Mr S Cresswell v High Speed Two (HS2) Ltd and others: 2300933/2023

EMPLOYMENT TRIBUNALS

Case No 2300933/2023

Between

Mr S CresswellClaimant

High Speed Two (HS2) Ltd and othersRespondent

Before

Employment Judge Truscott KC

Ms R Owusu-Agyei barrister for claimant

Date 19 July 2024

REASONS

[1]The claimant asked the Tribunal to:(a) find that he was a worker of the respondents under section 43K of the Employment Rights Act 1996 (“ERA”);

(b) make the case management orders suggested in the claimant’s agenda for the existing final hearing listed in July 2024.

[2]In relation to the second matter, the Tribunal has made the necessary case management Orders in a separate document.

[3]In relation to this hearing, on 3 July 2023, EJ Khalil stated that today’s preliminary hearing is listed: “to determine the Claimant’s employment status and subject to that, case management as required.” [50]

[4]No case management Orders were made for this hearing which was listed on 27 June 2023 [48-49]. In preparation for this hearing, the claimant’s solicitors wrote to each of the respondents’ solicitors to suggest dates by which a bundle could be agreed and witness statements exchanged. None of them responded. On 3 November 2023, as proposed, the claimant’s solicitor disclosed the documents on which the claimant relies in his bundle and proposed the exchange of witness statements on 17 November 2023. Solicitors for the third respondent suggested an alternative timetable for disclosure, a bundle and witness statements but did not disclose any documents or send a witness statement on the proposed date. Solicitors for the first and second respondents did not respond. On 15 November 2023, the claimant’s solicitor sent an updated bundle for the preliminary hearing to the respondents. The following day, solicitors for the first and third respondents suggested they were taking instructions but did not disclose any documents or state whether they would be relying on witness statements and/or documents. On 20 November 2023, the claimant’s solicitor asked the respondents to advise whether they will be disclosing any documents or relying on witness statements, and, in the absence of a response, the claimant will be submitting his bundle and witness statement to the tribunal on 21 November 2023. None of the respondents responded. The claimant’s solicitor sent the bundle and the claimant’s witness statement to the tribunal at 8.23am on 21 November 2023. Having not indicated that they would be relying on witness evidence, and after having had sight of the claimant’s witness statement, at 5.02pm on 21 November 2023, solicitors for the third respondent submitted a witness statement and documents not previously disclosed to the claimant. On 22 November 2023 at 2.44pm, solicitors for the second respondent sent a witness statement to the claimant. The statement refers to documents that have not been disclosed. The second respondent also relied on its application to strike out, dated 7 November 2023.

[5]The Tribunal sought to ascertain whether any party had been prejudiced by what had taken place, particularly the claimant. The claimant wished the hearing to go ahead and the other parties did not object.

[6]The Tribunal heard evidence from the claimant, Mr David Robertson, managing director of the second respondent and Mr Paul Miller, practice director for risk management services of the third respondent who also had a part-time role with the first respondent as a Central Team Adviser.

[7]There was a bundle of documents provided by the claimant to which the third respondent added some emails regarding the claimant’s appointment to third respondent.

Findings

[1]The claimant is a leading Project Risk Management practitioner, which includes performing Quantitative Cost Risk Analysis and Quantitative Schedule Risk Assessment. He is also an experienced Value Management practitioner. Value Management ("VM") is focussed on attaining a desirable and efficient balance between the needs and wants of a wide range of stakeholders and the resources needed to satisfy them. VM activities include project option generation and selection and option development, including "value engineering", which are incremental changes that enhance benefits and/ or optimise resource use.

[2]In 2008, the claimant incorporated a limited company called Into Risk Limited, of which he is the sole director and employee. Into Risk Limited provides project, operations and strategic planning, value management, workshop facilitation and business training.

[3]The first respondent ("HS2") is the non-departmental public body responsible for developing and promoting the High Speed Two rail programme. The company is a party to a Development Agreement made with the Secretary of State for Transport. HS2 is described as the largest infrastructure project in Europe. It represents approximately 50% of the financial value of projects in the Government Major Projects Portfolio..

[4]The second respondent is a company which provides outsourced payroll services to clients and payroll services to freelance professionals. The second respondent was engaged by the third respondent.

[5]In July 2020, the third respondent was successful in securing the Commercial Delivery and Controls Professional Services Framework (known as the CDC framework) with HS2. This included a range of services of which risk management was only one. HS2 is required to access temporary resources through the CDC framework. Within that framework HS2 can ask it to supply appropriately qualified personnel to work on the HS2 project. The personnel that it supplies can work on what is known as 'task and finish activities' or 'business as usual activities'. In either circumstance, anyone appointed by HS2 through the CDC framework is appointed on a six-month contract, after which either the appointment is ended or extended. Under the terms of the CDC framework, HS2 is required to provide the third respondent with adequate notice if it decides that it no longer needs the services of anyone that is supplied by it under the CDC framework.

[6]As part of the Sir David Higgins Review of HS2, the claimant provided a Quantitative Schedule Risk Assessment of alternate schedule scenarios for the project and High- level Cost Risk Analysis that included the modelling of interdependencies. This engagement commenced on 13 January 2014, and the final deliverable was sent on 10 March 2014. The engagement with the Higgins Review was via Turner and Towsend, a large consultancy which was project managing the review and team.

[7]Prior to 2020, the claimant’s typical pattern would consist of a single large timebased contract and multiple smaller assignments contracted as a business. During 2020, the consulting work was impacted by the Covid-19 pandemic as there was a large component that was workshop based and/ or international.

[8]The claimant was engaged on a part-time basis between late 2018 and 2020 via framework agreements between HS2 and T&T and HKA Global. Tasks were principally cost and schedule risk analyses.

[9]In 2021, HS2 asked the third respondent to approach the claimant, as he had worked with it before and his work was well known. The additional emails provided by the third respondent were sent at this stage. Ray Sloane (Project & Programme Risk Manager) of Faithful & Gould (“F&G”) which had been acquired by the third respondent in 1996 approached the claimant. In the course of the discussions, on 10 February 2021, Ray Sloane of F&G forwarded to the claimant an exchange of emails that had passed between him and his colleagues at F&G and the third respondent [50A-F]: “Apologies for being pedantic - but IR35 is a potential issue with HS2…For the avoidance of doubt all resource proposed to HS2 must be proposed as inside IR35 without exception..”

[10]The claimant’s engagement was to start at two days per week but would move to four days per week. There are also related text messages between the claimant and Ray Sloane of F&G: " Sorry to ask but I'm getting hassled", "getting follow ups every couple of hours", "HS2 are expecting you on 1 March" [51-59].

[11]The second respondent’s E Shrader set out three options for payment to the claimant [68], it was for the claimant to determine which basis suited him. As the claimant wished to retain the involvement of his service company, the “deemed” route which was suggested as the more appropriate by the second respondent, was selected by the claimant. On 15 March 2021, Rebecca Mason of the second respondent (trading as MyPay+) sent the claimant a contract [64-76]. The terms of the contract of this, the third engagement, were on the standard terms supplied by the second respondent, but incorporated specific terms in a schedule to the contract. The contract was deemed to be within the scope of IR 35 despite containing references to “off payroll” not applying. The amount of work required the claimant to allocate himself to the project on a full-time basis.

[12]On 19 March 2021, Into Risk Limited entered into the contract with the second respondent (trading as MyPay+) where the claimant signed as a director, whereby the claimant would provide his services to the third respondent. The contract was for a fixed term, due to expire on 31 December 2021 [67] The claimant's services were to provide project risk management services, including supporting revisions and updates to the exercises previously undertaken between November 2018 and December 2020.

[13]The second respondent agreed to provide Into Risk Limited with payroll services in relation to provision of his services. The second respondent requested: 1. evidence that any individuals providing the Services were legally entitled to work in the UK (“Proof of ID”); 2. a declaration from any individuals providing the Services as to whether they have any unspent criminal convictions (“Criminal Record Declaration”); and 3. a reference for any individuals providing the Services (“Reference Request”);

[14]What remained to the third respondent was to confirm if the claimant was being asked to remain for any additional time or to confirm if he was not going to be used by HS2 anymore.

[15]On or around 15 November 2021, at the request of the third respondent, the second respondent issued to the claimant’s company an update to the agreement, confirming that the anticipated termination date for provision of the services was to be extended to 31 July 2022 [85-89]. This time, the contract correctly stated that "Off Payroll" applies (i.e. that the contract was within IR35) [86].Invoices submitted to the second respondent show tax deductions were made from March 2021 onwards [99A105].

[16]On 12 September 2022, the second respondent extended his engagement at the request of the third respondent to 31 December 2022 [98-99] although his engagement actually ended on 30 September 2022. Again, the contract stated that "Off Payroll" applies [98].

[17]Clause 1 of the contract states that nothing shall constitute the relationship of employer and employee or any partnership [68]. It also states that the claimant could sub-contract his services. This did not happen and would not have been permitted by HS2 as they required his expertise.

