Mr R Neale v Hyline Security (UK) Ltd and Study Group (UK) Ltd: 2302727/2017

EMPLOYMENT TRIBUNALS

Case No 2302727/2017

Between

Mr R NealeClaimant

Hyline Security (UK) Ltd and Study Group (UK) LtdRespondent

Before

Employment Judge Webster

In person for claimant

Date 5 October 2021

REASONS

[2]The hearing today was listed to consider the Second Respondent’s application for the claimant’s claims against it to be struck out. This is a long running claim that has had 3 separate case management discussions. In the most recent discussion on 3 July 2019 before EJ Hyde the claimant asserted that although his claim was solely in relation to his dismissal, he ought to also be able to pursue that claim against the second respondent even though the second respondent was not his employer. This preliminary hearing was listed to consider whether he could bring a claim about his dismissal against the second respondent or whether such a claim ought to be struck out because it had no prospects of success.

[3]Since that hearing the claimant has provided more details of what he says his qualifying disclosures were and how he says he was treated badly because of them by the second respondent. This was ordered by EJ Hyde and took the form of answers given in response to written questions provided by the second respondent. In that document, the claimant raises for the first time the assertion that he is a worker for the purposes of s47B Employment Rights Act 1996 (‘ERA’) and that the dismissal was a detriment by the second respondent.

[4]At the hearing before me the second respondent provided written submissions and I heard oral submissions from the claimant. The first respondent did not make any submissions.

[5]I gave an oral decision at the hearing and the claimant requested written reasons at the conclusion of the hearing. Background

[6]The claimant was employed by the first respondent. This is not disputed. He was asked to work by them on the premises of the Second Respondent. The claimant states that he was dismissed by the First Respondent because the Second Respondent asked them to remove him from their site following concerns he raised about potential breaches of the Data Protection Act. The claimant was dismissed by the first respondent on 7 July 2017.

[7]In his original ET1 (5 October 2017) the claimant made no reference to the second respondent. However he then applied for the Second Respondent to be added and this was allowed by the tribunal. Claim No: 2302727/2017

[8]The claimant states that his claim against the second respondent ought to be allowed to proceed because he was a worker for them as well as an employee for the first respondent. He states that this was the case because he worked there on site, under their control for the best part of 7 years. He states that the second respondent’s decision to dismiss was caused by the first respondent’s demand that he be removed from the premises and that their demand was motivated by his disclosure about CCTV footage and the Data Protection Act. The claimant does not dispute that he was dismissed by the first respondent but states that the second respondent was the root cause of that dismissal and therefore he ought to be able to pursue a claim against them as well.

[9]He states that as he was a ‘worker’ for the second respondent under s43K ERA 1996 he can therefore claim unfair dismissal against the second respondent as well as the first respondent.

[10]The second respondent states that they have never been the claimant’s employer and therefore cannot be responsible for his dismissal. Unfair dismissal claims brought under the ERA 1996 whether under s98ERA or s103ERA can only be brought against someone’s employer. They also state that the claims are in any event time barred as it was reasonably practicable for the claimant to have submitted the claim against them in time. They assert that any attempt to now bring a claim that the dismissal was a detriment under s47B ERA has only been advanced today for the first time, and that if taken as an application to amend (which it has not been submitted by the claimant to be) makes the claim even further out of time. The Law Employment Rights Act 1996 10. s43K ERA - Extension of meaning of “worker” etc. for Part IVA. (1)For the purposes of this Part “ worker ” includes an individual who is not a worker as defined by section 230(3) but who— (a)works or worked for a person in circumstances in which— (i)he is or was introduced or supplied to do that work by a third person, and (ii)the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them, (b)contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for Claim No: 2302727/2017 “personally” in that provision there were substituted “(whether personally or otherwise)” …… (2)For the purposes of this Part “ employer ” includes— (a)in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,

[11]s47B (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. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a)by another worker of W's employer in the course of that other worker's employment, or (b)by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a)from doing that thing, or (b)from doing anything of that description. (1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a)the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b)it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B).] Claim No: 2302727/2017 (2) This section does not apply where— (a)the worker is an employee, and (b)the detriment in question amounts to dismissal (within the meaning of Part X). (3)For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K.

[12]s103A 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. Discussion and Conclusions

[13]I accept that it is arguable that the claimant was a worker under s43k ERA 1996 although the claimant did not address me on why he satisfied that definition. I am not making a finding on that issue today – my task is to see if any claim against the second respondent has no reasonable prospects of success and should therefore be struck out. However I believe it is arguable that the claimant could satisfy the definition of ‘worker’ under s43K ERA and this must therefore be considered as part of the overall basis for the claimant’s claim against the second respondent and forms part of my consideration regarding the prospects of success of the claimant’s claim against the second respondent.

[14]If the claimant does satisfy this definition then I also accept that, as a worker, he could potentially bring a claim that he has been subjected to a detriment by the second respondent under s47B ERA 1996.

[15]Where someone is an employee, they cannot claim that dismissal is a detriment (s47B(2) ERA). Any such claim must be brought against their employer under s103 or s98 ERA. However, where someone is a worker, then it is possible to argue that a dismissal amounts to a detriment under s47B ERA.

[16]The claimant refers to the case of Day v Health Education England and others

[2017] IRLR 623

and states that this establishes that someone can ‘work’ for more than one entity. In that case, the Tribunal at first instance concluded that the claims against the Second respondent had no realistic prospect of success and struck them out. This decision was upheld by the EAT, which held that since the Claimant was employed by the Trust, he could not take advantage of the extended definition with respect to the second respondent, and that would be so even if the equivalent second respondent did substantially determine the Claim No: 2302727/2017 terms of his engagement. The Claimant appealed on the basis that the ET had wrongly analysed the question it had to determine submitting that it focused on which body, as between the two respondents, played the greater role in determining the terms of engagement and thereby failed to appreciate that both may do so. The appeal was allowed because they held that, in that case, the second respondent could in principle fall within the scope of section 43K(2)(a) notwithstanding that the Claimant had a contract with the First Respondent and the ET had applied the wrong test because it was asking itself which party, as between the two respondents played the greater role in determining the terms on which the Claimant was engaged. It did not properly consider the possibility that both could substantially determine the terms of engagement. However the matter was then referred back down to the ET as the Court of Appeal found that if the proper test had been applied, it did not mean that the claimant was definitely a worker for both respondents at the same time.

