Mr R Ford v The Board of Governors of Sherwood Park School: 2302196/2023 and 2305542/2023
EMPLOYMENT TRIBUNALS
Case No 2302196/2023, 2305542/2023
Between
Mr R FordClaimantThe Board of Governors of Sherwood Park SchoolRespondent
Before
Employment Judge BaranIn person for claimantMr C Wright (instructed by Counsel) for respondentDate 29 April 2026
JUDGMENT
[1]The Claimant’s complaint of being subjected to detriment for making a protected disclosure contrary to s47B Employments Rights Act 1996 is not well-founded and is dismissed.[2]The Claimant’s complaint of automatic unfair dismissal for making a public interest disclosure contrary to s103A Employment Rights Act 1996 is not well founded and is dismissed.[3]The Claimant’s complaint of unfair dismissal contrary to s94 Employment Rights Act 1996 is well-founded and is upheld.[4]The Claimant’s complaint of unauthorised deductions from pay contrary to Part II Employment Rights Act 1996 in respect of the period June 2022 – September 2023 is not well-founded and is dismissed.[5]The Claimant’s complaint of failure to pay holiday pay contrary to regulation 14(2)/16(1) of the Working Time Regulations 1998 is dismissed on withdrawal.
REASONS
[1]By ET1 dated 22 May 2023 the Claimant Mr Richard Ford brought a claim in relation to unpaid holiday pay, arrears of pay and other payments against Mr David Munden and Sherwood Park School.[2]By a further ET1 dated 6 October 2023 Mr Ford, who had resigned from employment on 3 September 2023, brought a further claim against The Governors of Sherwood Park School making complaints of constructive unfair dismissal, disability discrimination, whistleblowing dismissal/unfair treatment, unpaid holiday pay and for other payments.[3]Mr Ford’s claims are resisted by The Board of Governors of Sherwood Park School (‘the School’).[4]Following case management orders by Employment Judge Siddall on 24 November 2023 the School was substituted as the proper Respondent. Any claims against David Murden were dismissed. Further case management orders by Employment Judge Beale KC on 17 April 2024 gave rise to an Agreed List of Issues in relation to the following claims:a. a s47 Employment Rights Act (‘ERA’) 1996 claim alleging detriment because of protected disclosures;b. a s98/103A/111 ERA 1996 automatic (protected disclosure) and ordinary constructive unfair dismissal claim;c. a Working Time Regulations 1998 holiday pay claim for unpaid annual leave;d. a s13/23 ERA 1996 claim in relation to unauthorised deductions from wages.[5]The claim was listed before me for final hearing by CVP. Mr Ford attended and presented his own case. He was accompanied by his wife who helped with documents and with note taking. The School was represented by Mr Wright of Counsel. Mr David Murden, the Headteacher of the School, attended to give evidence in response to the claims. B. PRELIMINARY MATTERS[6]At the outset of the online hearing, I explained to Mr Ford that I had a professional connection to Mr Wright. I followed the guidance in the case of Jones v DAS Legal Expenses Insurance and others [2004] IRLR 218. I gave disclosure of the nature of the connection as required. I explained how the issue had arisen at the late stage, and informed the parties of their options, including the option to apply for me to recuse myself. I informed the parties of the practical effect in terms of relisting if I was to stand down from the hearing.[7]I gave both parties an adjournment of 25 minutes to consider their position. On return, both parties confirmed in turn that they did not wish to apply for recusal. I reflected further on my position, by reference to the case law including Jones and Porter v Magill [2002] AC 357. For the brief reasons I gave at the time, I concluded that I did not need to take the step of recusing myself. The nature of my connection with Mr Wright, and my explanation for it, would not lead a fair minded and informed observer, having considered the facts, to conclude that there was a real possibility that the Tribunal would be biased.[8]Adjustments for Mr Ford’s medical condition by way of breaks, time for medication to be taken and allowance for any delayed processing speed in response to questions, were agreed with the School at the start of the hearing.[9]Following further case management discussions by reference to the Agreed List of Issues, Mr Ford confirmed that he did not pursue a claim in relation to unpaid annual leave. He confirmed that he did not wish to argue that at the time of his resignation there was an outstanding holiday pay entitlement that he had accrued but had not been paid for in his termination pay.[10]It emerged in further discussions, however, that Mr Ford sought to argue that he had not been paid his correct wages from a period prior to June 2022. The School’s position was that his first ET1 referred to unpaid wages from that date onwards. He could not pursue a claim for prior to that date under the unlawful deduction from wages claim within the Agreed List of Issues.[11]After identifying that Mr Ford’s second ET1 appeared to include a breach of contract claim that had not been dismissed, withdrawn or dealt with, in the previous case management hearings or Agreed List of Issues, I invited the parties to address me on the consequences. I then gave a short judgment with reasons allowing Mr Ford to pursue a claim in relation to pre-June 2022 payments as part of a breach of contract claim outstanding at the date of his resignation. I concluded that this claim had been included in the second ET1 but had, in error, not previously been identified or case managed by the Tribunal.[12]I was alive, however, to the fact that because of the list of issues agreed previously the School would suffer some forensic prejudice if it had to deal with the breach of contract claim at this final hearing. The School made an application to adjourn the final hearing on this basis. Pursuant to the overriding objective, and to ensure that Tribunal time was most effectively used, rather than adjourning the case altogether I case managed to deal with the evidence and submissions on the liability issues in the agreed list of issues in the time available. I adjourned the breach of contract claim to be dealt with at a further hearing should it not otherwise be resolved in the meantime. In view of the time elapsed on reading and case management, I also made it clear that I would deal with liability only at this hearing. Issues of remedy would be dealt with if required at the further hearing. C. THE EVIDENCE AND THE DOCUMENTATION[13]I was provided with an agreed bundle of documents for the hearing running to 1782 pages. There was significant duplication of emails within that bundle. It did not run in chronological order which did not assist in either the presentation of the cases by the parties or in my understanding of the sequence of events. I was also presented with a supplementary bundle of 25 pages by the School. It consisted of emails relating to the conduct of the claim. I did not find this bundle helpful when considering the substantive issues.[14]At the hearing, Mr Ford presented an email attaching an additional 9 documents that he wished me to consider. For the short reasons I gave at the time, I refused to admit most of these documents on grounds of relevance. I allowed Mr Ford to rely on 2 of the documents as written submissions rather than evidence. I refused to admit a document subject to solicitor-client privilege between the School and legal representatives on ground that it appeared to have been disclosed by mistake, without waiver of privilege. It also did not seem to be relevant to the issues in the claim.[15]On day 3 of the hearing the School disclosed, for the first time, a spreadsheet document. It was said to relate to calculation of Mr Ford’s pay. It was said to have been exchanged in School internal emails at the material time. Mr Ford objected to it being included. Whilst expressing serious concerns in relation to the late disclosure, I ruled that it should be admitted, as it was directly relevant to the issues in the claim. I made it clear to Mr Ford that he was at liberty to make submissions to me in closing in relation to the circumstances of disclosure and the calculations within the spreadsheet.[16]In addition to the documents, I was presented with a witness statement bundle running to 136 pages. Mr Ford’s statement was 120 pages in length. It ran to around 89,000 words. I read and considered this document, along with the School’s witness statement form Mr Murden, before I heard oral evidence. In the interests of proportionality, I was selective in my reading of Mr Ford’s statement. Whilst I considered the whole document, I focused on the parts of the statement that related to the material time and the issues I had to decide to determine the claims brought by Mr Ford. I did not consider in any detail at all the extensive discussion of post-resignation attempts by Mr Ford to secure disclosure of documents from the School.[17]After reading the statements and considering the documents in the bundle referred to within them, I heard oral evidence from Mr Ford and Mr Murden on affirmation. Both witnesses confirmed that the witness statements that they had submitted were true. I took the statements as their evidence in chief. The witnesses were then questioned. D. THE TRIBUNAL’S FINDINGS OF FACT[18]I make the following findings of fact based on the documentary and witness evidence. I apply the civil standard of proof, namely on the balance of probabilities, considering in relation to matters in dispute what likely happened. I have confined these findings as far as possible to matters that are relevant to the legal issues that must be determined at this hearing.[19]Mr Ford is a swimming teacher. The School is an all-age foundation school specialising in education for children with learning disabilities as well as autism and other neurodiversities.[20]Mr Ford was employed by the School with effect from 1 June 2020 as a permanent swim instructor. His appointment was in accordance with the School Teachers Pay and Conditions Document. He was appointed at point 1 of the Unqualified Pay Range, with a SEN allowance. He worked 13.25 hours per week. His salary on a 0.45 FTE basis was £10,445.85 per annum. He had continuous local government service dating back to 1 April 2011 with the London Borough of Sutton.[21]Mr Murden was appointed Headteacher of the School in January 2021. In around January 2022 Mr Ford received a pay rise and back pay. His salary was £10,663.20 with a SEN allowance of £1,156.96 per annum.[22]In June 2022, Mr Ford’s colleague retired. Mr Ford agreed to work additional hours to cover her shifts following the late May Bank Holiday half-term. He worked 20.25 hours per week in June/July 2022. From the start of the new school year in September 2022, he worked 23.75 hours per week until his resignation in September 2023.[23]In the months June 2022 to September 2022, however, Mr Ford was paid only in relation to his ‘normal’ salary, for 13.25 hours of work.[24]On 31 October 2022, Mr Ford emailed Sue Lyden, the School’s HR Consultant, copying in Mr Murden. He queried his level of pay in the email, having spoken previously to other members of staff about the issue. His payslip from the previous day demonstrated that he received, in addition to his normal salary, pay for an additional 57.75 hours of work. On the payslip this was labelled as ‘Supply Hourly’. He stated that he had no idea what the extra money was for.[25]On 7 November 2022, Ms Lyden emailed Mr Ford stating that ‘…I am pleased to confirm that the issue with your pay has been resolved’. She requested that Mr Ford attend to see her to go through a variation of contract letter. On 11 November 2022 she further emailed Mr Ford, explaining that the additional 57.75 hours paid in October were for ‘…hours due to you for the period from 6th June 2022 to the end of the Summer term…In November salary you will receive your new pay rate from 1st September for your new hours and backdating for the pay owed to you from 1st September 2022’.[26]Mr Ford responded to this email, stating that ‘As mentioned before to you, I have little confidence in what is going on’. After questioning the back pay calculation, he stated that ‘We will need to go through the old payslips together and the contracts, as this is not close to adding up for me. This also gives me limited confidence on the state of my new/current contract, and getting back pay on that’.