Mr A Savva v Leather Inside Out: 2207192/2020 and others
EMPLOYMENT TRIBUNALS
Case No 2207192/2020, 2206469/2021, 2201368/2021
Between
Mr A SavvaClaimantLeather Inside OutRespondent
Before
Employment Judge Gidney,In person for claimantNot attending for respondentDate 27 March 2025
JUDGMENT
[1]The Judgment of the Tribunal is that the Claimant’s claim of detrimental treatment for making protected interest disclosures is not well founded and is rejected.
REASONS
The Hearing
[2]Background and History. By complaints dated 17th November 2020, 22nd March 2021 and 5th October 2021 the Claimant presented complaints of(i) automatic unfair dismissal pursuant to s103A of the Employment Rights Act 1996 (‘the ERA’),(ii) Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 detrimental treatment on the grounds of having made public interest disclosures under s47B of the ERA, and(iii) sex and race discrimination and harassment contrary to s13 and s26 of the Equality Act 2010 (‘EqA’). The complaints were presented against four Respondents in total, namely Leather Inside Out, a registered Charity, and three other individuals named Nicole Riedweg, Anat McKenzie and Victoria Johns. The Respondents denied all of the Claimant’s claims. After a number of Case Management Orders the Claimant’s claims were consolidated and a public preliminary hearing was listed to determine whether all or some of the Claimant’s claims should be struck out on the grounds that they were presented out of time and/or that they had no reasonable prospect of success. In the alternative a Deposit Order was sought for any claims that remained, on the grounds that they had little reasonable prospect of success.[3]By a reserved Judgement sent to the parties on the 19th of April 2022 [1] 1 Employment Judge Beyzade made the following Orders:3.1 The Claimant's claim of automatic unfair dismissal, pursuant to section 103A of the ERA was not well founded.3.2 The Claimant’s claims of sex and race discrimination and harassment were not well founded.3.3 The Claimant’s claims of detrimental treatment for having made protected interest disclosures were not well founded, with the exception of two complaints of detrimental treatment that would proceed to trial, namely:3.3.1 that the First Respondent, Leather Inside Out, attempted to mislead the Claimant by falsely claiming he was not an employee within the meaning of s230 ERA (as set out in paragraph 5.5 within the Particulars of Claim dated the 22nd March 2021 [126]).3.3.2 that the First Respondent, Leather Inside Out refused, by letters dated the 15th October 2020 [1206] and 10th September 2021 [1218] to provide the documents requested by the Claimant in two data Subject Access Requests, the first received on 16th September 2020 and the second date 8th August 2021 (as set out in paragraph 11.6 within the Particulars of Claim dated 5th October 2021 [279]). 1 Numbers in bold square brackets refer to pages within the Claimant’s Trial Bundle of Documents. Claim Numbers 2207192/2020, 2206469/2021 & 2201368/20213.4 The two remaining claims of detrimental treatment (as set out above in paragraphs (3.3.1) and (3.3.2) above) were made the subject of a Deposit Order in the sum of £300.00 on the grounds that the claims have little reasonable prospect of success.3.5 As the two remaining claims of detrimental treatment (as set out above in paragraphs (3.3.1) and (3.3.2) above) are brought against the First Respondent, Leather Inside Out, only, all claims against the 2nd to 4th Respondents (Nicole Riedweg, Anat McKenzie and Victoria Johns) were dismissed.[4]On the first day of the hearing the Claimant attended with two witnesses, Paul Vrahimis and Conner Walsh. Given the dismissal of the claims against second, third and fourth Respondents, we shall refer to the First Respondent, Leather Inside Out, simply as the Respondent. The Respondent did not attend the hearing. Enquiries established that an application had been made to the Charity Commission to wind up the activities of the Respondent and that it would not be attending to defend the Claimant’s claims against it. As at the date of the hearing the Respondent had not been wound up.[5]By paragraph 4 the Claimant’s Particulars of Claim [122] 12 potential public interest disclosures (‘PIDs’) were identified, at sub-paragraphs 4.1 to 4.12. The Particulars of Claim did not identify which ‘gateway’ provision of s43B(1) ERA was relied upon for each disclosure. At the start of the hearing the Claimant identified the legal basis for 8 of his 12 pleaded PIDs (sub-paragraph numbers 3, 5, 6, 8, 9, 10, 11 & 12). He confirmed that he no longer wished to rely on the 4 remaining PIDs (sub-paragraph numbers 1, 2, 4 or 7). Accordingly we proceeded to hear and determine the Claimant’s 2 detriment claims based on the 8 remaining PIDs that he wished to put before us.[6]The Issues. The liability issues in the case were identified and agreed with the Claimant to be as follows: Protected Interest Disclosures6.1 Did the claimant make one or more qualifying disclosures as defined in section 43B(1) ERA? To maintain consistency with the Particulars of Claim we have referred to the remaining PIDs by the same sub paragraph numbers within paragraph 4 of the Particulars of Claim: Claim Numbers 2207192/2020, 2206469/2021 & 2201368/20216.1.1 [3] Around September 2019 the Claimant disclosed to Paul Vrahimis that Leather Inside Out and its subsidiary companies S&K Camden Ltd (‘S&K’) and Leather Works London Ltd (‘LWL’) were not paying staff PAYE or National Insurance tax contributions. S43B(1)(b) breach of the legal obligation to pay tax;6.1.2 [5] On 28th of October 2019 the Claimant disclosed to Victoria Johns that the Creative Director, Louise Graham, behaving in an aggressive and intimidating manner, had unlawfully trapped Connor Walsh in a room and refused to let him leave S43B(1)(a) criminal offence has been committed (false imprisonment under common law); 6.1.2 [6] Around October/November 2019 the Claimant disclosed to Paul Vrahimis that his (Paul’s) shares in the LWL had been unlawfully transferred from his ownership to Leather Inside Out without his knowledge or approval. S43B(1)(a) criminal offence has been committed (s1 Theft Act 1968); 6.1.2 [8] in November 2019 the Claimant disclosed to Paul Vrahimis that Victoria Johns was committing invoicing fraud to access funds illicitly and was manipulating staff members into committing criminal offences to potentially launder money via the charity. S43B(1)(a) criminal offence has been committed (s2 Fraud Act 2006); 6.1.2 [9] in November 2019 the Claimant disclosed to Paul Vrahimis that Victoria Johns asked him to assist her with a suspicious transaction that involved importing £900,000.00 from Dubai under an agreement that authorised her to withdraw funds against the presentation of fake invoices. S43B(1)(a) criminal offence has been committed (s327 Proceeds Crime Act 2002); 6.1.2 [10] On the 25th November 2019, the Claimant disclosed to Paul Vrahimis that Leather Inside Out’s bank accounts were showing irregular and highly suspicious activity that appeared to be a money laundering scheme. S43B(1)(a) criminal offence has been committed (s327 Proceeds Crime Act 2002); 6.1.2 [11] after the Claimant was dismissed in December 2019, he disclosed to Paul Vrahimis that company documents suggested that he (Paul) at Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 been present at a board meeting at which an agreement to transfer £820,000 to a company owned by another trustee was made, when in fact Paul Vrahimis was not at that board meeting. S43B(1)(a) criminal offence has been committed (s2 Fraud Act 2006); 6.1.2 [12] after his dismissal in December 2019, the Claimant reported his concerns about Leather Inside Out to the Charity Commission and to Action Fraud (ref 191203358964). S43B(1)(a) criminal offence has been committed (s2 Fraud Act 2006).6.2 For each disclosure that the Claimant made:6.2.1 Did the Claimant disclose information?6.2.2 Did he believe the disclosure of information was made in the public interest?6.2.3 Was that belief reasonable?6.2.4 Did he believe it tended to show that(i) a criminal offence had been, was being or was likely to be committed, or(ii) a person had failed, was failing or was likely to fail to comply with any legal obligation? 6.2.4 Was that belief reasonable? Detriments6.3 Did the First Respondent do the following things:6.3.1 attempt to mislead the Claimant by falsely claiming he was not an employee;6.3.2 refuse to provide the documents requested by the Claimant in two data Subject Access Requests.6.4 By doing so, did it subject the Claimant to detriment?6.5 If so, was it done on the ground that he made a protected disclosure?[7]The Facts. We were provided with a 1,600 page bundle of documents by the Claimant in electronic format. Despite this hearing being listed in person, no hard copy was provided. We were able to access the bundle electronically, however the hearing was delayed until 2.30pm on the first day so that the Claimant could provide a hard copy of his bundle for use on the witness table. At 2.30pm we took the opportunity to discuss the PIDs relied on and the gateway provision within s43B(1) Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 ERA that the Claimant asserted applied to each PID. This process assisted in clarifying and narrowing the issues. We then adjourned at about 3.30pm to read all of the witness statements, all of the documents referred to in them and all of the remaining relevant documents in the bundle of documents provided by the Claimant. We restarted the hearing at 2pm on the 2nd day, 21st June 2023. The Claimant provided a witness statement running to 78 paragraphs. He confirmed that his statement was true by way of affirmation. The Claimant called two other witnesses: Paul Vrahimis provided two witness statements, one 8 paragraphs in length (PV1) and the other 31 paragraphs in length (PV2) which he confirmed were true under Oath upon the Holy Bible. Conner Walsh provided an 11 paragraph statement which he confirmed was true by affirmation. Both Mr Vrahimis and Mr Connor confirmed that the Claimant had helped them write their witness statements. In the absence of the Respondent, we asked each witness some questions to clarify certain issues in the case. We have focussed our findings of facts on the facts relevant to the issues we have to decide.[8]The Respondent is a registered charity seeking to provide skills and training, employment and education in the British leather craft industry and retail for those committed to custody by the courts of England and Wales, serving prisoners and ex-offenders on their release on licence. It has two subsidiary limited companies under its umbrella, S&K Camden Ltd (‘S&K’) and Leather Works London Ltd (‘LWL’). Responsibility for the funding of the charity rests with its benefactor trustee Nicole Riedweg. The charity is not in receipt of any public funds or grants other than the financial support of Miss Riedweg and the funding she has arranged through Just Cash Flow PLC. The Respondent’s CEO is Victoria Johns. Paul Vrahimis, one of the Claimant’s witnesses, was a trustee of the Respondent until November 2019. Patrick Havlik was the Respondent’s digital designer until his dismissal on 9th December 2019. Connor Walsh, the Claimant’s second witness, was a former supervisor and employee of S&K, one of the Respondent’s subsidiaries. Louise Graham was the Respondent’s Creative Director. Anthony Vrahimis, Paul’s brother, was also engaged to work by the Respondent.
