Employment Judge P KlimovIn person for claimantMr R Bhatt (instructed by counsel) for respondentDate 4 February 2025
JUDGMENT
[1]The complaint of unauthorised deduction from wages was not presented within the applicable time limit. It was reasonably practicable to do so. This complaint is therefore dismissed.[2]The complaints of direct race discriminations and harassment related to race were not presented within the applicable time limit. It is not just and equitable to extend the time limit. These complaints are therefore dismissed.[3]The complaint of breach of contract with respect to the alleged failure to reimburse the claimant for prescription glasses (£50), having been withdrawn by the claimant, is dismissed pursuant to Rule 51 of the Employment Tribunal Procedure Rules 2024.[4]The complaint of unfair dismissal for making a protected disclosure, contrary to section 103A of the Employment Rights Act 1996, is not well-founded and is dismissed. Case Number 2217111/2023 2[5]The complaint of breach of contract with respect to the alleged failure to reimburse the claimant for taxi fare (£34.90) is not well-founded and is dismissed.[6]The complaint of breach of contract in relation to notice pay (wrongful dismissal) is not well-founded and is dismissed.[7]The respondent’s costs order application succeeds in part, because:7.1 the claimant’s complaint of breach of contract with respect to the two expense items (prescription glasses and taxi fare) had no reasonable prospect of success and the claimant has acted unreasonably in bringing these complaints,7.2 the claimant’s complaint of unfair dismissal for making a protected disclosure, contrary to section 103A of the Employment Rights Act 1996, had no reasonable prospect of success and the claimant has acted unreasonably in continuing to pursue this complaint after 30 January 2025,7.3 the claimant’s complaint of breach of contract in relation to notice pay (wrongful dismissal) had no reasonable prospect of success and the claimant has acted unreasonably in continuing to pursue this complaint after 31 January 2025.[8]The claimant is therefore ordered to pay to the respondent £5,000 with respect to the respondent’s legal costs. The payment must be made within 14 days of the date of this Judgment. Employment Judge Klimov 4 February 2025 Sent to the parties on: 7 February 2025 ...................................................................... ...................................................................... For the Tribunals Office Case Number 2217111/2023 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mr Festus George Sawyerr v Clipfine Limited Heard at: London Central (in person, in public) On: 29 – 31 January, 3 - 4 February 2025 Before:
REASONS
[1]On 11 December 2023, following a period of ACAS early conciliation between 3 October 2023 and 14 November 2023, the claimant presented a claim, containing complaints of race discrimination, unfair dismissal, wrongful dismissal (notice pay), arrears of pay and other payments.[2]The respondent presented a response, resisting all the complaints.[3]At the second case management preliminary hearing on 15 April 2024, before Employment Judge Spencer, the complaints were clarified, case management Case Number 2217111/2023 2 directions given, and the final list of issues settled1. For ease of reference the full list of issues is reproduced as Annex 1 to these Reasons.
The hearing
[4]The claimant represented himself. Mr Bhatt of counsel appeared for the respondent. The parties presented a 442-page bundle of documents in evidence. At the start of the hearing, the parties presented additional documents, which I admitted in evidence. The claimant also presented a 33-sec. video clip of the incident on 12 May 2023, which I admitted in evidence. The clip was played during cross-examination of the witnesses. As was agreed with the parties at the start of the hearing, I only read the documents in the bundle, which were referred to in the witness statements, or to which my attention was drawn during the hearing. Both parties presented a chronology. The respondent also prepared a cast list.[5]There were 9 witnesses: the claimant, and 8 witnesses for the respondent:(i) Blake Wickham, HR Manager,(ii) John Stoddard, HR/IR Consultant,(iii) Fahad Butt, Security Manager,(iv) Waqas Suleria, Security Supervisor (the claimant’s direct line manager),(v) Sheik Khan, who heard the claimant’s appeal against his dismissal,(vi) Muzammel Iqbal, security officer (the claimant’s colleague),(vii) Ammar Dar, security team leader, and(viii) Erhan Yildiran, head of security.[6]All witnesses gave sworn evidence and were cross-examined2.[7]The claimant presented a statement by Paul Arnill. However, Mr Arnill did not come to give evidence. I have read his statement. It does not contain any relevant evidence of the factual matters in dispute. Instead, it contains various broadbrush allegations about the respondent and its staff and praises the claimant. Furthermore, the respondent’s documentary evidence suggests that Mr Arnill left the respondent’s employment on 15 September 2022 (well before many of the events pertinent to this claim) in the circumstances when he was facing a disciplinary process for gross misconduct, which could have resulted in his dismissal. Considering these circumstances, and because Mr Arnill’s evidence were not tested in cross-examination, I gave little weight to his statement.[8]On day 3 of the hearing, the claimant said that he wanted to call Mr Ilori as his witness, instead of Mr Arnill. The claimant did not provide a witness 1 The List of Issues was in two parts: the first part recorded in the case management orders dated 24 April 2024, and the second – in the EJ Spenser’s subsequent orders dated 18 July 2024 (allowing the claimant’s application to add a complaint of automatic unfair dismissal for making a protected disclosure, contrary to s.103A of the Employment Rights Act 1996). 2 The claimant said that he had no questions for Mr Yildiran, and only asked Mr Yildiran to confirm that they had had limited contact with each other during the claimant’s employment with the respondent, which Mr Yildiran confirmed. Case Number 2217111/2023 3 statement of Mr Ilori, in accordance with the case management directions (these should have been exchanged on 4 December 2024), or at the hearing. The claimant was unable to explain what relevant evidence Mr Ilori would be giving to the Tribunal, or why Mr Ilori was not called as his witness earlier. The claimant said that because he had Mr Arnill as his witness, who was not going to attend the hearing, he should be allowed to bring another person as his witness in Mr Arnill’s place. I did not find that argument persuasive and refused the application.[9]The respondent presented a short statement by Mr Ahmed Issa, but did not call Mr Issa to give evidence under oath. The statement dealt with a very short point, namely whether Mr Issa told the claimant on 17 June 2023 that he (Mr Issa) felt unwell and could not continue with his work duties. Mr Issa’s statement corroborated the evidence of Mr Dar and Mr Iqbal, whose evidence were tested in cross-examination. It was also in alignment with the contemporaneous documentary evidence in the bundle. I, therefore, accepted Mr Issa’s statement as corroborating evidence.[10]Having reviewed with the parties the list of issues (which both parties confirmed was agreed), I decided to deal with the time limit point first. The claimant’s claim for unlawful deduction from wages was with respect to a single alleged deduction of £360 in September 2021 (2 years out of time). The claimant’s entire race discrimination/harassment claim was out of time, with the latest alleged discriminatory conduct being on 12 May 2023 (issue 2.2.8(c) on the list of issues) – 4 months out of time.[11]The claimant said that it was a “continuing act” extending until his dismissal. However, the claimant did not complain that his dismissal was an act of race discrimination or harassment related to race. There were no other incidents or events after 12 May 2023, which he alleged were acts of direct race discrimination or harassment related to race.[12]The only allegation that could be said to be “conduct extending of a period” (within the meaning of s.123(3) of the Equality Act 2010 (“EqA”)) was the alleged failure to recognise the claimant’s good work (issue 2.2.8). However, because this allegation was put as “failure to do something” (i.e. to recognise the claimant’s good work), as I explained to the claimant at the hearing, under s.123(3) and (4) the time limit started to run from the moment when the putative discriminator had decided not to do that something (i.e. to recognise the claimant’s work). Therefore, as the latest “good work”, for which the claimant says he should have been recognised, but was not, was the failure in the incident report on 12 May 2023 to mention the claimant’s involvement in assisting a member of the public, who fell on the pavement, it meant that the time limit with respect to that latest alleged discriminatory failure had started to run from the date of that report – i.e. 12 May 20233. 