Employment Judge Paul StewartIn person for claimantMrs Sally Cowen (instructed by Counsel) for respondentDate 19 December 2019
JUDGMENT
The unanimous judgment of the Tribunal is that the claims of detriment and dismissal following a protected disclosure are dismissed.
REASONS
[1]This claim was set down to be heard over four days in November 2018. Four days proved to be insufficient so two further days in December were found for the hearing to be completed. However, when the parties convened for the first of these additional dates, they were informed that one of the members, Mr Hoque, had very recently suffered a close personal bereavement and was, in consequence, unable to attend on either of the days set down. In consequence, the matter was delayed until the parties and the Tribunal could reconvene. That was not until 25 June 2019. The Tribunal reached its decision that day with the Employment Judge undertaking to write up the judgment and reasons. However, that undertaking has not been complied with until now and the parties are owed, and are offered, an apology for the delay.[2]The Claimant clarified his claim at a preliminary hearing on 9 February 2018. He confirmed that he was not bringing a claim of “normal” unfair dismissal where the fact that his employment had only lasted less than two years might have been material. The claims he was pursuing were of detriment and dismissal for whistleblowing. He relied on only one communication as being a protected disclosure, that being an email to Ms Blom on 29 June 2017. Oral exchanges before that date were background and were not relied upon by him as additional protected disclosures.[3]The Tribunal heard evidence from the Claimant and from five witnesses called on behalf of the Respondent, namely: a) Ms Virginia “Jinny” Blom, the principal shareholder and director of the Respondent company; b) Mr Philip Flockhart, an architect and a friend and colleague of Ms Blom c) Ms Živilė Mačiukaitė, the holder of a master’s degree in landscape architecture from Cornell University, USA and a licensed landscape architect in the state of Massachusetts, who has worked for the Respondent as a landscape architect since 2014; and d) Mr Chris Page, an accountant employed by Charter Tax who provide a “growing outsourced Finance department role” to the Respondent business.
The Facts
[4]The Claimant was born in June 1982. He qualified as an architect, undertaking a BSc in General Architectural Studies and an MSc in Architecture from the University of Bath completing the latter in 2006 and an RIBA Part III Practice and Management at Oxford Brookes University, completing that in 2009. He had professional experience that started in 2006 and, by November 2015, he had been working as a senior architect for Michaelis Boyd Associates since July 2014. In that capacity, he had had dealings with the Respondent.[5]The Respondent is a company that is the creation of Ms Blom. From a background of 11 years’ work in a residential mental health charitable trust, starting out as a support worker, qualifying as a qualified transpersonal psychologist and finishing for the last three years as the Co-Director, she turned her attention in 1996 to landscape design, initially working for an established landscape designer before setting up her own design studio and incorporating her business into the Respondent company in 2005. In her landscaping design business, she has been successful and, in her dealings with the Claimant whilst he was working for Michaelis Boyd Associates, she was a factor in the Claimant’s development of an ambition to train as a landscape designer.[6]In November 2015, the Claimant responded to a vacancy on the Respondent’s website that indicated the Respondent wanted to hire “an architect looking to move to landscape design”. This led to negotiations which culminated in the Respondent offering the Claimant “a 3-day week job as a chartered part 3 architect transitioning to landscape architecture”. That it should be a part-time role was the Claimant’s idea designed to allow him to continue working on a personal writing project while training in landscape design. Ms Blom wrote to Michaelis Boyd Associates on 3 March 2016 announcing she had offered the Claimant “a short-term part-time contract to see if his dreams of landscaping accord with the peculiar reality …” Although she had described it as “short term”, Ms Blom clarified with the Claimant that it was a permanent job. He started work with the Respondent on 14 March 2016.[7]By April 2016, the Claimant was working on three landscape projects and enjoying the work. However, he developed concerns that Ms Blom had not been, as he put it, “truthful in her job offer”. These concerns arose because, on one project, Ms Blom asked him to do some concept sketches for a safari lodge while, on a different project, he realised that Ms Blom had persuaded the client to appoint her to deliver all the ancillary buildings in the landscape masterplan which comprised an art studio, pool house, staff accommodation, garage, play barn, guest cottage and lake house. He had originally understood the Respondent was working with an architect who was delivering the architecture. However, it appeared that the Respondent was undertaking a serious architectural project requiring a full architectural service. This caused him to feel somewhat misled by Ms Blom. Ms Blom’s readiness to undertake architectural projects in-house and involved the Claimant in providing the architectural input appeared to the Claimant to run contrary to his ambition to train as a landscape designer.