The Issues
[9]The Claimant has one previous antecedent of ‘Class A drug supplying or offering to supply’ and ‘possession of offensive weapon without lawful authority or reasonable excuse’. The offensive weapon was a stun gun (which confirmed by the Police to be broken). The supply or offer of supply related to 3.3 tons of active pharmaceutical ingredients, including Benzocaine, Lidocaine and Paracetamol, Caffeine and Boric Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 Acid, which are used by drug suppliers to bulk out illicit drugs. The offences took place between February 2009 and May 2011 in the Enfield area of London [1166]. The Claimant was sentenced to nine years in custody for this offence in 2013. After the Claimant’s release from custody under licence he was engaged by the Respondent on 3rd June 2019, until his engagement was terminated on 1st December 2019, some six months later.[10]On 1st September 2019 Vladimir Galichyan submitted an invoice to LWL rebuild a flat roof in the sum of £3,600.00 [1035]. On 15th October 2019 Victoria Johns emailed Patrik Havlik to say: ‘I think the amount here is too low. Can you increase it to £18,500.00?’[11]On 11th September 2019 Victoria Johns engaged the Claimant in a WhatsApp conversation regarding the mechanics of setting up a payment of £900,000.00 from an account in Dubai [629].[12]On 18th September 2019 S&K raised an invoice in the sum of £386.88 to a company called Leonardt Ltd for the supply of 2000 buckles [1030]. We were shown an undated text exchange, between parties unknown, in which, with reference to the invoice, one party asked the other ‘Can you take this one and raise in multiples to £3,368.33’ with the reply ‘Yes, will do it’.[13]In paragraph 3 of his 2nd statement [1101], Paul Vrahimis said that on 23rd September 2019 he emailed Victoria Johns with his concerns. However that email was not on our bundle and in answer to a question from us, Mr Vrahimis confirmed that he did not have it. We were unable to draw any conclusions about its contents.[14]On 28th October 2019 there was an incident in which Louise Graham, the Respondent’s commercial director, admonished Connor Walsh in a private meeting room. Mr Walsh described the incident in paragraph 6 of his statement [1376] stating, ‘Louise blocked me from leaving a room, began to scream in my face, hurl accusations at me while questioning my capability of working for the company and refused to let me leave even after I made it clear I wanted to go. This went on for over 15 minutes after I said I wanted to leave’. In answer to questions from the panel the Claimant described the incident in the following terms: ‘Conner asked to leave and Louise blocked him. We could hear Louise, we couldn't hear Connor. I can't say if it was an indictable offence, but he was shouted at and it caused concern’. Also in Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 answer to our questions the Claimant stated that there was a window, and that he could see into the room to see the confrontation. The Claimant asserts that he raised this in a meeting with Victoria Johns on 18th October 2019. We find that he did. We have seen a transcript of the relevant extract from that meeting. It records the Claimant giving Ms Johns the following account of the incident: ‘She [Louise Graham] stood in front of the door and wouldn't let him [Connor Walsh] leave. Now The funny thing about that conversation is that we could all hear it from the other side of the room saying don't talk over me, don't talk over me. We couldn't hear Connor, but we could hear her saying that. And she refused to move out of the way when he asked, which is not just unfair and intimidating, but it's a criminal offence as you know for false imprisonment’.[15]If we take the transcript as an accurate and contemporaneous note of the incident, and we are minded to, it cannot be fully reconciled with the account given by the Claimant in oral evidence to us. In evidence he said there was a window and he could see into the room. The transcript suggests he could simply hear it. The transcripts suggests that Connor could not be heard (ie no objections by him or requests to leave could be heard). He also conceded to us that what happened was unlikely to be indictable as false imprisonment.[16]In paragraph 4 of Mr Vrahimis’ 2nd statement [1101] he said, ‘my concerns were sent by text message and then by e-mail to the other trustees, Anat McKenzie and Nicole Riedweg on the 23rd and 25th of November 2019’. In support of that proposition Mr Vrahimis referred to an email on 19th and 25th November 2019. No text was provided and Mr Vrahimis agreed he did not have the text. In the circumstances we are satisfied that the two communications that did occur were the emails that were produced on 19th and 25th November 2019.[17]On Tuesday 19th November 2019 Paul Vrahimis sent an email to Nicole Riedweg [1241]. In it Mr Vrahimis stated that he had tried to contact Ms Riedweg unsuccessfully over the previous two weeks to raise concerns about Victoria Johns. He complained that his shares in S&K had been transferred without his knowledge or consent to the Respondent, stating: ‘I also realised that all of my shares in S&K have been transferred to Leather Inside Out, which makes the charity a 75% shareholder in the company again. I did not authorise this. I haven't sold my shares or agreed to. So how did this come to pass?’ Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021[18]On Monday 25th November 2019 Paul Vrahimis sent a further email, this time to Anat McKenzie [1242]. In contained the following: ‘I want to be clear that I have resigned from both the companies (S&K and LWL) in part because I'm aware the Victoria has not paid any of the taxes associated to PAYE or National Insurance, which is illegal and could result in a prison sentence or being banned from being a company director in the future. Victoria lied to me and said that she had paid this. However, I recently discovered the Victoria also failed to pay any of the PAYE / NI taxes for Leather Inside Out too which has been a cause of distress to all of our staff across the companies. I want to be clear that I did not and will not resign from my post as a trustee in the charity, at the very least because I want to retain some control over the companies that I'm a shareholder of and of which Leather Inside Out is the majority shareholder, which Victoria appears to direct. For the avoidance of doubt, I make a clear distinction between the charity and the companies. In any case, Victoria’s confusion in this regard may explain (should I give her the benefit of growing doubt) but does not justify why she has transferred all of my shares to Leather Inside Out, which amounts to theft and quite possibly fraud, which is a serious criminal offence and would harm the reputation of the charity considerably’.[19]By this email of 25th November 2019 we found that Paul Vrahimis had escalated two of the PIDs that had been brought to his attention by the Claimant, PID [3], relating to the non-payment of PAYE and NI contributions and PID [6] that Victoria Johns had transferred Mr Vrahimis’ shares in LWL to the Respondent without his knowledge or consent. We will return to this later. In a letter drafted by Carter Ruck, the Respondent’s solicitors, dated 20th December 2019 [1132] it was confirmed that Mr Vrahimis’ shares in LWL had indeed been transferred into the ownership of the Respondent on 22nd October 2019. The letter went on to assert that Respondent reinstated the shares to Mr Vrahimis following notice that he had not intended to revoke his shares.[20]On the issue of whether Paul Vrahimis escalated or passed on any other PIDs that the Claimant and told him, we noted paragraph 14 of his 2nd statement [1103] which stated: ‘I became increasingly concerned as it showed that the other trustees were not interested in safeguarding the charity from the fraud and criminality of Victoria Johns, but rather they were tipping her off to the fact of my concerns about her. For this reason, I did not mention all the details of our concerns at that point.’ Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021[21]We asked Mr Vrahimis to expand on that statement by telling us exactly what concerns he did escalate, and what he kept back. In oral evidence he confirmed to us that the only PIDs that he escalated were the ones that related to the non-payment of PAYE and NI contributions (PID [3]) and the transfer of his shares from LWL to the Respondent (PID [6]). This was consistent with the emails that he has produced (referred to above). Accordingly we found as a fact that Paul Vrahimis only escalated those two PIDs and that he kept the others close to his chest.[22]On 30th November 2019 the Respondent dismissed the Claimant with immediate effect on the grounds of a complete breakdown in trust and confidence [297]. The letter stated, ‘I felt that your personality is unmanageable and divisive, substantially and consistently disrupting the charity, personnel and businesses and impacting on your behaviour and conduct towards colleagues who have, without exception, formally, informally and frequently complained about your unreliability and poor concentration, inability to work reliably and independently, and some have cited your volatility as a serious cause for concern’.[23]On 2nd December 2019 Anthony Vrahimis sent an email to the Respondent’s finance provider Just Cash Flow Ltd. Carter-Ruck, the Respondent's lawyers, in a letter dated 20th December 2019 described it as raising allegations of financial mismanagement, whilst making exceptionally serious allegations of suspected money laundering. Carter-Ruck described the email as making blind assumptions about the way in which Leather Insides Out’s revolving credit facility worked and accused it of reaching false conclusions [1135]. Carter-Ruck also opined that an external digital investigator had concluded that the Claimant was the author of the said email. Unfortunately the Anthony Vrahimis email was not provided to us. We do not know what the specific allegations of financial mismanagement were, or what the specific allegations of money laundering were. It is possible that it referred to matters now relied upon by the Claimant in his PIDs, however we were unable to conclude that in the absence of the email of 2nd December 2019.[24]The Carter-Ruck letter also referred to the Respondent having been notified of a complaint made against it to the Charity Commission. We find, on the balance of probabilities, that this is the same complaint as the complaint forming PID [12]. This would suggest that the Respondent, knew of that report (and thus PID[12]) by 20th December 2019. However, and well shall turn to this in more detail later, the Claimant has not produced a copy of his complaint to the Charity Commission, so we cannot Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 say what specific allegations it made and cannot make any findings of fact as to its contents.[25]The Respondent reported the Claimant to the Probation Service, believing he had breached the terms of his licence, in part in the belief that he had either stolen its computer or had been involved with those that had. In paragraph 40 of his witness statement the Claimant says: ‘I became aware of the revocation of my licence on the 17th January 2020, and I subsequently spent 79 days in the community gathering evidence to prove my Innocence. I was returned to custody on the 18th of March 2020, where I was expected to serve the remainder of my term, approximately two and a half years because of the gravity of the allegations Victoria made against me. I appealed the decision and submitted my evidence to the Ministry of Justice Parole Board. Upon a review of the evidence I was released immediately on 18th May 2020’.[26]The reference to spending 79 days in the community is a reference to the Claimant being ‘on the run’ from the Probation Service who were seeking to return the Claimant into custody.[27]In January 2020 the Respondent discovered that its computers had been stolen [184]. The Respondent engaged the Police, suspecting the Claimant or one of his colleagues may have been behind the theft. In this suspicion they were correct, although the Claimant has a different perspective, somewhat euphemistically stating at paragraph 26 of his witness statement ‘I also discovered documents on a hard drive that was used by the Respondents and ‘confiscated’ by a former trustee and director’ (our emphasis added). In answering our questions on this he stated, ‘Anthony Vrahimis Paul’s brother, removed the hard drive. He wanted to understand more about what they were doing. I took it. I was given the hard drive. He's a director and he felt entitled to take it. I didn't ask him to.’ The Police elected not to pursue the matter on the grounds that they considered it to be a civil matter.[28]One of the documents that the Claimant found on the Respondent’s confiscated hard drive appeared to be draft Board Minutes (they were unsigned and had spaces left blank for the insertion of dates) of a meeting to be held on a date in October 2018. The business of the meeting was to consider whether to execute a Joint Venture Termination Agreement between Nicole Riedweg and LWL and to instruct Just Cash Flow Ltd to transfer to Ms Riedweg a £820,000.00 termination fee [1097]. On the balance of probabilities we find that Anthony Vrahimis took the Respondent’s hard Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 drives without the Respondent’s knowledge and consent and gave them to the Claimant for the purpose of advancing his various litigations and claims against the Respondent. Whilst the Police may have elected not to pursue the matter on account of Anthony Vrahimis being a director, it is clear to us that Anthony Vrahimis was not acting in the Respondent’s interests when he did so, and in fact knew well that the Claimant would use it or attempt to use it against the Respondent.