Mr A Moussa v First Great Western Ltd and others: 2207012/2018
EMPLOYMENT TRIBUNALS
Case No 2207012/2018, 2205166/2013
Between
Mr A MoussaClaimantFirst Great Western Ltd and othersRespondent
Before
Employment Judge E BurnsMr R Fitzpatrick (instructed by counsel) for respondentDate 14 February 2022
JUDGMENT
[1]The claimant’s claim that he was subjected to a detriment on the ground that he made a protected disclosure on 2 March 2012 (as set out in paragraphs 73 – 101 of the particulars of claim attached to claim 2205166/2013) is struck out pursuant to rule 37(1)(b) of the tribunal rules.[2]The claimant’s claim that he was subjected to a detriment on the ground that he made a protected disclosure on 16 March 2012 (as set out in paragraphs 102 – 109 of the particulars of claim attached to claim 2205166/2013) is dismissed on withdrawal.
REASONS
Issues
[1]Today’s hearing was a preliminary hearing in public to determine whether the claimant’s claim that he was subjected to a detriment on the ground that he made a protected disclosure pursuant to section 47B of the Employment Rights Act 1996 should be struck out.[2]Specifically, the respondent applied for the strike out under rules 37(1) (a), (b) and/or (d) of the tribunal rules, or in the alternative the respondent applied for a deposit order under rule 39.[3]Although the claimant’s representative said at the start of the hearing that he had not been made aware of the specific grounds of the strike out or the fact that the application included a deposit order until the evening before the hearing, he did not seek additional time to prepare or apply for a postponement. I was satisfied that the arguments the respondent was relying on had been rehearsed during two telephone preliminary hearings held 1 and 8 April 2020 such that the claimant should have been well aware of them. I note that the respondent and the claimant had prepared detailed written submissions for the purposes of the hearing on 8 April 2020.[4]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under rule 46. The parties agreed to the hearing being conducted in this way. There were no technical difficulties.[5]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. A member of the public attended the hearing accordingly, but did not make a request for access to any fo the documents.[6]The participants were warned in advance that it was an offence to record the proceedings.[7]There was a hearing bundle provided by the respondent. The claimant provided some additional documents in advance as well as emailing a key missing document to me and the respondent during the hearing. No witness evidence was heard. I refer below to key documents that I have relied on when reaching my judgment.[8]Both of the representatives provided very helpful written submissions and case law authorities. Findings of Fact[9]The claimant is employed by the first respondent as a Gateline Operative based at Paddington Station. He has previously brought the following employment tribunal claims:(a) A claim submitted on 30 July 2013 under number 204462/2013 for detriment for having made a protected disclosure under section 47B of the Employment Rights Act 1996(b) A claim submitted on 29 October 2013 under number 2204984/2013 for (i) unfair dismissal, (ii) detriment for having made a protected disclosure under section 47B of the Employment Rights Act 1996 and (iii) race and religious discrimination/harassment. The particulars of claim referred to five separate alleged protected disclosures that the claimant claimed to have made in 2012 (the “2012 disclosures”).(c) A claim submitted on 29 October 2013 under number 2205166/2013, which was later dismissal on withdrawal.[10]Claims 204462/2013 and 2204984/2013 were withdrawn following a settlement by way of a COT3 agreement.[11]This claim was presented on 12 December 2018. There is reference in the ET1 form in section 8.1 to the claim as constituting: “1. Victimisation (section 27 Equality Act 2019 (sic)) for bringing former complaints and legal claims for Race & Religious Discrimination & Harassment & 2. Victimisation for former complaints & legal claims of protected disclosure detriments.” (6)[12]The attached particulars of claim, however, go into more detail and suggest that is intended is a victimisation claim under section 27 of the Equality Act 2010 and a claim for detriments under section 47B of the Employment Rights Act 1996 because the claimant made qualifying disclosures as defined in section 43B of the Employment Rights Act 1996. The protected disclosures relied upon are expressly said to be the 2012 disclosures and a new protected disclosure made on 6 September 2018 (25).[13]The grounds of resistance presented by the respondent confirm expressly that the respondent understood the claimant’s claim, in addition to the victimisation claim under section 27 Equality Act 2010, to include a section 47B Employment Rights Act 1996 claim relying on the original 2012 disclosures and a fresh disclosure made in 2018 (36, 39 – 40).[14]The case was case managed on 15 August 2019 by Employment Judge Davidson and she produced a case management order (containing a list of issues. The list of issues records the claim as being a claim of victimisation under section 27 of the Equality Act 2010 only.[15]The respondent says the claimant withdrew the section 47B Employment Rights XCt 1996 claim at the preliminary hearing, but it is impossible to tell from the case management order. It makes no reference to the section 47B Employment Rights CT 1996 claim at all (51-53) and I note that Employment Judge Davidson did not issue a judgment dismissing the claim on withdrawal. The claim cannot have been struck out as the preliminary hearing was conducted in private.
Background
[16]The list of issues was sent by email (copied to the claimant’s representative) to Employment Judge Davidson by counsel for the respondent after the preliminary hearing (50) that same day. She incorporated the list into her order. The claimant did not raise a concern about the list of issues.[17]There was also further correspondence between the parties and the tribunal by email on that date concerning the dates for which the final hearing had been listed (48 – 49). Again, the claimant raised no concern about the list of issues in these emails.[18]The representatives for the parties exchanged emails in February 2020 about compliance with case management orders in preparation for the final hearing. In an email of 28 February 2020 dealing with a number of matters, the claimant’s representative raised that the list of issues in the case management order referred only to a claim of victimisation under section 27 of the Equality Act 2010 whereas the pleaded claim and response clearly referred to “protected disclosure detriments as well.” The claimant’s representative sought the respondent’s agreement to a revised list of issues (56). The respondent’s representative replied on 6 March 2020 saying that the respondent did not agree to make any amendments to the list of issues set out in the case management order. (55)[19]The claimant did not reply on this point or write to the tribunal to raise any concerns. He conceded at the hearing that he had not written to the tribunal to raise the issue of the omission from the list of issues and should have done so. The explanation he gave for this was because of his own and a family member’s illness, as well as the beginning of concerns about the COVID-19 pandemic.[20]The case was listed for final hearing which was due to commence on 1 April 2020. Because of the COVID-19 pandemic, it did not take place and instead a preliminary hearing conducted for case management purposes by me was held by telephone instead.[21]Prior to the hearing, the claimant’s representative submitted a note raising the issue of the incomplete list of issues. The claimant’s representative insisted the claim had not been withdrawn, whereas the respondent persisted in saying it had been,[22]I determined that to resolve this disputed issue there would need to be an open preliminary hearing. This was because the respondents were effectively asking the tribunal to strike part of the claimant’s claim out.[23]At today’s hearing, I have been invited to infer that the claimant’s representative expressly withdrew the section 47B Employment Rights Act 1996 claim at the preliminary hearing and that he is deliberately and knowingly seeking to have it reinstated knowing that this is an abuse of procedure. I do not make that finding. There was insufficient evidence before me to reach this conclusion. I find that the most likely explanation for the omission in the list of issues, on the balance of probabilities, is that its preparation was based on a misunderstanding at the preliminary hearing which the claimant failed to try and correct for nearly six months.[24]I also find that the claimant’s representative’s personal circumstances do not offer sufficient excuse for the delay. The claimant’s representative is providing a professional service. If his personal circumstances were having an impact on his ability to provide that service to the appropriate standard, he should have taken steps to hand the case over to a colleague or to inform the claimant and enable him to seek assistance elsewhere.[25]The claimant’s representative has today withdrawn reliance on one of the 2012 disclosures, namely the second one. THE LAW Protected Disclosures[26]Section 47B(1) of the Employment Rights Act 1996 says: “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.”[27]According to section 43A “ 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.