Mr B Kristensen v Portman Healthcare Ltd: 2207643/2021

EMPLOYMENT TRIBUNALS

Case No 2207643/2021

Between

Mr B KristensenClaimant

Portman Healthcare LimitedRespondent

Before

Employment Judge Emery

In person for claimant

Mr D Sillitoe (instructed by solicitor) for respondent

Date 8 August 2024

JUDGMENT

[1]The meeting on 27 May 2020 retains Employment Rights Act 1996 s.111A protected conversation status.

[2]The claimant’s statement on 16 August 2020 and his subsequent disclosures were not qualifying protected disclosures under ERA 1996 ss43A&B

[3]The claim of automatic unfair dismissal is struck-out.

REASONS

[1]This hearing was to determine the following issues:a. Has a meeting on 27 May 2020 lost s.111A ‘protected conversation’ status because of the respondent’s conduct during this meeting?

b. Did the claimant make protected disclosure(s)?

c. If (b) is yes, should some or all of the detriments claim be struck-out on the basis they stand no reasonable prospects of success? Witnesses

[2]I heard evidence from the claimant and from the respondent’s witnesses:a. Ms Louise Oates – Head of Operations E&W

b. Ms Karen Ferguson – Practice Manager Harley Street

[3]I read documents referred to in statements and in evidence. This judgment does not recite all of the evidence I heard, instead it confines its findings to the evidence relevant to the issues in this case. It incorporates quotes from my notes of evidence; these are not verbatim quotes but are instead a detailed summary of the answers given to questions Preliminary Issue

[4]The claimant argues that he made disclosures commencing on 16 August 2021 and subsequently in a grievance, the respondent states that the claimant has only alleged that a disclosure on 27 August 2021 amounts to protected disclosure; hence there can be no detriments prior to this date.

[5]The claim form states that the claimant discovered an employment contract on his personnel file with what was purported to be his signature on 12 August 2021, he contends that this signature is a forgery. It is common ground that the claimant attended his workplace on 16 August 2021 with a police officer present. The claim form says that the claimant reported that his contract had been forged to his employer “both contemporaneously and in subsequent grievances”. It says that his access was hindered to his personal file on/around 16 August 2021, “… because the police had attended the respondent’s premises with him, and because the claimant had made a disclosure that a criminal offence had been committed” (paragraph 22 page 19).

[6]The claimant provided voluntary further information on his claim which states that his ‘protected disclosure was on 27 August 2021 in a letter tilted “Whistleblowing regarding forgery of signature”.

[7]Mr Sillitoe accepts that Ms Ferguson’s evidence was the claimant said his contract was forged when he attended with a PC on 16 August. He accepts that this is mentioned in the claim form; that it could be inferred that paragraph 22 of the claim refers to a protected disclosure on this date. But the respondent sought further information on this claim and received a specific answer that only the 27 August letter was his alleged disclosure. “So if there is an earlier disclosure, there is no detail, it is inferred at best, and not pleaded and not in F&BPs”.

[8]I concluded from the wording of the claim that the claimant is alleging he made the following disclosure on a repeated basis orally and in writing, commencing when the police attended the respondent’s premises on 16 April 2021 – that a criminal offence had been committed by the forging of his signature on his contract. While the further particulars says that his disclosure was later, it is clear that the claimant was not arguing he made no disclosures earlier, this was a reference to his formal written protected disclosure.

[9]I concluded that the claimant had not intended to argue that none of his earlier comments amounted to protected disclosures. I concluded that it was necessary to look at what the claimant said from 16 April 2021 onwards to determine whether or not any of the claimant’s statements, written and oral, amounted to protected disclosures, whether taken in isolation or read together.

Relevant facts

[10]The claimant was employed as a Dental Hygienist by the respondent from May 2008 to 30 September 2021. The respondent says he was fairly dismissed for conduct related reasons, the claimant argues his dismissal was unfair and that he was dismissed because he whistleblew. The ‘protected conversation’ – 28 May 2021

[11]The respondent’s position is that all that happened at this meeting is governed by Employment Rights Act 1996 s.111A, that it was a protected conversation. The claimant accepts that this is how the meeting was characterised by the respondent, but argues that Ms Oates conduct during the meeting amounted to improper conduct, and that the meeting loses its protected conversation status.

[12]The respondent’s case is that it called this meeting because his managers had valid concerns about the claimant’s conduct and what they considered to be his failure to address his low utilisation and the reasons for this, including repeated failures by him to abide by management requests to address his low utilisation, in particular his failure to call up patients for a hygiene appointment. The respondent says that at the time of the protected conversation they considered this should be addressed by a protected conversation as an alternative to a disciplinary process.

[13]The claimant accepted in his evidence and during his questions of Ms Ferguson that he had issues of low utilisation, his dislike of calling patents had been discussed with him and that the need to improve his utilisation had been discussed with him; he accepted that these issues had been discussed in an appraisal in January 2021 and at a meeting in February 2021.

[14]The claimant argued that the transcript of the 28 May 20201 meeting is clear (he covertly recorded this meeting): he was not allowed to be accompanied at the meeting, despite the respondent alleging he had been given this option. The claimant considers he was given an ultimatum – that if he did not accept the offer, the alternative would be a thorough investigation into his lack of patients, and his failure to call them up to arrange appointments.

[15]The claimant argued that he was “shut down” when he tried to speak, as shown in the meeting recording and transcript. Ms Oates attitude was that this “would” be a disciplinary, she was “abrupt”, there was “no invitation to a conversation. Whenever I was trying to correct - I was shut down”. He said that he mentioned during this meeting that he was “not a phone sales person, I suck at it, and also the ethical aspect of cold-calling patients”, but that this was not in the notes of meeting. Ms Oates evidence was that the calls were meant to inform patients that hygiene appointment was needed “this is something that hygienists do … it was not improper to ask this”.

[16]The claimant accepted in his evidence that his utilisation was low and that he was hesitant to ‘cold-call’ patients. He argued that the ‘threat’ to him was that he would be found “guilty as charged” in a disciplinary process; Ms Oates attitude was “… not calm or nice, I have a different opinion”. He said that he was in effect given two options – take the settlement on offer, or face dismissal following a disciplinary. , this was “very scary”. He pointed out that the respondent’s position changed, that the issue was subsequently regarded as a capability issue, not a disciplinary issue (e.g. 194). Protected disclosure(s)

[17]The claimant case relies on historical issues regarding his contract of employment: his case is that he has only ever agreed and signed one contract, in 2008 with the original owner of the business. Following a TUPE transfer, the claimant was given a new contract in April 2016. He disputed the terms of this contract and, he argues, he refused to sign it.

[18]The claimant argues that emails from his then Practice Manager to a prospective purchaser (BUPA) show that he had not signed this 2016 contract by 28 July 2016: “…I have been unable to get [the claimant] to sign a contract. In desperation I told him to write on the contract the changes or parts he did not agree to … but instead he has re-written his contract! … I will wait for him to sign a BUPA contract.” (58).

[19]The claimant also points to evidence that he had not agreed his contract by 12 April 2017: he was sent a ‘written statement of particulars’ on 10 April 2017 and in a follow up email his Practice Manager said “… as requested by the partners I personally gave you the written statement of particulars”. In response the claimant asked for an electronic copy “…as I have some suggestions for alterations and we can end up with a contract everyone can accept.” (59).

[20]On 10 August 2021, the claimant was told by HR that the practice held a copy of his contract “… signed by yourself on 21 April 2016, and the copy of the contract you have amended…” (62).

[21]On 13 August 2021 the claimant asked Ms Ferguson to see his personnel file, this was fetched and he was told he could copy what he wanted. When inspecting it he saw a copy of the 2016 contract – this had a signature on it. He contends that while this looked like his signature, it was a forgery. He took copies of the same.

[22]The claimant did not immediately inform his employer of his view that his signature had been forged: instead he sent emails, saying he was “surprised” about mention of a contract in 2016.