[18]The claimant started work in late March/April 2021. This was later than HS2 wanted, but the claimant had other commitments and he also carried out research and consulted with his accountant on the implications of working inside IR35 which included matters such as taxation, insurance and pension contributions. This caused the claimant to seek a higher rate than usual. HS2 did agree to take some contractors on what were known as 'starred rates', which were outside the rates that HS2 set in the CDC framework. The claimant was on a starred rate. His engagement with HS2 from 2021 onwards was negotiated purely on the basis of hours and rate. The third respondent acted as the 'go between' in the negotiation, but ultimately it was HS2's decision to proceed on the basis of the final agreed rate.

[19]When HS2 decided to use the claimant and the claimant agreed to do the work for HS2, he went through the Resource Approval Process (RAP) which was run and operated by HS2. This took about two to three weeks. The third respondent provided the claimant with an onboarding pack, which outlined the HS2 project. At some point, the claimant was required to complete some mandatory training for the third respondent/F&G and SNC Lavalin, the parent company of the third respondent. F&G had to send him links to be able to do that as he did not have access to any third respondent systems [81-84 and 90-91].

[20]The way the contractual arrangement worked was that the claimant would work for HS2, he would complete weekly time sheets that were provided by the second respondent (through its trading name of MyPay). On 29 March 2021, MyPay+ emailed the claimant to inform him that all contractors must have expenses pre-approved by the end client, HS2 [79-80]. The third respondent got confirmation that the timesheets were approved, the second respondent then sent the third respondent an invoice for the work that had been approved by HS2 each week and the third respondent sent HS2 a corresponding invoice each month.

[21]The claimant had a line manager at HS2 and he reported matters such as sickness and leave to them. HS2 was responsible for controlling the claimant and his work overall and on a day-to-day basis. If it had any issues with the claimant, HS2 would deal with them.

[22]The claimant was to work on HS2 sites in London/Birmingham [67]. He was supplied with an HS2 laptop and email/ IT account [77-78] by HS2. This included provision of licences for Palisade @Risk, a specialist software package for risk analysis. However, the HS2 IT department could not get the software to work so the claimant relied on his own copy of the software and his own IT to undertake cost risk analysis. It took around one year for the IT issues with the software to be resolved. The claimant was also given licences for Oracle Primavera Risk Analysis - another specialist project schedule software package.

[23]The claimant submitted timesheets on a monthly basis, from which the second respondent created invoices and made payments to him, less deductions pursuant to IR35 [99A-105].

[24]Although the written terms and conditions of engagement in the second respondent’s contract were similar to those in earlier contracts that applied before 2021, the working practices were different, the claimant had much less discretion and autonomy, with more direction and control by HS2.

[25]Formally his reporting line was into Rebecca Gabriel, HS2 Director of Risk. The Director of Risk was within the Project Management Office. The role of the central risk function, a part of the Project Management Office, was to provide human resources, access to infrastructure, standardised processes, training, guidance and also look after or strategic risk management. The claimant worked on a number of different exercises assigned to him by the Risk Director so, on a day-to-day basis, he would report in to whichever HS2 manager required the outputs of the analyses or exercise being undertaken. One exception to this was the authoring of the Assumptions Management Process, where the responsible Manager was Rebecca Gabriel. Another exception was the Phase 2a Cost Risk Analysis when Rebecca Gabriel gave specific instructions on a numerical parameter to be used in the modelling, she explained that she was passing on a request from Michael Bradley, the Chief Financial Officer.

[26]By the end of the assignments, the claimant was using HS2's standard approaches and tools to undertake cost risk analysis (which he had partly helped to develop).

[27]The claimant provided a detailed list of the work he carried out for the first respondent at paragraph 29 of his witness statement which was not challenged and is not repeated here.

[28]Throughout his assignment to HS2, written deliverables (such as reports and presentations) were either unbranded or HS2 branded having the HS2 logo and fonts etc. HS2 had final editorial control over formal documents to be passed to the Department for Transport, for example, analysis reports used for governance and final sign-off responsibility was with HS2. Formal documents were prepared with an HS2 template, that on the cover would have an author, a reviewer and an approver. The approver would be HS2 staff. Following their approval, these documents would then be 'controlled documents' with a document reference number. The claimant would be asked to make changes to the documents as required by the HS2 approver. This is in contrast to his practice when he contracts with other organisations as an independent consultant, when he either uses his own Into Risk branded templates for documents and presentation or uses unbranded templates. The branding differentiates between internal and external content and ownership.

[29]The claimant was required to attend the HS2 Risk Team meetings and "All Staff" events. All Staff events were typically teleconferences about the progress made on the project and other matters. Mark Thurston, the then CEO, would typically be the key presenter, with other segments by Human Resources and other senior managers.

[30]There was a roster to present a "Values" moment at the monthly HS2 Risk Team meeting. When it was the claimant’s turn to present, in early 2022, he chose the HS2 "Leadership" value. he gave a presentation outlining the inaccuracies of Qualitative Risk Assessment with 5 point "very low" to "very high" scales as was used by HS2 for corporate risk reporting.

[31]The Chief Financial Officer of HS2, Michael Bradley, ran a Value Awards Programme. In April 2022, the Phase 2a Project Controls Team (including the claimant) was nominated for a Values award for "Integrity", and later won the award [92-94j. The other members of the team were Shah Ahmed, Jamie Macfarlane, Colin McDonald and Graham Ramsden. Shah Ahmed and Colin McDonald were employees of HS2; Graham Ramsden had been seconded to HS2 by his employer, Equib Limited; The claimant was sent a certificate through the post, signed by Shira Johnson HR Director [95], along with a matching tie pin. He was also sent by email an HS2 branded background for use in online meetings [97J]. There was a planned lunch with Mark Thurston in Birmingham, though this was later downgraded to an online event. Submissions

[32]The Tribunal heard oral submissions from all parties with written submissions from the claimant and first respondent.

Law

[33]PIDA 1998 deliberately extended the scope of its protection beyond employees, applying to 'workers' instead. As the Act operated by reading its provisions into the ERA 1996 (particularly as Part IVA) this adopted the general definition of 'worker' in the ERA 1996 s 230(3). The claimant in particular and the other parties were in agreement that the claimant was not a worker under these provisions.

[34]Section 43K of the Employment Rights Act 1996 (“ERA”) states: 43K.— Extension of meaning of “worker” etc. for Part IVA.(1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who— (a) works or worked for a person in circumstances in which— (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them, (b) contracts or contracted with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”, …

(2) For the purposes of this Part “employer” includes— (a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged, ...

[35]In Croke v. Hydro Aluminium Worcester Ltd

[2007] ICR 1303

EAT, the Employment Appeal Tribunal held that the introduction or supply of an individual for the purpose of section 43K can include an individual introduced or supplied by an agency even where that person is operating through their own service company.

[36]In Keppel Seghers UK Ltd v. Hinds

[2014] ICR 1105

EAT, the Employment Appeal Tribunal also considered the extended definition in the context of a personal service company. The EAT held that the protection afforded by section 43K extends to relationships where, although there is no contract between the two protagonists, contracts exist between each of them and other parties that impact (if not govern) the relationship between them. What matters is whether the ‘worker’ had been introduced or supplied to the ‘employer’ who decided the terms of the engagement. It said at paragraph 59: “The protection extends to relationships where there is no contract in existence between the parties (see Cox J in Sharpe at paragraph 237) and to cases where there might be no direct contract between the complainant and the user of her services but contracts between each of them and other parties, impacting upon (if not governing) their relationship. This might include a contract between the complainant and an employment agency where the complainant is engaged through her own service company (see Croke).”

[37]In McTigue v. University Hospital Bristol NHS Foundation Trust

[2016] IRLR 742

, EAT, Simler J (as she then was) set out the relevant questions the tribunal should ask when assessing whether a claimant falls within the protection of section 43K(1) at paragraph 38. These questions are addressed later.

[38]The provision was also considered by the Court of Appeal in Day v. Health Education England & Anr

[2017] ICR 917

CA, the Court of Appeal held that it is an error of law for a tribunal to approach the issue of who in practice substantially determines the terms on which an individual is engaged to do work for a third party as though it is necessary to identify a single body primarily responsible for such determination. It is open to tribunals to find that both the introducer/supplier of the individual’s services and the end-user of those services both jointly ‘substantially determined’ the terms of the claimant’s engagement. DISCUSSION and DECISION

[39]This issue arises in considering the third engagement by HS2 of the claimant which commenced on 1 March 2021. In relation to the first respondent:(a) It insisted that the claimant could only be engaged on the basis that he was to be “inside IR35” [50A]. he tribunal took from this that had there not been the intermediaries of the second and third respondents, the claimant would likely have been an employee of the first respondent.

(b) It determined the contractual arrangements by which the claimant would be engaged. It required the claimant to be engaged via its “approved umbrella company” First [50A] (of which the second respondent is a subsidiary [61];

(d) It determined what work he would do and where he would do it.

(e) It supplied the claimant with a work laptop, email account, IT account and software [77- 78]

(f) It trained the claimant and required the claimant to report to its employees.

(g) It required pre-approval of expenses [79-80]

(h) It controlled the claimant’s work.

