Mr V Evazzadeh v Troubador Properties Ltd: 2207604/2021 and others
EMPLOYMENT TRIBUNALS
Case No 2207604/2021
Between
Mr V EvazzadehClaimantTroubador Properties LtdRespondent
Before
Employment Judge A JamesIn person for claimantMr A Gunberg (instructed by lay representative) for respondentDate 21 December 2022
JUDGMENT
Following the hearing of submissions from the claimant and Mr Gunberg, and consideration of the ET1, the ET3 and other documents provided by the parties, the decision of the tribunal is that:(1) The application for interim relief (sections 128 and 129 Employment Rights Act 1996) is granted because it appears to the tribunal it is likely that on determining the complaint to which the application relates that the reason (or if more than one the principal reason) for the dismissal is that specified in s.103A Employment Rights Act 1996 (i.e. the making of a protected disclosure by the claimant).(2) The respondent is not willing, pending the determination or settlement of the complaint to reinstate the claimant in his previous role or re- engage him in another job. Therefore the tribunal orders that the claimant’s contract of employment will continue until the determination or settlement of the complaint.(3) The respondent shall in the meantime continue to pay to the claimant his pay and any other benefits that would normally be payable for working 8 hours on Sundays @ £11 per hour i.e. £88 per week, on the same basis as he was previously paid (i.e. weekly, 4-weekly or monthly, as the case may be) from 7 February 2022, on such day or days as such payment would normally be made if the claimant was working for the respondent. Case Number: 2207604/2021(4) The respondent shall also pay to the claimant the arrears of pay (for 8 Sundays @ £88 per day, total £704) due to the claimant for the period from the date of dismissal on 15 December 2021 to 6 February 2022 inclusive, by 28 February 2022. Written reasons have been requested and will be provided as soon as possible. The claimant intends to submit a further claim, following the receipt of an Acas Early Conciliation Certificate, in relation to those clams which have not yet been accepted by the tribunal for wages, holiday pay and protected disclosure detriment. That new claim will then be consolidated with this current claim. A preliminary hearing for case management purposes has been listed at 4pm on 25 March 2022 and the final hearing has been listed between 19 and 22 July 2022.
REASONS
[1]The claimant’s application for interim relief was heard on Friday 21 January 2022. Judgment was issued on 7 February 2022. The claimant’s application was successful. The respondent has requested written reasons. These are set out below.[2]The reasons are structured as follows. First, the issues for the hearing are set out. Second, the history of the claim. Third, the legal framework. Fourth, the background to the claim is set out, based on a summary assessment of the issues in light of the information placed before the tribunal by both parties. Fifth, the conclusions are set out in relation to the issues. A brief overall conclusion follows. The Issues for
The hearing
[3]The claimant applied for interim relief on the basis that the sole or principal reason for his dismissal was that he had made protected disclosures. In order to succeed in his application, he needed to demonstrate that he has a ‘pretty good chance of succeeding’ in that complaint at the final hearing (alternatively, that it is ‘clear cut’ that he will be able to succeed). This means establishing the following elements of a whistleblowing dismissal claim to that ‘pretty good chance of succeeding’ standard:3.1 that he made a disclosure to his employer (or other relevant person); and3.2 that the disclosure was of “information”; and3.3 that he believed that the information tended to show a s.43B Employment Rights Act 1996 factor; and3.4 that belief was reasonable; and3.5 that he reasonably believed the disclosure to be “in the public interest”; and3.6 that belief was reasonable; and3.7 that he was dismissed by the respondent; and finally3.8 that his making a protected disclosure(s) was the reason, or if more than one, the principal reason, for his dismissal. The history of the claim 2 The claimant was dismissed on 15 December 2021. The claim form was submitted on 22 December 2021. It included an application for interim relief. The claims for interim relief, ‘ordinary’ unfair dismissal and protected disclosure dismissal (s.103A Employment Rights Act 1996) have been accepted. The claim for ‘ordinary’ unfair dismissal is bound to fail because the claimant has less than two years’ service and it is proposed that it be dismissed at the preliminary hearing listed on 25 March 2022 (see below), subject to any objections from the claimant. The Protected disclosure dismissal claim can still of course proceed. 3 The claims for notice pay, holiday pay and protected disclosure detriment were rejected, because unsurprisingly, an ACAS Early Conciliation Certificate had not been obtained prior to the claim being submitted. If the claimant intends to proceed with those claims, ACAS early conciliation will need to be commenced and concluded, and a further claim form submitted. If the claimant does so, he should ask in the claim form that the second claim be consolidated with the first claim and quote the case number.[4]The respondent was told on 21 January that since a second claim is anticipated, a ‘holding response’ (i.e. a brief response) can be submitted in response to the first claim, with a view to consolidated grounds of resistance being filed and served, following receipt of the second claim.[5]At the conclusion of the hearing, a further case management hearing was listed for 4.00 pm on Friday, 25 March 2022. The final hearing was listed between 19 July and 22 July 2022. This was because an order for interim relief lasts until the claim is settled by the parties or determined by the tribunal. It was considered that an early listing was appropriate in those circumstances. Separate Notices of Hearing should have been received from the tribunal since then. The hearing[6]The respondent had asked for today’s hearing to be postponed as it was not aware of the hearing. The tribunal was informed that Mr Hardeling, who made the decision to dismiss, had an important prior family commitment. Mr Gunberg explained that whilst Notices of Hearing had been sent out in relation to today’s hearing, the tribunal had sent out a further letter to the respondent saying that they had been sent in error. The tribunal checked with Mr Gunberg that he was nevertheless content to proceed on 21 January. He confirmed that he was. Mr Gunberg confirmed that he had spoken with Mr Hardeling, and was confident that he was able to put forward the respondent’s defence to the application. Relevant Law Interim relief applications
Relevant Law
[7]The relevant parts of Section 129(1) Employment Rights Act 1996 provide: where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in ... section 103A, the tribunal is to order reinstatement, or if the employer is unwilling to accept reinstatement, make an order for continuation of the employee’s contract until the final hearing. (There is also an option of reengagement in another role if the employee consents to take what is offered). There is no provision for refund in the event of the employee not succeeding in his claim.[8]What is meant by “likely” to succeed was said in Taplin v C. Shippam Ltd (1978) ICR 1068 to be: a greater likelihood of success in his main complaint than either proving a reasonable prospect or a 51 per cent probability of success and that an industrial tribunal should ask themselves whether the employee had established that he had a “pretty good” chance of succeeding in his complaint of unfair dismissal.[9]This formulation was affirmed in Dandpat v University of Bath (2009) UKEAT/0408/09/LA, where it was said: there were good reasons of policy for setting the test comparatively high… if relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of proceedings: that is not a consequence that should be imposed lightly”.[10]In Ministry of Justice v Sarfraz (2011) IRLR 562 “likely” was said to mean a “significantly higher degree of likelihood” than “more likely than not”; further, that “'likely' connotes something nearer to certainty than mere probability” (paras 16 and 19). In Parsons v. Airplus International Ltd UKEAT/0023/16/JOJ, it was said that “matters were not sufficiently clear cut at that stage for [the judge] to have sufficient confidence in the eventual outcome to grant interim relief” (para 18).