[27]Mr Murden replied to Mr Ford on 11 November 2022. He apologised for the mistakes over pay. ‘I know we haven’t had a proper conversation since I took over as head, but let me reassure you that we will work with you so that any issues are resolved and any money due to you will be covered – I understand that mistakes have been made previously…’.[28]At this time, a proposed variation to Mr Ford’s contract of employment was put forward. A letter dated 4 November 2022 was prepared. It proposed to record Mr Ford’s hours as 23.75 hours per week, namely 5 days at 4.75 hours per day. He was to be paid at Unqualified Teacher Point 2, with a salary of £25,144, plus £2,384 SEN 1 allowance. His salary was calculated at 0.73 FTE to equate to £18,355.12 plus £1,740.32 SEN allowance.[29]Mr Ford was provided with a copy of this letter. He met with Mr Murden to discuss it on 14 November 2022. Some aspects of what happened in that meeting are in dispute. What is not in dispute is that Mr Ford put forward at the meeting a version of the letter with the word ‘Rubbish’ written across it. He did not accept the variation as he considered it represented a pay cut. The calculation of 0.73 FTE, based on 23.75 hours out of 32.5 hours worked, was a variation from the previous calculation which was based on a divisor of 25 hours.[30]Mr Murden asserted in his evidence that Mr Ford was ‘highly agitated’ in the meeting, and was intimidating. Mr Ford denied under cross-examination that he was aggressive, but accepted that his conduct might be considered to be rude. He also accepted under cross-examination that he would accept Mr Murden’s view that he felt uncomfortable as a result of the conduct. I find that Mr Ford probably did come across as rude and intimidating. He was expressing objections to a proposed pay cut. It is likely that he would have done so in a forceful manner, having written ‘Rubbish’ across the document.[31]Mr Ford asserts that in this meeting he disclosed a list of health and safety concerns to Mr Murden. He asserts that ‘During the meeting with Head, I showed Head a list of 15 health and safety risks in and around the pool which we discussed’. The list appears in a document in the agreed bundle at page 1167. It is the list found in the Agreed List of Issues at item 1.1.[32]Mr Murden makes no explicit denial that such matters were discussed in his witness statement. Mr Ford was not challenged on the point in relation to this meeting cross-examination. In general terms it was put that nothing more than pay was discussed in meetings with Mr Murden, which he denied. I find as a fact that Mr Ford did raise the list of matters in this meeting. In my judgment it is unlikely that he would have retained and put forward the list if he had not prepared and raised it at the material time.[33]A further meeting took place involving Mr Ford, Mr Murden and Ms Lyden on 15 November 2022. On 18 November 2022, Mr Ford emailed the two with a summary of his complaints about the proposed variation. He outlined what he believed had been agreed in relation to his rate of pay, back pay and pay going forwards in terms of the pro rata/hours basis for calculation and level of pay including SEN allowance. Mr Murden responded with a holding email on 21 November 2022.[34]Mr Ford’s payslip of 29 November 2022 implemented a salary rise to £18,374.46 per annum, plus SEN 1 allowance. This was calculated based on a FTE of 23.75/32.5 hours, equating to 0.73 FTE. 3 separate backpay sums were included in the payslip. At this time, without Mr Ford’s agreement, the School had proceeded to pay him in line with the proposed variation.[35]On 2 December 2022, Mr Ford emailed Mr Murden and Ms Lyden. He noted that he appeared to now be on a different contract. He observed that ‘…the percentage has changed, IE my hours are now worked vs a 32.5 hour week, rather than a 25 hour week’. He expressed confusion over the backpay payments. He stated that ‘With regards to the new contract which I received a few weeks back, I have not signed it, or agreed to it, but it does look like that it probably what I am currently being paid to. In real terms, what this means is something like a 20% pay cut to the hourly rate. Apologies if the way the contract was handed back, with the word rubbish written on it came across as rude. It was not my intent to either offend or upset anybody’.[36]Mr Ford further expressed his frustration over the position. ‘…meetings are not working effectively, emails are not working, and communication is low at best. I have never been given a date as to when this may get fixed. There is no transparency. We are now in month 7 of this saga, with only 2 weeks left to fix before hitting month 8. With this in mind, I feel I have no option other than making a formal complaint next week, unless I get assurances that this will be fixed by December’s pay’.[37]On 5 December 2022, Ms Lyden responded to Mr Ford. She acknowledged that Mr Ford’s November pay had been incorrectly calculated. A further payment would be made in the December payroll to account for undercalculation of hours and hourly rate. She noted that there was an issue around whether hours should be calculated by reference to ‘…your hours over 25 when it should be over 32.5…This I believe it (sic) what is causing the main issue. This means that comparing your previous hours and the calculation used and the correct formula will of course look different. I have asked payroll to provide a breakdown of all the figures, we can set this out in writing for you to review and then I suggest that we get together later this week to go through everything and resolve all your queries’.[38]A further, updated proposed variation was then put forward to Mr Ford in a letter dated 9 December 2022. It was in identical terms to that proposed the previous month, save that it proposed to backdate the variation to 25 July 2022. It was accompanied by a letter of explanation. This maintained the 32.5 hours divisor for the FTE calculation, resulting in a 0.73 FTE. It asserted that earlier use of 25 hours had resulted in an overpayment to Mr Ford, which the School did not intend to recover. It included backpay calculations.[39]On receipt and consideration of this proposed variation and the letter, Mr Ford emailed Mr Murden on 16 December 2022 with an ‘Official Complaint’. He repeated his objections to the proposal, asserting that it amounted to a pay cut. He stated that ‘No-one has ever talked me through either of the new contracts that I have been asked to sign and hand back…For me any trust I had in The School has now gone, caused by excessive delays and deceipt (sic)…’.[40]On 17 December 2022 Mr Murden acknowledged receipt of Mr Ford’s complaint. He stated he would come back to it in the New Year. Mr Ford’s payslip of 20 December 2022 confirmed pay based on the varied terms.[41]Following the school Christmas and New Year holiday, Mr Ford was absent sick during January. On 19 January 2023 Mr Murden wrote to Mr Ford. He asked Mr Ford to elect whether he wished to meet to resolve the matter informally or whether he wished to proceed with an official complaint.[42]On 26 January 2023 Mr Ford emailed Mr Murden in response to the letter. He confirmed his view that the School was trying to enforce a contract change on him including a pay cut. ‘The school has enforced a pay reduction on me without prior discussion or formal notification…As you know, the above have been ongoing, resulting in a huge reduction in my monthly pay, since June 2022. Throughout this time, the countless meetings I have attended have not seen a resolution to the above issues’. He confirmed that he wished his complaint to remain a formal one, as ‘I do not believe it will be fruitful to meet to discuss this matter informally, as such informal discussions have been ongoing for some eight salaried months, with no resolution’.[43]Mr Ford’s payslip of 30 January 2023 continued to pay him on the basis of the proposed variation that Mr Ford had objected to. A further 4 monthly payslips through to and including the one of 30 May 2023 paid him on the same basis.[44]Mr Ford returned to work on 3 February 2023. On 10 February 2023, Rachael Felberg, Personal Assistant to the Headteacher/HR Officer, emailed Mr Ford acknowledging receipt of his formal complaint. She stated that ‘The issues that you raise in your emails are dealt with under our Staff Grievance Policy/Procedure and we will be taking matters forward in accordance with that. Please see attached a copy of the policy for your information’.[45]The provision of a Grievance policy led to an interaction between Mr Ford and Ms Felberg on 2 March 2023 in her office. I have only Mr Ford’s account of what happened. I find as fact that he challenged Ms Felberg over whether the copy of the policy that he had been provided with was the correct version. He requested that she print off a copy of the version on the Governor’s server. To use Mr Ford’s words, a ‘kerfuffle’ ensued. Mr Ford’s conduct may have caused Ms Felberg to feel uncomfortable. She telephoned Mr Murden for assistance. Luca Koczon, Mr Ford’s manager and the School’s Deputy Headteacher, attended the office, and requested that Mr Ford be mindful of his tone.[46]Following the meeting, Mr Ford wrote his own note of what had happened. It is clear that he formed the view that the version of the policy that was being shown to him was ‘fake’. I find that this view is likely to have influenced the way that he interacted with Ms Felberg. He is likely to have become frustrated during their conversation. In my judgment Mr Ford is likely to have outwardly expressed that frustration by being direct in his manner of communication with her. In the absence of evidence from Ms Felberg, however, I make no finding as regards whether Mr Ford’s conduct was in fact inappropriate.[47]On 3 March 2023, Mr Ford met with Mr Murden in his office. Some aspects of what happened during that meeting are in dispute. It is common ground, though, that Mr Murden raised the issue of Mr Ford’s behaviour during the meeting of the previous day with Ms Felberg. The ongoing pay issues and the grievance process were discussed. Mr Murden wished to refer the grievance to Lillian Caller, a solicitor independent of the School, to be dealt with.[48]Following the meeting, Mr Ford emailed Mr Murden requesting a contract ‘…written and received by me whereby I do not loose (sic) pay from the previous rates paid…I would like the contract within 14 days. I would also like all backpay paid within 14 days. As discussed in the meeting the backpay is circa £5k take home. If you need me to provide exact figures dropped on a month by month basis, please let me know and I can liaise with HR if required’. This email was acknowledged by Mr Murden on 6 March 2023. He stated he would come back to Mr Ford shortly on the issue.[49]In the meantime, Mr Ford began to communicate with the School governors in relation to his issues. He initially contacted Claire Hadcocks, the Chair of Governors, by emails on 3 March 2023. Upon learning that she was on extended leave, he took up emails with Eileen Bone, Deputy Chair. He copied Rosemary Viggiani, Clerk to the Governors, into his emails. He initially reported his concerns in relation to the provision of the Grievance policy. He also referred to hints in the meeting of 3 March 2023 with Mr Murden that disciplinary action was being considered against him.[50]On 7 March 2023, Ms Viggiani emailed Ms Bone, Mr Murden and Ms Lyden, recommending that because Mr Murden’s grievance was against the Headteacher Ms Bone should commence an informal investigation. To this end, on 9 March 2023 Ms Viggiani emailed Mr Ford seeking to arrange a meeting with Ms Bone. This was ultimately arranged for 17 March 2023.[51]On 10 March 2023, Ms Caller, the solicitor mentioned in the meeting between Mr Ford and Mr Murden on 3 March 2023, contacted Mr Ford by email. She asserted that she was ‘…the investigator who will be looking into your grievance’. She tried to arrange a meeting with Mr Ford. Mr Ford queried her involvement as the governors were dealing with the matter. Ultimately, following governor involvement Ms Caller was stood down.[52]Further, on 10 March 2023, Mr Murden emailed Mr Ford in relation to ‘Follow up from last week’. He asserted that Mr Ford’s behaviour during his interactions with Ms Felberg on 2 March 2023 and himself on 3 March 2023 was ‘…outside of what is expected in our code of conduct’. He concluded by asserting that ‘Moving forwards, if I receive any further complaints, or witness any incidents, related to behaviour that is perceived as aggressive, or that make staff feel frightened, intimidated or disrespected, I will take it very seriously and it could result in disciplinary action. Again, Richard, I do recognise that you are very unhappy with the school currently and I do hope we can resolve some of the issues so we can work positively together’.