[17]Although neither party took me to it, I have also considered the case of Timis v Osipov

[2018] EWCA Civ 2321

as it deals with who the valid respondent may be in whistleblowing detriment and dismissal claims. In that case, two nonexecutive directors decided to dismiss Mr Osipov (who was an employee) after he had made protected disclosures. He brought an unfair dismissal claim against his employer and a detriment claim against the directors who tried to avoid liability relying on s47B(2) of the ERA 1996. As already discussed, s47B(2) states that an employee cannot pursue a claim for detriment where the detriment amounts to dismissal. The directors in Osipov asserted that the claim had to be brought as an unfair dismissal claim which could only be brought against the employer. The EAT and the Court of Appeal disagreed, drawing a distinction between dismissal within the meaning of the unfair dismissal provisions of the ERA 1996 and dismissal which is not within the meaning of those provisions (and so which could form the basis of a detriment claim). The directors' actions fell within the latter category and so the claimant could pursue them in a detriment claim.

[18]Both the above cases have been helpful in establishing the possibility that a claimant can bring dismissal as detriment claims against people directly involved in their work who are not necessarily their employer. However, in my view, neither case addresses the fundamental problem that the claimant has before me which is the factual basis for the claim he says he is bringing against the second respondent.

[19]The claimant is solely complaining about the fact of his dismissal. He has never sought to complain about the events that led up to his dismissal or assert that they give rise to separate causes of action. The claimant accepts that it was the first respondent that dismissed him and that it was their decision alone. His complaint against the second respondent is that the second respondent asked for him to be removed from their premises and that this subsequently led to his dismissal by the first respondent who could not (in their case) find him alternative employment at a different site. He does not assert that the second Claim No: 2302727/2017 respondent actually dismissed him or asked the second respondent to dismiss him. However, he is advancing a claim that is purely about dismissal against an entity that did not dismiss him and he does not try to suggest dismissed him.

[20]He has not, despite 3 previous case management hearings at which he has been expressly asked whether he wants to advance a claim about something other than his dismissal actually stated that he wants to complain about something other than the actual decision to dismiss him. He has steadfastly maintained that his claim is solely about his dismissal.

[21]Therefore whilst I accept that in theory it is possible that(i) An individual could be a worker for more than one ‘employer’ where an individual is a worker; and

(ii) A worker can bring a claim asserting that dismissal is a detriment I do not accept that this is the claim that the claimant has advanced against the second respondent either before me today or previously.

[22]Instead, the factual basis for his complaint against the second respondent is that they asked for him to be removed from their premises and that this ultimately led to his dismissal by the first respondent. He has not however brought a claim stating that their behaviour in the lead up to the dismissal was a detriment. Instead he is asserting that he must be able to bring an unfair dismissal claim against the second respondent.

[23]He has not before me or at any of the three previous hearings, sought to apply to amend his claim to include a detriment claim under s47B ERA. He has now mentioned it in his response to the questions asked about his claim but he is still stating that the action that the second respondent took that he is complaining about is the dismissal itself. The case management records of those hearings indicate that he was asked on all three occasions what the basis for his claim was and he stated that he was complaining about his dismissal only, not the events that led up to it or the second respondent’s request that he be removed from working on their site.

[24]The claimant confirmed that he had received some advice from Protect the organisation which specialises in advising whistleblowers. Therefore whilst he was unrepresented before me and at the previous hearings, and I am mindful of the need to put the parties on an equal footing, I do not accept that he could not have considered advancing a detriment claim about something other than his actual dismissal as opposed to a purely ‘dismissal as detriment’ claim against the second respondent.

[25]The second respondent may have taken action that contributed to the first respondent’s subsequent decision to termination his contract but they did not, under any version of the claimant’s claims, actually dismiss him as they had no Claim No: 2302727/2017 power to do so under the terms of his contract. The claimant has been given several opportunities to state whether his claim is about anything more than his dismissal and he has clearly stated that it is not.

[26]I therefore strike out the claimant’s claims against the second respondent because a claim for unfair dismissal under either s103 or s96 ERA can only be brought against the claimant’s employer. Although the claimant might have been able to argue that he was a worker for the second respondent and his dismissal amounted to a detriment, this is not the factual basis for the claim he has brought against the second respondent. He does not allege that the second respondent actually dismissed him, he simply states that they asked for him to be removed from their premises. He has not advanced an argument that the decision to remove him from the premises was a detriment and he has not sought to apply to amend his claim to include any such claim. I therefore consider that the claimant’s claim whether it be for unfair dismissal or dismissal as a detriment against the second respondent has no reasonable prospects of success and strike it out.

[27]Even if I am wrong in that conclusion, I find that the claimant’s claim against the second respondent is out of time.

[28]Section 111(2)(b), ERA 1996 provides that a tribunal can only extend time in either an unfair dismissal claim or a whistleblowing detriment claim if:(i) It was "not reasonably practicable" for the complaint to be presented in time.

(ii) The claim was nevertheless presented "within such further period as the tribunal considers reasonable.

[29]The claimant has had a series of opportunities to submit his claim or claims against the second respondent. The claimant was dismissed on 7 July 2017. The date on which he was asked to leave the second respondent’s premises predated this. The claimant’s original ET1, dated 5 October 2017 made no reference to the second respondent. The claimant’s application to add the second respondent was made on 4 March 2018 but with no substance to that application. An amended ET1 setting out some of the detail of the claim was provided on 3 September 2018.