[29]Upon the Claimant’s release he arranged for his Solicitors to submit a Data Subject Access Request (‘SAR’). They did so in September 2020, although the request itself is undated [1201]. By letter dated 15th October 2020 solicitors instructed by the Respondent responded to the SAR by refusing it [1206]. They noted that the SAR had been received by them on 14th September 2020 being the day after the Police had seized computer equipment belonging to the Respondent. The response identified two grounds for refusing the SAR, as follows: ‘Given the continuing criminal investigations, we instructed that Leather Inside Out is not at this stage prepared or indeed able to disclose any of the data or information requested in your letter. We refer to the Data Protection Act 2018 Sch 2, Part 1, Paragraph 2, and the exemption relating to the prevention or detection of crime and the apprehension or prosecution of offenders. In addition, Leather Inside Out considers your client's request to be manifestly unfounded and excessive, pursuant to the Data Protection Act, Part 3, s53. Your letter seeks data and information relating to an extremely wide range of records. In view of all of the circumstances described above we are instructed that our client regards your client’s request as manifestly unfounded excessive and malicious in intent, and a further attempt to harass the charity with no real purpose other than two cause disruption and additional economic detriment to the charity’.[30]On 8th August 2021 the Claimant made his second Data Subject Access Request in similar terms [1215]. The Respondent’s solicitors refused the second request in a reply dated 10th September 2021 [1218] on the same grounds as it refused the 1st SAR. By the time of that request, the Respondent had received the Particulars of Claim dated 22nd March 2021 and thus had knowledge of all of the PIDs relied on by the Claimant, in so far as they were detailed in that Claim Form.[31]We find that both refusals as set out above were acts of detriment suffered by the Claimant. Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021[32]Finally, on 11th January 2021 the Respondent filed its Grounds of Resistance to the Claimant’s claim. In paragraphs 28 and 29 it raised as an issue the Claimant’s employment status, stating [85]: ‘The Respondents assert that the Claimant was not an employee, as the nature of his engagement was on a casual ad hoc basis with no mutuality of obligation and as such will seek strike out of the Claimant’s pleaded case in the event that the Tribunal do not otherwise strike out the ET1 on time jurisdiction’.[33]In the Grounds of Resistance to one of the Claimant’s later Claim Forms the Respondent repeated the point [177] stating ‘It is not accepted that the Claimant was an employee as he was engaged as a casual worker and on an ad hoc basis’.[34]Accordingly we find that this defence regarding the Claimant’s employment status was taken and that it amounted a detriment to the Claimant. As it was raised in a defence to the Claim Form that set out the Claimant’s 12 PIDs we find, that by the date of the Claim Form the Respondent was aware of the PIDs that the Claimant intended to rely on.[35]Before turning to our conclusions, we have set out the law that we have to follow in this case, as follows: Public Interest Disclosures[36]Whistleblowers are protected from suffering any detriment or dismissal from their employer as a consequence of making a public interest disclosure of alleged wrongdoing. The Act defines a public interest disclosure in the following way: Section 43B of the ERA states: 43B Disclosures qualifying for protection (1) In this Part a “qualifying disclosure” means any disclosure of information which in the reasonable belief of the worker making the disclosure, is made in the public interest and, tends to show one or more of the following: (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, 43C Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith: (a) to his employer. Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021[37]A protected disclosure may be made during the employment, but also after its termination (Onyango v Berkley Solicitors [2013] IRLR 338 EAT).[38]In Babula v Waltham Forest College [2007] 346 the Court of Appeal held that ‘An Employment Tribunal hearing a claim for automatic unfair dismissal has to make three key findings. The first is whether or not the employee believes that the information he is disclosing meets the criteria set out in one or more of the subsections in ERA 1996, section 43B(1)(a)-(f). The second is to decide objectively whether or not that belief is reasonable. The third is to decide whether or not the disclosure is made in good faith’.The ‘reasonable belief’ statutory test is a subjective one. The ERA states that there must be a reasonable belief of the worker making the disclosure (Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, EAT). In Korashi the Court of Appeal stated ‘as to any of the alleged failures, the burden of proof is upon the Claimant to establish upon the balance of probabilities, any of the following,(a) there was in fact, and as a matter of law, a legal obligation or other relevant obligation on the employer in each of the circumstances relied on;(b) the information disclosed tends to show that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject.’ The Court continued, ‘Belief seems to us to be entirely centred upon a subjective consideration of what was in the mind of the discloser. That again seems to be a fairly low threshold.’[39]In Simpson v Cantor Fitzgerald Europe [2021] IRLR 238 an individual presented whistle blowing claims based on the assertion that he had made protected disclosures in respect of traders engaging an illegal practise is known as ‘front running’. The Tribunal rejected the allegation that there was any causal link between these matters and the treatment of the Claimant. It did so on the basis that the communications contained ambiguity and the Claimant had not reported his concerns to Compliance. The Court of Appeal, Bean LJ stated ‘obviously it was open to the Tribunal to find that his failure to make any explicit report to Compliance indicated that he did not genuinely, unconscious, conscientiously believe that there had been any such breaches’.[40]Qualifying disclosures must involve a disclosure of information, ie must convey facts, rather than merely raise an allegation. There must be the disclosure of information. In Williams v Michelle Brown AM [2019] UKEAT/0044/19 the EAT stated ‘If the Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 Tribunal properly concludes that the factual content of the claim disclosure cannot reasonably be construed as tending to show a criminal offence [or other relevant breach of section 43B(1)] then that conclusion will by itself be fatal to the proposition that there was a qualifying disclosure relying on section 43B(1). That will be so regardless of what the Claimant subjectively believed, and regardless of whether or the other elements are shown'.[41]The distinction between information and comment or assertion was illustrated by Slade LJ in Cavendish as follows: ‘the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around.” Contrasted with that would be a statement that “You are not complying with Health and Safety requirements”. In our view this would be an allegation not information.’[42]The question is whether there is sufficient by way of information to satisfy section 43B. This will be very much a matter of fact for the Tribunal. The more the statement consists of unsupported allegation, the less likely it will be to qualify, but this is as a question of fact, not because of a rigid information/allegation divide (Kilraine v London Borough of Wandsworth [2018] ICR 1850). For a statement to be a qualifying disclosure, there must be sufficient factual content and specificity to show that one of the listed matters in section 43B(1) is engaged. ‘If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure that he makes has a sufficient factual content and specificity such that it is capable of tending to show that matter listed, it is likely that his belief will be a reasonable belief’.[43]It is then necessary to determine that the worker has a reasonable belief that the disclosure is in the public interest and tends to show one of the six statutory categories of 'failure'. The definition of a qualifying disclosure is ‘disclosure of information which, in the reasonable belief of the worker, is made in the public interest’. Disputes that are essentially personal contractual disputes are unlikely to qualify (Millbank Financial Services Ltd v Crawford [2014] IRLR 18, EAT). It is not sufficient that the Claimant has simply made allegations about the wrongdoer especially where the claimed whistleblowing occurs within the Claimant's own Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 employment, as part of a dispute with his or her employer (Cavendish Munro Professional Risks Management v Geduld [2010] IRLR 38).[44]There must be an actual or likely breach of a legal obligation. Under paragraph (1)(b) there must be an actual or likely breach of the relevant obligation by the employer (Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540, EAT). The word 'legal' must be given its natural meaning. The fact that the individual making the disclosure thought that the employer's actions were morally wrong, professionally wrong or contrary to its own internal rules may not be sufficient (Eiger Securities LLP v Korshunova [2017] IRLR 115, EAT). The source of the obligation should be identified and capable of certification by reference for example to statute or regulation. ‘Likely’ means probable or more probable than not. It is not sufficient that the Claimant reasonably believed that the relevant disclosure of information tended to show that a person ‘could’ fail to comply with a legal obligation, or that there was a possibility or risk of non-compliance (Kraus v Penna Plc [2004] IRLR 260).[45]In Norbrook Slade J said ‘… an earlier communication can be read together with a later one as embedded in it, rendering the later communication of protected disclosure, even if taken on their own, they would not fall within section 43B(1). Accordingly, two communications can, taken together, amount to a protected disclosure. Whether they do is a question of fact’.[46]An employee wanting to rely on the whistleblowing protection before a tribunal bears the burden of proof on establishing the relevant failure (Blackbay Ventures Ltd v Gahir [2014] IRLR 416, EAT). As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following:(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on; and(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.[47]In the event that a qualifying protected disclosure was not made in good faith, at the remedy stage 'the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the worker by no more than 25%'. Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 Detriments[48]It is for the Claimant to show that he was subjected to a detriment by an act or a deliberate failure to act by his employer or co-worker. The claim would only be made out if the Claimant was subjected to the detriment on the ground that he had made the protected disclosure. The relevant test is whether the protected disclosure materially influenced, in the sense of being more than a trivial influence, the treatment of the Claimant (Fecit & Others v NHS Manchester [2011] IRLR 111). Section 48(2) of the Act states that the onus is on the employer to show the ground on which the act or deliberate failure to act is done. The ‘on the ground that’ test focuses on the relevant decision-makers mental processes. The test is not satisfied merely because there was some relationship between the protected disclosure and the detriment complained of, or because the detriment would not have been imposed but for the disclosure (London Borough of Harrow v Knight [2003] IRLR 140).[49]The Court of Appeal decision in Jesudason v Alder Hay Childrens NHS Foundation Trust [2020] IRLR 374 stated ‘It is now well established that the concept of a detriment is very broad and must be judged from the viewpoint of the worker. There was a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment’.[50]The decision to dismiss can itself be a detriment imposed by the dismissing officer. If established as a detriment the employer will be vicariously liable for that. In Timis v Osipov [2019] IRLR 52 the court said: ‘It is open to an employee to bring a claim under section 47B(1A) against an individual co-worker for subjecting him or her to the detriment of dismissal, ie for being a party to the decision to dismiss and to bring a claim of vicarious liability for that act against the employer under section 47B(1B). … All that section 47B(2) excludes is a claim against the employer in respect of its own active dismissal. Our Conclusions[51]We shall deal first with the 8 PIDs relied on by the Claimant. For each we have had to determine whether the PIDs qualify for the protection afforded by the Employment Rights Act 1996, as defined by s43B of the Act. Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021[52]PID [3]. Around September 2019 the Claimant disclosed to Paul Vrahimis that Leather Inside Out and its subsidiary companies S&K Camden Ltd (‘S&K’) and Leather Works London Ltd (‘LWL’) were not paying staff PAYE or National Insurance tax contributions. This was said to qualify for protection under S43B(1)(b) breach of the legal obligation to pay tax. We find that this disclosure does not qualify for the protection offered by the Act. The reason for this is that the Claimant accepted that the staff were paid gross, on the basis that the staff would be responsible for their own tax. We are supported in this by the fact that the Respondent sought to argue that the staff were not its employees, but self-employed contractors instead. The Claimant understood this and accepted in evidence that the staff had been paid gross. There was no illegality in this business set up and no breach of a legal obligation. This PID fails.