[53]By this point, Mr Ford’s queries in relation to his pay and conditions had been outstanding for approximately 6 months. His formal complaint had been lodged for around 3 months. He had not been offered the meeting with figures provided by Payroll to go through his entitlements and back pay that had been proposed by Ms Lyden in December to resolve his queries.[54]On 15 March 2023, Mr Murden emailed Mr Ford ‘…in relation to the ongoing disagreement regarding your pay’. Mr Murden again referenced the ‘error’ in the formula being used to calculate Mr Ford’s part time FTE hours. ‘This error was noticed by payroll (after I became head), when a variation was made to your contract in regard to your increasing (but still part time) hours. Once the error was identified, the school was obliged to correct it’. Mr Murden noted that in discussions he and Mr Ford had discussed moving him up the pay scale by 2 points. He confirmed that on advice he was unable to do that pursuant to the pay policy. He stated that options would be presented to the meeting of the Full Governing Body on 29 March.[55]On 15 March 2023, Mr Ford emailed a copy of a grievance statement to Ms Viggiani and Ms Bone. The statement included the points that Mr Ford asserts amounted to protected disclosures at item 1.2 of the Agreed List of Issues. It is in the agreed bundle at page 1190.[56]Mr Ford met with Ms Viggiani and Ms Bone to discuss his grievance on 17 March 2023. Amongst other things, he raised the matters that he asserts amounted to protected disclosures at item 1.3 of the Agreed List of Issues. Ms Bone met with Mr Murden in relation to the grievance on 23 March 2023, Ms Lydon on 29 March 2023 and various others subsequently.[57]On 30 March 2023, the Department for Education emailed Mr Ford to acknowledge receipt of a submission alleging that ‘Senior leadership team not responding to concerns regarding risk to children with SEN, financial mismanagement, breach of contract, blocking and refusing to act on complaints and grievance, bullying staff, dishonesty and breach of data protection provision ding (sic) personal information to third parties without consent’. Mr Murden did not recall that notification of this submission was given to the School.[58]On 1 April 2023, Ms Bone wrote to Mr Ford, confirming that her investigations into his grievance were complete. She stated that she would be in touch after the Easter holiday. A further email from Ms Viggiani on 17 April 2023 asked for some further clarifications from Mr Ford, but suggested that Ms Bone hoped to have a copy of her investigation report available ‘…in the next 10 days or so’.[59]On 10 April 2023, Mr Ford took steps to notify ACAS of the dispute in relation to his employment.[60]On 21 April 2023, Mr Ford emailed Ms Viggiani, chasing the grievance outcome and noting that it was due on 1 April in accordance with the Staff Grievance Policy. By return, Ms Viggiani informed Mr Ford that on account of serious family illness Ms Bone had had to step down. Ms Hadcocks would therefore take up the process, based on Ms Bone’s draft report, and would finalise matters shortly.[61]Mr Ford responded to this email pointing out the timescales, and noting that ‘This is month 12 since initial discussions were had, about me being requested to complete significantly more hours. This remains unresolved regarding pay’. He requested confirmation of when the grievance process would be completed, ‘…bearing in mind the initial complaint was made on 16 December 2022’.[62]Ms Bone’s draft report, which must have been completed by this point, has been included in the documentation supplied. It is clear from that document that Ms Bone had remaining unanswered questions in relation to Mr Ford’s pay at this point.[63]On 24 April 2023, Ms Hadcocks emailed Mr Ford. She confirmed that ‘…the only thing outstanding is an audit of your pay. Eileen is keen, and I entirely agree, that we should have a clear and simple statement clarifying How the school calculated your part time hours and why they believe the change in calculation was necessary The impact of the change in the calculation on your pay including any under or over payments How the school calculated the impact on your pay of the change in your hours worked The impact of the change in hours worked on your pay A full statement of what you have been paid and how this reconciles to what you should have bene paid We do not need any of this information from you, all of it needs to come from the school’.[64]The clear implication of the email from Ms Hadcocks is that as at 24 April 2023 the School had still not prepared a proper document or analysis dealing with pay issues that had been raised following the previous October payslip and had persisted since the start of the school year. Six months on from the initial query over pay, the School was not yet able to set out in writing how the sums paid to Mr Ford compared with his contractual entitlements for work done.[65]On 27 April 2023, OFSTED emailed Mr Ford, acknowledging a complaint he had made about the School and explaining the limits of its powers. Mr Ford accepted in cross-examination that he did not know whether the School was ever informed that he had complained to OFSTED about it. Mr Murden however accepted that an extensive document headed Response to Ofsted Complaint, prepared by him on a date unknown, suggested that he had detailed knowledge of a complaint made by May 2023.[66]On 3 May 2023, Ms Lyden sent an email to a person unknown, copying in Ms Hadcocks and Ms Viggiani, stating ‘Please find attached my workings for salary readjustment for Richard…can you cast your eyes over this please. I was going cross-eyed as its so complicated so please do check my workings and rationale, it needs finalising but hopefully it a good start’.[67]Further calculations and documents were exchanged in emails between these parties on 5 May 2023. A document headed ‘Rf contract summary’ was prepared.[68]On 8 May 2023, Ms Hadcocks emailed Mr Ford. She reported that ‘…our queries related to your pay have been passed to the local authority for their review and audit. This will ensure that we have a complete and independent analysis. We are chasing regularly for their response and will revert as soon as we have it’. Mr Ford replied on 11 May 2023, again complaining about the timescales and requesting a response to his grievance by 19 May. He further chased an update on 16 May 2023.[69]Following receipt of an ACAS Early Conciliation Certificate on 22 May 2023, Mr Ford lodged his first ET1 on that same day.[70]Meanwhile, that same day a person unknown at the London Borough of Sutton emailed Ms Hadcocks, Ms Viggiani and Ms Lyden. They stated that ‘Further to our discussion this morning, I have amended the spreadsheet to take account of the corrected “salary received” information on sheet 2 and the corrected number of months on sheet 1. I sincerely hope that this is now correct and makes sense to you’.[71]It is not immediately clear why the name of this person has been removed from the copy of the email disclosed. The spreadsheet, however, has not been disclosed. There is no evidence from Ms Hadcocks, Ms Viggiani or Ms Lyden to explain this email, its content or the absence of the spreadsheet.[72]Ms Lyden responded to this email by return, seeking to ‘…check a few final things on the updated spreadsheet please?’. The queries appear to relate to the appropriate level of pay according to Teachers Payscales to be attributed to the periods of work in question. Again, I have been provided with no explanation in evidence for this email. I have also not been provided with the spreadsheet that appears to be attached to it.[73]On 23 May 2023, at 1047, Ms Lyden emailed Ms Hadcocks, Ms Viggiani and the unknown person. Having spotted an error in the spreadsheet ‘last night’, she had updated it and recalculated the amount owed to Mr Ford. ‘Please find attached the reworked revised spreadsheet and she asked me also to change the commentary which I have, also attached….In terms of the question regarding the percentage of full time Richard is paid for, you are correct in that this is 23.75/25 which equates to 0.95. This is exactly the point that [BLANK] made in questioning the calculation of his salary and where we began. However, we have confirmed with Action HR that this is in accordance with the STP&CD. Thanks for all your help and apologies for the last minute recalculations’. Once more, I have not been provided with the spreadsheet, the commentary or any explanation in evidence for this email.[74]Just over 2 hours later, at 1304, Ms Lyden emailed Ms Hadcocks, Ms Viggiani and Tracy Swan with further spreadsheets. She requested that they ‘Please use these two documents as the final versions, I have amended the commentary again’. I have not seen the documents referred to.[75]It had therefore taken an entire month, from Ms Hadcocks’ first proposal in the email of 24 April 2023, to get a ‘clear and simple statement’ with entitlements together. Whilst the emails show what was done over that time to assemble the ‘Rf contract summary’ document, there has been no explanation in evidence why that document, which in my judgment cannot have taken more than a morning of work to prepare, took so long to settle on.[76]On 24 May 2023, Ms Hadcocks met with Mr Ford to provide an outcome to his grievance. Mr Ford was accompanied by his wife. Ms Viggiani was in attendance.[77]In the meeting, Ms Hadcocks announced the outcome of the review of Mr Ford’s pay. She confirmed that it had been concluded that Mr Ford’s pay was incorrectly calculated. The sum of £7,370.92 was outstanding. ‘…this calculation included adjustments to the way your part time hours were calculated, reverting back to a denominator of 23 from 32.5’. She stated that the School would try to make an emergency payment before the May payroll. The sum was said to include an incremental ‘step up’ from September 2022. Mr Ford pointed out that he had not previously received a step up in September 2021. Ms Hadcocks resolved to leave this as ‘an open issue’.[78]Whilst numbers were discussed, no spreadsheet was provided for Mr Ford to consider or review at the meeting. I find as a fact that Mr Ford was not presented with the School’s ‘Rf contract summary’ document at this point.[79]Mrs Ford queried why matters had taken 12 months to resolve. Ms Hadcocks reported that ‘I think everyone involved got rather stuck with the assumption that they were correct and therefore spent time trying to explain this rather than going back to double check the calculations…all parties including Payroll and HR…Other matters clouding the picture included the various uplifts though of course the school should be able to do these calculations. My recommendations to school will include listening more and defending less – I think that might have helped’.[80]Mr Ford expressed continued concern with the numbers. Ms Hadcocks reported that Ms Bone had concluded that the School ‘…did not respond effectively enough. They could have responded quicker and been less defensive and more transparent in their actions and decisions. They could have usefully provided more data around the numbers’. Mr Ford expressed disappointment at the brief nature of the findings, which were summarised as ‘…the line management support around you a the time was insufficient and needs further review’. He asked why his questions as detailed in his grievance had not been answered.[81]Emails were exchanged following the outcome meeting between Ms Hadcocks, Ms Lyden and Ms Viggiani in relation to the emergency payment for Mr Ford on 26 May 2023. These emails included reference to a spreadsheet detailing the final sum due. These are the emails that were located and disclosed on day 3 of the hearing. The spreadsheet attachment was also disclosed for the first time at that point.[82]I accept as a fact that the spreadsheet finally disclosed is likely to have been the basis on which the School approached the calculations set out to Mr Ford in the grievance outcome meeting. The back pay calculation in this spreadsheet tallies with the sum reported in the minutes of the meeting as remaining outstanding. The calculations are based on a variation of Mr Ford’s pay scale to Unqualified Teacher Point 3 from 1st September 2022.