[30]Whilst the second respondent has already been joined as a respondent this does not necessarily mean that the claims are not time barred against them. The second respondent is asking me to strike out the claimant’s claims against them on the basis that they are out of time as it was reasonably practicable for the claimant to have brought either an unfair dismissal claim (under s103 or s96 ERA) or as a detriment claim under s47B against the second respondent within the normal 3 month less a day deadline (subject to ACAS Early Conciliation extensions). Claim No: 2302727/2017

[31]On a generous reading of the timeline it could be said that the claim against the second respondent was presented on 4 March 2018 when he applied for them to be joined as a respondent. However the application to join them did not include details of his claim against them until 3 September 2018. In any event, either date is well outside the normal deadline for bringing a claim.

[32]Whilst the claimant has cited lack of legal representation and advice as a reason for not including the second respondent on his original claim he has been speaking to Protect and receiving their advice about his claims hence his knowledge and understanding of the Day v Health Education England and others

[2017] IRLR 623

case.

[33]Whilst I have sympathies with the claimant’s struggles to find legal representation, he has clearly had some advice regarding his claims and lack of accessible legal advice is only one factor in assessing whether it was reasonably practicable to submit a claim in time.

[34]I find that it was reasonably practicable for the claimant to have submitted his claim against the second respondent in time and in any event before 4 March 2018 which was some 8 months after his dismissal. I reach this conclusion because the claimant knew at all times that he was dismissed by the first respondent following his removal from the second respondent’s premises. There is no reason that he could not explain the facts that led up to his dismissal or name the second respondent in his ET1 but he made no reference to them at all. Once he did become aware that he might want to consider adding the second respondent (either through advice or further consideration) he did not submit the basis for that claim until several months had passed on 3 September 2018. This lapse in time is also important given that there was a case management discussion in January 2018 with EJ Harrington at which the claimant was given an opportunity to discuss the situation and at which it is recorded he said that he was not in a position to confirm whether he had a whistleblowing claim. He has given no explanation for his delay in particularising the claim against the second respondent between January 2018 and March 2018 followed by the then not insignificant delay until 3 September 2018 when he actually sets out the basis for his claim. He also does not explain the length of the delay save for lack of legal advice. Given that the facts of the claim appear to be relatively clear and he has known about the role of the second respondent within the factual basis for his claim throughout, he has offered no reason for not explaining that in any detail until almost a year after his original ET1 was submitted. He has also not explained the repeated delays including, the delay that is apparent today where it appears he is, for the first time, advancing the argument that he was a worker under s47B ERA and that his claim against the second respondent is a detriment claim. This claim was not put forward at all at previous hearings or in the document detailing his claim against the second respondent on 3 September 2018. Claim No: 2302727/2017

[35]In the absence of any explanation for the original failure to name the second respondent and the subsequent repeated delays in firstly applying for the second respondent to be joined and then in particularising his claim against the second respondent, I find that it was reasonably practicable for him to bring his claims against the second respondent firstly within the original time limit and if not then within a far shorter period of time than has lapsed between his first tribunal hearing in January 2018 and the actual detail of his claim on 3 September 2018 or today’s apparent application to amend to include the detriment claim. It was therefore not submitted within such further period as I consider reasonable either.

[36]The claimant’s claims against the second respondent are therefore out of time and are struck out. Employment Judge Webster 21 December 2019 Case Number: 2302727/2017 1 EMPLOYMENT TRIBUNALS Claimant: Mr R. Neale Respondent: Hyline Security (UK) Ltd Heard at: London South Employment Tribunal On: 5 October 2021 Before: Employment Judge A. Beale Representation Claimant: In person Respondent: Mr T. Sheppard (Counsel)

[1]By an ET1 presented on 5 October 2017, the Claimant brought a claim for unfair dismissal. Following amendments to that claim, he claimed that he was “automatically” unfairly dismissed because he made one or more protected disclosures. Alternatively, he complained that even if that was not the reason for his dismissal, the dismissal was unfair in any case. I would like to begin these Reasons by apologising to the Claimant and Respondent for the length of time it has taken to reach a final hearing in this case.

Issues

[2]The issues in the case were agreed at the outset of the hearing as follows: Case Number: 2302727/2017 22.1 Did the Claimant make a disclosure that he reasonably believed tended to show that a person had failed, was failing or was likely to fail to comply with any legal obligation to which he was subject? The legal obligation relied upon by the Claimant was the Data Protection Act 1998 and the accompanying code of practice. The disclosures relied upon are:2.1.1 a disclosure to Sandy Connors on 26 May 2017;

2.1.2 a disclosure to Steve Moran on 26 May 2017;

2.1.3 a disclosure to Frederick Steward on 31 May 2017

2.1.4 a disclosure to Mark East on 31 May 2017.

2.2 Did the Claimant reasonably believe that the disclosure was made in the public interest?

2.3 Was/were the disclosure(s) made to the Claimant’s employer, or to a person other than his employer in the reasonable belief that the relevant failure related solely or mainly to the conduct of a person other than his employer, or any other matter for which a person other than his employer has legal responsibility?

2.4 If so, was the disclosure the sole or principal reason for the Claimant’s dismissal?

2.5 If not, what was the sole or principal reason for the Claimant’s dismissal? The Respondent contends that it was “some other substantial reason”, namely that the client who occupied the site on which the Claimant worked, Study Group (‘SG’) had barred him from the premises, and the Claimant had been offered alternative work and had refused.