[40]During the exercise with Land and Property, he found that the risk data was out-of-date because the capture of information during reviews was highly inefficient. To remedy this and try to bring the Land and Property risk information up to date as quickly as possible, he started to use my own tool that he had optimised for efficient use in workshops and meetings. On seeing this, one of the other risk managers escalated a complaint to management about the use of tools and templates that were not HS2's prescribed format. Rebecca Gabriel insisted that he stop using the tool, and also raised the matter with Tenia Chatzinikoli who he was reporting into for the L&P assignment. The claimant says he was severely admonished and the overall tone was that of a disciplinary. Rebecca Gabriel did not discuss this with him and there is a screen shot of the Teams conversation with Damian Mortimer [94A]. The Tribunal is doubtful that this was disciplinary.

[41]The first respondent substantially determined the terms on which the claimant was engaged to do the work.

[42]The second respondent supplied the claimant to the third respondent. The second respondent says in its ET3 at paragraph 21 that “[it] did not decide upon the specific terms (such as the nature of the Services, the location, the start or end dates or the fee” which is correct. The second respondent points to the third respondent. Whilst this is correct as far as it goes, the second respondent provided the written terms on which the claimant was supplied to the third respondent [67-69; 86-89; 98- 99] which are far beyond what is necessary for a payroll function. As the Tribunal did not see any contact conditions between the second and third respondents, it cannot make a finding as to why these terms were imposed by the second respondent on the claimant. The second respondent required the claimant to provide proof of his identity, his ability to work in the UK and references [72-76]. The claimant was required to send timesheets to the second respondent. The second respondent paid the claimant (through his personal service company) and made deductions for national insurance contributions and employment taxes at source [99A-105]. The claimant selected the “deemed” basis of employment. The second respondent undertook to pay the claimant regardless of whether or not it was put in funds by the client. It said [69]: “ Since MyPay+ are a sub brand of First Recruitment Group, we do not rely on funds from an agency before making payments to you, therefore being paid through MyPay+ will mean that everything you need will be under one roof from recruitment through to payment…”

[43]The second respondent substantially determined the terms on which the claimant was engaged to do the work.

[44]The third respondent both introduced and supplied the claimant to the first respondent. The first and third respondent’s contractual terms have not been disclosed. Nevertheless, there must have been an agreement between them whereby the third respondent sources workers for the first respondent. The first respondent accepts this in its grounds of resistance [25, paragraph 5-7]. There may have been other terms of the contract. The claimant negotiated his rate of pay with the third respondent’s employee (through the third respondent’s subsidiary, Faithful + Gould) [51-59]. It instructed the claimant to enter into contractual relations with the second respondent in order to perform work for the first respondent [56-59]. The claimant was required to take training as directed by the third respondent [90-91]. The second respondent identified other features of the contract (set out at paragraph 42) for which the third respondent was responsible.

[45]The third respondent was not simply responsible for the introduction of the claimant, it substantially determined the terms on which the claimant was engaged to do the work by negotiating his rate of pay and how quickly he would move to full-time working and by insisting the second respondent was contracted.

[46]The evidence is that each of the three respondents substantially determined the terms on which the claimant was engaged to do the work in the respects set out in the factual findings. The claimant did not substantially determine the terms of his engagement. He negotiated his pay and hours within the requirements set by HS2.

[47]However, nuanced the relationship is between a whistleblower and the enduser employer, the Tribunal understood that there must be some form of contractual regulation of that relationship, whether express or implied. The absence of any type of contract at all will be fatal, according to Sharpe v. Worcester Diocesan Board of Finance Ltd and anor

[2015] ICR 1241

CA. The same point was expressly recognised in McTigue. There are obiter remarks made by Elias LJ in Day which suggest that in determining whether the relationship is founded on some form of contract an employment tribunal is not limited to focusing solely on the contractual terms, the section expressly requires it to focus on what happens in practice. Parliament would not have envisaged fine arguments on whether a term is contractual before it can be taken into account. When determining who substantially determines the terms of engagement, a tribunal should make the assessment on a relatively broad-brush basis, having regard to all the factors that have a bearing on the terms on which the putative worker was engaged to do the work.

[48]It should be noted that in Keppel Seghers UK Ltd, it was observed that: ‘The protection [provided by section 43K(1)(a) extends to relationships where there is no contract in existence between the parties … and to cases where there might be no direct contract between the complainant and the user of her services but contracts between each of them and other parties, impacting upon (if not governing) their relationship’. While the second part of this statement remains good law (and was the principal basis on which the claimant in that case was found to be a worker within the terms of the extended definition), the first part of the statement may no longer be sound in light of Sharpe.

[49]The Tribunal sought to apply the guidance in McTigue.(a) For whom does or did the individual work? Each of the three respondents for the reasons set out earlier.

(b) Is the individual a worker as defined by section 230(3) in relation to a person or persons for whom the individual worked? If so, there is no need to rely on section 43K in relation to that person. However, the fact that the individual is a section 230(3) worker in relation to one person does not prevent the individual from relying on section 43K in relation to another person, the respondent, for whom the individual also works. It was accepted by all parties that section 230 did not apply.

(c) If the individual is not a section 230(3) worker in relation to the respondent for whom the individual works or worked, was the individual introduced/supplied to do the work by a third person, and if so, by whom? Yes, the third respondent.

(d) If so, were the terms on which the individual was engaged to do the work determined by the individual? If the answer is yes, the individual is not a worker within section 43K(1)(a) No. .

(e) If not, were the terms substantially determined (i) by the person for whom the individual works or (ii) by a third person or (iii) by both of them? If any of these is satisfied, the individual does fall within the subsection. Each of the three respondents for the reasons given earlier.

(f) In answering question (e) the starting point is the contract (or contracts) whose terms are being considered. The written contract between the claimant’s company and the second respondent was considered along with the evidence of the contractual relationships between the respondents.

(g) There may be a contract between the individual and the agency, the individual and the end user and/or the agency and the end user that will have to be considered. The contracts between the respondents which plainly existed under the Framework agreement were not disclosed. There was no contract between the claimant either directly or through his company and the first respondent. Further there was no contract between the second respondent and the first respondent. The Tribunal took an overall view of the contractual arrangements to make its findings.

(h) In relation to all relevant contracts, terms may be in writing, oral and may be implied. It may be necessary to consider whether written terms reflect the reality of the relationship in practice. The reality of the situation is that each respondent made a substantial contribution to the terms under which the claimant worked.

(i) If the respondent alone (or with another person) substantially determined the terms on which the individual worked in practice (whether alone or with another person who is not the individual), then the respondent is the employer within section 43K(2)(a) for the purposes of the protected disclosure provisions. There may be two employers for these purposes under section 43K(2)(a) . There are three employers in this case which may seem counterintuitive but, because of the contractual arrangements in this case, it is the finding of the Tribunal.

REMEDY

[1]By a claim form presented to the Employment Tribunal on 27 February 2023, the Claimant, Mr Cresswell, brought complaints of detrimental treatment as a result of his making public interest protected disclosures against, originally, three Respondents: High Speed Two (HS2) Ltd; Talascend Ltd; and AtkinsRealis UK Ltd.

[2]The Claimant alleged that he had made five protected disclosures to the Respondents between 5 November 2021 and 23 September 2022, which tended to show that the Respondents had failed, were failing or were likely to fail to comply with a legal obligation, namely an obligation to provide Page 1 of 24 reasonable and accurate costings, forecasts and budgets to HM Treasury. He also alleged that the disclosures tended to show a criminal offence had been committed and/or was being committed and/or was likely to be committed. The Claimant asserted that the criminal offence was fraud.

[3]As a result of these disclosures the Claimant alleged that he was subjected to the following detriments:a. Not considering him for two Risk Assessment consultancy roles on the HS2 project in July 2022;

b. Terminating his contract with effect from 30 September 2022;

c. Not offering him an analyst role on Phase 2A of the HS2 project in November 2022.

[4]All three Respondents denied the claim in its entirety in separate response forms.

[5]On 27 June 2023, the Employment Tribunal sent notice of the dates set for the full hearing, which was to take place on 29-31 July and 1 August 2024. On the same date, the Tribunal also sent notice of an Open Preliminary Hearing which was to take place on 23 November 2023, at which the issue of the Claimant’s employment status (ie whether the Tribunal had jurisdiction to deal with the claim) was to be determined.

[6]The Open Preliminary Hearing took place as scheduled on 23 November 2023 and was conducted by Employment Judge (“EJ”) Truscott KC. At that hearing, he determined that the Claimant was a worker of each Respondent, extended the dates previously set for the full hearing and made necessary Case Management Orders to prepare the case for that hearing. EJ Truscott KC’s Judgment is at pages 972-983 of the bundle provided for today’s hearing.

[7]On 19 July 2024, a further Preliminary Hearing took place and was conducted by EJ Dyal. At that hearing, EJ Dyal considered the terms of a Consent Order presented and signed by all of the parties and an Agreed List of Issues.

[8]As a result he gave Judgment in the terms set out in the Consent Order. Namely, the, then, First Respondent (High Speed Two (HS2) Ltd) conceded liability for the detriments set out at paragraph 3.a. and

b. as I have set out above, because the Claimant had made the protected disclosures summarised at my paragraph 2 above; the Claimant withdrew the detriment set out at paragraph 3.

c. above; the claims against the, then, Second and Third Respondents were dismissed on withdrawal; and that the, then, Second and Third Respondents would not make any application for costs against the Claimant.

