Mr I Soanes v Stobart Capital Ltd and W A Tinkler: 2204463/2018

EMPLOYMENT TRIBUNALS

Case No 2204463/2018

Between

Mr I SoanesClaimant

Stobart Capital Ltd and W A TinklerRespondent

Before

Employment Judge Mr N Deol

Mr M Palmer (instructed by Counsel) for claimant

Ms A McColgan (instructed by Counsel) for respondent

Date 27 April 2020

JUDGMENT

[1]The Respondent’s application for a strike out of the Claimant’s whistleblowing claims fails.

[2]The Respondent’s application for a deposit order in relation to the whistleblowing claims also fails.

[3]The claim will proceed to a full merits hearing listed for six days from 19 February 2019.

REASONS

[1]The full merits hearing in this case is currently listed for six days from 19 February 2019.

[2]In advance of that hearing the Respondent pursues an application to strike out the Claimant’s claims for(i) automatic unfair dismissal contrary to Section 103 of the Employment Rights Act 1996 (“ERA”) and

(ii) his suffering of detriments contrary to Section 47B ERA and/or to seek a deposit order in respect of some or all of these claims.

[3]The grounds for the Respondent’s application are set out in its amended Grounds of Resistance at pages 43 to 49 of the bundle prepared for this preliminary hearing (the “Bundle”) and in correspondence to the Tribunal dated 15 October 2018 (page 50 of the Bundle).

[4]In support of his Claim, the Claimant relies upon the protected disclosures set out in the ET1 Form and identified in the Case Management hearing on 17 September, specifically:(i) The written communication of 20 November 2017 (e-mail from the Claimant to Andrew Tinkler). [pages 72-73 Bundle]

(ii) The communication of 7 February 2018 (sms message from the Claimant to Andrew Tinkler). [Page 82 Bundle]

(iii) The oral and written communication set out in the further information supplied by the Claimant at pages 39-40 of the Bundle.

[5]The thrust of the Respondent’s challenge to the Claimant’s case is that the alleged protected disclosures do not meet the statutory threshold for protection. It is not this Tribunal’s role to determine this issue, simply to consider whether the Respondent’s challenge is sufficiently strong to warrant dispensing with this issue as a preliminary matter, or at least requiring a deposit to be paid in relation to part or all of the claim if it is to be allowed to proceed to a main hearing. There was no reliance, at this preliminary stage, on an argument that the alleged disclosure did not meet the public interest threshold.

[6]The Claimant’s position is that there are significant disputes of fact between the parties which are not suitable for determination or disposal at this preliminary stage. Instead they should be determined at a full hearing, after the exchange of documents and evidence, such that the evidence can be properly evaluated, and the issues properly determined.

[7]The relevant legislation (Section 103A ERA) protects workers who make 'protected disclosures' from dismissal and/or from being subject to a detriment. In order for a disclosure to be a “protected disclosure” three requirements need to be satisfied (which are set out in Section 43 ERA):(1) There needs to be a disclosure within the meaning of the Act.

(2) That disclosure must be a 'qualifying disclosure', and

(3) The disclosure must be made by the worker in a manner that accords with the scheme set out in sections 43C to 43H of ERA.

[8]It is necessary that the worker making the disclosure has a reasonable belief that the disclosure tends to show one of the statutory categories of 'failure' (Section 43B(1) of ERA). The categories of failure include that a person has “failed, is failing or is likely to fail to comply with any legal obligation to which he is subject”.

[9]The thrust of the Claimant’s case is that the 2nd Respondent became involved in the structuring of a transaction that caused the Claimant concern, specifically that there was a potential breach of the 2nd Respondent’s fiduciary obligations and his legal obligations owed to the 1st Respondent. The Claimant alleges that it is because he raised these issues, he was asked not to attend work and ultimately decided to resign, claiming that he had been constructively unfairly dismissed.

[10]The Respondent, through its submissions, acknowledges that some background information, or context, is important. It suggests, however, that the Claimant is overplaying his concerns now to bolster an artificial whistleblowing claim.

[11]The Respondent argued that the arrangement between Stobart Group and Stobart Capital (which the Claimant was involved in drawing up) envisaged that the 2nd Respondent would have a hybrid role, which also recognised the potential for conflict and ensured that Stobart Group would make any final decisions. This was the foundation for the Respondent’s argument that there was nothing untoward about the 2nd Respondent’s proposals and simply no reasonable basis for alleging wrongdoing, if that is what the Claimant had done at all.

[12]The Tribunal heard legal submission from the Respondent’s representative, the summary of which was agreed by the Claimant’s representative.

[13]The Respondent acknowledged the caution that a Tribunal must have when considering the strike out of a claim as a preliminary matter, particularly where there are factual matters in dispute.

[14]The Tribunal was referred to the case of ED&F Man Liquid Products Ltd v Patel & ANR [2003] CP Rep 51 in which the Court of Appeal outlined the danger of conducting a mini trial where there are significant differences between the parties so far as factual issues are concerned. However, the Court of Appeal went on to say that there may be cases where the factual allegations lack substance where they are contradicted by contemporaneous documentation where a different approach may be appropriate.

[15]This principle was approved in Ezisas v North Glamorgan NHS Trust

[2007] ICR 1126

, a whistleblowing case. The Court of Appeal held that: “an employment tribunal should be alert to provide protection in the face of an application that little or no reasonable prospect of success, but it must also exercise appropriate caution before making an order that will prevent an employee from proceeding to trial in a case which on the face of the papers involve serious and sensitive issues.” “It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than be hearing and evaluating the evidence.” “The risk of justice is minimised if the answers to these questions are deferred until all the facts are out. The Tribunal can then base its decision on its findings of fact rather than on assumptions on what the Claimant may be able to establish if given an opportunity to lead evidence.”

[16]The Respondent argued that there were no core factual disputes to consider here, the only question being whether, taking the Claimant’s argument at its best, he made protected disclosures.

[17]The Respondent also referred to the case of Ashok Ahir v British Airways [2017] WL 02978862 to support its argument that although the threshold for striking out a claim at a preliminary stage is a high one, it is not one that is unsurmountable.

[18]The Respondent argues that the alleged disclosures, put at best, are not capable of being protected disclosures. A disclosure of information will amount to a "disclosure" whether it is made in writing or verbally and any form of recorded information would be likely to be accepted as a form of disclosure.

[19]The Respondent relied on the decision of Cavendish Munro Professional Risks Management Ltd v Gubuld

[2010] IRLR 38

in which the EAT held: ''… the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around.” Contrasted with that would be a statement that “You are not complying with Health and Safety requirements”. In our view this would be an allegation not information.''

[20]Based on this, the Respondent argued that the must a disclosure of information as such for the Claimant’s case to get off the ground. A "disclosure" is more than merely a communication, and "information" is more than merely an allegation or a statement of position. The worker making the disclosure must actually "convey facts". Simply expressing an opinion is unlikely to amount to a disclosure. Likewise, it is not sufficient that the claimant has simply made allegations about the wrongdoer.

[21]In the case of Western Union Payment Services UK Ltd v Mr C Anastasiou UK

EAT/0135/13

the EAT stated that: “We follow and apply the approach adopted by the EAT in Cavendish.. Section 43B ERA requires the disclosure to be one “of information” not merely the making of an allegation or statement of position. That said, the distinction can be a fine one to draw and one can envisage circumstances in which the statement of a position could involve the disclosure of information and vice versa. The assessment as to whether there has been a disclosure of information in a particular case will always be fact sensitive.”

[22]The Court of Appeal in Kilraine v London Borough of Wandsworth

[2018] IRLR 846

provided further guidance: The concept of “information” as used in s 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.” “Grammatically, the word “information” has to be read with the qualifying phrase, which tends to show [etc]. In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). 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 light of all the facts of the case.” (emphasis added) The case makes two other important points: “It is a question which is likely to be closely aligned with the other requirement… 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…. 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.” “Whether a particular disclosure satisfies the test in Section 43B(1) should be assessed in the light of the particular context in which it is made.”

[23]These concepts are recognised in the authority of Korashi v Abertawe Bro Morgannwg University Local Health Board.

[2012] IRLR 4

“Many whistleblowers are insiders. This means that they are so much more informed about the goings on of the organisation of which they make a complaint that outsiders, and that insight entitles their views to respect. Since the test is “their” reasonable belief, that belief must be subject to what a person in their position would reasonably believe to be wrong doing.”

[24]A whistleblower does not have to prove that the facts or allegations disclosed are true, or that they are capable in law of amounting to one of the categories of wrongdoing listed in the legislation. As long as the worker subjectively believes that the relevant failure has occurred or is likely to occur and their belief is, in the tribunal's view, objectively reasonable, it does not matter that the belief subsequently turns out to be wrong, or that the facts alleged would not amount in law to the relevant failure.

[25]The whistleblower’s belief must be reasonable and so there must be some information which tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. The Respondent also refers to the authority of Kraus v Penna Plc

[2004] IRLR 260

to argue that likely to fail (in that case) with a legal obligation was a higher test that just showing a possibility or risk. “In construing the words “likely” in other legislation in the employment sphere the Courts have equated it with probable on a number of occasions.”

[26]The reasonableness of the belief will depend in each case on the volume and quality of information available to the worker at the time the decision to disclose is made. This was made clear by the EAT in Darnton v University of Surrey

[2003] IRLR 133

, EAT in which it was confirmed that the proper test to be applied is whether or not the employee had a reasonable belief at the time of making the relevant allegations, although it was recognised that the factual accuracy of the allegations may be an important tool in determining whether or not the employee did have such a reasonable belief the assessment of the individual's state of mind must be based upon the facts as understood by him at the time.

[27]It follows that the individual characteristics of the worker need to be taken into account and the relevant test is not whether a hypothetical reasonable worker could have held such a reasonable belief. This was affirmed by the EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

. The EAT also confirmed that in certain cases the subjective nature of the test may increase the level of reasonableness required by the legislation; there may be things that might be reasonable for a lay person to have believed (however mistakenly) that certainly would not be reasonable for a trained professional to have believed.

[28]The EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

also confirmed that in cases where there is a plethora of disclosures, the requirement is that there was a reasonable belief in relation to each; it is not enough that the claimant can be shown to have believed in the general gist of his complaints. An unsubstantiated expression of opinion where for instance it is evident that the factual basis of an allegation is false is unlikely to amount to a reasonable belief.

[29]The question of whether a worker has a reasonable belief must therefore be decided on the facts as understood by the worker at the time the disclosure was made, and not on the facts as subsequently found by the Tribunal. Employment tribunals must therefore guard against use of hindsight to assess reasonableness.

[30]The Claimant’s representative carefully reminded the Tribunal in detailed written submission, of its powers under Rule 37(1) of the Employment Tribunal Rules of Procedure 2013. The thrust of the Claimant’s submissions was simple, that the power to strike out claims should be used sparingly, and cases should not, as a general principle, be struck out where the central facts are in dispute.

[31]It also well established that a disclosure takes place even where an individual is provided with information of which they are already aware.

Conclusions

[32]The first alleged disclosure sets the concerns raised by the Claimant about the proposed business structure and the involvement of the 2nd Respondent in promoting it. That e-mail is found at pages 72 and 73 of the Bundle and illustrates that Claimant’s concerns about the proposed deal.

[33]The Tribunal was also taken to the disclosures (and supporting documentation) now set out in the Further Information provided by the Claimant on 28 September 2018, which was set out at page 39 of the bundle.

[34]The Respondent’s position was that these communications were far from protected disclosures. At best they were the Claimant’s own views as to how a deal may or may not be structured.

[35]In his Further Particulars, the Claimant refers to a conversation that took place between himself and Warwick Brady in which he explained his concerns that the proposal gave rise to related party, conflict of interest and breach of duty issues.

