Employment Judge GoodmanIn person for claimantMs A. Greenley (instructed by counsel) for respondentDate 19 December 2025
JUDGMENT
No order on the application for interim relief
REASONS
[1]This hearing was to decide the claimant’s application for interim relief following his dismissal on 4 October 2020.[2]The claimant says the dismissal was unfair, because he was dismissed for making protected public interest disclosures (whistleblowing), or because he had carried out health and safety activities when designated for those duties. He gives other grounds for holding the dismissal unfair, but these are those for which interim relief is an available remedy. The respondent by contrast says he was dismissed by reason of redundancy. Conduct of the Hearing[3]There had been a preliminary hearing for case management on 29 October, which would have been the interim relief hearing but that the respondent had only just seen the ET1, due to not staffing their office. Directions were then given for this hearing, and both sides have complied with some tight deadlines. The claimant did apply for a postponement on 1 November as he needed more time to prepare his witness statement, but he did manage to submit one on time, though in an abbreviated form, and the postponement was refused because the legislation is clear that interim relief applications must be heard as soon as practicable - section 128(3) Employment Rights Act 1996 - and it was practicable to hear it today.[4]The claimant mentioned in his claim form he had a long-term health condition, and later emails identified that this was a mental health condition, probably anxiety. He asked to have a remote hearing, or to be able to make written submissions. At the start of the hearing I discussed what measures were necessary, and I did what I could to explain the legal background, and to ask questions on what seemed to me to be the core issues. The claimant articulated his case well in the hearing, and I had been able to read his claim form, his application for interim relief, and the witness statement.[5]I had available a hearing bundle of 803 pages, with a seven page index. I have not read the whole of this, but I have considered the documents about the respondent’s redundancy process, and the claimant’s grievances, formal and informal, before the redundancy process began.[6]I have also read the claimant’s witness statement, and witness statements from Martin Illingworth, the respondent’s Director of Store Development, who managed the team the team of duty managers of which the claimant was one, and the statement of Alice Hoque, a member of the respondent’s human resources department, who attended all redundancy meetings relevant to the claimant, whether individual or for consultation with employee representatives.[7]I read the respondent’s skeleton argument, which the claimant had also seen, and I outlined the thrust of their submissions for the claimant. Interim Relief and the Grounds it Protects – Relevant Law[8]By section 129(1) of the Employment Rights Act: “where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in..section 103A”, the tribunal is to order reinstatement, or if the employer is unwilling, make an order for continuation of the employee’s contract until the final hearing. (There is also an option of reengagement in another role if the employee consents to take what is offered). There is no provision for refund if in the event the employee does not succeed in his claim.[9]What is meant by “likely” to succeed is clarified in Taplin v C. Shippam Ltd (1978) ICR 1068. It means: “a greater likelihood of success in his main complaint than either proving a reasonable prospect or a 51 per cent. probability of success and that an industrial tribunal should ask themselves whether the employee had established that he had a “pretty good” chance of succeeding in his complaint of unfair dismissal”. This formulation was affirmed in Dandpat v University of Bath (2009) UKEAT/0408/09/LA, where it was said: “there were good reasons of policy for setting the test comparatively high… if relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of proceedings: that is not (a) consequence that should be imposed lightly”. In Ministry of Justice v Sarfraz (2011) IRLR 562 “likely” meant a “significantly higher degree of likelihood” than “more likely than not”. In Parsons v. Airplus International Ltd UKEAT/0023/16/JOJ, it was said that the claim should be “clear cut”.[10]The task of the tribunal hearing an interim relief application: is “to make an expeditious summary assessment by the first instance employment judge as to how the matter looks to him on the material that he or she has… doing the best he or she can with the untested evidence advanced by each party” – London City Airport v Chacko (2013) IRLR 610. The tribunal is not required to make findings or reach a final judgment on any point - Parkins v Sodexho Ltd (2002) IRLR 109. As stated in Parsons: “The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself. In giving reasons for her decision, it is sufficient for the Judge to indicate the “essential gist of her reasoning”: this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not say anything which might pre-judge the final determination on the merits”.[11]To succeed in the claim of unfair dismissal for making a protected disclosure the claimant must establish that he made one or more disclosures of information, which in his reasonable belief tended to show one of the forms of wrongdoing set out in section 43B (1)(a) to (f) of the Employment Rights Act, that he made the disclosure in the public interest and, importantly, he must establish that making a protected disclosure was the reason, or if more than one, the principal reason for the dismissal – section 103A.