Mr D Cox v Adecco Group UK and Ireland and others: 2303033/2018
EMPLOYMENT TRIBUNALS
Case No 2303033/2018
Between
Mr D CoxClaimantAdecco Group UK and Ireland and othersRespondent
Before
Employment Judge MartinIn person for claimantDate 15 January 2025
JUDGMENT
[1]The Claimant did not make a protected disclosure[2]The Claims against the first and third Respondent are dismissed, and they are removed as Respondents in the proceedings.
REASONS
Introduction
[1]Written reasons are being provided at the request of the Claimant.[2]This is an application by the Respondents to strike out the Claimant’s claim of whistleblowing on the basis that it has no reasonable prospect of success because the letter relied on of 5 July 2018 is not a qualifying disclosure or alternatively that a deposit order be made on the basis it has little reasonable prospect of success. I have been assisting by all parties, the Respondents having written submissions and the Claimant giving his submissions orally. I have before me a full bundle of documents in excess of 411 pages. All parties had the opportunity to make submissions and any additional points they wanted to make.[3]The relevant law in relation to protected disclosures is s47B(1) ERA 1996 Act, a worker has the right not to be subjected to a detriment by any act “done on the ground that [he or she] has made a protected disclosure”. Disclosures qualifying for protection are defined by s43B, the material provisions being the following: (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following – … (b) that a criminal offence has been committed, is being committed or is likely to be committed[4]Qualifying disclosures are protected where the disclosure is made in circumstances covered by ss43C-43H. These include where the disclosure is made to the employer (s43C) or to a prescribed person (s43F).[5]I was referred to the following case law:5.1 Cavendish Munro Professional Risks Management Ltd-v-Geduld [2010] ICR 325. Giving judgment, Slade J stressed that the protection extends to disclosures of information, but not to mere allegations. Disclosing information means conveying facts.5.2 Korashi v Abertawe Bor Morgannwg University Local Health Board UKEAT/0424/09, which held that the workers belief must be objectively reasonable. Look at what the worker knew or what he ought reasonably to have known.5.3 Kraus v Penna Plc [2004] IRLR 260, which held that the worker must reasonably believe that the information disclosed tends to show that a criminal offence has been committed, is being committed or is likely to be committed. Likely meaning more probable than not.5.4 Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979 which held that the statutory test of the reasonable view of public interest is to be applied as a matter of educated impression.5.5 Parsons v Airplus International Ltd UKEAT/0111/17– which held that there is no protection to a disclosure where the worker acted as they did solely in their own self-interest.5.6 Simpson v Cantor Fitzgerald Europe UKEAT/0016/18, which held that in assessing whether a disclosure is protected there is no requirement to aggregate the disclosures, this is a matter for the Tribunal, and disclosures that are assumptions or speculative do not attract the protection of the legislation.[6]The disclosure relied on by the Clamant is his letter dated 5 July 2018 made to Adecco. In summary the allegations of criminality that the Claimant says the disclosure tends to show are that:a. London Borough of Croydon puts unqualified agency workers into positions of trust ie EHCP Co-Ordinatorsb. That they were billed out at a higher rate than the position demandsc. That they skimmed the money for their own benefit. In essence, the Clamant is alleging that there is a fraudulent conspiracy going on.[7]After hearing the Respondent’s applications, I spent time with the Claimant so that the Claimant could identify precisely what parts of the disclosure he relies on as being information and how this tended to show criminality and how it was in the public interest. The burden is on the Claimant to show that the disclosure was a protected disclosure. I wanted to be sure that the parts of this letter where he said information was clear to me. I first considered each individual matter I was taken to in isolation and then considered the letter in its totality.[8]The first matter (p195) relates to rates of pay. There is information about what rates of pay were but nothing here that indicates any form of criminality.[9]The second disclosure (p195) relates to what Adecco were paying Giant. He simply states this and states that he got a remittance advice from Adecco but there is no further narrative. This in isolation does not tend to show any criminality.[10]The third matter I was taken to, was in relation to ‘DATA PROTECTION BREACH’ (GDPR)’. Here the Claimant says he raised concerns about how people could have information about his pay. And says that it must be a breach of his data but does not give any further information.[11]The next matter I was taken to is where the Claimant says information was disclosed (page 198A). This relates to information given to the Claimant and did not comprise information he gave so this is discounted. The third paragraph says he raised concerns that Lynn, who had known about his role for the past 6 months, would suddenly want to know about his job title. This is not the disclosure of information but a concern and certainly nothing that suggests criminality.[12]Later on (p198A) the Claimant relies on a paragraph which says “I asked Joey about overpayment and how this could be possible and this appears to me to be in fact an underpayment due to the contract etc”. This is not supplying information and is just an assumption made by the Claimant. Again, it is not suggestive of criminality.