[36]This was followed by the allegation at paragraph 4 of the Further Particulars in which the Claimant claims that he expressed the same concerns in conversations during the remainder of November 2017 and into early December 2017.

[37]This led to a text message dated 7 February 2018 in which the Claimant stated: “OK, Just to explain my concerns from a slightly different perspective. We are a regulated business, as we need to be to do the work we want to do. You and I are regulated persons and we have an obligation amongst others to manage conflicts. The obvious conflict we have is with your various connections to Stobart Group. You have a right to look after your shareholding but through the management agreement with Group we own a contractual duty of care and we have regulatory obligations to Group as a client. Right now I see Stobart Capital’s position as untenable given your issues and I am concerned about our regulatory exposure, so we need to discuss that today.”

[38]The Respondent relies on two documents to suggest that the Claimant’s concerns were/are less significant than the Claimant suggests, these being an e-mail from Warwick Brady – CEO group dated 27 January 2018, sent after the Claimant alleges that he raised his concerns about an alleged conflict and another the same day confirming that the 2nd Respondent could co-invest in ventures that “fit with group strategy”.

[39]The Respondent also relies on attestation to the FCA (page 74 of the Bundle) signed by the Claimant on 08 January 2018, suggesting that he was not aware of any conflicts. This attestation postdates the alleged disclosures in November but pre-dates the alleged disclosure in February 2018. This, the Respondent suggests, contradicts the Claimant’s arguments that he had concerns about the 2nd Respondent’s proposal.

[40]The Respondent also relies on evidence given by the Claimant in parallel litigation between Stobart Group Limited and Mr Tinkler (the 2nd Respondent in these proceedings). The Claimant is a witness in these High Court proceedings and although having given evidence that he was concerned about an inappropriate transaction, he accepted in evidence before that Court that he had not put forward his concerns about a breach of regulatory obligations at the time.

[41]The Respondent also says that the proposal put forward by the 2nd Respondent, which the Claimant clearly had issue with, was always subject to the approval of the Value Committee, a fact that the Claimant was alive to. It would also need to be approved by the Group Board before it was allowed to continue.

[42]Addressing the Respondent’s application for a strike out/deposit order in relation to some, or all of the Claimant’s whistleblowing claims:(i) It is difficult to conclude that the Claimant has no or little reasonable prospect of success in relation to the communication of 7 February 2018 (sms message from the Claimant to Andrew Tinkler). [Page 82 bundle]. The Claimant sets out some detail of his concerns and flags that there are contractual and regulatory obligations in play. The question of whether this particular allegation meets the statutory threshold must be determined in context, considering the Claimant’s insight and the surrounding circumstances. This can only be done through considering the evidence.

(ii) It is equally difficult to how the alleged disclosures set out at pages 39/40 of the Bundle in which the Claimant says that he set out his concerns regarding the new group structure can be properly assessed without considering any evidence. The alleged disclosures are made in discussions and the content of, and reaction to, those discussions will be highly probative of the issue of whether there has been a protected disclosure.

(iii) I have some sympathy for the Respondent’s arguments as regards the communication of 20 November 2017. This communication does seem to simply contain the Claimant’s views, with no information that shows, or tends to show, any impropriety. The challenge for this Tribunal, is that this communication needs to be considered in context of the conversations that took place between 12-19 November and around 20th November, which may then provide some background to the more generalised written concerns expressed by the Claimant in his e-mail of 20 November 2018. This background evidence is perhaps even more important in cases based on an argument of constructive, rather than actual, unfair dismissal. Ultimately these are issues that can only be properly assessed through evidence, particularly the evidence of the Claimant, not a simple reading of e-mails in isolation at a preliminary stage.

(iv) In reaching my conclusion I have relied heavily on the guidance of the Court of Appeal in the Kilraine v London Borough of Wandsworth case in particular that the concept of “information” as used in s 43B(1) ERA is capable of covering statements which might also be characterised as allegations and 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 light of all the facts of the case, taking into account the issue of “reasonable belief” and “context”. Without any evidence I feel ill equipped to take a view on these matters, supporting the Claimant’s argument that this case is indeed too fact sensitive for a strikeout/deposit order at this preliminary stage. In coming to this conclusion, I am comforted by the guidance in the Western Union case that a disclosure of information can sometimes be found from a statement of position and that this assessment will always be fact sensitive.

(v) The fact that the Claimant was aware that the proposed deal structured by Mr Tinkler had to go through further checks and the approval of the Value Committee does not detract from the possibility that he was raising genuine and legitimate concerns about that deal. The Claimant’s knowledge may go to the issue of whether he had a “reasonable belief” of the alleged wrongdoing but that should be properly tested through evidence.

(vi) The Claimant’s evidence in parallel High Court litigation will no doubt feature in these proceedings when the Claimant is cross examined, but at this stage I agree with the Claimant’s submissions that it is premature to rely upon a few entries in the transcript of a case that has yet to conclude and in which the 2nd Respondent to these proceedings has yet to give evidence, particularly without reference to the pleadings and issues in that case.

(vii) The context and the reasons for the Claimant’s attestation to the FCA will also need to be assessed in evidence, and may undermine the Claimant’s arguments, certainly in relation to any alleged disclosures before the 8 February 2018. The Claimant may face a significant hurdle to show that he did any more than comment on the structure of a business deal before this date. He would be well advised to take advice on whether these comments meet the required statutory threshold for a protected disclosure. That said, the proper recourse for the Respondent if any of these arguments are pursued unreasonably is through costs, rather than pursuing a premature, but otherwise reasonable, strike out application.

Findings of Fact

[43]Mr Brady told the Tribunal that he therefore formed the view that Mr Tinkler’s proposal could not proceed. He told the Tribunal that he considered that Mr Tinkler felt strongly about his proposal and that Mr Brady did not want to get into a row with Mr Tinkler about it, so Mr Brady decided not to tell Mr Tinkler explicitly that he did not want to proceed with Mr Tinkler’s proposal.

[44]Instead, Mr Brady moved his focus to Private Equity funding. In any event, Mr Brady believed that Mr Tinkler had not produced any evidence of being able to raise the money necessary for his proposal, so Mr Brady believed that his proposal would ultimately wither away, in any event.

[45]Around that time, Mr Brady made contact with Cyrus Capital, a Private Equity Investor and began working on a possible joint bid with Cyrus for FlyBe. Mr Brady told the Tribunal that Mr Tinkler was not keen on a deal with Cyrus and did not want to be involved with it.

[46]On 26 November 2018 Mr Tinkler told Mr Brady by email, pages 752-753, “If you need Stobart Capital to be involved we need to know we have the keys and the steering wheel to deliver this as I will be getting my close friends to invest”. Mr Tinkler said that if Mr Brady felt that this was not the right direction, then Stobart Capital would continue to look for other deals which could create value. Mr Brady told the Tribunal that he took this to mean that Stobart Capital would only be involved in Project Blue and the acquisition of FlyBe if Mr Brady was pursuing Mr Tinkler’s proposal.

[47]The Claimant told the Tribunal that he was aware of Mr Brady’s change in focus and that the Claimant began to pursue the structure that he had proposed, whilst acknowledging the continued existence of the structure proposed by Mr Tinkler.

[48]On 22 November 2017, therefore, the Claimant set out a project timetable for his own 1-step plan, pages 737-737. The 1-step plan was designed to move the Airline off the Group’s balance sheet. The Claimant also said, “At any point if the stars come into alignment around Andrews’s multi step plan and the decision is - 14 - taken to pursue step 1 in isolation, the process can be tweaked to deliver that …”. Mr Tinkler was one of the recipients of this email.

[49]On 26 November 2017 the Claimant sent Mr Tinkler an email saying, “Let’s give setting up the consolidation company our best shot. You know how to turn the target business around, I know how to get the company set up, Paul can help. We will set up the quoted company and give buying Orville our best shot. If we fail the downside is limited. Wilbur can be kept or sold”, page 749 (Note: Orville was a codename for FlyBe and Wilbur was a code name for the Stobart Airline operating business.) Mr Tinkler replied the same day, saying that he totally agreed with the Claimant, page 749.

[50]The Claimant told the Tribunal that this 26 November 2017 email was about the Claimant’s version of the plan. The Claimant said that he had told Mr Tinkler that Stobart Capital was now following the Claimant’s plan. The Claimant agreed, in evidence, that Mr Tinkler’s response was supportive and positive and was not detrimental. The Claimant said that matters between Mr Tinkler and the Claimant had got onto an even keel. He agreed that Mr Tinkler “just wanted to bet the deal done”. The Claimant agreed that he was working as a team with Mr Tinkler at this point and that the relationship was a functioning one.

[51]Just before Christmas 2017, Mr Brady told Mr Tinkler about a possible deal with Cyrus Capital. He informed him that Mr Brady and the Claimant had met with Cyrus Capital and that Mr Brady intended to appointment Barclays as its advisor regarding a possible deal involving Cyrus, page 823.

[52]On 26 December 2017 Mr Tinkler emailed the Claimant about the future for Stobart Capital, page 832. The Claimant replied on 1 January, with his comments on each of Mr Tinkler’s paragraphs. Mr Tinkler had said that he was confused with regard to the proposal to acquire the Stobart Operating Airline - Mr Tinkler said he and Mr Soanes had agreed that they would concentrate on their plan and Warwick Brady would continue to work to see if there was a merger deal. Mr Tinkler said that he had found out, after the event, that the Claimant had met Cyrus as a 50% investor. Mr Tinkler said that the Claimant and he had both agreed that they would only be able to make the deal a success if they had control and made the right decisions at the right time. The Claimant replied that private funding for a bid was always a candidate and Cyrus looked like a good candidate, so that the Claimant was keen to get them interested. The Claimant ended his comments by saying, “One thing we did need on is clarity on your issue/relationship with the Board (of Stobart Group). I can’t believe that you and the Board would end up in any form of litigation but it would be terminal for Stobart Capital if that were to happen so a positive outcome there is important!”. Page 834.

[53]On 8 January 2018 the Claimant signed an FCA Attestation form saying that he was not aware of any breaches of policies or other rules in relation to compliance in Stobart Capital Limited in the period 7 September 2017 to 31 December 2017. He also said that the was not aware of any conflicts of interest in that period, page 965. Mr Tinkler also signed an individual attestation form for the FAC in the same terms. Mr Tinkler’s form had been prepared and checked by the Claimant, page 1010. The Claimant told the Tribunal that he signed the attestation because he believed that there was no conflict of interest or compliance - 15 - breach at the time he signed it. However, the Tribunal noted that the attestation specifically covered the period 7 September 2017 to 31 December 2017.

[54]Mr Tinkler continued to believe in December 2017 and January 2018 that his plan and/or the Claimant’s version of the proposal continued to be a viable proposal for the acquisition of the Stobart Airline operating business by an investment consortium including Mr Tinkler. Mr Brady told the Tribunal that he led Mr Tinkler to believe that there would be a “race to the finish” - between an investment proposal including Mr Tinkler and a separate proposal involving Private Equity investors, specifically Cyrus Capital.

[55]However, the Claimant told the Tribunal that, by the New Year, Cyrus Capital had become the leading candidate to provide the finance for the acquisition of the Stobart Airline operating business.

[56]In January 2018 Mr Tinkler’s relationship with the Stobart Group deteriorated. Mr Tinkler had a meeting with some of the major shareholders in the Stobart Group with the permission of the Group’s Chairman, Mr Ferguson. Mr Brady spoke to representatives of those key shareholders afterwards and believed that Mr Tinkler had been briefing the shareholders against the Board, telling them that he believed that Mr Ferguson should be replaced as Chairman. Mr Tinkler denies that he did this. Nevertheless, the relationship between Mr Tinkler and the Group was clearly precarious at this point.

