Ms M Abbey v Chelsea Centre Ltd T/a Chelsea Theatre: 2204593/2018
EMPLOYMENT TRIBUNALS
Case No 2204593/2018
Between
Ms M AbbeyClaimantChelsea Centre Ltd T/a Chelsea TheatreRespondent
Before
Employment Judge WisbyIn person for claimantDate 17 December 2018
JUDGMENT
[1]The claimant’s complaint of unlawful deduction from wages is dismissed on withdrawal.[2]The claimant’s complaint of automatic unfair dismissal because the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure fails and is dismissed.[3]The claimant’s complaint of unfair dismissal under section 98 Employment Rights Act 1996, (commonly called ordinary unfair dismissal) succeeds. The compensatory award however is reduced by 100% under the principles set out in Polkey v AE Dayton Services Ltd 1988 ICR 142. JUDGMENT having been sent to the parties on 23 November 2018 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The claimant stated she was not bringing a complaint that she had suffered a detriment on the ground that she had made a protected disclosure and that she was not pursuing any unlawful deduction from wages complaint, as she had established that she had been paid correctly.[2]The issues to be considered were identified therefore as:a. What was the principal reason for dismissal and was it a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“ERA”)? The respondent asserts that it was redundancy.b. If so, was the dismissal fair or unfair in accordance with ERA section 98(4), and, in particular, did the respondent in all respects act within the so-called ‘band of reasonable responses’? Public interest disclosurec. Did the claimant make one or more protected disclosures (ERA sections 43B & 43C). The claimant relies on subsection (b) of section 43B(1).d. What was the principal reason the claimant was dismissed and was it that s/he had made a protected disclosure?[3]The respondent stated it had prepared the case on the basis that the issues identified were the complaints raised and therefore it was agreed that there was no issue with those two complaints being heard by the Tribunal. Evidence before the Tribunal 3 The Tribunal was provided with a joint bundle.[4]A witness statement was provided for the respondent’s case from Mrs P Morris-Sykes (Chairman of the Board of Trustees). The claimant provided a witness statement in support of her complaints. The statements were taken as read and the Tribunal considered the documentation referred to within those statements and in cross-examination. The Law Unfair Dismissal - Redundancy
The Law
[5]An employee has the right not to be unfairly dismissed by their employer, Section 94 of the Employment Rights Act 1996. There is no dispute in this case that the claimant was an employee with the requisite qualifying service and that the claim was brought within the applicable limitation period.[6]For a dismissal to be fair, the employer must have a potentially fair reason for dismissing the employee. There are five potentially fair reasons for dismissal set out in Section 98 of the Employment Rights Act (“ERA”), one of which is redundancy (the reason relied upon by the respondent).[7]It is for the employer to establish the reason for dismissal. The leading case on establishing whether an employee had been dismissed by reason of redundancy is Safeway Stores plc v Burrell [1997] ICR 523 (EAT) which was approved by the House of Lords in Murray & another v Foyle Meats Ltd (Northern Ireland) [1999] IRLR 462. In Safeway, the EAT formulated a three stage test for applying Section 139 ERA being:(1) Was the employee dismissed? If so;(2) Had the requirement for the business for employees to carry out work of a particular kind ceased or diminished (or did one of the other economic states of affairs set out in Section 139(1) exist? If so;(3) Was the dismissal of the employee caused wholly or mainly by the state of affairs identified in (2) above. Only if the answer to all three stages is yes, will there be a redundancy dismissal.[8]Once the reason for dismissal is established, the employer needs to establish that it acted reasonably in all the circumstances of the case in treating redundancy as a reason for dismissing the employee, Section 98(4) ERA.[9]A Tribunal must consider whether the decision to dismiss an employee was within the range of conduct, that a reasonable employer could have adopted, having regard to Sections 98(4) ERA and the principles of fairness established by case law.[10]The EAT have emphasised that Tribunal’s should not impose their own standards and decide whether had they been the employer they would have acted differently. Rather they must instead ask whether the decision fell within the band of reasonable responses.[11]The leading case of reasonableness is Polkey v AE Dayton Services Ltd 1988 ICR 142, in which the House of Lords held that an employer would normally not act reasonably and a dismissal will therefore be unfair:(1) Unless it warns and consults about the proposed redundancy.(2) Adopts a fair basis on which to select for redundancy.(3) Takes such steps as may be reasonable to avoid or minimise redundancy by deployment within his own organisation.