[23]In his evidence the claimant said that he then researched the issue; he knew his signature had been forged, and in his research he found the crime of ‘use of a false instrument’ under the provisions of the Forgery and Counterfeiting Act 1981. He considered that it was a criminal matter and he contacted the police.

[24]The claimant’s evidence was that he “managed to convince” the police to send someone to check the contents of his personnel file. His rationale for doing so was that it would be harder to prove that forgery had taken place if the contract and associated emails “should mysteriously disappear” (paragraph 49 statement).

[25]The police and the claimant attended his work address on Monday 16 April and the claimant asked for access to his personnel file. At this point, the claimant informed Ms Ferguson that there is a forged document on his file, Ms Ferguson accepts that he was ‘vocalising’ to all that a crime had been committed. She said that the police officer came into the office and “I asked the PC what about and he responded that he was not quite sure, but [the claimant] made a complaint”.

[26]The claimant argues that he would not be the first or the last victim of such forgery by the respondent – that it was likely to have happened, or would happen, to another employee. He accepted that when he said his contract had been forged, he did not refer to any other employee this may have happened to; he said “I did not know this - I was not thinking of this…”. He argued that when he saw the contract “I knew forgery had been committed towards me…”.

[27]On 27 July 2021 the claimant made what he contends is a whistleblowing complaint in writing to the respondent’s CEO Mark Hamburger. This states that he considers a criminal offence had been committed, also one had been covered up. He says that while he does not know who forged his signature, but that Ms Stevens had used a false instrument against him by stating that he had signed a copy of his contract of employment in her email on 10 August 2021. Submissions

[28]Mr Sillitoe argued that there was no undue pressure at the 28 May 2021 protected conversation. The claimant was not told he would be dismissed as an alternative, he was told that there would be a process which would be followed if he did not negotiate an exit: in fact the ACAS Code allows for the potential alternatives to be discussed. That while this may have been interpreted as an ultimatum, there is no evidence that any improper pressure was applied.

[29]Did the claimant have a reasonable belief that what he was saying about the alleged forgery was in the public interest? Chesterton requires the claimant to have a belief at the time of making the disclosure that it was in the public interest (this does not have to be the predominant reason for making it), and that this belief needs to be a reasonably held belief. Also, while it must be a genuine and reasonable belief that the disclosure is in the public interest, this does not have to be the predominant motivation in making it.

[30]In this situation, Mr Sillitoe argued that the claimant’s allegation of a criminal offence is not a statement in the public interest. Just because an offence may have been committed does not mean that it is in the public interest to make a disclosure. “In most cases it may be”, but in this case there is only one person whose interests are served, as this relates only to the claimant’s contract of employment. There must be “something else” for this to be in the public interest.

[31]Mr Sillitoe argued that Simpson is illustrative; that the motive behind this employee’s disclosures was a financial concern about his commission payments rather than any regulatory concerns he was referring to in his statements; this could never be in the public interest.

[32]Mr Sillitoe argued that it “does not follow” that the claimant asserting a criminal offence meant that this was a disclosure in the public interest. The characteristics of the offence alleged may be relevant to determine if the disclosure is of more than the claimant’s private interests; here there is no effect on the wider public in this particular allegation, either in the claimant’s belief at the time, or in his reasonable belief.

[33]Mr Sillitoe argued the same with the 27 August 2021 letter: his only concern is his own personal circumstances, that someone had forged his contract: “This is a workplace dispute relating only to him; no element is in the wider public interest”.

[34]Mr Sillitoe rejected that argument that a belief that a criminal offence may have been committed in a private workplace dispute may be in the public interest; this was a private interest. He argued that the claimant’s belief is in fact a series of assumptions: that the forgery happened recently; it was a deliberate criminal act. “All this is in the context if his personal situation, and wholly lacking credibility from a reasonable standpoint”.

[35]Strike-out: Mr Sillitoe accepted that this application was contingent on the 1st PID being 27 August – all the alleged detriments prior to this cannot be a whistleblowing detriment if this was the 1st PID. As found above, I accepted that the alleged 1st PID was on 16 August 2020. Mr Sillitoe’s application for a strike-out therefore does not proceed.

[36]Mr Kristensen argued that the forgery of a signature on a contract is clearly in the public interest as the respondent has committed a criminal offence. The General Dental Council would consider this to be in the public interest – the good reputation of a Dentist – a criminal offence would lead to a strikeoff the Dental Register.

[37]Mr Kristensen argued that he knew he had not signed contracts after 2008 “Then I am told I have signed a contract in 2016, I know this is not the case …. I know I have not signed. I know that a forgery had taken place.” After checking the law he was “so certain” that a criminal offence had been committed, that he went to the police because he wanted “…authority to witness that this paper is in my folder. Without it I would have a weaker case [that this was a forgery].” He said that page 120 shows that he was concerned about other employees – “I do not know if others have been tampered with”.

[38]On the protected conversation, the issue for him was the amount of times he was expected to call patients; he accepted that there was a dispute between him and his employer on his utilisation, but he argued that his colleagues were being given more patients via reception. He argued that notwithstanding his concerns he was “left in no doubt” he would be put through a disciplinary procedure. He said that he was “aware for months” he was being managed out. He argued that the meeting constituted harassment, “the best evidence is that there were no proper notes”, also that he was not given the opportunity to have a union rep resent. The minutes were inaccurate. Also, it was never a disciplinary issue as was later confirmed, again evidence of unreasonable conduct.

[39]On the strike-out of the claim, Mr Kristensen said that the respondent was made aware that he had not signed the contract, that this issue was never investigated, that the respondent did not have reasonable belief he had committed acts of misconduct.

[40]In response Mr Sillitoe argued that any error in the protected conversation process – e.g. a subsequent decision taken that utilisation was not going to be treated as a disciplinary issue - does not amount to improper conduct, or bad faith “… to say an employer would lose protection because of a mistake - would make this far less attractive to employers. An innocent mistake does not lose protection.”

The Law

[41]Employment Rights Act 43A Meaning of “protected disclosure” In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 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—

a. that a criminal offence has been committed, is being committed or is likely to be committed

b. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject … 111A Confidentiality of negotiations before termination of employment (1) Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111 This is subject to subsections (3) to (5).

(2) In subsection (1) “pre-termination negotiations” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee

(3) …

(4) In relation to anything said or done which in the tribunal's opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just. Case Law Confidentiality of pre-termination negotiations in unfair dismissal cases

[42]If anything said or done in a pre-termination negotiation was, in a tribunal's opinion, improper or connected with improper behaviour, confidentially will only apply to the extent that the tribunal considers just (s 111A(4)).

[43]Faithorn Farrell Timms LLP v Bailey

[2016] IRLR 839

EAT, the following guidance was given: The term 'improper behaviour' in s 111A(4) is wider than the term 'unambiguous impropriety' (the without prejudice principle). This allows the tribunal to take a broader approach to the behaviour in question and gives it greater flexibility when exercising its discretion under s 111A(4). The exercise of that discretion involves a two-stage task by the tribunal. The first is that it must consider whether there was improper behaviour by either party during the settlement negotiations, this being a matter to be determined on the particular facts of the case, having due regard to the non-exhaustive list of examples in paragraph 18 of the Code. If there was, the second stage requires the tribunal to decide the extent to which the confidentiality should be preserved in respect of those negotiations.