[57]On 20 January 2018 Mr Brady emailed Mr Ferguson, saying that Mr Tinkler should come off the Board of Stobart Group, but that he should be retained through Stobart Capital, page 1079.

[58]Unfortunately, in January 2018, the Claimant’s sister was very seriously ill. On 26 January 2018 the Claimant told Mr Tinkler and others in Stobart Capital that his family had been advised that his sister had a matter of days to live, page 1093. Mr Tinkler responded sympathetically, saying that the Claimant should not worry about work and that he should take as long as he required to be with his sister and family.

[59]At this time, the Stobart Capital team was working on the proposal for the acquisition of the Stobart Airline Operating Business, to be presented to a Stobart Group Board Meeting to be held on 13 February 2018. Mr Storey, of Stobart Capital, told the Tribunal that, in this period, the Claimant was in and out of the office for understandable reasons. Mr Storey and the team were given individual tasks to undertake, but Mr Storey told the Tribunal that they did not have an overview of the work which was being done on the proposal for the acquisition of the Airline operating business. Mr Storey said that the team might be told one thing by Stobart Group, but that the Claimant might then return to the office and give different instructions.

[60]On 27 January 2018 Mr Brady emailed Mr Ferguson about Mr Tinkler and Stobart Capital. He said that Stobart Capital had been set up to allow Mr Tinkler to contribute his entrepreneurial approach to business, as well as provide corporate and transaction services to Stobart Group, to allow Mr Tinkler to coinvest with ventures which fitted the Group’s strategy; Stobart Capital was another way to - 16 - raise capital for ventures that supported the Group and/or supported Mr Tinkler’s own investment vehicle. He said that there were a number of issues and principles which were problematic in this regard. Mr Brady said that Stobart Capital as an entity was owned 49% by the Claimant and that Mr Tinkler and the Claimant’s relationship seemed to be strained because of those issues, with the Claimant taking a firm stance on some issues around related party and favourable structured deals, and tax, page 1098.

[61]On 5 February 2018 the Claimant sent an abrupt email to Mr Tinkler about Mr Storey potentially having a credit card. He said it had not been discussed and that this was not how things worked, page 1137.

[62]Mr Brady was obtaining advice in early February about removing Mr Tinkler from the Board of Stobart Group. He had obtained the name of a specialist solicitor to handle the process and he forwarded the relevant email chain to the Claimant on 5 February 2018 “FYI (for your information)”, page 1138.

[63]On 19 January 2018 the Claimant sent a private text message to Mr Brady saying “… so far, the strategy of perseverance while undeliverable plans run their course has worked. It just takes so much energy and creates so much inefficiency and cost. It cannot continue beyond the short term but you have a plan for the medium term. I wish I did”, page 144.

[64]Mr Brady responded saying, “Well I think we can find a plan for your medium term! Let’s solve this first step. I think you do great work”, page 144.

[65]There was due to be a meeting between Mr Tinkler and members of the Stobart Group Board on 7 February 2018, to discuss a potential share buyback, as well as Mr Tinkler’s ongoing relationship with the Group. On 6 February 2018 Mr Tinkler texted the Claimant about the meeting and asked him whether he wanted to be involved, page 1151. The Claimant replied saying that he was in two minds, that he was not directly involved in Mr Tinkler’s issues with the Board, but that there were outcomes which could mean that there was no viable future for Stobart Capital, or at least not one that was of interest to the Claimant. He said that he would be caught in the middle of any discussion in the meeting, which would be very uncomfortable, page 1152. Mr Tinkler then replied saying that, if the Claimant was at the office, then they could see how it went and it might help to get the Claimant’s advice, page 1153.

[66]Mr Tinkler was in dispute with the Group at the time about a potential tax liability. On 6 February 2018, after that text exchange, the Claimant sent a proposal to Mr Brady about how the tax dispute might be resolved. He proposed that the Group “buy in” Stobart Capital, making it a subsidiary, which would give Mr Tinkler the money to pay the tax liability.

[67]The following morning, on 7 February 2018, the Claimant sent a text to Mr Tinkler in which he said, “Just to explain my concerns from a slightly different perspective. We are a regulated business, as we need to be, to do the work we want to do. You and I are regulated persons and we have an obligation, amongst others, to manage conflicts. The obvious conflict we have is with your various connections to Stobart Group. You have a right to look after your shareholding but - 17 - through the management agreement with Group we owe a contractual duty of care and we have regulatory obligations to Group as a client. Right now, I see Stobart Capital’s position as untenable given your issues and I am concerned about our regulatory exposure, so we need to discuss that today”. Page 1162. Mr Tinkler replied saying, “Where do you think the conflict is?” page 1163. The Claimant replied further saying, “Seriously? You wouldn’t describe your position as conflicted?” Page 1163.

[68]The Claimant told the Tribunal that he sent this text in relation to Mr Tinkler briefing against the Board, its strategy and the Chairman. It was not apparent from that text that this was the case.

[69]The Claimant also told the Tribunal that, at this point, he was aware that the dispute between Mr Tinkler and the Group regarding a large tax liability of about £4 million could result in legal action between the parties. He was aware that Mr Tinkler was seeking an award of shares from the Employee Benefit Trust worth millions of pounds and that Mr Tinkler had met with some of Stobart Group’s leading shareholders to discuss the award of shares to himself. The Claimant told the Tribunal that Mr Tinkler had told him that Mr Tinkler had sought the support of some of the shareholders for him becoming Executive Chairman of Stobart Group, replacing Mr Ferguson.

[70]The meeting on 7 February went ahead between Ian Ferguson, Group Chairman; Warwick Brady, Group CEO; Paul Hodges, Group Corporate Broker and Advisor; and Mr Tinkler, page 1408. Mr Brady produced a note of the meeting. Mr Hodges, who gave evidence to the Tribunal, told the Tribunal that the note was not accurate, in that his recollection of the meeting was that the vast majority of time was spent discussing share buyback. It was agreed that the note did not reflect that. The note said that the meeting was convened to address Mr Tinkler’s meetings with key shareholders, where feedback suggested that Mr Tinkler was briefing against the agreed company strategy and saying that he did not support the Board and the direction of the company; that rumours were circling from key individuals that Mr Tinkler was considering an Executive Chairman role. Mr Brady’s note said that this was clearly strange, given Mr Tinkler’s request to come off the Board. Mr Brady’s note said that Mr Tinkler told the meeting that he had not briefed against the Board and explained simply that he was not happy with the company direction and Board strategy. At the 7 February meeting, Mr Tinkler acknowledged that his actions had not been acceptable, but said that he was unhappy with the Board and with Stobart Capital, as he felt that Mr Brady was driving the agenda and not Mr Tinkler. Mr Brady’s note of the meeting recorded that all agreed to keep the discussions private and that all Directors had a fiduciary duty to support the agreed Board strategy in external conversations, page 1409.

[71]The note of the meeting recorded that Mr Brady raised Project Blue and “the issue of Ian Soanes”. The note said that Mr Brady explained that Mr Tinkler “could not buy 51% of Stobart Air as a preferred value and then play a part of the bigger bid vehicle, as this was a related party transaction which Stifel would not support.” The note said that this would be “like double dipping from a shareholder perspective”, page 1409.

[72]Mr Hodges told the Tribunal that he did not recall this part of the conversation. - 18 -

[73]The Claimant told the Tribunal that, on or around 8 February, Mr Coombes, a Director of Stobart Group and Chairman of its Value Creation Committee, asked the Claimant to provide an updated presentation to the Board on Project Blue/Wright. The Claimant told the Tribunal that he worked into the early hours of Sunday 11 February 2018 to prepare the presentation for the Stobart Group Board.

[74]The first line of the Board paper reflected the view of the Stobart Group Board at the time and said, “Project Wright has recently become more clearly defined with its focus on a private transaction in partnership with Cyrus Capital Partners reducing the obstacles to implementation and improving the prospects of success”. Pages 1319-1335.

[75]On 10 February 2018 Mr Brady had emailed the Claimant, not copied to Mr Tinkler, telling the Claimant that the objective for the forthcoming Board meeting was, “To approve my proposal to enter into an agreement with Cyrus Capital as our Private Equity Partner to make a “counter proposal” to (FlyBe)…”, page 1273.

[76]The paper produced by the Claimant on behalf of Stobart Capital therefore appeared to support the private transaction in partnership with Cyrus Capital Partners, rather than any vehicle involving Mr Tinkler.

[77]The Claimant sent the report to the team at Stobart Capital at the same time as sending it to Warwick Brady, John Coombes and Richard Laycock at the Stobart Group. It appears that, as soon as Mr Tinkler saw the report, he emailed the Claimant, saying, “I have had a read through and got to admit I am disappointed that I and the team at Stobart Capital have not had a chance to review before it has gone to the Stobart Group Board. Let’s discuss Tuesday how we take things forward”. Page 1287.

[78]Mr Tinkler told the Tribunal that he was disappointed that he had been excluded from the process. He said that the he was suspicious that the Claimant was acting behind his back in communication with Mr Brady. Mr Tinkler said that he felt that it was inappropriate for him to have been effectively cut out of that workstream. The Tribunal accepted Mr Tinkler’s evidence that he felt that the Claimant and Mr Brady were working together and that Mr Brady was giving instructions to the Claimant – that was reflected in the wording of his email, page 1287.

[79]Mr Tinkler and the Claimant had a disjointed text exchange on the afternoon of 11 February 2018. The Claimant said that he would call if he could get a decent signal. He texted later saying he had lost signal again; he said, We can’t have this conversation on a train. I agree that it isn’t working and can’t go on. Let’s talk later about options …”. Page 1295.

[80]Later that night, on 11 February 2018, Mr Tinkler told Mr Soanes that Mr Soanes should take 4 weeks’ leave with pay. He confirmed this in a text on the morning of 12 February 2018, saying, “As I told you last night take 4 weeks leave with pay because I see you needing a rest. And while on leave have a think about your future involvement in Stobart Capital and what that may be and likewise I will. We can then meet to discuss the outcome after your leave period or before if you wish. In the meantime please pass any commitments to myself or information you - 19 - have with Stobart Capital. Please refrain from working as I will delegate all that needs doing to the team. This should clarify my position.”

[81]On 11 February 2018 Warwick Brady emailed Mr Tinkler and the Claimant at 21:14 concerning the Cyrus Capital deal and referred to the fact that the Claimant had been at a meeting with Cyrus the previous Friday, page 125. Mr Tinkler responded to Mr brady, copying the Claimant in, saying, “I was not aware of Ian meeting Cyrus on Friday and he had no brief from me regarding our Stobart Capital involvement .. I was surprise to find an email this morning from Ian to the Stobart Board that I had no site (sic) of before..”, page 1281.

[82]Mr Tinkler told the Tribunal that the Claimant had been upset and stressed about his sister’s grave illness and that Mr Tinkler believed that this was affecting the Claimant’s work. He told the Tribunal that, from what he had seen of the Claimant during this period, the work that he had produced while trying to balance his personal issues and work, meant that that Mr Tinkler felt he would benefit from some time off.

[83]During phone call on 11 February 2018 the Claimant had been resistant to taking the leave. Mr Tinkler told the Tribunal that he believed this decision was taken in the Claimant’s best interests, but also those of Stobart Capital. Mr Tinkler did not suggest that the Claimant be referred to Occupational Health. When asked in the cross examination what evidence he had about the Claimant not producing work of the required standard, or behaving erratically, Mr Tinkler pointed to one email from the Claimant objecting to the issue of a corporate credit card.

[84]Mr Coombes told the Tribunal that the Claimant’s report for the Board on 11 February 2018 was prepared to the Claimant’s usual high standard.