[9]In addition, EJ Dyal directed that the issue of remedy be determined by a Judge sitting alone at a further hearing, listed for 3 days (it not being possible to deal with this matter on the dates already listed for the full hearing). He also set a number of Case Management Orders to allow for preparation of Page 2 of 24 the case for the remedy hearing. EJ Dyal’s Judgment and appended Agreed List of Issues are at pages 12-19 of the bundle provided for today’s hearing.

[10]Given that there is now only one Respondent, I will refer to the First Respondent in this Judgment simply as “the Respondent”. Documents & Evidence

[11]I was provided with the following electronic documents: a bundle consisting of 1229 pages (which I will refer to as “B” followed by the relevant page number(s) where necessary); the Claimant’s witness statement; and witness statements for Mr David Sage and Mr James O’Malley, on behalf of the Respondent.

[12]I heard evidence from the Claimant and the Respondent’s witnesses by way of their written statements and in oral testimony. Submissions

[13]I was provided with a skeleton argument from Mr Mitchell on behalf of the Claimant and an opening note and written submissions from Ms Thomas on behalf of the Respondent. I also received an authorities bundle from Mr Mitchell. Both Counsel also gave oral submissions. I have referenced those submissions where appropriate but would emphasise that I have taken them fully into account in reaching my decision. Conduct of the hearing

[14]The January 2025 hearing was conducted over three days by Cloud Video Platform (“CVP”). The intention was to deal with remedy and also the Claimant’s application for costs against the Respondent which is at B24-25.

[15]After hearing evidence and submissions on remedy, there was insufficient time in which to reach a decision and so at the behest of the parties I indicated that I would give an Oral Judgment on Remedy.

[16]I set a further date for a hearing to take place on 6 March 2025, at which I would determine the Claimant’s costs application and, if necessary, give Judgment on Remedy and, if necessary, deal with any queries that might have arisen from my Judgment on Remedy, if I was unable to resolve them without the need for further representations from the parties.

[17]Unfortunately, I was not in a position to proceed that day and so took the opportunity to seek clarification of a number of matters with the parties and then set a date for a further hearing, namely 13 May 2025.

Findings of Fact

[18]I decided all the findings referred to below on the balance of probability, having considered all of the evidence given by the witnesses during the hearing, together with documents referred to by them. Any failure to mention any specific part of the evidence should not be taken as an indication that I failed to consider it. Page 3 of 24

[19]I have only made those findings of fact necessary to determine the issues. It has not been necessary to determine every fact in dispute where it is not relevant to the issues between the parties.

[20]The Claimant is a leading project risk management practitioner, which includes performing quantitative risk analysis and quantitative schedule risk assessment. He is also an experienced value management practitioner. He provides his services through a service company called Into Risk Ltd of which he was also a Director.

[21]Under the terms of the Consent Order, the Respondent had admitted the above protected disclosures and that the Claimant had been treated detrimentally as a result in respect of the following:a. He was not considered for two Risk Assessment consultancy roles on the HS2 project in July 2022;

b. His contract was terminated with effect from 30 September 2022.

[22]At the Open Preliminary Hearing, EJ Truscott KC made the following key findings of fact, which I was grateful to Mr Mitchell for identifying in his skeleton argument (references are to paragraphs within that Judgment at B972-983):a. The Claimant is “the sole director and employee” of Into Risk Ltd (at paragraph 2);

b. The Respondent “represents approximately 50% of the financial value of projects in the Government Major Projects Portfolio” (at paragraph 3);

c. “…anyone appointed by HS2 through the CDC framework (Commercial Delivery & Controls) is appointed on a six-month contract, after which either the appointment is ended or extended” (at paragraph 5);

d. The Claimant “provided a Quantitative Schedule Risk Assessment of alternate schedule scenarios for the project and High-level Cost Risk Analysis that included the modelling of interdependencies”, between 13 Jan 2014 and 10 March 2014 (at paragraph 6);

e. The Claimant was “engaged on a part-time basis between late 2018 and 2020 via framework agreements between HS2 and T&T and HKA Global” (at paragraph 8);

f. “HS2 asked the (then) third Respondent to approach the Claimant, as he had worked with it before and his work was well known” (at paragraph 9);

g. “Into Risk Limited entered into the contract with the (then) second respondent (trading as MyPay +) where the Claimant signed as a director, whereby the claimant would provide his services to the (then) third respondent. The contract was for a fixed term, due to expire on 31 December 2021. The Claimant’s services were to provide project risk management services, including supporting revision and updates to the Page 4 of 24 exercises previously undertaken between November 2018 and December 2020” (at paragraph 12);

h. “On or around 15 November 2021, at the request of the (then) third respondent, the (then) second Respondent issued to Claimant’s company an update to the agreement, confirming that the anticipated termination for provision of the services was to be to be extended to 31 July 2022” (at paragraph 15);

i. “Invoices submitted to the (then) second Respondent show tax deductions were made from March 2021 onwards” (at paragraph 15);

j. “On 12 September 2022, the (then) second Respondent extended (the Claimant’s) engagement at the request of the (then) third Respondent to 31 December 2022 although his engagement actually ended on 30 September 2022 (at paragraph 16);

k. “(the contract also states that)… the Claimant could sub-contract his services. This did not happen and would not have been permitted by HS2 as they required his expertise” (at paragraph 17);.

l. “HS2 did agree to take some contractors on what were known as ‘starred rates’, which were outside the rates that HS2 set in the CDC framework. The claimant was on a starred rate” (at paragraph 18);

m. “His engagement with HS2 from 2021 onwards was negotiated purely on the basis of hours and rate. The (then) third Respondent acted as the ‘go between’ in the negotiation, but ultimately it was HS2’’s decision to proceed on the basis of the final agreed rate” (at paragraph 18);

n. “… the HS2 IT department could not get the software to work so the claimant relied on his own copy of the software and his own IT to undertake cost risk analysis.” (at paragraph 22);

o. “The Claimant worked on a number of different exercises assigned to him by the Risk Director so, on a day-to-day basis, he would report in to whichever HS2 manager required the outputs of the analyses or exercise being undertaken” (at paragraph 25);

p. “By the end of the assignments, the Claimant was using HS2’s standard approaches and tools to undertake cost risk analysis (which he had partly helped to develop).” (at paragraph 26).

[23]The Claimant sets out the history of his work on HS2 at paragraphs 5-11 of his witness statement. In essence, his first period of engagement was between January and March 2014, he was then engaged on a part-time basis between late 2018 and 2020, he was then engaged to work for HS2 from 22 March 2021 for a fixed term period due to expire on 31 December 2021, this was extended to 31 July 2022 and again to 31 December 2022. However, his contract was terminated on 30 September 2022.

[24]The Claimant’s position is that based on the type of work he specialised in, the size of the HS2 project, its complexity and duration, he anticipated that it Page 5 of 24 would provide him with a significant source of work until his retirement. At the date of termination of his contract he was aged 50 and he projects his date of retirement to be age 75.

[25]The Respondent’s position is that by the very nature of the Claimant’s work he was engaged to provide a resource to the Respondent on a short-term basis. This had been the pattern of his involvement with the Respondent in the past, working on short-term and part-time roles.

[26]The rather complicated arrangement by which the Claimant was engaged to work for the Respondent is set out in Mr David Sage’s witness statement at paragraphs 3 to 21. Mr Sage has been employed by the Respondent as a permanent employee since 2020 and was appointed Corporate Contracts Lead in 2021.

[27]Put simply, the Claimant was recruited by AtkinsRealis Ltd (the original second Respondent and also referred to as Atkins Ltd) via his company, Into Risk Ltd, to work for the Respondent. Talascend Ltd (the original third Respondent) was appointed by AtkinsRealis Ltd to provide payroll services and make payments to the Claimant but via Into Risk Ltd.

[28]Into Risk Ltd was receiving a daily rate for the Claimant’s services of £890 gross. This was referred to as a “starred rate” and was above the Respondent’s “rate card” (ie the prescribed amount it paid to contractors), which set a day rate for senior risk managers engaged outside London of £592.34, and those engaged in London, of £653.19 (at B144-145).

[29]In recognition of the fact that the Claimant was a specialist in his field, the Respondent agreed to pay an increased day rate of £890. This was known as a “starred rate”.

[30]AtkinsRealis Ltd were not charging a management fee and so Into Risk Ltd received the entire payment of £890 per day. The Claimant then received payment from Into Risk Ltd of net income, as shown in his P60s (at B629- 630). It was not clear what fee Talascend Ltd were charging.

[31]Very soon after the Claimant left HS2 on 30 September 2022, the use of starred rates was reviewed by the Respondent and was discontinued. The Respondent’s position is therefore that had the Claimant continued to be engaged beyond 30 September 2022, it would have been at the rate card rate.

[32]The Respondent’s further position is that it was unlikely that the Claimant would have accepted such a payment given it was in the region of £250 less than what was paid (given that Into Risk Ltd was receiving the entire payment of £890 per day with no deduction being made by AtkinsRealis Ltd by way of its own management fee).

[33]From the evidence I heard, I made the following findings.