[8]On another project, referred to simply as Highbury, the Respondent was appointed to design the garden to a large townhouse in Islington. The client had appointed an architect to design an extension to the house but had disliked the design that was produced. With the Claimant working for the Respondent, Ms Blom persuaded the client that she could deliver the extension as well as doing the work on the garden. The result was that client dismissed the architect and hired the Respondent to produce the extension.[9]This led to tensions between Ms Blom and the Claimant because the way in which the Respondent conducted her landscape design business was somewhat at odds with the formal requirements of an architect’s practice. The Claimant considered that compliance with those formal requirements was necessary in the provision of his professional services as an architect. After a client meeting on 24 May 2016, the Claimant asked Ms Blom about standard items of appointment, such as an agreed construction budget, a programme, a clear scope of work and a fee proposal. His question merely served to anger Ms Blom who told him that she knew better than he did as to how her business worked and that he should focus on completing the work and not on questioning her.[10]However, on this project, the Respondent’s business model proved contentious with the client. The project was set up as an unlimited time charge being costed at an hourly rate instead of what, to the Claimant, was the normal fixed fee for concept design. That fixed fee had been removed from the terms of the engagement. When £31,000 of fees had been run up and the client was refusing to pay as she had not been prepared for such a charge, Ms Blom took the view that, as the Claimant was the architect, he could sort it out. In discussion with the Claimant, the client indicated she was considering a formal complaint to the Claimant’s professional body, the Royal Institute of British Architects (RIBA), whose head she had spoken to. Although RIBA is not the regulatory body for architects, that being the preserve of the Architects Registration Board (ARB), it sets the standards that are upheld by the ARB and so the Claimant was not merely concerned but, as he put it, “very scared”.[11]The Claimant explained his concern to Ms Blom but she affected not to care. The Claimant was required to chase the Client for the fees while considering himself at risk of a complaint being made to his regulatory body because, as he saw it, no complaint to a regulatory body could be made about the Respondent as neither it, nor Ms Blom, was a member of any professional body.[12]As it turned out, the client paid the bill but not before the Claimant had incurred, and suffered, considerable stress which led to him suffering stomach pain and reflux for which his GO prescribed Omeprazole, a drug designed to reduce stomach acid.[13]On another project entailing the refreshment of some balconies in Belgravia, the Claimant again found himself at odds with Ms Blom. An estimate for the design fee had been given to the client for £21K to £25K This did not include the cost of construction. The standard terms of appointment provided that the Designer would charge for time spent on the project. On 14 September 2016 during the construction phase, Ms Blom complained that the invoices rendered hitherto were too small. She wanted to apply a mark-up on all third-party items supplied, such as plants and tiles. When the Claimant asked what kind of mark-up she had in mind, she replied that she was inclined to double the cost of third-party items unless that troubled the Claimant.[14]Ms Blom then instructed her PA to add time to the Respondent’s timesheets and to provide for a 50% mark-up on the cost of third-party items. These changes enhanced the cost of the service being charged to the client from an original price of £13.1K to £23.7K. The revised invoice was submitted to the client whose accountant then requested a breakdown. When the Claimant asked Ms Blom how she might like to deal with the request, she replied “No idea, damn”. Later that day, Ms Blom instructed the Claimant to request a new invoice from the plant supplier so that the price of the supplied goods matched that contained in the revised invoice of the Respondent – in other words, to show a 50% increase in the cost of the goods they had supplied. This led to an email confrontation between the Claimant and Ms Blom which resulted in Ms Blom contacting the plant supplier and securing from them a new invoice for the inflated price. The Claimant formed the view that Ms Blom’s behaviour amounted to fraud.