[85]On all the evidence, the Tribunal concluded that Mr Tinkler had very little evidence that the Claimant’s quality of work was suffering due to the Claimant’s understandable distress about his sister’s illness.

[86]The Claimant did not want to take time away from work. On 12 February 2018 he wrote to Mr Tinkler, saying that he neither needed nor wanted to take four weeks off work. He said that matters were at a critical point with the project and that for him to be absent would be prejudicial to the interest of the Stobart Group, Stobart Capital and to the Claimant’s own interests. He said that Mr Tinkler had suspended him from work. He asked him on what basis, and by what authority, Mr Tinkler had suspended him. The Claimant said that the ACAS Code of Practice on Disciplinary and Grievance Procedures had not been followed. The Claimant said that Mr Tinkler’s reliance on the Claimant’s sister’s illness to justify Mr Tinkler’s actions was cynical and disingenuous. The Claimant went on to say that Mr Tinkler’s multiple interests in the Stobart Group as a Director, a major shareholder and through Stobart Capital’s Management Agreement with Stobart Group and his position as Director and shareholder of Stobart Capital had had the potential to give rise to a conflict. He said, “In recent weeks, the potential has developed into an actual conflict”. He said that this was evidenced by, amongst other things, the meeting between Mr Ferguson, Mr Brady and Mr Tinkler, attended by Paul Hodges, which was convened to attempt to resolve the dispute. The Claimant said, “By virtue of your failure to declare your conflict to the Company’s Board and - 20 - obtain clearance, you are in breach of clause 17.1 of the Company’s Articles and s175 of the Companies Act 2006. Were you to seek such clearance, in view of your conduct in recent times, I would not authorise it. Accordingly, you are now instructed that you may not hold yourself out as representing the company in matters relating to Stobart Group in general and Project Wright in particular, nor may you delegate such authority to any other person… A Stobart Group Board Meeting is scheduled for tomorrow … you are not permitted to comment to Stobart Group at the Board meeting or at any other time on matters relating to the Company or its position in relation to Project Wright …”. Page 1312.

[87]On 11 February 2018 the Claimant had forwarded Mr Tinkler’s email expressing disappointment to Warwick Brady. The next day, Mr Brady sent a document to the Claimant, saying, “See the attached. I think this gives you some leverage around change of control.” Just after the Claimant had sent his letter of 12 February 2018 to Mr Tinkler, informing Mr Tinkler that Mr Tinkler was not permitted to hold himself out as representing Stobart Capital and should not comment to the Stobart Group at the Board meeting on matters relating to Stobart Capital or its position in relation to Project Right, the Claimant asked to meet Mr Brady early the next morning for 10 minutes. He said, “I think a small thermonuclear device has just detonated in Carlisle”. Mr Tinkler lives in the Carlisle area.

[88]The Tribunal concluded that the Claimant was intending to tell Warwick Brady about the text of his letter of 12 February 2018 and the fact that he had told Mr Tinkler that he could not represent Stobart Capital. It appeared, from the email exchange between the Claimant and Mr Brady on 11 - 13 February 2018, pages 1336-1338, that the Claimant was keeping Mr Brady informed about the Claimant’s interactions with Mr Tinkler and, likewise, Mr Brady was feeding back to the Claimant about Mr Brady’s own interactions with Mr Tinkler.

[89]After the Board meeting on 13 February 2018 there were email exchanges between Mr Brady, Mr Tinkler and John Storey about the ongoing proposals for Project Wright. Mr Brady copied the Claimant into some of the exchanges, page 1359. On 16 February 2018 Mr Tinkler replied to the Claimant’s letter of 12 February, saying that he was taking legal advice but that the position remained that the Claimant should take the next 4 weeks off. He said, “I made the suggestion in your best interests with all you have been going through personally at the present time. I would like to confirm that you are not being suspended”, page 1362.

[90]Mr Tinkler told the Tribunal, however, that, as a result of the Claimant’s paper prepared for the Board on 11 February 2018, he grew suspicious that the Claimant had been acting behind Mr Tinkler’s back, in conjunction with Mr Brady. Mr Tinkler told the Tribunal that he obtained authorisation from Stobart Group IT Controllers to look at the Claimant’s Stobart Capital email account. Mr Tinkler explained that, because Stobart Capital used Stobart Groups IT systems, it was the Stobart Group IT procedure which needed to be followed.

[91]Mr Tinkler carried out a search of the Claimant’s Stobart Capital email account and discovered a draft email by the Claimant, page 1367. It appeared to be written a senior person in Stobart Group. The email, drafted on Saturday 17 February 2018, said that the Claimant planned to resign from Stobart Capital “by - 21 - Monday morning”. It said that the Claimant would make a claim for constructive dismissal to protect himself since Mr Tinkler had breached his contract. The email also said that the Claimant could be available to Stobart Group as a Consultant as of that Monday morning and that there needed to be no cost to the Group if the Claimant was still paid by Stobart Capital for the period of his notice. The email went on to say that, if Mr Tinkler disputed this, the Group could deduct the consultancy cost from the Stobart Capital retainer, on the ground that the Group were still paying Stobart Capital for the Claimant’s services, but were no longer receiving them. The Claimant’s draft email said, “If I were you, I would make me in charge of all SCL projects on a day to day basis on behalf of Stobart Group so that SCL reports to you through me… AT would enjoy that! It would show AT which of you were calling the shots!”. The email said that there would be a suspension of regulated status. The Claimant then set out some possible options regarding his shareholding and Directorship. He said if he walked away and left Mr Tinkler to Stobart Capital, this would open up another front in the battle between Stobart Group and Mr Tinkler. He proposed that they worked together to find a solution instead. He said, “We are only in this situation because I have stood by SGL and not allowed AT to abuse his position so I hope we can find a sensible outcome”. The Claimant proposed that they agree a sale of the Claimant’s shares in Stobart Capital to Stobart Group for a sum of money, plus additional sums if Project Wright and another project completed. The Claimant suggested that, if the Group bought the Claimant’s shares, but also Mr Tinkler’s shares in Stobart Capital, this could solve the tax issue between Mr Tinkler and the Group.

[92]Mr Brady spoke to Mr Tinkler on 15 February 2018 and recorded his impressions of the telephone call in an email to Ian Ferguson on 16 February. Mr Brady reported that Mr Tinkler had said that the Claimant was not well, but the dispute was all about greed and that the Claimant had turned on Mr Tinkler. Mr Brady urged Mr Tinkler to sort matters out with the Claimant, but Mr Tinkler repeated that the Claimant had turned on him, page 1365.

[93]Unbeknownst to Mr Tinkler, the Claimant did send his draft email, saying that he was going to resign, to Mr Brady, later on Saturday 17 February, page 1415. Mr Brady responded, encouraging the Claimant not to resign. Mr Brady said that the Stobart Group would not be interested in buying the Claimant’s shares in Stobart Capital. The Claimant responded further on Sunday 18 February 2018, saying that, ordinarily constructive dismissal would not be a smart route, but that he had “another opportunity” which he had to take by the end of the week if he was not needed at Stobart, so he could not be bound by his employment contract. He reiterated that the solution was for Stobart Group to use that as the opportunity to deal with tax and everything else with Mr Tinkler, by effectively buying out the Management Agreement on a tax efficient basis, giving Mr Tinkler a value benefit and releasing the Group from all commitments, pages 1413-1414.

[94]On 19 February 2018 the Claimant wrote to Mr Tinkler, resigning from Stobart Capital. He said that Mr Tinkler’s requirement for the Claimant to take time away from work amounted to an unwarranted suspension from normal duties and that the manner in which Mr Tinkler had conducted himself was plainly intended to undermine the Claimant’s position and prevent him from discharging Stobart Capital’s obligations under its Management Agreement with Stobart Group - 22 - Limited, for which, as Stobart Capital’s senior employee, the Claimant was responsible. The Claimant said that Mr Tinkler’s actions had also damaged irrevocably the Claimant’s relations with the rest of Stobart Capital’s employees. The Claimant said that his suspension did not reflect the Claimant’s conduct or his performance and that Mr Tinkler’s capricious conduct had significantly undermined the necessary element of trust and confidence. The Claimant said that he reserved his legal rights in relation to the breach of his contract of employment, including the fact that he had raised significant matters concerning the company’s obligations to its client and to the relevant regulatory body, pages 1409a-1409c.

[95]Mr Tinkler replied on behalf of Stobart Capital on 19 February 2018. He said that it was correct that he had insisted that the Claimant take 4 weeks off work for the benefit of his health and family wellbeing. Mr Tinkler said that he had previously said that he would need to consider the Company’s Articles to understand what the process would be if the Claimant continued to refuse to follow Mr Tinkler’s instructions. Mr Tinkler said that his invitation to the Claimant to think about his future involvement with Stobart Capital followed from previous text exchanges: when the Claimant had stated that there were outcomes to all of this which meant that there was no viable future with Stobart Capital; and when the Claimant had said that he agreed that things weren’t working and could not go on.

[96]Mr Tinkler said that the Claimant’s resignation, by giving less than 3 months’ notice, was a repudiatory breach of the contract, but that the company waived the breach, affirmed the contract and confirmed that the Claimant continued to be bound by the terms of it. He said that he accepted the Claimant’s letter as serving 3 months’ notice of termination of employment and confirmed that the Claimant would continue to be employed by Stobart Capital until 19 May 2018. He went on, “I do have to advise you, however, that over the course of the weekend some very serious matters have come to light which tend to suggest that you have acted or are proposing to act in breach of the fiduciary duties which you owe to the company as a Director and senior employee. As such I write to confirm that you are suspended with immediate effect on full pay pursuant to clause 12.2 of your service agreement pending an investigation into these matters which is to be conducted by an outside law firm …”. Pages 1405-1406.

[97]Mr Tinkler arranged for the Claimant’s DF30 accreditation to be withdrawn, page 1406.

[98]In paragraph 93 of the Claimant’s witness statement, the Claimant referred to Mr Tinkler’s cross examination in High Court Proceedings when Mr Tinkler said that he believed that that the Claimant was part of a plot of some sort to remove him from Stobart Capital and to promote the Claimant’s own interests with Stobart Group. The Claimant referred to the conversation that Mr Tinkler had had with Mr Brady on 15 February 2018, wherein Mr Tinkler said that the Claimant had turned against him and referred to the Claimant as a “double agent”. The Claimant told the Tribunal that this was not true in any way. The Claimant explained his draft email to Mr Brady. He said that, at the time, he felt that Mr Tinkler had unilaterally ended a ten year working relationship between the Claimant and Mr Tinkler and that his actions threatened to leave the Claimant with nothing from the interest in Stobart Capital that he had worked for the past 18 months to create. The Claimant said that, naturally, he wished to try to rescue some value from the action that Mr - 23 - Tinkler had taken against him. In his witness statement, the Claimant said that the proposals he made to Mr Brady in his draft resignation letter could also potentially have solved the tax dispute between Mr Tinkler and Stobart Group, which the Claimant had previously addressed in his emails of 6 February 2018 and a paper on 8 February 2018, proposing that Mr Tinkler and the Claimant sell their shares to Stobart Group.

[99]No investigation into the Claimant’s actions was ever concluded by Stobart Capital. Mr Tinkler told the Tribunal that independent investigators had been appointed but that the Claimant did not meet with them and therefore the investigation could not make any progress.

[100]The FCA requires firms regulated by it to manage conflicts of interest fairly between themselves and their customers. Mr Tinkler had a fiduciary duty, both in common law and pursuant to s.176 Companies Act 2006, to avoid conflicts of interest.

[101]Stobart Capital had contractual obligations, pursuant to s.2.4 of its Management Agreement with Stobart Group, to act in good faith and in accordance with good market practice.