[12]The size and administrative resources of the employer will be relevant to the question of reasonableness and could affect the nature and degree of formality of any consultation. However, it does not excuse a small employer from failing to consult at all. Automatic unfair dismissal – principal reason for dismissal being a protected disclosure 13 103A. ERA sets out: 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.[14]Section 103A of the ERA 1996 therefore creates two questions:(1) Was the making of a disclosure the reason (or principal reason) for the dismissal?(2) Was the disclosure in question a protected disclosure within the meaning of the ERA 1996? If the answer to both questions is yes, the employee will have been unfairly dismissed (Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401).[15]The first question requires an enquiry into what facts or beliefs caused the decision-maker to decide to dismiss. The second is an objective test to be determined by reference to the statutory conditions that confer protected status to disclosures, as set out in the ERA 1996.[16]In relation to the first question, in Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632, the Court of Appeal held that an employee was not automatically unfairly dismissed for making protected disclosures to her line manager because the person who took the decision to dismiss her was unaware of those disclosures.[17]In relation to the second question, a qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker making it is in the public interest and, tends to show that one or more of the six specified types of malpractice has taken place, is taking place or is likely to take place (section 43B(1), ERA 1996). The claimant in this case relies upon – failure to comply with a legal obligation (section 43B(1)(b), ERA 1996).[18]There must be a disclosure of information. In Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38, the EAT held that to be protected a disclosure must involve information, and not simply voice a concern or raise an allegation. In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, the court held that the wording of the legislation should not be glossed to introduce a rigid dichotomy between "information" on the one hand and "allegations" on the other. Sometimes a statement that could be characterised as an allegation would also constitute information and amount to a qualifying disclosure. However, not every statement involving an allegation would do so.
Remedy
[19]Under section 118 ERA where a Tribunal makes an award for compensation for unfair dismissal the award shall consist of a basic award and a compensatory award.[20]Section 122(4) ERA sets out the basic award shall be reduced by any statutory redundancy payment paid by the employer in relation to the dismissal.[21]Section 123 ERA (amongst other matters) sets out that the amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.[22]The Tribunal must have regard to all the evidence before it. Under the principles set out in the leading case of Polkey v AE Dayton Services Ltd [1987] IRLR 503 (HL), in respect of compensation consideration is given to whether the respondent could and would have fairly dismissed the employee at or after the date of the actual dismissal. Finding the Facts[23]The claimant’s employment with the respondent commenced on 24 November 2011 when she began work as a community development manager. Her duties were to develop and coordinate community activities, make policy decisions about community activities, manage community staff, complete all reporting requirements on grants and manage community budgets.[24]The respondent is a charitable organisation that is a community hub. It has a theatre and runs various activities for various community groups. It is a small organisation run, in the main, by unpaid volunteer Trustees.[25]In the summer 2016 the then artistic director and general manager reviewed the organisation. He requested and was granted redundancy in order to improve its financial sustainability.[26]The board minutes of 5 July 2016 show that that meeting was held in part to consider appointing the claimant as acting manager of the Chelsea Theatre. The minutes however do not record that any decision was made to appoint the claimant into that position.[27]A general manager was appointed but by January 2017 the trustees were informed that she had become unwell and would no longer be able to act as the general manager.[28]An email from then chairman of the board set out that the short-term management structure agreed at the last Board meeting needed to be amended and that the claimant would report directly to him and the board rather than to the general manager. It was set out that this would work well to improve communications and would fulfill the claimant’s request to expand her role to encompass more than community activities.