[83]On 26 May 2023, Ms Viggiani emailed Mr Ford in relation to the grievance outcome meeting [300]. She purported to attach from Ms Hadcocks ‘…details of how your revised pay was calculated in the attached spreadsheet with a commentary on how this was calculated including the rationale for the change in the divisor in the attached pdf’.[84]Mr Ford’s evidence, however, is that he was not presented with the spreadsheet by email or in the meeting. His email of 5 July 2023 (see below) is consistent with the absence of such a document in the meeting. I find as a fact however that he was presented with the spreadsheet with the email of 26 May 2023, it not having been provided to him previously. Although the email disclosed does not bear the attachments line that usually appears if an attachment had been enclosed, I find that the spreadsheet was attached. On the basis of Mr Ford’s reply email, on 29 May 2023, I find that he received the spreadsheet and the breakdown of the calculations with Ms Viggiani’s email. In his reply, he stated that ‘….I also reject the figures that you have provided’, citing that they were similar to figures he had received via ACAS. In my judgment, he is unlikely to have stated this if Ms Viggiani had not provided figures with her initial email. There are no figures in the body of the email, so it is likely they were provided in the attachment referred to.[85]The issue in relation to the ‘step up’ in September 2021 was further discussed and investigated between Ms Hadcocks, Ms Lyden, Ms Viggiani and the unknown person between 25 May and 5 June 2023. On 5 June 2023 further clarification was sought by Ms Lyden in relation to some back pay paid in January 2022, noting that ‘This is really urgent as we need to give him the details in a letter going out this week, hopefully tomorrow’.[86]On 8 June 2023, Ms Viggiani emailed Mr Ford with ‘…the Chair of Governors response to you following her meeting with you on 24th May’. The minutes of the meeting were also attached. In the body of the email, Ms Hadcocks noted that ‘It was clear in the meeting that our summary findings fell short of your expectations…I have as promised reviewed all of the information available to me and I have concluded that in order to fully respond in detail to all the issues raised I would need more information than was gathered during this stage of the process as this is the informal stage…I believe, subject to your agreement, that the best way to manage this is to close the informal stage and open the formal stage of the grievance procedure’.[87]In relation to pay, Ms Hadcocks advised that if Mr Ford disagreed with the findings based on external advice ‘…it would be helpful to understand what you disagree with and why. I have already sent you a fuller explanation of our findings as explained in our informal grievance outcome meeting and will be progressing the payment of monies owed to reflect our findings’. Ms Hadcocks confirmed that back pay would be paid to Mr Ford as based on the School’s calculations ‘…we agree there is money owed to you’.[88]On 10 June 2023, Mr Ford emailed Ms Viggiani with his requests for the minutes of the meeting to be corrected. He expressed the wish to move to the ‘next stage’.[89]On 15 June 2023, Mr Ford was notified of payment of the sum of £7,370.92 less deductions, £4,515.05 net into his bank account.[90]On 16 June 2023, Ms Lyden emailed Mr Ford with further proposed variations to his contractual terms and conditions. These were said to cover changes to pay for 2 periods – 6 June 2022 to 31 August 2022, and 1 September 2022 onwards. The first period was to be paid at Unqualified Teacher Point 2 plus SEN 1 allowance, for 4.75 hours per day at 0.95 FTE (23.75 hours / 25 hours) [866]. The second period was to be paid at Unqualified Teacher Point 3 plus SEN 1 allowance for the same hours. The salary was £27,362 plus £2,384 SEN 1, which equated to £25,993.90 plus £2,264.80 on an 0.95 FTE basis.[91]On 17 June 2023, Mr Ford returned Ms Lyden’s email, noting that ‘There are still outstanding queries with regards to my contract around the SEN allowance’. He stated that these had been raised during the grievance outcome meeting. This prompted emails between Ms Hadcocks and Ms Lyden on 18 June 2023 and 20 June 2023, when it was confirmed that absent a Masters degree Mr Ford did not qualify for a SEN 2 allowance payment.[92]On 22 June 2023, Ms Viggiani contacted Mr Ford to confirm that she would make arrangements for the formal stage of his grievance to proceed.[93]Mr Ford’s June payslip, dated 29 June 2023, paid him at a salary of £24,694.30, plus a SEND payment of £2,217.24 per annum, on a 0.95 FTE (23.75 hours / 25 hours) basis. This is not the salary that was proposed in the variation letter of 16 June 2023. Backpay was paid at £7,370.92, less the advance payment made earlier that month of £4,515.05.[94]Mr Ford emailed Ms Viggiani on 5 July 2023. He expressed continued dissatisfaction with the handling of his grievance. He made assertions in relation to conflicts of interest for the governors and others involved. In relation to pay, he alleged that ‘I do have concerns that HMRC have advised that I no longer work for SPS having been noted to have left the organisation on 5/4/2023. Also, HMRC have received no payments from SPS for my tax or NI contributions this financial year, so nothing for April, May or June…For 12+ months I have had pay withheld. The salary received during my lowest paid month equated to about 39% of my pay. I felt that the school had stolen this money from me. I now feel like the school has stolen a further large amount once again, whilst pretending to pay me. This dropped the backpay payment from approx. £7,500 down to £4,500, leaving a deficit of £3,000’.[95]The allegation in relation to HMRC is not consistent with the HMRC Employment History that has been provided. This correctly records Mr Ford’s end date following his resignation from employment (see below) as 3 September 2023. I accept Mr Ford’s evidence, however, that this is what he was told when he made enquiries. He has been consistent in reporting this point throughout contemporaneous emails, and there is no direct evidence to challenge him on the point. There is no evidence to explain how or why HMRC were given the impression that Mr Ford had left employment with the School, as was relayed to him. He was paid from April to September 2023. Deductions were made for tax and National Insurance from the sums paid to him. I have not been taken to any evidence to show that these sums were not received by HMRC.[96]In addition, in this email Mr Ford raised the matters that he asserts amounted to protected disclosures found at item 1.6 of the Agreed List of Issues.[97]On receipt of this email, Ms Viggiani contacted Ms Lyden by email, asking about Mr Ford’s pay and noting that ‘He has raised a query that appears to imply that he believes that his employment has been terminated by the school?’. Ms Lyden responded that day, attaching Mr Ford’s payslip and expressing a concern that ‘I have had a quick check of his new monthly pay at UNQ3 as well, I think this is is (sic) about £100 out, I will have a more detailed look in the morning when I can access the figures’.[98]Based on this email, I find as a fact that at this point, around 10 months after the pay issues had arisen for discussion, 8 months after Mr Ford’s grievance and 6 weeks following the grievance outcome meeting, Ms Lyden was still not convinced that Mr Ford was being paid the correct wages.[99]On 18 July 2023, Ms Lyden contacted Deborah Sinclair, the Interim School Business Manager, with ‘…a correction to an instruction sent to payroll previously’. In effect this was to correct the salary and SEN 1 payment levels, from the levels paid in the June payslip (£24,694.20 salary, £2,057.85 SEN) to the levels proposed in the variation letter (£25,993.90 salary, £2,264.80 SEN).[100]Mr Ford’s payslip of 30 July 2023 reflected salary and SEN payment at the level proposed in the variation.[101]On 10 August 2023, Ms Lyden emailed Ms Hadcocks and others, confirming that adjustments needed to be made to the payroll to reflect the fact that Mr Ford’s salary had in effect been reduced to 0.95 FTE twice, leaving a shortfall. ‘This means an underpayment of £1,506.65 over a year so he will receive the right rate for August and a backdated amount for 1st September to 31st July of £1,381.10. I hope that this makes sense and I am just emailing so that this is explained and is documented’. In response, Ms Viggiani queried whether the School was ‘confident’ that it had paid and HMRC had received all tax and National Insurance contributions owed. Ms Lyden replied that this was a matter for Strictly Education, the payroll provider.[102]On 20 August 2023, Mr Ford emailed Ms Viggiani. He noted the lack of any progress with the formal stage of the grievance. He asserted that there had been a ‘ghost termination to my employment on 5/4/23, whereby my payslips and a lump sum payment stated on my payslip tell me I have paid taxes over recent months, but HMRC have not received the taxes that have been deducted from my pay. The same appeared to be the case when speaking to Teacher Pensions in July, i.e. Teacher Pensions state that they have not received the pension payments, since March 2023, despite these payments being deducted from my wages and shown on my payslips’. He requested explanations and a response to this and other matters within 14 days, otherwise ‘…I will have no alternative than to take matters further’.[103]On 22 August 2023, Ms Hadcocks emailed Ms Viggiani and Ms Sinclair, requesting that Ms Sinclair ‘as a matter of urgency’ look into points extracted from Mr Ford’s email. In particular, she asked Ms Sinclair to look into the tax and pensions points. On 25 August 2023, she emailed Mr Ford to tell him that the tax points were being investigated with the payroll provider. She also reported that someone was being identified to look at his formal grievance.[104]Mr Ford’s 30 August 2023 payslip once again reflected the levels of salary and SEN payment proposed in the variation. It did not include payment for any shortfall, underpayment or backpay.[105]On 3 September 2023, Mr Ford tendered his resignation by email to Ms Hadcocks and others with immediate effect. Within the email, amongst other matters, he:a. cited Ms Hadcocks’ failure to respond to his ‘…requests for movement of the grievance’ within 14 days as the final straw. ‘My reason for resigning with immediate effect is that the governors and senior leadership team have given me no alternative, due to their unreasonable behaviour’;b. reiterated his complaints about pay and his concerns over tax and pension contributions.c. alleged ‘…continuous financial mismanagement’ on the part of the School;d. asserted bullying behaviour by Mr Murden in line with the matters he cited in his grievance;e. repeated concerns about conflicts of interest in the Governing Body;f. referenced again his belief that ‘HMRC were advised that I no longer work for SPS on 5/4/23’;g. pointed out that he had made complaints to the Department for Education and OFSTED;h. noted that ‘to date, my contract remains unsigned as is not agree wby me. Obviously, I still disagree with salary payments made…’;i. observed that ‘Over the last year or so, SPS SLT, headteacher and governors have had dozens of very obvious opportunities to fix all of this. A simple apology from the headteacher and agreeing to pay salary that has been withheld would have worked…I have been so hopeful that things would get better each time I escalated the situation. Unfortunately this has not happened at any point and is now clearly hopeless’.[106]In evidence to the Tribunal, Mr Ford stated that he felt unable to return to work at this point. He had hoped that his mental health would recover over the summer break, but ‘…as it grew closer to the start of term, I realised that I remained unwell and due to the respondent’s ongoing behaviour my position was untenable. A reasonable response to my email would have provided me with reassurance that the respondent was treating me with respect and would resolve the issues regarding pay and my grievance. The respondent’s lack of said reassurance, through the lack of rational response to my email dated 20/8/23, forced me to resign my position with immediate effect’.[107]There was no substantial challenge to this account of the reasons behind Mr Ford’s resignation under cross-examination. In my judgment, his evidence on the point when questioned was credible and consistent with the letter of resignation. I find as a fact that the reason for his resignation was his ongoing frustration with the School’s response to his grievance and the continuing, unresolved and long-standing issues with his pay. More immediately, I find as a fact that the absence of any substantial engagement with his email of 20 August 2023, and the imminent commencement of the school year without a resolution or prospect of a timely resolution of Mr Ford’s longstanding issues, particularly in relation to pay, prompted him to resign when he did.