[102]On 19 February 2018 Mr Soanes sent Mr Tinkler expressing his distress about the way he felt Mr Tinkler had behaved towards him. Mr Tinkler forwarded it to Mr Storey, saying, “Keep to yourself the man is not well”, page 26 supplementary bundle. Mr Tinkler also sent Mr Storey the draft email that he had discovered on the Claimant’s Stobart Capital email account regarding his intended resignation, page 27 supplementary bundle. The Claimant relied on these in contending that Mr Tinkler was someone who acted with scant regard for legal duties, including duties regarding data protection. Relevant Law Protected Disclosures

Relevant Law

[103]An employee who makes a "protected disclosure" is given protection against his employer subjecting him to a detriment, or dismissing him, because he has made such a protected disclosure.

[104]"Protected disclosure" is defined in s43A Employment Rights Act 1996: "In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H."

[105]"Qualifying disclosures" are defined by s43B ERA 1996, "43B Disclosures qualifying for protection (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— …………….. - 24 - (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject…".

[106]The disclosure must be a disclosure of information, of facts, rather than opinion or allegation (although it may disclose both information and opinions/allegations). Although there is no strict dichotomy between an allegation and the disclosure of information, a bare assertion, devoid of factual content, such as, “You are not complying with health and safety requirements”, will not constitute a valid protected disclosure, Cavendish Munro Professional Risk Management v Geldud

[2010] ICR 325

[24] – [25].

[107]In order for a statement to be a qualifying disclosure for the purposes of s43B(1) ERA, it had to have sufficient factual content and specificity capable of tending to show one of the matters listed in paragraphs (a) –(f) of that section, Kilraine v LB Wandsworth

[2016] IRLR 422

[108]A qualifying disclosure is a protected disclosure if it is made to the employee’s employer, or other responsible person, s43C ERA 1996.

[109]It is also a protected disclosure if made in accordance with s43G ERA 1996. 43G Disclosure in other cases(1) A qualifying disclosure is made in accordance with this section if—… (b) [the worker] reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, (c) he does not make the disclosure for purposes of personal gain, (d) any of the conditions in subsection (2) is met, and (e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2) The conditions referred to in subsection (1)(d) are— (a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F, (b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or (c) that the worker has previously made a disclosure of substantially the same information— (i) to his employer, or - 25 - (ii) in accordance with section 43F.

(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to— (a) the identity of the person to whom the disclosure is made, (b) the seriousness of the relevant failure, (c) whether the relevant failure is continuing or is likely to occur in the future, (d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person, (e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and (f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

[110]Protection from being subjected to a detriment is afforded by s47B ERA 1996, which provides: "47B Protected disclosures (1)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."

[111]A "whistleblower" who has been subjected to a detriment by reason of having made protected disclosures may apply for compensation to an Employment Tribunal under s48 ERA 1996. On such a complaint, it is for the employer to show the ground upon which any act was done, s48(2) ERA 1996.

[112]The term 'detriment has been explained by Lord Hope in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

at 34:“ .. [the] tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. ……….. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might - 26 - take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment." Protected Disclosure Detriment – Causation

[113]In Fecitt v NHS Manchester

[2012] ICR 372

, the Court of Appeal held that the test of whether an employee has been subjected to a detriment on the ground that he had made a protected disclosure is satisfied if, “the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower." Per Elias J at para [45].

[114]The making of a protected disclosure cannot shield an employee from disciplinary action, including dismissal, which is taken for reasons other than the fact that the employee has made a protected disclosure, Bolton School v Evans

[2007] ICR 641

. Unfair Dismissal

[115]By s94 Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by his employer. Automatically Unfair Dismissal

[116]A whistleblower who has been dismissed by reason of making a protected disclosure is regarded as having been automatically unfairly dismissed, s103A ERA 1996, "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."

[117]By section 95(1)(c) ERA 1996, an employee is dismissed by his employer if the employee terminates the contract under which he is employed, in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. This form of dismissal is known as constructive dismissal.

[118]In order to be entitled to terminate his contract and claim constructive dismissal, the employee must show the followinga. The employer has committed a repudiatory breach of an express or implied term of the employment contract. Every breach of the implied term of trust and confidence is a repudiatory breach, Morrow v Safeway Stores

[2002] IRLR 9

b. The employee has left because of the breach, Walker v Josiah Wedgewood & Sons Ltd

[1978] ICR 744

;

c. The employee has not waived the breach- in other words; the employee must not delay his resignation too long, or indicate acceptance of the changed nature of the employment.

[119]The evidential burden is on the Claimant. Guidance in the Western Excavating (ECC Limited) v Sharp

[1978] ICR 221

case requires the Claimant to demonstrate that, first the Respondent has committed a repudiatory breach of his - 27 - contract, second that he had left because of that breach and third, that he has not waived that breach. Nature of Repudiatory Breach

[120]In order to establish constructive dismissal based on a repudiatory breach of the implied term of trust and confidence, the employee must show that the employer has, without reasonable and proper cause, conducted himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between them, Mahmud v Bank of Credit and Commerce International SA

[1997] ICR 606

, Baldwin v Brighton and Hove City Council

[2007] ICR 680

and Bournemouth University Higher Education Corporation v Buckland

[2009] IRLR 606

[121]The question of whether the employer has committed a fundamental breach of the contract of employment is not to be judged by the range of reasonable responses test. The test is an objective one, a breach occurs when the proscribed conduct takes place.

[122]To reach a finding that the employer has breached the implied term of trust and confidence requires a significant breach of contract, demonstrating that the employer’s intention is to abandon or refuse to perform the employment contract, Maurice Kay LJ in Tullett Prebon v BGC

[2011] IRLR 420

, CA, para 20. Discussion and Decision Qualifying Disclosures

[123]1. Conversation which took place between the Claimant and Mr Tinkler on 9 November 2017. The Tribunal decided that, in a conversation between the Claimant and Second Respondent on 9 November 2017, the Claimant criticised the structure of the proposal put forward by Mr Tinkler for Project Blue and said that the structure was inappropriate and personally benefiting to the Second Respondent and his consortium to the detriment of Stobart Group.

[124]The Tribunal did not find the Claimant gave any further detail about any alleged breaches of legal obligations by Mr Tinkler, nor any other factual information.

[125]The relevant legal obligations to which the Claimant may have been referring were:a. Mr Tinkler’s fiduciary duty to avoid conflicts of interest;

b. Stobart Capital’s regulatory obligation to manage conflicts fairly between itself and its customers;

c. the contractual obligations placed on Stobart Capital pursuant to cl.2.4 Management Agreement to act in good faith and in accordance with good market practice. - 28 -

[126]In order to be a qualifying disclosure, the relevant disclosure must be a disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.

[127]Therefore, in order for this alleged protected disclosure to constitute a protected disclosure, the Claimant must have disclosed information. Although there is no strict dichotomy between an allegation and the disclosure of information, a bare assertion, devoid of factual content, such as, “You are not complying with health and safety requirements”, will not constitute a valid protected disclosure, Cavendish Munro Professional Risk Management v Geldud

[2010] ICR 325

[128]Further, in order for a statement or disclosure to be a qualifying disclosure, it has to have sufficient factual content and specificity such as is capable of tending to show one of the matters listed in the relevant sub section, Kilraine v London Borough of Wandsworth.

[129]The Tribunal concluded that what the Claimant said on 9 November 2017 was a bare assertion, devoid of any factual content. It did not have sufficient factual content and specificity to be capable of tending to show a breach for legal obligation. The allegation was in general terms. It contained no facts on which the generalized allegation was based and did not refer to any specific obligation. The Tribunal decided that the first alleged protective disclosure did not amount to a qualifying disclosure.

[130]2. Conversations that took place between the Claimant and Second Respondent between 12-19 November 2018 in which the Claimant continued to assert that the structure proposed by the Second Respondent was not appropriate and should not be pursued on the grounds that it benefited the Second Respondent and his consortium personally and unnecessarily and so gave rise to related party and conflict of duty issues and also put the First Respondent in breach of its contractual deities to Stobart Group Limited. The Tribunal has not made any findings of fact that such conversations took place between the Claimant and the Second Respondent between 12-19 November 2018. There was no evidence on which to do so. The conversations did not take place. These alleged qualifying disclosures did not occur.

[131]3. The Claimant’s email of 20 November 2017. In the Claimant’s email, he said that the idea of the Stobart Group selling a business and investing in an entity to effectively buy it back at a high price would be difficult for the Board to accept. He said that an alternative view was that value would be transferred from the Group to the investors. He attached an analysis suggesting that the Group was transferring £12 million pounds or more to the other investors. He said that Mr Tinkler said this was a reasonable price to pay for the investors making the deal happen, but the Claimant said that that was a highly contentious argument. He said that the deal would have to be signed off by a sponsor and any related party transaction was controversial; the Claimant said that Cenkos had already claimed conflict. The Claimant said any long-term commitment by the - 29 - Group of the sort that could make the Airline worth £40 million would have very negative accounting implications for the Group and for the Airline.

[132]The Tribunal decided that these matters constituted information, which the Claimant disclosed to Mr Tinkler. The Tribunal accepted the Claimant’s argument that, in relation to transfer of value from a public listed company, it was in the Claimant’s reasonable belief that the information that he was disclosing to Mr Tinkler was made in the public interest; it related to a very large, well-known company in which there were a large number of investors.

[133]The Tribunal had to decide whether, in disclosing that information, the Claimant had a reasonable belief that it tended to show that Mr Tinkler was failing or was likely to fail to comply with any legal obligation to which he was subject. The Respondents contended that the Claimant did not have such belief. They pointed to a number of pieces of evidence in this regard:a. The Claimant agreed, in evidence, that simply by making a proposal, Mr Tinkler was not in breach of any fiduciary duties. He said that if, however, Mr Tinkler had persevered with it in light of the Claimant’s objections, then Mr Tinkler would be in breach of fiduciary duties.

b. On 8 January 2018 the Claimant had signed an FCA attestation covering the period 7 September 2017 to 31 December 2017 in relation to Stobart Capital Limited and said that there were no conflict of interests in that period and that he was not aware of any breaches of policies or other rules, page 965.

c. Furthermore, it was the case that, from the inception of Stobart Capital, it was envisaged that there could be conflicts of interest between Mr Tinkler as an individual and investor, compared to Mr Tinkler as a Member of Stobart Group Board and these conflicts were managed by the structure which was introduced, which included a Value Creation Committee to scrutinise any proposal. Mr Tinkler was not permitted to sit on the Value Creation Committee, nor was he permitted to appear before it to propose a proposal.

[134]The Respondents therefore contended that, when the Claimant wrote his email on 20 November, he did not believe that Mr Tinkler was breaching his obligations in making the proposal, nor could he reasonably have believed that the information he disclosed tended to show that anybody was likely to be in breach of any legal obligation, given the structures which were in place at Stobart Capital to manage the conflict of interest to ensure that they did not eventuate.

[135]However, the Tribunal accepted that it was in the Claimant’s reasonable belief that his disclosure of the amount of value transfer from the Group to the investors, who included Mr Tinkler, a Director and Member of the Board of the Group, did tend to show that such a transfer of value would amount to a failing by Mr Tinkler to comply with his fiduciary duties. The Claimant was saying that, if the structure was pursued, it could involve a breach of fiduciary duty on the part of Mr Tinkler. - 30 -

[136]The Tribunal noted that Claimant also spoke to Warwick Brady at the time, disclosing his concerns about Mr Tinkler’s proposal. This showed that the Claimant believed that Warwick Brady had not been aware of the potential transfer value. Indeed, in evidence to the Tribunal, Warwick Brady confirmed that he had not hitherto appreciated that this was a risk. Given that the Claimant believed that Warwick Brady wasn’t aware of the risks, and that Warwick Brady would have been one of the people who was required to assess Mr Tinkler’s plan on the Value Creation Committee, the Tribunal did accept that the Claimant’s disclosure of information was made in the Claimant’s reasonable belief that there was likely to be a breach of legal obligation by Mr Tinkler, in the circumstances that the Members of the Valuation Committee didn’t, at that point, appreciate the risks.

