclosure the reason, or if more than one the principal reason, for the claimant’s dismissal? Time limits/Jurisdiction

(g) Were the claimant’s complaints presented within the time limits set out in the Employment Rights Act 1996 sections 48(3)(a) and (b)?

Facts

[4]The respondent housing association is a registered provider of social housing and is regulated by the Regulator for Social Housing. It receives public funds. The respondent manages over 16,000 homes in 26 London boroughs and the surrounding counties. The respondent’s activities include the development and construction of housing projects. The respondent has a turnover in excess of £200,000,000 per annum. It is a large employer with more than 1,000 staff.

[5]On 26 November 2018, the claimant commenced employment with the respondent. The claimant’s employment was terminated by dismissal on 31 March 2020.

[6]ACAS received notification of early conciliation on 09 April 2020. The early conciliation certificate was issued on 09 May 2020. On 16 June 2020 the Employment Tribunal received the claimant’s ET1 form. The claimant’s employment

[7]The claimant’s initial employment with the respondent was as a Development Finance Analyst. Following a restructuring within the respondent, in September 2019 the claimant’s existing role was deleted from the respondent’s structure and the claimant was promoted to the role of Senior Programme Manager.

[8]The claimant worked within the Development Team. This was the team which had responsibility for developing new homes. In his new role the claimant’s job description stated that he was responsible for: ‘Leading a team to maintain all financial, performance and progress information relating to projects within the Development process. The Senior Programme Manager will ensure that all relevant information relating to the organisation’s large and complex capital investment programme, including affordable housing and private sale programmes, is accurately recorded and shared as appropriate with various internal and external stake holders…The purpose of this role is to improve and manage changes as necessary to meet the changing needs of the organisation and the industry.’

[9]One of a number of ‘Principle Outputs and Responsibilities’ of the claimant’s new role was that: ‘Through timely production of key information, the Senior Programme Manager will help drive the development programmes forward and will take a lead in delivering the programmes for internal and external stakeholders.’

[10]In the long list of the claimant’s ‘Main Responsibilities’ contained within his job description were the following: ‘Maintain all financial, performance and progress information relating to projects within the Development process. Ensure that all relevant information relating to the organisations large and complex capital investment programme, including affordable housing and private sale programmes, is accurately recorded and shared as appropriate with various internal and external stake holders… Ensuring all appraisals on projects are planned, viable, accurate and tracked through the project tracking tools and reporting to the development committee members…’

[11]The ‘Essential Skills’ required by the Senior Programme Manager included, ‘Excellent communications skills at all levels’. The claimant’s line manager - Mr Keegan

[12]In September 2019, Mr Fred Keegan was the claimant’s line manager in his new role. At that time Mr Keegan held the post of the respondent’s Director of New Business and Partnerships.

[13]Mr Keegan had worked for the respondent since October 2018, but in a previous employment he had worked with the claimant. During that employment, the claimant was Mr Keegan’s key liaison officer in that organisation’s finance department.

[14]As a former senior colleague of the claimant’s, on 16 June 2017 Mr Keegan had provided a reference for the claimant in respect of an application for a post-graduate course. The reference was glowing.

[15]Mr Keegan described the claimant as: ‘…highly motivated and this was reflected in the standard of his work…inquisitive, bright and willing to learn when the need arose…He produced financial reports for a scrutiny committee that we both attended during the course of his time at the GLA and these reports were always produced to a high standard in terms of their quality…reliable (he does what he says he will do)…’.

[16]It is clear from the reference that, during their previous experience working together, Mr Keegan had a respect for the claimant’s professional abilities and he was not reluctant to give him credit for his professional skills. The two men enjoyed an excellent professional and personal relationship.

[17]In his evidence, the claimant highlighted the closeness of his personal relationship with Mr Keegan prior to the issues which have given rise to this claim: ‘…we had been great friends before, we lived very close together and we were close friends in the past and we had met each other’s family…’.

[18]Mr Keegan was on the interview panel which recommended the claimant for appointment to the Senior Programme Manager role. The claimant and Mr Keegan: 1 to 1 meetings

[19]Unfortunately, the claimant and Mr Keegan’s relationship deteriorated rapidly following the claimant’s appointment as Senior Programme Manager. It was a new role for the claimant, and the role itself presented significant professional challenges.

[20]On 23 September 2019 Mr Keegan had a 1 to 1 review meeting with the claimant. The respondent’s pro forma record of the meeting sets out that the claimant complained that he was stressed in the job, that his work was constantly criticised, and that he felt undermined given that more senior staff were giving direct instruction to his team. Mr Keegan agreed that in future work requests to the claimant’s team would be put through the claimant, and that Mr Keegan would ask Toyin Falade (Sales and Marketing Director) to do that as well. Mr Keegan told the claimant that this commitment could not extend to Michael Johnson, who was the Group Development Director and head of the Development Department.

[21]At the meeting on 23 September 2019, Mr Keegan advised the claimant that he should be delegating more tasks. He told the claimant that he should only be directly managing those matters sitting under programme and long term financial management. Mr Keegan set out a series of timetabled work-related actions which the claimant should be taking going forward.

[22]In his written evidence for the tribunal, the claimant states that the 23 September 2019 meeting was the first time that Mr Keegan had expressed negative feedback to him.

[23]The claimant asserted that Mr Keegan was intimidating and aggressive during the 23 September meeting. Other than the assertion itself, no significant detail was offered as to how this is alleged to have manifested. No information has been offered which might explain why Mr Keegan’s previously close and friendly personal relationship with the claimant should have been transformed into one of intimidation and aggression.

[24]In reality, the professional relationship between the claimant and Mr Keegan changed once the latter became the claimant’s line manager in the claimant’s new Senior Programme Manager role. It may be that due to the close personal relationship which the men had previously enjoyed, this was not an easy transition. Mr Keegan’s position now required him to line manage the claimant in a new and challenging role, and for Mr Keegan to have detailed, and sometimes critical, discussions about the claimant’s performance.

[25]Mr Keegan does not accept that in his interaction with the claimant as line manager that he behaved improperly. It may be that the perhaps unexpected, receipt for the first time of perceived negative feedback from Mr Keegan may have felt intimidating and aggressive to the claimant. On the evidence presented to the tribunal, the tribunal finds that there was nothing objectively improper about Mr Keegan’s conduct of the meeting on 23 September 2019.

[26]The next 1 to 1 meeting between the claimant and Mr Keegan took place on 31 October 2019. This was a difficult meeting.

[27]The respondent’s pro forma record of the meeting details 7 specific areas of concern about the claimant’s performance which were highlighted by Mr Keegan. The document records Mr Keegan’s belief that most of the points which had been agreed for action in the 23 September 2019 meeting had not in fact been actioned.

[28]The claimant accepted in evidence that the majority of the tasks listed by Mr Keegan as agreed for action had not been delivered by the time of the meeting on 31 October 2019. In his oral evidence the claimant did not accept that all of these tasks had in fact been agreed for action. The claimant asserted that some of the tasks would have been unachievable in the timescale suggested.

[29]The respondent’s record of the 31 October 2019 meeting records that: ‘MC [the claimant] noted at the end of the review that it would be nice if FK [Fred Keegan] said something positive about his performance. FK responded that the standard of work needed to improve and agreed targets need to be met for this to happen.’

[30]In what is perhaps a resonance of the claimant’s dismay at facing performance related criticism from a person whom he had formerly regarded as a close friend, the claimant in his witness statement described Mr Keegan’s attitude during the meeting as, ‘…extremely mean, impersonal, hostile and unfriendly…’.

[31]The claimant alleges that at the meeting on 31 October 2019 Mr Keegan was, ‘…visibly intoxicated and was rude and aggressive throughout’.

[32]The allegation made by the claimant was serious. He alleged that his line manager was ‘visibly intoxicated’ during a 1 to 1 review meeting. At that meeting the claimant says that Mr Keegan made what the claimant regarded as very unfair criticism of the claimant’s performance at work.

[33]The claimant did not raise the question of intoxication with Mr Keegan or HR at the time. He told the tribunal that, he didn’t do so because, ‘I think it would be a very unfriendship [sic] thing to do and would have made our relationship more difficult than it was at the time.’

[34]Insofar as the allegation of ‘rude and aggressive’ behaviour is severable from the allegation that Mr Keegan was visibly intoxicated, the same comments apply as are made above in respect of the claimant’s assessment of Mr Keegan as intimidating and aggressive on 23 September 2019. The evidence presented to the tribunal does not support a finding that on an objective assessment Mr Keegan behaved in a rude or aggressive manner on 31 October 2019.

[35]Insofar as the allegation of ‘rude and aggressive’ behaviour is said to have been caused by Mr Keegan’s alleged intoxication, no finding is made of ‘rude and aggressive’ behaviour on Mr Keegan’s part. The tribunal finds that the evidence presented to the tribunal does not support a finding that Mr Keegan was intoxicated at work either on 31 October 2019 or at any other material time as described by the claimant.

[36]The reasons for this finding about the allegation of intoxication are detailed later in this judgment. In short, the history of the timing and nature of the claimant’s complaints against Mr Keegan is not consistent with Mr Keegan having been intoxicated as alleged.

[37]The claimant has submitted a document which fills two thirds of a page of A4 and is headed, ‘MC notes of the 1-1 of 31st October 2019’.

[38]Although described as the claimant’s ‘...notes of the 1-1…’, the document could more accurately be described as a response to the respondent’s pro forma note of the meeting which took place on 31 October 2019. The claimant’s notes are undated and he was unable to assist as to when they were prepared. It is quite clear from the content of the notes that they are not a contemporaneous note of the meeting on 31 October. In oral evidence the claimant told the tribunal that he was not sure if these notes had been produced by him for the purpose of the complaints which he made later on.

[39]In the claimant’s notes the following assertions are made: ‘…Fred was clearly drunk and being very aggressive.’ ‘I never signed any of the 1-1 notes as I did not agree with them, it was just a bullying session.’

[40]The tribunal rejects the suggestion that the 31 October 2019 meeting was, ‘just a bullying session’. On the contrary, it was a meeting during which the claimant’s line manager addressed with the claimant matters of genuine concern to Mr Keegan.

[41]It is important to observe that this is not to say that the claimant cannot legitimately disagree that the concerns expressed by Mr Keegan are well founded. Where the claimant disagreed during the meeting, he was entitled to express that disagreement in an appropriate professional manner.

[42]It is however the tribunal’s finding that the performance concerns raised by Mr Keegan at the meeting were matters of genuine concern to him as the claimant’s line manager. Whether or not an objective analysis would demonstrate that Mr Keegan was right or wrong to harbour those concerns, his concerns were reasoned and were genuinely held by him. There was no ulterior motive. He was a man who had previously got on well with the claimant and been professionally supportive of him. Claimant’s November 2019 referral to HR – Line manager’s alleged intoxication

[43]The day after the meeting, the claimant took pre-arranged holiday leave. He was away from 01-11 November 2019.

[44]On 25 November 2019 the claimant self-certified a day’s sick leave on the grounds of ‘work related stress’. The same day the claimant emailed Mr Keegan to arrange a meeting with him to discuss the matter on the claimant’s return to work the next day.

[45]The claimant and Mr Keegan met on 26 November 2019. Following the interview, the claimant prepared a note, it is headed ‘Back to Work Interview’. It does not purport to be a verbatim note but sets out the claimant’s account of the exchange between himself and Mr Keegan on 26 November.

[46]The note includes the following: ‘…I pointed out that I felt Fred’s approach to me as a colleague and a member of his team was aggressive, using terms such as this is wrong, why is this late, haven’t you forgotten something…Fred takes no account of work capacity or staff wellbeing. The back to work interview turned into a 1-1 where I was again criticised on every point….’

[47]The claimant also compiled a document which was addressed to Mr Keegan. The copy in the bundle is undated, but given that the opening line states, ‘Further to my day off today as sick with stress, please note the following…’, it would appear to have been prepared on 25 November 2019.

[48]The document runs to 8½ pages of A4 paper. Its content is contained under four headings which are set out in bold letters.

[49]The final two headings state: ‘Listed below are examples of issues that I have had recently’; and, ‘This is the first 20 tasks that come to mind, that I was involved in between my last two 1/1s’.

[50]The content under the first two headings is set out below [emphasis added]: 1. ‘I feel at work Stressed Unsupported Victimised Undermined Persecuted 2. How is this affecting me I am constantly thinking about work especially when I am not there I feel that anything I do will be criticised That any good work that I do is not recognised Contact between you and I is aggressive, hostile and unsupportive I feel that I am blamed for other people’s poor work I am upset that my last 1/1s are a lecturing session of how poor I am There seems no undertaking from you to help make things better’

[51]At the end of the copy of this document within the bundle there is a fifth heading, ‘How do I feel’. Beneath this heading are a total of 39 short points. They appear to be addressed to Asmeret Haile of the HR department to whom the claimant sent this document on 27 November 2019. The points include:• “I just want to get away from Fred’

• ‘Do we have any harassment advisors’

• ‘Fred’s behaviour is intimidating, degrading, humiliating and offensive’

• ‘I don’t feel comfortable having 1-1 now as they are just a barrage of insults’

• ‘I feel Fred is over critical’

• ‘I feel my manager lacks empathy’

• ‘I feel my manager is trying to control everything and only his work is up to the required standard’

• ‘I feel belittled intimidated and that my manager is trying to control me’

• ‘The bullying that I am receiving is repetitive’

[52]On 27 November 2019 the claimant emailed Asmeret Haile who works in the respondent’s HR department. His initial email asked to have a chat with her because he said, ‘…it is my view that I am being bullied at work.’.

[53]Four hours later the claimant sent a second email to Asmeret Haile stating that, ‘My personal health is suffering from work place bullying’. The claimant said that he had tried to resolve the matter with Mr Keegan on an informal basis and that it was the claimant’s, ‘…desire that this is resolved in some way on an informal basis.’.

[54]The claimant’s second email to Asmeret Haile contained a number of attachments. These included the document referred to above which was addressed to Mr Keegan. It is the document which has at the end the additional heading ‘How do I feel’ above a series of points critical of Mr Keegan which appear to be addressed to the HR department.

[55]This is a significant document.• It is a document in which the claimant chose to bring to the attention of the HR department matters of concern about his treatment by

• It is a document which makes trenchant criticism of Mr Keegan’s professionalism;

• It is a document which is highly critical of Mr Keegan’s treatment of the claimant;

• It is a document which describes Mr Keegan’s behaviour as, ‘intimidating, degrading, humiliating and offensive’;

[56]Significantly, it is also a document which makes no mention of the allegation that Mr Keegan was ‘visibly intoxicated’ when he attended a 1 to 1 review meeting on 31 October 2019.

[57]The omission of this serious allegation from the extensive and strongly worded list of complaints against Mr Keegan, fundamentally undermines the credibility of the claimant’s allegation that Mr Keegan was visibly intoxicated at the meeting on 31 October 2019.

[58]The claimant’s explanation in evidence that he didn’t at that stage mention the alleged intoxication because, ‘I think it would be a very unfriendship [sic] thing to do and would have made our relationship more difficult than it was at the time.’, does not withstand scrutiny.

[59]The content of the claimant’s communication addressed to Mr Keegan, which was subsequently sent by him to Asmeret Haile of the HR department, might itself be described as an ‘unfriendly’ thing to do which would make the relationship between the claimant and Mr Keegan more difficult.

[60]This is not a criticism of the claimant’s decision to contact the HR department if he felt it appropriate to do so. The observation is made simply to highlight the contrast between the justification offered by the claimant for not mentioning the allegation that Mr Keegan was ‘visibly intoxicated’, and the claimant’s action in submitting to the HR department a document which contained such damning criticism of Mr Keegan’s behaviour and discharge of his management responsibilities.

[61]The document sent to the HR department includes these words which are addressed to Mr Keegan, ‘Contact between you and I is aggressive, hostile and unsupportive’. While it can be readily understood that the claimant might have been reluctant to make potentially unwelcome criticism of an old friend, the strong words which he addressed directly to Mr Keegan – ‘aggressive, hostile and unsupportive’ – indicate that he had overcome that reluctance by the time he composed this document.

[62]In that context, it is entirely unclear why the claimant did not make any reference in the critical comments addressed to Mr Keegan personally, of the visible intoxication which it is alleged that Mr Keegan exhibited at a meeting at which both men were present.

[63]The terms used in the criticism of Mr Keegan in the document which the claimant sent to the HR department was very powerful. Mr Keegan was alleged to have behaved towards the claimant in an, ‘intimidating, degrading, humiliating and offensive’. The claimant alleged that he was subjected to ‘repetitive bullying’, and that he just wanted, ‘to get away from Fred’.