[44]The ACAS Code of Practice on Settlement Agreements contains the following guidance: Guidance on what constitutes improper behaviour is contained in paragraphs 17 and 18 of this Code. Where there is improper behaviour, anything said or done in pre-termination negotiations will only be inadmissible as evidence in claims to an employment tribunal to the extent that the tribunal considers it just: “What constitutes improper behaviour is ultimately for a tribunal to decide on the facts and circumstances of each case. Improper behaviour will, however, include (but not be limited to) behaviour that would be regarded as 'unambiguous impropriety' under the 'without prejudice' principle.” The Code lists some non-exhaustive examples of improper behaviour, including harassment, bullying, discrimination, and also: (e) Putting undue pressure on a party. For instance:(i) Not giving the reasonable time for consideration set out in paragraph 12 of this Code;

(ii) An employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected then the employee will be dismissed;

[45]The Code makes it clear that an employer is entitled to set out in “a neutral manner” the reasons leading to the meeting “… or factually stating the likely alternatives if an agreement is not reached, including the possibility of starting a disciplinary process…”/ Disclosures in the “public interest”

[46]It is for the claimant to show that his disclosure was in the public interest, not just a vehicle for a private grievance. The 2013 amendment added the following words in italics to s 43B(1) which now defines a 'qualifying disclosure' as 'any disclosure of information which, in the reasonable belief of the worker, is made in the public interest and tends to show one or more of the following…'

[47]The public interest test is that it must be in the reasonable belief of the employee that the disclosure was made in the public interest”

[48]Chesterton Global Ltd v Nurmohamed

[2017] ICR 731

: In a case of mixed interests, it is for the tribunal to rule as a matter of fact as to whether there was sufficient public interest to qualify under the legislation. ''The statutory criterion of what is “in the public interest” does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be. I am not prepared to rule out the possibility that the disclosure of a breach of a worker's contract of the Parkins v Sodexho kind may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. I would certainly expect employment tribunals to be cautious about reaching such a conclusion, because the broad intent behind the amendment of section 43B(1) is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers – even, as I have held, where more than one worker is involved. But I am not prepared to say never. In practice, however, the question may not often arise in that stark form. The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest. “… In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker…. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case … “… The four factors adopted are as follows:(a) the numbers in the group whose interests the disclosure served;

(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;

(c) the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;

(d) the identity of the alleged wrongdoer – as [counsel for the employee] put it in his skeleton argument, “the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest” – though he goes on to say that this should not be taken too far.''

[49]Ibrahim v HCA International

[2019] EWCA Civ 207

: The mental element imposes a two stage test:(i) did the clamant have a genuine belief at the time that the disclosure was in the public interest, then

(ii) if so, did he or she have reasonable grounds for so believing? The fact that a motivation for making the disclosure may be different: “the necessary belief [of the employee] is simply that the disclosure was in the public interest”.

[50]Parsons v Airplus International Ltd

UKEAT/0111/17

: The necessary reasonable belief in that public interest may arise on later contemplation by the employee and need not have been present at the time of making the disclosure. Where an employee makes a series of allegations that in principle could have been protected disclosures but in fact were made as part of a dispute with the employer, the tribunal was held entitled to rule that they were made only in her own self-interest – the fact that an employee could have believed in a public interest element is not relevant. Conclusions s.111 Protected conversation

Conclusions

[51]I concluded that the respondent did not act in an improper way during this meeting. I accept that this was a difficult meeting for the claimant. I accept that he was being told that the respondent was unhappy with his performance and conduct, and wanted to explore his leaving without going through a process. I accept that this strongly suggests the respondent has reached a conclusion about his exit. I also accepted that it was never made clear to the claimant he could leave the meeting if he felt uncomfortable, he was never told he could have a colleague or trade union rep present. I also accepted that the notes were not verbatim, and as was accepted in evidence did not contain all that was said at the meeting.

[52]However, the very essence of a protected conversation is that an employer is able to speak bluntly about issues such as conduct or performance and set out the options, one of which may be dismissal after a process (see ACAS Code above). I did not accept that the conduct at this meeting amounted to bullying or harassing conduct.

[53]It is very difficult for a long-standing employee to accept this kind of conversation. But I did not accept that the respondent’s conduct was improper. I did not accept that it was made clear to the claimant that he would inevitably be dismissed. The fact that there was a subsequent change in approach, the utilisation would be treated as a capability issue confirms that no definite plan had been made at the meeting. There was nothing in the tone of these present which suggested that this was an improper conversation.

[54]Mr Kristensen’s evidence was that he was stopped from speaking when he was trying to raise his own arguments in rebuttal, that this amounted to bullying conduct. I accepted that the premise of this conversation was not to have a discussion or debate about performance, but for the respondent to set out in broad terms ‘where we are’, and the options, one of which was leaving on agreed terms. Accordingly, it was not unreasonable for the respondent to want to stick (broadly) to the script and not to enter into debate. Hence I accepted that the claimant felt shut down, but this was not improper in the context of this first protected conversation meeting.

[55]The failure to allow the claimant to have a colleague or rep present did not make this meeting unreasonable; the claimant felt able to argue his case, the utilisation issue was not a surprise to him. He was not being asked to reach a decision on his future during that meeting.

[56]Accordingly I concluded that the 27 May meeting retains its protected conversation status under the provisions of ERA 1996 s111A. It cannot be referred to in the claimant’s unfair dismissal claim. Protected disclosure

[57]Did the claimant have a reasonable belief that what he was saying about his contract of employment was in the public interest? Chesterton requires the claimant to have a belief at the time of making the disclosure that it was in the public interest (this does not have to be the predominant reason for making it), and that this belief needs to be a reasonably held belief.

[58]There can be mixed motives: where the disclosure relates to a breach of their own contract of employment of some other ‘personal interest’, “there may nevertheless be features of the case that make it reasonable to regard disclosures as being in the public interest, as well as in the personal interest of the worker”.

[59]I accepted that throughout, the claimant had a genuine belief that his signature had been forged on the April 2016 contract.

[60]The claimant at the time said “I do not know if any others” are at similar risk of having their contract tampered with; that the respondent could “choose” to put in measures to protect other employees contracts “or just to mine” (120).

[61]I accepted that the claimant only believed that his contract had been tampered with, that at best he did “not know”, if anyone else could be affected. I also accepted that while a potential criminal offence, the Police were evidently not interested in ascertaining if a crime had been committed, despite being led to the alleged crime. The claimant did not want a crime investigating, he wanted a Police officer to witness what was on his personnel file.

[62]I did not accept that the claimant genuinely believed that his contract being forged had any public interest element. It was a private contractual matter, the police were called as a witnesses to what was in his contract. Even if the contract’s signature was forged, this at best (or worst) amounted to a breach of the claimant’s contractual rights and may go to issues of a repudiatory breach of contract. There is the issue of what was the valid contract and what are its terms and has it been breached. These are all private contractual issues, and at the time I concluded that the claimant simply did not know if they were in the public interest.

[63]The same with the grievance of 27 August and other communications with his employer: at its highest the grievance complains about the forgery to his contract, and says that this is a serious issue. It does not refer to other employees, or any wider public interest.

[64]The highest the documentary evidence goes “I do not know” if others are at risk of having contracts tampered with.

[65]This was not, I concluded, a matter which the claimant believed was in the public interest at the time he made his disclosures. His sole concern was about the impact on him and his contractual rights in what was becoming a protracted dispute with his employer about (amongst other issues) his utilisation.

[66]It follows that the claimant did not, either verbally on 16 August or subsequently in writing on 27 August, make qualifying protected disclosures.