[108]On 8 September 2023, Ms Viggiani wrote to Mr Ford. She acknowledged his resignation and confirmed that his grievance would progress.[109]On 28 September 2023 Mr Ford received his final payslip. This included a payment of £336.78 ‘Add pay pen’ alongside a modest salary payment reflecting work for a day or so in September. The payslip confirms that adjustments to pay remained outstanding at the date of Mr Ford’s resignation, around 12 months after issues had been initially raised. In submissions, the School’s position at this Tribunal is that this re-calculation was itself an error. The additional sum paid in September 2023 was not in actual fact owed. The Tribunal received no evidence on this to explain the change of position.[110]I find as a fact that by this point, and indeed at the date of resignation, Mr Ford had still to receive a full explanation from HR or Payroll as to how his back pay, salary and pay going forwards had been calculated or resolved following his complaints in October 2023. There is no evidence that HR or Payroll contacted Mr Ford at all in relation to the continuing issues surrounding his pay. Whilst he had received a spreadsheet on 26 May 2023, ongoing issues after that date in relation to back pay, salary level and the ‘double division’ using 0.95 FTE twice meant that this could not be treated by either Mr Ford or the School as being a definitive resolution of the queries he had highlighted in relation to pay.[111]On 2 October 2023 Mr Ford emailed Ms Hadcocks, Ms Viggiani and others, requesting an update on the progress of his grievance, and noting that no progress had been made. In the background, it is evident that enquiries were still ongoing as regards whether the proper tax and pension payments had been made by payroll. On 6 October 2023 emails were exchanged on the topic by Stuart Collard, School Business Admin, Mr Murden and Mr Lyden, in which Mr Collard asserted that ‘Strictly Education have confirmed that the files and monies had been sent and are 100% up to date’.[112]On 6 October 2023 Mr Ford filed his second ET1. On 9 October 2023 he chased an update on his grievance by email with Ms Viggiani and the new Chair of Governors, Gemma Davies. On 13 October 2023 Ms Davies responded to Mr Ford in a letter confirming that tax and National Insurance payments were up to date. She further confirmed that the School had commissioned an independent report into Mr Ford’s grievance, to be prepared by Havard Spring. On 1 November 2023 Mr Ford emailed Ms Davies indicating his dissatisfaction with the response on tax and questioning the independence of Mr Spring amongst other matters.[113]On matters of payroll, and the calculations in relation to Mr Ford’s pay, I accept that Mr Murden did the best he could to assist the Tribunal with the figures involved. He believed that the School had paid all outstanding monies to Mr Ford. He was however candid and explained under cross-examination that at times he could not explain the numbers, because ‘…we have used a number of different third party organisations to support with key functions, one being payroll and others being HR’.[114]Mr Murden told the Tribunal, and I accept, that ‘Strictly Education dealt with the payroll, but they folded following complaints about how they managed complaints…All I can say is that when me and other people looked into it this is what we were told…As far as I am aware, no one at the School interfered with payroll or pensions in any negative way at all…I think we’ve made lots of errors, but I genuinely know nothing about the team or the governors knowing how to do anything about tax’.[115]I find as a fact that the School delegated payroll and HR functions to third parties. As Mr Ford’s employer the School continued to have a responsibility towards him to fulfil his contract of employment in relation to core terms such as pay and the handling of grievances. E. THE LAW[116]In relation to the protected disclosure detriment claims, the School disputes whether the disclosures relied upon by Mr Ford amounted to protected disclosures within the statutory definitions provided by s43B, 43C and 43F ERA 1996: 43B Disclosures qualifying for protection(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.(5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). 43C Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure— (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. (2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer. 43F Disclosure to prescribed person (1) A qualifying disclosure is made in accordance with this section if the worker— (a) makes the disclosure to a person prescribed by an order made by the Secretary of State for the purposes of this section, and (b) reasonably believes— (i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true. (2) An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each description, is or are prescribed.[117]In relation to those requirements, there needs to be a disclosure of information for a disclosure to be a qualifying disclosure, and that there is not a strict distinction between the disclosure of information and the making of an allegation. A pure allegation is insufficient, but a disclosure containing allegation and information could suffice if it has sufficient factual content and specificity: Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, CA (applying Cavendish Munro Professional Risks Management Ltd v Geduld [2010] ICR 325, EAT).[118]Further, as set out in Chesterton Global v Nurmohamed [2018] ICR 731, CA: i. In relation to the question of the public interest, even where a disclosure relates to a breach of the worker’s own contract of employment (or some other matter where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest, as well as in the personal interest of the worker. The following factors may be relevant: 1. the numbers in the group whose interests the disclosure served 2. the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed; 3. the nature of the wrongdoing disclosed 4. the identity of the alleged wrongdoer. ii. In relation to the question of the worker’s reasonable belief that the disclosure is made in the public interest, the public interest requirement can be satisfied even where the basis for the public interest disclosure is wrong, and/or there was no public interest in the disclosure being made, provided that the worker’s belief that the disclosure was made in the public interest was objectively reasonable (applying Babula v Waltham Forest College [2007] ICR 1026, CA)[119]With regard to protected disclosure detriment claims, s47B ERA 1996 sets out the scope of the relevant protection: 47B Protected disclosures (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[120]In relation to the ‘reason why’ issue in a protected disclosure detriment claim – whether any detriment was done ‘on the ground that’ a protected disclosure had been made – the question is of whether the protected disclosure had a material (in the sense of being more than a trivial) influence on the employer’s treatment of the whistleblower: Fecitt v NHS Manchester [2012] ICR 372, CA.[121]The burden of proof in protected disclosure detriment claims is subject to s48(2) ERA 1996. It is for the employer to show the ground on which any act, or deliberate failure to act, is done, once the employee has proven a protected disclosure, a detriment and that the employer subjected the claimant to the detriment. Inferences may be drawn against the employer if they do not do so: International Petroleum Ltd and others v Osipov and others EAT 0058/17, EAT. Where the Tribunal rejects the employer’s reason for the detriment, or can find no evidence to indicate the ground on which the employer subjected the claimant to the detriment, it does not however follow that the claim automatically succeeds: see Ibekwe v Sussex Partnership NHS Foundation Trust UKEAT/0072/14/MC, EAT.[122]In relation to unfair dismissal, Mr Ford’s claim is based on his resignation amounting to a constructive dismissal pursuant to s95(1)(c) ERA 1996. He asserts that that his dismissal was automatically unfair because the reason, or principal reason, for his dismissal was that he made a protected disclosure, contrary to s103A ERA 1996, or alternatively as assessed by reference to s98 ERA1996.[123]The Claimant asserts that the Respondent employer’s conduct amounted to a fundamental breach of the implied term of mutual trust and confidence in his employment contract. It is well recognised that if such a breach can be proven, it will amount to a fundamental breach entitling an employee to resign and to claim that they have been constructively dismissed. See Woods v WM Car Services (Peterborough) Ltd [192] IRLR 413, CA.[124]The leading cases including Malik v BCCI [1998] AC 20, HL and Buckland v Bournemouth University [2010] EWCA Civ 121, CA make it clear that in order for an employee to prove a breach of this implied term, they must satisfy a Tribunal that the employer behaved in a way that was calculated or likely to destroy or seriously damage trust and confidence between employer and employee, and that the employer had no reasonable and proper cause for the conduct proven.[125]The cases also make it clear that the Tribunal must assess the employer’s conduct objectively. Unreasonable conduct alone is insufficient to amount to a fundamental breach of contract. See Western Excavating v Sharp [1978] ICR 221, CA. The implied term is only breached if the employer demonstrates objectively by its behaviour that it is abandoning and altogether refusing to perform the contract. The employer’s conduct must be really serious to amount to a breach. See Claridge v Daler Rowney Ltd [2008] IRLR 672 EAT and Frenkel Topping Ltd v King UKEAT/0105/15/LA, EAT.[126]A course of conduct can cumulatively amount to a fundamental breach of contract entitling the employee to resign and claim constructive dismissal following a ‘last straw’ incident: see Lewis v Motorworld Garages Ltd [1986] ICR 157, CA. The last straw need not by itself amount to a breach of contract, but must contribute or add something to the breach of the implied term of trust and confidence: Omilaju v Waltham Forest LTC [2005] IRLR 35, CA.[127]If the Claimant proves a fundamental breach, to complete a constructive dismissal they must show that they resigned in response to the breach and that they did not waive or affirm the breach by their own conduct following the breach: see Buckland (above). The crucial question is whether the breach played a part in the resignation, or is one of the factors relied upon by the employee: see Abbycars (West Horndon) Ltd v Ford EAT 0472/07, EAT.[128]In a constructive dismissal claim, the reason for dismissal is the reason for which the employer breached the contract of employment: Berriman v Delabole Slate Ltd [1985] ICR 546, CA.[129]On the issue of automatic unfair dismissal, I have had reference to s103A ERA 1996: 103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.[130]The reason or principal reason for the dismissal is a question of fact of the Tribunal, and a matter of either direct evidence or of inference from primary facts established by evidence. The Tribunal, when assessing the reason for dismissal, can draw reasonable inferences from primary facts established by the evidence or not contested by the evidence: Kuzel v Roche Products Ltd [2008] ICR 799, CA. Additionally, the disclosure must be the primary reason for the dismissal: Fecitt v NHS Manchester [2012] ICR 372, CA. F. THE ISSUES[131]Based on the preliminary case management at the start of the hearing, I will address only the issues in the Agreed List of Issues in relation to liability insofar as they are relevant here. G. THE TRIBUNAL’S CONCLUSIONS ON THE ISSUES i. THE PROTECTED DISCLOSURE DETRIMENT CLAIMS 1-6 - Did the Claimant make qualifying disclosures that were protected disclosures to prescribed persons within the meaning of s43B, s43C and s43F ERA 1996?1.1 – Disclosures to Mr Murden in the meeting of 14 November 2022 116. I have found as a fact above that the list of issues found within the agreed bundle at page 1167 was discussed with Mr Murden at the meeting of 14 November 2022. The list includes matters which relate to health and safety. Without more, however, in my judgment the list does not amount to a protected disclosure. It lacks sufficient factual content and specificity to amount a disclosure of information. It simply provides a checklist of risks. It does not, in my judgment, tend to show that the health and safety of any individual has been, is being, or is likely to be endangered, that a criminal offence had been committed, was being committed or was likely to be committed, or that a person was failing, is failing or was likely to fail to comply with legal obligations. 