[28]Section 43B(1) says “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[29]The words shown above in square brackets were added later and came into force from 25 June 2013 by virtue of an amendment contained in the Enterprise and Regulatory Reform Act 2013. Section 18(1) of that Act also amended sections 43C, 43E and 43F of the Employment Rights Act 1996. Prior to 25 June 2013, disclosures made in accordance with those sections needed to be made “in good faith” to attract protection. This requirement was removed from 25 June 2013 onwards.[30]The leading case dealing with when the public interest test is met is Chesterton Chesterton Global Ltd & Anor v Nurmohamed & Anor [2017] EWCA Civ 979. The Court of Appeal confirmed that where a disclosure relates to a breach of the worker's own contract of employment, or some other matter under section 43B(1) where the interest in question is personal in character, there may be features of the case that make it reasonable to regard the disclosure as being in the public interest as well as in the personal interest of the worker. Striking Out Claims[31]The relevant parts of Rule 37 say the following: (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; …… (d) that it has not been actively pursued.[32]Rule 37(1)(e) contains an additional ground, namely “that the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out)”. As can be seen below, this is incorporated into the test that is applied when considering a strike out under rule 37(1)(b).[33]The overriding objective in Rule 2 of the Tribunal Rules is also relevant at all times when considering an application of this nature. Rule 37(1)(a)[34]The courts have repeatedly warned of the dangers of striking out discrimination and whistleblowing claims on the grounds that they lack prospects of success, particularly where “the central facts are in dispute” e.g. in Anyanwu v. South Bank Student Union [2001] ICR 391 at [24] and [37] and Ezsias v. North Glamorgan NHS Trust [2007] ICR 1126 at [29].[35]However, while exercise of the power to strike out should be sparing and cautious in discrimination claims, there is no blanket ban on such practice.[36]The question of striking out discrimination claims was recently considered by the Court of Appeal in Ahir v. British Airways Plc [2017] EWCA Civ 1392, where Underhill LJ stated at [16]: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment.” Rule 37(1)(b)[37]The power to strike out under rule 37(1)(b) expressly includes the manner in which proceedings have been conducted on behalf of the claimant or the respondent, making it clear that a representative’s conduct can be taken into account.[38]Three conditions must be met to strike out a claim for unreasonable conduct:• The unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps• A fair trial is rendered impossible• Striking out is a proportionate response to the unreasonable conduct. (Blockbuster Entertainment Ltd v James [2006] IRLR 630, CA; De Keyser Ltd v Wilson [2001] IRLR 324, EAT; Bolch v Chipman [2004] IRLR 140, EAT) Rule 37(1)(d)[39]This rule is triggered where there is a delay in pursuing a claim or part of it. In order to justify strike out, the delay must be excessive and inexcusable. Given that such delay is also likely to constitute unreasonable conduct, it is not surprising that the test that must be applied by a tribunal deciding whether to strike out a claim for delay under rule 37(1)(d), is similar to that under rule 37(1)(b). An order for strike out can only be made where it is also shown that a fair trial would be impossible or that there is or would be serious prejudice to the other party (Birkett v James [1978] AC 297, HL). Lists of Issues[40]A list of list of issues is a case management tool enabling an employment tribunal and the parties to identify the matters that will be considered at a hearing so that they can focus their preparations accordingly. Their use has been considered in a number of cases, in particular Parekh v London Borough of Brent [2012] EWCA 1630, Scicluna v Zippy Stitch Limited & Ors [2018] EWCA Civ 1320, Saha v Capita plc UK EAT 0800/18/DM and Mervyn v BW Controls Ltd [2020] EWCA Civ 393, CA[41]In Saha, Mrs Justice Slade says at paragraph 37: “In my judgment, far from being authority for the proposition that the ET and the parties are bound by the list of issues, Mummery LJ in Parekh made it clear that the core duty of an Employment Tribunal is to determine the case in accordance with the law and the evidence.” I consider that the approach advocated by Mrs Justice Slade is correct in principle and means that where required in the interest of justice, a tribunal can and should consider whether an amendment to the list of issues is necessary, even at the point of a final hearing. Deposit Orders[42]Rule 39 of the Tribunal Rules says: “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”[43]Similar considerations apply to those required as in a strike out application under rule 37(1)(a) where a claims is said to have no prospects of success.[44]If an order is made, it should be for payment of an amount that the paying party is capable of paying with the period set (Hemdan v Ishmail [2017] IRLR 228, EAT) taking into account his or her net income and any savings. The employment tribunal must give reasons for setting the deposit at a particular amount (Adams v Kingdom Services Group Ltd UKEAT/0235/18). ANALYSIS AND CONCLUSIONS Rule 37(1)(b) – Withdrawal[45]The first argument made by the respondent was that I should strike the section 47B claim out because it had previously been withdrawn. I was invited to find that allowing a representative to seek to resile from an express withdrawal of a claim constituted an abuse of process. As I have found, as a matter of fact, that there was no such express withdrawal, this argument falls away. Rule 37(1)(b) and Rule 37(1)(d) - Delay[46]As an alternative, the respondent argued I should strike the section 47B claim out on the ground that the claimant’s delay in raising the omission in the list of issue for six months was unreasonable conduct under section 37(1)(b) and/or triggered strike out under rule 37(1)(d).[47]I consider Mr Singh’s failure to raise his concern about the list of issues with the respondent for six months to constitute unreasonable conduct. It was also unreasonable conduct that he failed to raise it with the tribunal until the day before what would have been the first day of the final hearing.[48]It was not unreasonable for him to raise it. As confirmed by the case law, a list of issues is set in stone. Having not withdrawn the section 47B claim claim (according to my findings of fact) he was duty bound to raise the omission. He should have done this much earlier, within 12 days of receiving the case management order of Employment Judge Davidson. It was the delay that was unreasonable and not the fact of raising the issue.[49]I have found as a matter of fact that the delay was inexcusable. As a professional representative, Mr Singh could have taken steps to prevent his personal difficulties having an adverse impact on his conduct of the case.[50]I do not consider the delay in isolation to be excessive in length. In this case the allegations concern events from 2012, which will already be difficult for the individuals involved to recall. It is unlikely that the delay caused by Mr Singh will make that existing problem much worse.[51]The impact of the delay, however, is that the parties are faced with having to undertake a further disclosure exercise and take further witness statements at a time when the case had been thought to be ready for a hearing. This will inevitably result in increased costs for the respondent who will have to go back over work, such as the drafting of witness statements that had already been completed. It is this aspect that it my judgment causes Mr Singh’s conduct to be unreasonable.[52]The COVID-19 pandemic has caused a natural delay to when the hearing in this case can be heard. There is therefore time available to enable the parties to undertake this work.[53]I discussed at some length with the parties what exactly would need to be done to ensure that a fair trial could proceed in which the parties are on an equal footing. We also spent some time looking at the disclosures relied upon to see what work would be needed in relation to each disclosure.[54]My decision is that the respondent can relatively easily collate the evidence it might need in respect of the disclosure said to have been made in made 2018. The disclosure is in the form of a letter which speaks for itself. The good faith requirement does not apply to this disclosure.[55]I consider that it is possible to have a fair trial of question whether the claimant made the 2018 protected disclosure. The respondent’s witnesses will need to have an opportunity to address whether their treatment of the claimant was connected with the disclosure, but this can be achieved with relative ease, albeit additional costs will be incurred. It would therefore, in my judgement, be disproportionate to prevent the claimant relying on this disclosure because of Mr Singh’s unreasonable conduct.[56]Three of the alleged disclosures said to have been made in 2012 were made to the second respondent in the claim who is a currently employee of the first respondent and will be giving evidence. Two of them are in written documents. I am also told that there was an investigation into the allegations made in the written document which resulted in a written investigation report which has been preserved.