[53]PID[5]. On 28th of October 2019 the Claimant disclosed to Victoria Johns that the Creative Director, Louise Graham, behaving in an aggressive and intimidating manner, had unlawfully trapped Connor Walsh in a room and refused to let him leave. This was said to qualify for protection under S43B(1)(a) criminal offence has been committed (false imprisonment under common law). The evidence reveals that Conner Walsh was never trapped in the room. He accepted that it would be a stretch to say he had been falsely imprisoned. There was conflicting evidence as to whether the Claimant could hear the dressing down given by Louise Graham to Connor Walsh or could see it as well. On balance we think it is more likely that the door was solid and the Claimant’s account given at the time, to hearing her shouting, is more likely than the oral evidence given to us that he could see and hear it. We conclude that there was no reasonable belief, and indeed no real belief, that a criminal offence was being committed. Conner Walsh accepted as much to us in evidence. In the circumstances, this PID fails.[54]PID[6]. Around October/November 2019 the Claimant disclosed to Paul Vrahimis that his (Paul’s) shares in the LWL had been unlawfully transferred from his ownership to Leather Inside Out without his knowledge or approval. This was said to qualify for protection under S43B(1)(a) criminal offence has been committed (s1 Theft Act 1968). The evidence for this was contained in Paul Vrahimis’ witness statement [PH30] and the email was in our bundle [1242]. We do not know whether the transfer of shares amounted to theft, but we concluded on the evidence before us that the transfer occurred, that the Claimant disclosed information about that and that it was a reasonable belief held by him that the information he had disclosed tended to show a Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 criminal offence had been committed. Such a disclosure is in the public interest. Accordingly we find that this disclosure qualifies for the protection afforded by the Employment Rights Act 1996.[55]PID[8]. in November 2019 the Claimant disclosed to Paul Vrahimis that Victoria Johns was committing invoicing fraud to access funds illicitly and was manipulating staff members into committing criminal offences to potentially launder money via the charity. This was said to qualify for protection under S43B(1)(a) criminal offence has been committed pursuant to s2 Fraud Act 2006. As we have referred to in our analysis of the facts, we have seen emails which appear to indicate that employees had been asked to inflate invoices [1030 & 1035]. In the absence of any evidence from the Respondent, we do not know if there was an innocent explanation for the requests. However, we have concluded on the evidence before us that requests to amend invoices were made, that the Claimant disclosed information about that and that it was a reasonable belief held by him that the information he had disclosed tended to show a criminal offence had been committed. Such a disclosure is in the public interest. Accordingly we find that this disclosure also qualifies for the protection afforded by the ERA.[56]PID[9]. in November 2019 the Claimant disclosed to Paul Vrahimis that Victoria Johns asked him to assist her with a suspicious transaction that involved importing £900,000.00 from Dubai under an agreement that authorised her to withdraw funds against the presentation of fake invoices. This was said to qualify for protection under S43B(1)(a) criminal offence has been committed (s327 Proceeds Crime Act 2002). The request for assistance with the transaction was in the bundle of documents [1050-1054]. It was also covered in Paul Vrahimis’ second statement (paragraph 8). Similar to PID8, in the absence of any evidence from the Respondent, we do not know if there was an innocent explanation for the requests. However, we have concluded on the evidence before us that requests to assist in the Dubai transaction were made, that the Claimant disclosed information about that and that it was a reasonable belief held by him that the information he had disclosed tended to show a criminal offence had been committed. Such a disclosure is in the public interest. Accordingly we find that this disclosure also qualifies for the protection afforded by the ERA.[57]PID[10]. On the 25th November 2019, the Claimant disclosed to Paul Vrahimis that Leather Inside Out’s bank accounts were showing irregular and highly suspicious Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 activity that appeared to be a money laundering scheme. This was said to qualify for protection under S43B(1)(a) criminal offence has been committed (s327 Proceeds Crime Act 2002). We do not feel that this PID disclosed any information. The Claimant shared his opinion on banking activity he thought was irregular and highly suspicious. It is a clear example of an opinion, not information, and as such this PID fails.[58]PID[11]. after the Claimant was dismissed in December 2019, he disclosed to Paul Vrahimis that company documents suggested that he (Paul) had been present at a board meetings at which an agreement to transfer £820,000 to a company owned by another trustee was made, when in fact Paul Vrahimis was not at that board meeting. This was said to qualify for protection under S43B(1)(a) criminal offence has been committed (s2 Fraud Act 2006). This was not a disclosure made by the Claimant. It was Mr Vrahimis that who observed that he might not have been present. We consider that there is no reasonable belief on the Claimant’s part that this tended to show that a criminal offence had been committed. This PID fails.[59]PID[12]. after his dismissal in December 2019, the Claimant reported his concerns about Leather Inside Out to the Charity Commission and to Action Fraud (ref 191203358964). This was said to qualify for protection under S43B(1)(a) criminal offence has been committed (s2 Fraud Act 2006). The difficulty with this asserted PID is that the Claimant did not produce a copy of the concerns that he says he reported to the Charity Commission and to Action Fraud. There is evidence that reports were made, however we were not provided with any evidence of what concerns were raised, and what those concerns tended to show. The Claimant has the burden of proof of establishing that he made disclosures and that they qualified. He has not provided any evidence upon which we could determine this, and accordingly, this PID fails.[60]We now approach the question of detriments on the basis that the Claimant made 3 disclosures that qualified for the protection offered by s47B of the ERA, namely PIDs 6, 8 and 9, as set out above. Of those 3 disclosures, we found as a fact that Paul Vrahimis only escalated one of them, PID6, to the 1st Respondent. He did this as it was in his own personal financial interests to escalate it, but also in the public interest. As such we have considered whether the detriments occurred, and if so whether the reason for them was PID6. Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 The Detriments.[61]Det1. That the First Respondent, Leather Inside Out, attempted to mislead the Claimant by falsely claiming he was not an employee within the meaning of s230 ERA (as set out in paragraph 5.5 within the Particulars of Claim dated the 22nd March 2021 [126]). The First Respondent did assert that the Claimant was not an employee in its defence to the Claimant’s claims. However, as we have already found as a fact, the Claimant accepted that he was paid his earning gross, without any PAYE deduction for tax or national insurance. This is very compelling evidence that the Respondent considered the Claimant to be engaged as a contractor in business in his own right, providing a service to the Respondent. It fits entirely with the Respondent asserting, in its defence, that the Claimant was not engaged as an employee or worker. We find as a fact that the Respondent took the ‘contractor’ point in its grounds of resistance because that was what it genuinely understood the Claimant to be. We reject that the point was taken because of any of the Claimant’s qualifying PIDs. We note at page [1134] the personal tax bill of Anthony Vrahimis. This is consistent with the Respondent’s belief as to the employment status of the Claimant and his colleagues. This act of detriment was a legitimate line of defence for the Respondent’s lawyers to take, based on the information they had. We find that the reason for taking the point was not in any way connected to the qualifying disclosures. Accordingly this act of detriment fails. 61. Det2. that the First Respondent, Leather Inside Out refused, by letters dated the 15th October 2020 [1206] and 10th September 2021 [1218] to provide the documents requested by the Claimant in two data Subject Access Requests, the first received on 16th September 2020 and the second date 8th August 2021 (as set out in paragraph 11.6 within the Particulars of Claim dated 5th October 2021 [279]). We find as fact that the First Respondent did refuse to provide the documents requested by the Claimant in two data Subject Access Requests on 15th October 2020 [1206] and on 10th September 2021 [1218]. The fact of this detriment is established. The issue now turns to the reason why. Was it because of the three qualifying disclosures?[62]The reasons why the First Respondent refused to comply with the data requests were stated on the SAR refusals themselves. They were the prevention / detection of crime and the apprehension or prosecution of offenders, and/or that the requests were manifestly unfounded and excessive and or malicious and intended to harass with no legitimate purpose other than to disrupt the First Respondent, all of which Claim Numbers 2207192/2020, 2206469/2021 & 2201368/2021 were allowable reasons to refuse a subject access request, pursuant to the Data Protection rules. The factual basis for taking defence to the SAR was that the Claimant and his colleagues were accused of stealing the Respondent’s hard drives. They were taken and then used by the Claimant in formulating his SAR. He accepted that fact in his evidence before us. On the balance of probabilities we find that the reasons for refusing to comply with the SAR were the reasons given by the First Respondent at the point of refusal. We therefore reject the Claimant’s claim that the reason for the refusal was PID6, or indeed any of his qualifying disclosures.[63]Accordingly the Claimant’s claims fail and are dismissed. 4th August 2023 ____________________ Employment Judge Gidney Sent to the parties on: 06/10/2023 For the Tribunal: Case No: 2204857/2023 EMPLOYMENT TRIBUNALS Claimant Respondent Mr Wainwright v Marks and Spencer Plc Heard at: London Central Employment Tribunal On: 26, 27 July 20235 October 2023 (In chambers) Before: EJ Webster Mr D Clay Ms C Marsters Appearances For the Claimant: In person For the Respondent: Mr A Leonhardt (counsel)[1]The Claimant’s claims that he was refused employment by the Respondent in respect of one role on 31 January 2023 and 5 roles on 1 February 2023 in contravention of The Employment Relations Act 1999 (Blacklists) Regulations 2010 are not well founded and his claims fail.[2]The issues in this case had not been set out in advance of the hearing as no case management hearing had occurred. Case No: 2204857/2023[3]The issues were agreed at the outset of the hearing and are set out below.[4]The Tribunal was provided with two bundles – one for the Claimant and one for the Respondent. We were also provided with witness statements for the Claimant, Caitlin Williams, David Andrews, and Rebecca Ashley. In addition to the two bundles we also had 11 videos which documented the application process online carried out by the claimant in respect of himself, and the following fictional applications:(i) Jamie McNally(ii) Mary Jones(iii) Julie Roberts(iv) Andrew Roberts(v) Jamie Roberts(vi) Emma Roberts[5]Mr Leonhardt asked permission to ask additional questions of Mr David Andrews because he accepted that the videos showed that the dummy applicant’s online application process worked differently from his and it was only on reading the Claimant’s witness statement that they realized Mr Andrews had not dealt with those points in his evidence. The Tribunal allowed it but said that we would take into consideration when making its decision the lateness of the production of the evidence. The Claimant was given time to think about the additional evidence before he cross examined Mr Andrews.[6]At the conclusion of evidence, it was agreed with the parties that written submissions would be sensible given the time that this case had been listed for (two days) and the fact that the claimant said that he was unaware that he would be required to give submissions. The purpose of submissions was explained to the Claimant prior to the Tribunal adjourning and the Claimant was assured that they did not need to be legalistic or include any law unless he wanted them to given that he was a litigant in person. EJ Webster originally ordered them to be sent within 28 days of the hearing but the claimant asked for more time and a deadline of 29th of August was agreed instead.[7]We have taken into account when considering the evidence and submissions given that the claimant is a litigant in person albeit one with some previous experience of litigation. Therefore, we have analysed the evidence given to us by the witnesses and not relied upon the fact that some of the witness evidence provided by the respondent was not challenged by the claimant in cross-examination.[8]At various points in answering the cross-examination put forward by Mr Leonhardt, the claimant appeared to not want to answer on the basis that he would be giving away the basis of his case and/or cross-examination. On these occasions, EJ Webster instructed him to answer the question as opposed to simply wanting to think about it and think about the tactics and whether to answer it or not. Generally speaking tribunal is trying to establish the facts of Case No: 2204857/2023 the case as presented to them as opposed to the tactics involved in litigating them. The Issues Did R refuse C employment? Was a prohibited list created?[11]Was the reason for refusal of employment related to a prohibited list?[12]If yes did the Respondent:(i) breach Regulation 3 in that it compiled, used, sold or supplied a prohibited list as defined in Regulation 3; or(ii) rely on information supplied by a person who has contravened Regulation 3; or(iii) rely on information that it ought reasonably to know was supplied in contravention of Regulation 3?