[12]The respondent argues that at this stage the claimant has not identified what information he had disclosed within his very lengthy informal and formal grievances in December 2019 and March 2020, but in any case, denies that this, rather than redundancy, was the reason for dismissal.[13]To succeed in claim of dismissal for health and safety activity under section 100(1)(a) (the claimant does not rely on(b) which is about safety representatives, which he was not), the claimant must show he had been: “designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities”. The respondent argues that the claimant had not been “designated” to carry out such activities, (while the claimant says they formed part of his job description) and even if he was “designated”, argues that redundancy, not safety activity, was the reason for dismissal.[14]Section 105 of the Employment Rights Act is about where there is a redundancy situation, where the reason for selecting on employee rather than another, was a protected reason. It provides: “an employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant(b) it is shown that the circumstances constituting the redundancy applied equally to one or more employees in the same undertaking who held a position similar to that held by the employee and who have not been dismissed by the employer, and(c) it is shown that any of the subsections (2A) to (27N) applies”. The subsections include (3) health and safety activity, and (6A) making public interest disclosures, as well as a dismissal because of section 104, were asserting a statutory right was the principal reason.[15]The claimant relies on this too. However, section 105 is not one of the grounds for awarding interim relief. He may succeed at the final hearing in showing that the selection of him rather than a colleague was for a protected reason, such as whistleblowing, but not get interim relief now. This was made clear in Bombardier Aerospace v McConnell and others (2008) IRLR 51. Unless the claimant can show the whole redundancy process was a sham, devised to dress up the real reason for dismissing him, he will not get interim relief, even if at the final hearing he could show that selecting him to go within a genuine redundancy consultation was for a protected reason and so automatically unfair. a. “Redundancy” is defined in section 139 as where “the dismissal is wholly or mainly attributable to – (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.”[16]Employers can use redundancy (or another fair reason) as a way to disguise a dismissal for another reason, as recognised in ASLEF v Brady, (“even a potentially fair reason may be the pretext for a dismissal for other reasons”) or it can be chance that they are glad to see the back of those who happen to be chosen for some other reason. The cases allow employers some latitude in establishing a redundancy situation within the statutory definition. Kingwell v Elizabeth Bradley Designs Ltd EAT 0661/02 indicated that there need not be a poor financial situation if a reorganisation is more cost-effective than the existing composition of the workforce, for example. James Cook (Wivenhoe) Ltd v Tipper (1990) ICR 716 CA discusses the investigation of whether there was redundancy. Outline of Relevant Facts[17]This outline is prepared on the basis of the unsworn witness statements and the documents, including the claim form and interim relief application.[18]The claimant started work in September 2017 as out of hours duty manager, working 3 or 4 night shifts the week, responsible for supervising construction projects across the Harrods estate, principally at the large shop building in Knightsbridge. His job description is in the bundle and has a comprehensive list of duties which included making sure that areas remained free of building contractors rubbish and materials, highlighting any issues, checking the materials were correctly stored monitoring work and compiling factually accurate reports to various departments. He had to explain Harrods procedures to contractors, check who was coming on site and what was being removed, and so on. There is no specific mention of health and safety, except that emergency works of health and safety nature did not require 48-hour notice from a building contractor, although in general it might be assumed that in this job a working knowledge of health and safety issues on construction sites was important.[19]The claimant describes in his witness statement how he complained about a number of safety issues, and mentions in particular account reported to health and safety executive in respect of access to facilities for workers, and a prohibition notice, and an issue when asbestos was removed. He kept a site diary about his concerns on safety issues from July to December 2019.[20]On 11 December 2019 he lodged an informal grievance. This complaint in general terms states that standards were slipping and that the uncertainty of what was required was affecting his health, with specific complaint about his working time, and not getting enough breaks between shifts for adequate sleep. In a follow-up on 15 December he listed a number of items of health and safety concern, including removal of an asbestos tent without expert confirmation that this was safe, a number of different accidents and injuries, a lack of PPE (personal protective equipment), and particular concerns about contractors working without proper breaks and any PPE. On 6 January he gave a list of examples of health and safety concern that had arisen over the weekend.[21]After some short spells of absence through ill-health, on 12 March 2020 he lodged a formal grievance about safety shortcomings that were on his mind. This adds concern about lack of risk assessments and extra detail of earlier concerns. These concerns were significantly amplified in a follow-up on 19 June 2020, although perusal of this shows that much of it reproduces regulations which he considered had been broken, but with reference to some specific incidents causing concern about safety procedures.