2.6 The following specific issues were set out at the Preliminary Hearing in on 15 January 2018 (p. 42) but not all of them were relied upon by the Claimant during the hearing:2.6.1 the Respondent failed to provide the Claimant with the misconduct allegations in writing before the disciplinary hearing;

2.6.2 the Respondent failed to afford the Claimant a reasonable opportunity to seek advice on the misconduct allegations;

2.6.3 the Respondent failed to adjourn the disciplinary hearing at the Claimant’s request;

2.6.4 the Respondent proceeded with the disciplinary hearing despite the Claimant protesting during the hearing that it was not being conducted correctly; Case Number: 2302727/2017 3

2.6.5 the Respondent failed to provide the Claimant with an opportunity to contest the allegations raised by SG in a meeting with SG and the Respondent;

2.6.6 the Respondent told the Claimant that unless he now worked night shifts, he would be dismissed;

2.6.7 the Respondent dismissed the Claimant because SG required them to do so. The Claimant asserts that the Respondent had not done everything it reasonably could to avoid or mitigate the position brought about by the stance of SG including trying to get SG to change its mind about the Claimant continuing to work at its premises and trying to find suitable alternative work;

2.6.8 the Respondent dismissed the Claimant when, at all material times, he was adhering to the Data Protection Act protocols that were in place and which he had followed for the previous 6 years as a licensed CCTV operator.

2.7 If the dismissal was unfair, did the Claimant contribute to the dismissal by culpable conduct?

2.8 Has the Respondent proved that if it had adopted a fair procedure, the Claimant would have been fairly dismissed in any event, and if so, what was the chance of a fair dismissal and/or when would it have taken place?

The Evidence

[3]I heard evidence from the Claimant on his own behalf and Tony Harold, Managing Director, on behalf of the Respondent. I was supplied with a signed witness statement on behalf of Frederick Steward, Director of Operations, for the Respondent, but he did not attend to give evidence. I was provided with a bundle totalling 159 pages, to which was added a further document provided by the Claimant on the morning of the hearing, which was a print-out from the ICO website.

[4]Mr Sheppard provided written submissions on which he elaborated orally behalf of the Respondent. The Claimant made oral submissions on his own behalf. Where appropriate, I have referred to the content of those submissions below.

Facts

[5]Much of the factual background to this case was not disputed. The Claimant accepted almost all of Mr Harold’s witness statement, and did not indicate any disagreement with Mr Steward’s statement. I set out my relevant findings of fact below. References to page numbers are to pages in the agreed bundle.

[6]The Claimant was employed by the Respondent as a Security Officer from 3 October 2010 until his dismissal on 21 June 2017. Case Number: 2302727/2017 4

[7]The Claimant’s contract provides that his place of work will be the customer site to which he is assigned at any time (p. 105) and states that the Respondent cannot guarantee hours as they will be subject to the contract requirement and the client may reduce hours or cancel the contract at short notice. Clause 2 of Part 2 of the contract (p. 107) reiterates that the place of work is the customer site, which is subject to change depending on the needs of the business and contract requirements. The employee is required to make him/herself available at any alternative location within 20 miles of the current place of work. Clause 5 states that in order to meet the needs of the business, employees may be required to change their working hours on a temporary or permanent basis.

[8]Throughout his employment, the Claimant was assigned to work for a company called Study Group (‘SG’), initially on the site of their Bellerbys college in Oxford, and subsequently, at the Claimant’s request, at a different site in Brighton from 1 November 2014.

[9]In December 2011, the Claimant took and passed a course on CCTV to become a licence holder. It is the Claimant’s position (not disputed by the Respondent) that following this course, he would refer any matter involving CCTV enquiries to Stephen Moran, an SG employee, who he says was responsible for access control and CCTV on all of SG’s four sites. There is no documentation before me setting out any policy or pathway as to the correct course for approval of any request to view CCTV at any of SG’s sites.

[10]On 25 May 2017, the Claimant was informed by a colleague that the Director of Student Services for SG, Sandy Connors, would like to see some CCTV footage of an alleged incident that had taken place in the college. The Claimant’s evidence is that his colleague said he had told Ms Connors that the Claimant would follow the procedure of requesting an email from Mr Moran, although it does not appear that the Claimant witnessed this conversation.

[11]On 26 May 2017, the Claimant saw Ms Connors, who asked to see the relevant CCTV. The Claimant confirmed that the account of this discussion given in his statement provided on 6 June 2017 (p. 126) was accurate. This reads as follows: “[Ms Connors] said she wanted to view the CCTV. I started to ask questions about the time, place etc and said that I would call her as soon as I had found the incident in question which is how I would normally proceed. She said that she wanted to do it straight away as she was busy and had only 5 minutes to spare. I explained I would prefer to do it as previously said because it would give me a chance to get a confirmation email from Steve Moran. Asking why, I explained that it was the procedure I had always followed for all such requests, believing that he was the designated CCTV controller. At this point she said that she was senior to Steve. I explained that I had always referred to Steve, again saying that he was the data controller. She replied that it was a Paul Simpson who I had never dealt with. I repeated that I was led to believe it was Steve. Case Number: 2302727/2017 5 At this point she turned and went back towards the college saying I was going to be in a lot of trouble. I walked with her and asked her to stop so that I could explain why I always go first through Steve because of my training regarding on how information is handled under the Data Protection Act. She repeated I was in trouble and went up to the first floor in the Academic Block.”

[12]In his witness statement, the Claimant gives a slightly different account of events, stating that he suggested they move to a side courtyard to avoid discussing the matter in front of students, at which point he “mentioned that I have to protect my licence and adhere to the data protection protocol regarding CCTV matters”.

[13]At 12:41 on the same day, Paul Simpson, in-house counsel for SG, emailed the Claimant expressing concern that Ms Connors’ request to view the CCTV had been denied, and giving authority to release the footage. The email also reminded the Claimant that under the Data Protection Act 1998 there were circumstances in which the sharing of recorded data was permitted, including a safeguarding issue such as this (p. 115C). The Claimant responded on 26 May 2017 stating “Hopefully Steve Moran has been to see you and explained what has gone on”. Mr Simpson responded informing the Claimant that Ms Connors would deal directly with Mark East, and that Steve Moran was aware of the situation (p. 115E).