[29]The email goes on to set out that the claimant would be responsible for community activities and grant fundraising together with the management of the operation of the building and the staff. Capital projects and systems, theatre internal design and finance were to be managed by unpaid trustees with the assistance of outsourced accountants part-time bookkeepers.[30]The email of 21 January 2017 makes it clear that the claimant would attend future trustee meetings to report on community activities staffing and the building.[31]A follow-up email from the chairman of the board to the claimant sets out that the claimant was given the responsibility to run the building and that he wanted this done in an open and accountable way, starting with staffing and attendance.[32]The claimant replied on 25 January 2017 asking for the board to agree a detailed job description and a pay increase to reflect increased responsibility. It is accepted by the parties that there was no increase in pay. In relation to the reference to the claimant as an “executive”, it is accepted by the Tribunal that this was purely to differentiate the claimant from the trustees.[33]By the summer of 2017 the respondent had three employees: the claimant as community manager on a salary of £35,000; a cleaner; and, a caretaker. There were also a range of ad hoc workers dealing with matters such as administration, front of house, reception etc., together with the volunteers and the unpaid trustees.[34]The Tribunal accepts at that stage the claimant was the most senior employee. However it also accepts the evidence of Mrs Morris-Sykes that the trustees were undertaking significant strategic and other duties previously carried out by the former senior artistic director and general manager and that it was unsustainable for the trustees to carry on with the level of duties they were undertaking.[35]The claimant states that in early 2017 she raised with the then chairman of the board concerns about how finances were being used, in particular in relation to spending on matters such as design drawings and action that she considered amounted to litigation regarding fees for that work. From the evidence given it is not clear to the Tribunal what information was provided by the claimant, as opposed to her asking questions and raising concerns about the way she considered the money was being spent but the Tribunal has no doubt that she did hold concerns about how money was being spent.[36]The claimant also says that she lodged an anonymous online disclosure with the charity commission. The Tribunal has no reason to doubt this but a copy of that disclosure was not produced, there is therefore a lack of clarity as to its contents. Subsequent the claimant also states that she had a meeting in June 2017 with a council representative. Once again the Tribunal accepts such a meeting took place. The claimant considers that the two were linked on the basis that the meeting with the council representative happened a few weeks after she states she made the anonymous online disclosure. The claimant accepted in evidence though that the meeting was held with her because she was the most senior employee within the organization, that the council representative did not raise with her any of the concerns that she had raised with the Charity Commission but that she had seen it as an opportunity to raise her concerns about the use of money. The claimant was advised by the council representative to have a meeting with the respondent’s chairperson.[37]The claimant accepted in evidence that she had met council representatives on previous occasions and the Tribunal accepts that meetings with the Borough Council have also taken place with Mrs Morris-Sykes as chairman of the board of the trustees. The meetings are linked to the fact the respondent relies on the Royal Borough of Kensington and Chelsea for core funding alongside other grants.[38]The Tribunal accepts Mrs Morris-Sykes evidence that at no stage did the council raise with her any concerns raised by the claimant, and that prior to the redundancy process commencing the claimant did not raise any concerns about financial issues with her. The claimant accepts she did not raise her concerns about financial matters with Mrs Morris-Sykes.[39]It is accepted that the respondent made a loss of £73,988 in 2014/15, £36,603 in 2015/16 and £36,106 in 2016/17. It was accepted by both parties that the respondent was in a dire financial situation.[40]On 14 November 2017 a board meeting was held with Mrs Morris-Sykes as chair. Mrs Morris-Sykes had joined the Board of Trustees in April 2017 and became the chair in August 2017. The board minutes reflect that a job description for a new artistic director/chief executive had been circulated with the intention that a junior community development officer report into that role. The minutes state: “Trustees to review and send comments to Chair ASAP and then the Chair and MB to discuss with Peninsular how to manage the reorganisation on legal basis and to proceed with the redundancy of Michelle Abbey”. The minutes also state “The Chair and MB to update April Restructuring and Reorganisation papers sent to Peninsula and table a conference with Peninsula to start the process of Michelle Abbey’s redundancy”, “Suggestions for advertisements for a new role include independent, Telegraph subject cost; perhaps relevant theatrical and stage magazines also”. Mrs Morris-Sykes stated in evidence that once the decision to restructure had been taken by the Board the redundancy of the claimant was “inevitable”. Mrs Morris-Sykes’ witness statement in paragraph 8 also states: “following a meeting of the trustees on 14 September 2017 it was decided that we would need to make the claimant’s role redundant”.