[34]By the very nature of the Claimant’s work he was engaged to provide resource to the Respondent on a short term basis. This had been the pattern of his involvement with the Respondent in the past, working on short term Page 6 of 24 and part time roles. Unlike the position of a permanent employee, the Claimant was working under a contract that had a definitive end date contained in the contract between Into Risk Ltd and Talascend Ltd. His contract would not have been extended beyond that date without the Respondent obtaining Resource Approval Panel (“RAP”) approval.

[35]This would not have been forthcoming because:a. The Claimant was employed on a starred rate, far in excess of the maximum pay rate agreed in the framework agreement between the Respondent and AtkinsRealis Ltd;

b. At the time of the termination of the contract the Respondent was taking steps to correct this situation and bring payment in line with the rate card;

c. In October 2022, Ruth Todd (the Chief Commercial Officer) directed that resource supplied through the CDC Contract (the Commercial Delivery & Controls Professional Services Framework Agreement) should comply with the rate card (at B261);

d. Following this, RAP approval was no longer given for starred rates and AtkinsRealis Ltd were informed of this at an account review meeting (at B249-251);

e. In November 2022, the CDC Framework WPO (Work Package Order) introduced a specific KPI of ensuring compliance with work rates and included a roll off plan for those on starred rates (B1227-1228). That roll off plan included large number of individuals, including the Claimant. The roll off plan does not give any indication AtkinsRealis Ltd would have to pay the difference, they would have to take them off that rate;

f. Even if the Respondent did want to extend the contract RAP approval would not have been forthcoming, given it was based on the existing pay arrangements;

g. The Respondent had recruited a permanent Senior Risk Manager (“SRM”) into L&P (“Land & Property”) on a gross salary which presented a substantial saving compared with the cost of the Claimant. The Claimant had not applied for this role. It was put to Mr James O’Malley, the Respondent’s Head of Chief Finance Office’s Office, Special Projects, that he had replaced the Claimant and his response was that these short-term roles are where there is difficulty recruiting or a role has a defined end date. The Respondent was seeking to employ permanent staff. And Claimant did not apply for this role. Whilst the SRM role on Phase 2A was temporarily filled by another person initially at a rate of £800 this was an error which was corrected and the rate was reduced to £734.25 in line with the CDP Contract rate card;

h. The Claimant indicated that he would not have accepted the significant reduction between his starred rate and the framework rate. In cross examination, he stated that he might have agreed a small reduction before going on to comment “probably not”. His only apparent concession was that he might not have pressed for an increased rate (due to inflation). Page 7 of 24 However, his email (with regard to an application for prospective employment) at B392 indicates that in October 2022, he was willing to accept engagements from £675-£950 per day). This is a contemporaneous document and is preferred over his later witness evidence;

[36]The Claimant made a number of suggestions in evidence as to steps that could have been taken to continue to utilise his services (at paragraphs 68 and 69 of his witness statement):a. That the Respondent could have created a new role for him. However, there was no indication of any obligation to do so beyond the Claimant’s assertion;

b. That the Respondent could have gone outside the CDC contract and contracted directly with Info Risk Ltd. However, this would have been against clause 3.4 of the CRC (at B93);

c. That AtkinsRealis Ltd could have covered the difference between the card rate and the Claimant’s rate. However, they were not taking a fee and to do so would mean that AtkinsRealis Ltd would actually be losing money.

d. The Claimant’s further submission was that the provider could be obliged by virtue of clause 3.13 of the CDC to do so (at B95). However, this clause only arose where the provider could not provide a resource at a framework rate.

[37]All of these suggestions amounted to the Respondent continuing to utilise his services without a reduction in his starred rate. I agree with Ms Thomas’s submission that these were “fanciful”. There is no proper basis for suggesting that there was any likelihood that those steps would have been taken in circumstances where attempts were being made to reduce costs. Indeed, as Ms Thomas submitted, why would AtkinsRealis Ltd want to go to the trouble of this. The Respondent was primarily interested in resources not individuals. However, as I have stated there was the indication at B392 that at the time the Claimant was open to working at a reduced rate. Calculation of compensatory award

[38]Section 49 of the Employment Rights Act 1996 (“ERA”) states as follows:(1) Where an employment tribunal finds a complaint under section 48(1), (1XA), (1ZA), (1A) or (1B) well-founded, the tribunal— (a) shall make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates. (1A) Where an employment tribunal finds a complaint under section 48(1AA) well-founded, the tribunal— (a) shall make a declaration to that effect, and Page 8 of 24 (b) may make an award of compensation to be paid by the temporary work agency or (as the case may be) the hirer to the complainant in respect of the act or failure to act to which the complaint relates.]

(2) Subject to subsections (5ZA), (5A) and (6) the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to— (a) the infringement to which the complaint relates, and (b) any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.

(3) The loss shall be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and (b) loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.

(4) In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.

(5) Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding. (5ZA) Where— (a) the complaint is made under section 48(1XA), (b) the detriment to which the worker is subjected is the termination of his or her contract, and (c) that contract is not a contract of employment, any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 100. (5A) Where— (a) the complaint is made under section 48 (1ZA), (b) the detriment to which the worker is subjected is the termination of his worker’s contract, and (c) that contract is not a contract of employment, any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 101A.

(6) Where— (a) the complaint is made under section 48(1A), (b) the detriment to which the worker is subjected is the termination of his worker’s contract, and (c) that contract is not a contract of employment, any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 103A. (6A) Where— (a) the complaint is made under section 48(1A), and (b) it appears to the tribunal that the protected disclosure was not made in good faith, Page 9 of 24 the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the worker by no more than 25%.

(7) Where— (a) the complaint is made under section 48(1B) by a person who is not an employee, and (b) the detriment to which he is subjected is the termination of his contract with the person who is his employer for the purposes of section 25 of the Tax Credits Act 2002, any compensation must not exceed the compensation that would be payable under Chapter 2 of Part 10 if the complainant had been an employee and had been dismissed for the reason specified in section 104B.”

[39]The parties are largely in agreement as to the effect of this section, save for section 49(6). I refer to Mr Mitchell’s skeleton at paragraphs 41-59 and Ms Thomas’ submissions at paragraphs 5-10. Essentially, the assessment of compensation is that arising from an assessment of what would had happened. The first detriment

[40]The first detriment is the Respondent did not consider the Claimant for two Risk Assessment consultancy roles on the HS2 project in July 2022.

[41]The Claimant’s position is that he was denied the opportunity to be appointed to a role in Phase 2A, for which the daily rate was between £660.32 to £734.25 and that the role ceased to exist from July 2024. This is said to produce losses from 1 October 2022 until 31 July 2024, a period of 669 working days.

[42]In addition, the Claimant’s position is that he was denied the opportunity to be appointed to a role in Phase 2B, for which the daily rate was between £537.58 to £734.25 and that role ceased to exist from October 2024. This is said to produce losses from 1 October 2022 to 31 October 2024, a period of 761 working days.

[43]The Respondent’s position is as follows. The two roles were brought to the Claimant’s attention by a recruiter and he showed no interest in them. Further, that the roles were filled before the Claimant’s termination date; the first role at the rate of £660.32 and the second at the rate of £537.58. Ms Thomas submits that even if the Respondent had considered the Claimant for those roles, it would have opted for a cheaper resource and, given the Claimant’s existing rate, he would not have accepted those rates in any event, which were considerably lower.

[44]Indeed in evidence the Claimant said he was unlikely to have accepted them as stated above (but with the concession as to the rate from the contemporaneous email). Second detriment

[45]Dealing with the second detriment: the termination of the Claimant’s contract with effect from 30 September 2022. Page 10 of 24

[46]The claimant has put forward a somewhat convoluted way of calculating his past loss of earnings. This is set out at paragraph 22 of his witness statement. He takes into account his income from Into Risk Ltd as shown in his P60s (at B629 & 630), plus an invoice (at B589) and arrives at a total figure of £239,168. To this he adds Into Risk Ltd’s consulting income from other sources of £11,700 (at B556 and 1031) and he then deducts the operating expenses of Into Risk Ltd amounting to £13,145. This arrives at a gross total of £237,723. He then says, allowing for inflation, this results in gross earnings of £478 per calendar day.

[47]My view, based on the conventional process of arriving at compensation for loss of earnings, is that past loss should be calculated on what the Claimant would have continued to receive as a net figure in his hands from his company in respect of monies paid to his company for his services to the Respondent and not as he has calculated, which adds in other income received by the company, deducts its operating expenses and adds a mark up for inflation.

[48]I agree with Ms Thomas’ calculation at paragraph 46 of her closing submissions. The Claimant’s P60s show gross income of £140,001.12 and £93,904.84 for the relevant years which is a total of £233,905.96. The Claimant states that a further £5,262.04 was earned up to 5th April 2021 based on 7.5 days at 8 hours, although the basis of this figure is not entirely understood. If the Claimant’s figure is right this would give an average gross rate of £428.61 per calendar day. Ms Thomas then relies on the Government’s online income tax calculator which gives a net annual figure of £94,702.25 which is a net daily figure of £259.46. Ms Thomas further submits that this is the figure on a full loss basis subject to any reduction for loss of chance.