The Law
[13]The Employment Relations Act 1999 (Blacklists) Regulations 2010a. Regulation 3 — General prohibition(1) Subject to regulation 4, no person shall compile, use, sell or supply a prohibited list.(2) A “prohibited list” is a list which— (a) contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and (b) is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.(3) “Discrimination” means treating a person less favourably than another on grounds of trade union membership or trade union activities.(4) In these Regulations references to membership of a trade union include references to— (a) membership of a particular branch or section of a trade union, and (b) membership of one of a number of particular branches or sections of a trade union; and references to taking part in the activities of a trade union have a corresponding meaning.b. Regulation 5.— Refusal of employment (1) A person (P) has a right of complaint to an employment tribunal against another (R) if R refuses to employ P for a reason which relates to a prohibited list, and either— (a) R contravenes regulation 3 in relation to that list, or Case No: 2204857/2023 (b) R— (i) relies on information supplied by a person who contravenes that regulation in relation to that list, and (ii) knows or ought reasonably to know that the information relied on is supplied in contravention of that regulation. (2) R shall be taken to refuse to employ P if P seeks employment of any description with R and R— (a) refuses or deliberately omits to entertain and process P's application or enquiry; (b) causes P to withdraw or cease to pursue P's application or enquiry; (c) refuses or deliberately omits to offer P employment of that description; (d) makes P an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted; or (e) makes P an offer of such employment but withdraws it or causes P not to accept it. (3) If there are facts from which the tribunal could conclude, in the absence of any other explanation, that R contravened regulation 3 or relied on information supplied in contravention of that regulation, the tribunal must find that such a contravention or reliance on information occurred unless R shows that it did not.[14]We also had regard to the Black Listing Guidance dated March 2010 as complied by the then BIS. Having checked this is the most up to date version of this document and remains appropriate guidance when considering the Regulations.[15]The Claimant relied in part on the legal analysis of the Regulations set out in a previous Judgment given by REJ Clarke (as he was then) dated 16 January 2017 Wainright v Balfour Beatty Engineering Services Ltd and Ors (1601751/2015). That Judgment followed a preliminary hearing in respect of various strike out applications. We have considered it but note that it is a first instance case and therefore not binding on us. However it contains helpful and relevant analysis of some aspects of Regulation 5 which we discuss below in our conclusions.
Facts
[16]We have only made findings of fact in relation to the matters which were relevant to our conclusions. Where we have not addressed any evidence or submissions expressly below that does not mean we did not consider it, it means that we did not consider it relevant to our conclusions.[17]All of our findings are reached on balance of probabilities. If we have reached a conclusion where there was a dispute of fact between the parties it is because we preferred the evidence of one party.[18]Much of the claimant’s witness statement was dedicated to describing his background in exposing blacklists. It is clear from reading the claimant’s witness statement and the articles about him that were produced in the bundle as well as the previous relevant tribunal decisions, that the claimant has carried out important work in respect of challenging the use of blacklists. He has a website Case No: 2204857/2023 dedicated to his work in this respect and has been featured in various newspaper articles and similar.[19]The claimant’s claim before us was whether he had been refused employment by the respondent on six separate occasions for a reason related to a prohibited blacklist. The claimant accepted that he had never seen the list he says exists, he had not heard any allusions to a blacklist during the application or interview process and he did not think that any of the respondent witnesses had seen a blacklist either.[20]His claim before us was predicated on the absence of any plausible explanation as to why he had been rejected from employment. He considered that this absence of a reasonable or plausible explanation ought to shift the burden of proof and therefore to lead to the inference of the existence of a list and this being the reason he was not offered employment.[21]His submissions (which we have read and carefully considered but do not repeat here) make much of various aspects of the reliability of the witness evidence provided by the Respondent and their failure to make disclosure regarding possible Teams communications and other possible evidence regarding their recruitment processes and their failure to call the witnesses he felt were necessary to refute the claims he has brought.[22]As an overall observation, contrary to the Claimant’s assertions, we found the Respondent witnesses to be reliable and as helpful to the Tribunal as possible. They could not answer all of the Claimant’s questions for various reasons including having forgotten the events or not having sufficiently detailed knowledge of the Respondent’s overall recruitment processes. The Claimant went to great lengths during cross examination to try to demonstrate inconsistencies in the witness evidence and reveal holes in their recruitment processes and practices. On several occasions, he succeeded in demonstrating that their recruitment processes and practices were at times poor and had significant room for subjective opinions of individuals to take precedence as opposed to them operating a strict marking regime with transparent accountability that was applied to each and every recruitment process that they ran. Nevertheless, we did not find that any of the three respondent witnesses attempted to hide that, nor were their answers to questions as flawed as he seeks to suggest to the extent that their credibility was harmed before us. We address this below when considering their evidence on the relevant facts.[23]He also put forward the contention that the possible prohibited list was a list of one (him) that was created in the mind of those interviewing him and that this fell within the definition of a prohibited list under the Regulations. He also put forward the contention that this list or the knowledge of this list was integrated into their automated online application process OR (our emphasis), possibly, that a human with this list in mind, altered the online application process in respect of his applications so that they did not progress in the same way other people’s application progressed. He also relied upon the fact that it was very easy for anyone at the Respondent to discover his previous involvement with Case No: 2204857/2023 Blacklists and his subsequent campaigning work. We assess the relationship between the evidence we heard and the existence of those lists below. The Interviewed for role[24]On 19 January 2023 the Claimant applied for the role of Part Time Customer services advisor role. The Respondent has a Candidate Self Service page on their website where he could monitor the progress of his application. On 23 January 2023 he received an email from Catalin Axon inviting him to an online video interview. He completed that video interview . The interview platform was provided by Hireview.[25]The Claimant attended the Chester Business Park on 30 Jan 2023 where the Respondent was based for this application process. He said he was one of 12 being interviewed for the role. Ms Ashley said that there were 14. We do not think anything turns on this but we had interview notes from 13 candidates including the Claimant.[26]The interview process was comprised of the following:(i) An online test where the individuals had to go on the Respondent’s shopping website and put three shopping items in the online basket.(ii) Six applications were split into 2 groups of three and had to define six things each group would take to a desert island if they were to be stranded there.(iii) Each application had to write a short response to a customer feedback email. This was done with pen and paper as there was a problem with the Respondent’s computer system at the time.(iv) A one to one interview[27]The Claimant says that he was confident he had performed well in each of the tasks. His analysis was:(i) He easily completed the computer shopping task(ii) He interacted well with his group during the second task(iii) His written answer for task three was better than the others we have now seen(iv) His one to one interview went well[28]The respondent’s evidence that the computer shopping task was performed well by everyone.[29]Ms Williams’ evidence was that the claimant performed well in the group discussion about the desert island but that he was not the strongest performer so she scored him 2/3.[30]There was a significant amount of debate about the quality of the written answers provided by the other candidates when compared to the Claimant’s. In essence the Claimant felt that given the spelling mistakes and grammatical mistakes made by the person who scored 3/3, it was strange that he had only scored 2/3. We note that several others also scored 2/3. Ms Williams was not Case No: 2204857/2023 able to give a definitive answer that explained the scoring system or why the other individual got 3/3 over the Claimant’s answer. We note that Ms Ashley disagreed with the scoring and said she would not have given the other candidate a perfect score.[31]We are not in a position to reassess or rescore these exercises. By definition the scoring system was subjective to an extent. However that subjectivity was applied across the candidates. There were several people who scored both better and worse than the Claimant across the tasks. There was nothing to suggest that the Claimant ought to be scored better than others who also scored 2/3 even if the 3/3 score was disagreed about between the Respondent witnesses. Ms Williams explained why she had scored the other candidate 3/3 and whilst the Claimant and Ms Ashley may disagree with that score, it is not necessarily indicative of anything other than the inherently subjective nature of the exercise undertaken.[32]Ms Ashley undertook the one to one interview. Through cross examination the Claimant sought to establish the following issues with the interview.(i) That Ms Ashley’s notes were not comprehensive(ii) That he had mentioned his Trade Union activities in some detail(iii) That he had given good examples to Ms Ashley(iv) That he had demonstrated significant relevant experience for the role as he had written or taught the Respondent’s CIPD course and managed two FTSE 100 HR teams in the past.[33]It is a fair observation that the Claimant remembered the interview more clearly than Ms Ashley. We are not surprised given the roles they were undertaking on that day and the number of interviews Ms Ashley has no doubt performed on that day and since. This interview was more important to the Claimant than it was to Ms Ashley.[34]Ms Ashley accepted that her notes were not very thorough. However she said that she would have orally given her feedback on him to Ms Williams prior to the calibration meeting at the end of the day.[35]She accepted that the Claimant mentioned his Trade Union activities however she says that she did not then mention it to anyone else as she did not consider it important or relevant to the recruitment process. She accepted that he had mentioned the BBC journalist Andrew Pearce and the documentary as well as accepting that he had fought against workplace injustice.[36]However, she felt that his examples of relevant experience did not sufficiently tie back to the work he was going to be undertaking for the Respondent or demonstrate why he wanted to work there. The Claimant put to her in cross examination that he had told her of his extensive experience running large HR teams, his research into the Respondent’s Trust Pilot scores and he gave a good account of his positive performance in the interview. Case No: 2204857/2023[37]Ultimately, the Claimant and Ms Ashley disagreed as to how well he had performed. Ms Ashley, to the best of her memory, scored him 2/3 because he had not tied his examples back to working for the respondent. Had he done so, she says, he may well have scored 3/3 as Mr Chamberlain, another candidate that day, had done.[38]There was considerable debate about the use of the word ‘passion’ and the Claimant’s apparent lack of demonstration of passion for working for the Respondent. Ms Ashley says that until she was asked for the purposes of these proceedings, she had not used the word passion (or lack thereof) about the Claimant. All other sources of her comments about him had not been run past her and did not use her words. Nevertheless, we do not consider that this word is as decisive or important as the Claimant does. With or without the word ‘passion’ it is clear that Ms Ashley did not think that the Claimant demonstrated that he wanted to work for the Respondent as much as someone needed to in order to give them the score of 3/3.[39]Again, what is clear is that this was a fairly subjective exercise and it was flawed. Ms Ashley did not manage to get through all the questions that she could have asked the Claimant. There were therefore some questions some candidates were asked that day that others were not. She also did not make particularly helpful or coherent notes. Nevertheless, we accept that her evidence was plausible because she did not seek to make up a keen memory of the interview. She accepted that she could not remember some elements. She was clear as to what she could and could not remember and she was clear that the Claimant’s Trade Union activities were not relevant to her view of the Claimant or the score that she gave her.[40]The Claimant put to Ms Ashley that whilst the members of his group had a 15 minute break and she had a break between interviews, she used that time to go back into her office and tell people about his trade union activities. She denied that. She said that she could not remember what happened in that break but as she was near her office she may well have gone back in. However the only time she discussed the interviews and interviewees was when she fed back to Ms Williams at the end of her day for the purposes of the calibration process.[41]We accept that evidence. Ms Ashley had no reason to share the Claimant’s trade union activities with colleagues as she found them unremarkable. Prior to this case she knew little about Blacklists and had no reason to tell Ms Williams or Ms Saxon or anyone else about the Claimant’s activities during this break. The Claimant has provided us with no plausible evidence that this occurred. He relies solely on issues with Ms Ashley’s credibility and their subsequent scoring of him to say that this therefore must have been based on a knowledge of the[42]The Claimant put to Ms Ashley that she had accessed his website and watched the videos he had produced and she denied it. He made this assertion based on his monitoring of those who watched it and said that one person from the same area that Ms Ashley lived had watched it a few days after my interview. Case No: 2204857/2023[43]On balance of probabilities we do not consider that it was Ms Ashley that watched these videos. We do not think that she considered the Claimant or his interview so important that she chose to spend her time looking the Claimant up online or watching his videos. This was one interview amongst many that Ms Ashley and her colleagues undertook as part of a rolling recruitment process and whilst it stood out to the Claimant, we do not consider that it did for Ms Ashley until the Claimant sought feedback and pursued this action against the Respondent.[44]Our overall assessment of the evidence we heard was that the Claimant was not that memorable to Ms Ashley in the scheme of her job. Her assessment of him was according to the totality of his interview and she did not consider that he should be scored 3/3. We accept that this was primarily due to the fact that his examples did not tie back sufficiently to the work he would do for the respondent even though he could demonstrate appropriate previous experiene. We accept that she did not consider that he demonstrated to her that he wanted to work for the Respondent as much as she was looking for in a candidate on that day.[45]We accept that this is what she told Ms Williams and that she did not tell Ms Williams or anybody else at the Respondent about the Claimant’s Trade union activities as she believed it to be irrelevant.[46]The Claimant’s final overall score after all three aspects of the recruitment day was 6. On the day, they made a decision to offer roles to everyone who scored over 7. They also offered the role to the only other person who scored 6. Their explanation for that was that the other person was a better fit but they could not provide an exact explanation of what that meant.[47]The Claimant has demonstrated to us that there were weaknesses in Ms Ashley and the Respondent’s recruitment methodology and we consider that below in making our assessment of the reason for their failure to offer him a job. However we have found, on balance, that Ms Ashley did not consider his trade union activities when scoring him 2/3 and Ms Williams and the others carrying out the final scoring did not consider his trade union activities because they did not know about it nor did anyone else involved in the decision making regarding offering the Claimant a job on this day.[48]The Claimant made considerable submissions about the fact that the Respondent offered a role to someone else who had the same overall score as him. He says that the difference in treatment suggests that there must have been a reason as to why he was treated less favourably than that person. We consider this issue in our conclusions below.[49]The Claimant also questioned Ms Ashley and Ms Williams about how they could not have offered him a role when, at the conclusion of that day they had not recruited enough people to fill the roles. Their responses were mixed. Case No: 2204857/2023[50]We also heard evidence about how they ran recruitment drives subsequent to this particular recruitment day which we will call ‘Coffee and chat days’. We did not hear much evidence as to how these recruitment days worked. There was a question as to whether Ms Ahsley had taken part in such a day and whilst she originally said she had not, it transpired that she probably had. It was not clear to us, other than as an issue regarding her credibility, as to how this was relevant to the evidence Ms Ashley gave about her decision making regarding the Claimant’s score.[51]It was put to Ms Williams that if such an informal process as a coffee and a chat resulted in job offers it seemed strange that the Claimant was not offered a role given his performance at the interview stage and his experience and was further indication that the failure to offer him a role must have been in relation to a prohibited list. Ms Williams refuted this stating that the ‘chat’ stage of these days was equivalent to an interview. The online applications and the Videos[52]The Claimant, having not secured the position through the interview process, applied for some roles online. His rejection letter for the above role had expressly suggest that he did so. He applied for 5 different roles as a Customer assistant in the café. It was the same role but with different shift patterns and hours. The Claimant realised, probably at around application 4, that he was being immediately rejected from the application process. He realised this because when looking at his online application portal, as soon as he pressed submit, the portal registered him as refused. This is recorded on the Respondent’s system as ‘regretted’.[53]It is not disputed by the Respondent that this occurred. We heard evidence from Mr Andrews that the reason for this was that, for any customer assistant role, the business operated a 6 month ‘cooling off’ period. This meant that if you ticked the box that you had applied for a role with the respondent in the last 6 months, when applying for that category of role, you were automatically given a score of 60 and this meant that you were automatically rejected. The Claimant does not accept this explanation as he said that this matter, when taken together with all the other issues with his applications, suggest the existence of a blacklist and that he has been treated badly in relation to that list. He considered that this was one of many issues with the process. He did not pretend that he knew for sure that this was not part of the Respondent’s programme – he however said that it was part of the overall illustration that he was painting for us. This was disputed by the Respondent and we address the matter in our conclusions.[54]The Claimant, having not had any explanation as to why this was occurring, thought that this immediate rejection was odd and decided to apply for roles using fake profiles. He carried out the following applications:(i) Contact Centre Advisor Mary Jones Julie Roberts Case No: 2204857/2023 Andrew Roberts(ii) Customer Assistant Roles Mary Jones Julie Roberts (x2) Andrew Roberts Jamie Roberts Emma Roberts[55]In making the above applications, none of the above applicants in any of their applications were immediately ‘regretted’.[56]We watched all of the videos provided. We summarise the relevant questions that they showed in the following table: Name Role applied for Have you applied for a job with us in the last 6 months? What happens? Claimant Customer assistant – Café - role 5x (different shift patterns) Yes ‘Instantly ‘ regretted’ But Receives automatic email each time Jane McNally Customer Assistant – café No Goes through Video 5 Contact Centre adviser No Goes through Mary Jones Café role Yes Under consideration Julie Roberts Customer assistant, café Yes Under consideration Julie Roberts Assistant clothing and Home Yes Under consideration Video 8 Andrew Roberts Customer Assistant Cafe Yes Under consideration[57]The Claimant identified a number of inconsistencies in the process that he went through compared to the way the computer system treated the fake persona’s applications. He identified that some individuals went straight through to under consideration despite applying for exactly the same role or roles as him. Case No: 2204857/2023[58]The respondent explained the difference in treatment as follows:(i) Customer assistant roles ask if you have applied for a role within the last 6 months. If you answer yes you are likely to be regretted (though see (iii) and (iv) below for further information).(ii) The Customer Adviser roles process does not ask that question and therefore you are likely to go through to ‘under consideration’ even if you have applied for a role in the last 6 months.(iii) If a candidate submits multiple applications then the multiple that is detected, will be ‘held’ until such time as a human being within the Respondent ascertains whether the application is a duplicate and whether the individual applicant intended it and wanted to apply for multiple roles.(iv) If a candidate has an application already on the system that is ‘Under consideration’ then the application will be ‘held’ as described at (iii) above regardless of how you answer the 6 month question until a human goes into the system and clears it.[59]We found Mr Andrews’ evidence on this point helpful. It tallies and explains all of the glitches identified by the Claimant. We accept that he has only given this evidence late and only in response to the Claimant’s witness statement. Had the Claimant not raised it in his witness statement, the Respondent would not have known that they had to address these issues in their evidence. Nevertheless, despite the lateness of the evidence, we consider that Mr Andrews’ account was plausible and helpful. He accepted that he could not explain all of the errors in the system.[60]The Claimant raised concerns regarding Mr Andrews’ expertise and suitability for giving evidence on this point both during cross examination and his written submissions.[61]We found Mr Andrews to be a helpful and clear witness who was able to explain the system which he had largely designed and was in charge of on a daily basis. We consider that he had appropriate expertise and was able to answer most if not all of the questions put to him about the system. We do not accept that Mr Andrews lacked the relevant knowledge or expertise. He did not have all the answers and behave like the smartest guy in the room as suggested by the Claimant in his submissions. He attempted to answer the questions put to him about a system which he knew and understood well.[62]We turn then to the inconsistencies and problems that the Claimant identified within the system. To consider these issues we watched the videos submitted, checked the order and timing of the applications and considered both the Claimant and Mr Andrews’ evidence to reach our factual findings.[63]The existence of the ‘Have you applied for a role within the last six months’ question explains why all of the Claimant’s personal café role applications were rejected. As they had been rejected, there was no reason for any subsequent application for any of the other roles to be ‘held’ as under consideration. There Case No: 2204857/2023 was nothing else on the system under his name or address to ‘clash’ with and therefore no human had to go into the system and check any of his applications before rejecting them.