The Law
[57]I consider the respondent can reasonably easily investigate and adduce evidence with regard to these three disclosures as to whether or not it accepts them to have been made and/or to be protected disclosures. This includes exploration of the good faith element which applies to these disclosures. This is made possible because of the involvement of the mr Haynes.[58]The respondents’ witnesses will need to have an opportunity to address whether their treatment of the claimant was connected with the disclosures, but this can be achieved with relative ease, albeit additional costs will be incurred. It would therefore, in my judgement, be disproportionate to prevent the claimant to rely on these disclosure because of Mr Singh’s unreasonable conduct.[59]The position is different in my view for the first of the 2012 disclosures. This disclosure is said to have been a verbal disclosure made in the course of a trade union meeting in early March 2012. None of the respondents or their witnesses are said to have been present at the particular meeting. Having to deal with this disclosure would, at this stage of the proceedings, put the respondent in a disproportionately difficult position. It would therefore, in my judgement, be proportionate to prevent the claimant to rely on these disclosure because of Mr Singh’s unreasonable conduct. Rule 37(1)(a) – Lack of Prospects of Success[60]The respondent argues that the disclosures in the 2018 letter upon which the claimant is seeking to rely does not comply with the requirements of section 43B(1), in that it fails to disclose a relevant offence or failure had occurred and/or that he had a reasonable belief that the disclosure was made in the public interest. On the face of it, the letter lists a number of complaints about a disciplinary process involving just the claimant.[61]I accept that I am required to be cautious when considering whether to strike out a whistleblowing claim for lack of prospects of success where there are disputed which have not yet been determined.[62]In this case, however, the factual dispute concerning whether the 2018 disclosure constitutes a protected disclosure within the meaning if section 43B(1) is limited. What is said to contain the protected disclosure(s) is a written letter sent to the first respondent so there is no dispute as to the content of the disclosure or to whom and how it was made. The only element of the test is section 43B that remains to be determined is what was in the claimant’s mind at the time of making it.[63]In my judgment, the claimant has little reasonable prospects of succeeding in convincing a tribunal that the disclosures meet the requirements in section 43B(1). The position is not sufficiently stark as to warrant a strike out, but a deposit order is appropriate in the circumstances.[64]The claimant is still employed by the first respondent. I am told that his current monthly income is in the region of £1,500 net. He has essential outgoings by way of housing and living costs which leave him with around £300 disposable income each month. He has no savings. I therefore make a deposit order for £150 to be paid within 28 days of receipt of the deposit order. In my judgment he has the ability to pay a deposit set at this level if he wishes. Costs[65]One of the points of discussion throughout the hearings held to date has been the additional cost to which the respondent will be put by having to do extra work at such a late stage of the proceedings. Some of the costs would, of course, have had to be incurred if the claimant’s concerns about the list of issues had been raised at the appropriate time. It is, however, highly likely that, because of the claimant’s unreasonable delay, additional costs will be incurred by the respondent that could otherwise have been avoided.[66]As the respondent has not carried out the additional work required, the costs of that work are unknown. I do not have the power to make a costs award in the respondent’s favour in anticipation of future unknown costs. I note for the record that the respondent wishes to reserve its position with regard to a future costs application.
The Law
[1]Has the claimant carried out a protected act pursuant to section 27 of the Equality Act 2010? The claimant relies upon the following; 1.1. bringing Employment Tribunal claim 2205166/2013; and 1.2. bringing Employment Tribunal claim 2204462/2013?[2]The respondent accepts that the claim referred to at1.1 is a protected act but denies that the claim referred to at1.2 is a protected act.[3]Were the allegations made by the claimant in Employment Tribunal claim 2204462/2013 3.1. false and 3.2. made in bad faith?[4]Did the claimant make one or more disclosures pursuant to section 47B of he Employment Rights Act 1996? The claimant relies on the following: 4.1. a disclosure said to have been made on 19 March 2012 consisting of a written grievance about Pat Hayes’ threatening and intimidating behaviour; 4.2. a disclosure said to have been made in late July/early August 2012 when the claimant reported an alleged breach of confidentiality and victimisation by Pat Hayes to the second respondent; 4.3. a disclosure said to have been made on 17 August 2021 consisting of a collecting grievance complaint addressed to the second respondent about the actions of Pat Hayes;[5]Are any of the disclosures “qualifying disclosures“ by virtue of section 43B, as it was in force at time the disclosure was said to have been made?[6]Are any of the disclosures “protected disclosures” by virtue of having been made in accordance with any of sections 43C to 43H?[7]Has the respondent carried out any of the treatment set out below? 7.1. On 8 March 2018, the second and third respondents alleging that the claimant had made a false statement about the Gateline incident on 27 February 2018; 7.2. suspending the claimant; 7.3. the third respondent conducting an investigation which was inadequate and partial in that he failed to interview Aiesha Selway, Mustafa Koroma, and ‘Martin the Gateline supervisor’ about the incident of 27 February 2018; 7.4. two additional allegations being added on 27 April 2018 at the conclusion of the formal investigation process; 7.5. the decision by the Respondent to take the allegations to a disciplinary hearing; 7.6. the failure to address the Claimant’s complaints submitted on 6 September 2018 and 11 November 2018; 7.7. the failure to follow the recommendations given in the Occupational Health reports of Dr Krishnan of 13 July and 18 October 2018; 7.8. the failure to liaise with the Claimant's legal representative regarding the Claimant’s complaints about the disciplinary process; 7.9. the failure to pay 40 days’ overtime and the failure to pay 46.55 days' holiday pay. If so, does the treatment amount to a detriment?[9]If so, was the treatment because of the protected act(s) identified above at1.1 and1.2 and/or done on the ground that the claimant made the protected disclosures identified at 4.1-4.3? Are any of the claimant's claims out of time?[11]If the claimant succeeds what remedy is he entitled to? Evidence[12]The tribunal heard evidence from the claimant, who submitted a witness statement and a supplemental witness statement and was cross examined on behalf of the respondents. He also submitted statements from Aiesha Selway and Labor Mustafa Koroma, who were prepared to attend the hearing. The respondents’ representative confirmed that he did not intend to ask any questions of those witnesses so their statements were taken as read. A statement from Jagdeesh Singh was withdrawn due to the fact that he was acting as the claimant’s representative in this hearing.[13]The respondents called Adam Field (Assistant Station Manager), Dean Haynes (second respondent and Station Manager, Paddington), Billy White (third respondent and Duty Station Manager), Steven Hawker (Regional Station Manager) and James Adeshiyan (Head of Stations). They submitted witness statements (and supplemental witness statements in some cases) and were cross examined on behalf of the claimant. The respondents submitted a witness statement from Dorothy Colmer (Duty Station Manager) who was unable to attend this hearing, although she had made herself available at an earlier hearing which was adjourned. We did not have a statement from Klaudia Czechowicz although she was a key individual in this case.[14]The tribunal also had an agreed bundle running to 885 pages and a supplemental bundle submitted by the claimant running to 376 pages. We also had CCTV footage before us, supplied by Network Rail. We did not have the CCTV from the British Transport Police. Facts[15]The tribunal found the following facts on the balance of probabilities. Background[16]The first respondent operates a number of stations including Ealing Broadway (Ealing) and Paddington.[17]The claimant started working for the first respondent in May 2006 at Ealing. During the course of his employment, he has received awards and public acknowledgement for his performance and featured on a TV documentary about Paddington Station. Events of 2012 and 2013[18]In 2012 an issue arose within the trade union at Ealing where the claimant and a number of others objected to the appointment of a new Health & Safety representative because they did not believe the correct appointment process had been followed. The local union leader was Pat Hayes, who had supported the appointment of the Health & Safety representative. Matters became heated at a union meeting, following which the claimant raised a grievance by letter to the second respondent (at that time station manager at Ealing) dated 19 March 2012 (First Alleged Disclosure) alleging Pat Hayes had been threatening, intimidating and abusive to him.[19]The second respondent attempted to deal with the matter informally by holding a meeting between the claimant and Pat Hayes. We have seen a transcript of the meeting and find that the second respondent acted appropriately in attempting to resolve a dispute within the union so that it would not escalate and threaten the operation of the station. We disagree with the claimant’s characterisation that the second respondent took the part of Pat Hayes and showed animosity towards the claimant.[20]On 17 August 2012, the claimant and a number of his colleagues submitted a collective grievance about the actions of Pat Hayes, including breach of confidentiality, to the second respondent (Third Alleged Disclosure).[21]The dispute at Ealing developed during 2012 and 2013 which culminated in the claimant and three others being dismissed for being intimidating towards Pat Hayes and others.