[49]However, the figure also assumes that the Claimant would continue to be paid at the starred rate.

[50]But the more pressing question is whether the Respondent would have continued to use the Claimant’s services from 1 October 2022 onwards?

[51]The Claimant’s answer is yes and that he should be compensated to the end date of the remedy hearing (which was held on 22 January 2025).

[52]The Respondent’s position is that he should be compensated to the end of his final contract extension, namely 31 December 2022 (a period of 63 days) or alternatively to the end of one or other of the two roles giving rise to the first detriment.

[53]From the evidence I make the following findings.

[54]The chances of the Claimant continuing to work become increasingly remote the further away from the contract end date it becomes. This is down to both the temporary nature of the work which is either covering a permanent role until it can be recruited to or undertaking task and finish roles which have a defined duration and other factors in addition to the removal of the starred rate. Page 11 of 24

[55]This included:a. The cancellation of Phase 2A and 2B in October 2023;

b. The restructure of the organisation including the Risk Team in the Summer of 2024;

c. The roles the Claimant was not considered for ended in July and October 2024 in any event.

[56]Of the individuals who were operating under starred rates only one individual continues to undertake any work for the Respondent. All others had left by September 2023 (Mr Sage’s evidence at paragraph 22 of his witness statement).

[57]As Ms Thomas submits, I find that the Claimant’s contract would have ended by October 2024 at the very latest (the end date of the longest of the two roles that he was not considered for) although the Respondent adds, which I do not accept, with a significant chance it would have ended sooner.

[58]This is against the Claimant’s position that his employment would have continued to the date of retirement either as an absolute or on a % chance basis. He was 50 at the time he submitted his claim and he projects loss of earnings to age 75.

[59]Having considered the evidence and submissions of both parties, I conclude that the Claimant should be compensated for loss of earnings from 1 October 2022 until 31 October 2024 representing the longer of the two consultancy roles that he was not considered for. Any losses arising from not being considered for the other role of course would amount to double counting.

[60]The next question is would he have continued to receive payment at the same rate he was being paid or at a lower rate or at a higher rate? I conclude from the evidence that the Respondent would not have paid the Claimant at his higher rate. There is some evidence which indicates that the Claimant would have accepted a role at the lower rate than his existing rate. Doing the best I can, I am prepared to assess this at £734.25 per day, which is lower than what he received but at the top end of the range of rates that the Respondent was willing or able to pay.

[61]On balance of probability, the evidence does not support the continuation of the Claimant’s employment after that role ended even to the extent to which I could assess it as a percentage chance.

[62]In as far as this compensates the Claimant in respect of both detriments there is no need to go on and consider the calculation of the Claimant’s daily rate in respect of ongoing loss of income had he continued to be employed on the same basis when his contract was terminated or as to his future loss of earnings having indicated that he will be adopting a totally new career path at a lower level of income as opposed to being able to continue in the same career. Page 12 of 24

[63]It this point I invited the parties to calculate the figure of loss from 1 October 2022 to 31 October 2024 at £734.24 per day x 761 working days as a net figure.

[64]A less convoluted calculation is put forward by the Claimant to determine income received This is at B50. In that case, he adds together gross income, deducts Into Risk Ltd’s operating expenses to arrive at gross income and then deducts Income Tax and National Insurance Contributions to arrive at net income. This is set out at paragraph 25 of the Claimant’s witness statement. Again I would state that I do not believe it is correct to deduct the operating expenses which are of the company’s and not the Claimant’s.

[65]Using those figures, the Respondent calculates income received as a net figure of £43,672.57 (taken from Ms Thomas’ submissions at paragraph 49). I accept that figure. Mitigation

[66]The Respondent’s position is at paragraphs 32-37 of Ms Thomas’ submissions.

[67]Ms Thomas submits that there is a striking lack of documentary evidence as to steps taken by the Claimant in mitigation of his loss. There is a lack of evidence of applications for employment between November 2022 and February 2023.

[68]The Claimant obtained a 15 week contract for work but would not identify who that work was with. He also had a 6 month contract working for Transport for London (“TfL”).

[69]Whilst there are Job Alerts in the bundle, there is no indication as to whether the Claimant applied for any of those positions. The Claimant’s evidence is that he made over 60 applications but he does not include anything like this number in the bundle.

[70]However, the Claimant has given evidence to the effect that he has made attempts to mitigate his loss and whilst the Respondent might challenge this, it has not, as Mr Mitchell submitted, put forward a counter-factual position. I agree with this submission. Moreover, I have no reason not to accept the Claimant’s evidence.

[71]Whilst it is not appropriate for me to make any findings on the Claimant’s career change, I take the view that the Claimant is of course at liberty to make such a change, if his belief is that his continued involvement in risk management is at an end. The only issue would have been to the extent to which it is right that the Respondent should compensate him. Stigma damages

[72]I am grateful to Counsel for their analysis of the law. Ms Thomas’s analysis is at paragraphs 11-14 of her submissions and Mr Mitchell’s is at paragraphs 60-63 of his skeleton argument. Page 13 of 24

[73]The parties do not agree as to the legal principles but are not that far apart.

[74]My view is that what it boils down to is this. In a situation where an employer has discriminatorily dismissed an employee, they may be liable for any stigma which may attach to that employee, meaning that future employers do not wish to employ them. Stigma arises from the evidence and forms part of an assessment of the extent of any future losses.

[75]The alleged stigma would appear to arise from The Sunday Times article which the Claimant participated in over a year after his relationship with the Respondent ended. This is not something that is attributable to the Respondent. The Claimant chose to participate in that investigation. Indeed, the Claimant appears to focus on the fact that he was a whistle-blower rather than the fact that he brought (successful) proceedings against the Respondent.

[76]As indicated, I have not awarded compensation beyond 31 October 2024 and given that is before the date of the remedy hearing, it means that I make no award for future losses.

[77]Nevertheless, having considered the evidence, this is simply not the type of case that gives rise to stigma damages. The Claimant was able to obtain two periods of employment. The second of these was with TfL. Despite the Claimant’s concerns that TfL would want to get rid of him, and TfL being aware of his participation in The Sunday Times investigation within weeks of his commencing work with them, he completed his contract with them and they expressly stated that would be happy to work with him in the future.

[78]To the extent that any expressed concern can be derived from the correspondence between the Claimant and Michael Cooper, the Director of Programme Management Office of TFL, that was referred to (a B378-382), it was evident that TFL were keen to ensure that staff felt confident that they could report matters in line with the relevant policies in confidence. This was not because of the fact that the Claimant had made disclosures to HS2 directly but because he had opted to give an interview to a newspaper over a year after his relationship with the Respondent had ended (at B382).

[79]In addition, there is evidence in the bundle that recruiters were approaching the Claimant with potential roles. Future loss

[80]As I have indicated I make no award for future loss. Injury to feelings

[81]Ms Thomas’ analysis of the law is at paragraphs 15-18 of her submissions. In essence, she submits that the effect of section 49(6) ERA (which provides where the detriment is termination of the worker’s contract and this is not a contract of employment, any compensation must not exceed the compensation that would have been payable in respect of unfair dismissal had the worker been an employee and dismissed for making a protected disclosure), is that the Tribunal is not entitled to make an award for injury to Page 14 of 24 feelings. Her fall back position, is as to an analysis of the usual principles in respect of an award for injury to feelings. The Respondent’s position as to the amount of an award for injury to feelings is at paragraphs 39-41 of Ms Thomas’ submissions. She puts forward a figure of £10,000 in effect representing the amount of basic award for unfair dismissal.

[82]Mr Mitchell’s analysis of the law is at paragraphs 64-69 of his skeleton argument which sets out the usual principles in respect of a award for injury to feelings. He puts this at £25,000.

[83]In addition, he relied upon Timis & Anor v Osipov (Protect Intervening)

[2019] ICR 655

, CA, as authority to make an award for injury to feelings where the detriment is dismissal.

[84]Having considered that case, I do not accept that analysis. In essence, Osipov says that an employee could pursue a detriment claim against a coworker for injury to feelings arising out of a dismissal whilst also pursuing an unfair dismissal claim against the employer for economic loss. That is not the position in the case before me.

[85]Having considered the analysis put forward by the parties and the commentary within the IDS Handbook on Whistle-blowing at paragraphs 7.25 to 7.27 as well as the case of Osipov I reached the following conclusion.

[86]I am precluded from making an award of injury to feelings in a case where the detriment is the dismissal of a worker. However, I accept that I am able to make an award akin to a basic award in an unfair dismissal case and accept the Respondent’s concession and award £10,000.

[87]Ms Thomas later pointed out that her submission was that the minimum basic award of £1713 (as at B70) or an award of injury to feelings should be no more that £10,000 (at paragraph 41 of her written submissions and the calculation of the basic award is within the Respondent’s counter schedule of loss at B70). Upon reflection of both her submissions and my own, I apologised to the parties for this error and corrected the award to £1713.

[88]Whilst I am at liberty to award injury to feelings for the first detriment, I heard no evidence specifically relating to hurt feelings attributable to that detriment and so am not in a position to gauge what sum, if any, to award. Aggravated damages

[89]The Claimant’s analysis of the law is at paragraphs 70-73 of Mr Mitchell’s submissions. The Respondent’s analysis of the law is at paragraphs 18-21 of Ms Thomas’ submissions.