[137]The Tribunal therefore found that the Claimant’s email of 20 November 2017 did amount to a qualifying disclosure. It was made to Mr Tinkler, of his employer, and it was therefore also a protected disclosure.

[138]4. Conversations which took place between the Claimant and Warwick Brady in which the Claimant showed Mr Brady a copy of the attachment to the email dated 20 November 2017 and at which the Claimant explained his concerns about the structure being proposed by the Second Respondent, including the Claimant’s assertion that it gave rise to related party conflict of interest and breach of duty issues. The Tribunal accepted Mr Brady’s evidence that, on 20 November 2017, the Claimant had shown Mr Brady the spreadsheet which he had attached to his email to Mr Tinkler and that the Claimant had explained that, by proceeding with Mr Tinkler’s structure, the Stobart Group would be transferring £12 million of value to Mr Tinkler and his consortium, for no real benefit to the Stobart Group. The Tribunal accepted his evidence that the Claimant explained how the valuation in Mr Tinkler’s proposal was £20 million at Step 1, but would increase to £40 million within a short space of time at Step 3, without there being any material change to the business, except for the change to the payment from Stobart Group to Stobart Air to provide ESO services from London Southend Airport. It accepted his evidence that this was new information to him, which contradicted his earlier understanding of Mr Tinkler’s presentation.

[139]Again, the Tribunal decided that this was a disclosure of information which, in the Claimant’s reasonable belief was made in the public interest and tended to show that Mr Tinkler was likely to be in breach of his legal obligations. The disclosure was therefore a qualifying disclosure.

[140]The Claimant relies on s.43G Employment Rights Act 1996 in saying that this qualifying disclosure was a protected disclosure. The Tribunal accepted that the Claimant did not make the disclosure to Mr Brady for personal gain.

[141]Regarding the conditions in s.43G(2) ERA, the Claimant had previously made a disclosure of substantially the same information to his employer (Mr Tinkler of Stobart Capital). The Tribunal then went on to consider whether, in all the circumstances of the case, it was reasonable for the Claimant to make the disclosure under s.43G(1)(e) Employment Rights Act 1996. It had to take into account the identity of the person to whom the disclosure was made, the seriousness of the relevant failure, whether the relevant failure was continuing or likely to occur in the future, whether disclosure was made in breach of a duty of - 31 - confidentiality owed by the employer to any other person, any action which the employer had taken, or might reasonably have been expected to have taken as a result of the previous disclosure, and whether, in making the disclosure to the employer, the worker had complied with any procedure authorised by the employer.

[142]Given that the Claimant’s disclosure to Mr Tinkler would have been about Mr Tinkler himself and there was no independent person at the First Respondent employer to make the disclosure to, and that Mr Brady was part of the Value Creation Committee which had responsibility for managing conflicts of interest between Mr Tinkler and Stobart Group, the Tribunal concluded that it was reasonable for the Claimant to make the disclosure to Mr Brady. The Claimant could not necessarily be confident that Mr Tinkler would act independently in relation to the disclosure. Given that the Claimant was attempting to avoid conflicts of interest and breaches of duties, it was reasonable and appropriate for him to alert another person with responsibility for the matter to the potential breach of obligation. The Claimant’s disclosure to Mr Brady was therefore a protected disclosure.

[143]5. Conversations which took place after the emails sent on 20 November 2017 during the remainder of November 2017 and into early December 2017 in which the Claimant and Second Respondent continued to discuss the proposed structure and during which the Claimant continued to outline his concerns about the proposed structure including that the structure gave rise to related party and conflict of duty issues and also put the First Respondent in breach of its contractual duties with was Stobart Group Limited. Given the lack of evidence the Tribunal heard in relation to these alleged protected disclosures, the Tribunal did not make findings of fact about any conversations between the Claimant and Mr Tinkler about these matters during the rest of November 2017 and December 2017. It was unable to find that the Claimant did disclose any particular information to Mr Tinkler in oral conversations during this time.

[144]6. The Claimant’s text message of 7 February 2018 in which he stated … “just to explain my concerns from a slightly different perspective we are a regulated business as we need to be to do the work we want to do. You and I are regulated persons and we have an obligation amongst others to manage conflicts. The obvious conflict we have is with your various connections to Stobart Group you have a right to look after your shareholding but through the management agreement with Group we owe a contractual duty of care and we have regulatory obligations to Group as a client. Right now, I see Stobart’s position as untenable given your issues and I am concerned about our regulatory exposure so we need to discuss that today…” .

[145]The Claimant told the Tribunal that he sent this text in relation to Mr Tinkler briefing against the Board, its strategy and the Chairman. It was not apparent from that text that this was the case.

[146]The Tribunal decided that the text was a mere assertion, without any information. It was impossible to tell from the text what obligations might be - 32 - breached or what conflict or issues the Claimant was talking about. That this was the case was revealed by Mr Tinkler’s reply, “Where do you think the conflict is?” page 1163. The Tribunal has found that the Claimant had previously made protected disclosures in November 2017, but the 7 February 2018 text was allegedly about entirely different facts. The context and the previous disclosures therefore do not assist in elucidating the 7 February 2018 text.

[147]The Claimant’s further reply, “Seriously? You wouldn’t describe your position as conflicted?” Page 1163, gave no further factual information.

[148]The texts did not contain sufficient factual content and specificity so as to be capable of tending to show one of the matters listed in s43B(1) ERA and therefore could not amount to a qualifying disclosure. Detriments

[149]The Claimant relied on a number of detriments:

[150]1. The treatment of the Claimant by the Second Respondent in particular by becoming increasingly agitated by the Claimant when he would not accept the proposal being promoted by the Second Respondent which the Claimant believed would result in the breach of legal obligations.

[151]The Tribunal was unable to make to any factual findings that Mr Tinkler had become agitated as a result of the Claimant and his discussions about possible models from Project Blue. Indeed, there was evidence from email exchanges that the Claimant and Mr Tinkler were working together on the Claimant’s proposed structure. On 26 November 2017 the Claimant sent Mr Tinkler an email saying, “Let’s give setting up the consolidation company our best shot. You know how to turn the target business around, I know how to get the company set up…”, page 749. Mr Tinkler replied the same day, saying that he totally agreed with the Claimant, page 749.

[152]The Tribunal accepted the Claimant’s evidence that he had told Mr Tinkler, that Stobart Capital was now following the Claimant’s plan. The Claimant agreed, in evidence, that Mr Tinkler’s response was supportive and positive and was not detrimental. The Claimant said that matters between Mr Tinkler and the Claimant had got onto an even keel. He agreed that Mr Tinkler “just wanted to bet the deal done”. The Claimant agreed that he was working as a team with Mr Tinkler at this point and that the relationship was a functioning one.

[153]There was some evidence from email exchanges at the end of December 2017 that there was tension between the Claimant and Mr Tinkler about the future direction of the company. On 26 December 2017 Mr Tinkler emailed the Claimant about the future for Stobart Capital, page 832. The Claimant replied on 1 January, with his comments on each of Mr Tinkler’s paragraphs. Mr Tinkler had said that he was confused with regard to the proposal to acquire the Stobart Operating Airline - Mr Tinkler said that he and Mr Soanes had agreed that they would concentrate on their plan and Warwick Brady would continue to work to see if there was a merger deal. Mr Tinkler said that he had found out, after the event, that the Claimant had met Cyrus Capital as a potential investor. Mr Tinkler said that the - 33 - Claimant and he had both agreed that they would only be able to make the deal a success if they had control and made the right decisions at the right time, Page

[154]The Tribunal did not conclude that this exchange was detrimental treatment of the Claimant, in the sense that the Claimant would have felt disadvantaged in the workplace thereafter. It appeared to be a rational discussion about the future direction of the company. Rational disagreements and discussion do not amount to detriments.

[155]On all the evidence, there was no detrimental treatment until 11 February 2018.

[156]Insofar as Mr Tinkler became agitated from 11 February 2018, the causation of this is dealt with below. 157. 2. The Claimant contended that Mr Tinkler subjected him to a detriment because of his protected disclosures by excluding the Claimant from work with effect from 11 February 2018.

[158]The Tribunal found that being required to take leave, against the Claimant’s will, did amount to a detriment. A reasonable person would consider that being excluded from the workplace was disadvantageous when they were ready and able to work, and there was no medical or other need for him to take leave.

[159]Given that the Claimant had previously made protected disclosures and he was thereafter subjected to detrimental treatment by being required to work from home when he did not want to, the burden of proof shifted to the Respondents to show that the Claimant’s protected disclosures were not part of the reason for the requirement to take leave.

[160]The Tribunal decided that the immediate cause of Mr Tinkler requiring the Claimant to take four weeks leave was the Claimant delivering a strategy document to Stobart Group Board which supported the Cyrus Capital proposal and not any proposal which included Mr Tinkler and his group of investors. This was apparent from the timing of the delivery of the report, from Mr Tinkler’s email reaction to the report and the Claimant’s exclusion the same day.

[161]Mr Tinkler told the Tribunal that he had asked the Claimant to take leave because he was concerned about the Claimant’s behaviour and believed that the Claimant did need to take leave in the circumstances of stress of which he found himself. The Tribunal did not accept that Mr Tinkler considered that the Claimant’s work was being affected by his sister’s illness.

[162]However, the Tribunal concluded that Mr Tinkler stated clearly, at the time, that he was disappointed by the report and that he considered that the Claimant had inappropriately excluded him from involvement in its preparation. Mr Tinkler also told the Tribunal that he believed that the Claimant was going behind Mr Tinkler’s back, working with Mr Brady and excluding Mr Tinkler. - 34 -

[163]The Claimant had not made a protected disclosure since late November 2017. He told the Tribunal that, shortly thereafter, in November and December 2017, Mr Tinkler and his relationship was on an even keel and they were working together.

[164]The Tribunal found that Mr Brady and the Claimant had indeed deliberately kept Mr Tinkler in the dark about the fact that the Cyrus Capital model was the preferred and, indeed, the only model which the Claimant’s report would propose to the Stobart Group for approval. The Claimant did not share the report with Mr Tinkler before he sent it to Mr Brady and other Board members. Mr Tinkler’s belief that the Claimant was going behind Mr Tinkler’s back, working with Mr Brady and excluding Mr Tinkler, was well founded. The Tribunal therefore accepted that this was Mr Tinkler’s genuine belief at the time.

[165]On all the evidence, the Tribunal found that the only reason that Mr Tinkler required the Claimant to take leave was that he considered the Claimant had been disloyal to him by excluding him, and any potential plans involving Mr Tinkler, from the report for the Board. This was not to do with the protected disclosures; it was because Mr Tinkler believed that the Claimant had failed to work as a partner with him, but had secretly worked with Warwick Brady, to exclude any proposal involving Mr Tinkler. 166. 3. The Claimant contended that suspending the Claimant by letter dated 22 February 2018 on allegations of gross misconduct was because the Claimant had made protected disclosures.

[167]The Tribunal accepted Mr Tinkler’s evidence that he suspended the Claimant because he discovered the draft email on the Claimant’s Stobart Capital email system which showed the Claimant informing Stobart Group of his plans to resign and the Claimant manoeuvring and making suggestions about what Stobart Group should do with regard to Stobart Capital, which would potentially have excluded Mr Tinkler from Stobart Capital and involvement in its decisions.