[41]The respondent decided before engaging in a redundancy process that they would approach the claimant with the intention of reaching an ‘amicable solution’- meaning a termination of employment on agreed terms. An attempted meeting along these lines took place on 14 December 2017. The claimant however did not wish to engage with that meeting. The claimant was shocked and upset by the proposal to discuss an amicable termination. It is accepted that following that unsuccessful meeting, the claimant did not trust that the redundancy process that followed was genuine and valid.[42]On 14 December 2017 in the afternoon the claimant was formally placed at risk of redundancy. The claimant was invited to a consultation meeting on 20 December 2017.[43]The claimant wrote to the Board of Trustees asking for a meeting with them regarding the fact that she been placed at risk of redundancy, that letter was received by the trustees on Monday, 18 December 2017. In the letter as well as setting out that the claimant considered that she been treated badly she explained that she did not consider that her role, which she viewed as the interim general manager, was redundant and stated that there was ring fenced funding for the community development manager post until March 2019. It is accepted by the Tribunal that the funding was not ring fenced specifically for that role but the respondent had wider discretion as to how those sums could be spent.[44]The claimant set out in her letter that she would not be entering into an “an invalid, flawed and unconstitutional redundancy process consequently I will not be attending the requested meeting on 20 Dec 2017 or any other meeting convened under the guise of this defective process”.[45]The Tribunal accepts that the claimant found it difficult that she was dealing with an outsourced HR body rather than the trustees directly on the issue of the restructure.[46]Mrs Morris-Sykes, as chairperson of the board, responded to the claimant the following day and stated that the claimant’s concerns would be addressed in the consultation meeting on 20 December 2017 and that the reason for the meeting was to discuss and address her concerns.[47]The claimant then unilaterally booked annual leave until the New Year, the respondent accepted the position and postponed the scheduled meeting until Monday 8 January 2018.[48]The claimant wrote to the Board of Trustees on 5 January 2018 restating her position that she would not take part in consultation meetings and requesting again a meeting with the trustees, explaining that the intention was to obtain answers to unexplained financial matters, which she said she had raised with the former chairman. The claimant also stated if she did not receive a satisfactory response to the financial matters that she would raise them with GMAK Chartered Accountants, the respondent’s auditors.[49]The claimant did not attend the meeting on 8 January 2018.[50]A further letter was sent to the claimant on 12 January 2018 by Mrs MorrisSykes, setting out again that redundancies were being considered due to necessary structural changes and finance issues. The letter attached a document with more details of the proposed restructure and explained that the meeting on 8 January 2018 went ahead in her absence. The letter then went on to address concerns the claimant had raised in writing. The letter stated that it was not accepted that the claimant had raised concerns with the trustees or chairman around supposed unexplained financial matters. The letter asked for details of those matters and evidence of when they were raised so that that could be investigated further. The claimant accepted in evidence that she did not go on to provide this information to the respondent.[51]The claimant was given the opportunity to make written responses to the matters set out in the restructuring document and to comment on the proposed two new roles (being the new CEO and Artistic Director role and a more junior community project coordinator) by Wednesday 17 January 2018. The letter set out that the claimant had the opportunity to apply for either role and that she should do so by 17 January 2018.[52]The claimant accepted that she did not apply for either role, citing her mistrust of the organisation at that stage and the fact that she remained shocked by the treatment she had received.[53]It is accepted by the Tribunal that the CEO and Artistic Director was not a suitable alterative role that needed to be automatically offered to the claimant, it required a wider skill set than the claimant had, particularly in respect to theater and finance matters at that time undertaken by the Trustees.