[90]The Respondent’s position is at paragraphs 42-43 and the Claimant’s is at paragraph 38.

[91]Whilst I acknowledge the matters raised at paragraph 38, I do not accept that they reach the necessary threshold on which to found an award of aggravated damages. a) and b) are matters which more appropriately could have formed Page 15 of 24 part of a global award for injury to feelings, had I not been precluded from making one. Interest

[92]The Respondent’s analysis of the law is at paragraphs 22-24.

[93]The Claimant’s analysis of the law is at paragraph 75-78

[94]The Respondent’s position is at paragraph 58.

[95]I accept that it is appropriate to award interest by analogy, using The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996.

[96]Regulation 3 of the 1996 Regulations states that the rate of interest is the amount set for the Court Special Investment Account under rule 27(1) of the Court Funds Rules 1987. However these rules have been repealed and replaced by the Court Funds Rules 2011 which came into force in October 2011. The 1996 Regulations have not been amended accordingly. In any event the 2011 Rules do not appear to have a mirror provision of rule 27(1) 1987 Rules. However the Court Funds Office has set the investment rate at 0.5% from 1st July 2009 onwards. We therefore apply this rate.

[97]To calculate interest on financial loss it is necessary to multiply the daily rate by half the number of days between the dates of the discrimination (here, the whistle-blowing detriment) and the hearing. The daily rate is calculated by dividing the amount of the financial 365 and multiplying by the interest rate of 0.5%. £6528.90 divided by 365 x 0.5% = £0.09p 4th April 2011 and 31st May 2012 = 423 days divided by 2 = 211.5 9p x 211.5 = £19.04 Grossing up

[98]The Claimant’s analysis of the law is at paragraph 79.

[99]The Respondent stated that this was of course simply subject to the maths once the parties calculate the figures I directed them to calculate. Section 12 Employment Tribunals Act1996

[100]The Claimant’s analysis of the law is at paragraphs 80-81.

[101]I did not hear any evidence in support of the existence of aggravating factors. Mr Mitchell simply pointed to in the explanatory note.

[102]It did appear to me that this submission was an add on but not based on anything more than a statement of the legislation and guidance.

[103]For these reasons I make no award under this section. Page 16 of 24 Agreement of figures between the parties

[104]After dealing with the costs application and an adjournment, the Mr Mitchell emailed me a table of figures that they had arrived at by agreement, including those based on my findings as to the basic award and mitigation. This is set out below. Issue Sum Comment Total salary loss £232,817 Agreed between parties Interest £1,257.14 Agreed between parties Basic award / ItoF £1,713 Finding Mitigation £43,672.57 Finding (§49 of R’s sub) Total award £192,114.57 Agreed Tax required * £125,243.38 Agreed TOTAL GROSS £319,070.95 Agreed *No tax this year

[105]The parties agreed that it was the Claimant’s responsibility to pay the Income Tax liability on the award of compensation.

[106]As the figures had been agreed, the parties were of the view that there was no need to provide the breakdown as to how these sums had been arrived at. They were in agreement that my Judgment could indicate that these were agreed figures. Award of compensation

[107]On the above basis I made the following award:a. The claimant is awarded compensation payable by the respondent in the sum of £319,070.95 gross.

b. This consists of loss of earnings of £232,817* net, interest of £1,257.14*, a payment analogous to a basic award of £1,713, less £43,672.57mitigation income. The total award is of £192,114.57 grossed up with tax required of £125,243.39* to reflect the total gross award of compensation £319,070.95*. The figures marked with a * were agreed by the parties. COSTS The application

[108]The Tribunal’s powers to award costs are set out at Part 13 of the Employment Tribunal Procedure Rules 2024 (“the 2024 Rules”).

[109]The Claimant has made an application for costs from the Respondent. He is seeking his legal costs incurred between 18 January 2024 (when the Page 17 of 24 Judgment as to his employment status was sent to the parties) and 19 July 2024 (when the Respondent admitted liability).

[110]I heard evidence from Mr David Parry, the Claimant’s solicitor, by way of his written statement and in oral testimony.

[111]The documents relevant to the costs application are contained within the bundle provided for the remedy hearing. In addition, Mr Mitchell provided a bundle of costs authorities.

[112]I heard oral submissions from both Counsel, which I have fully taken into account but only referred to specifically where necessary.

[113]By email dated 23 August 2024, Mr Parry, the Claimant’s solicitor, made the application for a costs order in respect of legal costs of £10,830 incurred between 18 January and 19 July 2024 (at B24-25).

[114]The application was made on the basis that it was alleged that the Respondent had acted unreasonably in the conduct of the proceedings and/or the response had no reasonable prospects of success in relation to liability. The application was made under rule 76(1)(a) and (b) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (this now falls under rule 74(2) of the 2024 Rules but there is no material difference between the two sets of rules).

[115]The email explained that on 18 January 2024, the parties were sent EJ Truscott KC’s Judgment which determined that the Claimant was an employee for the purposes of the whistleblowing legislation. The email further explained that on 19 July 2024, the Respondent admitted liability in that it accepted that the Claimant had made the protected disclosures identified above and that he had been subjected to the detriments also identified above.

[116]Mr Parry’s email submitted the following.a. The reason why the Respondent admitted liability was that, on 2 July 2024, its solicitors provided disclosure of the emails at B26-38. The Respondent's solicitors had in fact previously disclosed the emails at B27- 38, but not the email at B26;

b. That email is dated 29 April 2022 and is between Ms Rebecca Gabriel (then the Risk Management Director for the Respondent) and Mr William Toner (then the Phase 1 Risk Lead for the Respondent);

c. In that email, Ms Gabriel refers to the emails following at B27-38 which relate to the protected disclosures made by the Claimant and she states that, as far as Mr Paul Seller is concerned, his view was that the Claimant's contract should be terminated - the Claimant's contract was indeed then terminated. Mr Seller was at that time Phase 2 Project Controls Director of HS2;

d. Both Ms Gabriel and Mr Seller were named expressly in the Claimant’s ET1 so it was obvious from the outset that they were important witnesses Page 18 of 24 who would have been under a duty to preserve and disclose all relevant documentation, whether harmful to the Respondent's case or not;

e. The Claimant’s claim is for detriments suffered on the ground that he had made protected disclosures. For the Claimant to succeed, all that was necessary was that the protected disclosures materially influenced the Respondent's treatment of him;

f. The email of 29 April 2022 makes this point conclusively which is why the Respondent chose to admit liability;

g. This email has been in the Respondent's possession since before the proceedings were commenced. The parties were ordered to serve lists of documents on each other by 23 January 2024 and supply copies of the documents to each other by 8 March 2024;

h. In failing to comply with these orders, and in failing to disclose the email of 29 April 2022 before 2 July 2024, this amounts to an unreasonable conduct of the proceedings and it also supports the argument that, as far as liability is concerned, the response had no reasonable prospects of success.

[117]Mr Parry made it clear in his application that he was not suggesting any improper conduct on the part of the Respondent’s solicitors but to the contrary, that in disclosing the email to him once it came to their attention, they acted entirely properly.

[118]In support of the amount of costs sought, Mr Parry attached a printout from his time ledger in respect of solicitors’ costs, in the sum of £10,080 (the billing guide report), and a fee note from Counsel, who charged a fee of £750 in relation to settling the Agreed List of Issues (at B39-45 and 46 respectively). So in total, the Claimant is claiming costs in the fixed sum of £10,830 pursuant to rule 78(1)(a) of the 2013 Rules of Procedure (now rule 76 of the 2024 Rules).

[119]Mr Parry’s evidence supported the application. In oral testimony, he confirmed that the work contained within the billing guide report, referred to at paragraph 6 of his witness statement, deleted those matters not relating to work in respect of the Respondent and that the solicitors’ hourly rate was £250.

[120]Mr Mitchell echoed the application and submitted that the Respondent’s response had no reasonable prospect of success and further that the Respondent acted unreasonably in the way it has conducted the proceedings or part of it. Essential law

[121]Under rule 76 of the 2024 Rules, the Tribunal can order a party (called the paying party) to make a payment in respect of costs incurred by the other party (called the receiving party). Costs include the legal fees, disbursements and expenses incurred on or on behalf of the receiving party while legally represented. Page 19 of 24

[122]The Tribunal has a discretion to award costs and must consider whether to do so if among other things a party has acted otherwise unreasonably in the conduct of the proceedings or part of it or that a response had no reasonable prospects of success claim had no reasonable prospect of success (rule 74(2)(a) &(b)).

[123]The Tribunal should determine whether any of the categories in which it can award costs apply, then determine whether to use its discretion to award cost and if so in what amount (Monaghan v Close Thornton Solicitors UKEAT/3/01).