117. Further, in the absence of any additional specific evidence on the point from Mr Ford or Mr Murden, I am unable to conclude that the discussions around the list in the meeting were communications amounting to protected disclosures. There is no evidence that Mr Ford communicated matters by reference to the list that would tend to show the matters referred to above for a disclosure to qualify pursuant to the statutory requirements.1.2 – Disclosures in the grievance statement of 15 March 2023 118. I have found as a fact above that the grievance statement found within the agreed bundle at page 1190 was emailed to Ms Viggiani and Ms Bone on 15 March 2023. The grievance statement contains the matters found at item 1.2 of the Agreed List of Issues. 119. In my judgment, this statement does communicate factual information with sufficient specificity to amount to a qualifying disclosure. In particular, item (d), detailing communications with the operations manager, and ‘Ongoing health and safety issues and risks are being ignored by the Ops Manager’, a list of risks and a risk of electrocution from poolside equipment, constitute communications of information which tend to show that the health and safety of any individual has been, is being or is likely to be endangered. 120. Further, in my judgment Mr Ford had an objectively reasonable belief that the disclosure was in the public interest – the risks being to ‘…children and young people in and around the swimming pool’, and given the nature of the wrongdoing disclosed. The disclosure was made to Mr Ford’s employer. 121. I conclude that this disclosure was a protected disclosure.1.3 – Disclosures in the grievance meeting of 17 March 2023 122. Based on the transcript found at page 741 of the agreed bundle, I have found as a fact above that at this grievance meeting Mr Ford raised the matters found at item 1.3 of the Agreed List of Issues. In effect, Mr Ford was dealing at the meeting with the matters raised in his grievance statement above. 123. I do not however identify within the transcript anywhere where Mr Ford specifically communicates information that amounts to a qualifying disclosure. Mr Ford’s submissions to Ms Bone lack in themselves sufficient factual content and specificity to amount to an addititional disclosure of information, over and above what is in the grievance statement. Mr Ford highlighted in the meeting that management including Karen Cunningham, in charge of operations, did not appear to respond promptly to his identification of risks. I conclude that this does not amount to a disclosure of information that tends to show that the health and safety of any individual has been, is being, or is likely to be endangered, that a criminal offence had been committed, was being committed or was likely to be committed, or that a person was failing, is failing or was likely to fail to comply with legal obligations.1.4 – Disclosures to the Department of Education on 30 March 2023 124. There is no evidence beyond the acknowledgement email of 30 March 2023 found at page 771 of the agreed bundle as to what submissions were made by Mr Ford to the Department of Education. The content of that email does not, in my judgment, amount to a protected disclosure, or establish that a qualifying disclosure was made to the Department. It lacks sufficient factual content and specificity to amount a disclosure of information. The broad list of allegations it contains does not communicate what is going on at the School. In the absence of specifics, it does not tend to show that the health and safety of any individual has been, is being, or is likely to be endangered, that a criminal offence had been committed, was being committed or was likely to be committed, or that a person was failing, is failing or was likely to fail to comply with legal obligations.1.5 – Disclosures to OFSTED on 27 April 2023 125. There is no evidence at all of what, specifically, Mr Ford complained to OFSTED about on 27 April 2023. The acknowledgement email gives no details of the content of his complaint. The subject line simply reads ‘School’. The content of the email does not, in my judgment, amount to a protected disclosure. It lacks sufficient factual content and specificity to amount a disclosure of information. It does not even contain allegations about the School. In the absence of specifics, it does not tend to show that the health and safety of any individual has been, is being, or is likely to be endangered, that a criminal offence had been committed, was being committed or was likely to be committed, or that a person was failing, is failing or was likely to fail to comply with legal obligations.1.6 – Disclosures in the email of 5 July 2023 126. I have found as a fact above that Mr Ford emailed Ms Viggiani on 5 July 2023 in the terms found at page 31- of the agreed bundle. He raised the matters relied on in the Agreed List of Issues item 1.6 as protected disclosures. 127. In my judgment, this statement does communicate factual information with sufficient specificity to amount to a qualifying disclosure. Mr Ford communicated specifically about handling of his pay, and that the School was guilty of failings in respect of accounting to HMRC for his tax and National Insurance contributions, and in respect of pension contributions. These disclosures represented specific information that the School had failed to comply with legal obligations. 128. Further, in my judgment, Mr Ford had an objectively reasonable belief that the disclosure was in the public interest. Financial mismanagement at the School in relation to tax and National Insurance payments was reasonably a matter of public interest. The disclosure was also made to Mr Ford’s employer. 129. In my judgment this disclosure was a protected disclosure. 7 – Did the Respondent subject the Claimant to detriments because he had made protected disclosures? 7.1 – Informing HMRC that the Claimant was no longer an employee of the Respondent from 5 April 2023 130. I find that this alleged detriment was not suffered because Mr Ford made a protected disclosure to Ms Viggiani about financial mismanagement on 5 July 2023, because it pre-dated this disclosure. 131. In any event, in my judgment Mr Ford has failed to establish that the School subjected him to this detriment. Whilst I have found that this is what Mr Ford seems to have been told by HMRC, there is no evidence that the School was responsible for this error, or that relevant tax and National Insurance contributions were not paid over to HMRC in respect of Mr Ford’s employment from April to September 2023. The error in the information communicated to Mr Ford could equally have been with HMRC. Payslips for this period show deductions being made from pay to allow for tax and National Insurance. It is unlikely that the School would subject Mr Ford to the detriment alleged when he unquestionably remained in employment during the period in question, and the School continued to pay him what it believed was the appropriate net salary during the period.[132]Even if I am wrong on that, in my judgment the inherently more likely explanation for such a notification to HMRC is administrative error. In my judgment it is unlikely that such a step would be taken by the School ‘because’ Mr Ford had made a protected disclosure about health and safety matters a few weeks earlier in a grievance statement. There is no obvious link between the disclosure to Ms Bone and Ms Viggiani and an erroneous notification to HMRC by a third party payroll provider that Mr Ford was no longer employed at the School, where his employment was clearly continuing and both Ms Bone and Ms Viggiani were taking steps to investigate his grievance. 7.2 failing to comply with the Respondent’s internal procedures when dealing with the Claimant’s complaints[133]In my judgment, the School subjected Mr Ford to a detriment in the way it dealt with his complaints. The informal stage of his grievance took 5 months to investigate and determine – from lodging on 16 December 2022 to the meeting with Ms Hadcocks on 24 May 2023. The formal stage had not even reached the point of arranging for a meeting to take place with Mr Ford by his resignation on 3 September 2023, notwithstanding that the decision to progress to the formal stage was taken 3 months earlier on 8 June 2023 by Ms Viggiani.[134]Whilst some delay can be explained by reference to Ms Bone standing down for personal reasons, and the school summer holidays in relation to the formal stage, in my judgment there is no good justification at all for why Mr Ford’s pay complaints took so long to address. The School has no proper reason why it failed to comply with its own Staff Grievance Procedure, which suggests that (absent agreement) the informal stage ought to be resolved within 2 weeks, and the formal stage within 8 weeks.[135]I reject the School’s submissions that this was a complicated complaint that required significant investigation. In my judgment it was a straightforward one. It ought to have been capable of resolution relatively promptly, in conjunction with any third party HR and Payroll provider. A meeting between Mr Ford, Ms Lyden and the Payroll provider, at which the figures could have been discussed in a spreadsheet, could and should have been convened within weeks at most. Neither HR nor anyone else with responsibility for working out the correct level of pay for Mr Ford ever sat down with him following submission of his grievance with a spreadsheet or his payslips to discuss his concerns or work out how his entitlement would be calculated.[136]In my judgment, there is no sound justification for why it took 5 months to come to even a preliminary view, or why even then there were remaining queries and questions which were not resolved at the grievance outcome meeting in relation to allowances that took further time to investigate. There is also no proper explanation as to why, once Ms Hadcocks had realised the need for ‘…a clear and simple statement…’ dealing with all pay issues in her email of 24 April 2023, it took a further month for the School to generate such a document, and then failed to present it to Mr Ford for discussion at his grievance outcome meeting on 24 May 2023, instead presenting it to him as a ‘done deal’ with the email of 26 May 2023.[137]The School has not adequately, in my judgment, justified why it subjected Mr Ford to this detriment, or why it took so long to look into his pay complaint. Without more evidence such as emails or witness evidence from Ms Lyden as to the processes involved, the fact that third party providers were involved, or Mr Ford’s persistence in pursuing his complaint, cannot excuse the timescales here.[138]Notwithstanding these points, however, I am not persuaded that either of Mr Ford’s protected disclosures, in his grievance statement of 15 March 2023 in relation to health and safety, or his email of 5 July 2023 in relation to financial impropriety, were the ‘reason why’ the School failed to comply with the grievance procedure when addressing his complaints.[139]The failure to comply with process clearly pre-dated the first of the disclosures in March 2023. The informal grievance ought to have been dealt with before the first protected disclosure was made. The delay was already operative at the time of the first disclosure.[140]In relation to delay following the second disclosure in July 2023, there is a clear email trail through July and August that shows efforts to investigate and address the HMRC pay and National Insurance issue once Mr Ford complained about it. Delay following this protected disclosure and period is likely due to these enquiries being made and the fact that this was the summer holiday. I accept this as an explanation for the delay, even if not as a justification for it.[141]In relation to the delay in the period between the two disclosures, March – July 2023, whilst I do not accept the School’s explanations as adequate justification for the delay, I do not consider it appropriate to reject them altogether. In my judgment, they explain but do not excuse the delay. In the presence of such an explanation, I do not conclude that the making of the health and safety protected disclosure played any part in the approach of the School to Mr Ford’s complaints.