[64]Where the individuals who answered ‘yes’ to the 6 month question were put into ‘Under consideration’ they all already had a Customer Advisor role application that was labelled ‘Under consideration’ in the system. The Customer Advisor role did not automatically reject someone if they ticked ‘yes’ under the 6 month question so that went through. Then, when the next application was submitted, it was held as ‘under consideration’ until a human went in and checked and cleared the system.[65]The Claimant brought to our attention that this had not occurred though and at the time of the Tribunal hearing, the applications had not been cleared and rejected. Mr Andrews could not properly account for this but said that it was probably down to human error and a failure on the part of the person responsible for this recruitment process to check the ‘held’ applications in a timely manner.[66]We find that Mr Andrews’ explanations plausibly account for all of the differences between the way the Claimant’s applications were treated and the way the fake persona’s applications were treated. The Claimant says we ought not to accept those explanations particularly when they have only been provided by Mr Andrews in response to his evidence. He says that this makes them unreliable and created to explain the problems as opposed to reflecting the reality of the system. Whilst we understand the skepticism of the Claimant in this situation, as explained above, we nevertheless, on balance accept Mr Andrews’ evidence because we found that he had a thorough understanding of the system.[67]The Claimant asked a considerable amount of questions regarding the flaws in the reasoning behind the online applications blocking people in some circumstances and not others. Again, as with the recruitment day discussed above, the Claimant has established that not all of the Respondent’s online processes are without fault.[68]In addition to the evidence above, Mr Andrews informed us that there was no setting within the system to prevent any one person from applying for roles. i.e. that it was not possible to put someone’s name into the system as ‘forbidden’. There was the functionality to block previous employees who had been dismissed for theft however which suggested that blocking certain categories of people was possible. Mr Andrews said however that there was no category within the process to filter it according to Trade Union relations. He accepted that perhaps such a function would be possible to create but that any person doing that would have to ask him to do it and/or he would immediately be aware of it if they put it into the system. We accept that evidence. We have no reason to dispute Mr Andrew’s helpful and thorough account of the IT system. It was not a maze as suggested by the Claimant but clear to the extent necessary for our purposes. We found his answers clear and helpful and born out by the Case No: 2204857/2023 evidence that the Claimant provided us regarding the fake persona applications he videoed and his own application process.[69]Whilst the Claimant understandably queried why the system rejected him and not others, he had no evidence to put to Mr Andrews beyond the difference in treatment between him and the fake candidates, to establish that there was any tainting of the system regarding a Blacklist or knowledge of a Blacklist.
Conclusions
[70]It is not in dispute that the Claimant was not employed by the Respondent on 6 separate occasions. The first was for a part time Customer Services Advisor Role. The remaining applications were all for Customer Assistant roles in the café though they had different hours and shifts.[71]The Claimant asserts that all of his applications were rejected for a reason related to a prohibited list or a Blacklist. The List of Issues agreed with the parties suggests that we must first ascertain whether a prohibited list existed. There is not much case law on this point. The Regulations were introduced in 2010 and the mischief they were intended to counter was the use of industry wide lists such as those operated by Carillion (and others) in the construction sector. These lists were operated internally and by external agents to ensure that those with Trade Union links or feared Trade Union links were excluded from workplaces.[72]The definition of a prohibited list is set out at in Regulation 3(2) as follows: (2) A “prohibited list” is a list which—(a) contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and(b) is compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.[73]We note REJ Clarke’s observations in Wainright v Balfour Beatty Engineering Services Ltd and Ors (1601751/2015) brought by the Claimant which were as follows: “126…….. Mr Northall emphasised that, when defining a “prohibited list”, Regulation 3(2)(a) refers to “persons” in the plural, rather than “person or persons”. In my judgment, however, the provision should attract a purposive interpretation 127. I can see no reason in principle why a mentally reassembled list must, of necessity, contain a plurality of names. Were it otherwise, it would be lawful to blacklist one individual but not more than one individual. Certainly, I would not consider the point so clear that Mr Wainwright’s claim should be struck out. Secondly, even if I were wrong about the first point, I consider that it is within the scope of the Regulations for Mr Wainwright to contend that a refusal by Balfour Beatty to employ him simply because it recognised his name from a historic blacklist amounts to an actionable refusal for the purposes of Regulation 5 because it would still be “for Case No: 2204857/2023 a reason which relates to” that list. I refer, in this regard, to the point I made earlier about the Miklaszewicz case, as analysed in Elstone. To summarise, then, it is open to Mr Wainwright to contend that Balfour Beatty has refused him employment for a reason relating to a prohibited list that pre-dated 2 March 2010 and which no longer exists or, alternatively, to contend that it has refused him employment because the process of remembering that his name was on a historic list constitutes the mental reassembly of that list, even to the extent of being a list of one name. The effect, either way, is the same: a continuation of being blacklisted.[74]As a matter of principle we accept the premise that it is possible for a prohibited list to have only one name or that it is possible for an employer to treat someone badly in relation to a prohibited list simply because they know that their name was, at some point, on such a list for the same reasons outlined by REJ Clarke above. However we do not seek to make any definitive conclusions on this point as we think it is largely unnecessary in all the circumstances.[75]In this case, much as in the above case, it appears that the Claimant was relying on the existence of two possible lists. He appeared to assert that a list consisting of just him had been created by someone at the Respondent. Secondly that the Respondent’s knowledge of his previous presence on a historic Blacklist caused them to discriminate against him. We consider that the burden of proof is on the Claimant to establish the existence of any such list.[76]Addressing the first possible prohibited list. The Claimant did not definitively tell us who he says created this list. His case suggests that it must at least have originated with Ms Ashley as she was the person he says he told about his union and blacklisting activities. He suggested during cross examination that she then shared this information with Ms Williams and Ms Saxon and perhaps others in the office on the recruitment day. We found, on balance of probabilities, that she did not share that information with Ms Williams or anyone else at the Respondent. We reached this conclusion because she was not, we find, interested in or in any way influenced by the Claimant’s union activities. Ms Ashley considered the Claimant’s trade union activities to be irrelevant to her assessment of his capability in the interview. Her score of 2/3 was based on his answers to questions about what he could offer the Respondent. She did not then tell Ms Williams or anybody else within the Respondent about the Claimant’s trade union activities in the broadest sense i.e. his membership of a union or his previous presence on a Blacklist.[77]We find that the Claimant has not established, on balance of probabilities, that Ms Ashley or anyone at the Respondent compiled a list with a view to it being used by them or anyone else for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.[78]Any thoughts Ms Ashley may have had about the Claimant’s trade union activities were not, we find, considered with the purpose of discriminating against the Claimant. To be a prohibited list the Claimant must demonstrate more than simply that Ms Ashley had his name in her head at the same time as knowing that he was a trade union member or took part in trade union activities. He must demonstrate that she thought about his name with the purpose of Case No: 2204857/2023 treating him badly in relation to it. He has not established that. We have accepted her evidence that she gave his union membership little thought and that any thought she did give it was not negative nor with any purpose at all. We have also accepted her evidence that she did not tell anyone else about it within the Respondent including Ms Williams or any of the decision makers present at the recruitment day.[79]The Claimant has not provided us with any evidence that anyone else within the Respondent had created a list or knew about the Claimant’s previous presence on a list through some other medium than Ms Ashley informing them. We do not accept that the flaws in the Respondent’s recruitments processes demonstrate the existence of a list. The Claimant has pointed out flaws and differences in treatment but has not, in our view, demonstrated that a list compiled with the purpose of discriminating against people on it was created by anyone at the Respondent.[80]We therefore consider that the first prohibited list that the Claimant appeared to be relying upon did not exist either in the mind of Ms Ashley or anyone else within the Respondent or in hard or soft copy physical format.[81]The second possible prohibited list that the Claimant relies upon is the previous Blacklist that the Claimant was included on and that he has campaigned about it and brought a Tribunal claim about. He appears to contend that it was knowledge of his presence on and relationship to this earlier prohibited list that caused the Respondent to refuse him employment. The fact that the Claimant was previously Blacklisted is not in dispute.[82]The Claimant suggested that Ms Ashley knew about his previous Blacklist presence through him mentioning it during the interview or through her watching the videos on his website or ‘Googling’ him at some point during the process and finding reference to him in various articles. We have found that she did not Google him or look at his website and was unaware of the fact that he was on a Blacklist previously. She showed relatively little understanding of trade union activities and whilst she acknowledged that he told her he fought workplace injustice and that he was a union member, she did not demonstrate any appreciable understanding that this meant he was on a Blacklist or that she would consider treating him differently in any way if he was. As submitted by the Respondent in their written submissions, the Claimant must show not simply that he was treated less favourably because of Union activities, would render s 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 entirely redundant. The Claimant must show that she treated him less favourably because of his presence on the list.[83]We also find that she did not communicate the existence of the previous Blacklist nor the Claimant’s presence on it to Ms Williams so it was not considered by those making the decision as to whether or not to offer him the first role.[84]With regard to the online applications. We consider that nobody within the Respondent was aware of the Claimant’s presence on either possible Case No: 2204857/2023 prohibited list. They therefore did not alter the online system so as to reject the Claimant’s applications for a reason relating to a prohibited list.[85]Therefore in the absence of the first possible list actually existing or being known about by the decision makers within the Respondent any claim relating to that prohibited list must fail.[86]Further, we conclude that nobody within the Respondent who had any input into the Claimant’s in person or online application process knew about the Claimant’s actual or perceived presence on the historic blacklist and therefore any claim in relation to that prohibited list must fail.