[13]I was taken to several parts of p198B by the Claimant. The first is the fourth paragraph down. Here information is given about the Claimant’s day rate with Giant and what his time sheet says, with reference to his belief there was an underpayment. The rest of the paragraph refers to matters other people said to him so is not a disclosure of information by the Claimant and in any event, there is nothing here that is suggestive of any criminality.[14]Paragraph 6 on page 198B is relied on by the Claimant as conveying information of a fraud. There is no information in this paragraph to say who the Claimant says is committing the fraud or what the fraud is. This is an allegation without the necessary information being given.[15]Under the heading ‘underpayment’ on p198A, the Claimant submitted this gives specific information as he said that “in his reasonable belief something was not right and this amount was missing”. This paragraph relates to his claim that he is owed in excess of £24,000 which he says ‘someone from Adecco’ has taken from him’. There is no information about how this sum has been calculated, or that money was in fact taken from him. This is an allegation only that ‘something is not right’. Even if it was information, something not being right is a long way from saying that a criminal offence has occurred.[16]Page 198C has three parts which the Claimant relies on. The first is the heading “Breach of contract – fraud” – this is simply a heading and does not convey any information. He says “this is a clear breach of contract as my original contract was due to end on 30th July”. This does not suggest any criminality; it suggest a breach of contract which is a civil matter.[17]His summary on p198B is also relied on as conveying information. He referred to the first paragraph of his summary “I suspect there is some sort of financial irregularity going on”. A financial irregularity does not mean criminality and there is no information of the nature of the alleged irregularity. He goes on to say that “People are covering a job they are not qualified for, in a position of trust to vulnerable service users”. In his submissions the Clamant explained he was referring to another person called Mr J1 who was not qualified. He may well have been, however this information is not in the letter and it was not possible to identify who the Claimant was talking about. This is an unsupported allegation which the legislation does not give protection to.[18]Finally, the Claimant relies on his final paragraph of this letter. “I would like a response to my complaint and the salient point outlined as soon as possible, as I am intending to take this to the CEO of Croydon Council, …. As I believe with the evidence I have that someone within Adecco has been fraudulently claiming this sum of money from me and my data has been leaked to a third party without my consent”. Here the Claimant has cited two matters both of which are personal to him. First that money is being claimed from him (hence him wanting payment of over £24k) and second that his data protection rights have been compromised. This is not in the public interest as the concern raised only relates to him. Additionally, he is making assumptions and speculating but not providing information that tends to show a criminal offence has been committed.[19]Having considered the parts on an individual basis, I stood back and considered the letter as a whole. My role is to establish whether the Claimant has a reasonable prospect of showing that this letter is a qualifying disclosure warranting the protection of the legislation. There is no other information that a full tribunal would have. The letter speaks for itself. The Claimant has had the opportunity to explain his position and the Respondents have provided me with full submissions. I find that there is no reasonable prospect of the Claimant showing that his letter of 5 July 2018 is a qualifying disclosure. My educated impression of this letter is that it is self-serving and does not disclose matters that are in the public interest. I 1 Mr J’s full name has not been given as this judgment will appear on the public register consider that there is no reasonable prospect of the Claimant convincing a tribunal otherwise at a full hearing. There is no further information that is relevant.[20]I have also considered whether the claimant made his disclosure to a relevant person. This is provided for in s43c. This provides that a disclosure must be made to the workers employer (at the time of this disclosure the Claimant was employed by the second Respondent and the disclosure was made to employees of the first Respondent) or to the person with legal responsibility for the matters. The Claimant alleges all three Respondents have legal responsibility. There is little reasonable prospect of the Claimant showing he made the disclosure to a relevant person as defined by the Act. The Claimant’s claims of whistleblowing are therefore struck out as having no reasonable prospect of success.[21]This disposes of all matters in relation, to the third Respondent and the third Respondent is discharged from these proceedings.[22]The Claimant claims for wrongful dismissal and holiday pay will be considered separately.[1]This case comes before me following a reasonably lengthy procedural history including consideration by the Employment Appeal Tribunal. The parties provided me with the following materials:1.1 a hearing bundle with 349 electronic pages;1.2 a supplemental bundle with 80 electronic pages;1.3 a bundle of authorities;1.4 a case report provided by the Claimant – Coleman v Sytner Group Limited (which I am told is also contained within the bundle of authorities);1.5 a skeleton argument from Mr Hayes, on behalf of the First Respondent.[2]At this preliminary hearing, the Claimant has been represented by Mr Devlin of Counsel and the First, Second and Third Respondents by Mr Hayes, Mr Green (with Mr Wilson in attendance on 1 July 2022) and Mr Phelps respectively. I am grateful to them for their assistance.