[168]The Claimant’s draft email included the line, “If I were you, I would make me in charge of all SCL projects on a day to day basis on behalf of SGL so that SCL supports to you through me …. AT would enjoy that! It would show AT which of you were calling the shots!”. The email also made various proposals, including giving Mr Tinkler formal notice of breach of Articles and triggering a compulsory transfer process. The email suggested moving SCL in house to Stobart Group and ending any obligation to Mr Tinkler. Those were all matters which were contrary to Mr Tinkler’s interests. The Tribunal concluded that it was unsurprising that Mr Tinkler would want to suspend the Claimant to protect Mr Tinkler’s interests from the Claimant’s intended actions.

[169]This was nothing to do with the Claimant’s protected disclosures.

[170]Mr Tinkler did not suspend the Claimant for any reason which was to do with the Claimant’s protected disclosures. - 35 - Constructive Dismissal

[171]The Claimant contended that he was constructively dismissed as a result of his protected disclosures.

[172]When the Claimant resigned, he primarily relied on his removal from the business on 11 February 2018 as giving rise to the constructive dismissal. He said that the requirement for the Claimant to take time away from work amounted to an unwarranted suspension from normal duties and that the manner in which Mr Tinkler had conducted himself was plainly intended to undermine the Claimant’s position and prevent him from discharging Stobart Capital’s obligations under its Management Agreement with Stobart Group Limited, for which, as Stobart Capital’s senior employee, the Claimant was responsible. The Claimant said that Mr Tinkler’s actions had also damaged irrevocably the Claimant’s relations with the rest of Stobart Capital’s employees. The Claimant said that his suspension did not reflect the Claimant’s conduct or his performance and that Mr Tinkler’s capricious conduct had significantly undermined the necessary element of trust and confidence.

[173]The Tribunal found that the exclusion of the Claimant from the First Respondent for four weeks did amount to a breach of the duty of trust and confidence. The Claimant was not permitted to attend the workplace, purportedly for reasons relating to his welfare, but he was not referred to occupational health and no reasonable procedure was undertaken. The Tribunal accepted that the Claimant resigned in response to that breach.

[174]However, the Tribunal has found that the reason for the Claimant’s removal from the business was nothing to do with the protective disclosures. Because the Claimant did not have two years’ service, he could not bring a claim for ordinary unfair dismissal and could only succeed in his unfair dismissal claim if his protected disclosures were the only or principal reason for his dismissal. They were not and the Claimant’s constructive dismissal claim necessarily fails. COSTS JUDGMENT The unanimous judgment of the Employment Tribunal is that: 1. The Tribunal does not make any award of costs against the Claimant in favour of the Respondents.

Preliminary

[1]The Claimant had brought complaints of automatic unfair constructive dismissal contrary to s.103A Employment Rights Act 1996 against the First Respondent, the Claimant’s former employer, and protected disclosure detriment complaints against both Respondents, pursuant to s.47B Employment Rights Act 1996. All the complaints were dismissed by judgment dated 27 April 2020.

[2]This hearing was listed to determine the Respondents’ application for costs.

[3]The Respondents made their costs application on 21 May 2020, p200-209. The Claimant gave a written response to the application on 1 September 2020, p345-362. - 1 -

[4]For this costs hearing, the Tribunal was provided with: an indexed Bundle of documents (page references in these reasons are to pages in that Bundle); an indexed Authorities Bundle; skeleton arguments by both parties; witness statements from the Claimant and from Mr Tinkler.

[5]The Claimant objected to the witness statement from Mr Tinkler being considered in evidence. He said that it sought to go behind and reargue the Tribunal’s findings of fact. He said that, insofar as the statement sought to make submissions, submissions should properly be made by the Respondents’ representative.

[6]The Tribunal indicated that the facts stated in its liability judgment were the relevant facts for the purposes of this hearing. Insofar as Mr Tinkler’s statement made submissions, or referred to documents which were not available to the liability hearing, or arose after the relevant events, Mr Bacon, for the Respondents, could instead make appropriate submissions on those.

[7]The hearing was conducted by CVP videolink. It proceeded without difficulty. The parties and representatives were able to hear what the Tribunal heard. Members of the public were entitled to attend the hearing but none did.

Law

[8]The Respondent makes this application under Rule 76 Employment Tribunal Rules of Procedure 2013. Rule 76 provides as follows: “76 (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that: (a) a party … has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that proceedings or part have been conducted; or (b) any claim or response had no reasonable prospect of success.”

[9]The Tribunal must consider making an order for costs where it is of the opinion that any of the grounds for making a costs order has been made out.

[10]Following Hayden v Pennine Acute NHS Trust

UKEAT/0141/17

, the Tribunal should take two-stage approach:a. Consider whether any of the grounds in r76(1)(a) have been established;

b. Consider whether, in all the circumstances of the case, a costs award is merited, Ayoola v St Christopher’s Fellowship

UKEAT/0508/13

. Unreasonable Conduct

[11]“The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects - 2 - it had.” (Per Mummery LJ in Yerrakalva v Barnsley MBC

[2012] ICR 420

at para 41.

[12]Withdrawal of an entire claim is not, in itself, unreasonable and “the Tribunal should not adopt a practice on costs which would deter applicants from making sensible litigation decisions, McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

at para 28.

[13]The failure by the Claimant to “address their minds to [the prospects]”, or to engage with a Respondent’s costs warning letter, which would have led them to an earlier assessment of the merits of their claims, can justify a costs award, Peat v Birmingham City Council

UKEAT/0503/11/CEA

[14]Where a party makes an offer to settle a case, which is refused by the other side, costs can be awarded if the tribunal considers that the party refusing the offer has thereby acted unreasonably Kopel v Safeway Stores plc

[2003] IRLR 753

, EAT.

[15]Where allegations are made and shown to be “baseless” or that things alleged to have been said “were never said” or “never done”, then such conduct will be viewed as “manifestly unreasonable” justifying a costs order, Daleside Nursing Home Ltd v Mathew

UKEAT/0519/08

[2009] All ER (D) 99

(Aug). Vexatious Conduct

[16]The classic description of vexatious conduct is that of Sir Hugh Griffiths in ET Marler Ltd v Robertson

[1974] ICR 72

at 76, NIRC: ''If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously, and likewise abuses the procedure. In such cases the tribunal may and doubtless usually will award costs against the employee …''. Respondents’ Contentions

[17]The Respondents’ application is made on the basis of both limbs under Rule 76 ET Rules of Procedure 2013:a. “Vexatious….disruptive or otherwise unreasonable conduct”, and

b. That the Claim had no reasonable prospect of success.

[18]The Respondents say that the Claimant had made serious allegations against the Respondents without any proper factual foundation. The Respondents say that, in reality, the claim was a construct, put together as part of the Claimant’s conspiracy with Mr Brady to remove the Second Respondent from having control over Stobart Capital and significant influence over Stobart Group and marked a deliberate attempt to portray the Claimant’s own intended resignation from the First Respondent as an unlawful dismissal. The Respondents say that the Claimant brought proceedings for unfair dismissal based on allegations that he knew or ought to have known he could not be made out. - 3 -

[19]The Respondents rely on the fact that, when dismissing the claim, the Tribunal concluded that at least one of the alleged protected disclosures was based on mere assertion and that the Tribunal found that some alleged conversations underpinning some alleged protected disclosures did not happen.

[20]The Respondents say that the Claimant knew, when he brought the claim, that it was not genuine. The Tribunal’s process has been used for ulterior purposes and the Respondents have been put to considerable financial expense in unearthing the Claimant’s failed strategy to remove the Second Respondent.

[21]The Respondents highlight that the Claimant was warned by Judge Deol on 16 November 2018 that “the proper recourse for the Respondent if any of these arguments are pursued unreasonably is through costs, rather than pursuing a premature, but otherwise reasonable, strike out application”, p307. The Respondents say that this is why the Respondents make the application they do.

[22]The Respondents contend that is case is akin to the approach taken to the failed protected disclosure case of Tan v. Copthorne Hotels Ltd 2200986/2017: The Tribunal accepted Mr Tinkler’s evidence that he believed the Claimant was working with Mr Brady “behind his [Mr Tinkler’s] back” (para 78). This led to the “thermonuclear device” being detonated in Carlisle (para 87). The Claimant was always intending to resign, and to put in place measures that would cause Mr Tinkler to relinquish control of Stobart Capital.

[23]The Respondents say that the Tribunal proceedings were disclosed to the media before being served on the Respondents. The Claimant did not seek genuine relief and the Claim was orchestrated to put pressure on Mr Tinkler to fall into line with the Claimant’s behind the scenes conspiracy to gain control over Stobart Capital.

[24]The Respondents also say that the proceedings, alleging constructive unfair dismissal based on his making protected disclosures, were baseless and should never have been brought; they say that the claim had no reasonable prospect success.

[25]The Respondents rely on the following chronology: The Claimant resigned on 19 February 2018. The Claimant had drafted his resignation email on 17 February 2018. Shortly before this, and in particular between 6 – 8 February 2018, the Claimant corresponded with Mr Brady proposals which would remove Mr Tinkler from Stobart Capital , p444 - 451. The Notice of Claim was sent to Mr Tinkler on 31 July 2018. Four days later, on 4 August 2018 the Claimant messaged Mr Brady showing that the Claimant was intending to “bring enough pressure to bear to persuade [Mr Tinkler] to sell his shares” to the Claimant so as to establish “a successor business” p487. There is a WhatsApp message from the Claimant on 2 May 2018 referring to “when does AT get the news” which is a reference to the receipt of the Employment Tribunal claim p489. The Claimant sought to apply pressure through the media (The Sunday Times) where the report of the Claim was revealed even before it had been served on Mr Tinkler p481 - 482. - 4 -

[26]The Respondents say that it is very difficult to come to any other conclusion than the Claimant’s Employment Tribunal proceedings were deliberately designed to put pressure on Mr Tinkler to relinquish control of Stobart Capital and remove him. The proceedings were supported by Mr Brady, p487 - 488 and they were part of a wider plan involving Mr Brady and the Stobart Group, which potentially included the financial support of Mr Soanes’ claim; and the Claimant has refused to deny that the costs of these proceedings were financed by the Stobart Group. They say that this Claim did not involve the genuine pursuit of justice or the legitimate pursuit of an Employment Tribunal claim and, as such, was an abuse of the Tribunal process. They say that it is an abuse which has caused Mr Tinkler and Stobart Capital a significant amount of money, which should be the subject of a full indemnity (subject to questions of reasonableness) by the Claimant.

[27]The Respondents also rely on costs warning letters. In a letter dated 29 August 2018, the Respondents wrote to the Claimant’s representative at the time to warn the Claimant that if he did not withdraw his claim, the correspondence would be drawn “to the attention of the Employment Tribunal in respect of our clients’ intended costs application”, p210.

[28]In a letter dated 7 January 2019, the Claimant’s attention was drawn to the statement made by Employment Judge Deol at paragraph 42 of his Judgment on 16 November 2018, and the fact that the Respondents costs would significantly increase in preparation for the hearing. The letter said that “if [the Claimant] chooses to continue to pursue his claims” the Respondents would “apply for a costs order” p212, and that the letter would be referred to as part of such application. The Claimant was represented at the time both those letters were sent.

[29]On 14 November 2019, the Respondents wrote to the Claimant pp398 - 399. In this email, the Claimant was referred to Rule 76(1) Employment Tribunal Rules 2013 and informed that he was on notice that the Respondents may apply for a costs award against him should his claim be unsuccessful.

[30]The Respondents also relied on the Claimant’s conduct in relation to some discreet matters. Unsuccessful Application for Strike Out and Deposit Order.