[22]In 2013, the claimant brought proceedings in the employment tribunal under case number 2205166/2013. He also brought separate proceedings under case number 2204462/2013. The claimant alleged unfair dismissal and race and religious discrimination. The second respondent was a named respondent in those proceedings. Period 2014 to 2018[23]In April 2014, the claimant’s tribunal claims were settled by way of a settlement agreement which included provision for the claimant to be reinstated to a different workplace, Paddington Station. There was also provision for payment of Sundays and holidays to be calculated with the claimant having the option of challenging any dispute on this matter if he disagreed with the first respondent’s assessment. The claimant has not made any legal challenge but has repeatedly queried why he has not received these amounts. He compares himself to Redouane Assad, who received these amounts, with the authorisation being signed by the second respondent.[24]In 2016, the second respondent was transferred to be station manager at Paddington, where the claimant was working. The claimant has made no complaints about the second respondent relating to the period from the second respondent moving to Paddington in 2016 and the events of February 2018 and there is no evidence before us of any problems with the claimant. Events of February 2018[25]On 27 February 2018 a member of the public attempted to cross the Gateline barrier apparently without a ticket. One of the claimant’s colleagues, Patrick Larkin was at the barrier when the member of the public moved passed him. The claimant moved across from the other end of the ticket gates to help. Aiesha Selway, Staski Gomes and Koroma were also present. There appears to have been a degree of physical contact between the member of the public and the claimant, mostly the claimant shepherding the member of the public away from the ticket gates. The incident was caught on CCTV. Staski Gomes called for the British Transport Police (BTP) to attend. They arrested the individual, who turned out to be carrying a knife and drugs.[26]The BTP asked Patrick Larkin and the claimant what had happened. Subsequently, Patrick Larkin attended the BTP office and made a formal statement, although this was not before us. There is no suggestion that the claimant made a formal statement to the BTP.[27]Both Patrick Larkin and the claimant were asked by the first respondent to complete an ‘Assault Report Form’. Patrick Larkin completed his in his own handwriting, stating that the ‘assailant pushed him aside’. DC completed the form on behalf of the claimant, who was not confident in English, and described Patrick Larkin being ‘pushed aside’ and the claimant being ‘pushed in the chest’ when he went to assist.[28]After these statements were made, the BTP reviewed the CCTV footage and concluded that the events did not happen as described by the station staff in their statements. The Station Commander, Juliet Owens, called Adam Field to the station police office to complain because her officers believed that station staff (the claimant and Patrick Larkin) had made false allegations of assault occasioning their attendance at the scene and the arrest of the member of the public. She intimated that the police could take action against the members of staff for perverting the course of justice or other charges but made it clear that she was content for the first respondent to deal with the matter. This was not put in writing and it was not clear precisely what statement(s) were the subject matter of Commander Owens’ concern and what evidence she was relying on. On 28 February, Adam Field sent an email to Commander Owen to ask if she or PS Fishlock (who had attended the incident) could provide a statement.[29]On the basis of the conversation with Commander Owens, Adam Field suspended Patrick Larkin and the claimant pending an investigation, having taken advice from HR (Klaudia Czechowicz). The sole basis for Adam Field to take the matter further was the conversation he had with Commander Owens. He had not yet received any written evidence from the BTP.[30]We understand that Aiesha Selway was wearing a bodycam at the time and that the claimant switched it on as the incident developed. We are surprised that neither Adam Field, Klaudia Czechowicz or anyone else thought to preserve this evidence before it was automatically overwritten after seven days. It does not appear to have formed any part of the third respondent’s investigation.[31]At this time, the second respondent had family issues which resulted in him being away from the business for much of the time. There is a conflict of evidence between the respondents’ witnesses regarding his presence on the day of the incident. Adam Field says that he was not in the business on that day, which is why it was him who went to see Commander Owens, whereas Dorothy Colmer states that she passed him the information she had gathered and the CCTV footage on that day. The second respondent himself was unable to shed any light on this as he could not remember. We find that the most likely explanation is that the two witnesses are not talking about the same time period. We do not believe anything turns on this particular detail.[32]On 1 March 2018, Natalie (a co-worker of the claimant) sent him a whatsapp message saying that she had overheard management talking privately about the matter in the second respondent’s office. She advised him to include something in his statement about protecting himself and told him to check if the CCTV had sound. It appears that she is trying to help him, suggesting that he adjusted his story to deal with what she understood the managers had discussed about him. His reply was “I haven’t done anything wrong nat. You know very well how I work and my attitude with customers. Don’t worry It’s gonna be fine thanks so much for your concern”.[33]The suspension letter was dated 6 March 2018 and referred to the claimant having ‘provided a false statement’ regarding the incident on 27 February 2018. Although the suspension letter does not refer to gross misconduct, Adam Field’s evidence before the tribunal was that he had been advised by Klaudia Czechowicz that it was potentially gross misconduct.[34]On 7 March 2018, Adam Field repeated his request to Commander Owens for a statement and she replied attaching a statement from PCSO Dalling, unsigned and undated. This is the only evidence before us of what was said to the BTP, other than copies of a police notebook where the claimant and Patrick Larkin both sign to confirm that they do not want to take any action against the member of the public.[35]PCSO Dalling’s statement gives a summary of the events. According to the statement, Patrick Larkin said he had been pushed. It is not clear what the claimant said. It is reported by PCSO Dalling (who we assume compiled his statement at a later date) that ‘Moses [the claimant] also said he was pushed’. From the context of the statement, ‘he’ could mean Patrick Larkin or the claimant. In any event, they both made it clear that they did not want to take the matter further and were making no complaint of assault.[36]We find that most of the statement relates to the interaction with Patrick Larkin, who was the one who asked to have the member of the public arrested when he found out he had a knife. There is no mention of the claimant in this respect. The claimant was clear all along that he did not want to take any action against the member of the public. There is a passing reference to the claimant (‘Moses also said he was pushed’) but it is clear that the conversation was mostly with Patrick Larkin and it was Patrick Larkin who made a formal statement to the police which he later retracted.[37]Parts of PCSO Dalling’s statement are inconsistent with what Commander Owens apparently told Adam Field. For example, she said that the member of the public was carrying a knife but for legitimate purposes and they had released him. PCSO Dalling says that the member of the public was searched and this resulted in further offences for which he was arrested and conveyed to custody. The claimant’s understanding according to his evidence was that the member of the public was carrying a knife and drugs. This was not challenged and it was repeated by Patrick Larkin in his investigation interview.[38]PCSO Dalling’s evidence includes hearsay evidence of the ‘DSM’, which we understand to refer to Tom Law, Deputy Station Manager on the day. We did not have a statement from Tom Law before us and no statement was taken from him as part of the investigation.[39]Adam Field was relatively new to the site and wanted to keep his manager, (the second respondent) updated. Klaudia Czechowicz advised the second respondent and Adam Field to appoint someone to conduct the investigation, suggesting two names, the third respondent and ‘Charlie’. The second respondent then sent an email to the third respondent asking him “Fancy doing the investigation for the gateline???”. We find that the second respondent was proactive in this aspect of the process, effectively appointing the third respondent to carry out the investigation. We find this a surprising choice, given that this was the first investigation that the third respondent had conducted. Given the history of this particular employee and the potential seriousness of the allegation, it would have been advisable to ask someone with more experience to carry out the investigation. It would also have been advisable for the second respondent to distance himself formally from the process. We also find that the third respondent was aware of what had happened and clearly knew what was being referred to as the ‘investigation for the gateline’.[40]The third respondent took advice from Klaudia Czechowicz during the process. When he received the report from PCSO Dalling, he saw that the BTP alleged that the claimant had assaulted/physically restrained a member of the public. He asked Klaudia Czechowicz if he could add this allegation to the existing allegation, which had formed the reason for the suspension. He states in his email to Klaudia Czechowicz that it is ‘quite clear’ that the claimant has committed this misconduct. He asks if he can include this in his ‘findings’. Klaudia Czechowicz did not challenge his approach, which suggested to us that the third respondent had prejudged the outcome, although she suggested that he asked questions as they went through the CCTV. He was an inexperienced investigator and she failed to give him proper guidance on this point.