[11]The test to be applied in an application for interim relief is undoubtedly therefore a difficult hurdle for a claimant to get over. Nevertheless, that is the hurdle which must be surmounted by the claimant if he is to succeed in this application and the test the tribunal is bound to apply.[12]The tribunal is not to hear oral evidence during such a hearing, unless it directs otherwise – see Rule 95, Employment Tribunal Rules of Procedure 2013. The task of the judge hearing an interim relief application is, according to London City Airport v Chacko (2013) IRLR 610 (at para 23) to carry out “an expeditious summary assessment … as to how the matter looks to him on the material that he has” doing the best he/she can with the untested evidence advanced by each party.[13]The tribunal is not required to make findings or reach a final judgment on any point - see Parsons. As stated in that case at para 8: On hearing an application under section 128 the Employment Judge is required to make a summary assessment on the basis of the material then before her of whether the Claimant has a pretty good chance of succeeding on the relevant claim. The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself. In giving reasons for her decision, it is sufficient for the Judge to indicate the "essential gist of her reasoning": this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not [to] say anything which might pre-judge the final determination on the merits. Whistleblowing claims[14]To succeed in the claim of automatically unfair dismissal for making a protected disclosure, the claimant must establish that he made one or more protected disclosures.[15]Under section 43A Employment Rights Act 1996, a protected disclosure for the purposes of section 103A must be a “qualifying disclosure” as defined in section 43B: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—(a) That a criminal offence has been committed, is being committed or is likely to occur:(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject … (d) that the health and safety of any individual has been, is being or is likely to be endangered…[16]The claimant must therefore establish each of the following:(i) that he made a disclosure to his employer (or other relevant person); and(ii) that the disclosure was of “information”; and(iii) that he believed that the information tended to show a s.43B factor; and(iv) that belief was reasonable; and(v) that he reasonably believed the disclosure to be “in the public interest”; and(vi) that belief was reasonable; and(vii) that the claimant was dismissed; and finally,(viii) the claimant must establish that making a protected disclosure was the reason, or if more than one, the principal reason for the dismissal – section 103A.[17]To succeed in the application, the claimant needs to demonstrate he has a ‘pretty good chance’ of succeeding in relation to each of those eight elements of his claim.[18]In relation to a disclosure of information, the Court of Appeal gave the following guidance on section 43B(1) in Kilraine v London Borough of Wandsworth [2018] ICR 1850 per Sales LJ: “[30] I agree with the fundamental point made by [counsel for the appellant], that the concept of “information” as used in section 43B(1) is capable of covering statements which might also be characterised as allegations. Langstaff J made the same point in the judgment below…and I would respectfully endorse what he says there. Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other… [31] On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute “information” and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision… [35] The question in each case in relation to section 43B(1) (as it stood prior to the amendment in 2013) is whether a particular statement or disclosure is a “disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in sub-paragraphs (a) to (f)]. Grammatically, the word “information” has to be read with the qualifying phrase, “which tends to show [etc]” (as for example, in the present case, information which tends to show “that a person has failed or is likely to fail to comply with any legal obligation to which he is subject”). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1)… [36] Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.” (emphasis added)[19]In Eiger Securities v Kurshunova [2017] IRLR 115 (“Eiger”), the EAT held at §46 that: “… in order to fall within section 43B(1)(b) , as explained in Blackbay Ventures Ltd v Gahir [2014] ICR 747 , the tribunal should have identified the source of the legal obligation to which the claimant believed Mr Ashton or the employer was subject and how they had failed to comply with it. The identification of the obligation does not have to be detailed or precise but it must be more than a belief that certain actions are wrong. Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation. However, in my judgment the tribunal failed to decide whether and if so what legal obligation the claimant believed to have been breached.” Relevant Background[20]Bearing in mind the issues for the hearing as set out above, the contents of the documents considered (these were, the claim form; the tribunal correspondence; an email from the claimant to the respondent dated 7 December 2021; an email from the claimant to the respondent dated 15 December 2021; the claimant’s minutes of the meeting of 15 December 2021; and a WhatsApp screenshot dated 15 December 2021), answers to questions put the claimant and Mr Gunberg by the tribunal, and the submissions made, the relevant background to this application is found to be as follows.[21]It is to be noted however that none of what follows is established fact which binds any further tribunal considering this claim. It is open to a tribunal in due course to come to different conclusions on any of the matters set out below, having considered all of the relevant witness and documentary evidence, and having heard live evidence at the hearing. The claimant’s role[22]The claimant was employed from 16 June 2021 as a chef, on a zero hours contract, until his dismissal on 15 December 2021. The working hours were not specified. For the first few weeks, the claimant worked two days a week. He then came to an agreement that he would work one day a week, on Sundays. He normally worked from 2.30 pm to 10.30 pm. He received an hourly rate of £11 per hour.[23]The respondent employs about 35 people, on a mixture of full time and part time contracts. The claimant’s line manager[24]The claimant’s line manager was Dominic Silverside. He was not formally given the title of Head Chef until just before the claimant was dismissed. There is however no dispute that Mr Silverside was in charge of the kitchen in which the claimant worked. Up to nine people worked in the kitchen.[25]The claimant did not book off any formal holidays during his employment but he did take a few days off, including two days sick leave. He was not paid sick pay. The longest period when he did not work was a period of three weeks for a combination of sick leave and holiday. 5 December disagreement[26]The respondent says that there was an altercation between Mr Silverside and the claimant on 5 December 2021 which resulted in the claimant’s contract being terminated. Mr Gunberg understands that the claimant’s shift on Sunday 12 December had already been cancelled following the meeting on Sunday 5 December, as had the shift the claimant was due to work on 6 December. This is denied by the claimant. He says he was working on 5 December, his usual shift. There was a disagreement, originally caused by a kitchen porter leaving without notifying Mr Silverside. This meant that Mr Silverside’s behaviour was, according to the claimant, ‘even more challenging than usual’.[27]The claimant continued his duties to the end of the shift. When he had finished his duties, he went to get changed. Mr Silverside burst into the changing room as the claimant was getting ready to go home. Mr Silverside wanted the claimant to do what the kitchen porter had been meant to do. The claimant told Mr Silverside they were not his duties. Nevertheless, he still went back downstairs and carried them out before leaving. Mr Silverside told the claimant to ‘get lost, go away, never come back’. The claimant had heard Mr Silverside say similar things to other members of staff in the past and did not consider that he had been dismissed by the use of those words.