[64]In the circumstances, the claimant’s explanation for the omission of a reference to Mr Keegan’s alleged intoxication does not make sense. The claimant’s apparent sensitivity to mentioning intoxication because it would be unfriendly to do so, is entirely inconsistent with his willingness to make and communicate to HR other serious criticisms of Mr Keegan.

[65]The evidence presented to the tribunal does not support a finding of fact that Mr Keegan was visibly intoxicated at the meeting on 31 October 2019. In the circumstances, the tribunal is unable to rely on the claimant’s allegation that Mr Keegan was intoxicated at work on 31 October 2019 or at any other time.

[66]After receiving the claimant’s email on 27 November 2019, Asmeret Haile promptly arranged a meeting with the claimant. It was scheduled for 29 November 2019. Ultimately, the meeting did not take place.

[67]On the morning of 29 November 2019, the claimant emailed Asmeret Hoile to cancel the meeting. The full content of the email is as follows: ‘Morning Asmeret, I am going to cancel today’s meeting and have another think about this if you don’t mind. Regards, Mike’

[68]On 27 November 2019, as well as emailing the HR department with his concerns about Mr Keegan’s behaviour, the claimant emailed Michael Johnson about a business matter, cc’ing Mr Keegan.

[69]Michael Johnson was the Group Development Director and head of the Development Department in which both the claimant and Mr Keegan worked. Mr Keegan reported to Mr Johnson. Mr Johnson in turn reported directly to Richard Hill who was the respondent’s CEO.

[70]The claimant’s email to Mr Johnson set out concerns about the effectiveness of the respondent’s financial reporting systems in respect of cash flow. He described it as his, ‘…latest attempt to get managers to take any responsibility for the cash flows in Sequel or the appraisals in Proval.’ The claimant attached to the email a template which he said, ‘…if completed correctly will show discrepancies in cash flow.’. Claimant’s email to Michael Johnson

[71]On 22 January 2020 the claimant emailed Michael Johnson directly about project information procedure within the respondent’s organisation. His email began, ‘Fred has drafted the attached procedure to ensure that the project information team report on if project manager figures…We currently have such a procedure not as robust as this and I think this is a welcome addition. But the main problem we have is that heads of are not signing off the project reconciliation spreadsheet or checking the sequel upload…’. The email then went on to discuss the issue and concluded, ‘Can we please discuss this and agree how you want to take it forward. I am back from leave on the 3rd February…’

[72]The claimant cc’d his email to Fred Keegan and other members of the team. The claimant did not discuss this email with his manager Mr Keegan, before sending it directly to Mr Keegan’s manager, Mr Johnson. It is clear from the email which Mr Keegan sent the claimant in response that he was not happy about this: ‘This is for us as a team to finalise in terms of an updated procedure and then roll out…Can you please discuss with me before involving MJ in future in programme matters as it simply comes back to me to deal with given I head up the programme team/is my responsibility to sort out.’

[73]When asked in cross-examination about his email to Mr Johnson, the claimant initially said that he wouldn’t have sent it to Mr Johnson unless he had discussed it with Fred Keegan. This account is not consistent with the content of the contemporaneous email sent by Mr Keegan to the claimant in response to the claimant’s email to Michael Johnson. The tribunal regards the sentiment expressed in Mr Keegan’s contemporaneous email as accurate. The claimant did not discuss with Mr Keegan the content of his email to Mr Johnson prior to sending it.

[74]This is a marker of how fractured and unhappy the once good relationship between the claimant and Mr Keegan had become by January 2020. Against the background of the already strained relationship between himself and Mr Keegan, when the claimant sent his email to Michael Johnson the claimant will have known that it was highly likely that Mr Keegan would not be happy about it. January 2020

[75]The claimant got married on 24 January 2020. He took leave from 24-31 January 2020 for his honeymoon. Unfortunately, during the honeymoon he suffered what he describes as, ‘…a cardiac instance which meant that I was very close to having a heart attack’.

[76]The claimant emailed Mr Keegan and colleagues on 31 January 2020 in the following terms: ‘Hi all, I have had a cardiac instance, it just means you were very close to a heart attack. So I am not going to be in for a bit, a minimum of one week, but doctor tells me it will definitely be several weeks. So happy to answer short emails, but one of the reasons is stress so won’t be doing any reports wrong difficult questions [sic]. Miss you all, Mike’

[77]The claimant says his health problems were, ‘…exacerbated when I also injured my leg which meant I had limited mobility for a number of weeks after that due to having to use crutches.’.

[78]The 31 January 2020 was a Friday. The claimant was on sick leave on the following Monday and Tuesday, 3-4 February 2020.

[79]Since around September 2019, the claimant had been the line manager for Kathy Kwan who was a Programme Information Manager. Ms Kwan no longer works for the respondent. Under cross-examination Ms Kwan told the tribunal that during the last few months of the claimant’s employment (which terminated at the end of March 2020), the claimant would come in late and would chit chat, and then go.

[80]In her witness statement Ms Kwan described her personal view that, ‘I don’t think that his underperformance was deliberate but the output coming from the Claimant [during the last few months of his employment] was minimal; he would visit the office, have a few conversations with some people then leave again. Ultimately, it was me who had to unpick the Claimant’s work and ensure that tasks that remained outstanding were fulfilled.’.

[81]The suggestion of underperformance made by Ms Kwan is one which is reflected in the evidence of Mr Keegan. He had concerns about the claimant’s performance at work from the early days of the claimant’s appointment as Senior Programme Manager. These concerns are set out in the notes of the review 1 to 1s in September and October 2019.

[82]The fact that Mr Keegan had such concerns is corroborated by the claimant himself in the documentation sent to HR on 27 November 2019. There he expressed his deep frustration at Mr Keegan’s criticism of his performance at work.

[83]Mr Keegan’s concerns about the claimant’s performance at work continued into the new year. Matters were to come to a head in February 2020. February 2020

[84]Around 05 February 2020 Mr Keegan had a discussion with the head of the Development Department, Michael Johnson. The discussion was about Mr Keegan’s genuinely held concerns about the claimant’s performance and behaviour. The concerns expressed by Mr Keegan included:-• His belief that the claimant failed to manage programme cashflow effectively;

• His belief that the claimant was failing to produce and issue internal Key Performance Indicators in a timely manner;

• His belief that the claimant was failing to produce timely reports to internal approval bodies;

• His belief that the claimant was failing to follow up on improvements suggested in respect of internal procedures and systems;

• His belief that the claimant was failing to engage with other departments in a constructive manner with a view to providing analysis and feedback on development cashflows;

• His belief that the claimant was failing to develop a collaborative working relationship with other members of the team that he required information from to carry out his role effectively;

• His concerns about the issues the claimant had raised about Mr Keegan’s management in the back to work meeting on 26 November 2019;

• His concerns about how to manage the claimant’s workload and health in light of his recent heart problems.

[85]At the conclusion of their discussion, Michael Johnson suggested that Mr Keegan contact the head of the HR department, Katherine Dent, to get some advice. Mr Keegan emailed Ms Dent on 05 February 2020 and had a discussion with her on 06 February 2020. Ms Dent advised Mr Keegan that he needed to have a formal meeting with the claimant to discuss Mr Keegan’s concerns and what was necessary to sustain the claimant’s attendance at work.

[86]Subsequently a meeting between the claimant and Mr Keegan was scheduled for Wednesday 12 February 2020.

[87]On 07 February 2020 the claimant sent an email to colleagues which Mr Keegan regarded as terse and failing to build positive relationships with the team and external stakeholders which Mr Keegan regarded as an essential element of the claimant’s role.

[88]The email was sent in response to a request from Peter Moore who worked within the respondent as Director, Corporate Finance. Mr Moore asked the claimant to provide information in response to questions from one of the respondent’s funders. The request was made on Wednesday 05 February 2020 and asked for a response by the morning of Tuesday 11 February 2020.

[89]The claimant’s initial response was to say that he could not get the work done until by the latest close of business on Thursday 13 February. He told Mr Moore that it was the busiest week of the month and that he [the claimant] had been off work for most of it. There followed an exchange of emails where the claimant initially stood his ground. The claimant said that he needed to be realistic about the timescale.

[90]When Mr Moore pointed out that, ‘…the delivery of financial information in line with our loan agreements IS an ongoing contractual obligation and, whilst minor, is a breach of our debt covenants if not met…’, his comment elicited the response which is criticised by Mr Keegan.

[91]It was a one line email. It read: ’On this occasion, I will find someone to work this weekend and you will have this for this Tuesday. Please give us more notice in the future.’

[92]The claimant does not agree that this email was terse. When asked about whether the email was consistent with building positive relationships, the claimant told the tribunal that, ‘I am. I am doing what I can to complete this task. I don’t think the email is terse. These are not external stakeholders. These are people who work [within the respondent]’.

[93]No doubt arguments can be made both ways as to whether the claimant or Mr Keegan is right in their evaluation of the claimant’s email exchange with Mr Moore. In the context of the specific legal claims which the tribunal has to determine in this case, this is not the most important issue. What is undoubtedly important is the fact that the dispute about whether or not the claimant’s email was unacceptably terse represented another contribution to a gathering weight of dissatisfaction with the claimant as a colleague. Mr Keegan forwarded the email to Michael Johnson on 07 February 2020.

[94]The same day, 07 February, Mr Keegan received an email from another senior member of the department, Robert Marcantoni who was the Commercial and Property Director. The email was sent by Mr Marcantoni at 17.40 and its substance is as follows: ‘Mike [Cameron] has just pulled me aside and had what can only be described as a rant at me about the team, manager and directors. He was quite passionate that we are all rubbish and not taking cost control seriously. Referencing some points on recent 121s and generally the approach of some of the teams to financial control. He also threatened to resign! I calmed him down and agreed that I would set up a meeting next week with the 4 of us to run through concerns. I also need to let Mike know as he said he is going to see Ebele next week and wants to transfer his role to finance and basically tell her about the issues.’

[95]Mr Keegan’s reply to Mr Marcantoni began with the following: ‘I’ve just had the same rant and corrected him on the number of negative 121s we’ve had (one more than mentioned). This was entirely inappropriate to raise with you, let alone the rest of it…’.

[96]Under cross-examination the claimant took issue with the description of his comments to Mr Marcantoni as a ‘rant’. He said, ‘I don’t think it was a rant at him on 07 February. I raised my concerns. The issue concerning financial details was not being taken seriously. Development wanted to build as many properties as possible…I raised my concern about how we were arranging finances in the Development Department.’

[97]When asked about Mr Keegan’s reference to a ‘rant’ when he replied to Mr Marcantoni’s email. The claimant responded that he had the same discussion with Mr Keegan in the morning. He said, “I have got the right to raise concerns with my boss’.

[98]Other than the description of what he said to Mr Marcantoni as a ‘rant’, the claimant’s account of what was said by him to Mr Marcantoni and the account in Mr Marcantoni’s email are not necessarily far apart. At least in substance, if not in the precise words used to describe the underlying issues.

[99]Mr Marcantoni says that the claimant was critical of various colleagues. The claimant in his evidence is plainly critical of what he sees as colleagues not taking his concerns seriously.

[100]On the claimant’s own account: ‘By the beginning of February, I felt that it was time to express my reservations and concerns to a wider audience than my immediate team. Fred’s bullying and harassment had reached new levels, I had a problem with my heart and I was feeling low due to my leg being out of action and having to use crutches. No one was taking any notice of my concerns and I just couldn’t take any more’.

[101]The claimant told the tribunal that, ‘The ‘rant’ discussion wasn’t very heated and it wasn’t unprofessional. I was airing some concerns about financial conduct. I don’t know which colleagues were unsettled by it.’.

[102]Although Mr Marcantoni was not called (or made subject to a witness order on the application of either party), the accuracy of the account given in his email is supported by Mr Keegan in his response to Mr Marcantoni. In his email Mr Keegan tells Mr Marcatoni that, ‘I’ve just had the same rant…’. Mr Keegan then goes on to mention his discussion with the claimant about 1 to 1’s. This aligns with the reference in Mr Marcantoni’s email to the claimant mentioning recent 1 to 1s.

[103]Given the nature of the specific legal claims which are before the tribunal, the impact of the content of Mr Marcantoni’s email on relevant decision makers is important. The approach of Mr Johnson to the claimant’s continued employment was informed by the words contained within Mr Marcantoni’s email.

[104]Mr Johnson told the tribunal that Mr Marcantoni is, ‘…measured, calm, and experienced. He is not prone to hyperbole. Within the team we like to resolve things, but in this case Rob [Marcantoni] thought it was serious enough to raise with me.’. Mr Johnson described to the tribunal his own understanding that on the afternoon of Friday 07 February 2020, the claimant had been, ‘…shouting that we were all rubbish and didn’t know what we were doing. Mr Marcantoni calmed him down and got him a room.’. Mr Johnson had a genuine belief in the truth of what Mr Marcantoni wrote.

[105]In his written statement, Mr Johnson told the tribunal that: ‘…my view, based on what I was hearing from Fred Keegan about the Claimant’s performance and conduct that the business was better off without him. This had been clear in my mind from as early as 07 February 2020 when the Claimant had been threatening to resign and ‘ranting’ about how ‘rubbish’ the team was to Robert Marcantoni and Fred Keegan. To my knowledge it was only the Claimant who was making these claims and otherwise the team worked well and harmoniously.’ [all emphasis added].

[106]Mr Johnson was the head of the department. He answered to the respondent’s CEO. It is clear that he placed a premium on achieving harmony within the team. It is also clear that he regarded the claimant’s actions as disturbing that harmony.

[107]Mr Johnson and Mr Keegan had previously worked together at Savills. He told the tribunal that, ‘We are friends. We keep in touch.’. It is clear from his written evidence concerning his response to the events of 07 February 2020, that as with Mr Marcantoni, Mr Johnson valued Mr Keegan’s opinion. It is also clear that by 07 February 2020, Mr Keegan’s opinion of the claimant, rightly or wrongly, was negative. Claimant’s email to Ebele Akojie

[108]At 06.20 a.m. on 07 February 2020, the claimant emailed Ebele Akojie. At that time Ms Akojie was the respondent’s Chief Finance Officer. Ms Akojie was the person to whom the claimant was referring during his conversation with Mr Marcantoni who reported that: ‘[the claimant] said he is going to see Ebele next week and wants to transfer his role to finance and basically tell her about the issues’.

[109]The substance of the claimant’s email to Ms Akojie was as follows: ‘Can we please have a chat. I have a couple of ideas of how development and finance can work better together and how you would get more robust appraisals and monitoring at DAP, DAIC and Board.’

[110]Following this email, Ms Akojie agreed to schedule a meeting with the claimant. By an email sent at 13.28 on Friday 07 February 2020, the claimant was notified that a meeting between himself and Ms Akojie had been scheduled for Tuesday 11 February at 10 a.m. 10 February 2020

[111]Following the events/emails of Friday 07 February, Mr Keegan had discussions with Mr Johnson. Mr Keegan also sought further advice from Ms Dent on 10 February. He forwarded to her the email about the claimant which Mr Marcantoni had sent to him on 07 February.

[112]One of the matters which concerned Mr Keegan was the claimant’s reference in his discussion with Mr Marcantoni to, ‘…basically tell [Ms Ekojie] about the issues’.

[113]On 10 February at 14.47 the claimant forwarded to Asmeret Haile a copy of the complaint of bullying which he had originally sent to her on 27 November 2019, before he cancelled their scheduled 29 November 2019 meeting to discuss it.

[114]The covering email under which the claimant sent his 27 November 2019 complaint again, stated simply: ‘As per the email below I would like to make an allegation that I am being bullied in the workplace by Fred Keegan’.

[115]On 10 February, Mr Keegan sent the claimant an email at 15.21 to say that he: ‘…took from Friday that you were going to speak to Ebele about potential job opportunities but Rob [Marcantoni] suggested this morning that the conversation is intended to be wider and critical of development processes insofar as our reaction with finance is concerned. I may have missed this on Friday, but if this is the case, it's inappropriate to be meeting Ebele to discuss such matters and if they form the substance of the meeting I do not think you should be meeting with Ebele.’

[116]Two minutes later, the claimant replied, ‘I am meeting Ebele to discuss a job’.

[117]Nowhere in his 07 February 2020 email to Ms Akojie, did the claimant mention discussing a job. The focus of his 07 February email was entirely different.

[118]On 11 February at 00.50 the claimant emailed Ms Akojie and told her that, ‘I have been instructed by Fred to tell you nothing about development.’ ‘Whistleblowing Document’

[119]At 22.21 on 10 February 2020 the claimant emailed the respondent’s Group Director, Governance and Compliance, Hilary Milne. Among the duties which fell within Ms Milne’s remit was that of Whistleblowing Officer. Ms Milne told the tribunal that she had not had training for her Whistleblowing Officer role.

[120]The claimant’s email to Ms Milne said simply, ‘Please note my whistle blowing document attached.’.