[54]A further consultation meeting was set up for 19 January 2018. The claimant was warned that the outcome could be that the claimant would be dismissed by reason of redundancy.[55]The proposed restructure document set out the need for the respondent to generate increased income from commercial activities. As part of that strategy the optimal structure was identified as having one person leading the organisation to co-ordinate the three areas of: community service, commercial services (theatre and room hire), and finance and general management. The document explained that after the departure of the artistic director and general manager in 2016 duties had been covered by members of staff and volunteer trustees, that there had been a reduction in funding from the Arts Council, increased costs and that the organisation had been making a loss. It was explained that the organisation had received a substantial donation to refurbish the theatre on the basis that a sustainable business plan was put in place.[56]The claimant responded to the trustees in writing on 18 January 2018 requesting a postponement of the meeting scheduled for 19 January. The claimant also set out a proposed option for her retention as community development manager on her salary of £35,000, which would involve the respondent finding or raising £13,000. The claimant stated she had proposals for finding that money and asked if she could submit those.[57]The respondent agreed to a further postponement of the meeting to Tuesday 23 January 2018. The claimant was warned that if she did not attend that meeting it would proceed in her absence but if the position was confirmed as redundant she would have the right of appeal.[58]On 19 January 2018 the claimant wrote directly to the respondent’s accountants. In that letter the claimant set out the various concerns she had in relation to the running of the theatre, including questions over whether the board had negligently used charity funds. A copy of that letter was not given to the respondent by either the claimant or the accountancy firm.[59]The claimant did not attend the meeting on 23 January 2018. Dismissal[60]On 25 January 2018 Mrs Morris-Sykes wrote to the claimant to confirm she had been selected for redundancy. The letter also addressed the points that the claimant had raised in writing, explaining that the new CEO and artistic director role was likely to have a salary of £35 - 40,000 with a performance - related bonus. The letter set out the claimant could still apply for that role (the claimant did not do so). The letter set out the community project coordinator role would be more junior, with a salary of approximate £22,000 and would be appointed in due course. That role had, at the date of the hearing, not been advertised. The Tribunal accepted that there was no intention to appoint someone until some point next year, when the theatre’s refurbishment is completed. The letter explained that looking at the organisation it was not possible to find the suggested £13,000 savings to enable her current post to remain. Mrs Morris-Sykes explained in the letter that the claimant’s employment was being terminated with effect from 25 January 2018 and that she would be paid in lieu of her notice period. Appeal[61]The claimant appealed the decision to terminate her employment via her trade union representative on 30 January 2018. The claimant’s grounds of appeal were:(1) the redundancy process did not follow best practice and the claimant was not given adequate notice to arrange accompaniment by a trade union representative to the meeting on Tuesday 23 January 2018; and(2) the claimant believed she had been victimised, made redundant and suffered a detriment as a result of her making a protected disclosure of wrongdoing to the Council and the Charity Commission regarding the misuse of Chelsea Theatre’s funds and account.[62]An appeal meeting was set up on 16 February 2018, then rescheduled (to accommodate the claimant’s trade union representative) to take place on 22 February 2018.[63]During the appeal meeting on 22 February 2018 the claimant produced her letter to the respondent’s accountants outlining her concerns. The Tribunal accepts Mrs Morris-Sykes evidence that this was the first time she was aware of and had seen the letter, which is dated 19 January 2018. The letter therefore postdates the commencement of the redundancy process.[64]In the appeal meeting the claimant raised that she had made a prior disclosure to the Charity Commission in the summer of 2017. The Tribunal accepts that Mrs Morris-Sykes was unaware of that anonymous disclosure prior to the appeal stage.[65]Mrs Morris-Sykes wrote to the claimant on 8 March 2018 setting out that the report provided by the HR Face2Face consultant (the consultant appointed to investigate the appeal) represented her decision. The recommendation of the HR Face2Face consultant was that having given full and thorough consideration to the information presented that the redundancy appeal be dismissed in its entirety.