[67]The claim of automatic unfair dismissal is therefore struck-out. ORDERS Final hearing 1. The hearing has already been listed for 7 days. In light of significant parts of the claim being struck-out, the claim which proceeds is one of ‘ordinary’ unfair dismissal and a claim of wrongful dismissal (notice pay claim). The respondent is calling 4-5 witnesses. I therefore reduced the listing to a 4 day hearing which will take place on Tuesday 5 - Friday 9 September 2023. The case will be heard by an Employment Judge. The hearing will start at 10.00 am. You must arrive by 9.30 am (or be online if it is a video/online hearing). Hearing timetable 2. The hearing timetable is likely to be: Day 1 2 hours Tribunal reading and preliminary matters 3 hours Claimant’s evidence Day 2 3 hours Claimant’s evidence 2 hours Respondent’s evidence Day 3 3 hours Respondent’s evidence 2 hours Submissions Day 4 3 hours Tribunal making decision and giving Judgment 2 hours Dealing with compensation or other remedies if necessary 3. If you think that more or less time will be needed for the hearing, you must tell the Tribunal as soon as possible. Claims and Issues 4. The claims and issues, as discussed at this preliminary hearing, are listed in the Case Summary below. If you think the list is wrong or incomplete, you must write to the Tribunal and the other side by 14 November 2022. If you do not, the list will be treated as final unless the Tribunal decides otherwise. Documents 5. By 14 November 2022 the respondent must send the claimant copies of all documents relevant to the issues listed in the Case Summary below. 6. By 28 November 2022 the claimant must send the respondent copies of any other documents relevant to those issues. This includes documents relevant to financial losses. By 28 November 2022 the claimant must request from the respondent any documents he believes are missing from the respondent’s documents. 7. Documents includes recordings, emails, text messages, social media and other electronic information. You must send all relevant documents you have in your possession or control even if they do not support your case. A document is in your control if you could reasonably be expected to obtain a copy by asking somebody else for it. 8. Documents includes recordings, emails, text messages, social media and other electronic information. You must list all relevant documents you have in your possession or control even if they do not support your case. File of documents 9. By 16 December 2022 the claimant and the respondent must agree which documents are going to be used at the hearing. 10. The respondent must prepare a file of those documents with an index and page numbers. They must send a hard copy to the [claimant/respondent] by 16 January 2023. 11. The file should contain: 1. The claim and response forms, any changes or additions to them, and any relevant tribunal orders. Put these at the front of the file. 2. Other documents or parts of documents that are going to be used at the hearing. Put these in date order. 12. The claimant and the respondent must both bring a copy of the file to the hearing for their own use. 13. The respondent must bring [two/four] more copies of the file to the hearing for the Tribunal to use by 9.30 am on the first morning (or provide copies electronically if an online hearing). Witness statements and updated schedule of loss 14. The claimant and the respondent must prepare witness statements for use at the hearing. Everybody who is going to be a witness at the hearing, including the claimant, needs a witness statement. 15. A witness statement is a document containing everything relevant the witness can tell the Tribunal. Witnesses will not be allowed to add to their statements unless the Tribunal agrees. 16. Witness statements should be typed if possible. They must have paragraph numbers and page numbers. They must set out events, usually in the order they happened. They must also include any evidence about financial losses and any other remedy the claimant is asking for. If the witness statement refers to a document in the file it should give the page number. 17. At the hearing, the Tribunal will read the witness statements. Witnesses may be asked questions about their statements by the other side and the Tribunal. 18. The claimant and the respondent must send each other copies of all their witness statements by 31 March 2023. The claimant must sent a copy of his updated Schedule of Loss by the same date. 19. The claimant and the respondent must both bring copies of all the witness statements to the hearing for their own use. 20. The respondent must bring two more copies of the witness statements to the hearing for the Tribunal to use by 9.30 am on the first morning. If the hearing is by video, the respondent must send an electronic copy of the hearing file and all the witness statements to the Tribunal for the Tribunal to use. Hearing preparation 21. By 4 August 2023, the claimant and the respondent must both write to the Tribunal to confirm that they are ready for the hearing or, if not, to explain why. 22. The respondent must prepare and try to agree: 1. a neutral chronology, listing the key events and when they happened. The chronology should refer to page numbers from the file; 2. a list of people involved in key events and their job titles; 3. a list of the key documents in the file, with the page numbers, that the Tribunal needs to read at the start of the hearing. 23. The respondent must bring one copy to the hearing for the Tribunal (or supply electronically if a video hearing) to use. 24. All you need to know about preparing for hearings by video is in a separate document. Please read the guidance and information carefully. Variation of dates 25. The parties may agree to vary a date in any order by up to 28 days without the Tribunal’s permission, but not if this would affect the hearing date. About these orders 26. These orders were made and explained to the parties at this preliminary hearing. They must be complied with even if this written record of the hearing arrives after the date given in an order for doing something. 27. If any of these orders is not complied with, the Tribunal may:(a) waive or vary the requirement;

(b) strike out the claim or the response;

(d) award costs in accordance with the Employment Tribunal Rules. 28. Anyone affected by any of these orders may apply for it to be varied, suspended or set aside. Writing to the Tribunal 29. Whenever they write to the Tribunal, the claimant and the respondent must copy their correspondence to each other. Useful information 30. All judgments and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. 31. There is information about Employment Tribunal procedures, including case management and preparation, compensation for injury to feelings, and pension loss, here: https://www.judiciary.uk/publications/employment- rules-and-legislation-practice-directions/ 32. The Employment Tribunals Rules of Procedure are here: https://www.gov.uk/government/publications/employment-tribunal- procedure-rules 33. You can appeal to the Employment Appeal Tribunal if you think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal CASE SUMMARY The claimant was employed by the respondent for 13 years until his dismissal on grounds the respondent characterises as misconduct and gross misconduct. The claimant contends that the respondent did not have a reasonable belief in misconduct, and that this was not the genuine reason for his dismissal. The claimant claims notice pay. The Issues 1. Unfair dismissal 1. Was the claimant dismissed? 2. What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct. 3. If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:

a. there were reasonable grounds for that belief;

b. at the time the belief was formed the respondent had carried out a reasonable investigation;

c. the respondent otherwise acted in a procedurally fair manner;

d. dismissal was within the range of reasonable responses. 2. Remedy for unfair dismissal 1. Does the claimant wish to be reinstated to their previous employment? 2. Does the claimant wish to be re-engaged to comparable employment or other suitable employment? 3. Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just. 4. Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just. 5. What should the terms of the re-engagement order be? 6. If there is a compensatory award, how much should it be? The Tribunal will decide: a. What financial losses has the dismissal caused the claimant? b. Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? c. If not, for what period of loss should the claimant be compensated? d. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

e. If so, should the claimant’s compensation be reduced? By how much?

f. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

g. Did the respondent or the claimant unreasonably fail to comply with it?

h. If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

i. If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?

j. If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

k. Does the statutory cap of fifty-two weeks’ pay apply? 7. What basic award is payable to the claimant, if any? 8. Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? 3. Wrongful dismissal / Notice pay 1. What was the claimant’s notice period? 2. Was the claimant paid for that notice period? 3. If not, was the claimant guilty of gross misconduct? / did the claimant do something so serious that the respondent was entitled to dismiss without notice?

The Facts

[68]The Claimant did not raise any comparison or inconsistency grounds at the appeal hearing. There was a further discussion at the appeal hearing as to whether the Claimant had other recordings and the Claimant replied that the respondent would find out. When Mr James put it to him that there must be other recordings, he said, am I bluffing? I will leave it to you to find out.

[69]Mr James rejected the appeal on 29 October 2021 stating that the Claimant had now provided three recordings, and it was likely he had not provided all recordings due to his inconsistency and the “bluffing” comments. The Claimant applied to the Employment Tribunal.

[70]In total the Claimant accepted that he had made 15 recordings of 13 different people at the respondent’s premises.

The Law

[71]The applicable law on protected disclosures is found in the Employment Rights Act as follows 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— (a) that a criminal offence has been committed, is being committed or is likely to be committed — S.43B(1)(a) (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 or safety of any individual has been, is being or is likely to be endangered, …(5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1) 47B Protected disclosures (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. 103A Protected disclosure. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[72]The applicable law on unfair dismissal is found in the Employment Rights Act 1996 as follows 98 General (1)In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a)the reason (or, if more than one, the principal reason) for the dismissal, and (b)that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2)A reason falls within this subsection if it—… (b) relates to the conduct of the employee.. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case.