[22]Against the background of this history, the Covid 19 lockdown had started.in March, which lasted from 25 March to 15 June 2020.. The respondent’s evidence is that soon after lockdown began they met to consider cuts to their programme of capital spending, and decided that 14 major projects were not to go ahead in 2020 as planned, but would be deferred to future years. More generally, they say that by the end of lockdown it was clear that they were 65% down on target revenue, which had fallen to 2013 levels, and decided that they needed to review operations including their payroll headcounts, worth £185 million, forecast revenue having been reduced to £1.5 billion. Mr Illingworth’s witness statement is to the effect that within capital projects, they identified they needed to reduce project managers, CAD operators, and the out of hours duty team. Minor projects (for example, brands setting up shop displays from time to time) were to continue. There would be no changes to the day team, but at night, when the disruptive work on major projects was carried out, the deferment of major projects meant they identified a reduced need for staffing. Their particular response was to decide to cancel 3 vacancies for project managers, to lose a CAD operator (by requiring contractors to do the work rather than doing it in-house), and to cut the out of hours duty managers from 2 to 1. The lead manager and the duty manager would between them work the night shifts. Any additional requirement for holiday and sickness cover would come from the day shift managers.[23]The claimant said that this cut to the out of hours duty team was not necessary, because even with a reduction in major projects, there was a need for a manager on nights, as the two left could not do any sickness or holiday cover, an8nting to 3 months a year just for holidays. He argues that the implication is that his job was not redundant, and this decision was a sham in order to remove him because he had complained at length and repeatedly about health and safety breaches.[24]I hope I have expressed the claimant’s case on this adequately. On more than one occasion in the hearing he said that there was a genuine redundancy situation, but “it was used to get me out of the business”. He also said that the list of major projects he had last seen in March 2020 was by 2 October more or less the same, and he denies that projects have been deferred to the following year. Unfortunately, neither document was in the bundle, and this point is not dealt with by the respondent’s witnesses.[25]The respondent carried out a redundancy consultation exercise across the business. There was a pre-agreed matrix of criteria for selection for redundancy within each department. The out of hours team was identified on the HR1 notification of intention to make redundancies. The business case within projects is in the document of 30 June 2020, the same day as the workforce generally was notified of the need to make a 14% reduction in the current workforce of 4,800, and the claimant specifically told that the 2 duty managers would be reduced to one post. They invited employee representatives from each department. In the out of hours duty team; the claimant’s colleague nominated himself as representative, and the claimant himself did not, when invited to comment on this. The documents and witness statements show 3 consultation meetings with the representatives, when feedback was invited, and 2 meetings with the claimant. The respondent says that on neither occasion did he make any suggestions for alternatives to redundancy, and he did not say either that he was being removed because of health and safety complaints, or that it was wrong to remove anyone from the out of hours duty team. His ability was scored by 2 separate managers against that matrix criteria, and the points averaged. He came out 7 points lower than his colleague.[26]The claimant was told on 4 September 2020 that he was to be dismissed by reason of redundancy, which took effect on expiry of notice on 4 October.[27]The claimant’s grievance outcome was transmitted to him on 25 September, and immediately he lodged an appeal, which has yet to be decided. Discussion and Conclusion[28]in relation to an interim relief application, the claimant’s chief difficulty is in showing that one of the 2 out of hours duty managers post was not redundant, and that announcing that one of these posts was redundant was in fact a sham designed to remove him because of his safety concerns. Even if I assume for the sake of argument that he will be able to establish that he made protected disclosures that meet the criteria of subject matter, disclosure of information, reasonable belief and being made in the public interest, and that this was the reason for choosing him to go, rather than his colleague, he still has a lot of uphill work to show the redundancy was a sham. There is a lot of latitude given to employers when making redundancy decisions. If an employer can show he believed redundancy was the reason, it is difficult for the tribunal to intervene just because events or evidence show that the belief was mistaken. The respondent adds that with an objective scoring matrix, apparently carried out by 2 others independently, it could not be predicted that the claimant would be the duty manager to go. This weakens the claimant’s argument that making one of 2 duty managers redundant was a sham intended to get rid of him – it could have been his colleague, so he has to show both that it was a sham and that the outcome was fixed. The claimant also faces difficulty that he did not mention in either consultation meeting any criticism of the respondent’s assessment of their needs for duty managers. I understand that he was already suffering from stress and depression, and that both lockdown and the prospect of redundancy will have intensified any employee’s stress, but it does not assist him in defeating the respondent’s case.