[28]The claimant did not consider that Mr Silverside had the authority to appoint him or dismiss him. The claimant says that he was not booked to work a shift on Monday 6 December. Mr Silverside did not cancel the shift on Sunday 12 December 2021 on or about 5/6 December 2021. He says that the deletion of his shift happened on December 10, after his email of 7 December was sent. The reason for the claimant writing that email was Mr Silverside’s behaviour on 5 December.[29]The tribunal finds the account given by the claimant in relation to the incident on 5 December more credible at this stage. 7 December 2021 email[30]An email was sent by the claimant on 7 December to Mr Hardeling, Operational Manager, and others. This stated, amongst other things: “stocks are either missing or goes bad after long time of lying dormant in the Gallery; equipments are broken and dangerous to work with; there is no routine for preps and when it comes to quality, anything goes!”.[31]The reference to equipment is to broken tools such as graters with sharp edges. There were no oven gloves provided to handle the contents of a very hot oven which heats food to a temperature of over 300 degrees. This made the taking of trays out difficult - fabrics were used instead to handle them. Knives were said by the claimant to be in a dangerous shape because they are blunt; plus, any knife could be used for any purpose. If boiling a pot of water, for which there no lids, cling film had to be used to cover the pot. Taking the cling film off was said to expose people to extremely hot steam. Whenever Mr Silverside had been told about such matters, he had told the claimant that management did not want to pay for improvements.[32]The email also stated: He creates such a toxic and unpleasant environment that is absolutely unacceptable and needs to be addressed. … We are entitled to have a safe working place. …. It is a shame that such a great venue like Troubadour with such tremendous potential has such a poorly managed kitchen. It can and should improve as we go forward. But having an abusive member of staff, creating a toxic environment is the last straw and should be dealt with immediately. We are entitled to have a safe working place and the management is responsible to provide that.[33]Mr Gunberg was asked what he understood by reference to quality in the email of 7 December. He replied that it could be for example a reference to an allergen issue for example – which could result in an allergic reaction. Or it could be dates when food was stored were not checked, temperature checks were not done – you could read a lot into it. The S.43B factors[34]The claimant was asked whether he considered that any of the above amounted to a criminal offence being committed. The claimant answered yes, if bullying was a criminal offence. The tribunal took it from that response that the claimant did not reasonably believe that a criminal offence was being committed at that time.[35]As for a breach of a legal obligation, the claimant said that he thought his email showed that the following legal obligations were being breached:(1) the obligation to create a safe working environment for staff; and(2) public health and safety was being breached, since the restaurant is providing the public with food. Further, the claimant believed there was a breach of health and safety obligations towards him and his fellow kitchen workers. The public interest[36]The claimant was asked what the public interest was in these matters being raised. The claimant said that there are nine people working in the kitchen and all were affected by the matters he raised, not just him. About 35 to 40 people work for the business as a whole.[37]Further, the claimant said that given the nature of workplace, which is serving food to the public, the email implies danger to the public too as the restaurant is dealing with food.[38]Mr Gunberg did not accept there was a public interest in raising these concerns, save for the public interest in staff being safe. 10 December - WhatsApp group message[39]The claimant did not receive a response to his email. On 10 December he noticed that his 12 December shift had been deleted. He noticed this on the company’s portal, Home Base. All issues regarding shifts are reported on the portal. Usually employees can see their upcoming shifts. The claimant noticed that his Sunday 12 December shift had been removed. He therefore posted a message on the respondent’s Kitchen WhatsApp group. The group includes Mr Silverside, Mr Hardeling and Mr Gunberg.[40]The contents of the message were placed by the claimant in the CVP chat and were copied and pasted into the note of the hearing. The message reads: Hi colleagues I have sent an email to the managers of Troubadour about the mis-management of the kitchen. I am yet to receive a reply. In my email I have proposed a meeting for full kitchen team to discuss what I consider a chaotic, unsafe and unpleasant working condition. In it I have furthermore pointed out the incompetence of Dominic Silversides which is the underlying factor that has left the kitchen in such abhorrent disarray, let alone his erratic, abusive, infantile behavior which adds insult to injury. I brought this to the attention of the management after having failed to establish any meaningful conversation with Dominic. I hope the managers will initiate a meeting soon. I would like to encourage the rest of you to call for a all-staff meeting too if you share my concerns. I have been working on Sundays regularly in the kitchen. Now I have just noticed that Dominic has unilaterally deleted my shift for this week at his own whim and without any communication whatsoever. This is yet another sign of being unfit for the job of managing a kitchen: just deleting shifts, brushing problems under the carpet, hoping that bullying would work. It wouldn’t! He apparently does not have a clue about contracts and rules of employment. I will remain eager to hear what the management of the venue has to say. Meanwhile I hope others will also voice their concerns if they have any. Such toxic environment should not be tolerated. Regards Vahid Deletion of shift – S43B matters and public interest[41]The claimant thought the deletion of his shift could be a breach of a legal obligation, namely his employment contract. The claimant was asked what public interest there was in relation to his shift being deleted. He told the tribunal that his concern was that the same kind of treatment was taking place towards other colleagues. He also thought it was a collective matter, of public interest. The claimant was not aware of the implied term of trust and confidence when he wrote his email.[42]Mr Gunberg said that he was aware that there was a message but he did not read it. He told the tribunal that he thought that the claimant’s contract of employment had already been terminated by then. Mr Gunberg left the matter to Mr Hardeling, as Operations Manager to deal with, together with Mr Silverside as the Head Chef. Mr Gunberg was busy trying to ensure the restaurant survived, following the effect of the pandemic. He barely has time to look at text messages and there are about 4,000 unread emails.[43]As to the suggestion that he had already been dismissed, the claimant told the tribunal that nothing said at the meeting on 15 December (see below) suggested that this was what Mr Hardeling or Mr Silverside thought. 13 December – message from Mr Hardeling[44]The claimant’s message received the following response from Mr Hardeling. In the group WhatsApp chat he said he would contact the claimant to talk it over. He then separately messaged the claimant. The texts between them read: Hi Vahid, Hope you're well. Can you come in for a meeting on Wednesday? What time suits you? Kind regards Richard Hi Richard Good to hear from you. I can be there on Wednesday at around 11 – 11:30am. How is that for you? Regards Vahid Hi Vahid, I'll try to change my meeting I already have at 11 AM. Will confirm soon Hi Vahid, All good. I have postponed the other meeting. See you on Wednesday 15th of December 11 AM. Kind regards Richard 15 December meeting[45]The meeting duly took place on Wednesday 15 December 2021. When the claimant arrived, Mr Hardeling was there, as was Mr Gunberg and Ian Screeton, the Sales Manager. There was no discussion with them, they just said good morning and then they left to continue with their own work.[46]Mr Gunberg was asked whether there was any discussion with Mr Hardeling, prior to the meeting taking place. Mr Gunberg said he understood the meeting was essentially to find out if there could be a fruitful relationship with the claimant going forward, or whether they would try and find someone else. He thought that the key issues was about flexibility.