[31]Earlier in the proceedings, the Respondents had applied for a strike out and/or deposit order in relation to the Claimant’s whistleblowing claims. On 2 January 2019 EJ Deol dismissed the applications for the following reasons: “(i) It is difficult to conclude that the Claimant has no or little reasonable prospect of success in relation to the communication of 7 February 2018 (sms message from the Claimant to Andrew Tinkler). [Page 82 bundle]. The Claimant sets out some detail of his concerns and flags that there are contractual and regulatory obligations in play. The question of whether this particular allegation meets the statutory threshold must be determined in context, considering the Claimant’s insight and the surrounding circumstances. This can only be done through considering the evidence. - 5 - (ii) It is equally difficult to how the alleged disclosures set out at pages 39/40 of the Bundle in which the Claimant says that he set out his concerns regarding the new group structure can be properly assessed without considering any evidence. The alleged disclosures are made in discussions and the content of, and reaction to, those discussions will be highly probative of the issue of whether there has been a protected disclosure. (iii) I have some sympathy for the Respondent’s arguments as regards the communication of 20 November 2017. This communication does seem to simply contain the Claimant’s views, with no information that shows, or tends to show, any impropriety. The challenge for this Tribunal, is that this communication needs to be considered in context of the conversations that took place between 12-19 November and around 20th November, which may then provide some background to the more generalized written concerns expressed by the Claimant in his e-mail of 20 November 2018. This background evidence is perhaps even more important in cases based on an argument of constructive, rather than actual, unfair dismissal. Ultimately these are issues that can only be properly assessed through evidence, particularly the evidence of the Claimant, not a simple reading of e-mails in isolation at a preliminary stage. (iv) In reaching my conclusion I have relied heavily on the guidance of the Court of Appeal in the Kilraine v London Borough of Wandsworth case in particular that the concept of “information” as used in s 43B(1) ERA is capable of covering statements which might also be characterized as allegations and 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 light of all the facts of the case, taking into account the issue of “reasonable belief” and “context”. Without any evidence I feel ill equipped to take a view on these matters, supporting the Claimant’s argument that this case is indeed too fact sensitive for a strikeout/deposit order at this preliminary stage. In coming to this conclusion, I am comforted by the guidance in the Western Union case that a disclosure of information can sometimes be found from a statement of position and that this assessment will always be fact sensitive. (v) The fact that the Claimant was aware that the proposed deal structured by Mr Tinkler had to go through further checks and the approval of the Value Committee does not detract from the possibility that he was raising genuine and legitimate concerns about that deal. The Claimant’s knowledge may go to the issue of whether he had a “reasonable belief” of the alleged wrongdoing but that should be properly tested through evidence. (vi) The Claimant’s evidence in parallel High Court litigation will no doubt feature in these proceedings when the Claimant is cross examined, but at this stage I agree with the Claimant’s submissions that it is premature to rely upon a few entries in the transcript of a case that has yet to conclude and in which the 2nd Respondent to these proceedings has yet to give evidence, particularly without reference to the pleadings and issues in that case. (vii) The context and the reasons for the Claimant’s attestation to the FCA will also need to be assessed in evidence, and may undermine the Claimant’s arguments, - 6 - certainly in relation to any alleged disclosures before the 8 February 2018. The Claimant may face a significant hurdle to show that he did any more than comment on the structure of a business deal before this date. He would be well advised to take advice on whether these comments meet the required statutory threshold for a protected disclosure. That said, the proper recourse for the Respondent if any of these arguments are pursued unreasonably is through costs, rather than pursuing a premature, but otherwise reasonable, strike out application.” Discussion and Decision No Reasonable Prospect of Success / Vexatious or Unreasonable Conduct in Pursuing Claim

[32]The Tribunal did not decide that the Claimant’s claim had no reasonable prospect of success, or that the Claimant was vexatious or unreasonable in pursuing his claim.

[33]At the liability hearing, the Claimant had succeeded in establishing that he had made protected disclosures and that he had subsequently been constructively dismissed, the Respondent having committed a fundamental breach of contract, Judgment paragraph [173]. The Tribunal also found that the Claimant had been subjected to detriments after he had made protected disclosures. The burden of proof shifted to the Respondent to show that the protected disclosures were not the reason that he was subjected to the detriments, Judgment paragraph [159].

[34]In the event, the Tribunal decided that the reason that the Respondents subjected the Claimant to detriments was not, in any way, connected to his protected disclosures. It also decided that they were not the reason he was constructively dismissed. However, the Tribunal found this having taken into account all the documentary evidence and the witness evidence at the Tribunal. It did not accept the Respondents’ case in doing so.

[35]It was open to the Tribunal to draw an adverse inference against the Respondents when it rejected the Respondent’s case. It was open to the Tribunal to find that the real reason for the detriments and the constructive dismissal was that the Claimant had made protected disclosures. The Tribunal did not ultimately decide in that way. However, the Tribunal agreed with the Claimant’s submission, at this costs hearing, that the Claimant was not unreasonable in failing to anticipate that the Tribunal would reject his claims on that basis.

[36]The Tribunal made a careful decision, taking into account all the evidence available to it. This was quintessentially a case where the outcome was only known – and could only have been known by the Claimant - once the Tribunal had pronounced its judgment. Protected Disclosures

[37]The Respondent relied on the Claimant having failed to establish some of his protected disclosures. It relied on the Tribunal finding that some of his alleged disclosures amounted to bare assertions. - 7 -

[38]The Tribunal noted that, at the liability hearing, the Claimant’s explained his failure to pursue protected disclosures 2 and 5. He said that they were oral disclosures and were not documented. The Tribunal agreed with the Claimant’s contention, at this hearing, that this was a concise approach on his part. It was also a sensible litigation decision; focussing on those disclosures which the Claimant considered had the best chance of establishing. This litigation decision was not unreasonable conduct.

[39]Indeed, the Tribunal considered that the Claimant appeared, at the original liability hearing, to be scrupulously truthful about his recollection of his verbal protected disclosures. Where he could not recall further details, he was honest about this. He did not, in any way, seek to embellish his evidence. Far from finding that the Claimant was untruthful in his approach to his protected disclosures, the Tribunal considered that the Claimant was transparent about his inability to recall further details of verbal conversations which had occurred some time previously.

[40]The Tribunal was required to adjudicate upon protected disclosures 1, 3, 4 and 6. It upheld 3 and 4. In doing so, the Tribunal held that the Claimant had a reasonable belief that the information that he was disclosing was made in the public interest and that it tended to show that Mr Tinkler was failing, or was likely to fail to comply, with a legal obligation to which he was subject. It accepted that the Claimant had those beliefs. It did not find that the Claimant was in any way dishonest or misleading in what he said. Alleged Improper Motive

[41]The Tribunal did not accept that the Claimant acted unreasonably in pursuing his claims because he did so for an ulterior motive. It was correct that the case was brought in the context of a breakdown in the business relationship between the Claimant and Mr Tinkler, on the one hand, and between Mr Tinkler and the Stobart Group, on the other. The Tribunal observed that the factual background to the claim included the various machinations of Mr Tinkler, who sought to remove the Chairman of Stobart Group, and of the Claimant, who sought to preserve the value of Stobart Capital Limited.

[42]The Tribunal agreed with the Claimant’s submission, at this hearing, that the Claimant was in an extremely difficulty position at the time when he resigned. He had been excluded from the First Respondent business. His business relationship with Mr Tinkler had broken down. He perceived that he was at risk of losing the value of his shareholding, as well as his job. It was not surprising that some of his actions would have been strategic, with a view to preserving his employment and the value of his shareholding.

[43]However, those very difficult circumstances, and the fact that the Claimant may have acted strategically, did not mean that the Claimant used the Tribunal proceedings for an improper motive. The Tribunal concluded that the proceedings may have coincided with the Claimant’s other strategic aims, but they were not improperly brought. The fact that the Claimant very substantially succeeded in his claim – and that the Respondent’s pleaded case was not successful – - 8 - demonstrated that the Claimant had brought his proceedings on a reasonable basis.

[44]The Claimant resigned in response to a fundamental breach of contract. The Tribunal did not find at the liability hearing, and it does not find now, that the Claimant’s resignation and subsequent Tribunal claim was a construct. Costs warning letters

[45]The 29 August 2018 costs warning letter focused on the Claimant’s draft email of 17-18 February 2018 and contended that it was part of wider plan by the Claimant to enter into new arrangements with the Stobart Group. However, the Tribunal found that the Claimant resigned as a result of his removal from business. This was a fundamental breach of contract. The Respondent put forward an explanation in their costs warning letter for the Claimant’s removal from the Company which was not upheld by the Tribunal. The Claimant was not unreasonable in pursuing a claim in the face of a costs warning letter setting out the basis of a defence which was not established.

[46]In their costs warning letter of 7 January 2019, the Respondents referred to EJ Deol’s comments on 2 January 2019, that the Claimant “may face a significant hurdle” in establishing that he made any protected disclosures before 8 February 2018 because of the Claimant’s attestation to the FCA on that date that he was not aware of any conflicts of interest. However, the Claimant succeeded on this issue. The Tribunal found that the Claimant had made qualifying disclosures on 20 November 2017, despite his later FCA attestation. EJ Deol’s Comments

[47]The Respondent relied on the comments of EJ Deol, in his judgment of 2 January 2019, on the Respondents’ strike out and deposit order applications, “.. the proper recourse for the Respondent if any of these arguments are pursued unreasonably is through costs, rather than pursuing a premature, but otherwise reasonable, strike out application.”

[48]The Tribunal concluded that EJ Deol did no more than restate the basis for awarding costs under r76 ET Rules of Procedure. His words were not in any sense a warning to the Claimant. EJ Deol declined to strike out the claims, or make a deposit order, for the very sound reasons he gave at the time.

[49]Indeed, the Tribunal found that the Claimant’s email 20 November 2017 email was a protected disclosure, when EJ Deol had expressed some reservations about this. If EJ Deol had made a deposit order in relation to the 20 November 2017 email, the Respondent would not have the benefit of the presumption of unreasonableness. The eventual Judgment would not have been made for substantially the same reasons as the deposit order. See also paragraph 46 of these reasons in this regard. No Unreasonable Conduct Leading to an Increase in Costs - 9 -

[50]The Tribunal accepted the Claimant’s submissions at this costs hearing that the Claimant acted reasonably in relation to the following matters:

[51]Argument concerning privilege. A hearing was listed on this point. The Claimant asked for it to be vacated. The Claimant took a point regarding privilege, but did not pursue it, avoiding costs. This was part of the normal conduct of legal proceedings.

[52]High Court Proceedings. The original ET hearing was set down in February 2019. The ET ordered postponement in the circumstances that parallel Hight Court proceedings had not been concluded. At the time. The Respondents did not make the argument that the High Court proceedings were not admissible in any event, At the time, all parties accepted the premise that the Hight Court judgment was relevant and should be considered. The Respondents then instructed new solicitors, who said that the High Court action was between different parties and was therefore not admissible. The argument had not previously been raised. It was considered by this Tribunal at the start of the liability hearing and resolved. It was not unreasonable of the Claimant to be cautious about the effect of linked High Court proceedings on these Tribunal proceedings.

[53]Valuation of claim. The Respondents alleged that the Claimant improperly exaggerated the value of his claim. The Claimant prepared 2 schedules of loss and an explanatory note – p55. The schedule was reasoned. Put simply, the Tribunal observes that an employee who is paid a high salary will suffer substantial losses if he loses his job and does not obtain alternative work.

[54]Mr Elliot . The Tribunal and the parties devoted very little time to Mr Elliot. Mr Elliot formed no part of the Tribunal’s decision making.

Conclusion

[55]For all these reasons, the Tribunal concluded that there was no basis for ordering the Claimant to pay any of the Respondents’ costs.