[29]For this central reason, the difficulty of showing the redundancy was a sham, my assessment is that the claimant is not “likely”, to the high degree required for interim relief to be granted, to succeed.[30]In respect of the section 100 argument, there is little evidence that the claimant was “designated” to carry out health and safety activities. This diminishes further the likelihood of success on this ground.[31]Therefore, the application for interim relief does not succeed.[32]The claimant should recognise that although he has not succeeded at this stage, he still has prospects of success in showing unfair dismissal as a final hearing. That is because at the final hearing a tribunal will be able to assess whether the reason for choosing him for redundancy, rather than his colleague, was a protected disclosure, or safety activities, as prohibited in section 105.
The Facts
[33]In turn, Mr Arno reported to Mr Martin Illingworth, the Respondent’s Director of Store Development (the fourth of the Respondent’s witnesses before me). Mr Illingworth was responsible for all capital works and construction projects.[34]In addition to those already identified, it seems that there was also a Project Management Team, apparently reporting directly to Mr Arno.[35]All the individuals and teams referred to sat within the Technical Services Department (‘TSD’). 2 Computer Aided Design Facts relevant to the ‘ordinary’ unfair dismissal claim[36]The findings made here concern the redundancy process and the Claimant’s dismissal. The heading should not be taken to imply that I have overlooked the importance of having regard to facts found under the other headings below when considering the ‘ordinary’ unfair dismissal claim.[37]The Covid-19 pandemic resulted in the Store being closed between 25 March and 15 June 2020. That caused lost sales estimated at £425 million. Senior directors rapidly agreed a drastic reduction in the capital spend of the business for 2020. 14 major capital projects were deferred, having a combined value of more than £33 million. This in turn involved a substantial reduction in the volume of work required of the Duty Managers Team, the CAD Team and the Project Management Team.[38]The decision to cut capital projects did not bear only upon capital spending. Under the Respondent’s arrangements, contributions to fund the salaries of Out of Hours Duty Managers and Project Managers were directly related to current projects. Accordingly, the cancellation of the projects required TSD to look for payroll savings too.[39]The TSD Team could find immediate savings by eliminating three current Projects Manager vacancies, giving a total cost saving of £136,000 annually.[40]Turning to the CAD Team, a change in arrangements between the Respondent and its consultants involving transfer of responsibility for CAD work to the consultants meant that the requirement for the Respondent to employ a CAD Operator disappeared, leading to a saving annually of £19,000.[41]In the case of the Duty Managers Team, the assessment was made that the Out of Hours Duty Managers could be reduced from three (two Duty Managers and the Lead Duty Manager) to two (one Duty Manager and the Lead Duty Manager). This would be achievable by changing the out of hours shift patterns. To date, each Duty Manager had worked three nights per week and the Lead Duty Manager had worked the remaining night alone but also doubled up with each of the Duty Managers on one other night per week. The proposal was that one Duty Manager post be deleted and a new shift pattern implemented involving the remaining Duty Manager and the Lead Duty Manager covering the full week between them, each working for three or four nights and the allocations (of either three or four nights weekly) being reversed approximately every two months. In times of sickness or absence on leave, a member of the daytime Duty Manager Team would be required to deputise. This proposal would inevitably result in the Out of Hours Duty Managers being placed at risk of redundancy. The possibility of placing members of the daytime team at risk was discounted on the basis that the daytime and out of hours roles had never been seen as interchangeable and the Out of Hours Duty Managers were paid something like 60% more than their daytime peers.[42]On 30 June 2020 Mr Illingworth, accompanied by Ms Alicia Hoque, an Employee Relations Specialist in the TSD, met the Claimant, Mr Jim Sullivan, the other Out of Hours Duty Manager and Mr Dean Norris, CAD Operator, to advise them that they were being placed at risk of redundancy. He explained the business case, which I have already summarised.[43]Letters were sent to the affected employees the same day confirming what had been discussed at the meeting.[44]A process of consultation followed, collective and individual. Mr Sullivan acted as the Employee Representative for the purposes of the collective consultation. He invited comments or questions from the Claimant and others, but it seems that none were passed to him. He attended three collective consultation meetings, on 13 July 2020, 24 July 2020 and 27 August 2020. No challenge was raised to the Respondent’s reorganisation proposals, the underlying business case or the proposed redundancy selection criteria and process. I am not aware of any criticism of the collective consultation process.[45]The proposed selection criteria were five in number: length of service; performance (based on the most recent appraisal); disciplinary record; attendance record; and qualifications/specialist training.