[47]The claimant was asked what concerns were raised at the meeting on 15 December by the claimant about issues such as dangerous equipment, safety of staff, or safety of the public. The claimant confirmed that he did not raise any such concerns because he was not given the chance to do so. The meeting was very brief. It appeared to the claimant that Mr Hardeling was upset about the WhatsApp group message and had already made up his mind to get rid of him. According to the claimant, Mr Hardeling was not interested in hearing about any of the issues the claimant had raised in his 7 December email.[48]The claimant’s notes record that Mr Hardeling confirmed: Dominic’s role has not been clear but now he is officially the head chef in writing’. Richard said they are trying to improve kitchen and find more full-time staff who are flexible with their time. Richard also said that there were “complaints” about Vahid taking “breaks without notifying anyone”. … Vahid said that it was always crystal clear that he was available only one day a week on a fix rota. No concern with that arrangement has ever been expressed before. Vahid furthermore explained that this is first time that any “complaints” were expresses; never before such issue has ever been mentioned because it is not true. Vahid explained that the problems are twofold: the disorganization of the kitchen and Dominic’s unacceptable behavior such as deleting shifts without communication. Dominic said “it is my kitchen and I can decide who can work in it”. Vahid said “that is not acceptable. You are not the king. That is exactly the kind of behavior we are here to discuss”. At this point Richard got up from his chair and asked Vahid to leave. He was upset and emotional. Vahid ask him if he would calm down and sit down. He refused to continue the conversation. Dominic too said, “there is no need for conversation. The outcome of the meeting was already clear”. Vahid asked that Richard send him a notice of dismissal in writing. Richard said “there is nothing to write”. Email to senior management team after the meeting[49]The claimant prepared his note of the meeting immediately after he left. He emailed the notes to the management team so they had the chance to respond. His covering email sent the same day states: Hi Andreas I am addressing this to you in good faith as it is your signature that is under my contract. I had an unproductive and disappointing meeting with Richard today at the unarranged presence of Dominic. See the minutes. The problem in the first place began by Dominic thinking that he could fire me on the spot. I told him he cannot, without due process. Richard tried to do the same. I have asked him to give me a letter of dismissal. He seems to be trying to refuse to do so; at least he did not confirm whether he would or wouldn't. It is at your discretion to dismiss employees if you wish but are obliged by law and the letter of my contract to notify me if you want to terminate my employment. Look forward to hear from you.[50]The claimant accepts that he was not expressly told that he had been dismissed. The word used was ‘leave’. Given the context however, he assumed he had been asked to leave permanently. He did not receive a reply to his email of 15 December. He was not told that he was mistaken and that he had not been dismissed. Further, on 15 December 2021, the claimant was removed from the Kitchen WhatsApp Group by Mr Silverside. Evidence of that was provided by the claimant during the hearing.[51]The tribunal accepts, for the purposes of this hearing, that the issue of flexibility had not previously been raised with him, prior to the meeting. Nor had the allegation that he was taking unauthorised breaks.[52]Mr Gunberg accepts that he did not respond to the email. At the time, nearly 50 per cent of staff were unavailable due to Covid and Mr Hardeling and he were covering shifts on the floor of the restaurant rather than looking at and responding to emails. Conclusions on the application[53]In considering whether or not the claimant has a ‘pretty good chance’ of establishing each of the eight elements of a whistleblowing dismissal claim identified above, this decision deals first with the protected disclosures, and second with the reason for dismissal. Protected disclosures[54]The information relied is set out in the email of 7 December and the WhatsApp message of 10 December. The email states: ‘equipments are broken and dangerous to work with; there is no routine for preps and when it comes to quality, anything goes! … But having an abusive member of staff, creating a toxic environment is the last straw and should be dealt with immediately. We are entitled to have a safe working place and the management is responsible to provide that.’[55]In addition, there is reference in the 10 December message to alleged abusive behaviour by Mr Silversides.[56]There is no dispute that these disclosures were made to the claimant’s employer (issue 3.1). The tribunal is satisfied that the claimant has a pretty good chance of establishing that fact.[57]The tribunal concludes that taken in context, the claimant was not just making mere allegations without any factual content (Issue 3.2). He makes reference to dangerous equipment, to issues with quality, and to an allegedly abusive member of staff (Mr Silverside). The tribunal is satisfied that the claimant has a pretty good chance of establishing that he disclosed information. That judgment is reinforced by Mr Gunberg’s expressed understanding, as a manager of the respondent, as to what the issue regarding quality could entail.[58]As to issue 3.3, the section S.43B Employment Rights Act 1996 matters, the tribunal concludes that s.43B (a) (i.e. that a criminal offence has been committed etc) is not engaged. As to (b), breach of a legal obligation, the respondent is under a legal duty to provide a safe place of work. (d) is also potentially engaged for the same reason, ie, that the health and safety of any individual has been endangered etc. The tribunal is satisfied that the claimant has a pretty good chance of establishing that. The information suggests that both Mr Silverside’s behaviour and his alleged failure to properly manage the kitchen means that potentially, the respondent was in breach of its duty to provide a safe place of work for kitchen staff, and/or that their health and safety or the health and safety of users of the restaurant were being endangered.[59]As to a reasonable belief that the information disclosed tends to show one or both of those things (Issue 3.4), again, the tribunal is satisfied that the claimant has a pretty good chance of establishing that. The claimant’s subjective belief in that appears to the tribunal to be a reasonable one.[60]As for public interest (Issue 3.5), it is apparent that the claimant believed that it was not just his health and safety that was being endangered, but the health and safety of all of the nine or so staff working in the kitchen; and possibly, other members of the 35 or so staff working for the respondent too. In the tribunal’s judgement, the claimant has a pretty good chance of persuading the tribunal that nine staff amounts to a section of the public. Further, in the tribunal’s judgment, there is a public interest in the health and safety of customers. The tribunal is therefore satisfied that the claimant has a pretty good chance of establishing Issue 3.5.[61]As for Issue 3.6, a reasonable belief in the public interest raised by the allegations, the tribunal concludes that the claimant has a pretty good chance of establishing that. Again, the claimant’s subjective belief in the public interest appears to the tribunal to a reasonable one.[62]The tribunal is less convinced by the information in the 10 December message, referring to the claimant’s shift being deleted. It is accepted that could amount to a breach of contract, and therefore a breach of a legal obligation, and the claimant’s belief in that is reasonable. However, the tribunal concludes that the claimant does not have a pretty good chance of establishing that he reasonably believed that there was a public interest in raising that particular matter. That is not to say that the tribunal is concluding that he cannot succeed in relation to that disclosure as well; just that at this stage, on the basis of the information before the tribunal, that the tribunal concludes that the claimant does not have a pretty good chance of doing so.