[41]We have seen the CCTV referred to by the third respondent and we cannot agree with his conclusion. The relevant footage lasts about ten seconds. We can see that the claimant shepherded the member of the public away from the scene, at which point they go out of the scope of the camera, and there does not seem to be any physical restraint or assault. Even if there is some scope for doubt, we cannot see how the third respondent could determine that ‘it was quite clear’, as, to us, it is anything but clear even after watching the footage a number of times.[42]The third respondent conducted an investigation interview with the claimant on 21 March 2018. The first thing the claimant says to the second claimant is ‘I’m here to discuss the allegation from Dean Haynes’. He stated that the Assault Form completed by DC did not reflect what he had said. He also challenged the truth of PCSO Dalling’s statement.[43]On 22 March 2018, Patrick Larkin retracted his statement as a result of which his suspension was lifted shortly thereafter and he returned to work. He expressed regret that his actions had led to all that happened since. At no stage did he blame the claimant.[44]The third respondent spoke to Patrick Larkin, the claimant and Staski Gomes as part of his investigation. He made contact with Aiesha Selway and Koroma but did not end up having a statement from either of them. He asked Dorothy Colmer to give a statement. He did not interview either Adam Field or Tom Law or ask them to provide a statement as part of his investigation.[45]His conclusion following the investigation was that the claimant should fact three disciplinary allegations and these were put to him in a letter dated 27 April 2018: 45.1. on 27 February 2018 he breached GWR Violence at work policy by laying his hands on a customer unnecessarily; 45.2. on 27 February 2018 he unnecessarily put himself at risk despite there being no evidence of a customer posing any threat; 45.3. following the incident, he provided a false statement to GWR stating that the customer had pushed his colleague when there is no evidence to support this including CCTV.[46]We note that none of these allegations matched the allegation which was the cause of the claimant’s suspension but there is no finding within the Investigation report to explain why that initial allegation had been dropped. The letter did not include any suggestion that the allegations amounted to gross misconduct. We also note that the allegations do not include any reference to the claimant alleging that he had been pushed and there is no reference to ‘assault’.[47]At the time that the investigation was being concluded, Klaudia Czechowicz asked David Pinder (Station Manager) if he would conduct the disciplinary hearing. She told him that she did not perceive this to be a gross misconduct matter, which meant that a Station Manager could conduct the hearing.[48]Although the original reason for suspension was no longer regarded as a matter for disciplinary action and the new allegations did not, according to HR, amount to gross misconduct, the claimant remained on suspension. The disciplinary rules state ‘In gross misconduct cases, suspension from duty pending investigation will be justified. The colleague concerned will be informed, in writing, at the earliest possible time, of the nature of the allegations they are facing.’ The claimant was under the impression, therefore, that he was facing the prospect of summary dismissal and nobody told him otherwise. This led to the stress and anxiety which was the reason for his long-term absence. This was not an unreasonable conclusion for the claimant to draw since Steven Hawker also assumed that the allegations must be gross misconduct due to the continuing suspension of the claimant.[49]The claimant’s suspension continued pending a disciplinary hearing. The claimant had, by this time, presented with stress and anxiety arising from these matters and was signed off by his doctor. The claimant was unable to attend on the original dates set for the disciplinary hearing due to his ongoing ill-health.[50]He attended an occupational health assessment on 12 July 2018, following up an earlier appointment, with Dr P Krishnan, Occupational Health Physician. Dr Krishnan noted the claimant’s medical treatment and medications. He also noted that the claimant had expressed concerns about his current line manager (which we take to be the second respondent) in connection with the current suspension and the context of historical problems going back to Ealing. Dr Krishnan advised that the claimant’s workplace concerns should be addressed ‘in due course prior to any return to work’ and that he should have a representative to help him with communications.[51]On 6 September 2018, the claimant’s lawyers wrote to Mark Hopwood, Managing Director, enclosing a formal complaint on behalf of the claimant. This was passed to Klaudia Czechowicz. Klaudia Czechowicz sent an email on 12 September to her HR colleagues to give them some background. We make the following observations regarding that email: 51.1. Klaudia Czechowicz referred to the letter from the claimant’s lawyer as being from ‘potentially his friend who writes to us twice a year regarding various concerns Moses has’. We find that this trivialises the claimant’s concerns and exhibits the fact that she found this correspondence unwelcome. 51.2. It is factually inaccurate in that it states that Patrick Larkin was unable to write up the Assault Report Form and asked another member of staff to write it up on his behalf. We have seen the Form and it is clearly in Patrick Larkin’s own handwriting. In contrast, the claimant did have another member of staff to write up his form. 51.3. Klaudia Czechowicz mentions that ‘management team called me’ explaining that ‘Patrick can be easily led and that Moses is a confident individual who might have a strong influence on individuals such as Patrick’. We heard from three members of the management team, all of whom denied saying this to Klaudia Czechowicz. Either the witnesses are lying, Klaudia Czechowicz is lying in her email or the issue was discussed among the other managers, some of whom fed back to Klaudia Czechowicz, in a way that was seriously prejudicial to the claimant. We find that the latter is the most likely and this shows a received wisdom and collective memory relating to the claimant as being an agitator and a malign influence which we find dates back to the events of 2012 and 2013. 51.4. She states that ‘Moses has been adamant from the beginning that customer pushed Patrick and was aggressive towards him’. We have not been taken to any evidence which supports the suggestion that the claimant continued to make this claim. It formed part of the wording on the form completed by DC, which the claimant stated was incorrect when shown it in his investigatory interview. 51.5. She goes on to say ‘Moses never changed his statement even upon seeing CCTV’ but it is not clear to us which statement she is referring to. To the extent that she means the Assault Report, it is clear from the investigation interview notes that the claimant stated that the contents of the report were not correct. 51.6. The email also states ‘Patrick retracted that report…he did not remember being pushed – rather told by Moses that he had been pushed’ but there is no evidence before us that this is what Patrick Larkin said at any time. On the contrary, in the investigation interview, Patrick Larkin states that he told his supervisor that he thought he and the claimant had been pushed.[52]The first respondent replied to the lawyer’s letter dated 6 September 2018 by way of cursory acknowledgement but did not engage with the substance of the complaint.[53]On 18 October 2018, the claimant attended the first respondent’s Occupational Health centre in Reading for an assessment. On 23 October 2018, Dr P Krishnan, Occupational Health Physician, wrote to Klaudia Czechowicz stating that the claimant presented with mental health problems which he indicated arose from workplace issues. He confirmed that the claimant would be unlikely to be fit enough to attend a meeting for the rest of that year (2018) and that he was not well enough to engage in any direct communication with management and that he would require a representative to act on his behalf.[54]The claimant’s lawyers wrote a further email to Mark Hopwood on 11 December 2018, repeating and amplifying the claimant’s concerns.[55]The following day, 12 December 2018, the claimant submitted his claim to the Employment Tribunal.[56]The disciplinary hearing eventually took place on 3 April 2019 and was conducted by Steven Hawker. Although this post-dates the claim, we consider that the outcome of this meeting sheds light on the events which form the narrative of the claimant’s complaint. We note that his meeting dealt with both grievance and disciplinary matters. The claimant was given an opportunity to air his grievances. The meeting then moved on to deal with the disciplinary allegations. Steven Hawker dismissed the allegation regarding the false statement and found that the allegation regarding Violence at work was not upheld as, having reviewed the CCTV, he did not believe the claimant’s actions were excessive. However, he found that the claimant had put himself at risk by being overzealous, for which he imposed a First Written Warning. The Law The relevant legal principles are as follows:[58]The Employment Rights Act 1996 (“ERA 1996”) contains the following relevant provisions, the applicable provisions being those in force before the 2013 amendments so there is no requirement for the disclosure to be in the public interest: Section 43A: Meaning of 'protected disclosure' 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 sections 43C to 43H.] Section 43B: Disclosures qualifying for protection In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. Section 47B: Protected disclosures (detriment) (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. Victimisation[59]Section 27 Equality Act provides:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act…;(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. Determination of the Issues Protected act for victimisation claim[60]We find that the claimant carried out a protected act pursuant to section 27 of the Equality Act 2010. The claimant relies on two claims: 2205166/2013 and 2204462/2013. The respondent concedes that the first claim is a protected act but disputes that the second claim is a protected act. Having heard all the evidence, we find no distinction between the two proceedings as far as this claim is concerned and therefore we find that we do not need to determine whether the second claim also amounts to a protected act and, in any event, we do not have sufficient information to be able to determine that. There is no situation in which the claimant would succeed based on the second claim and not the first so we find we do not need to resolve the question. Protected disclosure for whistleblowing claim[61]We find that the claimant made one or more disclosures pursuant to section 47B of the Employment Rights Act 1996, namely 61.1. a disclosure on 19 March 2012 consisting of a written grievance about Pat Haye's threatening and intimidating behaviour; and 61.2. a disclosure on 17 August 2021 consisting of a collecting grievance complaint addressed to the second respondent about the actions of Pat Hayes.