[121]The whistle blowing document contained around 21 pages. Much of it consisted of documentation and emails which the claimant believed would support his claim. It also included a 10 paragraph document, just over 2 pages long, which was headed, 'Whistle Blowing Policy - Conduct likely to damage our reputation or financial wellbeing'.

[122]The document begins, ‘I would like to make several allegations under our whistleblowing policy’. There follow 10 headings under which the claimant sets out various allegations/information:• Bellamy and Byng [reference to properties owned by the respondent] ‘The paper that went to DAP relating to the authoring of this project has in fact missed out £4 million of costs. I was informed of this by […] we were sworn to not tell finance, but I now feel I must.’

• Levels of grant ‘We are using levels of grant for stretched targets of £38k for share ownership and £78k for affordable rent, when in fact our agreement with the GLA states that unless we meet a target of 1,192 dwellings by 31/03/2020, then we will not attract any stretched target incentive payments of an extra £10k per property. See the attached Appendix 1. This reports shows that it is impossible for us to meet this target.’.

• VQ grant ‘Taking into account the information [under Levels of grant, above], an amount of grant has been put in to make this project produce a positive npv, and there is therefore no possibility of getting this grant. See email [dated] 10/2/20, stating that this is the case. There is no financial or strategic basis for this assumed grant it is simply Development manipulating the figures to report the wrong npv.’.

• Development over value shared ownership dwellings ‘When valuing the shared ownership dwellings development take no account of grant that is paid back because of stair casing. This is a standard assumption that should be made when development appraisals are complete, but One Housing Group choose not to do this to falsely inflate the value.

• Managers take no responsibility for checking sequel, proval or sales spreadsheet ‘Two examples of these reconciliations being out is that when I met with […], I was not aware that VQ had £32m excess income and […] in the regeneration team did not know if a £250m was entered on sequel as 100% or 50%. These problems are still happening, when […] went off for his Christmas holidays. I have raised this matter in an email to […]. […] Fred Keegan, […] and I met on this subject and they decided to put the project onto Argus, this to me is a system they do not know how to use, therefore in my view they have a very poor understand [sic] of all property appraisal systems, Proval Optimix and Argus. The monthly reconciliation exercise is always a very difficult affair and some examples of projects are attached as ‘sequel update proval sales spreadsheet.’.

• Incompetence ‘The level of incompetence within the development department, especially regeneration is staging [sic]. Please see my email to Mike Johnson of the 22nd Jan, entitled papers for Ebele meeting 1 attached. Please also see my email 27th November 2019, I have neither a reply or acknowledgement from Mike. When carrying out work on VQ we are blindly following Arcades and Fairview figures, there is little understanding of the meaning of these figures and I have had to spend a considerable amount of time with […] to get this reconciled, again the level of ability in Development is pretty poor. The sales spreadsheet, sequel and proval have been attempted to be reconciled since July 2019, the level of output is pretty poor. Chalk Farm Road did not have an income of £32m for a commercial unit, it was in proval, but not in sequel. Bellamy and Byng was out by £1.9m for a large amount of time, because the cost of a commercial unit was put in the incorrect place. Ladderswood JV was in sequel as 100% and Granville was in as 50%, Granville had the affordable housing payment to the JV in the appraisal but Ladderswood did not.’.

• Intoxication in the work place [Dealt with by the tribunal in a separate paragraph below]

• Cumulative variances are not reported to DAIC or Group Board ‘The level of variance in relation to the financial regulations, is not adhered to as budgets are reset every month, therefore cost increases and profit reductions do not go to DAIC and or Group Board because it is incorrectly assumed that the budget can be reset every month, projects should go back to DAIC and or Group Board if they breach the hurdles from the original budget that was agreed by DAIC or Group Board’.

• CGY ‘When this project was presented to DAP, it was £52m out, £40m for the land value and £12m for subsidy from the GLA.’.

• Managers do not manage ‘I have been instructed to coordinate the development updates. I do not manage the staff that produce these. I have been told that I must change the formatting, chase everyone up on a regular basis who [sic] was not done and take full responsibility for the updates. This is an admin job, and it is for the managers to ensure that their staff complete these updates. Acquisitions is always late and or poor quality, there is confusion as to who signs off Megan’s, these are not checked by managers.’.

[123]In setting out the content of the 10 headings above, the tribunal has omitted the names of individuals against whom the claimant makes allegations of inappropriate conduct/incompetence etc., or which implicates the named individual in such conduct. This has been done where that individual has not been required by either party to give evidence in these proceedings, and where the specific identity of the individual is not necessary to enable the tribunal to determine the issues in this case. These individuals have not had the opportunity at this hearing to respond to the allegations which are levied against them.

[124]Under cross-examination the claimant confirmed that the two obligations which he relies upon in support of his whistleblowing claim are:(a) Health and Safety issues arising from the alleged intoxication of Mr Keegan.

(b) Alleged breach of a legal obligation by the respondent.

[125]As the claimant acknowledged, in the allegations made in his Whistleblowing Document he did not assert that Mr Keegan’s alleged intoxication gave rise to a Health and Safety issue.

[126]Under the heading, ‘Intoxication in the work place’, he stated, ‘Fred Keegan regularly attends the work place in state of intoxication, the day before I went on annual leave for one week to the Caribbean, Fred asked for a little catch up and was aggressively hostile, attached as Appendix 3 is the transcript of that meeting. I told him that I was terminating the meeting because of his hostile nature.’ The claimant then went on to make further criticism of Mr Keegan and what the claimant regards as his unfair criticism of the claimant’s work performance.

[127]Notably, the claimant does not state that he complained about Mr Keegan’s alleged intoxication when he told Mr Keegan that he was terminating the meeting because of Mr Keegan’s alleged, ‘hostile nature’. The claimant and Mr Keegan had a previous good friendship of some length. It is not immediately clear why the claimant felt able to tell Mr Keegan to his face that his behaviour was hostile, but that he was not able to tell him at the same time that Mr Keegan was intoxicated. If Mr Keegan had been intoxicated, the allegations of hostile behaviour and intoxication would seem to go together naturally.

[128]The tribunal is satisfied that the claimant did believe that his disclosure of information in respect of financial matters tended to show that there had been a breach of financial regulations imposed by the Social Housing Regulator. This concerned project funding and the application of public funding/grants. This is not to say that the claimant was right in this belief, it is simply to acknowledge that it was his belief.

[129]During cross-examination, it was clear that the claimant’s belief about the nature of problems in respect of project funding and the application of public funding/grants is heavily contested by the respondent. The respondent does not accept that the claimant’s analysis of the data is correct. When Hilary Milne received the Whistleblowing Disclosure

[130]Ms Milne promptly contacted the claimant to acknowledge his complaint and to set up a meeting with him. The meeting was set up for 14 February 2020.

[131]When sending his Whistleblowing Disclosure to Ms Milne, the claimant cc’d Ms Akojie into the email. In the circumstances of this case, Ms Akojie was not one of those nominated to receive the claimant’s whistleblowing complaint under the respondent’s whistleblowing policy.

[132]There was an email exchange and discussion between Ms Milne and Ms Akojie. Ms Milne reminded Ms Akojie in writing of the requirement of confidentiality concerning the whistleblowing claim. There is no evidence that Ms Akojie breached that confidentiality.

[133]The meeting between the claimant and Ms Akojie which had been scheduled for 10 a.m. on 11 February 2020 did not take place.

[134]On 11 February 2020, Ms Milne informed Richard Hill (the respondent’s CEO) of the whistleblowing allegation. In oral evidence Ms Milne initially suggested that she told Richard Hill about the whistleblowing allegation because it was, ‘normal practice’ to do so. Under cross-examination Ms Milne accepted that there is nothing in the respondent’s whistleblowing policy which required her to tell Mr Hill about the allegation.

[135]It is unfortunate that Ms Milne decided to inform Mr Hill without adequate regard for the respondent’s Whistleblowing Policy. It is clear that Ms Milne did not in fact appreciate that under the Policy, the respondent’s CEO was not a person who was routinely required, or appropriate, to be informed of a whistleblowing allegation. This is perhaps an issue which might not have arisen had Ms Milne received training for her Whistleblowing Officer role.

[136]When Ms Milne informed Mr Hill about the whistleblowing she volunteered to the tribunal that she told Mr Hill that he should not discuss this with Mr Johnson. It has been suggested that the fact that she did so indicates that she had no confidence in Mr Hill’s integrity.

[137]In the tribunal’s judgment, the warning from Ms Milne to Mr Hill indicates that Ms Milne took seriously the obligation of confidentiality. She was disclosing the whistleblowing complaint to a person whom she believed it was proper to inform. In the circumstances Ms Milne was taking what steps she could to emphasise the importance of confidentiality. Mr Johnson was the head of the department in which the complainant worked, and on which the whistleblowing allegation focussed. Mr Johnson reported directly to Mr Hill. Mis Milne’s reminder to Mr Hill that he should not discuss the whistleblowing complaint was not a judgment on Mr Hill’s integrity.

[138]Within the respondent’s then current whistleblowing policy, two points of contact were nominated. The first was the whistleblowing officer, Ms Milne. The second point of contact was Rommel Pereira. Ms Pereira was the Chair of the Audit and Risk Committee. Under paragraph 4.5 of the Whistleblowing policy, the Chair of the Audit and Risk Committee is advised if a whistleblowing issue has been raised.

[139]At 9.38 a.m. on 11 February, Ms Milne emailed Ms Pereira to inform her that a whistleblowing allegation had been made by a member of the development team. Ms Milne told Ms Periera that Ms Akojie and Mr Hill knew of the allegation, ‘Otherwise, this will remain strictly confidential including from the other members of the executive team’.

[140]There is no evidence which could found either a direct finding, or a finding by inference, that either Ms Milne, Ms Akojie, or Ms Pereira breached their obligation of confidentiality.

[141]In respect of Mr Hill, his observation of confidentiality was imperfect on 04 March 2020 when, as set out later in this judgment, he confirmed Mr Johnson’s guess that the whistleblower was the claimant. There is no evidence that Mr Hill breached confidence as to the identity of this whistleblowing complainant on any other occasion.

[142]Similarly, there is no evidence which could found either a direct finding, or a finding by inference, that Ms Milne, Ms Akojie, Mr Hill, or Ms Pereira (who all had knowledge of the whistleblowing allegation), sought to influence behind an invented reason any other person who had responsibility for making decisions in respect of the claimant’s employment. Claimant’s difficulties accessing the respondent’s IT systems on 11 February 2020

[143]The claimant alleges that on or around 11 February:(a) his profile was deleted from the respondent’s property appraisal system, and;

(b) he was blocked from accessing the respondent’s computer systems Sequel and Citrix, while being given no information about who had authorised this or why.

[144]During the week commencing 10 February 2020 the claimant was, in his words, ‘off sick’.

[145]Under cross-examination the claimant acknowledged that he had no documentary evidence to support his allegation that someone had deleted his profile. He told the tribunal that, ‘My assumption is that someone deleted’ his profile.

[146]The claimant explained to the tribunal that it was impossible for him to see the respondent’s ICT team if he was not in the office. When he discovered that his profile had been deleted, he went to ICT to understand why he could not get into it. The claimant says that the ICT team told him that it, ‘…must not exist. They said you must have been deleted. They reinstated it.’.

[147]No technical evidence was adduced to the tribunal concerning the deletion of the profile and how it came about. There is no evidential basis to attribute it to the deliberate act of any individual or organisation.

[148]Insofar as the claimant had difficulty accessing the respondent’s IT systems, there is no technical evidence to indicate the cause of the claimant’s difficulties. It appears that the difficulties coincided with the claimant working from home.

[149]At 15.34 on 11 February 2020, Mr Keegan reported to his colleagues Ms Dent and Mr Johnson that he had just spoken to the claimant who had told him that he would not be able to attend the 1-1 meeting between himself and the claimant which had been scheduled for the next day 12 February 2020.

[150]The claimant told the tribunal that pre-covid, he had probably worked 100% of the time from the office.

[151]At 15.47 Ms Dent replied to Mr Keegan’s earlier email and suggested, among other things, that ‘We need to be clear that he is not working from home as he may continue to communicate with staff inappropriately if he’s ‘working’ ‘.

[152]At 15.56 on 11 February 2020, Mr Keegan replied to Ms Dent, cc’ing to Mr Johnson. His reply includes the following: ‘[The claimant] indicated earlier that he would be working and that the issue was one of mobility. This is why he was going to see ICT earlier (issue with accessing computer working from home)…’.

[153]Mr Keegan’s email then goes on explain that he told the claimant to take between then and the following Friday as sick leave and not be worried about work. Ultimately, the claimant’s reply was ‘Okay, your decision’.

[154]It is relevant that when ,on 26 March 2020, Mr Keegan wished to block the claimant’s access to his work account, he had to contact Izzet Guran the respondent’s IT programme director. There is an email trail to this effect, including the other 2 colleagues whom Mr Keegan had to contact. There is no equivalent in respect of 11 February 2020.

[155]As set out later in this judgment, on 26 March 2020, Mr Keegan’s first email request was made to Izzet Guran at 10.24. It was not acted upon until 20.25 that day. His request went through three individual members of the respondent’s staff before finally being acted upon. It appears that de-activating a colleague’s access to the respondent’s IT system is not a straightforward matter.

[156]It seems from Mr Keegan’s 11 February email to be more likely than not, that the claimant described his problem in terms of an issue accessing the computer ‘…working from home’.

[157]There is no evidence that Ms Milne, or any her colleagues who learned of the whistleblowing complaint on 11 February, sought that day to interfere with the claimant’s IT access. There would in any event have been no obvious reason for them to do so.

[158]On the evidence presented, the tribunal finds that whatever difficulties which the claimant had with his IT, including access to the respondent’s IT systems and his profile, they were in no sense whatsoever related to the fact that the claimant had made a whistleblowing complaint. Request made that the claimant have a meeting with Mr Keegan

[159]At 15.53 on 11 February the claimant emailed Asmeret Haile of HR and told her that Mr Keegan wanted to do a 1 to 1 with him on Friday and that the claimant felt very uncomfortable about it. He asked her to speak with Mr Keegan as soon as possible.

[160]Asmeret Haile replied on 12 February at 8.49 to say that work commitments meant that she could not speak with the claimant that day. Nonetheless she said that she, ‘…would encourage you to come in and speak with Fred. If you are still uncomfortable, please do let me know.’

[161]There is no evidence that at this point in time Asmeret Haile knew of the whistleblowing complaint. There is no direct evidence, or safe inference to be drawn from the facts, that Asmeret Haile had been manipulated either directly or indirectly by any person with knowledge of the whistleblowing claim, into encouraging the claimant to attend a meeting with Mr Keegan.

[162]At 09.53 on 12 February the claimant responded: ‘I am very uncomfortable speaking to the bully about this.’

[163]Following the claimant telling Mr Keegan that he could not attend the 1 to 1 meeting with him which was scheduled for the morning of 12 February, the claimant emailed Mr Keegan at 13.49 on 12 February. In his email he requested that the meeting be rescheduled for 13 or 14 February.

[164]The claimant responded at 13.56 on 12 February 2020. He told Mr Keegan that he had scheduled a meeting between the two of them at 2pm on Friday 14 February. Mr Keegan responded to say that Friday would work, if the meeting was by telephone. The claimant responded, ‘Sounds good to me’.

[165]In fact the meeting did not take place on 14 February because the claimant had left the office early because of back pain. Mr Keegan agreed with the claimant that he would jot down some of the things which he would have raised at the meeting and send them to the claimant. Mr Keegan did so by email dated 14 February which he sent at 16.51. ‘Without prejudice’ meeting on 12 February 2020

[166]At 17.16 on 11 February, the claimant emailed Mr Keegan to tell him that he would rather not be off sick on 12 February but that he had a hospital appointment in the morning and would come in as soon as possible afterwards.

[167]At that point Mr Johnson, Ms Dent and Mr Keegan had a discussion. The outcome of that discussion was that there should be a meeting with the claimant on 12 February. Mr Marcantoni had reported that the claimant had threatened to resign. Consequently, it was decided that a without prejudice meeting should be held with the claimant to give him the opportunity to leave his employment on agreed terms.

[168]It was decided that it should be attended on behalf of the respondent by Mr Johnson and a member of the respondent’s HR team, Hilary Judge. It was thought that because the claimant had raised a grievance against Mr Keegan on 10 February, that it was more appropriate for Mr Johnson rather than Mr Keegan to attend the meeting.

[169]The rationale for the meeting was what were perceived as the problems caused within the development team by the claimant’s behaviour. This included among other things, Mr Keegan’s performance concerns and the claimant’s comments to Mr Marcantoni and Mr Keegan on 07 February 2020.