[73]The Tribunal’s jurisdiction in respect of a wrongful dismissal claim is found in the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 as follows:- 4. Proceedings may be brought before an employment tribunal in respect of a claim of an employer for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if— (a)the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine; (b)the claim is not one to which article 5 applies; (c)the claim arises or is outstanding on the termination of the employment of the employee against whom it is made; and (d)proceedings in respect of a claim of that employee have been brought before an employment tribunal by virtue of this Order. Submissions

[74]Both parties made oral submissions and were provided with the opportunity to comment on the other party’s submissions. Applying the Law to the Facts Protected Disclosure

[75]Tribunal firstly considered whether the Claimant had made a public interest disclosure. It was agreed that the only remaining issue was whether the Claimant had a reasonable belief that the disclosure was made in the public interest. There was no dispute as to the genuine of his belief.

[76]The test for reasonableness is a mixed subjective and objective test. The question is whether a person in the Claimant’s personal circumstances reasonably believe that this matter was in the public interest.

[77]The Tribunal directed itself in line with Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening)

2018 ICR 731

, CA, that “ in the public interest” meant no more than that a worker could not rely on a breach of their own contract of employment where the breach was of a personal nature and there were no wider public interest implications. The Employment Appeal Tribunal identified several factors as follows which the tribunal sought to apply to the facts in this case.

[78]Firstly - the number in the group whose interest the disclosures served. This was on one view, only the Claimant because the disclosure related only to his contract. However, the Claimant argued that there was a wider relevant group because the Respondent was a dental surgery, a regulated profession. Any forgery by them was of a wider public interest.

[79]Secondly - the nature of the interests affected and the extent to which they were affected by the wrongdoing disclosed. In view of the Tribunal this was that a regulated profession such as dentists should not forge documents. There might be issues as to patient records and trust and confidence in the profession in general. Whilst the Claimant did not make it clear he believed a dentist personally had been responsible for the forgery, it was a forgery that had occurred in a dental practice. In respect of the nature of the wrongdoing, forgery is a serious issue albeit only one that related only to the Claimant.

[80]Thirdly - the identity of the alleged wrong doer, a dental practice, a profession in which it was important that the public could have confidence.

[81]When the Claimant made his disclosure on 16 August, he knew that the police had agreed to attend. This can only have reinforced the Claimant’s belief that this was a matter of public interest

[82]Accordingly, the Tribunal found that the Claimant did reasonably believe that the disclosure was in the public interest. It related to a forgery in a professional setting and the police were willing to attend in respect of his allegation.

[83]Therefore, the claimant had made a qualifying protected disclosure on 16 August 2021 that the Respondent had forged a copy of his signature on a contract of employment dated 21 April 2016. Unfair dismissal s.103A Employment Rights Act – Public Interest Disclosure

[84]The tribunal had to decide whether the reason or, if more the one, the principal reason for dismissal was that the claimant made a protected disclosure. The test in causation for unfair dismissal is stricter than the test in a detriment claim (see Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

2012 ICR 372

, CA, below). It is not sufficient that any protected disclosure materially influences the decision-maker, it must be the principal reason.

[85]Applying Maund v Penwith District Council

1984 ICR 143

, CA, because the claimant had more than two years qualifying service, the burden of proving the reason for dismissal was on the respondent.

[86]Tribunal considered the dismissing officer’s motivation. How - if at all – did the protected disclosure come to operate - consciously or subconsciously - on Mr Patterson’s mind?

[87]The Claimant’s case was not focussed solely on the protected disclosure as the reason for dismissal. In his further and better particulars, he focussed on his refusal to telephone patients after lockdown and the Respondent’s negative reaction to this. He also indicated that the Respondent had preferred consultants to employed hygienists for reasons of flexibility and cost. Further, he argued that he enjoyed an advantageous contract of employment that the Respondent had sought to change.

[88]Prior to Mr Patterson joining the respondent on 28 May, the Respondent had sought to exit the Claimant from the business via a protected conversation. There was a suggestion that he might be prepared to go down to one day, but he did not commit to this. Neither party followed this up. This followed on from two earlier conversations on 22 February and 25 March where the Respondent sought his agreement to reduce his contractual entitlement from three days to one.

[89]Following these attempts to exit the Claimant, he then raised several grievances. The Tribunal accepted Mr Patterson’s evidence that the Respondent was displeased because it had an employee who they wanted to exit and who was taking up management time. The Respondent then discovered that the Claimant had been making covert recordings in the workplace. The Tribunal accepted the Respondent had genuine concerns that the Claimant had been covertly recording and then seeking to rely on these against his colleagues or managers. However, the Tribunal also found that the Respondent who had thus far failed in its attempts to exit the claimant, sought to take advantage when it found something which could be used against him.

[90]The Respondent had known about the Claimant making covert recordings since June yet took no action till mid-August. This did not fit with the respondent seeing the recordings in and of themselves as crucial.

[91]Although the Respondent had instructed the Claimant not to make recordings in June, it put nothing in writing till August. The instruction in August showed a change of approach. The respondent informed the claimant in terms that any future recording would be viewed as gross misconduct, and that he would be seen as guilty of gross misconduct if he did not provide the existing recordings within a manifestly unreasonable deadline.

[92]On 16 August the Claimant made his protected disclosure, when he attended with the police. The Respondent suspended him, and charged him, altering its suspension letter to include his allegations of forgery as a further reason. The Respondent then invited the Claimant to an investigatory meeting on charges including that he had failed to hand over the recordings and that he had recorded the suspension meeting.

[93]The letter inviting him to the investigation meeting did not reference the police and the forgery allegation. Ms Oates in the investigatory meeting did not raise the forgery. It was the claimant who raised the issue of the forgery and the police.

[94]The Claimant’s account on his conduct in the suspension meeting was highly implausible and inconsistent. He claimed that he had not said - I don’t care - when he was told not to record and in fact had said - I get you there. He later admitted to the tribunal that this was untrue. Both witnesses, Ms Oates and Ms Koco disagreed with his account.

[95]From the investigation meeting onwards, the Claimant spent a good deal of time concentrating on his allegation of forgery. The tribunal found that Mr Patterson became frustrated, if not angry, that the claimant had called the police and alleged forgery without, from his point of view, any rationale. Mr Patterson could see not a logical reason for any forgery - there appeared no benefit to the Respondent.

[96]The Claimant claimed to have offered the Respondent copies of the recordings when he had in fact failed to do so. He told the Tribunal that he was being deliberately misleading in the investigation meeting.

[97]At the disciplinary meeting the Claimant continued to refuse to provide the recordings, although he did later provide one more. The Claimant claimed that he had been bluffing when he had previously said he had more recordings, that is, he told Mr Patterson that he had previously lied. Mr Patterson thought it more likely that the claimant was in fact lying in the disciplinary meeting and had been telling the truth when he said he had a number of recordings. In any event, Mr Patterson knew that the claimant had lied, even if he could not be certain when.

[98]When the claimant was asked about the police outcome, he said - you will discover. The tribunal accepted Mr Patterson’s evidence that he took this to be a threat. Because of this and because Mr Patterson knew that the claimant had lied about the recordings, the Tribunal accepted that he saw the forgery allegations and the police attendance as part and parcel of the Claimant’s attempts to avoid providing the recordings.

[99]Drawing this evidence together, the tribunal found that there were several factors which led Mr Patterson to dismiss the Claimant. The protected disclosure – the forgery allegation - was one of the factors. Mr Patterson was concerned by the allegation of forgery and the police coming onto the premises. Although the forgery and police allegation were not raised at the investigatory stage, Mr Patterson raised them at the disciplinary stage.

[100]Nevertheless, the Tribunal found that the protected disclosure was by no means the principal reason for disclosure. It formed only one part of the respondent’s reasons. The Respondent had sought since May to exit the Claimant and had sought to reduce his hours significantly since February. The Claimant had then raised a number of grievances. He had made recordings without consent and continued to do so even when he was told it would constitute gross misconduct. He had told his employer that he had lied about the recordings. Mr Patterson saw him as playing a game. Mr Patterson believed, based on evidence, that the claimant was lying about recording the suspension interview. It was clear that the Claimant did not trust the Respondent and Mr Patterson concluded that he simply could not trust the claimant anymore.