[62]We find that these disclosure were protected disclosures. If we are wrong about this, our decision would be the same if the complaint related only to the protected acts (victimisation) as we consider that the background of the claimant’s historic grievances and claims as a whole, including protected disclosures and protected acts, influenced the later events. Detriments[63]We find that the first respondent has subjected the claimant to the following treatment: 63.1. on 8 March 2018, it was alleged that the claimant had made a false statement about the Gateline incident on 27 February 2018; 63.2. the claimant was suspended and the suspension was continued; 63.3. the third respondent conducted an investigation which was inadequate and partial in that he failed to interview Aiesha Selway, Mustafa Koroma, and ‘Martin the Gateline supervisor’ about the incident of 27 February 2018; 63.4. two additional allegations were added on 27 April 2018 at the conclusion of the formal investigation process; 63.5. the allegations were taken to a disciplinary hearing; 63.6. the first respondent failed to address the claimant’s complaints submitted on 6 September 2018 and 11 November 2018 by his legal representative; 63.7. the respondents partially failed to follow the recommendations given in the Occupational Health reports of Dr Krishnan of 13 July and 18 October 2018; 63.8. the first respondent partially failed to liaise with the claimant's legal representative regarding the Claimant’s complaints about the disciplinary process; 63.9. the first respondent failed to pay 40 days’ overtime and 46.55 days' holiday pay.[64]We find that the treatment amounts to a detriment in each case.[65]We must now consider whether the treatment was done because of the protected act(s) and/or done on the ground that the claimant made the protected disclosures. Holiday pay and arrears of pay claim[66]We find that the comparator Redouane Assad, relied on by the claimant as somebody who did receive these additional payments, had also made the protected disclosures and protected acts, so the difference in treatment cannot be attributed to those matters. The claimant’s claim fails in relation to this treatment. Claim against third respondent[67]We find that there are shortcomings in the third respondent’s investigation process, many of which stem from his apparent pre-judgment that the claimant had committed the misconduct. We find that, for example, he did not take into account the content of his interview with Patrick Larkin as far as it related to the claimant.[68]We consider that the third respondent had not properly understood exactly what happened, what the claimant was accused of or what allegations flowed from those events. There is confusion about what ‘statement’ is relied on and the outcome of the investigation does not address the questions he was tasked with investigating. He did not seem to grasp the necessity for clarity when dealing with disciplinary allegations and the evidence relied on.[69]However, we find that, although there are significant flaws in the way that the third respondent dealt with the claimant, we find no reason to conclude that these are directly due to the protected acts/protected disclosures, which pre-date the third respondent by some time. The third respondent was overzealous in pursuing allegations against the respondent, which was facilitated by Klaudia Czechowicz, but we accept that he had no direct knowledge of the claimant’s history. We therefore do not uphold the complaint against the third respondent. Claim against second respondent[70]We find that the second respondent would clearly have been aware of the events of 2012 and 2013 and, although we did not see anything in the documents from that time which suggests a vendetta against the claimant, we must take note that the second respondent was a named respondent in the 2013 tribunal proceedings. Whatever the outcome of those proceedings, being named as a respondent was unlikely to endear the claimant to the second respondent.[71]However, we find that the claimant had a fixation with the second respondent which does not appear to have been reciprocated by the second respondent to the same degree. The claimant saw the hand of the second respondent in every decision made on behalf of the first respondent, which we do not find to be the case. While we consider that it would have been prudent for the second respondent not to get himself at all involved in any disciplinary process with the claimant, and this should have been acted on by HR, we do not find that he had the control or influence over the process as alleged by the claimant. As it is, we find that his involvement was limited to asking the third respondent to carry out the investigation and then being copied in on various emails. We have no evidence that he responded or was proactive in the conduct of the disciplinary process. He appears to have been aware of all the steps being taken but was entirely passive. We disagree with the claimant that he was orchestrating it all. We therefore do not uphold the complaint against the second respondent. Claim against the first respondent[72]In relation to the first respondent, we find that there is a ‘collective memory’ within the first respondent, which is prejudicial to the claimant and which has permeated the approach of HR (in particular Klaudia Czechowicz) and, in turn, those advised by HR, including the third respondent. This is illustrated by Klaudia Czechowicz’s email of 12 September 2018. Taken as a whole we find this email demonises the claimant and is wholly sympathetic towards Patrick Larkin. The email shows us that there is a general negative view of the claimant within the management ‘lore’, which we find is connected with the history of the claimant’s employment with the respondent, including the involvement of the claimant’s legal representative. By sending that email to the Head of HR Business Partnering, she perpetuated the prejudicial view of the claimant within the organisation.[73]We find that this negative view had its origins in the events of 2012 and 2013. We reach this finding because there is evidence of a series of contentious events at that time, resulting in the dismissal and subsequent reinstatement of the claimant in a different station. We have not been shown any evidence of more recent problems with the claimant which would explain the negative assumptions about him and we therefore conclude that this view of the claimant dates back to the earlier period, when he was clearly a thorn in the side of the first and second respondents.[74]The detrimental treatment of the claimant is manifested in the following ways. 74.1. The stark difference between the treatment of the claimant and Patrick Larkin, particularly in relation to the way the suspension was dealt with. From our findings, it was Patrick Larkin who had done more than the claimant to trigger the original investigation, yet he was taken off suspension quickly. His Assault Report Form was not held against him on the grounds that he was dyslexic and had problems filling it in, even though it was clearly in his handwriting and it is not apparent to us what impact the dyslexia had. In contrast, the first respondent continued to rely on the claimant’s Assault Report Form to support a disciplinary case against him, even though it was not completed by him, he said from the first time he was told what was in it that it was not accurate, and English is not his first language. No allowance at all appears to have been made for any communication issues arising from the language barrier or any possible misunderstanding on the part of Dorothy Colmer, who may have had in her mind what Patrick Larkin had said to her. 74.2. A distinction was drawn between Patrick Larkin and the claimant on the basis that Patrick Larkin withdrew his statement and showed remorse for having made it. Patrick Larkin made a formal statement to the police, which the claimant did not, so he had a statement which he was able to withdraw. On the claimant’s understanding, he had not made a statement and was unable to withdraw something that did not exist. To the extent that the respondents rely on his Assault Report Form, he said that it was not accurate and did not reflect what was said. 74.3. The Whatsapp exchanges with Natalie show us that the claimant’s situation was being discussed among management, also evidenced by Klaudia Czechowicz’s comment in her email about receiving information from the ‘management team’ about the claimant influencing Patrick Larkin. The implication from Natalie’s words of warning is that the conversation did not appear to be favourable for the claimant. (This exchange also shows us that the claimant was straight-dealing and was confident in his narrative regarding the incident.) 74.4. The suspension of the claimant, including the continuation of the suspension when there was no allegation of gross misconduct against him, which appears to be contrary to the provisions of the first respondent’s disciplinary policy. 74.5. The investigation was handed to the third respondent to deal with. He was inexperienced and relied heavily on Klaudia Czechowicz, whose judgment and approach was clearly influenced by the negative view she had of the claimant. 74.6. The inept handling of the allegations against the claimant also, in our view, stem from the prejudiced view of the claimant among managers and HR. For example, the original allegation which led to the suspension was subsequently dropped but there was no suggesting of ending the suspension. Two additional allegations were added on 27 April 2018. at the conclusion of the formal investigation process. It is not clear whether these were potentially grounds for suspension and, in any event, they should have been dealt with as separate matters. The first respondent ended up citing three allegations for the disciplinary hearing, none of them being the original allegation for which the claimant was suspended. 