Factual Background
[3]By way of background, the Claimant’s claim form was received by the Tribunal on 14 August 2018. On 18 February 2019 a Preliminary Hearing was held with Employment Judge Downs. At that hearing a further Preliminary Hearing was listed to determine applications for strike out and a deposit order. In the Tribunal Order following that first Preliminary Hearing, the Claimant’s complaints were set out in general and broad terms [EP 121].[4]Directions given by EJ Downs included that the Claimant provide further particulars of his claims. It was also understood that the Claimant wished to make an application to amend his claim [see further paragraph A4 [EP122]]. The direction given was as follows, ‘The Claimant shall serve on all the respondents and file with the Tribunal his application to amend his claim on or before 4.30pm on 11 March 2019.’ [EP 123][5]The Claimant produced a Further and Better particulars of claim [EP125] and a Scott Schedule [EP160]. The Claimant also produced a Particulars of Claim (Amended) [EP170].[6]Consequently the Second and Third Respondents produced an Amended Grounds of Resistance [EP182, 187].[7]It was recognised by the Tribunal that the Claimant’s application to amend required determination. A letter confirmed that it would be considered by the Tribunal at the second Preliminary Hearing [EP195].[8]In the event, the second Preliminary Hearing took place on 12 July 2019 before Employment Judge Martin. The Judgment at that Preliminary Hearing was that the Claimant did not make a protected disclosure and the claims against the First and Third Respondents were dismissed. Accordingly only the claims for wrongful dismissal and holiday pay proceeded against the Second Respondent.[9]The Claimant appealed this outcome to the Employment Appeal Tribunal. On 9 April 2021 a Judgment was produced by the Employment Appeal Tribunal and His Honour Judge Tayler. The Claimant’s appeal was allowed and the matter was remitted for case management and determination by a differently constituted Employment Tribunal. In his Judgment, HHJ Tayler emphasised the need to take reasonable steps to identify the claims and the issues in the claims beyond requiring the Claimant, a litigant in person, to say what the claims and issues are.[10]At paragraph 79 of the EAT Judgment, HHJ Tayler stated as follows: ‘It is important that care is taken to analyse the pleadings to gain a fair understanding of the claim that the claimant is seeking to advance. This may require consideration of amendment (subject to the usual rules).’ The Judge went on to observe that there might be prior disclosures when the case is properly analysed.[11]Following this, Counsel drafted the Claimant’s application to amend his claim. This application is dated 12 August 2021 [EP221]. The Application included proposed amended grounds [EP 227].[12]In October 2021 the First Respondent applied for a deposit order [EP 241].[13]On 27 October 2021 a further Preliminary Hearing was held. The Claimant’s claim of automatic unfair dismissal under section 103A of the ERA 1996 was dismissed upon withdrawal. Employment Judge Pritchard also gave case management directions both for a further preliminary hearing and for preparation of the case for a full merits hearing which, subsequently, has been listed for 3 – 10 October 2022 [EP 347]. In particular, it was noted that the Claimant’s application to add further allegations of detriment was to be considered at the next preliminary hearing.[14]It is against this procedural context that I now have the case before me. At the start of the hearing it was agreed by the parties that the matters which continue to require consideration are as follows:14.1 The Claimant’s application to amend his claim;14.2 The First Respondent’s application for a deposit order;14.3 General case management – this is to include a consideration of the List of Issues which is still in draft form. The First Respondent has raised queries with issues 10 and 20.[15]During discussion with the parties the following factual matter was clarified – namely, that the Claimant says that he was locked out of the portal on 4 July 2018 but that he was informed by email about this at 8.50am on 5 July 2018. It was agreed by all parties that it was important for this matter to be recorded at this hearing and that the relevance and importance of this is an issue to be properly considered further at the full merits hearing in October 2022. Legal Summary[16]Employment Tribunals have a general discretion to grant leave to amend a claim (see Rule 29 of the ETs (Constitution & Rules of Procedure) Regulations 2013, Sch 1. Presidential Guidance is also provided on making amendments to a claim in the Presidential Guide – General Case Management document.[17]In summary, allowing an application is an exercise of a judicial discretion. When an application to amend is made, the Tribunal should have regard to the extent of the amendment sought. Minor amendments, such as a correction of a typographical error or a date, may cause no difficulties. More substantial amendments can cause problems. Regard must be had to all the circumstances, in particular any injustice or hardship which would result from the amendment or a refusal to make it.