3 Issue 2.2.8 (d) – according to the claimant’s complaint (p.434 of the bundle) he wrote to Mr Arnil about patrol reports on 14 March 2022. Issue 2.2.8 (e) – according to the claimant’s complaint (p.431 of the bundle) the security morning briefings started on 14 January 2023. Case Number 2217111/2023 4[13]I then adjourned the hearing to allow the parties to prepare their submissions on the time point. The claimant requested 30 minutes, which I gave him. Before adjourning the hearing, I explained to the claimant the relevant legal tests I would be applying in deciding the time issues, and that his submissions cannot be in the form of him giving fresh evidence, but he could and should refer me to the relevant evidence (including in his and the respondent’s witnesses’ statements, and in the hearing bundle) in support of his arguments why the time limits should be extended for these complaints.[14]Having considered the parties’ submissions, I decided that the complaint of unauthorised deduction from wages had not been presented within the applicable time limit, and it was reasonably practicable to do so. I also decided that the complaints of direct race discriminations and harassment related to race had not been presented within the applicable time limit, and it was not just and equitable to extend the time limit. I, accordingly, dismissed these complaints for lack of jurisdiction to hear them. I gave the reasons orally at the hearing. Written reasons for these decisions are set out in Annex 2 to these Reasons.[15]I then proceeded to hear the remaining complaints in the claim. On day 2 of the hearing, while giving his evidence, the claimant accepted that he had no contractual rights to be reimbursed for £50 he said he had paid to Oli Opticians as a deposit for spectacles that he intended to purchase. He withdrew that part of his breach of contract claim. I dismissed it upon withdrawal.[16]Following the conclusion of the claimant’s evidence on day 2 of the hearing, the respondent put the claimant on notice that it would be seeking costs against the claimant if he decided to continue with the claim. I explained to the claimant in some detail what it meant and potential costs risks he was facing. I also explained to the claimant that since his compensation claim was limited to the alleged pension loss over several weeks (which he had not quantified), one week’s notice pay, and one expense item (taxi fare) in the sum of £34.90, the total value of his claim (even if he were to succeed on all of his complaints) was likely to be no more than a few hundred pounds. I urged the claimant to seriously consider the adverse costs order risk and, if possible, take legal advice. I ordered the claimant to produce a schedule of loss to quantify his compensation claim, which he did not do, despite me reminding him again on day 3.[17]The following morning (day 3 of the hearing) the claimant confirmed that he wished to continue with the claim. At the end of the third hearing day, when all but one (Mr Khan) of the respondent’s witnesses had been heard, the respondent applied to strike out the claimant’s automatic unfair dismissal for making a protected disclosure complaint on the ground that it had no reasonable prospect of success, because the claimant had not challenged in cross-examination the respondent’s witnesses’ evidence as to the reason for his dismissal. The claimant resisted the application. In particular, he argued that he would be inviting the Tribunal to draw adverse inferences from the Case Number 2217111/2023 5 facts , which he said he would establish, and which facts would show the unfairness of the dismissal process, as proving that the real reason for his dismissal was him making a protected disclosure.
facts
[18]I refused the strike out application, because in deciding whether the claimant’s claim had no reasonable prospect of success I had to take his claim at its highest (essentially disregarding the respondent’s explanations for the the dismissal), and because of the claimant’s submissions that he would be making a positive case on causation by inviting me to draw inferences from the alleged unfairness of the dismissal process. There was another respondent’s witness (Mr Khan), who was involved in the claimant’s dismissal process (the appeal manager), yet to be heard. In the circumstances, I decided that it would be premature to strike out the claimant’s whistleblowing dismissal complaint until the conclusion of the evidence taking and hearing the parties’ closing submissions.[19]I, however, explained to the claimant that this issue might come back in play in the context of the costs warning given by the respondent. I also explained to the claimant that my decision not to strike out his whistleblowing dismissal complaint did not mean that I found his complaint as having reasonable prospect of success, but simply that in the circumstances the strike out sanction was not appropriate. I explained to the claimant that the burden to establish the relevant facts (if these were in dispute), from which he would be asking me to draw adverse inferences, was on him. I observed that whilst not all the evidence had been heard, as things stood at that stage of the proceedings, the claimant’s evidential case did not look strong at all.[20]The respondent issued another costs warning. I, again, explained in some detail to the claimant what it meant, and the risk associated with the claimant continuing with his claim. In particular, I explained the relevant legal test I would have to apply if the respondent were to make a costs order application. I also explained to the claimant that if he would be asking the Tribunal to take into account his ability to pay, he would need to make a full and frank disclosure of his financial situation (his income, outgoings, capital, liabilities, etc.) All that would need to be supported by documents (pay slips, bank statements, etc). I told him that he would need to come ready to deal with these matters at the next hearing day, Monday, 3 February 2025, and urged him to seriously consider all these issues over the weekend. The claimant said that he understood all that.[21]On Monday, 3 February 2024, day 4 of the hearing, the claimant said that he wanted to continue with his claim in its entirety. After Mr Khan gave his evidence and was cross-examined by the claimant, the parties made their closing submissions (in addition to written closing submissions exchanged earlier that day).[22]On day 5 of the hearing, I announced my judgment with oral reasons, dismissing all the complaints in the claim. These are written Reasons for this decision. The respondent applied for a costs order against the claimant. The claimant asked for an adjournment to prepare to respond to the application, Case Number 2217111/2023 6 which I granted, and then , at the claimant’s request, further extended the adjournment. Having heard the parties’ arguments on the costs order application, I reserved my judgment until 2pm on that day. I announced my decision on the respondent’s costs order application with oral reasons at 2pm, granting it in part. The written reasons for that decision are in Annex 3 to this Judgment. The Facts4[23]The respondent is a construction support services company. The claimant commenced his employment with the respondent as a security officer on 9 August 20215. The claimant place of work was the HS2 Euston construction site. The claimant’s first shift was on 16 August 2021.[24]By 3 September 2021, there were three instances when the claimant arrived for work late. On one occasion, on 2 September 2021, he failed to attend work without giving a valid reason.[25]On 3 September 2021, Mr Suleria and Mr Butt spoke with the claimant about his unsatisfactory attendance.[26]On 9 September 2021, the claimant did not turn up for work. Mr Butt tried to contact the claimant. The claimant eventually informed Mr Butt that he was not feeling well and had some cold symptoms. Mr Butt told the claimant to book a Covid-19 test and send the results before coming back to work.[27]On 10 September 2021, the claimant texted Mr Butt that his Covid-19 test was negative and he would be coming back to work “in the morning”. The claimant did not send a proof of his negative Covid-19 test. Mr Butt asked the claimant to send by email to him and to Liviu Plesu (the respondent’s health and safety manager) a proof of the negative Covid-19 test before returning to work. The claimant did not do that.[28]On 12 September 2021, at 7am, the claimant turned up for work. Mr Suleria told the claimant that he could not come to work without a proof of the negative Covid-19 test. The claimant became aggressive and started to shout and swearing at Mr Suleria. The claimant ignored Mr Suleria’s instructions and pushed his way to enter the construction site. He then started to shout and swearing at other security officers, in response to them telling him to leave the site. The claimant refused to leave the site. Contrary to the claimant’s allegations, I find that he was not abused, threatened, or assaulted in any way by any of the respondent’s staff. I prefer the 4 These findings are not intended to cover every point of evidence given but are a summary of the principal findings from which I came to my conclusions on the complaints. 5 The claimant disputed the start date, contending that it was 28 July 2023. I, however, prefer the respondent’s evidence on this issue, which was supported by the documentary evidence, in particular the claimant’s contract of employment. In any event, nothing of substance in this dispute turns on the start date of the claimant’s employment. Case Number 2217111/2023 7 respondent’s witnesses ’ evidence on this point for the reasons I explain later in the judgment.[29]Mr Suleria complained about the claimant’s behaviour to Mr Butt, who escalated the matter to Henry Young, security operations manager.[30]On 13 September 2021, the claimant raised a complaint of harassment against Mr Suleria. The complaint was investigated by Mr Young, who found the claimant’s complaints without merits. Mr Young also found that the claimant’s performance was falling short of the required standard and needed improvement, in particular in relation to timekeeping, communication, and duties.[31]On 7 October 2021, Mr Young informed the claimant about his findings and decision.[32]On 8 October 2021, the claimant emailed Mr Young, stating that he wished to escalate his complaint. He also requested a copy of his employment contract.[33]On 11 October 2021, Steward Milne, a former HR manager, responded to the claimant, saying that he would look into his complaint and asked the claimant to summarise it. The claimant replied, refusing to send a summary of his complaint before receiving a copy of his employment contract. On 18 September 2021, Mr Milne said that he would send the contract within a few days.[34]It appears that the matter was not progressed further until the following September.[35]The claimant received a contract of employment on 28 June 2022, which he signed at return. The contract stated that his start date was 9 August 2021.[36]On 1 September 2022, the claimant wrote to Mr Milne, saying that he had received and signed the contract, but before sending a summary of his complaints against Mr Butt he had raised a year ago, he wanted to know whether Mr Milne would be investigating them. It does not appear that Mr Milne replied to that question.[37]In October 2022, the claimant asked to be reimbursed for a £50 deposit for prescription glasses. He was informed that the respondent did not have a policy paying for prescription glasses and requested to provide a proof of authorisation from his management. The claimant’s management did not authorise or otherwise made the claimant believe that he could claim costs of prescription glasses on expenses. The claimant knew that, however, pursued that complaint further, later making it part of his Tribunal claim, until abandoning it at the hearing. Case Number 2217111/2023 8[38]On 22 December 2022, the claimant had a meeting with Wayne Price, Security Manager, to discuss the claimant’s historic concerns, in particular related to safety boots, prescription glasses, and blank briefing sheets.[39]On 9 February 2023, the claimant sent a lengthy email to Mr Price about the meeting on 22 December 2022, where he also listed 13 additional matters of concern, which he had not raised at the meeting. In that email the claimant, for the first time, said that on 12 September 2021 he was physically assaulted and verbally abused by Mehraj Mohammed (one of the security officers) and attacked, shouted at and threatened by Mr Suleria and Mr Dar. The claimant alleged that he was discriminated against at work by Mr Butt, harassed and bullied by Mr Suleria, and made other serious allegations about several members of the respondent’s staff.[40]On 10 February 2023, Mr Wickham acknowledged the claimant’s email, saying that the respondent would fully investigate the claimant’s “extremely serious allegations”.[41]On 13 February 2023, the claimant met with Mr Suleria for his performance review, at which Mr Suleria recorded that the claimant needed to improve his attitude towards his colleagues, his teamwork and communication.[42]On 22 February 2023, the claimant met with Osman Bolukbasi, security contracts manager, who was appointed to investigate the claimant’s complaints. As part of his investigation, Mr Bolukbasi met with Mr Suleria on 24 February 2023 and with the claimant again on 6 March 2023.[43]On 7 March 2023, Mr Bolukbasi presented his investigation report and recommendations. Mr Bolukbasi overall finding was that “..despite many allegations made by [the claimant], [he didn’t] believe there [was] enough evidence to prove these allegations to be true”.[44]On 17 March 2023, Mr Wickham held a grievance meeting with the claimant. The outcome of the grievance was sent to the claimant on 20 March 2023. Mr Wickham found that the claimant’s allegations were not substantiated and did not uphold the grievance. The claimant was afforded the right to appeal the outcome, which he did on 24 March 2023.[45]The appeal was heard by Mr Stoddard on 3 April 2023. On 6 April 2023, Mr Stoddard sent a letter to the claimant, in which he informed the claimant that his appeal was not upheld. In the same letter, Mr Stoddard warned the claimant that raising his complaints directly to the respondent’s client (as the claimant had done) had the potential to bring the respondent’s name into disrepute, which, in turn, amounted to gross misconduct, and that the claimant falsely denying doing that amounted to a fundamental breach of contract by the claimant. Therefore, these actions by the claimant may result in further investigation and disciplinary proceedings. Case Number 2217111/2023 9[46]On 12 May 2023, there was an incident on the public road next to the construction site. A member of the public (an elderly lady) tripped and fell at the pedestrian crossing. The claimant witnessed the incident. He went to bring a chair for the lady to sit down while waiting for medical help. Another security officer called the ambulance. A paramedic on a bicycle arrived a few minutes later and gave the first aid to the lady. Muhammad Raza completed an incident report form, recording the incident.[47]On 18 May 2023, the claimant raised a complaint to Mr Butt and Mr Wickham against Mr Suleria. The claimant alleged that Mr Suleria had failed to properly recognise the claimant’s role in helping the victim of the incident on 12 May. The claimant called for Mr Suleria removal from the site and alleged that Mr Suleria was “..putting lives in danger..”, “…not working in the interest of [the respondent] and the Client but his own agender” [sic], “…discouraging the team’s awareness of health, safety and general well-being on Site…”, “…compromising safety at work”. Mr Wickham asked Mr Plesu to investigate the claimant’s complaints and informed the claimant that the matter would be investigated.[48]On 19 May 2023, Mr Suleria emailed Mr Butt and Mr Wickham raising a complaint about the claimant making false allegations against him, including about the claimant previously making false allegations against Mr Suleria, which, following an investigation, had been shown to be unfounded.[49]On 24 May 2023, Mr Wickham wrote to the claimant, inviting him to attend a formal grievance hearing to discuss his complaints against Mr Suleria. In response to that email, on 26 May 2023, the claimant sent another email, in which he expanded his allegations against Mr Suleria, alleging that Mr Suleria and Mr Raza collaborated to prepare a falsified report of the 12 May incident. The main complaint was that the report did not correctly state the elderly lady’s age (65+ instead of 77), and that it was the claimant and not the paramedic who gave her the first aid, and that was not recorded in the report.[50]On 30 May 2023, Mr Plesu submitted his investigation report. In summary, Mr Plesu found that the claimant’s allegations with respect to the incident report and the handling of the incident were wrong, and that the claimant himself did not follow the correct procedure in reporting the incident.[51]On 6 June 2023, Mr Wickham held a grievance meeting with the claimant.[52]Later the same day, Mr Suleria emailed Mr Wickham and Mr Butt, complaining about the ongoing harassment and bullying by the claimant, by reason of the claimant making numerous false allegations against him. He asked for the matter to be addressed urgently, because it was taking “a severe toll on [his] mental health and adversely affect [the respondent’s] team’s overall performance”.[53]On 7 June 2023, Mr Wickham sent to the claimant a letter with the outcome of the grievance, which was that his grievance was not upheld and his allegations against Mr Suleria were found to be unsubstantiated. In the same Case Number 2217111/2023 10 later, Mr Wickham informed the claimant that Mr Suleria had raised a grievance against the claimant for making false allegations against him. The claimant was given the right to appeal.[54]On 9 June 2023, the claimant emailed Mr Wickham, repeating his allegations of Mr Suleria and Mr Raza falsifying the incident report. He also alleged that Mr Butt was harassing him but provided no details.[55]On 9 June 2023, Mr Suleria made another complaint to Mr Wickham and Mr Butt about the claimant’s conduct during the security briefing, when the claimant had shown disrespectful behaviour towards one of his colleagues, undermining teamwork and creating a hostile and unpleasant working environment.[56]On 12 June 2023, Mr Raza complained about the claimant falsely reporting an alarm in the canteen.[57]On 12 June 2023, Mr Butt raised a complaint against the claimant for making baseless allegations against him, causing a disruptive and negative work environment by fabricating incident.[58]On 12 June 2023, the claimant appealed the grievance outcome to Erhan Yildiran. The first alleged Protected Disclosure[59]On 12 June 2023, the claimant emailed Mr Butt as follows: Date: Mon, 12 Jun 2023 at 07:57 Subject: Toilets/Welfare To: Fahad Butt <fahadbutt@dipfine.com> Dear Fahad, We have been working in complex and unhealthy conditions for the past few months, as we noticed cleaning facilities removed when the security teams are on Site at weekends and bank holidays. I would like to know if this is your area or if I need to speak to John Coyle or Conor Murphy, the project manager, as this has been happening for a few months; whenever there is only the security team on Site, no cleaning occurs. We have two shifts that maintain twenty-four hours of security, and to do that on twelve hours of modifications without any clean toilets is very challenging and unhealthy. Like everyone else, our well-being should be considered on weekends and bank holidays. Yesterday I felt sick when I walked into one of the toilets in TSS; I had to tip-toe around urine on the floor since Friday night; it was very unpleasant. When I was in the NTH area, the toilet floors were awash with water and urine; the toilet pans made you feel sick as they had not been cleaned for a few days. Case Number 2217111/2023 11 However, whenever other contractors work at weekends or bank holidays, cleaners ensure they work in a clean, safe and healthy environment; why can't the same happen for the security team working at weekends and bank holidays? Would you be good enough to look into this for us so we can be safe at work? I am looking forward to hearing from you. Thanks. Best regards, Festus.[60]Mr Butt forward the claimant’s email a few minutes later to Conor Murphy, Operations Manager, stating: “Please see the concerns raised by one of the security officers”.[61]The claimant also sent to Mr Butt several photographs of the toilet, showing the toilet bowl with a faecal smear and the toilet floor with some liquid on it. The claimant later, on 29 June 2023, sent these photographs to Mr Stoddard. Mr Stoddard then spoke with Mr Butt, who told Mr Stoddard that the claimant had raised this issue with him several weeks before.[62]On 17 June 2023, the claimant falsely reported that Mr Issa was unwell and could not continue patrolling. He told Mr Iqbal to call Mr Dar for Mr Dar to come and replace Mr Issa on the patrol. Mr Dar came and spoke to Mr Issa, who said that he was feeling fine and could continue his duties. Mr Iqbal made a complaint about the claimant about making this false report and about an incident a few days earlier, when the claimant accused Mr Iqbal of doing nothing and just sitting at the reception (which was Mr Iqbal’s security post) and watching television. That was done during a morning briefing in the presence of other staff members, which made Mr Iqbal felt humiliated.[63]On 18 June 2023, Mr Raza emailed Mr Butt, complaining about the claimant falsely reporting on 17 June 2023 that Mr Issa was unwell and was unable to continue patrolling. Mr Raza said that following receiving that information he had immediately contacted Mr Issa, who had told him that he was fine and was able to continue, but he still had decided to instruct another security officer to replace Mr Issa on the patrol. Mr Raza also said that during the daily briefing he had told all members that there were limited cleaning facilities during the weekend and the security staff were expected to clean after themselves when using the facilities. He said that the claimant had “exhibited an unusual reaction, seemingly disapproving of his responsibility in this matter”. Mr Raza complained that it was “the third consecutive week in which [the claimant had] manufactured issues that do not actually exist, presumably to portray supervisors or team leaders as neglectful towards their team members. However, this portrayal [was] entirely untrue.”[64]On 20 June 2023, Mr Butt wrote to Mr Wickham, complaining that the claimant’s “..behaviour is becoming extremely concerning. We have observed that his interactions with colleagues are unprofessional and inappropriate. Case Number 2217111/2023 12 One of his patrol team members who worked with him last week has also expressed concerns about his behaviour….”. Second alleged Protected Disclosure[65]On 20 June 2023, the claimant emailed Mr Butt again about the cleanliness of the toilet facilities. He wrote: From: Festus George-Sawyerr < usgeorgesswyerr@gmail,con > Date: Tue, 20 Jun 2023 at 14:40 Subject: Fwd: Toilets/ Welfare To: Fahad Butt <fahadbutt@diofine.corT > Dear Fahad, This is a follow-up to my email over a week ago about the inadequate sanitation facilities on weekends, bank holidays and Christmas when there are only Security Guards on Site. I am concerned about the unsanitary conditions and the risk of illness and disease transmission on Site; for example, one of my colleagues, Issa, fell ill towards the end of the shift on Saturday and could not continue the patrol schedule, even though there was some cleaning going on while other contractors were on Site for half a day or so. Please give this your urgent attention, and if this is not your area of concern, please let me know. I look forward to hearing from you. Thank you. Best regards, Festus.[66]A few minutes later, Mr Butt forward the claimant’s email to Conor Murphy.[67]On 23 June 2023, Mr Yildiran heard the claimant’s grievance appeal, which he did not uphold. Mr Yildiran found that there was no basis whatsoever to remove Mr Suleria. The claimant was advised of the outcome on 28 June 2023.[68]On 29 June 2023, the claimant was suspended from work pending the investigation into the disciplinary matter against him. The letter listed the allegations against the claimant as follows:• Making false allegations against your supervisors• Refusing reasonable instructions• Raising grievances on issues that are unfounded• Raising grievances on issues that dated back 12 to 18 months or more• Causing disruption on site and creating animosity among your peers and supervision• Raising a grievance with our client then denying your actions• Trying to undermine supervision• Lying to colleagues• Bullying, intimidation & threating behaviour• Bringing false allegations and denying your actions is considered to be a fundamental breach of your contract of employment[69]The letter warned the claimant: “You should be aware that should the allegations be proven, they could constitute Gross Misconduct under the Case Number 2217111/2023 13 Company Disciplinary Procedure and the penalty awarded may result in a summary dismissal without notice”.[70]The claimant was invited to attend a disciplinary hearing on 4 July 2023. At the claimant’s request, the meeting was rescheduled to 6 July 2023. Before the disciplinary hearing, the claimant was provided with the statements made by his colleagues, in which they complained about the claimant.[71]On 6 July 2023, the disciplinary hearing was held. The claimant attended with a companion, Frank Oto. The disciplining hearing panel comprised of Mr Wickham and Aiden Sterling, Senior Security Manger. During the hearing, Mr Sterling asked the claimant why he was glaring at him, which made the claimant very agitated.[72]On 11 July 2023, Mr Stoddard wrote to the claimant confirming his decision to dismiss the claimant with immediate effect for gross misconduct.[73]On 14 July 2023, the claimant appealed his dismissal.[74]On 31 July 2023, Mr Khan heard the claimant’s appeal. He upheld the decision to dismiss the claimant. Taxi expense claim[75]The respondent’s policy allows security staff to claim taxi/Uber fare to and from work on Christmas day. However, the security staff must submit a proper receipt, showing the start and end points of the journey and the fare paid.[76]The claimant claimed that he used Uber to travel to work and back on 25 December 2022. He claimed that he should be compensated for the fare (£34.90), however he never submitted proper receipts despite being reminded several times to do that.[77]As part of the appeal hearing, Mr Khan decided: “I do not believe there will be any merit in spending a great deal of company time on investigating this issue further given the total amount is less than £40. Regardless of the evidence I would suggest you provide VAT receipts to John Stoddart for payment. This should show:• Your name• The date of the journey• The journey start and finish destinations• The amount This would be in line with section 6.9 of the Employee Handbook. Upon satisfactory receipt I am, by way of this decision, instructing the company to pay this.”[78]The claimant did not submit the receipts. Consequently, the respondent did not pay the claimed Uber fare. The Law Case Number 2217111/2023 14 Automatic unfair dismissal (s. 103A ERA)
The Law
[79]S.103A ERA states: 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.[80]The principal reason is the reason that operated on the employer’s mind at the time of the dismissal, per Lord Denning MR in Abernethy v Mott, Hay and Anderson 1974 ICR 323, CA.[81]Technically the burden of proof in automatically unfair dismissal is on the employer to show the reason for dismissal. However, where the employee lacks the requisite two years’ continuous service to claim ordinary unfair dismissal, he or she will acquire the burden of showing, on the balance of probabilities, that the reason for dismissal was an automatically unfair reason — Ross v Eddie Stobart Ltd EAT 0068/13. Protected Disclosure[82]S43A and 43B ERA define a “protected disclosure” as “..any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”[83]This means that a disclosure to satisfy the statutory definition of the qualifying disclosure: - must contain information, as opposed to bare allegations – i.e. include “sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection” (Kilraine v London Borough of Wandsworth [2018] ICR 185 at [35]), - such information must in the worker’s reasonable belief tend to show one of the listed matters; - the worker at the time of making the disclosure must believe that he/she is making it in the public interest, and - the worker’s belief about both “tending to show” and the public interest must be reasonable.[84]The need to consider all these elements when deciding whether a particular disclosure was a qualified disclosure was confirmed by the EAT in Williams v Michelle Brown AM UKEAT/0044/19. Case Number 2217111/2023 15[85]Additionally, in Blackbay Ventures Ltd (t/a Chemistree) v Gahir 2014 ICR 747, the EAT gave the following guidance to the Tribunals at [98]): “98. It may be helpful if we suggest the approach that should be taken by Employment Tribunals considering claims by employees for victimisation for having made protected disclosures. 1. Each disclosure should be identified by reference to date and content. 2. The alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered or as the case may be should be identified. 3. The basis upon which the disclosure is said to be protected and qualifying should be addressed. 4. Each failure or likely failure should be separately identified. 5. Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the Employment Tribunal to simply lump together a number of complaints, some of which may be culpable, but others of which may simply have been references to a check list of legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Unless the Employment Tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered. If the Employment Tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest of act or deliberate failure to act relied upon and it will not be possible for the Appeal Tribunal to understand whether, how or why the detriment suffered was as a result of any particular disclosure; it is of course proper for an Employment Tribunal to have regard to the cumulative effect of a no of complaints providing always have been identified as protected disclosures.”[86]In Chesterton Global Ltd v Nurmohamed [2017] IRLR 837, the Court of Appeal provided guidance on the public interest test at [27]-[31], [34] and [37]. The Court held that when considering whether a disclosure was made by a worker in the reasonable belief that it was made “in the public interest”, there were no absolute rules, and it was instead for the employment tribunal to decide whether a disclosure was made in the public interest on the circumstances of a particular case. The essential point is that to be in the public interest the disclosure must serve a wider interest than the private or personal interest of the worker making the disclosure. In deciding this question, the tribunal will be assisted by examining such factors as the numbers in the affected group, the nature of the interests affected and the extent to which they were affected, the nature of the wrongdoing, and the identity of the alleged wrongdoer. The Tribunal must, however, recognise that there could be more than one view as to whether a particular disclosure was in the public interest, and must not substitute its own view of whether the disclosure was in the public interest for that of the worker.[87]Pertinent to this case, the Court of Appeal said at [29]-[31] : “29. Third, the necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not of the essence. That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it. Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive. Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable. 30. Fourth, while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it: otherwise, as pointed out at para 17 above, the new sections 49(6A) and 103(6A) would have no role. I am inclined to think that the belief does not in fact have to form any part of the worker’s motivation - the phrase “in the Case Number 2217111/2023 16 belief” is not the same as “motivated by the belief”; but it is hard to see that the point will arise in practice, since where a worker believes that a disclosure is in the public interest it would be odd if that did not form at least some part of their motivation in making it.” Breach of Contract/Wrongful dismissal[88]Under S.3 of the Employment Tribunals Act 1996 (ETA), read together with the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 (‘the Order’), the Tribunal has jurisdiction to hear claims for breach of contract where the claim “arises or is outstanding on the termination of the employee’s employment and relates to any of the following:(i) a claim for damages for breach of the contract of employment or other contract connected with employment;(ii) a claim for a sum due under such a contract; or(iii) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract”.[89]A breach of a contract of employment occurs when a party fails to fulfil an obligation imposed by the terms of the contract.[90]Each contract of employment contains an implied term of mutual trust and confidence, which obliges each party not, without reasonable and proper cause, to conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties (see Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) 1997 ICR 606, HL).[91]A breach of the implied term of trust and confidence will be regarded as repudiating the contract of employment (see Woods v WM Car Services (Peterborough) Ltd 1981 ICR 666, EAT).[92]The test is objective, meaning that there is no need to show that the party, in acting in impugned manner, intended to destroy or seriously damage the relationship of trust and confidence. However, the hurdle should not be lowered by the Tribunal to include conduct when a party simply acts unreasonably (see Frenkel Topping Ltd v King EAT 0106/15).[93]A dismissal by the employer of its employee with no notice or inadequate notice where summary dismissal is not justifiable will be in breach of contract, giving rise to an action for wrongful dismissal at common law.[94]The test is objective, meaning that it is for the Tribunal to determine whether on the facts of the case the employer was within its rights to dismiss the employee for the impugned conduct summarily.[95]In McFarlane v Relate Avon Ltd 2010 ICR 507, EAT, Mr Justice Underhill (President (as he then was)) said: “Although in almost any case where an employee has acted in such a way that the employer is entitled to dismiss him the employer will have lost confidence in the employee (either generally or in some specific respect), it is more helpful to focus on the specific conduct rather than to resort to general language of this kind”. Case Number 2217111/2023 17 Analysis and Conclusions Witnesses’ credibility[96]I found all the respondent’s witnesses were credible and helpful witnesses. All their evidence were cogent and consistent with the contemporaneous documentary evidence in the hearing bundle. The claimant did not challenge their evidence on many key issues in his claim. On the matters that he chose to challenge their evidence, their answers were clear, consistent and supported by the contemporaneous documentary evidence. In short, I reject the claimant’s submission that the respondent’s witnesses were “lying” to the Tribunal. As many of the claimant’s other submissions, it was a bare allegation not supported by anything of any substance.[97]Regrettably, I cannot say the same about the claimant’s evidence. I found his evidence far less credible and helpful. Whilst I appreciate that, as a litigant in person, the claimant can (and should be) excused for straying away from giving evidence into making arguments, in this case, the issue with the claimant’s evidence was not in him raising arguments when giving his evidence, but in the inconsistent and contradictory nature of his evidence.[98]I agree with Mr Bhatt’s observation at paragraph 5 of his closing submission that the way the claimant gave his evidence as to when he raised the allegation of the assault is a prime example of the unreliable and evasive nature of the claimant’s evidence to this Tribunal.[99]However, this case does not turn on my assessment of what the claimant said in his evidence to this Tribunal, but rather more on what he did not say in his evidence in chief, what the respondent’s witnesses said in their witness statements, which the claimant accepted without a challenge, and on the contents of the contemporaneous documentary evidence before me.[100]For completeness, I shall say that the statement prepared by Mr Arnill is of no assistance to the claimant. Leaving aside the fact that Mr Arnill did not attend the hearing to give his evidence, and therefore what he says in his statement has not been tested in cross-examination, and the fact that it appears (based on the documentary evidence submitted by the respondent) that Mr Arnill, when he left the respondent, was facing serious disciplinary charges against him, his statement does not contain any factual evidence with respect to the relevant issues in the claim. As Mr Bhatt rightly pointed out in his closings, on Mr Arnill’s own evidence, he left the respondent’s employment on 15 September 2022, well before the claimant’s alleged protected disclosures and the claimant’s dismissal, and indeed well before the complaints against the claimant by Mr Suleria, Mr Butt and others, which led to the disciplinary procedure against the claimant and his dismissal. It is, therefore, surprising to read in Mr Arnill’s statement that he was tasked to investigate those complaints. Case Number 2217111/2023 18[101]I will now turn to deal with the substantive issues in the claim, starting with the complaint of automatic unfair dismissal. Automatic Unfair dismissal (s.103A ERA)[102]The short answer to this complaint is that it fails on causation. Based on the evidence I have heard and the documentary evidence in the hearing bundle I have been referred to during the hearing, I am fully satisfied that the sole reason for which the claimant was dismissed was his conduct, which the respondent genuinely and reasonably considered amounted to gross misconduct justifying the claimant’s dismissal.[103]That was the evidence of Mr Stoddart, which evidence the claimant chose not to challenge in cross-examination. Mr Stoddart’s evidence is amply supported by the contemporaneous documentary evidence (complaints against the claimant by various staff members, notes of the disciplinary meetings, the dismissal letter itself).[104]I reject the claimant’s submission that the disciplinary process was unfair. Other than making this bare allegation, the claimant has failed to substantiate it by any evidence. In his final closings, the claimant was unable to present any cogent submissions on the alleged unfairness in the disciplinary process either, and that is despite me specifically asking him to elaborate on that point.[105]For completeness, the fact that Mr Sterling was part of the panel made the process more and not less fair. He did not know the claimant. He was not involved in any of the claimant’s grievances. Thus, he came to this process as an independent arbiter without any burden of prior involvement. The fact that he asked the claimant why he was glaring at him at the start of the hearing, and that caused the claimant to become very agitated (I accept Mr Stoddart’s evidence on this) is wholly insufficient as the evidence that the entire hearing was unfair, let alone to draw from that evidence any inference that the claimant’s alleged protected disclosures was the real reason for his dismissal.[106]This conclusion is sufficient to dismiss the claimant’s whistleblowing dismissal complaint. However, for the sake of completeness, I shall also give my conclusions on the alleged protected disclosures. Alleged Protected Disclosures[107]The claimant claims that his emails of 12th and 20th June 2023, in which he complained that the toilets were not cleaned and raised health and safety concerns, were protected disclosures.[108]As recorded in the list of issues (p.496), the claimant’s case is that when sending these emails he reasonably believed that the information in those emails tended to show that the respondent was failing to comply with its 6 Here and below all references in the format (p.xx) are to the relevant page number in the hearing bundle. Case Number 2217111/2023 19 legal duties of health and safety and its duty of care to its employees, and that he also reasonably believed he was disclosing that information in the public interest because “a lack of good sanitation and decent eating areas could affect the whole security team and their attention to public safety”.[109]I pause here to observe that despite this allegation being the centrepiece of the claimant’s entire claim, in his witness statement his evidence on this issue is limited to two sentences with generic allegations of unhygienic facilities. The claimant does not give any evidence as to why he believed those emails contained information tended to show a breach of a legal obligation, what that legal obligation, he says the respondent was in breach of, was, the source of that legal obligation, on what basis he says he believed that he was making the disclosure in the public interest, what that public interest was, why he says his belief was reasonable.[110]In short, the claimant’s evidential case on this central aspect of his whistleblowing dismissal claim is woefully inadequate. Nevertheless, I must still examine his case based on the evidence before me, and in particular by looking at these two emails, to see whether all these necessary elements of a qualifying disclosure could be ascertained from their contents.[111]I find that although the emails contain “information”, the only information they contain is the following:a. in the 12 June email, that a toilet pan was not clean and there was water and urine on the floor, which the claimant found very unpleasant, and that he noticed that cleaning facilities removed at weekends and bank holidays; andb. in the second email of 20 June, that Mr Issa fell ill because of the unsanitary conditions in the toilets.[112]Neither email identified the relevant legal obligation the claimant claims the information tended to show was being breached by the respondent. On a fair reading, the first email is no more than a complaint about an untidy toilet.[113]The claimant does not say in his email that the respondent was in breach of any legal obligation by reason of this particular toilet not being cleaned properly when the claimant happened to attend it, or, generally, because, according to the claimant, the toilets are not being cleaned on weekends and bank holidays.[114]The highest he puts it in that email is that working a twelve-hour shift when one needs to use such not properly cleaned toilets is “very challenging and unhealthy”. It is not reasonably obvious from all that what legal obligation the claimant say is engaged, which the respondent is subject to.[115]As unpleasant as one might find the sight of a toilet bowl not being properly cleaned by a previous user, and some water or urine spilled on the toilet floor, this, in my view, does not mean that these matters by themselves are sufficient to demonstrate that some legal obligation was being engaged Case Number 2217111/2023 20 and breached. Accordingly, in my judgment, the information provided by the claimant in that email, which was essentially him conveying these matters, did not have the quality of tending to show that the respondent was failing to comply with a legal obligation, namely (as pleaded by the claimant) “its legal duties of health and safety and its duty of care to its employees”.[116]In other words, whilst in theory one can always build a causative chain between almost any complaint of any kind and a legal obligation of some sort, for the information in a complaint to have the quality of tending to show a failure to comply with a legal obligation, there ought to be a much more proximate and ascertainable link between the matter complained of and the corresponding legal obligation.[117]Simply complaining about a toilet not being cleaned properly, in my judgment, does not have the necessary proximity to a legal obligation, nor a legal obligation can be readily ascertained from such a complaint.[118]For these reasons (and in the absence to any evidence from the claimant to the contrary), I find that the claimant did not believe that the information in his email of 12 June tended to show that the respondent was failing to comply with “its legal duties of health and safety and its duty of care to its employees”. In the alternative, if the claimant did genuinely believe that the information in his 12 June email had that quality, for the same reasons, I find that his belief was unreasonable.[119]The second email had more in it, in the sense of containing information that tended to show a breach of a legal obligation. That is because there the claimant says that Mr Issa fell ill because of the unsanitary conditions in the toilets. That information, in my judgment, is sufficient as showing that the respondent’s legal duty to take reasonable care and reasonable steps to ensure the safety of their employees while at work was engaged and might have been breached (by reason of Mr Issa being taken ill).[120]However, I find that the claimant did not reasonably believe that this information tended to show that the respondent was failing in its health and safety obligation towards Mr Issa or its other employees. I say that because, based on the evidence before me, I find that the allegation that Mr Issa fell ill (let alone fell ill because of the unsanitary conditions in the toilets) was false, and the claimant, at the time of making it, knew that. I say more on this factual finding later in the judgment, when dealing with the wrongful dismissal complaint.[121]Therefore, knowing that he was disclosing false information, the claimant could not have reasonably believed that such false information tended to show a breach of a legal obligation, when he knew all along that there was nothing wrong with Mr Issa and the alleged unsanitary conditions in the toilets had no relevance whatsoever, and therefore the respondent was not and could not have been in breach of any of its legal obligations to Mr Issa or any other employees. Case Number 2217111/2023 21[122]I also find that the claimant did not reasonably believe that he was making the disclosure in the public interest. Firstly, considering:(i) a rather trivial nature of the matter the claimant was complaining about (a toilet, not being properly cleaned by a previous user and some water or urine spilled on the floor),(ii) a relatively small number of people affected by the matter the claimant was complaining about (a handful of security staff on duty over the weekend),(iii) none of whom complained about that matter (I accept Mr Dar’s evidence on that at [11] and Mr Wickham’s at [36], and Mr Butt’s at [22], which evidence the claimant did not challenge in cross-examination), and(iv) the total lack of any credible evidence that the security officers’ health or performance was in any way affected by them using the toilet facilities in that uncleaned state (as I have already said the claimant’s allegation of Mr Issa falling ill because of the unsanitary conditions in the toilets was false and the claimant knew that), the claimant could not have genuinely believed that the information about the not properly cleaned toilet he attended, or generally about the toilets not being properly cleaned over the weekend would serve the interests of the society at large. Any such belief, even if genuinely held by the claimant, would have been wholly unreasonable.[123]Furthermore, considering the claimant’s propensity of making various allegations and complaints against his managers, all of which, after being investigated by the respondent, were found not only unsubstantiated but falsified, in my judgment, these two emails was just another example of the claimant befouling his managers. It was self-serving and had no wider societal interest.[124]I, therefore, find that the claimant did not make a protected disclosure by reason of either or both of these two emails.[125]If, however, I am wrong on this, as I have said earlier, the claimant’s automatic unfair dismissal complaint must still fail because of my finding that the sole reason for his dismissal was his conduct. It had nothing to do with the claimant’s complaints in those two emails. Expenses claim[126]Moving on to deal with the breach of contract claim with respect to the taxi fare.[127]The burden is on the claimant to show that the respondent was in breach of his contract by failing to reimburse the claimant for a taxi fare of £34.90. The respondent does not dispute that the claimant was entitled to be reimbursed for a taxi fare of up to £20 for commuting to/from work on Christmas day. However, the respondent says that it was subject to the Case Number 2217111/2023 22 claimant providing accurate receipts, showing the date and time of the journey, and the start and end points of the journey, which, the respondent says, the claimant never produced.[128]It is an implied term in employment contacts that the employer will reimburse its employees for reasonable expenses properly incurred in the performance of their duties for the employer. However, before reimbursing the employee, the employer is entitled to ascertain that the expense claimed was properly and reasonably incurred by the employee for the purposes of performing his duties for the employer[129]Furthermore, the respondent’s employee handbook contains the express terms (p.287, 288) related to the reimbursement of expenses, which specifically state that all expenses must be backed up by VAT receipts for the relevant time.[130]This matter was explored at some length during the claimant’s cross-examination. The claimant did not dispute that he was required to provide the relevant receipts but was unable to present cogent evidence to demonstrate that he in fact had done so. The evidence he referred me to in the bundle (p. 330) does not show that the claimant had in fact provided the receipts containing all the necessary details.[131]Furthermore, the evidence shows (p.348) that Mr Khan, who heard the claimant’s appeal against his dismissal, wrote to the claimant on 3 August 2023, again inviting the claimant to submit a proper VAT receipt, upon which submission the respondent would make a payment to the claimant for the claimed taxi fare. The claimant did not do that.[132]I, therefore, find that the claimant has failed to prove that the respondent was in breach of contract by not paying £34.90 for the alleged taxi fare to work on Christmas day. This complaint fails and is dismissed. Wrongful dismissal/Notice pay[133]The remaining complaint in the claim is for notice pay. Under the terms of his employment contract the claimant was entitled to receive one week notice. It is not in dispute that the claimant was dismissed without notice or pay in lieu.[134]However, the respondent’s employee handbook (p.286) gives the respondent the right to dismiss an employee without notice when the employee commits an act of gross misconduct. A non-exhaustive list of offences is set out in the handbook, which includes “using threatening and offensive language towards anyone”, “behaviour likely to bring the company into disrepute”, and “refusal to carry out reasonable duties or instructions”.[135]Furthermore, each employment contract contains an implied duty of trust and confidence, that is a duty without reasonable and proper cause, not to act in a manner calculated or likely to destroy or seriously damage the Case Number 2217111/2023 23 relationship of confidence or trust between employer and employee. The duty is mutual, meaning that it equally falls on both parties. A breach of that duty is a fundamental breach of contract, entitling the other party to terminate the contract forthwith.[136]The respondent’s case is that the claimant was dismissed summarily for gross misconduct, namely the claimant making false allegations against his colleagues, refusing to follow reasonable management instructions, raising vexatious grievances, lying to colleagues, bullying, intimidation and threatening behaviour.[137]To resolve this dispute, I must decide whether the claimant committed the alleged acts which amounted to gross misconduct, entitling the respondent to dismiss him without notice, (or in the alternative, whether by reason of his conduct the claimant was in breach of the implied duty of trust and confidence), and if so, whether the respondent dismissed him for that conduct.[138]I have already found that the sole reason for the claimant’s dismissal was his conduct (which the respondent considered gross misconduct), therefore the question of causation has already been answered.[139]However, whether the respondent was entitled to dismiss the claimant with no notice or pay in lieu, depends on whether, as a matter of law, I agree or disagree with the respondent’s assessment that the claimant’s conduct was indeed an act of gross misconduct and/or amounted to a breach of the implied duty of trust and confidence.[140]Turning to this key issue in the complaint. The respondent chiefly relies on the claimant’s conduct in repeatedly raising false allegations against his supervisors and his unacceptable behaviour towards his colleagues as demonstrating that he was guilty of gross misconduct and in breach of the implied duty of trust and confidence.[141]The details of the alleged false allegations and unacceptable behaviour were provided in the complaint statements made by Mr Suleria on 6 June (p.185), on 9 June (p.201), Mr Butt on 12 June (p.204), Mr Raza on 12 June (p.205), Mr Iqbal on 17 June (p.206), Mr Butt again on 20 June (p.210), Mr Suleria on 3 July (p. 219), summarising all previous allegations the claimant had made against him.[142]The respondent submits that “it is beyond doubt that C’s actions are such that they undermined (R would go as far as to say destroyed) the relationship of trust and confidence and R should no longer be required to retain C in its employment … and ..is a clear example of an employee who has committed an act of gross misconduct.”[143]The claimant denies that he made false allegations or otherwise acted inappropriately. He says the respondent’s investigations into his allegations Case Number 2217111/2023 24 was inadequate, in particular by reason of not viewing the relevant CCTV footage.[144]On the balance of probabilities, I find that the claimant did make the false allegations he was accused of and acted in the way the respondent’s witnesses complained about.[145]In particular, I find that the claimant’s allegation of being physically assaulted by his colleagues was false and the claimant knew that. I reject the claimant's submission that he had made that allegation shortly after the incident. As the contemporaneous documents show (his WhatsApp messages of 12 /09 – p.19 of his witness statement) the only allegation he made at that time was that he had been sworn at twice.[146]The allegation the claimant made some 17 months after the incident was that he was hit by a metal bar on his leg. At this hearing, he went further and said that as a result of being hit by a metal bar, his ankle got swollen, and he had difficulty moving around because of that. This is a very serious allegation of a crime – a physical assault causing bodily injury. Yet, the claimant said nothing of the kind to anyone at that time or shortly after that.[147]I reject the claimant’s evidence that the reason for not raising it at the time was because he was new to the job. Firstly, that directly contradicted his evidence that he had raised the matter at that time to Henry Young (which, as I have just said, I reject). Secondly, being new to the job hardly explains why a person (especially a security officer, whose duties include reporting an assault on him to the police) would not report this very serious matter to his supervisor or the police. Thirdly, the claimant being new to the job did not stop him from complaining about being sworn at. Finally, the respondent conducted a thorough investigation into the alleged incident and reasonably came to the conclusion that it did not happen as was alleged by the claimant. Based on the evidence before Mr Wickham (which I have examined myself), it is hard to see how he could have reasonably come to any other conclusion.[148]For completeness, I reject the claimant’s submission that the investigation process was unfair because the respondent did not review the relevant CCTV footage. Firstly, there is no evidence before me that the CCTV footage was available to the respondent (by that time the alleged incident had occurred some 17 months earlier). Secondly, looking at the notes of the investigation meeting with Mr Bolukbasi on 6 March 2023, the grievance meeting with Mr Wickman on 17 March 2023, and the appeal meeting with Mr Stoddart on 3 April 2023, at none of these meeting did the claimant ask the respondent to view any CCTV footage. In fact, the claimant said to Mr Bolukbasi that he himself had made an audio recording of the incident, which he never produced.[149]In sum, I find that the claimant’s allegation of physical assault against him was false, and he knew that he was making a false allegation of criminal conduct against his supervisor and colleagues. The allegation was of a very serious nature. Knowingly making a false allegation of this gravity against Case Number 2217111/2023 25 your colleagues, in my judgment, was an act of gross misconduct and conduct that was calculated to or having the effect of destroying or seriously damaging the relationship of trust and confidence. The claimant did not have a reasonable and proper cause to act in that way. This means that this conduct alone was sufficient to put the claimant in breach of the implied duty of trust and confidence.[150]Furthermore, this was not an isolated incident of the claimant making a false allegation against his supervisors and colleagues. He made further false allegations, including of race discrimination, against Mr Suleria with respect such matters as not being given safety boots, a dirty stab vest, not reimbursing him for prescription glasses, not providing him with an ID card, telling other staff not to work with the claimant. I accept Mr Butt’s, Mr Suleria’s, Mr Wickham’s, and Mr Stoddard’s evidence on all these issues. In particular, that the claimant was given safety boots and a new stab vest at the same time as other security staff, and the delay in providing him with an ID card was due to the claimant failing to send his photo, despite being reminded several times to do that.[151]He also made false allegations of race discrimination against Mr Butt, including accusing Mr Butt of following the claimant around and taking pictures of him, when all that Mr Butt was doing was taking a picture of a box placed near the security fence, which he considered to be a safety hazard. I accept Mr Butt’s and Mr Suleria’s evidence on all these issues.[152]His false allegation against Mr Butt of falsifying the record of the incident on 12 May 2023 shows that the claimant was not doing that out of some genuine confusion or misunderstanding, but as a calculated and deliberate attempt to cause trouble for his supervisors through such false allegations against them. The claimant did not hide his intention of having Mr Suleria and Mr Butt removed from their positions, either.[153]I reject the claimant’s evidence that he wanted to have them removed because of his genuine health and safety concerns for others. The evidence concerning the alleged false reporting of the 12 May incident, in my view, unequivocally shows that it was a self-serving attempt to undermine his managers and advance his personal interests. The unsustainable nature of the claimant’s position has been fully exposed in cross-examination. I agree with Mr Bhatt’s submissions at paragraph 31 – 33 of his closings that this incident is yet another good example of the claimant fabricating complaints.[154]The claimant’s conduct of raising a false alert about Mr Issa’s health and then using it as the evidence of security staff falling ill due to the toilets not being cleaned over the weekends is yet another example of the claimant’s fabricating complaints, as is the false reporting of the fire alarm in the canteen, as described by Mr Raza (p.205).[155]In short, I find that the claimant’s conduct was not simply of him being recalcitrant. It went much further. It was aimed at creating serious troubles for his supervisors (Mr Suleria and Mr Butt) and for the colleagues he disliked, Case Number 2217111/2023 26 such as Mr Iqbal, which the claimant hoped would result in them being removed from their positions, thus threatening their continued employment and livelihood. It is of little surprise that Mr Suleria felt that he was being harassed and bullied by the claimant and his mental health suffered as a result. The claimant’s conduct had the effect of seeding discontent amongst the staff and creating unpleasant and hostile workplace environment.[156]I, therefore, have no hesitation in finding that the claimant was guilty of gross misconduct and his conduct was in breach of the implied duty of trust and confidence.[157]In those circumstances, I do not see how any reasonable employer could have maintained any trust or confidence in the claimant. To put it simply, by his conduct the claimant has unequivocally shown that he was not working for the respondent, but working against the respondent, by seeking at every opportunity to undermine his managers and colleagues through generating against them numerous vexatious complaints founded on a false narrative.[158]It follows, that I find that the respondent was within its rights to dismiss the claimant for gross misconduct, and as accepting the claimant’s repudiatory breach of contract (the breach of the implied duty of trust and confidence). This means that the claimant’s claim for notice pay fails and is dismissed.