74.7. The lack of justification for the claimant’s ongoing suspension was confirmed by Steven Hawker’s response to the disciplinary allegations, two of which he did not pursue and the third of which resulted in a First Written Warning. We find that Steven Hawker came to the matter afresh with no knowledge of any background history with the claimant and saw clearly that the disciplinary allegations should not have been pursued in the way that they had been. 74.8. The first respondent did not deal with the letters sent on behalf of the claimant by his legal representative on 6 September 2018 and 11 November 2018. It is worth recording that the claimant’s legal representative at this time (and at the hearing) was the same representative who represented him in 2012 and 2013. The first respondent, led by Klaudia Czechowicz, did not engage with the claimant or his representative in any meaningful way. The respondents relied on the provision in the Grievance Procedure which states ‘If you have a complaint about your dismissal or the taking of other relevant disciplinary action (other than warnings) by the Company under the Disciplinary Procedure, you should raise your complaint by way of appeal under the Disciplinary Procedure, rather than the Grievance Procedure.’ The first respondent failed to realise that the claimant’s complaint was not about dismissal or other relevant disciplinary action under the Disciplinary Procedure and therefore this clause did not apply. It was only when Steven Hawker met with the claimant that he was able to air his grievances.[75]The first respondent failed in part to follow the recommendations given in the Occupational Health reports of Dr Krishnan of 13 July and 18 October 2018. To the extent that the first respondent failed to engage with the claimant’s legal representative, this is a failure to follow the Occupational Health physician’s recommendation. For example, on 27 September 2018, Klaudia Czechowicz wrote to the claimant’s legal representative, telling him that they were engaging with the claimant direct and would be in touch with him to arrange the disciplinary meeting. However, we do not agree with the claimant that there was a recommendation for the grievance to be resolved before the disciplinary hearing. The recommendation was for the workplace issues to be addressed before the claimant returned to work.[76]For the same reasons as we set out in relation to the failure to follow Occupational Health advice, we find that the first respondent partly failed to liaise with the Claimant's legal representative regarding the Claimant’s complaints about the disciplinary process. There was acknowledgement of correspondence but no proper engagement with the issues being raised.[77]In conclusion, we find that the first respondent did subject the claimant to detriments on the grounds of the protected disclosures and protected acts. We do not suggest that there was a conspiracy among the protagonists but we find that the myriad examples of unfairness and less favourable treatment cannot simply be explained by a string of unfortunate errors. In our view, they show the existence of an underlying negative attitude towards the claimant shared and understood by management, including in particular Klaudia Czechowicz.[78]The claimant’s complaints of whistleblowing detriment and victimisation succeed against the first respondent but fail against the second and third respondents.[79]A hearing will be listed to deal with remedy. RECONSIDERATION JUDGMENT The claimant’s application dated 28 February 2022 for reconsideration of the judgment
Issues
[1]The claim form submitted on 12 December 2018 included a claim for breach of an obligation to pay overtime and holiday pay. The relevant period of the alleged non-payment was 2012 – 2014.[2]The tribunal noted that no formal legal claim had been brought in relation to these matters until the current proceedings, which were lodged four years after the end of the period in question. The agreement which the claimant alleged had been breached contained a provision for bringing legal claims in the event of a dispute. The claimant did not pursue that course of action at the time.[3]The claimant also suggests that the tribunal followed its own approach in relation to relying on ‘Redouane’ as a comparator to support its finding that the protected acts were not likely to be the cause of the claimant not receiving the payments since Redouane received those payments and had done the same protected acts as the claimant, being another claimant in the earlier tribunal claims. In reaching this conclusion, the tribunal relied on evidence which was before it. The issue also formed part of the submissions made on behalf of the respondent. Case No: 2207012/2018 (V) Claim against Dean Haynes (second respondent)[4]The claimant, in his reconsideration application, is repeating the submissions made at the full merits hearing. These were considered in depth by the tribunal and its conclusions are recorded in the decision. The claimant has not put forward any new reasoning. The fact that the claimant does not agree with the tribunal’s findings is not a reason for reconsideration of the original decision. Claim against Billy White (third respondent)[5]The claimant, in his reconsideration application, is repeating the submissions made at the full merits hearing. These were considered in depth by the tribunal and its conclusions are recorded in the decision. The claimant has not put forward any new reasoning. The fact that the claimant does not agree with the tribunal’s findings is not a reason for reconsideration of the original decision .[1]The claimant was successful in his claim against the respondent for victimisation for having done protected acts and whistleblowing detriment for having made protected disclosures. This hearing is to determine remedy.[3]The claimant does not claim any financial loss but claims under the following headings: 3.1. Injury to feelings 3.2. Psychiatric injury 3.3. Aggravated damages 3.4. ACAS uplift 3.5. Interest Today’s
Hearing
[4]The claimant has been unwell for some time and has not worked since January 2021. His employment was terminated for long term ill-health capability reasons on 15 September 2023.[5]At the outset of the hearing, the claimant’s representative drew the tribunal’s attention to his concern regarding the claimant’s capacity to participate in today’s hearing. After a short adjournment, the claimant’s representative confirmed that the claimant’s state of mind had improved since the start of the day and that he was willing and able to give evidence.[6]The tribunal was satisfied, on hearing the claimant give evidence, that he understood the purpose of the hearing and was able to engage in the proceedings by answering questions put to him in cross examination and was able to give instructions to his legal team.[7]There was a delay to the start of the hearing as not all the documents had been received by the tribunal panel. After the documents had been received, the tribunal adjourned to allow for reading time.[8]The documents before the tribunal included a bundle running to 653 pages and a witness statement from the claimant. The claimant submitted an updated schedule of loss, which widened the remedies being pursued from the original schedule of loss prepared before the liability hearing.
Findings of Fact
[9]Both representatives made submissions supported by written arguments and numerous authorities. At the end of the oral submissions, the tribunal reserved its decision.[10]The claimant confirmed that the relevant time period for consideration of remedy was from the date of the events (starting on 27 February 2018) to either 17 July 2020 or 12 August 2020. Determination of remedy Injury to feelings[11]The injury to feelings award is intended to compensate the claimant for anger, distress and upset. It is compensatory, not punitive. In assessing an award for injury to feelings, we must have regard to the Vento guidelines as at the date the claim was presented (December 2018).[12]We have taken account of the various detriments we found which were a result of the claimant making protected disclosures and doing protected acts. We are unable to apportion those detriments between the victimisation claim and the whistleblowing claim as they were all bound up in the same historic narrative of the claimant during his time at Ealing Station and his subsequent transfer to Paddington. We find that the claimant was subjected to the treatment set out in our liability judgment because he had done protected acts and because he had made protected disclosures. We find he would have received that treatment if there had been protected acts but no protected disclosures, and vice versa.[13]We therefore do not consider it necessary to review the authorities on the issue of non-pecuniary loss for whistleblowing detriment because it is accepted that the claimant is entitled to an award for injury to feelings for the acts of victimisation. This will compensate him for the injury to feelings arising from the victimisation. There can be no double recovery so he would not receive additional compensation under the heading of whistleblowing detriment.[14]In any event, we find that the case law supports making awards of injury to feelings following whistleblowing detriment, even where such award is not available for whistleblowing dismissals (Virgo Fidelis Senior School v Kevin Boyle EAT/0644/03). In Virgo, the EAT held that detriment was a form of discrimination and that there should be consistency between awards for whistleblowers and awards for injury to feelings in discrimination cases.[15]We remind ourselves of our findings in relation to the respondent’s wrongdoing. We found that the claimant was demonised and treated in a wholly different way from his colleague, Patrick Larkin, following the initial incident in February 2018 and this treatment led to him being absent from work for some time. We found that there was a general prejudicial view of the claimant which led to the following detrimental treatment manifesting itself as follows (as set out in paragraph 74 of the liability Judgment): 74. 