[124]“Unreasonable” has its ordinary, everyday, objective, meaning (Dyer v SS for Employment UKEAT 183/73). It can include pursuing an unmeritorious claim and one can have regard to what the paying party (ie the Respondent) knew or ought to have known (Keskar v Governors of All Saints Church of England School

[1991] ICR 493

[125]“No reasonable prospects of success”, effectively has the same meaning as the same as the word “misconceived” under Rule 2(2) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 (since replaced by the 2013 Rules and now the 2024 Rules). This was defined as including no reasonable prospect of success under Rule 2(1). The issue is not whether the party thought they were in the right but is whether they had reasonable grounds for thinking they were in the right (Scott v Inland Revenue Commissions

[2004] ICR 1410

CA; Hamilton-Jones v Black

UKEAT/0047/04

[126]I also took into account the following authorities:a. McPherson v BNP Paribus (London Branch) [2004] ICR CA in which the Court of Appeal found as follows. It would be wrong if Tribunals took the line that where a claimant withdrew a claim it amounted to unreasonable conduct and that they should accordingly be made liable to pay all the respondent’s costs of the proceedings. It would be unfortunate if claimants were deterred from dropping claims by the prospect of an order for costs on withdrawal, which might well not be made against them if they fought on to a full hearing and failed. Equally, Tribunals should not follow a practice on costs which might encourage speculative claims by allowing applicants to pursue a case down to right before the hearing in the hope of receiving a settlement and then drop the case without risk of a costs sanction. By analogy, this must apply to respondents who concede liability. In addition, the Court of Appeal held that a costs award must have regard to the effect of the unreasonable conduct, even though the Tribunal's discretion is not limited to those costs that are caused by the unreasonable conduct.

b. Barnsley MBC v Yerrakalva

[2012] IRLR 78

in which the Court of Appeal found that there is no need to find a precise causal link between any relevant conduct and any specific costs claimed. The vital point in exercising the discretion is to look at the whole picture of what happened in the case and to ask whether there was unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The Page 20 of 24 claimant's conduct and its effect on the costs should not be considered in isolation from the rest of the case. McPherson was never intended to rewrite (the then rule 40), or to add a gloss to it, either by disregarding questions of causation or by requiring the tribunal to dissect a case in detail and compartmentalise the relevant conduct under separate headings, such as “nature” “gravity” and “effect.” The relevant thrust of that Judgment was to reject as erroneous a submission to the court that, in deciding whether to make a costs order, the tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission the court had not intended to imply that causation is irrelevant. Again by analogy, this must apply to the situation where respondent concedes liability.

c. Opalkova v Acquire Care Ltd EA-2020-000345-RN, in which the Employment Appeal Tribunal applied the following threshold test necessary to determine unreasonable conduct: a) whether, objectively, the claim had no reasonable prospect of success; b) at the stage that the claim had no reasonable prospect of success, did the relevant party know that was the case; and c) if the relevant party did not know that the claim had no reasonable prospect success, should they have known? By analogy this must apply to a response.

[127]I also remember that costs in the Employment Tribunal are the exception rather than the rule. Submissions

[128]The Claimant’s position is:a. The Respondent through the individual involved (Ms Gabriel) would have known all along why the Claimant’s employment was terminated;

b. The Respondent has adduced no evidence of when it became aware of the email at B26;

c. The submissions relate to when the Respondent’s solicitors became aware. There is no criticism of the solicitors;

d. The email at B26 (which is in fact an incomplete Teams meeting message not an email) which states “we should terminate his contract,” was not disclosed until 2 July 2024, although those at B27-38 had been disclosed much earlier (to which the message at B26 was in fact referring to). This is what caused the Respondent to admit liability;

[129]I was also referred to B223 and 224, emails dated 12 May 2022, between Ms Gabriel and others, including Ms Amy Morley, the Respondent’s Programme Controls Director, on which Mr Mitchell made the following submissions:a. The initial email is between Ms Gabriel and Mr Mike Hickson, which is copied to Ms Morley, which refers to the Claimant. Ms Gabriel sends an email forwarding the email to Mr Hickson to Ms Morley a few minutes later in which she states: Page 21 of 24 “There is more to it than detailed in the below email – I’ll fill you in during our 121 to keep you in the loop only, in case it comes up in your conversation”;

b. Later that morning, Ms Morley replies: “Thank you. Good email and good update 😉”;

c. Mr Mitchell also took me to a number of emails at B1039-41 dated 14 and 15 September 2022 between Mr Gareth Herbert, Associate Director, Engineering Services and Ms Gabriel and the emails above between Mr Paul Miller, Central Risk Team Lead, to Ashley Clough. Mr Mitchell submitted that reading between the lines, the email at the top of B1039 indicates that pressure is being applied to terminate the Claimant’s employment;

d. The Respondent is well resource with a dedicated HR team and so any search of its emails would have found all of these documents;

e. The Counter Fraud investigation into the Claimant’s whistle-blowing – referred to in its timetable at B880 as to a start date of an initial investigation of 19 October 2022, terms of reference to be agreed by 21 October 2022 and a final report by 4 November 2022. The Briefing Referral, Summary at B885-888, indicates at B886 that the Claimant was interviewed on 31 October 2022 and sets out the next steps at B888.

f. On 2 August 2024, an email was sent to the Claimant from the National Audit Office (“NAO”), at B911-912, which in the second paragraph on B911 referred to a previous email to the Claimant dated 22 September 2023, informing him that the Respondent’s Counter Fraud and Business Ethics team was already undertaking an investigation into the Claimant’s whistleblowing and that the NAO would review the matter further once that work has completed;

g. Any investigation would have established how and why and found these emails.

h. As a result the Respondent knew or ought to have known of the actions taken to terminate the Claimant because of his whistle-blowing;

i. However, the Respondent has offered no evidence of when it became aware.

j. The claim was presented on 27 February 2023 and the response was presented on 30 March 2023.

k. The Respondent should not have continued with the defence when they would have been aware from the protagonist responsible for the decision to dismiss, who was named in the claim form and would and should have been interviewed and those emails found. In any event the two separate investigations would have identified those matters and the emails.

[130]Ms Thomas set out a chronology of events Page 22 of 24

[131]In essence, she pointed to delayed disclosure and subsequent requests for specific disclosure which caused further searches to be made by the Respondent, which in turn led to the discovery of the Teams message at B26. Ms Gabriel left the Respondent’s employment on 30 June 2023. The Respondent sought to speak with the Claimant’s on 28 June 2023 and ultimately made contact with him on 2 July 2023 and disclosed the existence of the document. Agreement was reached as to admission of liability in respect of two of the three detriments. The matter should not be dealt with the benefit of hindsight.

[132]Ms Thomas stated that the Respondent denies unreasonable conduct given that it is not uncommon in disclosure for documents not initially identified to later come to light.

[133]As to assessing whether there were no reasonable prospects of success, Ms Thomas advanced a three state test: has the Claimant made out the high threshold as to unreasonable conduct; should the Tribunal exercise its discretion and is it right that these matters claimed for should fall at the feet of the Respondent?

[134]She stated that whistle-blowing cases are complex. The Claimant was pursuing multiple allegations of protected disclosures which were not fully identified, against multiple respondents in respect of multiple detriments. The list of issues was not finalised until 22 February 2024 and this pushed back the date of disclosure. The document in question only went to one of the three detriment claims and the Claimant dropped his third detriment and withdrew his claims against the other two Respondents. The Respondent could only have been aware that it had no reasonable prospects of success when it found the message at B26 and it then conceded liability. Conclusions

[135]On a reading of the Particulars of Claim (at B955-959) it is clear that the Claimant raises concerns that he was not offered the role of Analyst Phase 2A and refers to Rebecca Gabriel’s involvement in an email from Paul Millar of 10 November 2022 (in paragraph 22 at B959). He also names her as to her involvement in terminating his contract in paragraph 20 (at B958). The Claimant refers to the two Analyst roles in paragraph 21 (at B958).

[136]Ms Gabriel’s involvement in the now remaining detriments were clearly identified. The Respondent should therefore have undertaken a reasonable enquiry into the matter and found all of the emails/Teams messages that were subsequently provided. They have given no explanation why they did not find them. I find that either the Respondent knew, given that this was action taken by a senior member of staff who they should have interviewed and that person or the Respondent should or ought to have made a search for documents they should or ought to reasonably have known existed. Ms Gabriel was still in their employment at the time the claim was presented (27 February 2023 at B943) and at the time its response was served (30 March 2023 at B971). Page 23 of 24

[137]I therefore find that it was unreasonable of the Respondent to have continued in its defence of this matter between 18 January and 19 July 2024.

[138]I further find that given that this did relate to those matters that it ultimately conceded liability on, the response had no reasonable prospects of success.

[139]It is not, as the Respondent portrays it, a case where subsequent disclosure brings to light a document that then makes it appropriate to concede liability on. The Respondent should or ought to have known all along. And as has been pointed out, I have heard no evidence as to when the Respondent because aware, as opposed to its solicitors, and why it took so long for those documents be disclosed.

[140]This is a case where it is appropriate to exercise my discretion.

[141]Turning then to the amount. The fees appear reasonable and appropriate. Whilst the Respondent has queried the inclusion of some elements, I do not have to find any specific causal link between conduct and the costs incurred. Also this is a summary assessment. Taking a broadbrush approach I award costs in full of £9,672 plus Counsel’s fees of £750 making a total of £10,422. Employment Judge Tsamados 26 August 2025