[18]The Tribunal must carry out a careful balancing exercise of all of the relevant factors, having regard to the interests of justice and the relative hardship that will be caused to the parties by granting or refusing the amendment. Relevant matters include the nature of the amendment sought, the applicability of time limits and the timing and manner of the application. These were the relevant circumstances identified by Mummery J in Selkent Bus Co Ltd v Moore [1996] IRLR 661 on a non-exhaustive basis. Later judicial comment has identified that Mummery J’s guidance in Selkent was not intended to be a box ticking exercise but was simply a discussion of the kinds of factors likely to be relevant when carrying out the balancing process required (for example, see Abercrombie v Aga Rangemaster Limited [2013] EWCA Civ 1148 and the judgment of HHJ Tayler in Vaughan v Modality Partnership [2021] IRLR 97).[19]If a new complaint or cause of action is intended by way of amendment, the Tribunal must consider whether that complaint is out of time and, if so, whether the time limit should be extended under the appropriate statutory provision (i.e. reasonable practicability or on the just and equitable ground). A party will need to show why the application was not made earlier and why it is being made at that time. An example which may justify a late application is the discovery of new facts or information from the disclosure of documents.[20]The Tribunal notes that the just and equitable test enables a far wider range of factors to be taken into account than the reasonably practicable formulation, which is focused on whether it was feasible for the claimant to have presented his claim in time. In practice, there is unlikely to be any material difference in the application of the 'just and equitable' test and the 'balance of justice and hardship' test - if an amendment were refused under the former test, it is difficult to envisage what additional matters might cause it to be granted under the latter (see Ali v Office of National Statistics [2004] EWCA Civ 1363). Where the not reasonably practicable test applies, it was noted by Underhill J in Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07 (6 June 2007, unreported) that, 'an employment tribunal has a discretion in any case to allow an amendment which introduces a new claim out of time'. As the judge was wrong not to have considered the balance of hardship and injustice test, Underhill J proceeded to apply it himself. The main factors that he took into account in permitting the amendment were that the new claim was very closely related to the original one and all or most of the facts necessary to prove it were already before the tribunal; that the new claim, which was omitted from the original pleadings by the mistake of the claimant's lawyers, would not have come as a surprise to the respondents; and that the application to amend was made reasonably promptly. In the circumstances, his Lordship held that there would be a greater injustice to the claimant if the amendment were refused than to the respondents if it were allowed.[21]The Tribunal identifies amendments as follows:(i) amendments which are merely alter the basis of an existing claim without raising a new distinct head of complaint;(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim; and(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.[22]In deciding whether the proposed amendment is within the scope of an existing claim or whether it constitutes an entirely new claim, the entirety of the claim form must be considered. If the claim form includes facts from which such a claim can be identified, the Tribunal as a rule adopts a flexible approach and grants amendments that only change the nature of the remedy claimed. While there may be a flexibility of approach to applications to re-label facts already set out, there are limits. Claimants must set out the specific acts complained of, as Tribunals are only able to adjudicate on specific complaints. A general complaint in the claim form will not suffice. Further, an employer is entitled to know the claim it has to meet.[23]In Abercrombie v Aga Rangemaster Ltd [2013] EWCA Civ 1148 Underhill LJ summarised the approach adopted by the EAT and Court of Appeal when considering applications to amend 'which arguably raise new causes of action' This is: '' … to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.''[24]It is only in respect of amendments falling into category (iii) - entirely new claims unconnected with the original claim as pleaded - that the time limits will require to be considered. The fact that the relevant time limit for presenting the new claim has expired will not exclude the discretion to allow the amendment.[25]The Tribunal is able to make a deposit order pursuant to Rule 39 of the ETs (Constitution & Rules of Procedure) Regs 2013, Sch 1. Where a tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may order the party putting forward the allegation or argument ('the paying party') to pay a deposit of an amount not exceeding £1000 as a condition of continuing to advance the allegation or argument. If the paying party fails to pay the deposit by the date specified, the specific allegation or argument to which the order relates will be struck out.[26]If the tribunal ultimately decides the specific allegation or argument against the paying party for substantially the same reasons given in the order, the paying party will forfeit the deposit, which will be paid to the other party.