[101]Accordingly, the protected disclosure was not the principal reason for the decision to dismiss. Therefore the s.103A unfair automatic unfair dismissal claims fails. Detriment s47B Employment Rights Act 1996

[102]According to the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL, “detriment” means suffering a disadvantage of some kind. Whether something that amounts to a detriment must be assessed from the point of view of the victim. It is not necessary for there to be physical or economic consequences. An action or failure to act may amount to a detriment.

[103]The tribunal went on to consider whether the claimant was subjected to a detriment on the ground that he had made a protected disclosure. The tribunal directed itself in line with Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

2012 ICR 372

, CA. A tribunal must determine whether the protected disclosure materially (that is more than trivially) influences the decision-maker who subjected the claimant to any detriment.

[104]The case law recognises that it is relatively rare for an employer to admit that it has subjected a worker to detriment for making a protected disclosure. On many occasions a tribunal will be invited to draw inferences to this effect. The Employment Appeal Tribunal under its President in International Petroleum Ltd and ors v Osipov and ors EAT 0058/17 set out at paragraph 115 the correct approach to the burden of proof as follows:(a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made.

(b) By virtue of s.48(2) ERA 1996 , the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them: see London Borough of Harrow v. Knight at paragraph 20.

(c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.

[105]The Tribunal considered the first detriment, failing to give the Claimant access to his file on 16 August.

[106]The Claimant was given access by Ms Ferguson on the 13th and had taken copies. He then attended on the 16th with the police and made the protected disclosure. Ms Ferguson called the Respondent which advised her to refuse the Claimant access.

[107]The Claimant was not provided with access to his file on the 16th. He had been given access and copies on the 13th, and further access was not impeded permanently because the Claimant was invited to make a subject access request. Nevertheless, there was a delay and this delay amounted to a detriment from the claimant’s point of view because he sought immediate access to the original in the presence of the police.

[108]The Tribunal considered what had changed from the Friday to the Monday. The Tribunal found that the respondent’s attitude changed because the police had attended, and the Claimant was making an allegation of forgery. This was an out of the ordinary event at a dental practice.

[109]The Respondent, in the disciplinary, treated the Claimant’s allegation of forgery as gross misconduct whereas it treated the attendance of the police only as misconduct. Accordingly, the Respondent saw the attendance of the police as somewhat less significant than the forgery allegation. The Tribunal found that the allegation of forgery was a material influence on the Respondent’s refusal to permit the Claimant access to his file on the 16th. For the avoidance of doubt, the Tribunal did not find that the Respondent’s failure to permit the Claimant or the police to take the file was a detriment caused by the protected disclosure because the Respondent would not have permitted this in any event.

[110]The Tribunal then considered the second detriment - on 16 August 2012, Ms Ferguson was rude and acted improperly towards to the Claimant.

[111]The difficulty for the Tribunal was that this allegation was fundamentally unclear, even following cross examination. The Claimant said that Ms Ferguson was in some way hostile. He said that she did not approach him. In answer to the Tribunal’s question, he said that her attitude and the way that she walked into the room was not good. He was unhappy that she failed to do something, that is she failed to start an investigation or show some interest in the forgery allegation. The Tribunal reminded itself that failure to act may amount to a detriment and that it must consider the worker’s point of view. Would a reasonable worker take the view that the conduct was to his detriment?

[112]The Claimant had just accused his employer of forgery and brought the police unannounced onto site. Accordingly, things might plausibly be strained between him and Ms Ferguson. However, the Tribunal could not find that this was sufficient to amount to a detriment, in light of the lack of specificity. The claimant was simply not clear about what it was about Ms Ferguson’s conduct, that he objected to. There was no suggestion for instance, that Ms Ferguson was rude to him, or even that she changed her usual behaviour in a minor way – say, that she had not offered to make him a cup of tea contrary to her usual practice. For the avoidance of doubt, the bare fact that Ms Ferguson did not immediately somehow follow up the forgery allegation in an informal setting, without referring to management, could not reasonably be seen as a detriment.

[113]The Tribunal went on to consider the third detriment - the Claimant being suspended from work.

[114]Prior to the protected disclosure, in its letter of 10 August the respondent had told the Claimant that it would be considered gross misconduct if he failed to comply with an unreasonable deadline. He failed to contend to comply with that deadline and the respondent granted him an extension. Then he made the protected disclosure and brought the police onto site. That day he was suspended.

[115]The claimant was at this time not in breach of the respondent’s request to provide the because the Respondent had extended the deadline to the 17th. The suspension letter said that he was suspended due to the recordings and, in light of his actions that morning with regards to concerns of fraudulent behaviour. There was a reference to protecting both the claimant and the Respondent thus making a suspension is suitable.

[116]The Tribunal was satisfied that it was not the method of disclosure, that is the attendance of the police, rather than the protected disclosure itself which led to the suspension. The Respondent treated the allegation of forgery as gross misconduct, but not the police attendance. Taking into account the wording of the suspension letter the tribunal could not but find that the forgery allegation - the protected disclosure - was a material influence on the decision to suspend.

[117]The Tribunal went on to consider the fourth detriment - the disciplinary investigation.

[118]When the Respondent told the Claimant of its decision to suspend, it suspected but did not know that the Claimant had recorded the suspension meeting, he had committed what it considered to be gross misconduct. The claimant then failed to comply with the extended deadline to provide the recordings. In view of the Tribunal the best evidence as to the Respondent’s motivation for starting the disciplinary investigation was its invite to the investigation meeting on 18 August 2021. This referred expressly to the recordings and the failure to provide them, and the recording of the suspension meeting. The invitation letter did not refer to the forgery allegation or the police.

[119]The Respondent investigated the recordings issue. The Tribunal was satisfied that Ms Oates in the investigatory meeting was trying to concentrate on the recordings. It was the Claimant who introduced the forgery allegation and the police attendance in effect as a defence to the investigatory charges. Further, the investigatory report concerned the recordings issue. The forgery allegation and the attendance of the police were referred in the context of being the claimant’s explanation for his failure to provide the recordings, not as free-standing matters.

[120]By the time of the disciplinary meeting, Mr Patterson viewed the forgery allegation as potential gross misconduct and the police attendance as potential misconduct. It was the Claimant referring to the protected disclosure and the police that brought the protected disclosure into the ambit of the investigation. Accordingly, the Tribunal could not find that the protected disclosure was a material influence on the way that the Respondent carried out the disciplinary investigation and/or its decision to start the disciplinary investigation.

[121]For the avoidance of doubt, the tribunal did not go on to consider if the protected disclosure was a material influence on the decision to dismiss. The law does not permit a Claimant to rely on a dismissal as a detriment. The question of the influence of the protected disclosure on the unfair dismissal was considered under s.103A Employment Rights Act which is subject to a different test of causation.

[122]The fifth detriment was the Claimant was side-lined at work. It was agreed that this was only referred to his not being permitted to attend CPR training.

[123]The Tribunal found that this was a direct result of the suspension and not the protected disclosure. The claimant was not permitted access to the site and the training occurred on site. Had the claimant been suspended for another reason, the respondent would not have permitted him access to the site.

[124]The sixth detriment was that patients were removed from the Claimant’s books whilst on suspension.

[125]This, as with the CPR training, followed as a direct result of the suspension and not the protected disclosure.

[126]Accordingly, the Tribunal found that the Respondent had subjected the Claimant to unlawful detriment by impeding the access to his file on 16 August and by suspending him later that day. Unfair dismissal s.98 Employment Rights Act

[127]The first issue was whether the Respondent had a potentially fair reason for dismissal. The Respondent relied on Mr Patterson’s findings of misconduct as set out in the dismissal letter of 30 September 2021.

[128]The Tribunal considered what was the reasoning in the Respondent’s mind when it made the decision to dismiss. For the reasons set out above there were several reasons operating in the Respondent’s mind when it made the decision to dismiss. The Respondent had wanted to exit the Claimant since May, at the latest, following two unsuccessful attempts to reduce his days from three to one.

[129]Whilst the Claimant accepted that he was underutilised, the Tribunal found that the Respondent was overstating its case. It sought to persuade the tribunal that the Claimant’s utilisation was 30%, whereas according to the evidence of the Respondent, it was well over 60% - and better than that of the contractor. The Tribunal for the avoidance of doubt did not accept the Respondent’s case that the Claimant’s utilisation was sufficiently poor in late March 2021 to require the Claimant to go down from three days to one, then recovered significantly by April, and then worsened in May so much to make it sensible for exit the Claimant. This was inherently implausible, especially as the Tribunal was not taken to any corroborating evidence as to demand.

[130]The Tribunal found that the Respondent preferred the self-employed hygienist for several reasons. She represented better value for money because she was not being paid when she was not working. It was not in dispute that on an hourly basis she was more profitable for the Respondent. She was direct access and could take more patients than the Claimant. The Respondent viewed the Claimant as uncooperative because he had refused to take sufficient steps to improve his low utilisation, by chasing patients over the phone.

[131]The Respondent then tried to exit him via two protected conversations - in May and July - without success. There was no dispute that Mr Patterson and the Claimant discussed Claimant wanting £600,000 in compensation. Mr Patterson concluded that the Claimant was not going willingly and there was no realistic prospect of an acceptable settlement. The Claimant then raised other grievances and became in effect more time consuming to manage.

[132]The Respondent then discovered that the Claimant had been making covert recordings. He then failed to provide the recordings despite saying he would do so being provided with a means of doing - a USB. He provided inconsistent and different explanations as to why he refused to do so. The Tribunal accepted that Mr Patterson genuinely believed that the claimant brought the police onto site in order to intimidate the Respondent out of chasing the recordings. The Tribunal accepted his evidence that he could see no good reason why the Claimant would think it appropriate to call the police over a private contract matter, particularly where the alleged forgery provided no clear benefit to the Respondent and was contained in a document dated years prior to the transfer of the business to the Respondent. Mr Patterson was influenced by the timing of the claimant’s allegation. He made the forgery allegation and invited the police just as the Respondent was putting on pressure to obtain the recordings.

[133]The Tribunal therefore accepted Mr Patterson’s evidence that he believed that the Claimant was raising the forgery issue in order to intimidate and was doing so in bad faith.

[134]The Claimant had been specifically told not to record the suspension meeting and that any such recording would be viewed as gross misconduct. Mr Patterson believed that he nevertheless did record the meeting and then lied about it.

[135]In view of the Tribunal the Respondent may well have taken advantage of the Claimant’s misconduct to rid themselves of somebody they viewed as a troublesome employee. The original deadline to provide the recordings on 10 August was entirely unrealistic and deeming a failure to comply as gross misconduct was entirely unreasonable. Nevertheless, the Respondent quickly backtracked and extended the deadline and gave the claimant a USB in order to facilitate the transfer. Although it was clear to the Claimant that the Respondent was only seeking copies and not originals, the claimant failed to provide all the recordings by the time of the dismissal. In any event, the respondent had not sought to dismiss the Claimant prior to the recordings issue.

[136]Whilst there were other reasons, the principal reason in the employer’s mind at the time of dismissal was misconduct. As the Respondent had a potentially fair reason for dismissal, the tribunal went onto consider reasonableness.

[137]The Tribunal firstly considered the procedure. It considered the so-called Burchill test - did the Respondent have a reasonable and genuine belief in the Claimant’s culpability based on a reasonable investigation, with the caveat that the burden of proof is now neutral. When a Tribunal comes to consider the reasonableness of a Respondent’s investigation, it may not substitute its view of the reasonableness of the investigation for that of the Respondent. The Respondent need only show that the investigation came within a band of investigations available to a reasonable employer in the circumstances. This is often referred to as the “band of reasonable responses test.”

[138]The Tribunal found that there were flaws in the investigation. Ms Oates was the subject of grievances by the Claimant. She had previously been involved in trying to reduce his hours. However, this was a relatively small organisation, and the Tribunal was concerned that an employee should not be able to in effect choose their investigating officer by taking people out of the picture by grieving against them. The Claimant was informed of the charges against him and was permitted to have a union rep in attendance. Witnesses including the Claimant were questioned and the Claimant was given a full opportunity to know the case against him and to make his case. Considering the investigation in the round, the involvement of Ms Oates was insufficient to take this investigation outside of a range of investigations available to a reasonable employer in the circumstances.

[139]The Tribunal then considered whether this investigation led to a reasonable and genuine belief in the Claimant’s culpability. The reasonableness of the Respondent’s belief is also subject to the so-called band of reasonable responses test. The tribunal must determine if the belief of the Respondent comes with a range of beliefs available to a reasonable employer in the circumstances.

[140]In respect of the first charge, the Respondent knew that the Claimant had refused to provide recordings, and it believed that there were more recordings that the Claimant had not provided. Mr Patterson simply did not believe the Claimant when he said, I was bluffing, that is, that he did not have more recordings, especially when immediately after meeting the Claimant provided another recording. The Claimant’s account of the number of recordings was highly inconsistent and unsatisfactory.

[141]In respect of the forgery and the police, the Respondent relied on the timing of the forgery allegation. For Mr Patterson, it was suspiciously convenient for the Claimant - who was under pressure to provide the recordings - to then discover a forgery and bring in the police.

[142]In view of the Tribunal, it was reasonable for Mr Patterson to believe that the Claimant did this in bad faith and in order to intimidate. This is so, even if we now know this was not the claimant’s motivation. Mr Patterson could see no apparent benefit to the Respondent in any forgery. The Respondent had not sought, for instance, to take advantage of the temporary zero hours clause in the contested contract, which might have provided a logical motive for the forgery. The Respondent, as Mr Patterson pointed out, only relied on the contested contract in respect of the data protection clause, which was contained in another document, which was not contested.

[143]In respect of the third charge Mr Patterson believed that the Claimant had recorded the suspension meeting and had lied about it. The claimant’s account of his conduct in the suspension meeting was not plausible. There were two witnesses against the Claimant who gave a very detailed account of his having a phone. The context was the Claimant having previously recorded colleagues without consent. The Respondent believed the Claimant had at the time said he did not care about the prohibition of recording. The Tribunal found that Mr Patterson reasonably believed that he had not said, I get you there. It was not likely that two witnesses would have misheard. In any event, I get you there, was a much less likely thing to say in context, than I don’t care. The tribunal, again, could not take into account the fact that before the hearing, the claimant admitted that he had not told Mr Patterson the truth about this.

[144]Accordingly, the Tribunal found Mr Patterson had a reasonable and genuine belief that the claimant had committed the three acts of misconduct.

[145]The Tribunal went on to consider whether the Respondent had otherwise followed a fair procedure. The Tribunal may not substitute its view of what constitutes a fair procedure for that of a Respondent. The question is whether the procedure adopted by this Respondent came with a range of procedures available to a reasonable employer in the circumstances.

[146]The Tribunal found that this was an unexceptional procedure. There had been an investigation producing an investigatory report. The Claimant had seen the documents including the report and all witness statements before the dismissal meeting. He was accompanied by a union representative in both meetings. He was warned of the charges and the possibility of dismissal.

[147]Between the investigatory stage and the disciplinary stage, a new charge was added in respect of forgery and the police. The Tribunal found that this was not enough to take the procedure outside of a reasonable range. The Claimant was well aware of the circumstances of the new charge. The facts – that the claimant alleged forgery and brought the police on site - were not in dispute. It was only the Claimant’s motivation. He had a full opportunity in the dismissal meeting to defend himself from this new charge.

[148]The tribunal identified one potential flaw in the disciplinary procedure; after the meeting Mr Patterson spoke to other witnesses and did not give the claimant a chance to deal with this new evidence. However, the Tribunal was not able to identify anything specific that disadvantaged the Claimant. The tribunal, accordingly, found that this was insufficient to take the procedure outside the reasonable range.

[149]If, however, the procedure did fall outside of the reasonable range, this flaw was cured on appeal. The Claimant was given a full and fair appeal and had possession of all the evidence. Accordingly, the dismissal was procedurally fair.

[150]The Tribunal went on to consider sanction. Again, a Tribunal must not substitute its view of an appropriate sanction for that of a Respondent. The question is - did the sanction of dismissal fall outside of a range of sanctions available to a reasonable employer in the circumstances?

[151]The circumstances were that the Respondent genuinely and reasonably believed - following a reasonable investigation - that the Claimant had made covert recordings of his colleagues which he had failed to hand over, that he had sought to intimidate the respondent out of obtaining the recordings by bringing the police on site and making a forgery allegation, and that he had recorded the suspension meeting knowing that this would be regarded as an act of gross misconduct, and then denied doing so.

[152]The Claimant was specifically warned not to record any further meetings by way of the letter of 10 August and that the Respondent would view such action as gross misconduct. However, he went ahead and did so. The Respondent’s view was it simply could no longer trust him and it could not trust him not to do it again. Further, the Claimant did not show any remorse or any intention of changing his behaviour. For instance, when he was asked about the police investigation, he said - you will find out. Whether or not this was intended as a threat, this led the Respondent to conclude that that he did not take their concerns seriously.

[153]In circumstances where an employer has found its employee untrustworthy and when the employee has made covert recordings in the knowledge that this would be viewed as gross misconduct, the Tribunal could not but find that the decision to dismiss came within the reasonable range. Wrongful Dismissal

[154]This claim involves very different legal questions to that of unfair dismissal. The respondent must show that the Claimant was guilty of gross misconduct, that is he did something so serious that the Respondent was entitled to dismiss without notice. The respondent must show that the claimant’s conduct was such that it repudiated the contract. Such conduct is often described as going to “the root of the contract” between employer and employee. See Western Excavating (ECC) Ltd v Sharp

1978 ICR 221

, CA and Neary and anor v Dean of Westminster

1999 IRLR 288

[155]The Respondent relied on the reasons in the dismissal letter. However, following the Employment Appeal Tribunal judgment the Respondent no longer relied on the charge relating to bad faith / forgery as an act of gross misconduct. Therefore, the Tribunal had to consider whether the two remaining acts amounted to a fundamental breach.

[156]The Claimant knew that a failure to provide the recordings would be regarded as gross misconduct. He failed to provide the recordings. The Claimant had told the Respondent that he did not have any more recordings. He told the respondent that he had been bluffing when he said he had more recordings, that is he told Mr Patterson that he had earlier deliberately misled his employer. In fact, he was not telling the truth to Mr Patterson and was deliberately misleading his employer at the dismissal meeting. Secondly, he had recorded the suspension meeting when he had been told this would be viewed as gross misconduct. He again did not tell the truth about this and deliberately misled Mr Patterson. The Claimant carried out an act he knew would be regarded as gross misconduct and then deliberately misled the employer by saying he had not done so.

[157]The Claimant told the employer things he knew to be untrue in the investigatory and dismissal meetings about this in order to conceal what he had done. In the view of the Tribunal this must go to the root of the contract between an employer and an employee. The tribunal accepted that this conduct breached the fundamental duty of mutual trust and confidence implied into every employment contract.

[158]Accordingly, the Claimant was in fundamental breach of his contract of employment and the Respondent acted lawfully in dismissing him without notice. Limitation

[159]The Tribunal has found that the respondent subjected the claimant to unlawful detriment when it impeded his access to his file on 16 August 2021, and further when it suspended the Claimant that same day. The tribunal considered whether these claims were started within the statutory time limits.

[160]The tribunal firstly determined when time started to run. There was no dispute that the respondent had refused access to the file on 16 August. The Tribunal considered whether the detriment of suspension was limited only to 16 August. The Tribunal had found that it was the act of suspension on that day which constituted the detriment following the protected disclosure. The next step which was the letter containing the charges made no reference to the protected disclosure or the police. It was the Claimant who bought the protected disclosure back into consideration. Accordingly, the Tribunal was satisfied that time started to run from the date of the suspension that is from 16 August 2021.

[161]According to s.48 Employment Rights Act 1996, a claimant must take the first steps in Tribunal proceedings, that is starting ACAS conciliation, within three months less one day of the act relied on. The claimant had contacted ACAS on 29 October 2021, that is within three months less a day of 16 August 2021. The issue was the date on which he presented the tribunal claim, 23 December 2021.

[162]In effect, there are two routes to a claim being made in time taking into account the operation of ACAS early conciliation. By the first route the Claimant must have made his claim to the Employment Tribunal by 15 November 2021 (the original time limit) - plus the time spent in conciliation (the extended time limit). By 15 November the ACAS early conciliation period had ended. Adding the period of the ACAS early conciliation to the 15 November 2021, the time expired no later than 19 November 2021. Accordingly, the claim was out of time by just over one calendar month.

[163]There is a second route. A claim is made in time if it is presented within a month of the date of the ACAS certificate, in this case 1 November 2021. Therefore, the claim would have been in time if it had been presented by 1 December 2023. As the claim was presented on 23 December 2021, the Claim was out of time by just over three weeks.

[164]The tribunal went on to consider firstly whether it was reasonably practicable for the claim to be made within the time limit. The burden of showing this is upon the claimant.

[165]The test of reasonable practicability is one of fact and not of law. Reasonably practicable means reasonably feasible, see Palmer and anor v Southend-on-Sea Borough Council

1984 ICR 372

, CA. When considering if it was reasonably practicable to comply with a time limit a tribunal must apply a liberal test in favour of the claimant. If a claimant says that he was unaware of his rights or of time limits, the correct test is not whether the Claimant knew of his rights, but whether he ought to have known of them, see Dedman v British Building and Engineering Appliances Ltd

1974 ICR 53

, CA and Porter v Bandridge Ltd

1978 ICR 943

, CA.

[166]In Palmer the Court of Appeal also confirmed that the existence of impending internal appeal is not in itself enough to justify a finding it was not reasonably practicable to present a claim in time.

[167]The Tribunal took the view the reason the Claimant did not promptly start the Employment Tribunal process in respect of the detriments was that he was still employed and undergoing an investigation. Taking into account in particular the industrial knowledge and experience of its lay members, the tribunal could not see how it would be in the interests of good industrial relations to penalise a Claimant who fails to bring a claim to a Tribunal because he has been suspended and the investigatory and disciplinary process is ongoing.

[168]This point was nevertheless not of assistance to the Claimant because he received the appeal decision on 29 October 2021, the date he started ACAS early conciliation. This was more than a month before the time limit expired. It was also difficult to see how it could not be reasonably practicable to present the claim before the outcome of the appeal when the claimant told the appeal officer in terms that he did not believe the appeal would succeed. From the claimant’s point of view at the time, there was nothing to lose in starting the tribunal process.

[169]Time limits in a multiple detriment case are not entirely straight forward for a lay person and the claimant brought his claim before the expiry of the time limit for his dismissal. However, the claimant was an educated man. He had long been worried, if not suspicious, about his position at work, as shown by his recording his colleagues and his belief that a contract had been forged. In these circumstances, the claimant had not discharged the burden on him of showing that it was not reasonably practicable to comply with the time limit in circumstances when it was open to him to seek advice or research the law.

[170]Accordingly, the Tribunal does not have jurisdiction over the claims in respect of the detriments which occurred on 16 August 2021.