[46]In late July or early August Mr Arno carried out a scoring exercise with a view to identifying the Out of Hours Duty Manager to be made redundant. This work was done after the second collective consultation meeting, at which it was apparent that no challenge was raised to the proposed selection criteria.[47]The outcome of Mr Arno’s exercise was that the two candidates were tied on scores of 12 points each.[48]Individual consultation with the Claimant took place on three separate occasions. The first took the form of a meeting held on 12 August 2020, chaired by Mr Arno. The business case was rehearsed, and the Claimant said that he understood it. The selection methodology was also discussed and the Claimant raised no challenge to it. Mr Arno told him the score he had received and he replied that he agreed with it and had arrived at the same figure himself. Having explained that Mr Sullivan had registered the same score, Mr Arno went on to say that there would be a tie-break in the form of an interview.[49]It was initially intended that the interview panel would consist of Mr Arno and Mr Mitul Shah, a senior manager in another Department, but as a result of representations by the Claimant, two adjustments were made. First, Mr Arno was replaced by Mr Robert MacPherson, Senior Engineering Technical Manager. Second, the Claimant’s request for his interview to be conducted in writing was granted.[50]On 24 August 2020, the Claimant’s written interview was conducted. That of Mr Sullivan, which took a conventional form, was held at around the same time. Mr Mitul and Mr MacPherson scored the answers out of a total of 20. The combined scores were averaged, giving totals of 11 and 18.5 respectively. These numbers were then calibrated to reflect the scoring scheme applied to the original selection criteria, with the result that the Claimant was awarded an additional score of three, and Mr Sullivan, four. Accordingly, Mr Sullivan won the competition by the narrow margin of one point.[51]The second individual consultation meeting was conducted through an exchange in writing, at the Claimant’s request. Ms Hoque sent a long message to him on 26 August 2020, setting out, again, the rationale behind the redundancy programme generally and its particular impact on the Out of Hours Duty Managers, the outcome of the selection exercise, access to information about alternative employment within the organisation and sundry other matters. As agreed, the Claimant responded in writing two days later. He raised several points. First, he queried how two Duty Managers could cover the entire working week and what provision would be made in respect of annual leave and/or sick cover. Second, he questioned the performance score awarded by Mr Arno, contending that his most recent appraisal (for 2018) had been done hastily and at a time when he had been experiencing stress and anxiety and that it would have been fairer to base the scoring on an average of appraisal scores. Third, he voiced general dissatisfaction with the way in which the Respondent had treated him, in relation to the redundancy process and a grievance he had raised.[52]The third individual consultation meeting, initially scheduled for 2 September 2020, was again, at the Claimant’s request, conducted in writing. Ms Hoque wrote to the Claimant on 31 August and 2 September 2020, rehearsing the background history again, giving notice that, if redeployment was not possible, he would be dismissed for redundancy on notice to be given on 4 September 2020, setting out his entitlements in respect of notice and a redundancy payment and providing detailed responses to the first and second matters which he had raised in the second consultation meeting. As to the first, she explained that the Respondent had formed the view (on experience) that it would be able to manage with two Duty Managers, supplemented by appropriate cover where necessary. Second, she observed that the performance score had been in accordance with the scoring scheme (to which no objections had been raised). (She did not add the further information which had been shared with her that the Claimant had raised no challenge to the 2018 appraisal score and that, in any event, there had been no prior appraisal, since he had joined the organisation in mid-2017.) The Claimant responded on 3 September 2020, stating only that he had considered the Respondent’s online information on vacancies but had made no application.[53]On 4 September 2020 the Respondent gave the Claimant notice of dismissal on the ground of redundancy to expire on 4 October 2020 and advised him of his right to appeal.[54]The Claimant appealed against the decision to dismiss, disputing that he was redundant and maintaining in any event that the dismissal was unfair on ‘whistle-blowing’ grounds and because it was (partly) based on his mental health disability. A particular point on unfairness consisted of the allegation that at a grievance meeting on 26 June 2020, Mr Chris Dee, Director of Food & Home, who had chaired the meeting, had been recorded as remarking (of the Claimant), ‘Next week’s going to be difficult for him’, which was said to signal pre-determination of his dismissal. An appeal meeting was held on 28 September 2000. It was conducted by Mr John Lacey, General Manager TVDC, who was supported by Ms Georgia Long of HR. The Claimant attended and was accompanied by a trade union representative. The meeting took over an hour and the discussion was wideranging. Mr Lacey subsequently spoke with Mr Arno, Mr MacPherson and Ms Caroline Andrew, Senior Employee Relations Specialist. By a detailed letter of 6 November 2020, running to 11 pages, Mr Lacey dismissed the appeal against dismissal, holding that the redundancy had been genuine and the procedure followed, fair. In relation to the point about Mr Dee’s remark at the meeting of 26 June 2020, Mr Lacey found, accepting the evidence of Ms Andrew, who had been present (Mr Dee was not available, having left the organisation), that the reference was simply to the fact that plans for a reorganisation were about to be announced and would inevitably be unwelcome to the Claimant, as to all persons affected.[55]The Claimant was one of about 700 individuals dismissed by the Respondent on the ground of redundancy in the 2020 reorganisation. Facts relevant to the health and safety unfair dismissal claim[56]Since this part of the case turns fundamentally on the meaning of the statutory provisions and there is very little factually between the parties, it would not be proportionate for me to add many findings to those already made concerning the scope and nature of the Claimant’s job. His general responsibilities for monitoring, oversight, liaison and daily reporting certainly involved a health and safety component. In particular, the Duty Manager has the duty to look out for health and safety issues and hazards and to report them. It may fall to him to resolve minor matters at once. Otherwise, they must be taken to the manager of the relevant contractor on site or, where necessary, to the Project Manager. Moreover, despite these reporting mechanisms, there have been occasions when a Duty Manager has had to intervene unilaterally. I have already noted that the Claimant did, on occasion, take the decision (which he had express power to do) to halt work temporarily on a health and safety ground.[57]The difficulty for the Claimant is that, despite the disproportionate mass of evidence concerning his health and safety responsibilities, his claim under the 1996 Act, s100(1)(a) does not get off the ground unless he was ‘designated’ by the Respondent to carry out activities in connection with preventing or reducing risks to health and safety. As I have explained on the basis of binding legal authority, the notion of ‘designation’ entails assignment or attribution to an individual of a special health and safety function, extending beyond his or her ordinary job duties. The Claimant has never had any such special, additional health and safety function. His duties in relation to health and safety matters were indistinguishable from those of the other Duty Managers. Facts relevant to the ‘whistle-blowing’ unfair dismissal claim[58]Here again, I need to start with the principle of proportionality. In view of the way in which I have decided the case on the matter of the reason for dismissal, it would not be proportionate for me to devote pages of analysis to finding facts and drawing conclusions on the issue of whether the Claimant ever acquired the protection of the 1996 Act, s103A. For present purposes, the findings which follow, are perhaps rather more than is needed. I will identify the alleged protected disclosures as ‘PD1’, ‘PD2’ and so on, mimicking the more elaborate paragraph numbering system in Employment Judge Bunting’s appended case management document.3[59]Although some of the findings grouped here might reasonably be seen as ‘secondary’, evaluative or inferential findings, I think it convenient to keep them together in one place.[60]PD1, PD2, PD3, PD4, PD10 and PD11, which date from December 2019 to June 2020, concern an incident in April 2019 when a staircase at the Store was opened before an analyst had carried out asbestos checks. I find that, taken together at least, they amount to a communication of information. Not without hesitation (given in particular the delay in raising the matter), I further find that the Claimant reasonably believed that the information tended to show a breach of a legal obligation and/or a risk to health and safety and that the disclosure was made in the public interest.[61]PD5, contained in the Claimant’s grievance of 12 March 2020, contains information about a fire in the Store’s Men’s Contemporary Department on 3 January 2020, makes critical comments about the Respondent’s response to the fire and conveys his chief complaint as being that he was not notified of what had happened (he was not on duty) or of what lessons had been learned. I find that this communication conveyed information and that the Claimant reasonably believed that it tended to show a breach of a legal obligation and/or a risk to health and safety. Taking the disclosure as a whole, I am also prepared to assume that he believed that it was communicated in the public interest despite his central preoccupation appearing to be that he personally had not been made aware of the relevant events.[62]PD6, contained in an email sent by the Claimant to various individuals, including Mr Arno, Mr McDaid and Mr Gregory, on 16 June 2019, made allegations of various breaches by contractors of health and safety rules, which had resulted in the Claimant stopping the work on the relevant site. Mr McDaid immediately acknowledged the message as identifying a serious issue. I find that it conveyed information which the Claimant reasonably believed to show a breach of a legal obligation and/or a risk to health and safety and that he reasonably believed that its disclosure was in the public interest.[63]PD7, contained in the grievance of 12 March 2020, conveyed an assertion that the Claimant had not seen a risk assessment in respect of his job. In my judgment, that is not a disclosure of information. And even if it was, it was not a disclosure of anything which the Claimant believed to show a breach of the legal obligation or a risk to health and safety. (It was not in dispute that risk assessments had been carried out in respect of specific tasks. This is different: it concerns a proposed risk assessment in respect of an entire role.) Nor, I find, did the Claimant believe that this communication was in the public interest and, if I am wrong about that, I find that any such belief was not reasonable. 3 As already mentioned, Judge Bunting listed 10 disclosures. I refer to the two additional disclosures as PD11 and PD12.[64]PD8, also contained in the grievance of 12 March 2020, is a complaint about ‘not working the actual hours in contract’. The Claimant offered, so far as I can recall, no specific information concerning excess hours and I find that he did routinely work his contracted hours. He also elected to work voluntary overtime. I find that this complaint falls short of amounting to a communication of information and stands as a mere ‘allegation’. I further find that it was not a matter which, in the Claimant’s reasonable belief, tended to show a breach of any legal obligation or a risk to health and safety. Nor am I persuaded that he believed that this disclosure (if such it was) was made in the public interest.[65]PD9, again in the grievance of 12 March 2020, is a complaint about the absence of any annual health check. I make identical findings here to those in respect of PD8.[66]By PD12, contained in an email to Mr Arno, Mr McDaid and Mr Gregory sent on 6 January 2020, the Claimant referred to contractors working a 17-hour shift and then driving to Nottingham (something which ‘[happened] a lot’), contending that the Respondent had a duty ‘as the client’ to ensure that contractors take all necessary steps to avoid risks. I find that this was a communication of information, but I think it very unlikely that the Claimant really believed that it tended to show a breach by the Respondent of any legal obligation. And if I am wrong about that, I am in no doubt that any such belief was not reasonable. To state the obvious, the Respondent had no power, let alone duty, to control the behaviour of contractors after they left the Harrods site. In the circumstances, I do not accept that the Claimant believed that this disclosure was made in the public interest. And again, if I am mistaken on that point, I find that any such belief was also unreasonable. Secondary Findings and Conclusions Rationale for primary findings[67]I found the Claimant and the Respondent’s witnesses frank and sincere. In arriving at my primary findings, I have had regard to the plausibility and consistency of the evidence given by witnesses and have given particular attention to contemporary documents. ‘Ordinary’ unfair dismissal[68]The Claimant did not dispute that a redundancy situation arose as a consequence of the Respondent’s decision to reorganise its business. Nor did he dispute that the Respondent was entitled to judge that the TSD should not be exempt from the need for economies.[69]In my view it is very clear that a redundancy situation arose as a consequence of the reorganisation. The requirements of the Respondent’s business for employees to carry out work of a particular kind, namely Out of Hours Duty Manager work, had diminished as a consequence of the decision to use the Lead Manager and one of the Duty Managers to cover the working week between them and to look to the daytime team to fill in where necessary.[70]To reorganise in that way was a business decision open to the Respondent in the circumstances. It was also permissible to confine the pool for selection to the two Duty Managers. The Respondent was entitled to judge that the Lead Duty Manager should be retained because (as was not disputed) he had some responsibilities at a higher level, sitting between the Duty Managers and Mr McDaid. The Respondent was also entitled to judge that the pool should consist of the two Out of Hours Duty Managers and should not include the daytime Duty Managers. The responsibilities of the two categories of Duty Manager were not the same, as was vividly reflected in the substantial difference in the salaries they attracted.[71]The selection criteria were reasonable and certainly permissible. They were very largely objective and capable of measurement and verification. It was reasonable to resort to an interview in order to separate the two candidates after application of the initial criteria. It was also reasonable and certainly permissible to include at interview questions designed to test competence and values, despite the fact that this would require scorers to apply a degree of subjective judgement in their assessment of the answers.[72]The scoring scheme was not the subject of any challenge, rightly in my view. It was certainly a proper and permissible scheme.[73]Nor, again rightly, was there any challenge to the application of the scheme, including the scoring of each candidate at the interview stage.[74]As I have mentioned, there was a full and genuine consultation process. I am satisfied that the Claimant was made fully and clearly aware of the Respondent’s reorganisation plans and the rationale for them and had ample opportunity to question the proposals and/or put forward arguments or suggestions for means by which compulsory redundancies might be averted.[75]The Claimant was also advised at all stages of the consultation process as to where to seek information about vacancies within the Respondent’s business. It seems that there was no vacancy for which he was suited or, at least, none which attracted his interest.[76]In the circumstances, I am satisfied to a high standard that the redundancy process was fair and certainly well within a range of permissible decision-making open to the Respondent in the circumstances.