[27]In Hemdan v Ishmail [2017] IRLR 228, Simler J pointed out that the purpose of a deposit order 'is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails', and he stated that the purpose 'is emphatically not … to make it difficult to access justice or to effect a strike out through the back door'.[28]When determining whether to make a deposit order, a tribunal may have regard to the likelihood of the party being able to establish the facts essential to his case. There must be a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response and it is important that the tribunal engages with, and understands, the basis of the claimant's claim before concluding that it has little reasonable prospect of success (Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14 (17 September 2014, unreported), at [75]; Tree v South East Coastal Ambulance Service NHS Foundation Trust UKEAT/0043/17 (4 July 2017, unreported)). Whether there is little reasonable prospect of success under Rule 39 is a summary assessment by the Tribunal intended to avoid cost and delay. It should not involve a mini-trial of the facts, as this would defeat the object of the exercise. The Claimant’s Application to Amend[29]The Claimant’s application to amend sought to significantly broaden the claim from that understood or acknowledged to date. In particular the Claimant identified nine further disclosures he sought to rely upon and a number of further detriments. Each of the amendments sought required careful consideration as there were differing factors relevant to each. In considering the application I heard oral submissions from Counsel on behalf of each of the parties and applied the relevant legal principles as set out in the summary.[30]I shall first consider the application to amend to add nine further alleged disclosures, taking each proposed amendment in turn: (1) An oral disclosure to Ms Sheryl Brand-Grant of R3 on or around 18 or 19 June 2018[31]In the Claimant’s ET1, there is reference to this conversation at paragraphs 47 – 52. The narrative within the ET1 is reasonably detailed and the description of a conversation with Ms Brand-Grand is also referred to in the context of a complaint being received from Ms Goldklang. This is material because it is this type of context that enables parties to understand the case and, in particular, for a respondent to understand the case they have to meet. I acknowledge that not only is there a reasonably detailed description of the relevant factual narrative but that this was set out when the Claimant first brought his claim. Further the Third Respondent acknowledges that the material included in the ET1 does set out the factual basis for the[32]This is an example of a relabelling of existing facts pleaded in the case. Taking into account the entirety of the relevant circumstances including the nature of the amendment sought and the timing and manner of the application and carrying out the exercise of balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it, I allow this amendment. (2) An oral disclosure to Ms Sabrina Joseph of R2 on or around 25 June 2018[33]It is said by the Claimant that the relevant facts for this amendment are also already to be found in the relevant documents. I am referred to paragraph 53 of the ET1. That paragraph begins with the sentence, ‘I had called both Adecco and Giant …..’. The paragraph continues with a description of the conversation with Ms Hyde.[34]There is no reference to a conversation with Ms Joseph either in the ET1, the Further and Better information or the Scott Schedule. Nor is Ms Joseph’s name mentioned in the August 2021 application. The relevant paragraph in that document refers only to the ‘Second Respondent’.[35]It appears that Ms Joseph’s name first appears within the draft List of Issues. In this way, the amendment sought is not simply a relabelling exercise. Rather, the Claimant is seeking to amend by introducing a new allegation for the first time today that he had a conversation with Ms Joseph.[36]In carrying out the relevant balancing exercise, I have been particularly concerned by the fact that not only is there no reference to Ms Joseph’s name in any earlier document but there is also no description of what was said by the Claimant to Ms Joseph. This lack of necessary particulars weighs heavily in my decision that this amendment should not be allowed. That there is no account with any particulars of what was said together with the other factors of the passing of time and that this is alleged to have been an undocumented, oral exchange between individuals leads me to conclude that the amendment should not be allowed. There is real evidential prejudice caused to those who would need to respond to this allegation. This amendment is refused. (3) An oral disclosure to Ms Emma Hyde of R1 on or around 25 June (4) A written disclosure in a email to Ms Hyde of R1 on or around 25 June 2018[37]The next two amendments sought can be considered together. They refer to an oral conversation said to have taken place between the Claimant and Ms Hyde and an email that is said to have been sent following this and to which a response was received by the Claimant on 28 June 2018.[38]There is reference both to the telephone call and the email dialogue in the ET1 at paragraphs 53 and 54.