[14]The Claimant emailed Mr Moran at 16:51 on 26 May 2017 (p. 115F) as follows: “Because of the events today regarding cctv footage requested by Studygroup staff, can you send to Brighton Security the correct operating procedure so that no one else will have to endure what I did today. Clarification on who will be the designated person that ALL such enquiries will have to go through will stop what took place today and allow the data protection act be safely and correctly undertaken.”

[15]Mr East then wrote to the Claimant on the same day (p. 115F) stating he would be including the procedure in the updated security file, to be finalised over the next few weeks, and that until then all requests for CCTV access should come via him.

[16]On the morning of 31 May 2017, the Claimant attended work and an incident took place where he asked a student who had attended without I.D. to wait in the entrance foyer to be processed by student services. There was a disagreement between the Claimant and the student services member of staff as to whether this was necessary.

[17]During the morning, the Claimant was asked to attend a meeting by Mark East. Prior to this meeting, the Claimant contacted Frederick Steward to ask if he was aware of this meeting; Mr Steward said he was not. The Claimant’s statement (which he again confirmed was a correct account of the discussion) continued: “I explained what had gone on and why I acted the way I did referring to the cctv protocol and data protection. He couldn’t confirm if my actions were correct and said he would talk to Tony Harold. I have raised the matter on Case Number: 2302727/2017 6 cctv with both before in Oxford. Frederick called back and said that Tony had told him the regulations did not apply to them.”

[18]The Claimant attended the meeting with Mark East at 15:30 that afternoon. C’s account of the meeting as set out in his statement is: “I went into the meeting as arranged and tried to pre-empt the course of conversation by showing Mark East a copy of the I.C.O CCTV guidelines and protocol advising how cctv operators were to conduct themselves and adhere to the data protection act [the Claimant’s uncontradicted evidence was that this was the document now at p. 160]. He took it, read it and said it didn’t apply to them. I replied that I was sure it did but if they held an exemption certificate as required from the ICO then I would apologise for all that had happened and if my actions were incorrect. At this point he became aggressive, shouting again that it didn’t apply to SG and that he had nothing to show me. Because of his negative manner I thought it best to leave the office saying I hope we were not falling out. I continued working to the end of my shift that day.”

[19]At 18:48 on the same day, Mr East sent an email to Mr Harold, stating “As per our discussion earlier we are requesting that Reg does not come onto our sites while we carry out the investigation to the incident with Sandy Connors last week, this is in immediate effect. I have had two more complaints today regarding aggressive and disproportionate behaviour by Reg towards our staff and students over the weekend and today.”

[20]In unchallenged oral evidence, Mr Harold explained that prior to receiving this email, he had spoken to Mr East offering to broker a meeting between the Claimant and Mr East, to see if the situation could be resolved. However, Mr East told him that by this point the matter had gone above his head and was being dealt with by Simon Brophy, Head of Property Services, and that he was not interested in having a meeting with the Claimant because of the aggressive way in which he alleged the Claimant had behaved in the earlier meeting with him.

[21]On 1 June 2017, Mr Harold sent the Claimant an email informing him that he was not to attend work that day. Mr Harold emailed the Claimant to inform him that he was suspended on full pay at 16:53 on the same day (p. 121).

[22]SG asked Mr Harold to obtain a statement from the Claimant about the events, which Mr Harold did and which was provided (see p. 126). On 6 June 2017, Mr Harold wrote to the Claimant explaining that he was suspended from working at Bellerbys Brighton (p. 124), and as there was no alternative work in the area, he was to be paid in full until the investigation being carried out by SG was completed. He explained there was another site opening in Brighton from 16 June and that the Claimant could be redeployed there if the investigation had not been concluded by that point.

[23]On 7 June 2017 (p. 128) Mr Brophy wrote to Mr Harold stating that following the investigation into the incident with Ms Connors, and two further complaints Case Number: 2302727/2017 7 received about the Claimant displaying an aggressive and unhelpful manner to a student and member of staff, SG had taken the view that the Claimant’s attitude and demeanour were not in line with the level of service SG would expect. Mr Brophy asked Mr Harold to ensure that the Claimant was permanently removed from the list of guards to be used in guarding SG properties, and stated he was not to attend or attempt to enter any SG properties effective immediately.

[24]Mr Harold tried to telephone the Claimant to inform him of this but was unable to contact him on 8 June. Mr Harold was ultimately able to contact the Claimant and wrote to him on 12 June 2017 (p. 131) informing him that as a result of the incident on 2 June [I believe this should refer to 26 May], SG had instructed that they would no longer allow the Claimant to work on their sites or contracts, meaning that unless the Respondent was able to find the Claimant alternative work, his continued employment would be at risk. The Claimant was informed of possible alternative work due to start on 16 June 2017, but comprising only night shifts, although day shifts might be available in the future. It was agreed that the Claimant could consider this over the weekend.

[25]On 16 June 2021, the Claimant confirmed that he did not want to undertake any evening shifts at any site so would not be available for the work offered (p. 134).

[26]On the same date, the Claimant was invited to a disciplinary hearing to take place on 20 June 2017 with Mr Harold. The purpose of the hearing was to consider his ongoing employment and he was told that it might result in the termination of his employment. The letter went on to state (p. 136): “As discussed previously, due to a complaint made by our client, you are no longer able to work at SG Brighton or any other site operated by SG. This meeting will discuss the actions that have led to this. You have been offered alternative shifts at the only other site operated by the Respondent within a 50 mile radius of Brighton, but you have indicated that you are not interested in accepting that work.”

[27]The letter informed the Claimant of his right to be accompanied. The Claimant confirmed he would be attending by email of 18 June 2017 (p. 135).

[28]I have read the minutes of the meeting between the Claimant and Mr Harold. The minutes show that Mr Harold read out the email from Mr Brophy dated 7 June 2017. In response, the Claimant said he was only attending the meeting as he had been told he had to as he was being paid; that the invite letter had arrived when he was out and he had had to collect it, and that he had nothing in writing to explain why he could not go to SG’s site. He said the letter sent on the previous Friday gave insufficient time to reply to the allegations, and that he was also unable to bring anyone with him that day as he had to give notice of who they were, and the Respondent might have sent a companion away if he had not informed them in advance of who was coming. He appreciated the option of work elsewhere but reiterated that he did not work nights, although it might be a possibility if the site would be moving to days in September. Mr Harold confirmed that this was not the case. Case Number: 2302727/2017 8

[29]There was a further discussion about SG’s reasons for refusing to have the Claimant on site. Mr Harold explained that SG would not permit the Claimant to return, and that the Respondent had offered an alternative, which the Claimant was refusing.

[30]Mr Harold asked the Claimant why he had refused Ms Connors access, and the Claimant said that there were processes in place for accessing CCTV and that he had said in the past that he needed authorisation from Mr Moran as the designated person to access CCTV. Mr Harold explained that there had also been complaints that the Claimant had been aggressive, and the Claimant responded to those complaints. The Claimant then asked for an adjournment of the hearing, and Mr Harold asked why, explaining that the Claimant was not able to work at SG due to third party pressure; other work had been offered but the Claimant had turned down the offer. The Claimant reiterated that he was not prepared to do nights. The Claimant ended the meeting by saying he had not had the opportunity to defend himself, and was leaving.

[31]On 21 June 2017 (p. 144), Mr Harold wrote to the Claimant summarising the meeting and concluding: “In response to your refusal to accept the position at Kings Education, I find that we are left with no option but to dismiss you from the Company as we have no other work within the Brighton area that we are able to offer...I truly hoped that you would accept the alternative work we offered to you at Kings Education.” The Claimant was informed of his right to appeal.

[32]The Claimant did raise an appeal (p. 143), the grounds of which were essentially reiterating his points from the earlier meeting: that he had not received any written allegations concerning the reasons for suspension; that the letter of 16 June (which he did not receive when initially delivered on 17 June) did not give him enough time to notify who would attend with him, and that he would be willing to take on day but not night shifts at Kings following his holiday. He reiterated he had no interest in night shifts.

[33]The Claimant was invited to an appeal hearing on 5 July (p. 147) to be conducted by Frederick Steward. He was informed of his right to be accompanied.

[34]The appeal took place as planned on 5 July 2017 (p. 149). The Claimant confirmed he accepted the minutes of the last meeting. The Claimant explained that in his interaction with Ms Connors he was just following procedure. During the appeal meeting, the Claimant discussed the detail of the issues raised by SG, and Mr Steward reiterated that the Claimant did not work for SG but for the Respondent, and that he had been offered alternative work. The Claimant stated he wanted to be reinstated and that he did not want to go against the Respondent; Mr Steward explained to him that the Respondent only had night work available. The Claimant again stated he did not want night work and would be prepared to wait for day Case Number: 2302727/2017 9 shifts, but Mr Harold had told him the client only wanted night staff. There was a discussion of the meeting with Mr East, in which Mr Steward pointed out that the Claimant could have said he was wrong, which might have put the meeting on a different footing. The Claimant said that Mr East was already irate.

[35]On 6 July 2017, Mr Steward wrote to the Claimant confirming that the original decision was upheld, on the basis that the Claimant had given the Respondent no option but to dismiss him due to his refusal of the only alternative work they had available in the area, in circumstances where he could not remain in his original position as the client had instructed that he be removed from their sites.

[36]As noted above, the Claimant presented his claim for unfair dismissal on 5 October 2017. The claim was later amended to include a complaint of automatic unfair dismissal. The Claimant also brought, by amendment, a whistleblowing complaint against SG, but that was subsequently struck out on the basis that, although the Claimant might be a worker under s. 43K ERA 1996, his complaint (as repeatedly explored with him) was only about his dismissal by the Respondent, not any detriment committed by SG, and also because any complaint against SG was out of time. Law Protected Disclosures

Law

[37]A “protected disclosure” means a qualifying disclosure which is made by a worker to his employer (s. 43A Employment Rights Act 1996 (‘ERA 1996’)).

[38]Section 43B(1) provides that 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 of the specified categories of relevant failure. These categories include, at s. 43B(1)(b) “that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject.”

[39]A disclosure must have “sufficient factual content and specificity, such that it is capable of tending to show one of the matters in subsection (1)” Kilraine v London Borough of Wandsworth

[2018] ICR 1850

(CA).

[40]Whether the employee reasonably believes that a disclosure is in the public interest has two elements: whether the employee in fact believed it was in the public interest and whether that belief was reasonable (Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

(CA)).

[41]Section 43C(1) ERA 1996 provides that a qualifying disclosure will be made in accordance with that section if the worker makes the disclosure (a) to his employer or (b), where he 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. Unfair Dismissal Case Number: 2302727/2017 10

[42]An employee shall be regarded as unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that he/she made a protected disclosure (s. 103A ERA 1996).

[43]Where an employee asserts an automatically unfair reason for dismissal which is different from the reason put forward by the employer, he/she must produce some evidence supporting their assertion, but the burden of proving the reason for dismissal remains with the employer (Kuzel v Roche Products Ltd

[2008] EWCA Civ 380

[44]It is thus for the employer to show the reason for the dismissal, and that it is either one of the potentially fair reasons for dismissal set out in s. 98(2) ERA 1996, or “some other substantial reason” of a kind such as to justify dismissal (‘SOSR’, s. 98(1)(b) ERA 1996).

[45]The Tribunal must then determine whether the employer acted reasonably or unreasonably in treating that as a sufficient reason for dismissing the employee, taking into account all the relevant circumstances (s. 98(4) ERA 1996).

[46]In so doing, the Tribunal must not substitute its own decision for that of the employer, but must consider whether the employer’s decision fell within the “range of reasonable responses”; Iceland Frozen Foods Ltd v Jones

[1983] ICR 17

. The “range of reasonable responses” test applies to the question of whether an employer adopted a fair procedure before deciding to dismiss the employee (J Sainsbury plc v Hitt

[2003] ICR 111

(CA)).

[47]The dismissal process should be considered as a whole, including any appeal, and an ET should look at the fairness and thoroughness of the appeal stage and the open-mindedness of the decision-maker when deciding whether any prior procedural deficiencies are cured (Taylor v OCS Group Ltd

[2006] ICR 1602

(CA)).

[48]Third-party pressure to dismiss can amount to SOSR; see Dobie v Burns International Security Services Limited

[1984] ICR 812

(CA). In determining the fairness of dismissal for that reason, the Tribunal must have regard to whether or not the dismissal entailed injustice to the employee, and if so, the extent of that injustice.

[49]The employer must show that some pressure was exerted by the third party (Grootcon (UK) Ltd v Keld

[1984] IRLR 302

[50]The fact that the client who procures, directly or indirectly, the dismissal of an employee may have acted unfairly, and that the employee may therefore have suffered an injustice, does not of itself mean the dismissal is unfair within the meaning of s. 98(4) ERA 1996. That is because the focus of s. 98 is on whether it was reasonable for the employer to dismiss. There is no requirement on the employer to establish the truth of the allegations that led the third party to make its decision. If the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client – most obviously, by trying to get the client to change his mind and, if that is impossible, by trying to find alternative work for the employee – but has failed, any eventual dismissal will be Case Number: 2302727/2017 11 fair: the outcome may remain unjust, but that is not the result of any unreasonableness on the part of the employer (see Henderson v Connect South Tyneside Ltd

[2010] IRLR 466

(EAT) at paragraphs 11 – 14).

Conclusions

[51]In this case, for reasons that will become clear, even though there is a complaint of automatic unfair dismissal, I have not considered initially whether the Claimant made one or more protected disclosure(s). I have instead considered first the reason for the dismissal. However, I have dealt briefly with the question of whether the Claimant did make any protected disclosures at the end of my reasons. The Reason for the Dismissal

[52]Having heard from Mr Harold and considered Mr Steward’s statement, which was not substantially in dispute, I find as a fact that the reason for the Claimant’s dismissal was the fact that SG had barred him from its sites. SG was the Respondent’s major client in the Claimant’s area. The Respondent had only one other site at which to offer work within a 50 mile radius of Brighton, and only night shifts were available, which the Claimant refused. I find that the reason for the Claimant’s dismissal was that he was no longer able to work on any SG sites, and that he refused the only alternative work available to him, which constitutes some other substantial reason of a kind such as to justify dismissal within the meaning of s. 98(1)(b) ERA 1996.

[53]It is clear from all the evidence before me that this was the genuine reason for the Respondent’s decision to dismiss and indeed the Claimant did not really dispute this. He explained in his honest and fair submissions that he did not think the Respondent was the culpable party here, and that in truth his concern was about SG’s conduct. I do not consider that, even if the Claimant could show that made a protected disclosure to SG or the Respondent, and that this was the reason why SG removed him from site, that would change the reason for his dismissal by the Respondent. No such argument was made by the Claimant and I am aware of, and was taken to, no authorities that would support such a position (Royal Mail Group Ltd v Jhuti

[2019] UKSC 55

, for example, concerns improper motives for dismissal by another employee of the employer in the hierarchy of responsibility above the employee, not a separate third party over whom the Respondent has no control). The Claimant did not allege, and there was no evidence to suggest, that Mr Harold’s or Mr Steward’s reasons for terminating his employment were because he had made a protected disclosure. Was dismissal for that reason reasonable or unreasonable in all the circumstances?

[54]Having reached that conclusion, I have to decide whether dismissal for that reason was reasonable or unreasonable in all the circumstances. The Respondent has helpfully drawn to my attention a number of authorities which are set out in the Respondent’s written submissions (and in my summary of the law above). I agree that the central question for me to determine – in addition to whether the Respondent followed a fair procedure – is whether the Respondent did everything it could reasonably do to avoid or mitigate any injustice brought about by the stance Case Number: 2302727/2017 12 of the third party (see Henderson). Although every case is fact-specific, this could on the authorities include trying to intervene with the third party, or offering alternative work.

[55]I do consider that the stance SG took in this case resulted in injustice for the Claimant. He was a long-serving employee of the Respondent, who appears to have had a good past disciplinary record. The incidents which resulted in his removal appear to have been relatively minor. However, what I have to consider is not SG’s conduct but the conduct of the Respondent. Considering the evidence in the round, I do take the view that the Respondent did all it reasonably could be expected to do to try to avoid the Claimant losing his employment.

[56]Prior to the Claimant’s removal from site, Mr Harold attempted to intervene with Mr East and to see whether it might be possible to resolve the situation between the Claimant and SG. This was something he had done successfully in other cases, but it did not prove possible in this case because SG had taken an adverse view of the Claimant’s behaviour in the previous meeting.

[57]This was not a case where there was no investigation by the third party: SG carried out its own investigation before deciding to remove the Claimant from site. The Respondent ensured that the Claimant produced and provided a statement to SG. The Claimant did have the opportunity to put his case to SG and defend himself against the allegations, although I make no finding on the fairness of that process.

[58]Once it became clear that the Claimant would not be permitted to return to SG, the Respondent offered him the only alternative employment it had available within a 50 mile radius. This offer was reiterated even after the Claimant had rejected it and the position had been filled by another employee.

[59]Subject to the points on procedure discussed below, I do consider that the Respondent took what steps it reasonably could to try to avoid the Claimant’s dismissal, but unfortunately these were unsuccessful. The authorities referred to above confirm that, even where the dismissal results in injustice (as I find this dismissal probably did), it may still be fair if the employer has taken all reasonable steps.

[60]I move on to consider the procedural points raised by the Claimant in his witness evidence and submissions. The two points on which he ultimately relied were that he was not provided with the allegations made by SG in writing prior to his disciplinary hearing with the Respondent, and that he was given insufficient time to obtain representation for the disciplinary hearing.