Discussion and Conclusions
[66]For a dismissal to be fair, the employer must have a potentially fair reason for dismissing the employee, one of which is redundancy. The definition of redundancy is set out in S139 ERA: S139 Redundancy (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.[67]It is for the employer to establish the reason for dismissal. Applying the three stage test in Safeway:(1) The claimant was dismissed.(2) The Tribunal accepts that as a result of: the dire financial situation; the level of duties undertaken by unpaid trustees; and, the requirement linked to a substantial donation to put a sustainable business plan in place, the respondent reasonably concluded a restructure was required. As part of the restructure it is accepted the respondent ceased to have a requirement for a community development manager but instead required a CEO/artistic director and a junior community project co-ordinator.(3) The Tribunal accepts that the claimant’s dismissal was caused wholly or mainly by that state of affairs.[68]Once the reason for dismissal is established, the employer needs to establish that it acted reasonably in all the circumstances of the case in treating redundancy as a reason for dismissing the employee, Section 98(4) ERA: Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[69]A Tribunal must consider whether the decision to dismiss an employee was within the range of conduct, that a reasonable employer could have adopted, having regard to sections 98(4) ERA and the principles of fairness established by case law.[70]It is accepted that the claimant had a unique role and therefore selection issues did not come into play.[71]A respondent is required to warn and consult about a proposed redundancy. Consultation should be meaningful but the Board meeting minutes of 14 November 2017 and Mrs Morris-Sykes evidence that the claimant’s redundancy was inevitable make it clear that the decision had already been taken before the consultation process commenced. The restructure was no longer simply a proposal, albeit a firm one. A decision to remove the role of community development manager had been taken. The Tribunal finds that the claimant could have applied for the new roles but chose not to, she did not therefore put her hat in the ring for those posts. It is accepted that the proposed CEO/Artistic director role was not a role that was automatically suitable for her, a wider range of skills being required for it.[72]The size and administrative resources of the employer are relevant to the question of reasonableness and can affect the nature and degree of formality of any consultation. However, it does not excuse a small employer from failing to consult at all. Here a full process of meetings was undertaken but this was undermined by the fact that the decision to put in place a new structure and remove the claimant’s role had already been taken - there was no scope therefore for meaningful consultation about that change. For that reason the Tribunal finds that the dismissal was procedurally unfair.[73]The claimant expressed that if successful she would like her job back, the Tribunal does not find that this would be appropriate to order since the role she undertook is no longer required and she did not apply for the alterative roles, as she had in her own words, lost trust in the respondent.[74]No basic award can be awarded by the Tribunal as the claimant received a statutory redundancy payment in respect of the dismissal.[75]In relation to a compensatory award if a Tribunal finds that although an employer has failed to follow a fair procedure, the employee would or might have been dismissed in any event, it may reduce the award to reflect that possibility, (Polkey). The Tribunal finds that had a procedurally fair process been carried out it would have made no difference to the end result. The respondent was in dire financial straits, it is accepted it needed to restructure with the aim of increasing income, the restructure was a requirement of a substantial donation it received. The new structure meant there was no longer a requirement for the role undertaken by the claimant (be that purely the community development manager role or the wider role she undertook over time when she became the most senior employee). The claimant chose not to apply for the new role of CEO/artistic director, regardless of that fact she did not have the wider skill set required for that role.[76]For the reasons set out above, the Tribunal finds that the claimant was unfairly dismissed but that there should be a 100% reduction to the compensatory award on the basis that a procedurally fair process would have resulted in the claimant’s dismissal by reason of redundancy and that dismissal would have fallen within the band of reasonable responses. Automatic unfair dismissal - Protected disclosure[77]Section 103A of the ERA 1996 creates two questions:(1) Was the making of a disclosure the reason (or principal reason) for the dismissal?(2) Was the disclosure in question a protected disclosure within the meaning of the ERA 1996?[78]The first of the above questions requires the worker to establish a causal link between their whistleblowing and the subsequent dismissal. The Tribunal accepts there was a genuine need to restructure for the reasons set out above and that there was not a casual link between any alleged protected disclosures and the restructuring decision.[79]The Tribunal also accepts that Mrs Morris-Sykes was unaware of the claimant’s concerns regarding financial issues at the time that the decision regarding the claimant’s redundancy was taken. The claimant’s disclosure to the charity commission was anonymous and the council did not raise the concerns that the claimant had raised with it to the respondent independently. The claimant’s letter to the respondent’s accountants was dated after the redundancy process commenced and therefore could not, even if it had been seen by the respondent prior to the appeal stage, which the Tribunal accepts it was not, have been the principal reason for the restructuring and redundancy situation. As set out above the Tribunal finds that the decision to restructure and remove the claimant’s role was taken by 14 November 2017.[80]In light of the findings set out in paragraphs 78 and 79 above the Tribunal does not need to go on to consider whether the issues raised by the claimant were in fact protected disclosures under the relevant legislation. The complaint of automatic unfair dismissal fails since the reason (or if more than one, the principal reason) for the dismissal was not because the claimant had made disclosures, protected or otherwise.