74.1. The stark difference between the treatment of the claimant and Patrick Larkin, particularly in relation to the way the suspension was dealt with. From our findings, it was Patrick Larkin who had done more than the claimant to trigger the original investigation, yet he was taken off suspension quickly. His Assault Report Form was not held against him on the grounds that he was dyslexic and had problems filling it in, even though it was clearly in his handwriting and it is not apparent to us what impact the dyslexia had. In contrast, the first respondent continued to rely on the claimant’s Assault Report Form to support a disciplinary case against him, even though it was not completed by him, he said from the first time he was told what was in it that it was not accurate, and English is not his first language. No allowance at all appears to have been made for any communication issues arising from the language barrier or any possible misunderstanding on the part of Dorothy Colmer, who may have had in her mind what Patrick Larkin had said to her. 74.2. A distinction was drawn between Patrick Larkin and the claimant on the basis that Patrick Larkin withdrew his statement and showed remorse for having made it. Patrick Larkin made a formal statement to the police, which the claimant did not, so he had a statement which he was able to withdraw. On the claimant’s understanding, he had not made a statement and was unable to withdraw something that did not exist. To the extent that the respondents rely on his Assault Report Form, he said that it was not accurate and did not reflect what was said. 74.3. The Whatsapp exchanges with Natalie show us that the claimant’s situation was being discussed among management, also evidenced by Klaudia Czechowicz’s comment in her email about receiving information from the ‘management team’ about the claimant influencing Patrick Larkin. The implication from Natalie’s words of warning is that the conversation did not appear to be favourable for the claimant. (This exchange also shows us that the claimant was straight-dealing and was confident in his narrative regarding the incident.) 74.4. The suspension of the claimant, including the continuation of the suspension when there was no allegation of gross misconduct against him, which appears to be contrary to the provisions of the first respondent’s disciplinary policy. 74.5. The investigation was handed to the third respondent to deal with. He was inexperienced and relied heavily on Klaudia Czechowicz, whose judgment and approach was clearly influenced by the negative view she had of the claimant. 74.6. The inept handling of the allegations against the claimant also, in our view, stem from the prejudiced view of the claimant among managers and HR. For example, the original allegation which led to the suspension was subsequently dropped but there was no suggesting of ending the suspension. Two additional allegations were added on 27 April 2018. at the conclusion of the formal investigation process. It is not clear whether these were potentially grounds for suspension and, in any event, they should have been dealt with as separate matters. The first respondent ended up citing three allegations for the disciplinary hearing, none of them being the original allegation for which the claimant was suspended. 74.7. The lack of justification for the claimant’s ongoing suspension was confirmed by Steven Hawker’s response to the disciplinary allegations, two of which he did not pursue and the third of which resulted in a First Written Warning. We find that Steven Hawker came to the matter afresh with no knowledge of any background history with the claimant and saw clearly that the disciplinary allegations should not have been pursued in the way that they had been. 74.8. The first respondent did not deal with the letters sent on behalf of the claimant by his legal representative on 6 September 2018 and 11 November 2018. It is worth recording that the claimant’s legal representative at this time (and at the hearing) was the same representative who represented him in 2012 and 2013. The first respondent, led by Klaudia Czechowicz, did not engage with the claimant or his representative in any meaningful way. The respondents relied on the provision in the Grievance Procedure which states ‘If you have a complaint about your dismissal or the taking of other relevant disciplinary action (other than warnings) by the Company under the Disciplinary Procedure, you should raise your complaint by way of appeal under the Disciplinary Procedure, rather than the Grievance Procedure.’ The first respondent failed to realise that the claimant’s complaint was not about dismissal or other relevant disciplinary action under the Disciplinary Procedure and therefore this clause did not apply. It was only when Steven Hawker met with the claimant that he was able to air his grievances.[16]We find that this represents a sustained and relentless campaign against the claimant, exacerbated by the failure to follow occupational health advice. We find that this discriminatory treatment had a profound effect on the claimant, as described in his witness statement and as apparent from the evidence before the liability hearing. He suffered from high stress, depression and anxiety which impacted his professional, social and personal life to a significant degree.[17]We note the respondent’s representations that the claimant was ultimately given a first written warning as a result of the disciplinary process. The claimant pursued an internal appeal against this outcome. We do not read a degree of acceptance of this decision by virtue of the fact that the claimant did not pursue an employment tribunal claim in respect of the warning. In the light of his health and the toll of the litigation on him, it would be understandable if he did not feel able to pursue such a claim, although this has not been put to him.[18]We do not find the fact that a minor sanction was ultimately imposed to be a mitigating factor, suggesting that the disciplinary process had some justification. Our conclusion was that the claimant had been subjected to unfair and unreasonable disciplinary action by way of suspension and a flawed investigation which was wholly disproportionate to the sanction which was ultimately imposed. The final outcome of a first written warning supports our conclusions that the severity of the disciplinary process was inappropriate and caused unnecessary distress to the claimant.[19]The claimant was a proud ‘railway man’ who had won awards at work. The detriments he was subjected to affected his confidence, self-esteem and his personal relationships inside and outside work.[20]We are conscious that any award is to be compensatory not punitive. We have taken account of the claimant’s personal characteristics and his previous mental health issues. However, we are satisfied, based on the claimant’s own evidence and the evidence of the medical treatment he received at the time, that he suffered serious injury to his feelings as a result of the respondent’s wrongdoing. We place this at the middle of the Upper Vento band. For a claim presented in December 2018, the Upper Vento band was from £25,700 to £42,900.[21]We have decided that the appropriate amount to award is £35,000. Psychiatric injury (or personal injury)[22]The bundle of documents before us included a significant number of letters and reports from occupational health professionals, the claimant’s GP and others responsible for the treatment and care of the claimant. There was no expert report prepared for these proceedings and therefore no expert opinion to analyse any causation between the respondent’s wrongdoing and the claimant’s injury.[23]Although it is not an absolute requirement to have an expert medical report, it is advisable particularly in complex claims or where there are issues over causation or divisibility.[24]In BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188, the Court of Appeal said: The problem exposed here, properly analysed, is not so much a problem of law as a problem of medicine or science. The territory between the non-pathological but sensitised and vulnerable individual and the person with a defined pathology constitutes highly debatable land. It should be closely and carefully mapped by the relevant experts, and it is imperative that they should bring to bear as much clinical and diagnostic precision as possible, paying close attention to one or both of the internationally recognised psychiatric diagnostic systems. In particular, it is necessary to consider whether a less serious but nevertheless established and defined disorder may not have been achieved before progression to the diagnostic endstate. In addition, it should be routine for the experts to assess the level of risk of crossing the borderland between non-pathology and pathology through some other stimulus than the tortious act or omission. It will be recognised that exercise is often difficult and uncertain, but it will often be possible to give such advice within reasonable parameters of time and to the level of probability.[25]It is for the claimant to show that the wrongful conduct had made a material contribution to the claimant’s psychiatric injury.
THE LAW
[26]We are aware that the claimant had a prior history of psychiatric illness. From the claimant’s evidence, it appears that he remains aggrieved about the events of 2012 and 2013 (which led to the protected acts and disclosures) and the actions of Dean Haynes, his manager at that time. It was also apparent that he harboured longstanding grievances against his trade union. These factors do not form part of our findings against the respondent and we cannot make an award for any injury which flows from these matters.[27]In the absence of any expert opinion and in the knowledge that the causes of the claimant’s psychiatric injury are complex, we did not feel able to make an award for psychiatric injury. We were also conscious that there must be no double counting between an award for psychiatric injury and an award for injury to feelings. Aggravated Damages[28]We do not find that there are any aggravating factors and make no award for Aggravated Damages. ACAS Uplift[29]The claimant has failed to identify the breach he relies on. We make no uplift to the claimant’s award. Interest[30]We have added interest at the prescribe rate in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The period we have used is the period from the date of the first incident on 27 February 2018 until the date of the hearing (2457 days).[31]We declined to reduce the interest amount by a year, as requested by the respondent based on an element of delay attributable to the claimant pursuing other unsuccessful tribunal claims. It is regrettable that an incident which took place in February 2018 is the subject of a Remedy Hearing in November 2024. However, there are a number of reasons for the various delays, including an early postponement of the liability due to the ill-health of one of the original named respondents and the respondent’s appeal to the EAT. The test for departing from the standard interest assessment is whether there would be serious injustice by applying the normal calculation. In the circumstances, we do not find that any serious injustice would be caused to the respondent if interest were to be awarded in respect of the whole period.[32]We have calculated the amount of interest to be £18,848.22.