[39]I am satisfied that both these amendments should be allowed. It is in the interests of justice to allow them and the balancing exercise of all relevant factors favours the amendments being permitted. There is clear reference to the relevant factual matters within the original ET1 and this is a case of relabelling those pleaded facts as amounting to a (5) An oral disclosure to Ms Alison Farmer of R3 during a meeting on 2 July 2018[40]It is accepted by Counsel for the Claimant that there is no reference to this alleged conversation within the pleadings themselves. The reference comes from the letter of 5 July 2018 which, in turn, refers to a conversation with Ms Farmer.[41]Accordingly I am satisfied that this amendment cannot be categorised as a relabelling exercise. Rather, the Claimant is seeking to introduce new facts in order to allege that he made a further disclosure to Ms Farmer.[42]I have considered the entirety of the circumstances relevant to this part of the Claimant’s application. In particular, I am referred to the timing of the application. Ms Farmer is no longer employed by the Third Respondent. Mr Phelps submits that there is real prejudice to the Third Respondent in respect of this proposed amendment as no enquiry would have been made about this matter at the time of service and receipt of the ET1 because it wasn’t included there. Although it is the Claimant’s case that there is a clear reference in the letter of 5 July 2018, the Respondents were not put on notice of this conversation including an alleged disclosure until the August 2021. I do accept the submissions made about evidential prejudice and the likely loss or diminution in quality of cogent evidence for the Respondents. In the circumstances, I am satisfied that this factor supports the relative hardship to the Respondents is greater in allowing this part of the application when compared with the hardship to the Claimant in refusing it.[43]I am satisfied that this amendment should not be allowed. (6) An oral disclosure to Ms Brand-Grant of R3 on 2 July 2018[44]The relevant narrative to this amendment is found in the Further and Better information document. At paragraph 37 it is said, “On Monday 2nd July 2018, after meeting Ms. Farmer, C then had a brief meeting again with Ms. Brand-Grant, it was here that Ms. Brand-Grant had told C to get rid of emails and that he was ‘ignorant’. C clearly stated that he would not get rid of emails as he was suspicious that something was not right. Ms. Brand-Grant stormed off and said she would speak to Ms. Pasby to reassure C that Ms. Goldklang did not leak his data to the SEN department.”[45]The Claimant’s disclosure is identified as being the Claimant saying he would not get rid of emails, as he was suspicious that something was not right.[46]Of course, this sentence is capable of two interpretations. Firstly, that all the Claimant said was that he would not get rid of emails or that he said he would not get rid of emails because he was suspicious that something was not right. In other words, the second part of the sentence could be something the Claimant actually said or it could be a narrative phrase to explain why the Claimant said the first part of the sentence.[47]In considering this proposed amendment, I was not satisfied that the information particularised could be said to amount to a disclosure for the purposes of section 43B of the Employment Rights Act 1996. I accept the submissions made, that the necessary elements of a qualifying and protected disclosure are not present in the paragraph quoted above. I have also taken into account that this is said to have been an oral conversation without written record.[48]Carrying out the balancing exercise, I am satisfied that this proposed amendment should not be allowed. (7) An oral disclosure to Ms Brand Grant of R3, Mr Thompson of R3 and / or Ms Pasby of R1 during a meeting on 2 July 2018[49]There is reference to this meeting in paragraphs 56 – 63 of the ET1. However within those paragraphs, there is no reference to any disclosures made by the Claimant. At its highest, the Claimant says that he asked what the First Respondent’s policy was (see paragraph 61 of ET1). However having considered the paragraphs in detail, I do not consider that there is anything contained in them that can be said to amount to a disclosure made by the Claimant at that meeting, that falls within Section 43B.[50]Within the draft List of Issues, it is said that the Claimant communicated that this personal data was leaked to colleagues by Ms GoldKlang.[51]This is not referenced within the description of the meeting already pleaded nor is it particularised appropriately in any proposed pleading.[52]Having carried out the balancing exercise and noting the passage of time and the failure to appropriately particularise this proposed amendment, I do not allow this amendment. (8) An oral disclosure to Ms Wright of R3, Mr Thompson of R3 and / or Mr Casartelli of R1 in a meeting on 3 July 2018[53]This meeting is described in paragraphs 64 - 74 of the ET1 [63-64]. The matters that are said to have been disclosed by the Claimant are set out in paragraphs8.1.1 and8.1.2 of the draft List of Issues. However there is no reference to this information being disclosed by the Claimant within the description of the meeting in the paragraphs of the ET1 to which I have just referred.