[63]In summary, in relation to the issues relating to whether or not protected disclosures were made, the tribunal concludes that the claimant has a pretty good chance of establishing that, in relation to the contents of the 7 December 2021 email quoted above and the reference to abusive behaviour in the 10 December 2021 message.[64]Issue 3.7 is whether the claimant was dismissed. On the basis of the information that has been provided to the tribunal, and further, on the basis that the claimant’s dismissal by the respondent does not appear to be in dispute, the tribunal concludes that the claimant has a pretty good chance of establishing that he was dismissed. Further, that the dismissal took place on 15 December, not 5 December as suggested by Mr Gunberg. That may have been his understanding, but on the basis of the information before the tribunal so far, including that the claimant was not removed from the WhatsApp group until after the meeting on 15 December; that his shift does not appear to have been cancelled until after the 7 December message was sent; and no notification or indication of dismissal was sent to the claimant between 5 and 15 December 2021; the tribunal considers that unlikely.[65]The final issue, 3.8 is the reason for the dismissal. At the meeting on 15 December, issues were raised about the claimant taking unauthorised breaks, which appear not to have been raised with him before. An issue was raised in relation to ‘flexibility’, which again had not been raised with him before. The agreement as that the claimant work one day a week, on Sundays, and there appears to have been no suggestion previously that was causing any problems for the respondent.[66]Whilst it is understandable that the respondent may have been concerned about the contents of the 10 December WhatsApp message, that has to be seen in the context of the claimant raising serious health and safety issues with the respondent, which did not appear to him to be being taken seriously. Instead, his shift was cancelled. The tribunal is far from convinced that the WhatsApp message would provide a reason for the claimant’s summary dismissal on 15 December, without any prior warning. Further, the messages sent to the claimant by Mr Hardeling on 13 December 2021, prior to that meeting, did not in any way suggest that the claimant’s employment was at risk, for any of the purported issues raised on 15 December.[67]In circumstances in which the tribunal is not at all convinced by the explanation put forward by the employer, the tribunal concludes that the claimant has a pretty good chance of succeeding in persuading a tribunal at the final hearing of his claim that the reason for his dismissal, or if more than one, the principal reason, was the protected disclosures contained in the 7 December 2021 email and 10 December 2021 WhatsApp group message. Overall conclusion[68]The claimant’s application for interim relief succeeds for the reasons set out above. Mr Gunberg was asked whether in the circumstances the respondent would be willing to ask the claimant to work for the respondent. Mr Gunberg stated that would cause difficulties because they had already employed somebody else to cover his work. Not did re-engagement appear to be a realistic possibility. In those circumstances, it appears to the tribunal to be just to order that the claimant’s employment be continued, until the final hearing, or until the claim is otherwise settled or resolved. Since the tribunal acknowledges that this means that the respondent will have to continue to pay the claimant until that time, a final hearing date has been set, together with a case management hearing, to check the progress of the claim by 25 March 2022.[69]It is perhaps worth repeating that none of the background set out above will bind the Employment Tribunal at the final hearing of this claim. Further, the fact that the claimant has succeeded in his interim relief application, does not mean that he is more likely than not to succeed in his claim in due course. Nor does it inevitably mean that the respondent is likely to lose. The judgment at the final hearing will depend on the witness and documentary evidence presented to the tribunal at that stage, and the legal arguments made by or on behalf of both parties.[70]Finally, it appears to the tribunal that the value of the claimant’s claim is potentially limited, because he usually only worked one day a week, and was paid a relatively modest hourly rate. There would appear to be some commercial advantage to both parties in resolving their differences sooner rather than later. Unless and until that happens, the tribunal will do what it can to ensure that the claim is progressed towards a final hearing as soon as reasonably possible.
Relevant Law
[1]The claimant’s claim for unlawful deduction from wages is dismissed having been withdrawn by the claimant.[2]The claimant’s claim for unpaid accrued holiday pay is dismissed having been withdrawn by the claimant.[3]The claimant’s claim for wrongful dismissal is well-founded and succeeds.[4]The respondent is to pay to the claimant a sum of £82.28 in relation to the successful wrongful dismissal claim. This is a gross figure from which the respondent should make deductions for tax and National Insurance as appropriate.
Relevant Law
[1]The complaints to be decided by the Tribunal, both of which are resisted by the Respondent are:1.1 Automatic unfair dismissal (protected disclosures).1.2 Detriment for making protected disclosures.[2]The issues in the complaints are as follows:2.1 Did the Claimant make a protected disclosure or disclosures? He relies on the following:2.1.1 Oral disclosures to Mr Gunberg, Mr Silversides and Mr Jenei during June to November 2021.2.1.2 Oral disclosures to Mr Silversides during the period November to 5 December 2021.2.1.3 An email dated 7 December 2021.2.2 When was the Claimant dismissed? The Claimant says he was dismissed on 15 December 2022 by Mr Hardeling. The Respondent says that he was dismissed on 5 December 2021 by Mr Silversides.2.3 Was the reason or the principal reason for the dismissal that the Claimant had made a protected disclosure or disclosures?2.4 Did the Respondent do the following:2.4.1 Fail to act on the email of 7 December 2021.2.4.2 Dismiss the Claimant in a deliberately hurtful and offensive manner.2.5 If so, did those acts amount to detriments?2.6 If they did, were they done on the ground that the Claimant had made a protected disclosure or disclosures? Procedural matters[3]Employment Judge Sullivan has previously issued a judgment dismissing complaints of unlawful deduction from wages and failure to pay holiday pay, and holding that the complaint of breach of contract (non-payment of notice pay) was well founded.[4]At the outset of the hearing an issue arose as to an addendum witness statement that the Claimant wished to use. Ms Borzych objected to this, stating that this had been received on 27 October 2022, and so only a few days before the hearing. The Claimant said that he had sent the addendum to the Respondent’s general inbox in August, but had not copied in Ms Borzych (as he had been doing previously when corresponding about the claim) as she had asked him to stop doing so. Ms Borzych aid that she had asked the Claimant to stop harassing her with long emails.[5]After further consideration Ms Borzych agreed to the hearing proceeding with the Claimant being able to rely on his addendum statement.[6]At the commencement of the second and final day of the hearing the Claimant pointed out that he had previously (also on 27 October 2022) applied for a deposit order against the Respondent, and that this had not been adjudicated upon by the Tribunal. The Employment Judge said that pausing to determine this would derail the hearing as there still remained completion of the Claimant’s evidence, the Respondent’s evidence and submissions, even assuming that judgment would be reserved. The Claimant did not pursue the point. Evidence and findings of fact[7]The Tribunal heard evidence from the following witnesses:7.1 The Claimant, Mr Evazzadeh.7.2 Mr Dominic Silversides, Acting Head Chef.7.3 Mr Richard Hardeling, General Manager[8]The Claimant had prepared a bundle of documents and page numbers in these reasons refer to that bundle.