[87]In case we are wrong with regard to our analysis of the existence of a prohibited list. We have gone on to consider the two stage test of Regulation 5(3) and again, find it prudent to have due regard to (as he was then) REJ Clarke’s erudite summary of the test that a Claimant must establish to succeed in a claim under Regulation 5. We know that this is not binding on us but accept that this is a helpful summary and agree with the analysis therein. “138. I will also observe that the provision at Regulation 5(3) plainly mirrors the two-stage approach to the burden of proof that applies in discrimination cases. In essence, at the first stage, the tribunal would consider whether Mr Wainwright had proved facts on a balance of probabilities from which it could conclude, in the absence of an adequate explanation from Balfour Beatty, that Balfour Beatty had breached Regulation 5 – the so-called “prima facie case”. There would need to be some evidential basis upon which the tribunal could infer that Mr Wainwright was refused employment for a reason relating to a prohibited list. The tribunal could cast its net widely in this regard, which would extend to an examination of circumstantial evidence. At the first stage, the tribunal would be required to assume that Balfour Beatty had no adequate explanation for refusing him employment and therefore ignore any explanation it advances. This would only become relevant at the second stage where, if Mr Wainwright were to succeed in making out a prima facie case, the burden of proof would then shift to Balfour Beatty. The tribunal would be required to uphold Mr Wainwright’s claim unless Balfour Beatty proved that it did not breach Regulation 5. The standard of proof would again be the balance of probabilities. To discharge that burden, there would need to be cogent evidence that the Regulation had not been breached.”[88]It is here that the reverse burden of proof, similar to that of the Equality Act 2010 is used.[89]The Claimant was refused the first role. We do not think that this is sufficient for us to infer, in the absence of an adequate explanation that the Claimant was treated badly in relation to a prohibited list. He must produce something more to shift the burden of proof than simply point at a perceived injustice or unfairness. He has, we accept, demonstrated that the Respondent’s recruitment process was at times sloppy in terms of note keeping and scoring Case No: 2204857/2023 criteria which can inevitably then lead to a lack of transparency or accountability in decision making.[90]We also understand that the Claimant disagrees with their assessment of him and his skills and suitability for the role when compared to the other candidates who he appeared to view as inferior to him with regard to suitability. Nevertheless we do not accept that their subjective opinions of his performance are so at odds with his assessment of himself as to warrant any negative inference. Many others within the recruitment process were scored as he was in the different exercises i.e. 2/3 instead of 3/3 and many scored fewer points than him and were not offered the role.[91]There was one other candidate who scored the same as him and who was deemed to be a better fit and therefore was offered a role that day. It is possible that in the absence of any explanation, this situation could reverse the balance of proof and require the Respondent to explain why it preferred the other candidate who scored the same over the Claimant.[92]The Respondent’s explanation for this was that the other candidate was a better fit. That is not a particularly helpful explanation. Nevertheless, they also explained that their decision was not in any way based on the Claimant’s presence on any possible Blacklist because they did not know about it. In fact, these individuals, we have found, did not know about the Claimant’s trade union activities either as Ms Ashley was not in the room when the decision was taken. The reason why the Claimant was not given the job on this day was not related to a prohibited list because those making this decision did not know about the any such list or the Claimant’s relationship to any such list. It was not part of their decision making process. This claim must therefore fail as the Respondent has established that they did not treat him differently for a reason related to a prohibited list and cannot have done so when the decision makers did not know about any such list.[93]Turning then to the Online applications. We accept that the fact that the Claimant’s applications were treated differently to those of the fake personas was confusing. However Mr Andrews’ explanations for the various issues which the Claimant correctly identified as apparent differences were plausible. We have found his explanations, on balance, to be the genuine reasons for the differences in treatment between the Claimant’s applications and the fake personas’ applications.[94]All of the Claimant’s applications numbering 2-6 were rejected because he said that he had applied for a different role in the previous 6 months and that was something which precluded you from applying on their system for the café assistant role. This was not something specific to the Claimant but a blanket rule for that role. This was the reason for his rejection.[95]Further, for the avoidance of doubt, the computer system and those who programmed it had no knowledge of the Claimant or his presence on a prohibited list. It therefore cannot have been the reason for his treatment. Case No: 2204857/2023[96]For all those reasons, the Claimant’s claims are not well founded and must fail. Employment Judge Webster Date: 22 December 2023 JUDGMENT and SUMMARY SENT to the PARTIES ON 2 January 2024 .................................................................................. ............................................................................ FOR THE TRIBUNAL OFFICE Claim Nos 2207192/2020 & 2201368/2021 & 2206469/2021 EMPLOYMENT TRIBUNALS Claimant Respondent Mr Antony Savva v Leather Inside Out Heard at: London Central Employment Tribunal Before: Employment Judge Gidney Appearances For the Claimant: Not attending For the Respondents: Not attending RULE 49 JUDGMENT The written application dated 22nd November 2024 by the Respondent’s Chief Executive Officer to have their name anonymised from the Judgment with Reasons sent to the parties on 6th October 2923 is refused.[1]By a Judgment sent to the parties on 6th October 2023 the Claimant’s claims of detriment treatment for making public interest disclosures (‘PIDs’) was dismissed. The Claimant relied on 8 PIDs, of which 1 was said to have been made to the Respondent’s Chief Executive Officer (‘CEO’) and 2 were said to relate to the conduct of the CEO. Claim Nos 2207192/2020 & 2201368/2021 & 2206469/2021[2]Findings of fact were made in the Judgment, which named the CEO and other Officers of the Respondent. This was necessary for the following reasons: 2.1. To ensure that the Judgment was Meeke compliant; 2.2. To be consistent with the principle of open justice; 2.3. To be consistent with the overriding judgment; and, and 2.4. To ensure that the facts upon which the Judgment was based could be fairly understood.[3]No-one from the Respondent attended to give evidence at the hearing. The CEO was not a named party and did not attend. In respect of the PIDs raised against the CEO, we were unable to conclude that the allegations were true, based on the evidence before us, and we acknowledged that there could be an innocent explanation. However we did conclude that the Claimant had a reasonable belief that the allegations were true.[4]The CEO’s application for anonymisation of their name from the Judgment dated 22nd November 2024 itself contained personal identifying information of the CEO. On 19th December 2024 the Tribunal asked the CEO if she would prefer to rely on an application that was itself anonymised. On 2nd January 2025 the CEO confirmed that they would. The Tribunal wishes to apologise for the delay in getting this Judgment out, which was caused by limited Judicial resources.[5]The CEO’s application is primarily based on the assertion that the Claimant was misquoting the Judgment to damage the CEO. Rule 49: Privacy and restrictions on disclosure[6]Rule 49 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations (S.I. 2013/1237) (‘the Regulations’) state:(1) The Tribunal may, on its own initiative or on the application of a party, make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings so far as it considers necessary in the Claim Nos 2207192/2020 & 2201368/2021 & 2206469/2021 interests of justice or in order to protect the Convention rights of any person.(2) In considering whether to make an order under this rule, the Tribunal must give full weight to the principle of open justice and to the Convention right to freedom of expression.(3) Any order made under this rule may require: (a) that a hearing that would otherwise be held in public be conducted, in whole or in part, in private; (b) that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record; (c) that measures are to be taken to prevent witnesses at a public hearing being identifiable by members of the public; (d) that a restricted reporting order is in place within the terms of section 11 (restriction of publicity in cases involving sexual misconduct) or 12 (restriction of publicity in disability cases) of the Employment Tribunals Act; (e) that the name, address or other information of, or relating to, any person be redacted from a claim form, response form, witness statement or any other document in the proceedings.(4) Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing.(5) Where an order is of the kind mentioned in paragraph (3)(d), the order: (a) must specify the person whose identity is protected, (b) must specify the duration of the order, (c) may specify particular matters of which publication is prohibited as likely to lead to that person’s identification, and (d) may specify that it also applies to any other proceedings.(6) The Tribunal must ensure that a notice that an order has been made under this rule in respect of particular proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place.(7) ”Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998.[7]Regulation 14(1) of the Regulations requires the Lord Chancellor to maintain a register of all judgments (including written reasons) issued by Employment Tribunals. The contents of the register are made available for public inspection. Judicial proceedings are exempt from certain provisions of the GDPR. The specific exemption relevant to this case is found in paragraph 14 Claim Nos 2207192/2020 & 2201368/2021 & 2206469/2021 of the Second Schedule to the Data Protection Act 2018. It is an exemption from the right to be forgotten where that application of that right would be likely to prejudice judicial proceedings. I have therefore also considered this aspect when determining the application.[8]Rule 49 grants the Tribunal the power to make an anonymisation order so far as it considers it necessary: 8.1. in the interests of justice; 8.2. in order to protect the Convention rights of any person; or, 8.3. in the circumstances identified in section 10A of the Employment Tribunals Act 1996 (not relevant here).[9]Where an application is made in interests of justice, I have to balance the interests in maintaining what is known as the open principle of justice against the interests of the Applicant. The open principle of justice is the principle whereby tribunal proceedings are conducted in public and judgments are published. It operates to ensure that members of the public can understand those proceedings and to ensure that judicial decision making is open to public scrutiny.[10]Similar considerations apply where an application is made in order to protect the Convention Rights of any person. I have to balance the competing rights (none of which are absolute) that are relevant, which are usually an individual’s Right to respect for private and family life (Article 8) Freedom of Expression (Article 10) and the right to a Fair Trial (Article 6). The Article 6 right includes that the principle that a fair hearing is one that is conducted in public and is followed by a public decision.
Conclusions
[11]In this case, although I am sympathetic to the CEO’s position, the Tribunal does not consider that Rule 49 can be engaged on this occasion. The CEO’s issue is not with the contents of the Judgment. The Judgment makes it Claim Nos 2207192/2020 & 2201368/2021 & 2206469/2021 absolutely clear that the CEO was not a Respondent, the last single Respondent that remained was not present, and that the decision was based on the information available to Tribunal. The CEO acknowledges that the Tribunal did not make any finding that the CEO was guilty of any criminality but merely made a finding that it was reasonable based on what Claimant saw at the time, for him to have that belief. The Tribunal could not say, one way or the other.[12]The CEO’s concern is the fact that the Claimant is misrepresenting the Judgment but that is not a justification under rule 49 for anonymisation in our view. We cannot see that the principle of open justice is outweighed by the CEO’s convention rights or in the interest of justice on this occasion.