[61]Dealing first with the question of written allegations, I accept that the Claimant was not provided with Simon Brophy’s email, which was then read out to him at the hearing, ahead of the hearing itself. However, I do not consider that, in the circumstances of this case, that omission constituted an unfairness or a procedural failing. As Mr Harold has made very clear, the Claimant was not dismissed for the allegations made by Mr Brophy. He was dismissed because he had been removed from the site, and there was no alternative work for him. In such circumstances, the allegations made by SG were irrelevant. SG had done an internal investigation Case Number: 2302727/2017 13 and the Respondent had already attempted to resolve matters locally, which had failed. Mr Harold was not there to consider the Claimant’s response to SG’s allegations; he wanted to continue to employ the Claimant, but had no work on which he could be deployed.

[62]Secondly, having reviewed the evidence, I note that the Claimant’s concern about representation, as expressed in the disciplinary meeting was that he was unable to bring anyone with him as he had insufficient time to give notice of who was attending and Mr Harold might have sent them away (p. 139). It does not appear that the Claimant was unable to bring a representative, simply that he was concerned that Mr Harold might not permit that person to appear. The Claimant did not say that his chosen representative was unavailable or ask for an adjournment on that basis. In the circumstances, particularly as there is no suggestion that Mr Harold would in fact have turned any prospective representative away, I do not consider that the relatively late sending of the invite letter (which C had certainly received by 18 June 2017) rendered the dismissal procedurally or otherwise unfair.

[63]For these reasons, I find that C’s dismissal was fair, and his claim for automatic and ordinary unfair dismissal must fail. Protected Disclosures

[64]For completeness, although it is not strictly necessary in view of the conclusions reached above, I set out briefly my conclusions on the alleged protected disclosures. As I understand the Claimant’s case, these are said to have been to Sandy Connors on 26 May 2017, Steve Moran on the same date, Frederick Steward on 31 May 2017, and Mark East (who was employed by SG) on the same date.

[65]Sandy Connors (26 May 2017): from the Claimant’s account, I am not satisfied on the balance of probabilities that the Claimant disclosed to Ms Connors information that he reasonably believed tended to show that a legal obligation had been breached. The precise information recounted is not clear, but from the Claimant’s contemporaneous statement, it appears to have centred around internal processes as to who should be contacted about data, rather than any legal obligation. It is not clear whether the Claimant in fact mentioned the Data Protection Act itself to Ms Connors, but in any event, his account does not suggest that he reasonably believed that what he said had sufficient factual content and specificity to tend to show a breach of that Act. I cannot conclude, on the balance of probabilities, that the requirements of s. 43B(1)(b) are fulfilled in respect of this disclosure.

[66]Steve Moran (26 May 2017): I understand the document relied upon as including the alleged disclosure to Mr Moran to be the email sent on 26 May 2017 at 16:51 (p. 115F). This email says that there should be clarification of the designated person and the correct operating procedure “so that no-one else will have to endure what I did today”. The Claimant says that this would “allow the data protection act be safely and correctly undertaken.” This email was also seen by Mr East. There is no reference to any specific obligation within the Data Protection Act, even in general terms. The Claimant had had training on the DPA 1998, and I do not consider that he can reasonably have believed that this email had sufficient factual Case Number: 2302727/2017 14 content and specificity to tend to show a breach of the Act. Further, its purpose is to request clarification of the correct procedure (rather than assert a breach of obligation). I note also that Mr East responded to this email and explained clearly the process to be followed in future

[67]Frederick Steward (31 May 2017): my only account of the information provided to Frederick Steward is in the Claimant’s witness statement as set out above. I do not have sufficient information there to determine whether or not the Claimant reasonably believed that what he said tended to show that a legal obligation was being breached. The passage does not refer to any specific obligation, rather to an (unidentified) CCTV protocol and unspecified “data protection”. I cannot conclude on the balance of probabilities that the Claimant disclosed information that he reasonably believed tended to show a breach of a legal obligation.

[68]Mark East (31 May 2017): my account of the information provided to Mr East is gleaned from the email to Mr Moran (see above) and the Claimant’s witness statement. Based on these sources, in this conversation, the Claimant did provide some further information in addition to that contained in the earlier discussions. He showed Mr East a document (p. 160) from the ICO website which states that a CCTV operator “must” make sure someone in the organisation has responsibility for the CCTV images, deciding what is recorded, how images should be used and who they should be disclosed to. It also says CCTV operators must have clear procedures on how to use the system and when to disclose information. There was then a discussion in which the Claimant asserted these rules did apply to the Respondent. I conclude, on the balance of probabilities, that:68.1 this did amount to a disclosure of information which in the reasonable belief of the Claimant (based on his understanding of the information on the ICO website) tended to show that SG had failed or was likely to fail to comply with a legal obligation; and

68.2 the Claimant did have a reasonable belief that the disclosure was made in the public interest, because, as he explained in submissions, he believed that there could be unauthorised viewing of members of the public if these obligations were not complied with.

[69]However, for the reasons I have already given, I find that the Respondent did not dismiss the Claimant because he had made any protected disclosure(s). He was dismissed because SG had barred him from their sites, and after taking such steps as were reasonable to mitigate any injustice to the Claimant, and after offering him the only alternative work available, which the Claimant was (reasonably) not willing to do as it involved working nights, the Respondent had no alternative but to dismiss him for some other substantial reason. The dismissal was therefore fair. Employment Judge A. Beale Date: 21 October 2021 Case Number: 2302727/2017 15 Case Number: 2302727/2017 THE EMPLOYMENT TRIBUNAL Claimant: Mr R. Neale Respondent: Hyline Security (UK) Ltd Heard at: London South Employment Tribunal On: 5 October 2021 Before: Employment Judge A. Beale Representation Claimant: In person Respondent: Mr T. Sheppard (Counsel)