[9]The Respondent operates the hospitality premises known as The Troubadour. The Claimant has his own bread-making business. In April 2021, when the Respondent was preparing to reopen the Troubadour after lockdown, the Claimant had some discussions with Mr Gunberg of the Respondent about the possibility of using the latter’s kitchen for baking bread for his business. Subsequently the Claimant saw an advertisement for a pastry chef at the Troubadour, and he contacted Mr Gunberg again.[10]Ultimately it was agreed that the Claimant would be employed as a chef under a zero hours contract and would be entitled to produce some of his own baked goods for sale using the Respondent’s equipment. Mr Gunberg signed the contract on behalf of the Respondent.[11]The Claimant started work on 23 June 2021. After a while a pattern was agreed on whereby he worked a full shift once a week on Sundays.[12]In paragraph 5 of his witness statement the Claimant said that from the outset he raised concerns on many occasions with Mr Gunberg, Mr Silversides and Mr Jenei about the “disorganised, inadequate and dangerous state of the kitchen” and about the behaviour of Mr Silversides (this last point being of less concern as Mr Silversides did not work on Sundays at this time). In paragraph 6 the Claimant stated that by November 2021 Mr Silversides was working on Sundays, meaning that they came into contact, and that he communicated his concerns, which Mr Silversides dismissed with unacceptable excuses, or which he blamed other managers. The Claimant also said that Mr Silversides’ behaviour worsened at this time and that “we had bumped into disagreements each time we met on my regular Sundays”.[13]In his oral evidence the Claimant identified the following particular complaints made orally:13.1 To Mr Jenei, that the pizza oven was not installed properly; deep fryers were put in and out of the oven; and that a fridge or fridges leaked.13.2 To Mr Gunberg, that the combi oven was not cleaned properly.13.3 To Mr Silversides, that the handle of the cheese grater was broken, leaving sharp edges, and that the fridges leaked.13.4 To all three, that there were no paring knives.[14]When cross-examined about this aspect, Mr Silversides said that he recalled the cheese grater and that this was replaced. He also said that he accepted that the Claimant questioned “certain things”, although the only other one he could recall was the pizza trays, which the Claimant said would warp in the oven. Mr Silversides said that he could not see any danger in that. He did not recall any issue about fridges.[15]In answer to cross-examination about this aspect, the Claimant said that the responses given to his concerns varied from person to person and from time to time. He clearly regarded Mr Silversides as the most unhelpful of the three managers on this point.[16]The Tribunal accepted that the Claimant raised the issues described above. The only other evidence on the point, Mr Silversides’, did not amount to a denial that the Claimant had raised these matters, but rather to an acceptance that he did raise issues, plus an inability to remember what all of them were.[17]The Claimant attended for his usual shift on Sunday 5 December 2021. Mr Silversides’ evidence was that the Claimant did a number of things that displeased him. He said that the Claimant clocked in early but was late arriving at his work station; that on arrival he made some food for himself and ate it; that he took a break without asking; that he made derogatory remarks about food prepared by others; and overcooked some pastry, having ignored Mr Silversides’ instruction about the temperature at which to cook it.[18]The Claimant did not directly address events on 5 December 2021 in his witness statement. When cross-examining Mr Silversides, the Claimant put it to him that he was making up the allegation of arriving late; that there was nothing unacceptable about eating at work; and that he disputed taking an unauthorised break. Mr Silversides in turn disputed all of this. The Tribunal considered that it was not necessary to determine the merits of any of these matters: the relevant point is that we found that (whether justifiably or not) Mr Silversides became annoyed with the Claimant during the day.[19]It was common ground that at the end of the shift on Sunday 5 December 2021 an argument took place between Mr Silversides and the Claimant. There was a degree of agreement overall about what was said, although there were some potentially significant differences.[20]The kitchen porter had unexpectedly left the restaurant earlier than expected during the shift. Mr Silversides said, and the Tribunal found, that he was annoyed about this at the time (although he subsequently learned of the reason for this and accepted that it had been justified). Once the restaurant had closed, the Claimant was about to leave to go home, when Mr Silversides asked him to help with the clearing up and closing process (something that the kitchen porter would usually have done).[21]There was no dispute that the Claimant in fact agreed to help Mr Silversides, but in their evidence, each accused the other of being badtempered at this time. Mr Silversides said in paragraph 15 of his witness statement that the Claimant was reluctant to assist and proceeded to act in a ”moody aggressive manner”. The Claimant did not address this occasion in his witness statement, but in oral evidence said that Mr Silversides was complaining about the situation and saying that he did not have to do this. The Tribunal did not find it necessary to decide who “started it”. The relevant point is that it was agreed that an argument developed.[22]The Claimant’s account was that Mr Silversides asked him about working the following day (Monday) and he replied that he had previously said that he could not do this. (Mr Silversides’ evidence was that they had earlier agreed that the Claimant would work on the Monday). Mr Silversides then told him to leave and never come back. The Claimant replied with words to the effect of “you are not my employer”. Mr Silversides then said that he was sorry and that he would call the Claimant the next day, when they could talk.[23]Mr Silversides’ account was that the Claimant became angry and said that Mr Silversides was not his manager and could not tell him what to do. Mr Silversides asked him to leave, meaning leave for the night, and that he would contact him the next day. The Claimant became angrier, repeated that Mr Silversides was not his manager, and said that he would not leave. Mr Silversides told the Claimant to leave, and he replied that he would not come in the next day. Mr Silversides then told the Claimant to leave and not come back. When cross-examined, Mr Silversides denied apologising and saying that they would speak the next day after telling the Claimant to go and not come back, and said that when he used those words he meant to terminate the Claimant’s employment. He said that, as Head Chef, he had authority to do that.[24]The Tribunal concluded as a matter of probability that the exchange ended with Mr Silversides saying that the Claimant should go and not come back, and that he did not subsequently apologise or say that he would speak to the Claimant the next day. We concluded this for the following reasons:24.1 It was unlikely that Mr Silversides would have changed his mind about telling the Claimant to go, given the issues that had arisen in the course of the day and the terms of the argument between them.24.2 Mr Silversides did not in fact speak to the Claimant the next day.24.3 Shortly after closing the premises Mr Silversides sent a WhatsApp to Mr Hardeling at page 32 which read “had a bust up with Vahid [the Claimant] not good” but did not mention having apologised or any plan to speak to him the next day. Mr Hardeling also gave evidence of a conversation that night which he did not remember very well, but in which Mr Silversides told him what had happened, and as a result of which he thought “it was his decision”, which the Tribunal considered supported the proposition that Mr Silversides had decided to dismiss the Claimant.24.4 The Claimant’s email of 15 December 2021 (referred to below) asserted that Mr Silversides “tried” to dismiss him, presumably referring to this occasion, without suggesting that he retracted this.[25]The Claimant put it to Mr Silversides that he was just upset and that he did not mean to dismiss him. Mr Silversides disagreed, saying “I meant to terminate your employment”. The Tribunal found that Mr Silversides meant to dismiss the Claimant and that the Claimant understood this, as demonstrated by his email of 15 December 2021. The Tribunal also found that the Claimant’s reference to Mr Silversides having “tried” to dismiss him reflected his assertion, maintained at the time and in the hearing, that he did not have the authority to do that.[26]As to the last point, the Tribunal found that Mr Silversides had authority to dismiss the Claimant. Although the Claimant asserted that he did not, there was no evidence that suggested this. To the extent that the Claimant relied on Mr Gunberg having signed his contract, the Tribunal was satisfied that this was of no significance. Mr Hardeling’s evidence was that he was responsible for “hiring and firing” front of house staff and Mr Silversides was responsible for those in the kitchen. The Tribunal saw no reason to doubt this. One would expect the head chef, or acting head chef, to have that responsibility.[27]There was an issue about whether the Claimant appeared on the rota for Sunday 12 December 2021. He maintained that he had been shown on the rota, and that at some time between 5 and 12 December the entry was erased. Mr Silversides maintained that he had never appeared on the rota for that day. The Tribunal concluded that this made little difference either way: not putting the Claimant on the rota, or removing him from it, could both be consistent with his having been dismissed.[28]Having decided that Mr Silversides dismissed the Claimant on 5 December 2021, the Tribunal considered his reason or reasons for doing this. As explained above, the Tribunal found that Mr Silversides had been becoming annoyed with the Claimant during the course of the day. They then had what amounted to a row while clearing up and closing the venue at the end of the evening. The Claimant challenged Mr Silversides by saying that he was not his manager, or not his employer. The Tribunal concluded that the immediate reason why Mr Silversides dismissed the Claimant was the row that they were having, against the background of the ways in which the Claimant had annoyed him during the day. Essentially, the reason why Mr Silversides dismissed the Claimant was because he was angry with him because of the events of that particular day.[29]The Tribunal asked itself whether the previous issues the Claimant had raised about equipment and practices within the kitchen played any part in Mr Silversides’ decision to dismiss him. We found that the Claimant’s raising of these issues probably did not please Mr Silversides, but there was no evidence of his wanting to remove him because he raised them. It is also the case that on 3 February 2022 there was an unannounced inspection of the venue by the local authority’s Environmental Health Officer, which produced a grading of 4 on the scale of 0 – 5, which is rated “good”. Unless there had been a significant improvement between December and February, Mr Silversides would not have had reason to be greatly worried about standards in the kitchen around the time of the Claimant’s dismissal. We concluded that the Claimant’s raising of issues about the kitchen had little, if any, influence on his dismissal.[30]The Claimant did not arrive with a view to doing a shift on 6 December. On 7 December 2021 he sent an email at page 4 to Mr Hardeling, Mr Gunberg and Ms Borzych, blind copied to Mr Jenei. In this he wrote: “It has been almost half a year since I have begun working in the kitchen at Troubadour. I very much enjoy working at Troubadour but I do not like nor approve of the way the kitchen is mismanaged by Mr Dominic Silversides. So I have decided to the raise the issue with you in writing after several failed attempts to have any meaningful conversation with Dom “Dominic is erratic, abusive, disorganised, incommunicable and unpleasant. He is constantly irritable, totally messy, throws objects around in the kitchen……………. Furthermore he neither has nor provides any overview whatsoever of the kitchen: stocks are either missing or goes bad after long time of lying dormant in the gallery; equipments are broken and dangerous to work with; there is no routine for preps and when it comes to quality, anything goes! And to add insult to injury he conveniently finds it appropriate to blame everyone else for his own mistakes………”[31]Mr Hardeling’s evidence about when he read the email of 7 December was somewhat uncertain. At first he said that he probably read it after the Claimant had sent the WhatsApp message referred to below (i.e. on or after 10 December). Then he said that he probably opened it before or after seeing the WhatsApp message. Ultimately, the Tribunal considered that the sequence in which Mr Hardeling read these made little difference to the issues to be decided.[32]On 10 December 2021 the Claimant sent a WhatsApp message (at page 18) to the staff group which read: “Hi colleagues. I have sent an email to the managers of Troubadour about the mismanagement of the kitchen. I am yet to receive a reply. In my email I have proposed a meeting fo…[the rest of the message being missing from the copy in the bundle].[33]An exchange of messages then took place between Mr Hardeling and the Claimant as follows: [Mr Hardeling] Hi Vahid. We have been super busy this week and I am sorry we haven’t replied to you. Please give a call tomorrow and I will have chat with you. [Claimant] Dear Richard, thanks for your message. I appreciate you’re being busy. I wished I’ve had at least received an acknowledgment of receipt the email. I look forward to speak to you soon, albeit I’d prefer a meeting in person and also response to my email. All the best, V.[34]A meeting took place on 15 December 2021. It was not clear to the Tribunal how this meeting came to be arranged. The Claimant referred in his witness statement to emails passing between him and Mr Hardeling on 13 and 14 December, but these were not before the Tribunal. In his oral evidence Mr Hardeling said that he meant to speak to the Claimant at some point, and when asked what about, he referred to the “text”, meaning the WhatsApp message to the staff group. When asked by the Employment Judge what was the point of the meeting, Mr Hardeling replied “he had been sacked and needed to collect his belongings”.[35]Although there was no official note taker at the meeting, both the Claimant and Mr Hardeling produced written notes of it, at pages 6-7 and 34-35 respectively. As with the argument on 5 December, there was a considerable degree of common ground between the parties, and a measure of difference.[36]In addition to the Claimant and Mr Hardeling, Mr Silversides was present from an early point in the meeting. Mr Hardeling’s note recorded that the meeting began with reference to the email of 7 December and that he said that the WhatsApp to the staff group had been inappropriate. It was agreed that the meeting started with some discussion of what the Claimant noted as “shortcomings” and Mr Hardeling as points of improvement for the kitchen. Both notes recorded that the Claimant said that the kitchen was disorganised and Mr Silversides’ behaviour was unacceptable, giving the example of deleting shifts without communication.[37]The Tribunal found that the meeting became more heated as it went on. Mr Silversides said that it was his kitchen and that he decided who worked in it, or that he did the rota (meaning the same in either case). It was agreed that the Claimant said to him “you’re not the king”. Mr Hardeling’s account was that he then said that the meeting was over. It was agreed that at about this point, Mr Hardeling stood up (he said in order to leave) and the Claimant told him to sit down. There was also agreement that the Claimant asked for a notice of dismissal in writing, and Mr Hardeling said that there was nothing to write. The Claimant then collected his belongings from his locker and left.[38]The Tribunal found that Mr Hardeling’s primary purpose in arranging to meet the Claimant was, as he said, to speak about the WhatsApp message to the staff group, about the email of 7 December, and about the situation in the kitchen more generally. Mr Hardeling would not have wanted any further messages like the WhatsApp or the email to be sent, and so would have wanted to have a discussion with the Claimant. This was consistent with how the meeting began, on both accounts. We found that it was incidental that the Claimant also needed to collect his belongings.[39]The Tribunal also found that, by the time this meeting took place, Mr Hardeling was aware that Mr Silversides had dismissed the Claimant on 5 December, and accepted that he had been entitled to do that. This was consistent with both accounts of the Claimant asking for notice of dismissal in writing and Mr Hardeling saying that there was nothing to write – because the dismissal had already occurred on 5 December.