[142]In simple terms, in my judgment the approach taken was due to a failure by School management to get a grip and manage Mr Ford’s grievance proactively because of perceived complexity and the need to involve the third party HR and Payroll functions, and not because a part of it related to health and safety complaints. The School mismanaged Mr Ford’s complaint, but I do not conclude that this was in any way due to his protected disclosures. In my judgment, the protected disclosures that I have found were made by Mr Ford did not have a material influence on the School’s treatment of him. ii. THE UNAUTHORISED DEDUCTIONS CLAIM[143]I shall deal with this claim before I deal with the dismissal claim, as my conclusions in relation to pay and entitlements are relevant to the questions I must address in assessing breach of contract and constructive dismissal. 16 – 21. Did the Respondent make unauthorised deductions from the Claimant’s wages?[144]Neither party has set out for the Tribunal detailed calculations in a Schedule or Counter-Schedule by which their cases on what was owed and what was paid could easily be demonstrated. I have therefore been left to approach the evidence from square one in determining Mr Ford’s contractual entitlement to the payment of wages in the period June 2022 – September 2023.[145]In line with my findings of fact above:a. Mr Ford did not agree to any of the proposed variations of contract. He continued to work for the School but expressed his refusal to agree, believing that the proposals amounted to a pay cut. Contrary to what in my judgment appeared to be their approach throughout, the School was not entitled to impose or enforce on Mr Ford any variation in relation to his pay scale point or the FTE divisor without his agreement, whether in his favour or against him;b. I have not been pointed to any term of Mr Ford’s contract that entitled him to demand a pay rise, progression or regrading as a matter of right. This too would, in my judgment, have to be agreed between Mr Ford and the School before it resulted in a contractually enforceable right to a pay rise. Mr Ford is not entitled to rely on any contractual entitlement over and above that agreed with the School pursuant to his original terms of engagement and any agreed variations;c. The proposed variation of 16 June 2023, to be backdated to September 2022, was to pay Mr Ford at Unqualified Teacher Point 3 plus SEN1 allowance, 0.95 FTE. This variation was not agreed by Mr Ford. In my judgment, absent agreement, he was not entitled to be paid at this level;d. In my judgment, therefore, Mr Ford is only entitled to be paid at the pay scale point agreed in the last agreed variation to his contract – in January 2022, at Unqualified Teacher Point 2 plus SEN1 allowance, with a 25 hours FTE calculation divisor. The School was not of course entitled to enforce that 32.5 hours divisor on Mr Ford in the absence of his agreement;e. Mr Ford worked the additional hours over and above his original contractual agreed hours after his colleague retired in June 2022. He did so at the request of the School. The School purported to pay him for those hours. To the extent that his contract was varied to incorporate those additional hours, in my judgment such a variation was impliedly agreed by the conduct of the parties;f. Mr Ford was entitled to be paid for these extra hours. He was entitled to pay in respect of 20.25 hours per week in June, July and August 2022, and in respect of 23.75 hours per week from September 2022 until September 2023;g. It was agreed as part of Mr Ford’s grievance outcome that the appropriate divisor for the purposes of calculating his salary entitlement was 25 hours. This was the position in January 2022 and at all times prior to the School’s attempt to impose a 32.5 hours divisor upon him in November 2022. No variation to the divisor was agreed. He was therefore in my judgment entitled to a salary at 0.81 FTE in June, July and August 2022 (20.25/25), and 0.95 FTE from September 2022 until September 2023 (23.75/25);h. The payslip of 30 August 2023 properly reflects what Mr Ford was entitled to be paid for each and every month of the academic year 2022- 23. It is based on Unqualified Teacher Point 2 plus SEN1 allowance, 0.95 FTE (23.75/25). It amounts to £1,729.52 net for the month. Using this figure, I find that Mr Ford should have been paid £20,754.24 net for the months September 2022 – August 2023;i. Applying the same pay scale as apparent in the August 2023 payslip to the period June – August 2022, but adjusting for the appropriate 0.81 FTE to reflect hours worked (20.25/25), Mr Ford was entitled to be paid £1,474.64 net for these months. He should have been paid £4,423.93 for these months;j. In addition, Mr Ford was employed for approximately 10% of September 2023 prior to his resignation. In broad terms he should have been paid £172.95 for the 3 days of employment during that month;k. In my judgment, therefore, during the period June 2022 – September 2023 Mr Ford was entitled to receive payments totalling £25,351.12 based on his Unqualified Teacher Point 2 salary plus SEN 1 payment, based on 0.81 FTE between June – August 2022 and 0.95 FTE September – August 2023;l. Accounting for all sums paid to Mr Ford by way of salary and backpay between June 2022 – September 2023 he was paid £27,219.51.[146]For the reasons above, in my judgment in the round Mr Ford has not suffered an unlawful deduction from the wages properly payable to him by way of net salary during the material period and pursuant to his contract of employment. By putting my calculations based on agreed variations to his salary only, I find that he has been paid more than his agreed contractual entitlements to pay for work done. iii. THE UNFAIR DISMISSAL CLAIMS 9 – Was the Claimant dismissed?[147]In my judgment, Mr Ford terminated his contract of employment without notice in circumstances in which he was entitled to do so by reason of the School’s conduct. On this basis I find that Mr Ford was dismissed by the School within the meaning of s95(1)(c) ERA 1996, and was dismissed unfairly contrary to s94 ERA 1996, but not s103A ERA 1996, for the following reasons. 9.1-9.3 – Did the Respondent breach the implied term of mutual trust and confidence, or the contractual terms relating to pay? a. failure to pay the Claimant his proper wages over a lengthy period and breach of contractual terms related to pay[148]Although I have found above that overall, the School paid Mr Ford more than his contractual entitlements for the period in question, there were clearly several months where in breach of contract the School failed to pay the proper wages due and owing to him.[149]In particular, I note the period November 2022 – May 2023. For 6 months, in breach of contract the School paid Mr Ford on the basis of the 32.5 hours FTE equivalent divisor. The School wrongly attempted to impose this variation of contract on Mr Ford. It was not entitled to do so. The School eventually accepted in responding to Mr Ford’s grievance that this approach was contrary to his proper contractual terms.[150]By the time of Mr Ford’s resignation, however, the School was no longer in breach of contract with regards to pay. The payslip of 30 August 2023 accurately reflected Mr Ford’s contractual pay entitlement. Although he had not accepted the variations proposed on 16 June 2023, I conclude that these variations in effect reflected the actual agreed underlying contractual position going forwards. b. treat the Claimant badly in relation to the way they dealt with the complaints he made about wages c. subject the Claimant to the detriments relied on for the protected disclosure detriment claim[151]My reasoning in relation to issue 7.2 above, on the protected disclosure detriment claim, is relevant here. Whilst I do not consider that the detriment I have found above was suffered because Mr Ford made protected disclosures, I find that the way the School treated Mr Ford in relation to complaints about wages was a breach of the implied term of trust and confidence. When viewed objectively, the response of the School to Mr Ford’s complaint about his wages did amount to conduct likely to seriously damage trust and confidence in the employment relationship.[152]Mr Ford’s main complaint related to pay – a fundamental aspect of the employment relationship. As I found above, it ought to have been capable of resolution relatively easily and swiftly. Instead, the School failed to engage effectively with Mr Ford. He was left to pursue the process through a grievance. It took 5 months to reach the informal outcome meeting. There was never a meeting involving HR and Payroll at which a spreadsheet was discussed with Mr Ford in relation to his entitlements and the amounts he had been paid as salary or back pay. Throughout that time the School had imposed on Mr Ford a pay variation which he had not agreed to, that he did not understand and which the School ultimately concluded (in relation to the FTE divisor) was not appropriate.[153]I take into account that the HR and Payroll functions were administered for the School by third parties. As I found above in relation to the protected disclosure detriment, though, this in my judgment does not absolve the School as the employer of responsibility to ‘grasp the nettle’ on an important issue. As I set out above, I accept this as the explanation for the delay, but I do not accept this as a justification or excuse for the delay. Mr Ford was entitled under his contract of employment to prompt resolution of what was a vital issue to him – his level of pay. By denying him that resolution, for whatever reason, and failing to follow the Grievance Procedure timescales without a reasonable excuse, in my judgment the School demonstrated conduct that was likely to seriously damage trust and confidence in the employment relationship.[154]I make it clear, however, do not consider that the evidence supports any finding that the School took steps that were ‘calculated’ to impact on Mr Ford in this way. In his various emails and grievances Mr Ford alluded at times to underlying motivation for the way that his complaints were handled. I reject those suggestions, and accept Mr Murden’s evidence that there was no wilful delay on his part or that of the School in investigating the matters.[155]I also however accept Mr Murden’s evidence that ‘…the investigation process into the Claimant’s issues surrounding pay took longer than it should have done and [I] accept that this may have been distressing for the Claimant’. This in my judgment reinforces the conclusion I have come to. It is tacit admission by Mr Murden that the School’s failings in this regard were likely to have had a significant impact on Mr Ford. 9.4 Was any breach of contract by the Respondent a fundamental one?[156]Terms as to pay and the implied term of mutual trust and confidence are fundamental to any contract of employment. The School’s breaches of these terms amount to fundamental breaches of the contract.[157]In the alternative, I find that the School’s conduct over the course of December 2022 – August 2023 in the approach to the payment of Mr Ford for work done and the response to his grievance and complaint about pay amounted cumulatively to a fundamental breach of the implied term of trust and confidence. The ongoing failures to pay Mr Ford at his correct contractual level of pay, the failures to explain to him how his pay and back pay was being calculated and the failure to resolve his pay complaint grievance in a timely fashion cumulatively and fundamentally breached the implied term. 9.5-9.6 Did the Claimant resign in response to the breach, or did he affirm the contract before resigning?[158]Mr Ford continued to work through the period when his pay complaint was being dealt with. This included the period where in breach of contract the School imposed upon him the 32.5 hour divisor and paid him less than his contractual entitlement. He did so under protest, however. This was demonstrated most forcefully by his conduct in the November meeting with Mr Murden and through his subsequent official complaint. In my judgment, he neither waived nor affirmed the School’s breaches of contract by his conduct. He maintained his complaint. It remained without formal and final resolution at the time of his resignation.