[77]The dispute is really about substance rather than process. The nub of the Claimant’s case is his challenge to the stated reason for dismissal. But here too, I have reached a very clear answer. I have started by reminding myself of the law. The central question is whether the reason, or principal reason, for dismissal was that the Claimant was redundant (emphasis added). The focus is not on the belief of the employer, but on the legal reality (see the 1996 Act, s98(2)(c)). Was the Claimant redundant? In my view, he manifestly was, given the reorganisation which had been decided upon and the selection exercise which had been performed.[78]Was that the reason, or principal reason, for dismissal? The obvious answer, I think, is yes. For a clear business reason, one of two identical posts had been deleted. That left one of two post-holders redundant. The Claimant had lost the competition against the other post-holder for the single Out of Hours Duty Manager vacancy in the new structure. Absent any possibility of redeployment, the only rational course open to the Respondent was to dismiss him as redundant. To do anything different would have defeated the object of the reorganisation, namely to achieve economies. This reasoning accords with common sense and is borne out by the contemporary documents. The Claimant argues (submissions, p2 and following) that the timing of the redundancy process ‘strongly suggests an ulterior motive’, namely to get rid of him as a ‘whistle-blower’. With respect to him, he seems to have fallen for an old fallacy: the fact that one event precedes another does not of itself justify treating the former as the cause of the latter.4 That plans for a business-wide reorganisation (in the aftermath of a commercially catastrophic event) are announced at a time when a particular employee is pursuing a grievance raising health and safety issues does not point to a malign motivation against that employee. The suggestion of a ‘sham’ redundancy programme (which the Claimant felt evident discomfort in putting to Mr Illingworth) was plainly hopeless. His second-string argument was that the timing suggested ‘contamination of decision-making’, apparently implicating Mr Arno and/or Mr Illingworth. But there is simply no evidential basis for any theory of manipulation of the redundancy process. That process was, as I have found, entirely unobjectionable. When it came to the selection exercise, Mr Arno gave the Claimant the very score which (as he very fairly accepted in evidence) he would have awarded himself. He was replaced by Mr MacPherson at the interview stage, at the Claimant’s request. The Claimant makes no criticism of the scores awarded on interview. To his credit, he does not argue that the ultimate scoring outcome was unfair or that Mr Sullivan ought to have been dismissed in his stead.[79]For all of these reasons, I reject the complaint of ‘ordinary’ unfair dismissal. Health and safety unfair dismissal[80]On the strength of my findings of fact above, the claim under the 1996 Act, s100(1)(a) falls at the first hurdle. The Claimant was not ‘designated’ in accordance with that provision and the protection he invokes does not attach to him.[81]The claim is, in any event, without merit. Even if the Claimant was within the statutory protection, he would succeed only if the Tribunal found that activities carried out by him pursuant to the designation were the sole, or principal, reason for dismissal. I am satisfied that he was not dismissed because of his interest in, or concerns about, health and safety matters. Those matters played no part whatsoever in the decision to dismiss. The sole reason for his dismissal was redundancy. ‘Whistle-blowing’ unfair dismissal 4 The fallacy is sometimes given the Latin tag, post hoc ergo propter hoc.[82]On my findings above, the Claimant establishes that some of the communications on which he relies amounted to protected disclosures for the purposes of the ‘whistle-blowing’ provisions. But his claim under this head fails because, I find, such disclosures were not the reason, or even a contributory reason, underlying the dismissal. I will not repeat my findings above. Overall conclusions[83]It follows that the dismissal was not unfair.[84]Finally, and only for completeness, I should add that I have confined my decision-making to the agreed issues. It would have been open to the Claimant to pursue claims under the 1996 Act, 105(3) and 105(6A), to the effect that the reason for dismissal was redundancy, but the dismissal was automatically unfair on the basis that the reason, or principal reason, for selecting him for redundancy was a reason which offended against the corresponding unfair dismissal protections of ss100(1)(a) and 103A. That course would have spared him the hugely challenging task of attempting to undermine the Respondent’s self-evidently solid case on the genuineness of the redundancy ground relied upon. Instead, the focus would have been exclusively on the reason why the Claimant was selected for redundancy. But, for the reasons already stated, the outcome would have been the same. In short, I would have found that the s105(3) claim did not get off the ground because the Claimant was not ‘designated’, that the selection had, in any event, nothing to do with his health and safety activities, and that the s105(6A) claim failed because such protected disclosures as there were did not in any way influence, let alone amount to the reason or principal reason for, the Claimant being selected for redundancy. Outcome and postscript[85]For the reasons stated, the claims fail and the proceedings as a whole are dismissed.[86]Finally, I would not wish to leave this litigation without saying that I greatly regret the pain and stress which it has cost the Claimant. I accept entirely that he has pursued his claims under the settled conviction that they are valid. For the reasons I have given I am unable to share his view, but I sincerely hope that having a decision on the merits will provide him with closure and a chance to make a fresh start in employment, putting his conspicuous energy and talents to fulfilling use.