[40]Following this meeting the Claimant sent an email on 15 December 2021 to the Respondent’s general email address, copied to Mr Gunberg (being addressed to him personally in the body of the message) and Ms Borzych and blind copied to Mr Jenei. This read: “Hi Andreas. I am addressing this to you in good faith as it is your signature that is under my contract. I had an unproductive and disappointing meeting with Richard today at the unarranged presence of Dominic. See the minutes. The problem in the first place began by Dominic thinking that he could fire me on the spot. I told him he cannot, without due process. Richard tried to do the same. I have asked him to give me a letter of dismissal. He seems to be trying to refuse to do so; at least he did not confirm whether he would or wouldn’t. It is at your discretion to dismiss employees if you wish but are obliged by law and the letter of my contract to notify me if you want to terminate my employment.”[41]The Tribunal found that this email reflected the Claimant’s beliefs or contentions that only Mr Gunberg, as the person who signed the contract on behalf of the Respondent, could dismiss him and that any dismissal had to be in writing: hence his statements that Mr Silversides “thought” he could fire him on the spot, and that Mr Silversides “tried” to do the same. Both words reflect the Claimant’s stance that, whatever they had thought they could do, or had tried to do, they had not succeeded in doing it.[42]The first claim was then presented on 22 December 2021. The applicable law and conclusions[43]The first issue to be decided is whether the Claimant made a protected disclosure or disclosures. This is in reality a question of academic interest only, given the Tribunal’s findings about when the Claimant was dismissed and the principal reason for that, the consequences of which will be explained below. For completeness, however, the Tribunal reached the following conclusions on this issue.[44]Section 43A of the Employment Rights Act 1996 provides that a protected disclosure means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. Section 43C provides that a qualifying disclosure is made in accordance with that section if it is made to the worker’s employer.[45]The definition of a qualifying disclosure in section 43B includes the following: “(1)…..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: (d) That the health or safety of any individual has been, is being, or is likely to be endangered.”[46]In Ayodole Martin v London Borough of Southwark [2021] UKEAT/0239/20 the Employment Appeal Tribunal referred to the decision of the Court of Appeal in Kilraine v London Borough of Wandsworth [2018] ICR 1850 as setting out the correct approach to whether there has been a disclosure of “information”. There is no absolute dichotomy between information and allegation. However, for a statement or disclosure to be a qualifying disclosure “it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1)” (Kilraine paragraph 35).[47]The Tribunal concluded that the Claimant’s complaints or statements about the deep fryers being put in and out of the oven; about the cheese grater; about the lack of paring knives; and about the combi oven not being cleaned properly amounted to protected disclosures. They were made to his employer, in the persons of the relevant managers. The Tribunal found that they involved the disclosure of information.[48]Reminding itself that it is not necessary that the Claimant should be shown to have been “right” about the disclosures, the Tribunal also concluded that he believed that they tended to show that the health or safety of individuals (namely, those working in the kitchen for the first three, and customers in relation to the combi oven) had been, was being or was likely to be endangered; and that this belief was reasonable. The disclosure about the deep fryers involved a risk of workers being burned, those about the cheese grater and the knives involved a risk of workers cutting themselves. The disclosure about the combi oven involved a risk of customers being made unwell. The Tribunal accepted that the Claimant believed, and it was reasonable for him to believe, that the disclosures were made in the public interest, the “public” being other workers in the kitchen in the first three instances, and customers in the fourth.[49]The Tribunal considered that the information given about the fridges and the pizza oven did not amount to protected disclosures. Assuming that the Claimant believed that these matters involved a danger to health, it was not reasonable for him to believe this. The fact that a fridge was leaking would not necessarily mean that the temperature control was compromised; if an oven was not installed properly it might not work, but that would not in itself present a danger to health or safety.[50]The Tribunal concluded that the email of 7 December 2021 did not include protected disclosures. The statement that Mr Silversides was “totally messy” did not, in the Tribunal’s judgement, convey any specific information. The statement that stock was left to go bad is on its face a complaint about waste rather than of something endangering health or safety. The complaint that equipment was broken or dangerous to work with was, we found, too vague and unspecific to amount to a disclosure of information, unlike the earlier oral disclosures which identified the particular items of equipment in question.[51]The Tribunal has found that the Claimant was dismissed by Mr Silversides on 5 December 2021. This means that, whatever the status of what the Claimant wrote in his email of 7 December, this cannot in any event have formed any part of the reason for his dismissal.[52]We have also found the principal reason for the dismissal was that Mr Silversides was angry with the Claimant because of the events of that day. That finding excludes the possibility of the reason or principal reason being that the Claimant had made protected disclosures, with the result that the complaint of automatic unfair dismissal is unsuccessful.[53]The Tribunal then considered the detriment complaint. Section 47B of the Employment Rights Act provides that: (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[54]The requirement that the detriment be done “on the ground that” a protected disclosure has been made differs from the test of the reason or principal reason for unfair dismissal. It is necessary only that the making of a protected disclosure be a substantial, i.e. a more than trivial, reason for the detriment.[55]The Tribunal found that the detriment of failing to act on the email of 7 December 2021 was not made out on the facts. The Respondent did not fail to act on the email: we have found that Mr Hardeling arranged the meeting on 12 December 2021 in part in order to discuss it. There was on all accounts some discussion of the situation in the kitchen at the beginning of the meeting. The Tribunal found that the meeting then continued and ended as it did because those involved became angry with one another. We concluded that the making of protected disclosures (whether orally to the various managers as found by the Tribunal, or (if the Tribunal is wrong in its conclusions) in the email of 7 December played no part in the meeting continuing or ending in the way that it did.[56]The second detriment relied on was that of dismissing the Claimant in a deliberately hurtful and offensive manner. The Claimant’s case on this aspect was directed to what occurred on 12 December 2021, as he maintained that it was on this date that he was dismissed. In a sense, this allegation was not made out on the facts, as the Tribunal has found that the Claimant was not dismissed on this occasion. However, in case that is too restrictive a view of the allegation, the Tribunal considered what its conclusions would be were the allegation to be recast more generally as one of treating the Claimant in a deliberately hurtful or offensive manner.[57]Bearing in mind its conclusions about the alleged failure to act on the email of 7 December, the Tribunal found that the way in which the Claimant was treated at the meeting (whether or not it could be described as hurtful or offensive) was not deliberate in the sense of pre-planned, nor did the disclosures play any part in it occurring. It happened because those involved became angry with one another.[58]The complaint of detriment done on the ground of making protected disclosures was also therefore unsuccessful. The claim is therefore dismissed.