[15]In January 2017, a young woman that we will refer to as M who was an American citizen interviewed for a job with the Respondent having just finished a post graduate course at University College London. The Respondent wished to employ her and so it offered her a job and applied to the Home Office for a sponsor license and a work visa for her. It obtained a sponsor licence with a start date of 15 September 2019 but Ms Blom did not want to wait until that date before employing M. She arranged for M to begin working on a client facing role soon after the job offer was made. Ms Blom instructed employees at an office meeting to delete all emails that indicated M to have started working for the firm and not to mention M in the office. For her part, M was to work from home making use of her own computer. She was to be paid in cash. On invoices presented to clients, M’s time was to be presented as having been time spent by Ms Blom’s PA. And, if there were insufficient days in the week to log both the work that the PA and M had done, the time spent by M was to be treated as having been worked at the weekend. In consequence, on certain bills detailing work done in June and July 2017 and relating to a project we will refer to as WB, it appeared that the PA had worked 4 Sundays and 2 Saturdays. Working at the weekends was something no one in the Respondent company did.[16]These methods adopted by Ms Blom were viewed by the Claimant as malpractices and it is clear from the way he wrote his witness statement that, at times, he let his critical view of Ms Blom’s methods show, an approach which led Ms Blom, on at least one occasion, to accuse him of not knowing what he was talking about.[17]In February 2017, the Respondent was appointed to carry out a landscape masterplan for a new gardening school south of London. The following month, the Respondent was appointed to design a landscape masterplan for a site that we will refer to as W. The initial design work was for a fixed fee which, in the case of the school, was £5,000 and, in the case of W, was £20,000. From the outset, Ms Blom expressed a desire to get appointed to carry out architectural work on both sites. The initial design work was completed by June 2017 and Ms Blom then asked the Claimant to prepare estimated time charge fees for the next stage of the work. This led the CEO of the organisation in charge of the W site to query the large time charge fee proposal. The CEO was an experienced commercial client and referred in the email in which the query was raised to the fee practices that are standard with architects, that is, having fee stages, whole project costs and fixed percentage-based fees. This accorded with a suggestion that the Claimant had proffered after he had observed the difficulties encountered in the Highbury project to the effect that the Respondent could use standard RIBA appointment terms and conditions, a suggestion that had not been taken up.[18]Thus, towards the end of June 2019, the Claimant was far from being a contented employee of the Respondent. He felt his original role had been changed without him being consulted. Instead of receiving training in landscape gardening design, he perceived himself being used by Ms Blom as an architectural arm of her business. He perceived Ms Blom as engaging in what he saw as malpractice and he also perceived her to be impatient with any concerns he expressed concerning his professional position as an architect undertaking these the Respondent’s architectural commissions without making use of the ROBA terms and conditions. The architectural commissions that Ms Blom hoped to obtain from the school comprised a new restaurant, café, plant shop, deli, teaching spaces, student accommodation, staff apartments and ancillary buildings. At W, the architectural work would involve a new restaurant and bar, a visitor centre, retail spaces and workshop units.[19]The Claimant wrote an email in which he stated some of his concerns and sent it to Ms Blom on 29 June 2017 at 1813 hours. He wrote: (The CEO at W) is essentially assessing whether or not the whole cost of hiring us as lead designer for both landscape and architecture is one the client wishes to take. The ARB would assess £20K for the initial feasibility / concept scheme is already a substantial expenditure on behalf of the client – this is based both on what it would cost us to produce and by comparison to the construction industry averages. The ARB expects a competent architect to be capable of proposing a complete fee that covers the whole project from inception to completion. This is to ensure the client can plan the cost of the design service against the overall outcome of the project. There is nothing in the scheme for W that the ARB would contemplate as unusual or difficult to predict. The ARB would see everything within the client brief so far as a typical design commission. It would therefore expect a competent architect with appropriate experience to be able to define the fee and manage the expenditure of the fee to ensure the project is serviced to completion. This is the level of risk and liability the ARB expects its members to take on. The ARB or RIBA does not define what an appropriate fee is. We can charge as much as we like. But this fee must be transparently evident at the beginning of the project so that the client knows what they are signing up to. Likewise, the appointment terms must be transparent at the beginning of the commission. At the moment the overall potential fee expenditure is far from clear for the client. And having defined the scope of the project in a very clear feasibility, the ARB will expect us to have no reason not to now define the full fee. (The CEO and her organisation) are experienced client representatives. And the request for another large additional time charge element has stood out as unusual. I think that this is apparent in (the CEO’s) email. The same principles apply to (the School) – although having only spent £5K thus far, there may be room to argue a further small time charge segment is appropriate. But the ARB would argue that the next steps for project set up are routine in the architect’s job role and there will not be a strong argument for requiring a time charge basis. … I know I’m being serious. But things are really quite serious now![20]Ms Blom gave a holding response at 1845 hours and then, at 1852 hours, wrote: Tin I appreciate your concerns but this level of agitation is on helpful when I’ve already explained that we have Martin and Philip Flockhart of MSA in place and I am clearly away working extremely hard. All best Jinny[21]The Martin referred to was Mr Martin Mulligan, a person that Ms Blom was considering appointing as Architectural Co-Director and Mr Flockhart was an architect working for Morris and Steedman Associates. The Claimant viewed the assertion that “we have Martin and Philip Flockhart of MSA in place” as being half-truths. Martin was, to the Claimant’s knowledge, not appointed and, as he put it in his oral evidence: “if Philip Flockhart was on board, why was she bothering me with it?”[22]The Claimant then wrote a further email to Ms Blom at 2048 hours, the one he relies upon as being his protected disclosure. In it, he said the following: Hi Jinny I feel I need to communicate what my professional body expects of me. Unfortunately for me, the ARB’s view is that if my employer asked me to proceed with something that is not in accordance with their standards of conduct, then I am expected to refuse. The impact this might have to my employment is not a mitigating argument the ARB would have any leniency for. This is the position I find myself in – and not one I would wish for. (The CEO’s) email highlights problems in the office that are long-standing and I have been trying to approach them since I started at the firm. But each time I try to have a discussion about standard appointment and job running practice, I find that there is not the time to discuss them in full nor to implement any change. Martin is not employed yet so isn’t part of the process. And working with an executive architect doesn’t remove my obligations as an architect on my current appointment. The argument I’ve encountered in the office already have precedents and expectations set against them by the relevant professional bodies. The ARB would refer to the Landscape Institute for the delivery of landscape design services. And the Landscape Institute have based their documents, appointments and project running protocols on that of the RIBA. There is little difference between the way an architectural service and a landscape service is to be provided in the view of both professional bodies. As to the artisanal nature of the work, the ARB would expect us to employ a standard method of containing these risks. In the view of the ARB, this would not affect the overall project delivery nor the ability to define an overall fee. When we first talked about my employment at JBL we discussed small built elements in the landscape – pavilions, garages, sheds, greenhouses and follies. Setting up a fully-fledged architectural division with all the standards and compliance that come with it weren’t part of my anticipated role. My interest was to move into landscape design whilst keeping in touch with some architectural thinking. Martin has already indicated there is urgency in his appointment as setting up an architectural division would require substantial digestion and assimilation of different appointment and job running practices. These issues can’t be avoided by employing an executive architect for the later stages of design work. I’ve been trying to set up a meeting to run through these implications but have felt that this has been side-lined. My preference would be that Martin run through these professional and business set up issues as I don’t feel adequately equipped to advise you on this process. I am concerned my lack of experience in setting up an architectural division will expose the business and our clients to unnecessary risk. Maybe you could hire him on a short-term basis as a consultant with scope just to cover the set up process? This would give you further time to arrange a longer term and permanent role later. My suggestion would be to be open with these new clients that setting up an architectural division is something you wish to do in light of winning these projects. And ask them to give the firm the time to do this. This would allow you to go through these issues with Martin in good time rather than trying to squeeze them in now. As far as I understand neither (the clients) have a rigid project programme. And judging by their highly positive response to our pitch documents I imagine they would be willing to give you the time you ned. Being open with (the CEO) at this point in time I feel will put the project on a more secure footing and build trust. We can say that in order to set up a full appointment and fee we need time for other associated set up tasks. I feel we have reached the point where these issues can no longer be delayed. There is no way of responding to (the CEOs) request without setting up a full standard appointment. And we do not have any of the systems in place to do this. Tin[23]Of this email, the Claimant in his written evidence said: In the opening paragraph I refuse to carry out any tasks which are below the standards set by my professional regulator. For the protected disclosure, the context indicates this would include: 1. Fraud 2. Breach of legal obligations I chose to define my refusal around unprofessional conduct because this is the standard by which I am Bond – this is a fact not a personal preference. Defining my refusal this way will include the malpractice that invokes the protection of the law. But it would also widen my refusal to any other deceptive or dishonest practice that the respondent might instruct in the future.[24]The Claimant obtained disclosure of emails showing that Ms Blom forwarded the thread containing the emails of the Claimant dated 29 June 2017 to Mr Philip Flockhart with a comment from her that: If this is what I have to put up with in the name of architecture then working with you is a very exciting prospect!!!![25]And when Mr Flockhart responded with the opinion that all the emails suffered: … from issues been pinned around in long winded emails (not from you!) That should be discussed round the table. I don’t like the way you are being pushed by your staff.[26]Ms Blom wrote back, saying: Hysterical tranny! Yawn I push back I’m sick of being pushed around If he doesn’t get immediate face time I get these diatribes[27]The reference to “tranny!” was a reference to the Claimant who, on an office Awayday had shared his insights into homosexual men dressing as women, a practice he described as a hobby of his. The Claimant had shared his view that the practice of “drag” was an instance of gay men appropriating the insult levelled at them, that they were not really men at all but women. He also shared his view that the accusation of being a woman could be a reminder to women that those who made such accusations, in some way, did not regard women as the equal of men. The reference to the Claimant being hysterical appears, in part, to the knowledge that Ms Blom had, having been told by the Claimant, that he had suffered from a form of post-traumatic stress disorder which stemmed from an abusive childhood.[28]The Claimant continued his written evidence by giving an account of a conversation which followed his sending of the email he claims was a protected disclosure. By arrangement, he met Ms Blom outside Newbury train station on the morning of 3 July 2017 for the purpose expressed by Ms Blom of “discussing all your recent email activity”. The Claimant considered Ms Blom to be in an angry mood when she told him: The problem is you just don’t listen. I’ve told you to trust me. This is my business and you need to listen to me. You don’t understand how my business works and you shouldn’t be trying to tell me how to run it.[29]The Claimant defended himself by saying that he wasn’t telling Ms Blom how to run her business, that he was telling her that, as a regulated registered professional, he was bound by standards that were not his choice and that he could not carry out tasks below those standards. Ms Blom’s response was to assert: Well if that’s the case, Tin, I don’t think there is a place in the firm for you! The Claimant relayed this comment to the Tribunal as being a threat of dismissal that had followed upon what he considered to be his protected disclosure.[30]After that exchange in the Newbury station car park, the Claimant noticed a change in the behaviour of Ms Blom to him – she continued to laugh and joke with other employees but generally acted as though the Claimant was not there, making the Claimant feel somewhat isolated. She mostly stopped talking to him but was prepared to make fun of him in front of other staff in that she approached the Claimant at his desk several times asking, “Are you on Grindr again, Tin?”, that being a reference to the mobile phone app designed to allow gay men to meet for casual sex. The Claimant is a gay man but, when these questions were posed, he was not on his mobile phone. Further, he did not have the Grindr app on his phone. The question itself was clearly designed to draw attention to the Claimant’s sexuality. It caused the Claimant to feel he was being victimised because of his sexuality.[31]The Claimant considered that the forwarding of the email correspondence to Mr Flockhart was shorn of what he described as context, that is, his identification of those business methods employed by Ms Blom as malpractices. Ms Blom also forwarded the email trail to Mr Martin Mulligan, the architect she was considering employing. To him, she wrote on the forwarding email: Did I send this? My response to Tin He works three days a week and gets quite agitated quite often about all sorts of things – easy to manage my capacity as a psychologist… these essays from him are commonplace[32]In June 2017, the Claimant was working on 10 of the Respondent’s projects, 7 of which were landscape only projects. After the email exchanges of 29 June, he noticed Ms Blom: … slowly but consistently finding reasons to allocate my work to others. The workload in both landscape and architecture was growing and the Respondent was hiring more staff through this period and yet, my workload in both areas continue to be resourced to others. By October 2017 I had only three projects.[33]The Claimant had been managing the symptoms of his post-traumatic stress disorder with supportive therapy which had ended in April 2017. However, the situation he found himself in at work caused exacerbation of his symptoms which included nightmares, affected sleep patterns, panic attacks in the daytime, anxiety and depression.[34]In September 2017, Ms Blom had discussions with Ms Mačiukaitė who, by that stage, she had worked with for three years. The discussions centred on an announcement by the architect Mr Martin Mulligan, who by that time had joined the Respondent as an employee, that he had serious reservations “as to the value and viability of my further engagement in the practice”. In the course of these discussions, she expressed her view that:[35]I think architecture could work if we had a stable team but ours isn’t. Probably better to cut Martin loose and disassemble it all now. Later in the email thread, she expressed a concern regarding the Claimant: … in a team context. However gifted he is, he splits the team.[36]Later that same day, in an email to the Respondent’s accountant, Mr Chris Page, Ms Blom said, of Mr Mulligan’s notification that he did not wish to continue working on two particular projects, that: It puts me in a bind as Tin won’t use his qualifications in support of the projects.[37]On 4 October 2017, Ms Blom informed the Claimant that she was making him redundant. The Claimant in his statement contests the assertion that it was a genuine redundancy. He denies there to have been a genuine consultation, that there was a redundancy rationale for decreasing work and that there was a rationale behind outsourcing architectural work. His last day of service was 18 October 2017. The Claimant’s employment had lasted 19 months and 4 days.
Discussion
[38]The Claimant contends that he made a protected disclosure when he sent his email of 29 June 2017 at 2048 hours. He thus relies on Section 43B(1) of the Employment Rights Act 1996 which reads 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, [F2 is made in the public interest and ] tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.[39]Counsel for the Respondent has supplied us with a helpful review of the case law. The Claimant did not take issue with the case law so cited. In the circumstances, we adopt with gratitude the guidance that is contained in case law review and this judgment should be treated as incorporating that review.[40]We move on to the respective submissions. The Claimant urged us to have regard to the context in which he wrote the email of 29 June 2017 and cited a comment made at the preliminary hearing by Regional Employment Potter that, in order to understand what the protected disclosure was referring to, the contextual evidence needs to be considered. However, that comment does not mean that the disclosure is absolved from the requirements imposed by the statute.[41]Counsel for the Respondent has directed our attention to those requirements and thus we will follow her map through the decision-making process. Burden of Proof[42]The burden of proof rests on the Claimant to show that a protected disclosure was made. In our view, the Claimant has not discharged that burden. There was no legal obligation for the Respondent to abide by the RIBA rules on contracts. The Claimant agreed that this was the case. In such circumstances, it is difficult to see how the Claimant can ever satisfy the requirements of the burden of proof as expounded by His Honour Judge McMullen in Boulding v Land Securities Trillium (Media Services) Ltd1, to wit: As to any of the alleged failure is, the burden of proof is upon the claimant to establish upon the balance of probabilities any of the following: 1 UKEAT/0023/06 (3 May 2006, unreported)(a) There was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on.(b) The information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which is subject.[43]The Claimant drew attention to his limited experience and expertise as an architect in his email but did nothing to indicate to us that such limitations were a matter of public interest even if his email could be said, contrary to our view, to have exposed a breach of legal obligation.[44]We accept the submission made by counsel for the Respondent that the Claimant did not provide information in his email: rather, he stated his opinion that the way Ms Blom was running her projects was not one he could endorse. Stating an opinion is different from conveying facts and, whilst we are mindful that the two can be intertwined (as suggested by Langstaff J of allegation and information in Kilraine v London Borough of Wandsworth2), we do not consider this email conveys facts. Indeed, while a reader of the email would understand that the Claimant was refusing to do something which he considered himself to be bound, by his professional standards, so to refuse, he does not state what it is that he being asked to do that might land him in trouble with the ARB. Counsel for the Respondent contends that the main purpose of the email was to set out the Claimant’s complaint and concern that he was not competent to carry out Ms Blom’s instructions on architectural work. We think the main purpose was to acquaint Ms Blom with the Claimant’s view that his professional standards precluded him from engaging in the Respondent’s projects in the whole-hearted way Ms Blom wanted him to. What the main purpose was certainly not was disclosure of information that a person had failed, was failing or was likely to fail to comply with any legal obligation to which he was subject.[45]The Claimant asserted in his evidence that “Ultimately this claim is about malpractice” but in his email he did not identify any malpractice. Slade J in Eiger Securities LLP v Korshunova3 identified that the ET in that case had failed to decide whether and, if so, what legal obligation the Claimant believed to have been breached. She said at paragraph 46: … in order to fall within ERA section 43 B(1)(b), as explained in Blackbay4, the ET should have identified the source of the legal obligation to which the Claimant believed Mr Ashton or the Respondent were 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 that 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.[46]Even if one could read into the Claimant’s email some assertion that the Respondent was engaging in malpractice – which we consider cannot be done – the concept of malpractice is much broader than a breach of legal obligation. To paraphrase Slade J, practices may be considered to be malpractices because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation. 2 UKEAT/0260/15/JOJ 3 [2017] IRLR 115 4 Blackbay Ventures Ltd v Gahir [2014] IRLR 416 Public Interest[47]We consider the Claimant in his email was identifying only concerns relating to his own position that had no impact on others. The guidance given by the Court of Appeal in Chesterton Global Ltd v Nurmohamed5 provides us with a series of questions that, in our view, lead to the conclusion that any disclosure made by the Claimant was not in the public interest. Detriment[48]Had we considered there to have been a protected disclosure and with the burden of proof being placed on the employer by virtue of section 48(2) of the Act, we have to consider whether the employer has proved that the protected act did not materially influence (in the sense of being more than a trivial influence) the employer’s treatment of the whistle-blower. Our conclusion is that the employer has not proved that to be the case. The reaction that the Claimant’s email provoked in Ms Blom – forwarding the email thread to both Mr Flockhart and to Mr Mulligan with derogatory comments about the Claimant – rather suggests that the concerns of the Claimant had got under her skin. If those concerns – contrary to our determination – were protected disclosures, we would conclude that the Respondent had failed to discharge that burden of proof. Thus, those matters upon which we accept the Claimant’s evidence, that Ms Blom threatened him with dismissal in the Newbury station car park, that there was systematic isolation from other employers, that there was systematic disparagement of the Claimant to other employees and to external consultants and that there was mockery of the Claimant’s sexual orientation, we consider would have been on the ground of the protected disclosure, had we found there to be such a disclosure. Furthermore, we consider the dismissal was on the ground of the position adopted by the Claimant in the email thread. As it is our view there was no protected disclosure and as the period of employment is less than two years, those conclusions do not afford the Claimant any remedy.
Conclusion
[49]For all the reasons outlined above, we must, and do, dismiss this application.