[159]Additionally, at the time of his resignation the breaches of the implied term in relation to the delay in handling the grievance were outstanding. He had still yet to receive a formal outcome to his grievance and no meeting to progress the formal grievance process had been set up.[160]Based on the reasons for resignation given in his email of 3 September 2023, I conclude that Mr Ford resigned in response to the breaches. He referenced all of these matters in his resignation email. I accept his evidence as to the reason for his resignation, as being consistent with the content of this email.[161]In the alternative, I find that Mr Ford’s resignation was in response to a final straw incident, namely the School’s failure to progress his complaint as a formal grievance between 10 June and 3 September 2023. In particular, the School’s failure to respond substantively to his email requests for progress to be made on 20 August 2023 contributed to earlier breaches of the implied term. 10. Was the reason for the Claimant’s dismissal the fact that he had made protected disclosures?[162]For the reasons I have given above in relation to issue 7.2 above, I also reject Mr Ford’s allegation that the protected disclosures that I have found he made were the principal reason for his dismissal, or the principal reason why the School breached Mr Ford’s contract of employment as I have found. Given that, for the reasons above, I have not found that the management of Mr Ford’s pay complaint and the failure to comply with internal procedures was materially influenced by the protected disclosures that I have found Mr Ford made, I similarly do not find that his constructive dismissal was because he had made such disclosures. 11 – 12. Was the reason for the Claimant’s dismissal a potentially fair reason, and did the Respondent act reasonably in treating that reason as a sufficient reason to dismiss the Claimant?[163]The School did not advance in argument a potentially fair reason for dismissal within the s98 ERA 1996 definitions. In the circumstances I find that it has not proven such a reason was the principal reason for Mr Ford’s dismissal. H. CONCLUSIONS[164]Pay, or the ‘wage-work bargain’, and the employer’s obligation to pay wages, remains one of the most important aspects of any employment relationship. Over a period of 10 – 11 months, Mr Ford’s pay was not administered correctly by the School. In my judgment, the School’s handling of Mr Ford’s complaints and grievance in relation to pay amounted to a breach of the implied term of trust and confidence in his contract of employment. His subsequent resignation in response to the handling of his pay and complaints amounted to a constructive unfair dismissal, despite the fact that on the final analysis it seems that eventually Mr Ford was paid what he was entitled to. His complaints in relation to health and safety and financial mismanagement were not however the reason for his dismissal, and nor did the School subject him to any detriment on ground that he had made such complaints. Approved by:[1]Mr Ford applies under rule 68-70 Employment Tribunal Procedure Rules 2024 for reconsideration of the Tribunal’s Reserved Judgment on liability following a final hearing in the above claim.[2]Specifically, at paragraph 3b of his application Mr Ford applies for the Tribunal to reconsider paras 1 and 2 of the Judgment dismissing complaints of being subjected to detriment for making a protected disclosure contrary to s47B ERA 1996 and automatic unfair dismissal for making a public interest disclosure contrary to s103A ERA 1996. B. THE APPLICABLE LAW[3]Rule 68(1) provides that a Tribunal may reconsider a judgment where it is necessary in the interests of justice to do so. Rule 70(1),(2) requires the Tribunal to consider the application and whether there is no reasonable prospect of the judgment being varied or revoked. If there is no such reasonable prospect, the application must be refused. Rule 70(3)-(5) set out the requirements for determination of the application if there is such a reasonable prospect.[4]Case law has explained how the interests of justice ground for reconsidering a judgment should be approached. In Outasight VB Limited v Brown UKEAT/253/14, EAT Her Honour Judge Eady QC confirmed that the words gave Tribunals a broad discretion, albeit one that must be exercised judicially, to determine whether reconsideration of a judgment is appropriate in the circumstances. This means having regard not only to the interests of the party seeking the reconsideration but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[5]In Ministry of Justice v Burton and another [2016] EWCA Civ 714, CA Elias LJ reconfirmed the importance of finality which militates against the discretion to reconsider being exercised too readily.[6]In Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA, EAT, Simler J held that ‘…a request for reconsideration is not an opportunity for a party to seek to re -litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered’. C. THE CLAIMANT’S APPLICATION[7]I have considered Mr Ford’s 15-page application carefully. In my judgment, it is an attempt by Mr Ford to introduce new issues for determination to the Agreed List of Issues, and to re-litigate the issues already determined in the Reserved Judgment, for the following reasons.[8]I remind myself of the Agreed List of Issues in relation to Mr Ford’s protected disclosure detriment and dismissal complaints. These are set out in the Order of EJ Beale KC of 17 April 2024. This was a final list of issues in accordance with paragraph 2 of the Record of Discussion at that hearing. Paragraph 3 of the Case Management Orders reflects that this was to be treated as the final list of issues.[9]The parties were reminded of the Order and the Agreed List of Issues at the final hearing. Following the initial case management discussion at the start of the final hearing, the list was amended to remove a holiday pay claim and to add a breach of contract claim. I dealt with this at paragraphs 9 – 12 of the Reserved Judgment.[10]At paragraph 18 of the Reserved Judgment, I also reminded the parties that I have confined my findings of fact as far as possible to matters that are relevant to the issues that must be determined to decide Mr Ford’s complaints. These are the issues in the Agreed List of Issues. It is not the Tribunal’s function to resolve all issues in dispute between the parties relating to Mr Ford’s employment at the School.[11]I came to conclusions on the questions posed by the Agreed List of Issues in paragraphs 116 – 163 (noting that after the initial paragraph 131 the numbering appears to have restarted at 116).[12]As against the Agreed List of Issues, Mr Ford’s application can be considered in the following main sections:a. In paragraph 3c, points 1 to 18 of the application, Mr Ford makes further submissions and comment on the findings of fact I made at paragraphs 30 to 115 of the Reserved Judgment. To the extent that these paragraphs assert new facts or evidence, Mr Ford has given no reason why such new evidence was not put forwards at the final hearing, or why it should be admitted now. He has not explained in the application how the matters raised in these paragraphs affect the conclusions reached in the Reserved Judgment on the Agreed List of Issues. He has not set out why it is necessary in the interests of justice that further submissions should be considered or stand reasonable prospects of leading to different findings of fact that will affect the conclusions reached;b. In paragraph 3c. point 19 and 23 Mr Ford makes further submissions related to the issue of why the Respondent made errors in relation to his pay. I arrived at conclusions on the question of whether the pay errors were made because of the protected disclosures in paragraphs 133-142 and paragraph 162 of the Reserved Judgment. Mr Ford’s application is a further submission on this issue. It is an obvious attempt to re-litigate or re-argue the point that I have already decided;c. In paragraph 3c. point 20 and 21 Mr Ford makes a further submission that delay in proceeding with his grievance – addressed in issue 7.2 of the Agreed List of Issues – was linked to his first protected disclosure. I arrived at conclusions on the question of whether the delays in handling the grievance were made because of the protected disclosures in paragraphs 133-142 of the Reserved Judgment. Again, this application is a further submission on this issue with a view to re-arguing the point that I have already decided;d. In paragraph 3c point 20, paragraph 3d, points a) to s), and further paragraph e) of the application, Mr Ford refers to further evidence in relation to alleged protected disclosures to various persons said to have been made between May and December 2022. None of these alleged protected disclosures were identified in the Agreed List of Issues as being matters that the Tribunal would have to reach conclusions on in order to decide the claim. Most of them relate to matters pre-dating the first alleged protected disclosure to Mr Murden on 14 November 2022. Mr Ford’s submissions and further evidence in this regard are therefore in relation to issues that were not pursued at the final hearing. The Respondent did not, and has not had, the opportunity to respond to these matters because they were not pursued by Mr Ford at the final hearing. There is no reason advanced by Mr Ford as to why these matters should be litigated now, for the first time, after the final hearing and the delivery of the Reserved Judgment;e. in paragraph 3c. points t) and further paragraph f) – k) Mr Ford makes further submissions asserting additional detriments suffered by him. He reiterates his position that detriments in relation to errors involving his pay were because he had made protected disclosures about health and safety. New detriments are alleged (paragraph f)) pre-dating the first qualifying protected disclosure that I found was made in March 2023. As I have recorded above, I addressed the question of whether the pay errors were made because of the protected disclosures in paragraphs 133-142 and paragraph 162 of the Reserved Judgment. Mr Ford’s application is a further submission on this issue and is a clear attempt to relitigate or re-argue the point. Mr Ford does not explain how the matters raised in these paragraphs affect the conclusions reached in the Reserved Judgment on the Agreed Issues. He has not set out in the application why it is necessary in the interests of justice that further submissions should be considered or stand reasonable prospects of leading to different conclusions.f. in paragraph 3c point 22 Mr Ford comments on the evidence considered by the Tribunal in relation to pay entitlements and paragraph 144 of the Reserved Judgment. I considered all of the evidence provided to me on this point when reaching the conclusions in paragraphs 145 and 146, including the matters referred to in Mr Ford’s application. No reason is given in the application as to why a different conclusion could or should be reached.[13]In my judgment, throughout this application Mr Ford is attempting to achieve what Simler J cautioned against in Liddington. He is seeking to re-litigate matters that have already been decided in the Reserved Judgment, or to reargue matters in a different way with a view to inviting the Tribunal to reach different conclusions. He puts forward no reasons as to why it is necessary in the interests of justice to re-litigate these points, to make further submissions on the evidence that was before the Tribunal previously or to rely on new evidence. His application therefore stands no reasonable prospect of establishing that it is necessary in the interests of justice to reconsider the Reserved Judgment, in view of the importance of finality in litigation and avoiding ‘second bites of the cherry’.[14]For these reasons, in my judgment there is no reasonable prospect of the judgment of 16 June 2025 being varied or revoked based on this application. It is therefore refused under rule 70(2). Approved by:[1]The Claimant’s complaint of breach of contract in relation to failure to pay the Claimant for 2 hours work done per week between September 2020 and May 2022 is well founded and is upheld. The Respondent is ordered to pay the Claimant the sum of £1,642.55 as damages for breach of contract, calculated on a net pay basis.[2]The Claimant’s remaining complaints of breach of contract in relation to failure to pay the Claimant for 2 hours PPA time between September 2020 and May 2020, and failure to pay the Claimant his contractual wages from June 2022 to September 2023 are not well founded and are dismissed. Case Nos: 2302196/2023 2305542/2023 Approved by: