Employment Judge BatyRepresenting himself for claimantMr S Wyeth (instructed by counsel) for respondentDate 12 November 2024
JUDGMENT
The claimant’s application for interim relief is refused.
REASONS
[1]By a claim form presented to the employment tribunal on 17 October 2024, the claimant brought a complaint of automatically unfair dismissal pursuant to section 103A Employment Rights Act 1996 (“ERA”) (protected disclosures).[2]The respondent’s response is due by 25 November 2024.[3]The claim also contained an application for interim relief. This hearing was listed to consider that application. Correct name of the respondent[4]It was agreed at the start of the hearing that the correct name of the respondent is “Aira Home UK Ltd” and that the name of the respondent on the claim should be changed accordingly.
The issues
[5]At the start of the hearing, I sought to clarify the issues of the claim with the claimant.[6]The claimant confirmed that he did not have the two years’ continuous employment necessary to bring a claim of “ordinary” unfair dismissal and that his claim contained only a complaint of automatically unfair dismissal pursuant to section 103A ERA.[7]I then spent some time ascertaining and agreeing with the parties what the issues of that complaint were. In doing so, I explained, for the claimant’s benefit, what the legal tests were in relation to the various aspects of the complaint and what needed to be established for the complaint to be successful.[8]The agreed issues of the complaint are as follows: Protected disclosures 1.1. Did the claimant make a disclosure of information? The alleged disclosures relied on by the claimant as protected disclosures are as follows: 1.1.1. On 8 October 2024, the claimant reported an incident involving asbestos on the job’s group chat and then messaged his line manager Billy Cox at 1pm that day about it (the message was at page 63 of the bundle provided for this hearing); and 1.1.2. On 11 October 2024, the claimant sent a text message to Mr Cox relating to that incident (the message was at pages 57-58 of the bundle provided for this hearing). 1.2. Did the claimant have a reasonable belief at the time he made each disclosure that the disclosure tended to show that: 1.2.1. a person had failed, was failing or was likely to fail to comply with a legal obligation to which that person was subject; and/or 1.2.2. the health or safety of any individual had been, was being or was likely to be endangered? 1.3. Did the claimant have a reasonable belief at the time he made each disclosure that the disclosure was in the public interest? 1.4. Was each disclosure made to the claimant’s employer for the purposes of the Employment Rights Act 1996 (ERA)? Section 103A: unfair dismissal 1.5. Was the reason or principal reason for the claimant’s dismissal by the respondent that he made any disclosure or disclosures as referred to above? Documentation[9]In advance of the hearing, the respondent provided to the tribunal and the claimant the following documents: a bundle for the interim relief hearing numbered pages 1-69; a draft witness statement from Mr Cox (although Mr Cox did not attend the tribunal to give evidence); a transcript (and recording) of a telephone conversation in which a member of the public made a complaint about the claimant’s behaviour; and a skeleton argument produced by Mr Wyeth.[10]The claimant confirmed that he had had the opportunity to review these documents in advance of the hearing.[11]Having agreed the issues of the substantive complaint with the parties as set out above, I also went through the legal principles in relation to interim relief applications, again for the claimant’s benefit because he was a litigant in person.[12]Both parties were very keen that I should properly read the documentation provided to me. I accordingly then adjourned the hearing to enable me to complete reading that documentation.[13]When the hearing reconvened, both parties made oral submissions in relation to the application for interim relief. I then adjourned over lunchtime to consider my decision and gave my decision to the parties orally when the hearing reconvened after lunch. The Law Interim relief
The Law
[14]The statutory provisions governing interim relief relevant for present purposes are contained in the ERA, ss128-132. In particular, s129 includes: (1) This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates it will find – (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in – (i) section … 103A …[15]Where these circumstances apply, further provisions require the tribunal, subject to certain caveats, to make an order for the continuation of the employee’s contract until the final determination or settlement of the claim.[16]It is for the claimant to make good the application. In Taplin v C Shippam Ltd [1978] ICR 1068 the EAT (Slynn J and members) held that the word ‘likely’ (in the predecessor legislation) connotes a better than reasonable prospect of the claimant succeeding. Success must be “probable”. The standard is higher than the balance of probabilities or a 51 percent chance of success. To put it another way, the claimant must have a “pretty good chance” of winning at the final hearing.[17]In Dandpat v The University of Bath and others UKEAT/0408/09/LA, the EAT (Underhill P and members) reaffirmed the Taplin guidance, adding (para 20): We do in fact see good reasons of policy for setting the test comparatively high … in the case of applications for interim relief. If relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of the proceedings: that is not a consequence that should be imposed lightly. Protected disclosure complaints under section 103A ERA[18]I remind myself that s129 mirrors s103A. ‘Automatic’ unfair dismissal under the latter section depends on the tribunal finding that the reason or principal reason for dismissal is that the claimant has made a protected disclosure within the meaning of Part IVA of the ERA. A contributory reason is not enough.[19]The legal tests for whether the alleged disclosures in this case amount to protected disclosures (such as to engage the protection of section 103A ERA) are reflected in the agreed list of issues set out above. Background findings[20]It is in the nature of interim relief applications that the tribunal does not have all of the evidence in front of it. The findings set out in this section are based on the documentation available. They are necessary for a proper understanding of the conclusions which I made in relation to the application for interim relief. Many of them, but by no means all of them, are not in dispute. However, I do not regard them as binding findings of fact by which future tribunals would be bound. Overview[21]The claimant was employed by the respondent from 5 August 2024 until 11 August 2024, a period of just over two months. At all times, the claimant remained on his probationary period. The claimant was employed as a Clean Energy Technician.[22]The claimant’s line manager was Mr Billy Cox. Mr Cox dismissed the claimant on 11 November 2024, at a probationary review meeting. He confirmed the dismissal in a letter of the same date.[23]In a lengthy email of 15 October 2024, the claimant appealed against his dismissal.[24]An appeal meeting took place on 18 October 2024, chaired by Mr Marc Clarke. Mr Clarke did not uphold the claimant’s appeal against dismissal and confirmed this by letter of 25 October 2024. More detailed findings 26 September 2024 complaint[25]On 26 September 2024, the respondent received a complaint about the claimant from a random member of the public making serious allegations about the claimant driving dangerously in the respondent’s company-branded vehicle on the M5 that morning. Following the claimant “continuously flash[ing] his high beams and beeping” the member of the public describes the claimant as driving aggressively and so close to his vehicle that he “could no longer see [the claimant’s] bumper in [his] rear-view mirror, during this time [the claimant] was also throwing a variety of hand gestures at [him]”. A little further down the email the other driver describes the claimant giving him “the finger and mouthing off” as the claimant subsequently passed his vehicle.[26]The respondent maintains that the claimant admitted driving dangerously. Indeed, in the respondent’s note of the probation review hearing on 11 October 2024 (at which the claimant was dismissed), the claimant apologised for his conduct and accepted that he knew he “shouldn’t of [sic] done it”. Furthermore, in his email appealing against his dismissal the claimant accepted misconduct and that he sent his “upmost apologies [sic] and that it certainly wouldn’t happen again” although at this late stage he attempted to dispute some of what the other driver alleged about his allegedly erratic and dangerous driving.[27]The claimant suggested in his subsequent email of appeal that both Mr Cox and “Keith” spoke to him about this at the time. However, this appears not to be correct. Indeed, the only reference he makes to being told about this incident in his appeal email of 15 October 2024 is when “Keith”, who is not the claimant’s line manager, tells him about the matter being reported by the member of the public. Likewise at the meeting on 11 October 2024, the claimant does not refer to any conversation being had with his line manager, Mr Cox, about this incident beforehand. Mr Cox’s position is that he did not speak to the claimant at the time because he was away on leave and it was referred to the Team Lead, Keith Sharpe, to speak to the claimant initially in Mr Cox’s absence. 2 October 2024 complaint[28]Less than a week later, on 2 October 2024, the respondent’s customer service team received a further serious complaint about the claimant from a member of the public who turned out to be the partner of the claimant’s mother. Certain calls to the respondent are recorded of which this was one and accordingly there is a verbatim record of what was said. The caller refers to the claimant behaving violently towards his mother on the street where she lives in full public view whilst dressed in the respondent’s uniform and whilst using the respondent’s vehicle (with the company logo printed across the van). The caller challenged the respondent’s employee about why the respondent had employed the claimant, alleging that the claimant had a criminal record, had been to prison and had a violent past.[29]It appears that Mr Cox was only informed about this call on 10 October 2024, shortly after his return from holiday.[30]The notes of the 11 October 2024 meeting at which the claimant was dismissed record Mr Cox stating that “There has also been another incident where a member of the public has called in to report of you being aggressive towards a woman in the street, whilst in an Aira van and in Aira uniform”; to which the claimant replied “I don’t know anything about this, I swear this isn’t me”.[31]In his appeal email of 15 October 2024, the claimant states in relation to this allegation: “then their [sic] is this alleged statement that i have apparently been aggressive to a women in the street, this is 100percent false and i have no clue where such claim has come from. this allegedly happened on the 1st of October, and the first I heard of it was at Friday 11th October 8.30am in a probation review on the 11th October…”[32]At this interim relief hearing, however, the claimant admitted that he had had an altercation in the street with a woman (who was in fact his mother) and that he was wearing his company uniform and was next to his company branded van at the time. Although the claimant said that he did not consider that the altercation was “aggressive”, he said that it was “heated”. He disputed some of the content which appears in the transcript of the call to the respondent’s customer services team (which, it appears, was made by the claimant’s mother’s partner, with whom the claimant says he does not get on). However, the claimant only gave this account at this hearing; what he said during the internal proceedings is set out in the two paragraphs above. 11 October 2024 meeting[33]The minutes of the dismissal meeting on 11 October 2024 refer to both of the above matters and also the fact that Mr Cox was of the view that the claimant has not “followed company procedure and damaged asbestos”. He refers to there being too many “red flags” regarding the claimant and consequently the respondent would “not be moving on through [the claimant’s] probation”. Mr Cox refers to the fact that during the claimant’s probation he should not be having to give the claimant second and third chances. I accept that this would seem indicate that Mr Cox regarded there to be an accumulation of problems within the few short weeks the claimant was employed by the respondent. That is also consistent with Mr Cox’s email to the respondent’s Head of People Operations, Chris Bambro, on 29 October 2024, which was also in the bundle.[34]The reason for dismissal was set out in the respondent’s letter of 11 October 2024 was “aggressive behaviour towards a member of the public whilst driving a company vehicle which failed to meet the standards of conduct expected under the company policy.” That is the only reason set out in the letter. It does not, however, reflect all the incidents discussed at the meeting that day. Furthermore, in his subsequent email to Mr Bambro on 29 October 2024, Mr Cox states “The reason for the dismissal was the two incidents relating to driving and also aggressive behaviour whilst driving a company vehicle and wearing our uniform”, in other words both the incident on the M5 and the incident on 2 October 2024. Asbestos issue 8 October 2024[35]An incident occurred on 8 October 2024 when the claimant was working at a client’s premises. It is in relation to this incident that the claimant alleges that he sent the messages which he now relies on as protected disclosures. However, there are a number of aspects in relation to this where the claimant’s evidence changed over time.[36]On Tuesday 8 October 2024, the claimant first sent a message on a work Teams chat, for everyone to see, criticizing his surveyor colleagues, saying they needed “to up their game”. The claimant then sent a text message to Mr Cox directly at 1pm, saying “Iv [sic] cut that asbestos board lungs full of it this morning sorry to moan on that chat but these surveyors are creating hazards”. However, when the claimant later became aware that he was being invited to a probation review meeting, but before the meeting itself, he texted Mr Cox changing his story completely and, contrary to his previous text about having “lungs full of it” admitted that “the asbestos hasn’t been cut its smaller than the hatch I actually cut if you inspect the photo closely”.[37]Importantly, it is not the fact that asbestos has been discovered that represents the potential health and safety issue; many houses contain asbestos. What creates that issue is whether the asbestos is cut and particles of it released.[38]As Mr Wyeth persuasively submitted, the claimant’s motive for changing his account requires little speculation; he had been found not to have followed proper procedure in relation to his discovery and he was now keen for the respondent to accept that there was no real health and safety hazard at all because, contrary to what he had previously alleged, he knew the panel had not been cut. He was regretting exaggerating the situation and alleging there was some kind of risk because he knew he should not have acted in the way he did (as set out below) if such a risk did indeed exist.[39]Mr Cox says that he rang the claimant straight away and told him and the other engineer, Lloyd May, to stop work immediately. Despite this, it transpired that the claimant had already moved the suspected asbestos and did not stop working as he should have done when he first discovered it under the floor, which could have put him and his colleagues at risk. Furthermore, despite the claimant already identifying it as asbestos, he took it upon himself to remove the panel and take it outside. He then went on to bag it up in the full knowledge that he was not qualified to be touching asbestos (something he, himself, points out in his text of 11 October 2024 to Mr Cox).[40]Mr Wyeth persuasively submits that the claimant would not have done any of this if he had a reasonable belief (or a belief at all) that his and his other colleagues’ health and safety was at risk because of the discovery of this asbestos panel at the property. It is only after all of this that he first raised his purported (and apparently exaggerated and untrue) concerns.[41]In his short period of employment, the claimant had completed the respondent’s health and safety training on 17 August 2024 and knew or should have known that his actions were contrary to the procedure the respondent expected any of their engineers to have followed in these circumstances. Mr Cox’s actions regarding the asbestos incident[42]It appears clear from the text messages that Mr Cox was very concerned about the situation and immediately engaged the respondent’s dedicated Health and Safety Adviser, Dave Rodger. Mr Cox requested the claimant to “jump on a call with [him] and Dave the HSE please need to discuss it” and sent a further text enquiring “So once you cut it, lifted the floor you then stopped after seeing it was asbestos?”. Apparently, the claimant did not do what Mr Cox expected of an engineer in these circumstances because, as the claimant himself admitted, he took it upon himself to remove the board from the specific location in which he found it, took it outside and bagged it up before reporting the issue.[43]Having then sent Mr Cox a picture of it bagged up the claimant texted “what to do with it mate”. Mr Cox’s response was that he would double check with Dave Rodger and in his subsequent text he explained that Mr Rodger had advised that removing it from site would be breaking the law. Mr Rodger advised Mr Cox that it needed to be double bagged and returned to the location in which it was found.[44]The claimant replied to indicate the panel could not be put back where it was because the floor had already been made good. This problem would not have arisen had the claimant followed proper procedure and not moved the asbestos board in the first place and left it where it was, as it appears the claimant should have done. The claimant then changed tack and said that he would be happy to do this but the customer would see this in the future. Mr Cox repeated his position (and understanding) that the material could not be removed from site by the respondent as this “would be breaking the law”.[45]Despite being told twice that the respondent’s understanding that removing the material from site would be unlawful (according to advice from the respondent’s Head of Health and Safety, Mr Rodger) the claimant continued to challenge this instruction from Mr Cox. There is then a somewhat exasperated text from Mr Cox to the claimant in which Mr Cox suggested (presumably rhetorically) that the claimant should perhaps speak to Dave Rodger, Head of Health and Safety “who this direction came from” and concluded that the claimant did get the answer he needed at the time but took it upon himself to do something different.[46]Somewhat paradoxically, during the appeal chaired by Marc Clarke, the claimant asserted that Mr Cox never suggested during the dismissal meeting that the issue of the asbestos was one of the problems leading to the termination of his employment. If that is correct then this would be consistent with Mr Cox’s position that any alleged protected disclosure regarding asbestos was not the reason or principal reason for the claimant’s dismissal. As it stands, the respondent’s note of the meeting on 11 October 2024 does include reference to the fact that the claimant did not follow company procedure regarding the discovery of asbestos. That, of course, is consistent with the various text messages that were exchanged and the fact that the claimant took it upon himself to move the board outside the building before reporting its discovery and seeking advice as to how to deal with it.[47]The claimant sought to make something of the fact that Mr Cox initially texted the claimant saying “please tell me you haven’t mentioned this to the customer”, presumably in an effort to draw some kind of inference from this communication. Mr Wyeth’s submission that the claimant’s stance is completely flawed in this respect is persuasive. Given the context, it is not surprising that Mr Cox, having been misled by the claimant about the true position, would want to speak to the customer first about one of his workforce purportedly cutting into asbestos material in error and generating potentially harmful dust particles in the customer’s property. Furthermore, an inference of the kind the claimant no doubt seeks to draw is wholly unsupported by the fact that Mr Cox has not sought to cover anything up regarding the suspected asbestos panel. He completed an Accident/Incident/Near Miss Witness/IP Statement in which he records his understanding of events and is candid about the exchanges he had with the claimant. In addition, the statement of Lloyd May (the claimant’s colleague who was also on site that day) confirmed that Mr Cox had spoken to the customer about the problem of the asbestos panel by 11 October 2024 if not before.[48]From his actions as set out above, Mr Cox therefore appears to have been very concerned about the health and safety aspects of the situation. Accordingly, I find persuasive Mr Wyeth’s submission that the claimant’s assertion that Mr Cox was motivated to dismiss him because of his disclosure about the existence of asbestos at the property is unsustainable by reference to the very same contemporaneous evidence he seeks to rely upon in support of that assertion. Appeal hearing[49]In his appeal against dismissal, the claimant placed considerable emphasis on the asbestos issue. The appeal outcome letter of 25 October 2024 references all three incidents (the driving incident, the altercation incident and the asbestos incident). It is not surprising that Mr Clarke spent time dealing with the asbestos incident, as points about the asbestos incident formed the bulk of the claimant’s lengthy appeal email. However, Mr Clarke does not say whether the original decision to dismiss the claimant included anything to do with the asbestos incident (as opposed merely to the other two incidents).[50]Furthermore, Mr Clarke’s references to the asbestos incident are about the claimant’s failure to follow the asbestos procedures (and indeed he finds, apparently not unreasonably in the light of the evidence which I have seen, that the claimant did not follow the asbestos procedures). He also makes the obvious point that the claimant changed his story in the course of his messages. However, there is nothing to suggest that those parts of the text messages which the claimant now relies on as being as protected disclosures were in any way part of the reason for his dismissal. Conclusions on the issues[51]I therefore make the following conclusions.[52]By way of recap, the claimant’s claim is for automatically unfair dismissal under section 103A ERA only, ie the complaint is that the reason or principal reason for the claimant’s dismissal was that he made a protected disclosure or disclosures; if the disclosures were a contributory reason only, that would not be enough for the complaint to succeed.[53]For the purposes of the interim relief application, I have to determine whether the claimant’s claim has a “pretty good chance” of succeeding. “Reason why”[54]At the date of his dismissal, the claimant has been employed by the respondent for just over two months (from 5 August to 11 October 2024). He remained on his probationary period.[55]During that period, the respondent had received two complaints, both of a serious nature, about the claimant’s behaviour. The claimant had been wearing the respondent’s uniform and/or was driving or near to the respondent’s branded vehicle in relation to both of these incidents. The incidents therefore had serious implications for reputational damage to the respondent.[56]The claimant admitted to the conduct in the first (driving) incident, although he later sought to dispute some elements of it. At this tribunal, he admitted to there having been an altercation in relation to the second incident, which he said was heated although not, in his opinion, aggressive.[57]The only references to the asbestos incident in the notes of the meeting of 11 October 2024 at which Mr Cox dismissed the claimant are a reference to “then there is also the incident this week where you haven’t followed company procedure and damaged asbestos”; they do not reference any complaint about asbestos which the claimant made. The evidence before me indicates that the claimant did indeed fail to follow the respondent’s procedure regarding asbestos, which was a serious matter.[58]On the available evidence, therefore, it is likely that the respondent took the decision to dismiss the claimant as a result of an accumulation of serious incidents during the very short tenure of the claimant’s employment, including specifically the driving and altercation incidents and, to the extent that the asbestos issue contributed at all, because of the claimant’s failure to follow the procedure regarding asbestos (as opposed to any alleged protected disclosure in relation to the asbestos incident). It is therefore likely that the alleged protected disclosures formed no part (not even a contributory part) of the reason for the claimant’s dismissal.[59]It is also likely that the claimant would have been dismissed for the first two incidents, even if the asbestos incident had not occurred; it would be unsurprising if a respondent dismissed an employee on his probationary period for one, let alone two, such serious incidents. It is therefore likely that the claimant’s failure to follow the asbestos procedure was therefore a contributory and not the principal reason for dismissal.[60]It follows that the claimant has not shown that there is even a likelihood of his claim succeeding, let alone a “pretty good chance” of it succeeding. Protected disclosures?[61]In addition, the evidence available suggests that the claimant changed his story significantly about whether or not he had cut asbestos (and, as noted, it is the cutting of asbestos rather than the discovery of asbestos which is the aspect which gives rise to the potentially serious health and safety implications). His restated position was that he did not cut it; it is therefore unlikely that he would be able to establish that he had a reasonable belief that the alleged disclosures which he made tended to show that the health or safety of any individual had been, was being or was likely to be endangered or that a person had failed, was failing or was likely to fail to comply with a legal obligation to which he was subject.[62]For this reason too, the claimant has not shown that there is even a likelihood of his claim succeeding, let alone a “pretty good chance” of it succeeding. Reliability of claimant’s evidence[63]I have for the most part been able to draw the above conclusions based on the undisputed documentary evidence which has been provided. However, there are disputes of fact in the evidence of the claimant and Mr Cox which would need to be tested at a final hearing. Where such disputes exist, I cannot take the evidence of either party as being undisputed fact; and in those circumstances, where the burden of proof is on the claimant to show that the claim has a pretty good chance of succeeding, I cannot take the claimant’s evidence as facts which would support such a conclusion.[64]However, I would add that it appears that the claimant’s evidence is inconsistent in certain material areas which might give rise to concerns about the reliability of his evidence. The change of position in relation to whether he cut the asbestos is one example. Another is his seeking to change his evidence in relation to the driving incident to dispute some elements of an allegation he had apparently previously accepted. A third is his admission at this tribunal that there was indeed a heated dispute with his mother in relation to the second incident, which he did not admit during the internal proceedings.[65]These concerns about the reliability of the claimant’s evidence further increase the likelihood that the respondent’s evidence will be preferred over the claimant’s and therefore the likelihood that the claimant will not succeed in his claim.[66]For all of the above reasons, the application for interim relief is refused. Written reasons[67]After I had delivered the reasons for my decision orally, I explained that I would, in a moment, ask the parties whether they wanted the written reasons for the decision and that they would be able to request them either now at the hearing or within 14 days of the judgment being sent to the parties.[68]Before doing so, I explained, for the claimant’s benefit, two things. First, I said that, if a party wished to appeal the tribunal’s decision, that party would need the written reasons in order to do so, although I stated that an appeal could only be founded if there was an error of law by the tribunal or if its decision on the facts was perverse; there were no grounds for appeal if a party simply disagreed with the factual findings that the tribunal had made. Secondly, I explained that, if written reasons were produced, they would be published online on the tribunal’s website and that the tribunal had no discretion as to whether or not to do this. I added that the reasons were searchable by name and that the tribunal was aware that potential future employers might carry out such a search. I made these remarks because I was concerned about whether it was in the claimant’s own best interests for the written reasons to be produced and consequently published online.[69]I then asked the parties whether they wanted the written reasons. Mr Wyeth said that he did not. The claimant said that he did want the written reasons.[70]They have accordingly been produced.