[170]Mr Johnson’s concerns included the impact on the team by what he understood to be the claimant ‘ranting’ at colleagues about how poor he felt that the team was. Mr Johnson told the tribunal that, ‘The claimant had on that Friday afternoon [07 February] been shouting that we were all rubbish and didn’t know what we were doing.’. Mr Johnson had not been present when the claimant spoke with Mr Marcantoni. His evidence reflects the impact on his thinking of the information which he received following the encounters between the claimant and Mr Marcantoni and Mr Keegan on 07 February 2020.

[171]The role that the claimant performed involved a significant interaction with a number of people on the team. Mr Johnson was concerned at what he called the ‘rant session’ and he told the tribunal that he considered this, ‘…to be the culmination of a lot of poor behaviour’.

[172]There is some dispute about whether or not the meeting with the claimant on 12 February 2020 was in fact without prejudice. Similarly, there is some disagreement about what precisely was said at the meeting. Unfortunately, and perhaps surprisingly, no notes were made of the meeting at the time or immediately after. The tribunal is unable to be certain about what precisely was said.

[173]What is clear from both the claimant’s and the respondent’s account however, is that the respondent intended the meeting to facilitate the claimant’s departure from his employment with it. The respondent’s admitted rationale for holding the meeting in the first place, was to try to secure the claimant’s departure on agreed terms.

[174]There is a difference of emphasis in the parties’ assertions as to what happened at the meeting. The claimant suggests that there was a blunt exchange where he was told that he had no future with the respondent and that he could have two months’ notice and leave the respondent’s employment or face investigation into his behaviour and performance. Mr Johnson and Ms Judge do not accept this account. Mr Johnson suggests that no specific terms of an offer for the claimant’s departure were put to him.

[175]Regardless of the difference in the detail of the accounts, it is clear that by 12 February, influential members of the Development Team wanted the claimant to depart. The relationship between Mr Keegan and the claimant had broken down irreparably. As noted above, in his written statement Mr Johnson himself says that it had been clear in his own mind ‘from as early as 07 February’ that based on what he was hearing from Fred Keegan, ‘the business was better off without [the claimant]’.

[176]The fact that by 12 February the respondent wanted the claimant to depart is supported by the claimant’s account of the meeting. Whether he is right or wrong about the actual words used at the meeting, the claimant conveys a very strong impression that it was clear to him at the meeting that the respondent no longer wanted him as an employee.

[177]The tribunal finds that by 12 February 2020, it was not a matter of if, but when, the claimant’s employment would be terminated.

[178]Significantly, the tribunal also finds that there is no evidence from which it could make a direct finding, or draw an inference, that either Mr Keegan, Mr Johnson, Ms Dent, Ms Judge, or any other relevant person, knew at that time that the claimant had made a whistleblowing complaint.

[179]Similarly, the tribunal finds that there is no evidence from which it could make a direct finding, or draw a safe inference, that the people who did know about the claimant’s whistleblowing claim sought to manipulate any other person in order to influence decisions made in respect of the claimant’s employment with the respondent. This finding covers the entire period of the claimant’s employment from the time he made the whistleblowing complaint, to when he finally left the respondent’s employment on termination of his contract.

[180]The decision to try to secure the termination of the claimant’s employment was made entirely independently, and in ignorance of, the whistleblowing allegation.

[181]By 12 February 2020, the relationship between the claimant and Mr Keegan had deteriorated beyond repair. Mr Keegan was influential. His opinions of the claimant’s performance and conduct were respected by Mr Johnson who was the head of the Development Department.

[182]By 12 February 2020, Mr Johnson had decided on the basis of his interactions with, and reports from, Mr Keegan and Mr Marcantoni, that the respondent would be better off without the claimant.

[183]None of this was caused by, or influenced by, the claimant making his whistleblowing complaint on 10 February 2020.

[184]This state of affairs had been developing over a period of months. The events of 07 February 2020 represented a watershed moment.

[185]By 12 February 2020, the tribunal finds that the die was cast. It was no longer a matter of if, but when, the claimant’s employment would be terminated for reasons unrelated the whistleblowing complaint.

[186]The negative view of the claimant which had been formed by Mr Keegan and Mr Johnson was rooted in concerns about the claimant’s performance and behaviour. These were to persist. Ms Milne’s reassurance about confidentiality

[187]On 13 February 2020 the claimant contacted Ms Milne by email to express his concerns about things which had happened since he had made his whistleblowing complaint. The following were the matters identified:• He had been told to have a 1 to 1 with Mr Keegan whom he had accused of bullying;

• He had been called to a protected status meeting with Mr Johnson and Ms Judge;

• His profile credentials had been deleted on the property appraisal system;

• He had been blocked out of many computer systems such as sequel and citrix and nobody had any information on who ordered this;

• He had been pretty much told that there was no future for him within the respondent.

[188]Ms Milne responded the same day and assured the claimant that any whistleblowing allegations were dealt with entirely separately from HR matters. She told the claimant that his allegations were entirely confidential and that no Development or HR or other staff were aware, unless the claimant had told them. The claimant thanked Ms Milne for her reassurance. Whistleblowing Policy

[189]The respondent’s whistleblowing policy includes the following:• Whistleblowing officer will arrange a meeting with whistle blower as soon as possible to discuss concerns [para 4.3];

• A written summary will be made of your concern. You will be provided with a copy after the meeting. You will also be given an indication of the intended next steps for dealing with the matter [para 4.4];

• Once a concern has been raised, an initial assessment will be undertaken to determine the scope of any investigation. The individual raising the issue will be informed of the outcome… [para 6.1];

• Every effort will be made to keep the whistleblower informed of the progress of the investigation and its likely timescale...All information about the investigation should be treated as confidential [para 6.3]. Ms Milne’s meeting with the claimant on 14 February 2020

[190]Ms Milne’s first meeting with the claimant took place on 14 February 2020. She took notes of the meeting. She typed them as she went along. Unfortunately those notes are now not available.

[191]Ms Milne has carried out IT searches but is unable to locate them. To add to this unhappy state of affairs, Ms Milne had to move out of her house for 6 months between October 2021 and April 2021. During that period she disposed of many things and fears that the hard copy of her notes may have been lost at that time.

[192]At the meeting there was a misunderstanding as to the taking of notes. Ms Milne does not remember precisely but believes she said something along the lines of, ‘Don’t worry about taking notes as I will make notes as we go through.’ The claimant understood that she was asking him not to take notes because he would be supplied with a copy of the claimant’s notes.

[193]The parties were at cross-purposes. Ms Milne never intended to say that the claimant should not take notes or promise to provide the claimant with a copy of her notes. It is easy to see however, how the claimant might have thought that she was telling him not to take notes.

[194]One feature which is evident in Ms Milne’s handling of this whistleblowing complaint, is that Ms Milne exhibited administrative weaknesses in dealing with the complaint. Most prominently in her failure to comply with paragraph 4.4 of the Whistleblowing Policy. This required her to make a written summary of the claimant’s concern and to provide him with a copy after the meeting. She didn’t do so.

[195]Ms Milne in her statement sought to suggest that the requirement to prepare and provide a written summary was a technicality. The explanation given in her statement does not withstand scrutiny. Ms Milne sought to suggest that she was somehow absolved of the obligation because, ‘…the claimant had already provided that in the emails and attachments he sent to me by email’. This is quite clearly wrong. It conflates the whistleblowing complaint with the entirely separate duty imposed on the Whistleblowing Officer to provide a written summary.

[196]The tribunal does not view this failure as intentionally malign or intended to undermine the process of investigating the complaint. It seems to the tribunal more likely that Ms Milne was intending to reduce her administrative tasks believing that the obligation could be finessed away. Her failure to provide a written summary was in no sense whatsoever on the ground that the claimant had made a whistleblowing disclosure.

[197]In this context, the tribunal finds it inherently unlikely that Ms Milne agreed to give the claimant a copy of her notes. The tribunal is unsurprised to learn from Ms Milne that she does not routinely provide copies of her notes to complainants. There is no obligation in the Whistleblowing Policy for her to do so. Claimant and Mr Keegan – mutual investigations

[198]On 17 February 2020, Rowena Clements (Assistant Director, Property and Asset Management) was appointed to investigate the claimant’s concerns about Mr Keegan. The claimant was informed of her appointment by email on 20 February. He acknowledged the email on the same day.

[199]On 27 February Hilary Judge wrote to Izzet Guran. Mr Guran was the respondent’s Director of Digital Transformation. Ms Judge noted that, ‘…you have agreed to undertake an investigation into areas of concern around Mike Cameron’s behaviour in the office over recent weeks. Can I suggest you refer to the Disciplinary Procedure and the Code of Conduct…before starting this process, and speak initially to Fred [Keegan] to commence the process.’.

[200]The 27 February email from Hilary Judge to Izzet Guran is significant in the context of the ultimate termination of the claimant’s employment. At the 27 February 2020 Ms Judge still knew nothing about the claimant’s protected disclosure. Nonetheless, Ms Judge was pursuing an investigation into the claimant’s behaviour. The momentum against the claimant after 07 February continued to grow. This momentum was not driven by people who at that time knew about the whistleblowing allegations. There is no evidence that these people had been manipulated by anyone who did know about the whistleblowing allegations.

[201]On 02 March 2020, the claimant postponed his meeting with Ms Clements and Ms Judge. He told them that, ‘…taking into account the communication that I have had with Hilary. I would like to postpone our meeting as I will be taking advice and would like to have someone accompany me to the meeting.’. As noted later in this judgment, there is disagreement as to when Ms Judge in fact became aware that the claimant was not intending to meet Ms Clements and Ms Judge on 10 March 2020. The progress of the whistleblowing claim

[202]Following his meeting with Ms Milne on 14 February, the claimant followed up with further documents which he sent by email.

[203]A second meeting was arranged between Ms Milne and the claimant. It was scheduled for 02 March 2020. Shortly before the meeting, the claimant sent Ms Milne a further two financial allegations which he wished to make. This was not seen by Ms Milne until after the meeting and she immediately followed it up in writing.

[204]It is alleged by the claimant that at the meeting on 02 March 2020 when he was taking notes, Ms Milne ‘forcefully told me not to take notes as she was taking verbatim notes’. The claimant told the tribunal that he didn’t take notes because, ‘When someone that senior says no need to take notes you feel forced not to take notes’.

[205]The tribunal does not accept the claimant’s evidence on this point. It refers to its findings in respect of the meeting on 14 February 2020. Ms Milne avoided preparing a written summary as required by the Whistleblowing Policy. There is no requirement in that policy for her to provide notes. She does not usually give copies of her notes to whistleblowing complainants. She hadn’t provided the claimant with her notes from the hearing on 14 February. It stretches credibility to suggest that she should ‘forcefully’ direct him not to take notes on the basis that she would provide him with her notes. There would be no reason for her to do so, and she did not do so.

[206]The claimant could in any event make his own notes of the meeting afterwards. He did that in this case.

[207]On the claimant’s account, during the meeting on 02 March 2020 Ms Milne placed pressure on him to keep his complaint confidential. He says that he resisted this, and he pointed out that the Whistleblowing Policy encouraged complainants not to make complaints anonymously. Plainly the claimant was able to answer Ms Milne back. He was not previously shy in expressing his negative views of colleagues. The tribunal does not accept that he felt cowed into complying with a forceful demand from Ms Milne that he should not take notes.

[208]At the meeting on 02 March 2020, Ms Milne took the claimant through her investigation up to that point and her next steps.

[209]The tribunal finds Ms Milne did not pressure the claimant to keep his protected disclosure confidential. She expressed to him her view in principal that he should keep things confidential. She did not impose pressure on him, or behave improperly in expressing her opinion on confidentiality to the claimant. Her conduct in doing so was in no sense whatsoever on the grounds that the claimant had made a protected disclosure. Ms Milne simply thought that it was good practice. Allegation that claimant intoxicated

[210]In her statement, Ms Milne says that the claimant told her that he had been ‘working drunk’ until about 6 months before. The claimant vigorously denies that he told her this. Under cross-examination Ms Milne insisted that this had been said.

[211]On 02 March 2020, after her meeting with the claimant, Ms Milne contacted the respondent’s Head of HR, Ms Dent. She repeated to Ms Dent the suggestion that the claimant had acknowledged ‘working drunk’ until about 6 months before. Ms Dent asked Ms Milne to put the matter in writing. On 03 March 2020 Ms Milne sent an email where she repeated the allegation. She told Ms Dent that she had informed the claimant that she would have to inform HR.

[212]Following Ms Milne’s email to Ms Dent, on 04 August 2020 Hilary Judge updated Izzet Guran who was investigating the claimant’s behaviour. She told him that concerns had been brought to the attention of HR that on an unspecified date both the claimant and Mr Keegan had returned to work having consumed alcohol and in a drunk state. Ms Judge asked Mr Guran to address these concerns with both the claimant and Mr Keegan.

[213]On the evidence presented, the tribunal does not find the allegation that the claimant had admitted working drunk to be proven to the requisite standard of proof.

[214]It is a very serious allegation. It is also surprising that such an admission should be made by the claimant at a meeting where he was discussing his whistleblowing allegation with the Whistleblowing Officer. On the claimant’s own note of the meeting, which was prepared on an unknown date after his meeting with Ms Milne on 02 March, the claimant notes being told that he was being reported to personnel for being intoxicated at work.

[215]Clearly there was some discussion about the claimant drinking, but nuance, precision, and context is vital as to what is alleged to have been said. The allegation is denied by the claimant in the strongest terms, and the contemporaneous notes made by Ms Milne are not available.

[216]In all the circumstances, on the evidence presented, the tribunal does not find the allegation that the claimant had admitted working drunk to be proven to the requisite standard of proof. Whistleblowing investigation – persons interviewed

[217]Following her meeting with the claimant on 02 March 2020, Ms Milne reviewed his concerns. Ms Milne then made appointments on 02 March 2020 with a number of people who were relevant to the investigation of the claimant’s allegations. Ms Milne had individual meetings with them the next day, 03 March 2020. The individuals whom Ms Milne interviewed on 03 March 2020 were:• Fiona Lovering (Senior Development Manager)

• Saba Choudhury (Head of Acquisition and Planning)

• Mr Keegan Others learn about Whistleblowing

[218]On 03 March 2020 at 04.01 the claimant emailed Rommel Pereira. He wrote to express his dissatisfaction with the treatment of his whistleblowing allegations. He wanted to speak with Ms Pereira because he thought that, ‘…these matters are not being given the due consideration they require...I allege that my concerns are not being taken seriously or being adequately investigated’.

[219]Rommel Pereira was one of the handful of individuals who at the time knew about the whistleblowing allegations. The claimant also cc’d his email to Hilary Judge of the HR department. Until receipt of the claimant’s email, Ms Judge was entirely unaware of the whistleblowing complaint.

[220]Following receipt of the email, Ms Judge in turn forwarded it to her colleagues, Ms Dent, and to Ria Bailes who was Group Director of People and Change.

[221]On 04 March 2020 Mr Johnson was called to a meeting with the respondent’s CEO, Richard Hill. During the course of that meeting Mr Hill told Mr Johnson that Hilary Milne was going to speak with him because of whistleblowing. At that point Mr Johnson swiftly guessed that the whistleblower was the claimant. As he told the tribunal, ‘…because of the rant and other instances, it was fairly clear where it was coming from.’. As Mr Johnson put it, when he guessed that the whistleblower was the claimant, Mr Hill did not, ‘…disabuse me of my guess.’.

[222]When told that the whistleblowing officer wished to speak with him, it was natural that Mr Johnson should be curious as to the identity of the whistleblower. In all the circumstances, it is unsurprising that he should have guessed that it was the claimant. It is unfortunate that Mr Hill did not refuse to entertain any discussion or guesses about the identity of the whistleblower.

[223]The tribunal finds however, that there is no evidence that Mr Hill sought to influence Mr Johnson’s decisions about the claimant’s employment. This is perhaps an illustration of Ms Milne’s description to the tribunal of Mr Hill as a man, ‘…who does not micromanage and is not a details person’. Investigation of Claimant’s grievance

[224]02 March 2020, a grievance meeting was scheduled for 10 March 2020. The respondent believed that the claimant accepted the invitation to the meeting electronically at 15.36 on 02 March 2020.

[225]On 02 March 2020 at 15.58 the claimant sent an email to Rowena Clements, cc’ing Ms Judge. He wrote, ‘Taking into account the communication that I have had from Hilary, I would like to postpone our meeting as I will be taking advice and would like to have someone accompany me to the meeting.’.

[226]The claimant did not mention in this email that he was unable to attend a meeting on 10 March 2020 because it had been scheduled on a date when he was on holiday.

[227]The claimant’s wife had communication with Mr Keegan during early March. In an email dated 09 March 2020 the claimant’s wife informed Mr Keegan that she was, ‘Not sure what the hearing that is happening tomorrow covers because no notice of any meeting/hearing has been received therefore Mike will not be there’.

[228]Arising from his communication with the claimant’s wife, Mr Keegan made contact with Hilary Judge on 10 March 2020 and it became clear that a meeting on 10 March could not go ahead because the claimant and his wife were away on holiday.

[229]On the evidence heard by the tribunal that there has been genuine confusion about whether/when the 10 March 2020 grievance hearing was cancelled. A suggestion was advanced that the claimant’s 02 March postponement email may have related to another meeting. No calendar evidence has been presented which might conclusively resolve this confusion. The tribunal is satisfied that Ms Judge genuinely believed that the matter remained scheduled for 10th March 2020. It is a mark of that genuine belief that in her 10 March email to the claimant she complained about his non-attendance at the meeting that day.

[230]What is indisputable is that the grievance meeting on 10 March 2020 could not go ahead. The question of re-scheduling was addressed by Ms Judge in an email to the claimant on 10 March. She wrote: ‘I understand that you are currently on annual leave, but we intend to arrange this grievance to take place on your return to work.’.

[231]A combination of annual leave and sick leave meant that the claimant did not thereafter return to work prior to the respondent’s decision to terminate his employment. Consequently, no grievance meeting or investigation did take place.

[232]The claimant returned to work on 26 March 2020. Ms Judge learned that day that the decision had been taken to terminate his employment. Consequently, Ms Judge did not reschedule the grievance meeting. On 30 March 2020, the claimant received the letter terminating his employment.

[233]In her original scheduling of the grievance meeting for 10 March 2020, Ms Judge did not notify the claimant of the date of the meeting in advance of scheduling it. Ms Judge explained that when she schedules meetings, her practice is not to check the proposed participants’ leave calendars in advance of fixing a date. She told the tribunal that she checks that the Chair is free on the proposed date. Meetings are booked electronically and Ms Judge’s expectation is that any person who cannot attend will decline the invitation. Ms Judge will then reschedule the meeting.

[234]Ms Judge did not deliberately schedule the grievance meeting for a day when she knew that the claimant would be on holiday. She scheduled the grievance meeting in compliance with her normal practice.

[235]Ms Judge entered the 10 March 2020 meeting into the calendar on 02 March 2020. This was before she became aware of the whistleblowing complaint made by the claimant. The scheduling of the meeting was in no sense whatsoever on the ground that the claimant had made a protected disclosure. Completion of Ms Milne’s work

[236]When Ms Milne had concluded her interviews with relevant individuals on 03 March 2020, she set about concluding her initial assessment.

[237]By 12 March 2020 she was ready to meet with Mr Johnson who was the head of the department from where the concerns which were raised in the whistleblowing complaint had originated. Ms Milne explained her assessment and her recommendations to strengthen internal processes. Mr Johnson agreed with her recommendations.

[238]On 13 March 2020 Ms Milne emailed Stewart Davenport who was Chair of the respondent’s Development and Investment Committee, and also a Board member. Ms Milne attached a document which was headed ‘Summarised Findings’ in respect of the whistleblowing allegations raised within the email dated 10 February 2020.

[239]Ms Milne reported to Mr Davenport that, ‘I have found nothing in the allegations that falls within the scope of the WB policy. I have however made three recommendations…’.

[240]The respondent’s Whistleblowing Policy at paragraph 6.1 requires that following the initial assessment, ‘The individual raising the issue will be informed of the outcome.’ No format is specified for this notification of outcome. It is clear that it does not have to be in writing. Where the Whistleblowing Policy does require something to be set out in writing, it says so.

[241]The claimant complains that he, ‘…should have been provided with a detailed written outcome of the initial assessment of the matters I had raised’. He describes this omission as a, ‘…breach of the Respondent’s own policies.’. These assertions are based on a misreading of the respondent’s Whistleblowing Policy.

[242]Ms Milne scheduled a meeting with the claimant at 8.30 a.m. on 13 March 2020. The purpose of the meeting was to discuss Ms Milne’s conclusions following her initial assessment. The claimant did not attend the meeting. Ms Milne emailed the claimant at 08.33 to tell him that she was expecting to meet him at that time.

[243]Ms Milne followed up with an email. It was sent to the claimant at 1pm on 13 March 2020. The email is short. Its entire substance is as follows: ‘We had a meeting in the diary to discuss your whistleblowing allegations this morning but you did not attend so this email is to update you on my initial assessment. I have now completed my assessment which I have also shared with the Chair of the Audit and Risk Committee, Rommel Pereira. The outcome of the assessment is that I have found nothing that falls within the scope of the Whistleblowing Policy. I have however made 3 recommendations which are intended to strengthen processes. The Chair of ARC has agreed with my assessment and the recommendations. The matter is now closed. If you are not happy with the outcome you can raise the matter with the Chair of the Audit and Risk Committee.’

[244]The Whistleblowing Policy required that the claimant should be, ‘…informed of the outcome.’. Ms Milne complied. She informed the claimant of the outcome. The outcome being that Ms Milne, ‘…found nothing that falls within the scope of the Whistleblowing Policy’.

[245]Ms Milne took a total of 2½ lines to inform the claimant of the outcome of his whistleblowing complaint. While there was no obligation on her to do so, it is arguably unfortunate that in her email informing the claimant of the outcome, she did not offer the claimant a final opportunity to discuss the outcome with her.

[246]The claimant did not respond to either of the two emails sent to him by Ms Milne on 13 March 2020. The claimant told the tribunal that at the time he was not aware that a meeting had been scheduled with Ms Milne for the morning of 13 March. He said that he didn’t get the email.

[247]The claimant is unhappy with the investigation which was carried out by Ms Milne. He told the tribunal that, ‘I think there was a failure to make it a comprehensive investigation and to make a substantial report. I think it was brushed under the carpet and a thorough investigation was not carried out.’.

[248]On 08 April 2020, the claimant complained in writing to Rommel Pereira, the Chair of the Audit and Risk Committee [‘ARC’]. He asserted, among other things, that his claims had not been investigated reasonably. Ms Pereira replied on 21 May 2020 and informed the claimant that at their meeting on 30 April 2020, the Audit and Risk Committee had reviewed Ms Milne’s initial assessment report and agreed with the conclusions and proposed actions.

[249]There may be aspects of the way in which Ms Milne performed her task which were unsatisfactory, not least her approach to providing a written summary. Ultimately however, Ms Milne’s task was to investigate the complaint and to prepare an initial assessment. She did that.

[250]Ms Milne’s initial assessment report was reviewed by the ARC which agreed with the assessment’s conclusions and proposed actions. As a direct consequence of Ms Milne’s assessment report and recommendations, the respondent instructed KPMG to prepare a report on certain matters. These included, Bellamy and Byng; Scheme Appraisal Process; and Staircasing at Canning Town. Claimant’s employment post 10 March 2020

[251]From 09 March 2020 until his employment was terminated the claimant was on leave. It was a combination of annual leave and sick leave. On 19 March 2020 the claimant submitted a fit note. It recorded his condition as ‘stress at work’. The period when the claimant would not be fit for work was stated on two bases. It was either ‘2 weeks’ or from ‘12/03/25 to 25/03/25’. Mr Keegan read the fit note as 2 weeks from 19 March 2025. This would have meant that the fit note expired on 02 April 2025.

[252]The covid national lockdown commenced on 23 March 2020. This put the respondent under new pressures. Mr Johnson comments, ‘…the Government were issuing new guidance every day and the business had to continuously adapt and make changes. The respondent also has a large care arm with front line workers needed to care for its vulnerable customers. This created unanticipated major new demands for the business – making arrangements to safeguard its colleagues and customers, while ensuring that service delivery could continue’.

[253]On 26 March 2020 at 08.15 the claimant emailed Mr Keegan to say that he was, ‘now back off sick leave’. This was unexpected and unwelcome news to Mr Keegan. On his own interpretation of the fit note, Mr Keegan believed that the claimant would not be returning to work until 03 April 2020.

[254]There followed an exchange of emails between Mr Keegan and the claimant about the meaning of the fit note. At 09.24 on 26 March 2020 Mr Keegan emailed the claimant. He wrote: ‘…Given your underlying heart condition and your doctor’s reason for certifying you as sick, out of concern for your welfare, we would want your doctor to confirm that you are fit to return to work.’.

[255]Later on that day Mr Keegan became aware through colleagues in the development department that the claimant was trying to access workplace IT systems. Mr Keegan was unhappy. He felt that the claimant was going against his instructions. In reality, as Mr Keegan put it, ‘…the honest truth was that we were at this point in the storm of the global pandemic and the thought of the claimant returning to work imminently was not an attractive proposition. This was because of the amount of management time that the claimant required and in light of his increased absence levels'.

[256]In the year to 25 March 2020, the claimant had been on sick leave for 13 days. Post-termination this was adjusted to 16 days after 3 days of absence in January 2020 were redesignated as sick leave. Termination of claimant’s access to IT

[257]At 10.24 on 26 March 2020, Mr Keegan emailed Izzet Guran who was the respondent’s IT director. Mr Keegan complained that Mr Cameron was on sick leave but was accessing his work email account. Mr Keegan asked, ‘Can access to this account please be blocked while Mike is on sick leave?’.

[258]It was not a quick process for Mr Keegan to secure his desired outcome. - At 17.25 on 26 March 2020, Mr Keegan sent a chasing email to Mr Guran. Mr Keegan complained that the claimant had been told by him that morning to obtain a fitness to work assessment before returning to work but that the claimant had ignored him and was trying to access work systems. - Shortly after, at 17.33 Mr Guran replied to say that he had spoken with a colleague, Tony Blows, 30 minutes before. As the claimant was on sick leave he said that an email from Ria Bailes should be sent to another colleague, Peter Swingewood, to action. Mr Guran highlighted: ‘Note: They will lose access to all applications and data, not just email’. - At 18.52 on 26 March 2020, Ms Bailes emailed Mr Guran to approve the action requested, ‘I understand that Hilary [Judge, who had been cc’d into all Mr Keegan’s emails about the claimant’s IT access that day], and Fred [Keegan] have made a request to deactivate Mick Cameron’s account due to a confidential issue that HR are dealing with...’. It is notable that by 18.52 Ms Bailes placed the request in the context of ‘a confidential issue that HR are dealing’ rather than concern about the claimant trying to access IT systems while on sick leave. Presumably by 18.52, the decision to terminate the claimant’s employment had been made, as referred to below. - At 20.25 on 26 March 2020, Mr Swingewood finally confirmed that the claimant’s account had been de-activated. Decision to terminate the claimant’s employment

[259]Mr Keegan contacted Mr Johnson on 26 March 2020 to inform him of the claimant’s intention to return to work. Mr Johnson was also perturbed at the prospect: ‘To put it simply, the Claimant returning to work on 26 March 2020 was not what anyone wanted – he was a nuisance that the business did not have the resources or inclination to spend time managing at that point in time and in the midst of a global pandemic.’. The tribunal accepts that these words reflect Mr Johnson’s genuinely held views at the time. They are consistent with his reaction to the events of 07 February. They are consistent with his participation on 12 February in the failed attempt to secure the claimant’s departure from employment with the respondent.

[260]Mr Johnson contacted Ms Dent, the head of HR to discuss the problem. Ms Dent and Mr Johnson were the decision makers who made the decision on 26 March 2020 to dismiss the claimant. Ms Dent made Mr Johnson aware that because the claimant had been employed for less than 2 years, the respondent could dismiss him without the need to follow a disciplinary or capability process as the claimant did not have ordinary unfair dismissal rights.

[261]By 26 March 2020 both Ms Dent and Mr Johnson had become aware of the whistleblowing complaint. Ms Dent on 03 March 2020, Mr Johnson on 04 March. The tribunal finds the decision to dismiss was not influenced at all by the whistleblowing complaint.

[262]On 26 March whistleblowing entered the discussions between Ms Dent and Mr Johnson only insofar as Ms Dent advised that there was some risk in dismissing the claimant at that time because both of them were aware of the protected disclosure. The risk was that the reason for dismissal might be misconstrued.

[263]Those who are aware of a whistleblowing complaint can make the decision to dismiss. What they must not do is to allow the protected disclosure to form the reason for dismissal.

[264]The tribunal is entirely satisfied that the whistleblowing complaint did not feature as a reason for the dismissal. There is ample evidence of events which took place before the decision makers knew of the whistleblowing complaint, from which it is clear that the decision to dismiss was rooted in concerns other than the protected disclosure.

[265]The impact of the national lockdown and the need to find new, effective ways of working, acted as the catalyst for a decision which had been very much in prospect since 07 February 2020.

[266]There were a variety of reasons which contributed to the decision to dismiss the claimant:• The breakdown in the claimant’s relationship with his line manager,

• Mr Keegan’s dissatisfaction with the claimant’s performance and behaviour;

• Mr Johnson’s dissatisfaction with the claimant’s performance and behaviour; Mr Johnson being influenced particularly by Mr Keegan’s reports to him, and by his own understanding/perception of what occurred on 07 February;

• Mr Johnson’s perception that the claimant’s comments about the members of the team on 07 February 2020 were harmful to the harmonious working of the team;

• The claimant’s sickness attendance record.

[267]The views of Mr Keegan were important. He did not make the decision to terminate the claimant’s employment, but his opinions were influential in forming Mr Johnson’s views.

[268]Mr Keegan’s profoundly negative views of the claimant’s performance and behaviour were formed long before the whistleblowing complaint was even made. They were also communicated to Mr Johnson long before the whistleblowing complaint was made. He was party to the conversations prior to the meeting which Mr Johnson and Ms Judge had with the claimant on 12 February.

[269]Mr Keegan did not know of the whistleblowing complaint at the time it was decided to terminate the claimant’s employment. The termination

[270]Ultimately, following Mr Keegan’s urging on 26 March, the claimant remained off work until 30 March 2020. This was the day when his employment with the respondent was terminated.

[271]Between 26-30 March, the letter terminating the claimant’s employment was prepared. It was authored by Ms Dent, with the assistance of Ms Judge. Its content and tone were blunt.

[272]There was little nuance. There was no courtesy. There was no acknowledgment of anything positive achieved in the claimant’s previous role from which he had been promoted to Senior Programme Manager. The claimant was told that he would be paid his contractual notice pay, less 5 days of overpaid holiday entitlement.

[273]The letter advised the claimant of his dismissal. It went on to offer reasons for the respondent’s decision to, ‘…exercise its right to terminate your contract of employment’.

[274]Under 3 headings, the claimant’s alleged shortcomings were detailed. In summary, it was stated that the claimant had: Your conduct in the workplace:• Demonstrated highly disruptive behaviour towards your colleagues and team members on a significant number of occasions

• Had a very heated and unprofessional conversation with Mr Marcantoni

• The Director of Regeneration notified the HR team that he had a complaint from one of his senior team members about a similarly highly unprofessional conversation with you

• A manager from another department had been appointed in February 2020 to a carry out a formal investigation into the claimant’s behaviour, but as the claimant was absent from work from 09 March 2020 an investigation did not commence

• The respondent had concerns about the claimant’s performance and capability for his role. During 1 to 1 meetings it was clear that the claimant was failing to meet agreed targets and was unable to deliver the requirements of his role

• The unprecedented challenges of the coronavirus limited managers’ and HR’s capacity to performance manage and/or discipline employees who are causing business disruption due to their conduct in the workplace Attendance Levels:

• A total of 17 days sickness absence in the last 12 months, when the average in corporate services is 1 day per year

• Conduct in taking leave and advising the claimant’s manager was not satisfactory or in line with the respondent’s sickness absence reporting procedures Your grievance

• It was alleged that he had failed to attend the grievance meeting on 10 March and made no effort to alert Ms Judge of his non-attendance. It was alleged that he, ‘…simply failed to attend’.

• The failure to attend the grievance meeting was taken as, ‘…confirmation that [the claimant] did not wish to pursue [his] grievance, and [the respondent] will not be taking any further steps in this respect’. In the light of all the above, the respondent considered that the claimant’s working relationship with his manager, peers, and other colleagues, was at an end.

[275]As the respondent acknowledges, prior to terminating the claimant’s employment the respondent did not apply the capability/performance, absence and disciplinary policies. After the termination letter

[276]On 08 April 2020, in response to a letter from the claimant, Ms Dent wrote: ‘…In my earlier letter, I clearly outlined in detail the reasons why One Housing Group Limited (OHG) has decided to terminate your employment and we are under no obligation to provide you with further evidence on any of these points. As OHG has not applied any of its employment policies and procedures as part of the process in reaching this decision, there is no need for you to be sent these documents now. The decision to terminate your employment in this manner was taken after careful consideration of the issues I outlined in my earlier letter and, as a result, our decision on this matter is final.’ The claimant’s post-dismissal invitations to Mr Keegan

[277]On 13 June 2020 Mr Keegan received a text from the claimant stating, ‘It would be good to clear the air, I’m at Queen’s Club this week, come and be my guest.’. Mr Keegan did not respond to the text.

[278]On 07 July 2020, the claimant texted Mr Keegan again, this time: ‘Are we going to chat?’. Again, Mr Keegan did not reply.

[279]On 11 August 2020, the claimant texted Mr Keegan: ‘I have 8 spaces in my box at qpr available for anyone who wants them, free vip treatment Saturday 20th August qpr v Rotherham’. Mr Keegan did not reply.

[280]The texts stopped after the respondent’s solicitor requested that the claimant stop emailing Mr Keegan.

[281]The claimant was asked in evidence about the apparent contradiction between his 12 February 2020 email to Asmeret Haile, and the texts inviting Mr Keegan to Queens Club and a VIP day at QPR. On 12 February 2020 when Asmeret Haile had encouraged the claimant to speak with Mr Keegan, the claimant replied, ‘I am very uncomfortable speaking to the bully about this.’.

[282]The claimant replied under cross-examination that: ‘He had bullied me. We had been great friends before. We lived very close together and we were close friends in the past, and we had met each other’s family. I thought maybe we could put this behind us and go back to the old relationship.’.

[283]It is difficult to reconcile this response, with the strongly worded allegations which the claimant makes against Mr Keegan of repetitive bullying behaviour. The claimant’s complaint to the respondent’s Regulator

[284]In September 2020 the claimant raised a complaint with the Social Housing Regulator. The complaint was about the respondent. In support of his complaint, the claimant sent the Regulator his whistleblowing allegations.

[285]The Regulator disregarded allegations about employment related matters which it said were outside the scope of the Regulator.

[286]Other matters were however regarded as falling within the scope of the Regulator. Consequently, the Regulator began a decision-making process. Following consideration of the information provided by the claimant and the response of the respondent, the Regulator decided to take no further action. Other evidence relevant to protected disclosure

[287]In his Whistleblowing Disclosure document, under the heading ‘Cumulative variances are not reported to DAIC or Group Board’, the claimant referred to, ‘The level of variance in relation to the financial regulations…’. The relevant financial regulations were not identified in the Whistleblowing Disclosure.

[288]It is now said on behalf of the claimant that the ‘financial regulations’ represent the relevant legal obligation which has been breached by the respondent. The claimant asserts that the relevant financial regulations are those set out below which have been promulgated by the respondent’s regulator pursuant to section 194 of the Housing and Regeneration Act 2008.

[289]The respondent is regulated by the Regulator of Social Housing. As such, the respondent is subject to the Regulator’s, ‘Governance and Financial Viability Standard’. The extract relied upon by the claimant is as follows: ‘2.2 Registered providers shall ensure that they manage their affairs with an appropriate degree of skill, independence, diligence, effectiveness, prudence and foresight. 2.3 Registered providers shall communicate in a timely manner with the regulator on material issues that relate to non-compliance or potential non-compliance with the standards. 2.4 Registered providers shall ensure that they have an appropriate, robust and prudent business planning, risk and control framework. 2.4.1 The framework shall ensure:(a) there is access to sufficient liquidity at all times

(b) financial forecasts are based on appropriate and reasonable assumptions

(d) the financial and other implications of risks to the delivery of plans are considered

(e) registered providers monitor, report on and comply with their funders’ covenants’.

[290]A breach of the ‘Governance and Viability Standard’ may result in a regulatory judgment and regulatory downgrade against the defaulting party.

LAW

[291]The tribunal is grateful for the diligence and assistance of both counsel in their preparation of very helpful and thorough written submissions on the law. There are very many cases cited in those submissions. The tribunal has read the submissions with care albeit that it does not propose to refer in the judgment to every case which has been cited in the submissions. Protected Disclosure – whistleblowing

[292]When an employee makes a disclosure of information in the public interest, in certain circumstances the employee enjoys protection against detriment(s) which occur on the ground that the employee has made the disclosure.

[293]The disclosure must be a ‘qualifying disclosure’ within the terms of s43B(1) of the Employment Rights Act 1996 [‘ERA’]: ‘(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) …

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,…’

[294]Sales LJ in Kilraine v London Borough of Wandsworth

[2018] EWCA Civ. 1436

[2018] ICR 150

provided guidance on what constitutes a qualifying disclosure under s43B(1): ‘[30] …the concept of “information” as used in section 43B(1) is capable of covering statements which might also be characterised as allegations…section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other… [31] …although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision. […] [35]…In order for a statement or disclosure to be a qualifying disclosure according to this language [language of s43B(1)], it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). […] [36] Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.’

[295]As referenced by Sales LJ in Kilraine in Chesterton (Global) Ltd (trading as Chestertons) and another v Nurmohamed (Public Concern at Work Intervening)

[2017] EWCA Civ. 979

[2018] ICR 731

, at paragraph 8 of the judgment Underhill LJ addressed the question of when it may be said that a disclosure satisfies the terms of ERA s43B(1) [emphasis added]: ‘Those provisions were subject to some exegesis by this Court in Babula v Waltham Forest College

[2007] EWCA Civ. 174

[2007] ICR 1026

. Two points in particular are emphasised in that case, though in truth both are clear from the terms of the section itself:(1) The definition has both a subjective and an objective element: see in particular paras. 81-82 of the judgment of Wall LJ (pp. 1045-6). The subjective element is that the worker must believe that the information disclosed tends to show one of the six matters listed in sub-section (1). The objective element is that that belief must be reasonable.

(2) A belief may be reasonable even if it is wrong. That is well illustrated by the facts of Babula, where an employee disclosed information about what he believed to be an act of criminal incitement to religious hatred, which would fall within head (a) of section 43B (1). There was in fact at the time no such offence, but it was held that the disclosure nonetheless qualified because it was reasonable for the employee to believe that there was.’

[296]The judgment in Chesterton (Global) Ltd was considered in detail in Dobbie v Felton (t/a Feltons Solicitors)

[2021] IRLR 679

where at paragraph 27 HHJ Tayler identified: ‘…a number of key points I consider it is worth extracting from Underhill LJ's reasoning, and re-emphasising:(1) the necessary belief is that the disclosure is made in the public interest. The particular reasons why the worker believes that to be so are not of the essence

(2) while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it – Underhill LJ doubted whether it need be any part of the worker's motivation

(3) the exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest

(4) a disclosure which was made in the reasonable belief that it was in the public interest might nevertheless be made in bad faith

(5) there is not much value in trying to provide any general gloss on the phrase "in the public interest". Parliament has chosen not to define it, and the intention must have been to leave it to employment tribunals to apply it as a matter of educated impression

(6) the statutory criterion of what is "in the public interest" does not lend itself to absolute rules (7) the essential distinction is between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest (8) the broad statutory intention of introducing the public interest requirement was that "workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers" (9) Mr Laddie's fourfold classification of relevant factors may be a useful tool to assist in the analysis: i. the numbers in the group whose interests the disclosure served ii. the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed iii. the nature of the wrongdoing disclosed iv. the identity of the alleged wrongdoer (10) 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’

[297]At paragraph 28 of Dobbie HHJ Tayler made: ‘…a few general observations I consider it worth adding:(1) a matter that is of "public interest" is not necessarily the same as one that interests the public. As members of the public we are interested in many things, such as music or sport; information about which often raises no issue of public interest

(2) while "the public" will generally be interested in disclosures that are made in the "public interest", that does not necessarily follow. There may be subjects that most people would rather not know about, that are, nonetheless, matters of public interest

(3) a disclosure could be made in the public interest although the public will never know that the disclosure was made. Most disclosures are made initially to the employer, as the statute encourages. Hopefully, they will be acted on. So, for example, were a nurse to disclose a failure in the proper administration of drugs to a patient, and that disclosure is immediately acted on, with the consequence that he does not feel the need to take the matter any further, that would not prevent the disclosure from having been made in the public interest – the proper care of patients is a matter of obvious public interest

(4) a disclosure could be made in the public interest even if it is about a specific incident without any likelihood of repetition. If the nurse in the example above disclosed a one off error in administration of a drug to a specific patient, the fact that the mistake was unlikely to recur would not necessarily stop the disclosure being made in the public interest because proper patient care will generally be a matter of public interest

(5) while it is correct that as Underhill LJ held there is "not much value in trying to provide any general gloss on the phrase "in the public interest" – noting that "Parliament has chosen not to define it, and the intention must have been to leave it to employment tribunals to apply it as a matter of educated impression" – that does not mean that it is not to be determined by a principled analysis. This requires consideration of what it is about the particular information disclosed that does, or does not, make the disclosing of it, in the reasonable belief of the worker so doing, "in the public interest". The factors suggested by Mr Laddie in Chesterton may often be of assistance. While it certainly will not be an error of law not to refer to those factors specifically, where they have been referred to it will be easier to ascertain how the analysis was conducted. It will always be important that written reasons set out what factors were of importance in the analysis; which may include factors that were not suggested by Mr Laddie in Chesterton . As Underhill LJ held "The question is one to be answered by the tribunal on a consideration of all the circumstances of the particular case". It follows that if no account is taken of factors that are relevant; or relevant factors are ignored, there may be an error of law

(6) for the disclosure to be a qualifying disclosure it must in the reasonable belief of the employee making the disclosure tend to show one or more of the types of "wrongdoing" set out in section 43B (a)-(f) ERA. Parliament must have considered that disclosures about these types of "wrongdoing" will often be about matters of public interest. The importance of understanding the legislative history of the introduction of the requirement for the worker to hold a reasonable belief that the disclosure is "made in the public interest" is that it explains that the purpose was to exclude only those disclosures about "wrong doing" in circumstance such as where the making of the disclosure serves "the private or personal interest of the worker making the disclosure" as opposed to those that "serve a wider interest"

(7) while the specific legislative intent was to exclude disclosures made that serve the private or personal interest of the worker making the disclosure, that is not the only possible example of disclosures that do not serve a wider interest, and so are not "made in the public interest". There might be a disclosure about a matter that is only of private or personal interest to the person to whom the disclosure is made and does not raise anything of "public interest".

(8) while motivation is not the issue; so that a disclosure that is made with no wish to serve the public can still be a qualifying disclosure; the person making the disclosure must hold the reasonable belief that the disclosure is "made" in the public interest. If the aim of making the disclosure is to damage the public interest, it is hard to see how it could be protected. Were a worker to disclose information to his employer, that demonstrates that it is discharging waste that is damaging the environment, with the aim of assisting in a coverup, or to recommend ways in which more waste could be discharged without being found out; while the disclosure would otherwise be a qualifying disclosure, it is hard to see how the disclosure could be "made" in the public interest. The fact that a disclosure can be made in "bad faith" does not alter this analysis. A worker might make public the fact that the employer is discharging waste because he dislikes the MD, and so is acting in bad faith, but nonetheless hold the reasonable belief that making the disclosure is in the public interest because the discharge of waste is likely to be halted. Generally, workers blow the whistle to draw attention to wrongdoing. That is often an important component of why in making the disclosure they are acting in the public interest.’

[298]In order to acquire statutory protection a qualifying disclosure must be made by the correct method as prescribed by statute. Under ERA s43C(1)(a) a disclosure made to the whistleblower’s employer meets this requirement. Detriment

[299]ERA s47B(1) provides that: ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.’

[300]In respect of the meaning of ‘detriment’ for the purposes of s47B, Sir Patrick Elias in Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] EWCA Civ. 73

, [2020] I.C.R. 1226 at paragraphs 27 and 28 observed that: ’[27]…It is now well established that the concept of detriment is very broad and must be judged from the view point of the worker. There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment… [28] Some workers may not consider that particular treatment amounts to a detriment; they may be unconcerned about it and not consider themselves to be prejudiced or disadvantaged in any way. But if a reasonable worker might do so, and the claimant genuinely does so, that is enough to amount to a detriment. The test is not, therefore, wholly subjective.’

[301]In Derbyshire and others v St Helens Metropolitan Borough Council (Equal Opportunities Commission and others intervening)

[2007] UKHL 16

, [2007] I.C.R. 841 at paragraph 27 Lord Hope noted that: ‘…an unjustified sense of grievance cannot amount to “detriment”…’.

[302]ERA s48(2) provides that where a claim is made under s47B(1): ‘…it is for the employer to show the ground on which any act, or deliberate failure to act, was done.’

[303]Consequently, in a claim under ERA s47B(1), the burden of proof on the balance of probabilities is on the claimant to establish:• that there was a protected disclosure,

• that there was a detriment,

• that the respondent subjected the claimant to the detriment. The effect of ERA s48(2) is that, if the claimant succeeds in establishing these elements of a claim under ERA s47(1), the burden of proof shifts to the respondent to show that any act or omission was not on the grounds that the employee had made a protected disclosure.

[304]In Serco Ltd v Dahou

[2016] EWCA Civ. 832

[2017] IRLR 81

at paragraph 40 Laws LJ observed that: ‘As regards dismissal cases, this court has held (Kuzel, paragraph 59) that an employer's failure to show what the reason for the dismissal was does not entail the conclusion that the reason was as asserted by the employee. As a proposition of logic, this applies no less to detriment cases. Simler J did not hold that it would never follow from a respondent's failure to show his reasons that the employee's case was right. Usually no doubt it will….’.

[305]It is clear from the judgment of Elias LJ in NHS Manchester v Fecitt & Ors [2011] Civ. 1190 at paragraph 45 that, ‘…section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower.’

[306]ERA s47B(2) disapplies ERA s47B(1) where the alleged detriment is dismissal. Jurisdiction

[307]Under ERA s48 a claimant may present a claim to an employment tribunal that he has been subject to a detriment contrary to ERA s47, only where the complaint is presented: ‘(3)[…](a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3) – (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on;’

[308]Soole J in Ikejiaku v British Institute of Technology UKEAT 0243/19/VP(V) provided helpful guidance on time limits in the context of a whistleblowing case: ‘25…Time runs from the date of the ‘act’, regardless of whether a claimant has any knowledge of the detriment that the act produces. Tribunals should not confuse a continuing detriment with a continuing act: Jhuti at [32-33]. Accordingly, per Langstaff P in Flynn : “…in any case that considers a question of whether a complaint is out of time, it is incumbent upon an employment tribunal to identify carefully the act, or the deliberate failure to act, that the Claimant identifies as causing him a detriment.”… 31. The question is then whether the imposition/introduction of the new contract falls to be categorised as(i) a ‘once and for all’ act with continuing consequences, or as

(ii) a continuing act, i.e. which extends over the whole period ending with the Claimant’s dismissal (s.48(4)(a)). 32. This type of distinction has provoked considerable litigation : see in particular Barclays Bank Plc v Kapur

[1991] 2 AC 355

; Sougrin v Haringey Health Authority

[1992] ICR 650

and Okoro & Anor v Taylor Woodrow Construction Ltd

[2013] ICR 580

. These authorities show that a typical, but not exhaustive, example in the latter category is where the employer’s relevant act constitutes a rule or policy by reference to which decisions are made from time to time: see e.g. Barclays and the categorisation cited in Okoro at [18]. Examples in the ‘one-off’ category include the act of dismissal; refusal to upgrade (Sougrin); and the banning of construction workers from a site (Okoro). 33. The ‘act’ in the present case does not constitute a policy or rule…’. Automatically Unfair Dismissal

[309]Under ERAs 103A: ‘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.’

[310]The two year qualifying period of employment which a claimant must satisfy before making a claim for ordinary unfair dismissal, does not apply to a claim under ERA s103A.

[311]There are two important features of a claim of automatically unfair dismissal under ERA s103A:• The reason, or if more than one, the principal reason, for the dismissal is that the claimant made a protected disclosure;

• The burden of proof of establishing the reason or the principal reason for the dismissal rests with the claimant.

[312]In order to assess the reason for the dismissal, the tribunal must identify who made the decision to dismiss and what was the reason or the principal reason operating on the mind of the decision maker at the time.

[313]The Supreme Court in Royal Mail Group v Jhuti

[2020] ICR 731

held that where the decision maker was influenced to dismiss by the machinations of those motivated by the prohibited reason for dismissal, that a tribunal can attribute to the employer the state of mind of the manipulator rather than that of the deceived decision maker. Per Lord Wilson at paragraph 60: ‘In searching for the reason for a dismissal for the purposes of section 103A of the Act, and indeed of other sections in Part X, courts need generally look no further than at the reasons given by the appointed decision-maker. Unlike Ms Jhuti, most employees will contribute to the decision-maker’s inquiry. The employer will advance a reason for the potential dismissal. The employee may well dispute it and may also suggest another reason for the employer’s stance. The decision-maker will generally address all rival versions of what has prompted the employer to seek to dismiss the employee and, if reaching a decision to do so, will identify the reason for it. In the present case, however, the reason for the dismissal given in good faith by Ms Vickers turns out to have been bogus. If a person in the hierarchy of responsibility above the employee (here Mr Widmer as Ms Jhuti’s line manager) determines that, for reason A (here the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination. If limited to a person placed by the employer in the hierarchy of responsibility above the employee, there is no conceptual difficulty about attributing to the employer that person’s state of mind rather than that of the deceived decision-maker.’

[314]The issue was further considered by HHJ Tayler at paragraphs 35 and 36 in University Hospital North Tees and Hartlepool NHS Foundation Trust v Fairhall EAT 0150/20: ‘35. …There may be a number of people behind the scenes who have input as advisers or superiors who make it known to the decision maker that they want an employee to be dismissed because of the protected disclosures she or he has made; if the decision maker goes along with the plan the involvement of the instigators does not prevent a tribunal drawing a clear inference that, whatever its precise origin and development, the reason for dismissal operating in the mind of the decision maker was of a prohibited kind. 36. The very existence of the protection for those who make public interest disclosures shows a recognition of the possibility that managers in an organisation may decide that they want to be rid of a whistle blower. In such circumstances, particularly in a large organisation, the route to the eventual dismissal of the whistle blower may be tortuous and involve a number of people who, to a lesser or greater extent, are in the know about the plan to get the whistle blower out of the door. Such a scenario may involve multiple examples of unexplained unfair treatment. The facts may look much like those found by the Tribunal in this case. As far as the dismissal is concerned, in most such cases the decision maker would be going along with an overall plan to remove the whistle blower. In considering the decision to dismiss, the tribunal only has to determine the reasoning process of the decision maker because that person, as others may have done in taking the decisions leading to the dismissal, acted as he or she did because the employee made protected disclosures. The twists and turns in the journey matter relatively little because it is the destination that counts; the eventual reasoning process of the person who took the decision to dismiss. The fact that the dismissal appears to be the culmination of a plan to get rid of the whistle blower may be circumstantial evidence to support the conclusion that the decision maker dismissed because of the protected disclosure; if there was an overall plan to get rid of the whistle blower, it is plausible that the decision maker was acting in accordance with that plan. Assessing factual scenarios of this nature is precisely what the employment tribunal is there to do.’ Failure to call a witness

[315]The claimant highlights the fact that certain employees did not make witness statements and were not called to give evidence. No authority has been cited in respect of the significance of this. The tribunal has identified, and been assisted by, the judgment of Lord Leggatt in Royal Mail Group v Efobi

[2021] 1 WLR 3863

at paragraph 41 [emphasis added]: ‘The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR 324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.’

[316]The tribunals jurisdiction in this case is strictly limited to the two different complaints which have been presented to the tribunal. These are:(a) Pursuant to ERA s47B, detriment on the grounds that the claimant made a protected disclosure;

(b) Automatically unfair dismissal pursuant to ERA s103A, for the reason or principal reason that the claimant made a protected disclosure.

[317]The tribunal makes its decisions on the evidence which is presented to it. The tribunal’s findings of fact have been reached on the balance of probabilities. Protected Disclosure

[318]The tribunal must determine whether there has been a qualifying disclosure. ERA s43B(1) provides as follows [emphasis added]: (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) … (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) …, (d) that the health or safety of any individual has been, is being or is likely to be endangered,…’ Disclosure of Information

[319]The first requirement is that there has been a disclosure of information.

[320]The claimant’s ‘Whistle Blowing Policy – Conduct likely to damage our reputation or financial wellbeing’ is set out above under the findings of fact. The references below are to the paragraph numbers and headings within that document. The document was sent to Ms Milne on 10 February 2020 as part of the claimant’s whistleblowing disclosure.

[321]The tribunal will address ‘Paragraph 7 – Intoxication in the work place’ separately.

[322]The tribunal finds that the following paragraphs represent a disclosure of information under ERA s43B(1):- Paragraph 1 – Bellamy and Byng Paragraph 2 – Levels of Grant Paragraph 3 – VQ grant Paragraph 4 – Development over value shared ownership dwellings Paragraph 5 – Managers take no responsibility for checking sequel, proval or sales spreadsheet Paragraph 6 – Incompetence Paragraph 8 – Cumulative variances are not reported to DAIC or Group Board Paragraph 9 – CGY The tribunal finds that ‘Paragraph 10 – Managers do not manage’ is not a disclosure of information under ERA s43B(1). It does not contain sufficient factual content and specificity as to be capable of showing that the respondent has failed, is failing, or likely to fail with any legal obligation to which it is subject.

[323]The respondent is a regulated provider of social housing. It manages 16,000 homes, and has a turnover in excess of £200 million per annum. In the course of its operations the respondent receives grants from public funds. The information disclosed concerns whether or not project funding, including grants, has been properly applied.

[324]In determining the issue of public interest, the tribunal has considered the fourfold analysis suggested in Chesterton (Global) Ltd (trading as Chestertons) and another v Nurmohamed (Public Concern at Work Intervening)

[2017] EWCA Civ. 979

[2018] ICR 1026

and relied upon by HHJ Tayler in Dobbie v Felton (t/a Feltons Solicitors)

[2021] IRLR 679

.a. The numbers of the group whose interests the disclosure served There are householders in 16,000 homes and more than 1,000 employees who rely on the respondent being run in compliance with its financial obligations. There are providers of public funding/grants to the respondent, the number of these providers is unknown to the tribunal.

b. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed The respondent’s tenants rely on their landlord being financially stable. The employment of the respondent’s large workforce may be affected if the respondent does not comply with its financial obligations. Public funding/grants may be lost/misapplied outside the terms on which they have been granted. The respondent may be subjected to a regulatory downgrade by the Social Housing Regulator.

c. The nature of the wrongdoing disclosed The potential misapplication of public funding. Potential financial mismanagement in a large regulated provider of social housing.

d. The identity of the alleged wrongdoer A large regulated provider of social housing.

[325]The tribunal is satisfied that the disclosure of the information was, in the reasonable belief of the claimant, made in the public interest and tends to show that the respondent has failed, is failing or likely to fail with a legal obligation to which it is subject.

[326]Objectively, that belief was reasonable. In the context of the ERA s43B(1), a belief may be reasonable, even if it is wrong.

[327]The relevant legal obligation are financial regulations contained within the Social Housing Regulator’s ‘Governance and Financial Viability Standard’, at paragraphs 2.2-2.4.

[328]The tribunal finds that the claimant made a protected disclosure in his document entitled, ‘Whistle Blowing Policy – Conduct likely to damage our reputation of financial wellbeing’. The relevant paragraphs are 1-6, and 8-9.

[329]The outcome in respect of the non-financial limb of the claimant’s disclosure is different.

[330]The tribunal is not satisfied that the information disclosed at ‘Paragraph 7 – Intoxication in the work place’, satisfies the terms of ERA s43B(1)(d). The evidence presented to the tribunal does not support a finding that the claimant witnessed Mr Keegan intoxicated in the way that the claimant alleges. In the circumstances, the claim of a protected disclosure under this limb fails both the subjective and objective test as to reasonable belief that the disclosure was in the public interest and tends to show endangerment to the health and safety of the claimant as alleged.

[331]The claim of protected disclosure under ERA s43B(1)(d) is dismissed. Detriment Claim – Jurisdiction

[332]Under ERA s48, in respect of any alleged detriment the claimant had 3 months from the date of the respondent’s act or failure to act to present his claim. Where the act or failure to act is part of a series of similar acts or failures, time runs from the last of them. Where an act extends over a period, the date of the act means the last day of that period.

[333]ACAS received notification of early conciliation on 09 April 2020. The early conciliation certificate was issued on 09 May 2020. On 16 June 2020 the Employment Tribunal received the claimant’s ET1 form. Consequently, any acts or failures to act which took place prior to 17 February 2020 are out of time. The tribunal has no jurisdiction to consider them.

[334]In applying ERA s48, it is important not to confuse a continuing detriment with a continuing act. There is a distinction between a ‘once and for all’ act with continuing consequences, and a continuing act.

[335]Consequently, the tribunal finds that the following alleged detriments are out of time. Adopting the numbering from the schedule of detriments as set out below, they are: (ii), (iii), (iv) and (v).

[336]The respondent urges the tribunal to find that (vi) and (vii) which occurred on 13 February 2020 are also out of time. The tribunal does not do so. They are part of a series of similar acts undertaken by Ms Milne as part of her investigation. They of are part of a series of acts which related to alleged deficiency in Ms Milne’s approach to the investigation. The last of those acts – the alleged detriments at (viii) and (ix) – occurred on 02 March 2020. Consequently, the alleged detriments at (vi) and (vii) are in time.

[337]In respect of (ii), (iii), (iv) and (v), no application has been made to extend time. In any event, no evidence has been presented to the tribunal which is capable of establishing that it was not reasonably practical to present the claims in respect of these alleged detriments within the primary 3 month time limit (as extended by the period spent in early conciliation).

[338]If the tribunal is wrong in its decisions either to exclude or consider any of the detriments numbered (ii)-(vii), the tribunal has in any event gone on to consider these detriments on their merits. The detriments

[339]The tribunal considers the schedule of detriments on the basis of the tribunal’s finding that the claimant did make a protected disclosure.

[340]The tribunal’s decisions in respect of the alleged detriments are based on relevant findings of fact set out earlier in this judgment.

[341]In respect of each of the detriments claimed, the tribunal finds as follows: i. From the 10th February onwards did the Respondent fail to carry out an investigation into the subject matter of the Claimant’s protected disclosures in accordance with its whistleblowing policy? - The respondent failed to provide a written summary of the concern under paragraph 4.4 of its Whistleblowing Policy. - As to the investigation itself, the respondent did carry out an investigation into the subject matter of the protected disclosures in accordance with its Whistleblowing Policy at paragraph 6, ‘Investigation and Outcome’. - Ms Milne carried out an initial assessment which concluded by 13 March 2020. - Ms Milne informed the claimant of the outcome of his whistleblowing complaint in writing, namely that she ‘…found nothing that falls within the scope of the Whistleblowing Policy’. Ms Milne had endeavoured to have a meeting with the claimant so that she could discuss the outcome of the initial assessment with him in person, but the claimant failed to attend. - In all the circumstances, the tribunal is not satisfied that the claimant was subjected to the pleaded detriment as alleged. - In any event, the professional choices made by Ms Milne in conducting the investigation, her decision as to its outcome, and the extent of her compliance with the Whistleblowing Policy was in no sense whatsoever influenced by, or on the ground that the claimant had made a protected disclosure. Ms Milne conducted the investigation in accordance with her abilities and her own understanding of her obligations. It was not influenced in any way by the fact that the claimant had made a protected ii. On or around 11th February 2020, having raised a grievance in respect of the conduct of his manager Fred Keegan was the Claimant told he must have a one to one meeting with Mr Keegan shortly after making his Whistleblowing Disclosure? - The claimant was not told by Asmeret Haile that he ‘must’ have a meeting with Mr Keegan. She nonetheless encouraged him to speak with Mr Keegan. - The tribunal finds that this was a detriment to which the claimant was subjected by the respondent. - In line with the tribunal’s findings as to who knew about the whistleblowing complaint at that time, the tribunal finds that this iii. On or around the 11th February and ongoing was the Claimant’s profile deleted from the Respondent’s property appraisal system? - The deletion of the claimant’s profile was a detriment. - The claimant has described it as his ‘assumption’ that someone deleted the file. - The tribunal is not satisfied that the respondent subjected the claimant to the detriment by an act or deliberate failure to act. - The evidence indicates that the cause was a computer problem which occurred on a day when the claimant was accessing the system from home. No evidence has been presented as to the technical cause of the problem. - The words which the claimant reports were said to him by ICT do not shed any light on who deleted his profile. - If the tribunal is wrong to find that the respondent did not subject the claimant to the detriment, the claimant was in no sense whatsoever subjected to the detriment on the ground that the claimant had made a protected disclosure. There is no evidence that any of the people who knew about the whistleblowing complaint at that time, had any part, directly or indirectly, in causing the claimant’s computer problems that day. iv. On or around the 11th February and ongoing was the Claimant blocked from accessing computer systems Sequel and Citrix, while being given no information about who had authorised this order why? - On the evidence, the extent of the access problems which were suffered by the claimant on 11 February is unclear. The contemporaneous evidence is limited to the comment by Mr Keegan, following communication with the claimant, that the claimant, ‘was going to see ICT earlier (issue with accessing computer working from home)’. - If the claimant did have problems with access to Sequel and Citrix as alleged, the tribunal finds that it was a detriment. - The tribunal is not satisfied that the respondent subjected the claimant to the detriment by an act or deliberate failure to act. The evidence indicates that the cause was a computer problem which occurred on a day when the claimant was accessing the system from home. No evidence has been presented as to the technical cause of the problem. - If the tribunal is wrong to find that the respondent did not subject the claimant to the detriment, the claimant was in no sense whatsoever subjected to the detriment on the ground that the claimant had made a protected disclosure. There is no evidence that any of the people who knew about the whistleblowing complaint at that time, had any part, directly or indirectly, in causing the claimant’s access problems that day. v. On the 12th February 2020 was the Claimant called into a meeting with Mike Johnson and Hilary Judge and told that he had no future working for the Respondent? Was the Claimant told that he could have two months’ notice and leave the Respondent’s employment or face investigation into his behaviour and performance? Was it made clear to the Respondent that Mike Johnson, the Group Director for Development, wanted the Claimant to leave and was pressure was [sic] put upon the Claimant to leave his employment? - The tribunal is unable to determine the precise words which were used at the meeting. It will however have been quite clear to the claimant that the respondent wished him to leave its employment. - Calling the claimant to the meeting and exploring whether he would leave his employment, was a detriment to which the claimant was subjected by an act of the respondent. - This was in no sense whatsoever done on the ground that the claimant had made a protected disclosure. Those who planned and participated in the meeting did not know at that time that the vi. From the 13th February 2020: When the Respondent’s Hilary Milne met the claimant to discuss the Whistleblowing Disclosure was the Claimant told he would be provided with her notes from the meeting? Has the Respondent failed to provide the Claimant with any notes from that meeting? - Ms Milne did not tell the claimant that he would be provided with her notes of the meeting. The claimant has not been provided with those notes. - The tribunal does not find a detriment as pleaded. - Insofar as Ms Milne spoke to the claimant about her notes, her choice of words and her failure to provide the notes was in no sense whatsoever on the ground that the claimant had made a vii. From the 13th February 2020 and ongoing: Was the Claimant not provided with a written summary of the concern or a written indication of how the Respondent proposed to deal with the matters raised by the Claimant? - The claimant was not provided with a written summary or a written indication of how the respondent proposed to deal with the matters raised by the claimant. - Under the respondent’s Whistleblowing Policy a written summary should have been provided. There was no obligation under the Whistleblowing Policy to provide a written indication of how the respondent proposed to deal with the matters raised by the claimant. - This failure to provide a written summary was a detriment to which the claimant was subjected by the respondent. - The failure to provide the written summary was a reflection of how Ms Milne performed her own role. She was not influenced in this by the fact that the claimant had made a protected disclosure. The fact that a written summary was not provided viii. On the 2nd March 2020 the claimant had a meeting with Hilary Milne to discuss the Whistleblowing Disclosure – was he at this meeting forcefully discouraged from taking notes - The tribunal is not satisfied that the claimant was forcefully discouraged from taking notes. - The tribunal is not satisfied that the claimant was subjected to the detriment as alleged. ix. On the 2nd March 2020 did Ms Milne pressure the Claimant to keep the contents of his Whistleblowing Disclosure confidential and assure him that he would be provided with her notes from the meeting? - Ms Milne neither pressured the claimant to keep the contents of his Whistleblowing Disclosure confidential, nor assured the claimant that he would be provided with her notes from the meeting. - The tribunal is not satisfied that the claimant was subjected to the alleged detriment. x. From the 2nd March 2020 onwards: has the Respondent in breach of an assurance failed to provide the Claimant with any notes from the meeting with Ms Milne on the 2nd March 2020? - Ms Milne, did not give that assurance. - The tribunal is not satisfied that the claimant was subjected by the respondent to the detriment alleged. xi. From the 2nd March 2020 onwards did the Respondent fail to provide the Claimant with a detailed written outcome of the initial assessment of the matters raised by the Claimant? - The respondent did not provide a detailed written outcome of the initial assessment. - The Whistleblowing Policy under which the complaint was made did not require the respondent to provide a written outcome, detailed or otherwise. - The respondent complied with the Whistleblowing Policy. In the circumstances, the respondent’s failure to provide a ‘detailed written outcome’ was not a detriment. - The respondent was entitled to be informed of the outcome. A meeting was scheduled for 13 March 2020 by Ms Milne to discuss the outcome but the claimant did not attend. Ms Milne sent a short email on the same date to inform the claimant of the outcome. - If the tribunal is wrong to find that the respondent’s failure to provide a ‘detailed written outcome’ is not a detriment, in all the circumstances of the case, this claim of detriment fails on causation. - Ms Milne provided information on the outcome of the initial assessment in compliance with what she believed her obligation to be. It was a reflection of how Ms Milne performed her own role. She was not influenced in this by the fact that the claimant had made a protected disclosure. - The fact that a ‘detailed written outcome of the initial assessment” was not provided was in no sense whatsoever on the ground that the claimant had made a protected disclosure. xii. From the 2nd March 2020 onwards did the Respondent fail to carry out an investigation of the Claimant’s disclosure or grievance adequately or at all? - Disclosure: from 02 March 2020 Ms Milne carried on with her investigation of the whistleblowing complaint. She interviewed three people whom she deemed relevant on 03 March 2020. She completed her initial assessment by 13 March 2020. Her assessment was reviewed by the Audit and Risk Committee which agreed with the assessment’s conclusions and proposed actions. As a direct consequence of Ms Milne’s assessment report and recommendations, the respondent instructed KPMG to prepare a report on certain matters. - In the circumstances the tribunal is not satisfied that the claimant was subjected to a detriment by the respondent as pleaded in respect of the whistleblowing disclosure. - The respondent did not carry out an investigation of the claimant’s grievance after 2nd March 2020. - This was a detriment to which the claimant was subjected. - On 17 February 2020, the respondent appointed a senior member of staff to investigate the claimant’s grievance and the claimant was informed on 20 February 2020. - On 02 March 2020, a date for the grievance meeting was scheduled on 10 March 2020. Ms Judge genuinely believed that the matter remained scheduled for 10 March 2020 and was dismayed when she learned on 10 March that the claimant was unable to attend. - On 10 March 2020 Ms Judge learned that the claimant was on annual leave and told him that they would rearrange the date when the claimant returned to work. - Following the claimant’s annual leave, he went on sick leave and did not return to work until 26 March 2020. On that day, Ms Judge became aware that the claimant’s employment was to be terminated. In the circumstances she did not arrange another grievance meeting. - The reason why the investigation of the grievance did not happen was because the claimant’s employment was terminated. - The decision not to investigate the claimant’s grievance was in so sense whatsoever on the ground that the claimant had made xiii. From on or around the 10th March 2020 did the Respondent form incoherent and contradictory conclusions in respect of the disclosure? Did the Respondent fail to identify the Respondent’s recommendations to the Claimant? - It is outside the jurisdiction of the tribunal to act as an appellate or review tribunal of the merits of the assessment report. An assessment report is based on the investigation of the whistleblowing officer. The obligation for a whistleblowing officer is to prepare an assessment report within the terms of the Whistleblowing Policy. - Miss Milne did an investigation and formed conclusions. She prepared an initial assessment in accordance with her personal abilities and in compliance with the Whistleblowing Policy for investigation and assessment. The assessment was reviewed by the Audit and Risk committee and accepted the report and the recommendations. On foot of Ms Milne’s recommendations, KPMG was instructed to prepare a report on certain matters. - Ms Milne did not identify her recommendations to the claimant. On a strict reading of the Whistleblowing Policy, she was not required to do so. - The Whistleblowing Policy does not require the whistleblowing officer to inform a complainant of the outcome of the investigation in writing. - It is unfortunate that the claimant did not attend the meeting scheduled by Ms Milne to inform him in person of the outcome of her investigation. He could have asked questions and sought clarification directly from Ms Milne. - If the tribunal is wrong to decline to embark on an enquiry as to whether Ms Milne formed incoherent and contradictory conclusions in respect of the disclosure, it is right to record that the tribunal finds, in any event, that Ms Milne did not arrive at her conclusions in respect of the disclosure, in any sense whatsoever on the grounds that the claimant had made a - The professional choices made by Ms Milne in conducting the investigation, her decision as to its outcome, and the extent of her compliance with the Whistleblowing Policy was in no sense whatsoever influenced by, or on the ground that the claimant had - Ms Milne conducted the investigation in accordance with her abilities and her own understanding of her obligations. This includes her decision not to identify her recommendations to the claimant. It was not influenced in any way by the fact that the xiv. From on or around the 10th March 2020: did the Respondent schedule a meeting to review the Claimant’s grievance when the Respondent knew that the claimant was on leave? - Ms Judge did not schedule a grievance meeting when she knew that the claimant was on holiday. - The meeting was entered in the schedule on 02 March 2020, to take place on 10 March 2020. Ms Judge followed her usual practice when scheduling a meeting. This meant she did not check the claimant’s annual leave. - At the date Ms Judge scheduled the meeting, Ms Judge did not know about the protected disclosure. - No further grievance meeting was scheduled ‘from on or around the 10th March 2020’. Consequently, the claimant was not subjected to the detriment as pleaded. - Insofar as a grievance meeting was scheduled for 10 March 2020, that scheduling was in no sense whatsoever on the grounds that the claimant had made a protected disclosure. xv. From on or around the 11th March 2020 and ongoing did the Respondent’s Hilary Judge assure the Claimant that this grievance meeting would be rescheduled? Has the Respondent never rescheduled or held the grievance meeting? - The cancelled grievance meeting which was due to take place on 10 March was never rescheduled. This was a detriment to which the claimant was subjected. - On 10 March 2020 Ms Judge wrote to the claimant to say that the meeting would be rescheduled when he returned from leave. - Save for a period of time on 26 March, the claimant did not return from leave prior the termination of his employment on 30 March 2020. - After the claimant finished the period of annual leave which he was taking on 10 March 2020, he took sickness absence on the grounds of ‘stress at work’. - The respondent did not reschedule the grievance meeting because the claimant had an extensive period of annual and sickness leave, before his employment was terminated on 30 March 2020. - In the circumstances, the failure to reschedule was in no sense whatsoever on the ground the claimant had made a protected xvi. On or around 30th March 2020 did the Respondent take the decision to terminate the Claimant’s employment without first investigating the Claimant’s grievance? - The claimant had less than 2 years qualifying employment and there was no legal obligation on the respondent to investigate the claimant’s grievance prior to deciding to terminate the claimant’s contract of employment. employment without first investigating the claimant’s grievance detriment is dismissed. xvii. On or around the 30th March 2020 did the respondent make the decision to terminate the Claimant’s employment without first conducting a meeting with the Claimant? - The claimant had less than 2 years qualifying employment and there was no legal obligation on the respondent to conduct a meeting with the claimant prior to deciding to terminate his employment. employment without first conducting a meeting with him was in no sense whatsoever on the ground that the claimant had made xviii. On or around the 30th March 2020 did the Respondent take the decision to terminate the Claimant’s employment without adequately investigating his Whistleblowing Disclosure? - The Whistleblowing Disclosure was subjected to an investigation and initial assessment which was carried out under the terms of the respondent’s whistleblowing policy - The initial assessment (including recommendations) was finalised by 13 March 2020. This was prior to the date of termination of the claimant’s contract of employment - The initial assessment (including recommendations) was approved and accepted by the respondent’s Audit and Risk Committee on 30 April 2020 - As a direct consequence of the initial assessment and recommendations, the respondent commissioned a report from KPMG on relevant matters - In all the circumstances, the tribunal is not satisfied that the pleaded detriment is proven. - In any event, Ms Milne who carried out the investigation and initial assessment, was not influenced in the discharge of her role by the fact that the claimant had made a protected disclosure. Ms Milne investigated according to her abilities and understanding of her role. The level of adequacy achieved in Ms Milne’s investigation and initial assessment, was in no sense whatsoever arrived at on the ground that the claimant had made xix. On or around the 30th March 2020 did the Respondent take the decision to terminate the Claimant’s employment without conducting any disciplinary procedure in relation to the issues upon which it terminated the Claimant’s employment? - The claimant had less than 2 years qualifying service and there was no legal obligation on the respondent to conduct any disciplinary procedure in relation to the issues upon which it terminated the claimant’s employment, prior to deciding to terminate his employment. employment without first conducting any disciplinary procedure in relation to the issues upon which it terminated his employment xx. On or around the 30th March 2020 did the Respondent take the decision to terminate the Claimant’s employment without investigation into the matters alleged to form the basis of the Claimant’s dismissal? - The claimant had less than 2 years qualifying service and there was no legal obligation on the respondent to investigate any matters alleged to form the basis of the Claimant’s dismissal prior to deciding to terminate the claimant’s employment. employment without investigation into the matters alleged to form the basis of the claimant’s dismissal, was in no sense whatsoever on the ground that the claimant had made a xxi. On the 30th March 2020 did the Respondent wrongly allege and or determine that the Claimant had no interest in pursuing the grievance formally? - In the termination letter the respondent stated that it took the respondent’s failure to attend the grievance meeting on 10 March 2020 as ‘…confirmation that [the claimant] did not wish to pursue [hisi] grievance, and [the respondent] will not be taking any further steps in this respect’. - On the date when the claimant failed to attend the grievance meeting, he had been told in an email from Ms Judge that it would be rescheduled when he returned from leave. This indicates that the respondent had, at the time of the claimant’s non-attendance at the grievance meeting, not treated the nonattendance as confirmation that the claimant did not wish to pursue his grievance. - At no point between Ms Judge’s 10 March 2020 letter and the termination letter, did the respondent received any indication from the claimant that he had no interest in pursuing his grievance formally. - The tribunal finds that the claimant was subjected to a detriment when it was written on 30 March 2020 that he had, ‘...no interest in pursuing the grievance formally’. - The claimant was subjected to that detriment by the respondent. - This however, was in no sense whatsoever on the ground that the claimant had made a protected disclosure. - The content of the termination letter was robust and carelessly inaccurate in terms of the detriment complained of. This lack of care may reflect the extent of the breakdown in relationships, but the assertion that the claimant did not wish to pursue his grievance was in no sense whatsoever made on the ground that the claimant had made a protected disclosure. xxii. On or around the 30th March 2020 did the Respondent rely upon matters which had not been investigated or made subject to any of the Respondent’s employment policies, including the disciplinary policy, to terminate the Claimant’s employment? - Yes. This is a detriment to which the claimant was subjected by the respondent. - The claimant had less than 2 years qualifying service and there was no legal prohibition on the respondent relying upon matters which had not been investigated or made subject to any of the Respondent’s employment policies, including the disciplinary policy to terminate the claimant’s employment, employment, relying upon matters which had not been investigated or made subject to any of the Respondent’s employment policies, including the disciplinary policy, was in no sense whatsoever on the ground that the claimant had made a Automatically Unfair Dismissal

[342]Ultimately there is just one question which the tribunal must answer to determine whether the claimant was subjected to unfair dismissal: Was the reason (or, if more than one, the principal reason) for the dismissal that the claimant made a protected disclosure?

[343]The claimant has properly drawn the tribunal’s attention to the fact that no capability/performance, disciplinary or sickness absence policy was applied to the claimant. If this were a claim of ordinary unfair dismissal, it is difficult to see how a tribunal would reach any other conclusion than that the failure to apply those policies prior to deciding to dismiss the claimant made the dismissal unfair.

[344]The tribunal is not however dealing with an ordinary unfair dismissal. The tribunal is limited to the single question set out above. Was the reason (or the principal reason) for the claimant’s dismissal, that he made a protected disclosure?

[345]The failure of the respondent to comply with any policies/procedures applicable to performance, conduct, or attendance at work, has nonetheless been considered by the tribunal in considering the factual matrix against which the respondent made the decision to dismiss. The tribunal has considered the extent to which these failures may shed light on the reason for dismissal.

[346]The claimant did not have 2 years qualifying employment. Consequently, the respondent was not at risk of a claim for ordinary unfair dismissal if it dismissed the claimant without following any policy/procedure, and the respondent knew this. No doubt, if the claimant had 2 years qualifying employment, prior to making its decision to dismiss, the respondent would have approached the application of relevant process very differently.

[347]Given that no policy/procedure applicable to performance, conduct, or attendance at work was applied before the decision to dismiss was taken, it is understandable why the claimant complains about the terms of the dismissal letter sent to him on 30 March 2020. The content and tenor of the letter, and the definitive language used about the claimant’s behaviour, might imply to a casual reader that a formal process had taken place which had led to these conclusions.

[348]The tribunal has some sympathy with the claimant about the choice of terminology used in the dismissal letter, because the apparently definitive findings set out in the letter were not the product of a formal process.

[349]The respondent exercised, as it was entitled to do, its right to dismiss an employee with less than 2 years qualifying employment.

[350]As will be clear from the findings of fact, the tribunal finds that the claimant’s protected disclosure was not the reason or the principal reason for the claimant’s dismissal.

[351]The burden of proof rests with the claimant to establish that his protected disclosure was the reason or the principal reason for the decision to terminate his employment. The claimant has not discharged that burden. Consequently, the claim of automatically unfair dismissal fails.

[352]There is considerable evidence of the multiple reasons which factored into the decision to dismiss the claimant. These reasons ultimately led to a breakdown in key workplace relationships.

[353]The covid induced national lockdown on 23 March 2020 provided the catalyst for the respondent finally to terminate the claimant’s employment. It was however a decision which, in the tribunal’s opinion, had been inevitable for some time. As set out in the findings of fact, the tribunal has found that by 12 February 2020, it was not a matter of if, but when, the claimant would be dismissed.

[354]By 26 March 2020, when the decision to dismiss was finally taken, the perception of claimant’s head of department, Mr Johnson, was such that he described the claimant as, ‘…a nuisance that the business did not have the resources or inclination to spend managing at that point in time and in the midst of a global pandemic.’.

[355]As early as 07 February 2020, based on what he was hearing from Mr Keegan about the claimant’s performance and conduct, Mr Johnson had been clear in his mind that, ‘…the business was better off without him.’. This view was formed before the claimant had even made his whistleblowing complaint.

[356]The claimant’s working relationship with Mr Keegan has been a key factor in the view which Mr Johnson came to form of the contribution which the claimant could make to the business.

[357]Unfortunately, the working relationship between the claimant and Mr Keegan began a downward trajectory very soon after the claimant was promoted into the role of Senior Programme Manager.

[358]The breakdown in their working relationship was far from inevitable. Mr Keegan had sat on the interview panel which recommended the claimant for promotion to Senior Programme Manager. The claimant and Mr Keegan had previously enjoyed considerable mutual professional respect. They had an excellent personal relationship.

[359]As set out in the findings of fact, the progress of the breakdown of their working relationship can be tracked from September 2019, soon after the claimant’s promotion to Senior Programme Manager. The parties have very different perspectives on their 1 to 1 meeting that month, and on their meeting in October 2019. The substance of their disagreement about this, reflects their deteriorating working relationship.

[360]The content of the claimant’s complaint which he sent to Asmeret Haile on 27 November 2019 (and two days later withdrew from Asmeret Haile’s consideration) illustrates just how bad the relationship between the claimant and Mr Keegan had become by that time. The claimant complained about ‘repetitive bullying’ by Mr Keegan and alleged that Mr Keegan’s behaviour was, ‘intimidating, degrading, humiliating and offensive.’.

[361]The events of 07 February 2020 were a watershed. They led to the meeting between the claimant, Ms Judge and Mr Johnson on 12 February 2020. It was a meeting at which it was clear to the claimant that the respondent wanted to terminate his employment. None of those on the respondent’s side, whether in pre-meeting discussions or at the meeting on 12 February itself, knew that the

[362]The shared unhappy reaction of Mr Keegan and Mr Johnson on learning of the claimant’s return to work on 26 March 2020 speaks volumes. The previously unknown experience for an employer of a covid lockdown was upon them. There was no longer any time to put off addressing the problems which they perceived the claimant caused in the workplace. Mr Johnson and Ms Dent made the decision to dismiss the claimant, the same day.

[363]The decision to dismiss the claimant was founded on these considerations:a. The breakdown in the claimant’s relationship with his line manager,

b. Mr Keegan’s dissatisfaction with the claimant’s performance and behaviour;

c. Mr Johnson’s dissatisfaction with the claimant’s performance and behaviour; Mr Johnson being influenced particularly by Mr Keegan’s reports to him, and by his own understanding/perception of what occurred on 07 February;

d. Mr Johnson’s perception that the claimant’s comments about the members of the team on 07 February 2020 were harmful to the harmonious working of the team;

e. The claimant’s sickness attendance record.

Conclusion

[364]The tribunal is aware that the decision to dismiss the claims will be gravely disappointing to Mr Cameron. This judgment is limited to matters relevant to the two claims which the tribunal has to determine. The findings of fact are limited to those set out in this judgment. It is important to note however, that this judgment does not represent a wider comment on Mr Cameron’s professional skills. The tribunal was impressed by the description of the claimant in the reference composed by Mr Keegan on 16 June 2017. He is clearly a man of ability.

[365]Finally, the Employment Judge must apologise to both parties for the delay in issuing this judgment. He has written a note to the parties to address this.