[54]Accordingly like the previous amendment, this is an example of the Claimant seeking to introduce entirely new facts to his claim in order to assert that he made a further disclosure.[55]Having heard submissions from Counsel on this part of the application, there does not appear to be any explanation for the delay in introducing these entirely new facts and, in particular, why they do not appear within an otherwise reasonably detailed description of the relevant meeting within the original pleading. The relevant Respondents object to what they view as a delay in introducing this alleged disclosure and the affect this, in turn, will have on obtaining evidence on this point.[56]I do accept the likelihood of prejudice on the part of the Respondents caused by an original description of this meeting being expanded to include alleged oral disclosures. In the circumstances I am satisfied that the hardship caused to the Respondents in allowing this amendment outweighs the hardship to the Claimant in my refusing it. Accordingly this amendment is not allowed. (9) An oral disclosure to Ms Ruiz of R1 during telephone conversation on 4 July 2018[57]This is referenced in the Further and Better Particulars [125]. I note that the following is stated, ‘C first raised his concerns to R1 on 4th July 2018 via telephone to Ms Paula Ruiz (HR Adviser). Ms Ruiz had told C before she can investigation, C was to put his concerns in writing.’[58]It is clear that the Claimant then proceeded to write his letter dated 5 July 2018, the contents of which are already noted by the parties.[59]The references to this matter within the Further and Better Particulars are clear. Whilst it was an oral conversation, the fact that it happened is apparently supported by the Claimant following the instruction to send a letter which he did the following day.[60]I am satisfied that this amendment should be allowed. The context to the alleged oral disclosure is clear and the balancing exercise favours this allegation forming part of the Claimant’s case to be considered at the full merits hearing.[61]I now progress to considering the proposed amendments concerning alleged detriments. I note that the Third Respondent takes no issue with the alleged detriments set out in paragraph 33(i) – (v) of the August 2021 application.[62]The First Respondent takes particular issue with paragraph 33 (v) and it is accepted by the Claimant that this is entirely new. In other words, it has not been referenced in the early documents produced in this case.[63]I have considered carefully whether this amendment should be allowed. I have decided that it should be allowed. I have taken into account the entirety of the relevant circumstances and the fact that the amendments concerning disclosures and Emma Hyde have been allowed in this application. I also therefore consider it to be appropriately consistent to allow this alleged detriment which is said to be a reference within an email. I hasten to note that I understand that there will of course be full argument in October 2022 at the full merits hearing as to whether this can amount to a detriment and my allowing the amendment is in no way a signal to the Claimant that he has a good case in so far as this issue is concerned.[64]The Second Respondent raises issues with the parts of these paragraphs that relate to them. There are three alleged detriments raised against the Second Respondent. These are locking the Claimant out of the online system and terminating two assignments.[65]Other than a reference to being locked out within the Scott Schedule, these detriments have not been particularised until the August 2021 application.[66]Mr Devlin referred to the argument that if information had been included within the ET1 and / or the Further and Betters, that would tend to indicate that the amendment should be allowed. As noted, these proposed amendments were not so included. I have heard Mr Green’s arguments about the prejudice to the Second Respondent if these amendments are permitted and the difficulty faced with uncovering the relevant evidence at this stage. I also note the argument that some of this delay is to be put at the Claimant’s door particularly following the EAT Judgment in 2021 and the time that then passed prior to the August 2021 application being produced.[67]The relevance of these proposed amendments will obviously require further consideration following my judgment on the first part of this application but insofar as they continue to be relevant, I am satisfied that the references to actions of the Second Respondent cancelling the assignment on its online system should not be allowed as amendments to the list of alleged detriments.[68]Again, insofar as it remains relevant, I am satisfied that the reference to the Second Respondent locking the Claimant’s access to the online system on 4 July 2018 should be permitted as an amendment.[69]This was referenced in the Scott Schedule and, although I am mindful of the fact that this was a minimal reference, I also note that the factual context of the Claimant being locked out of the system appears to be documented with an email being sent to him the following day. In my judgment, the balance of prejudice and hardship test on this point therefore favours the Claimant and this amendment being allowed.[70]In summary, the references to actions of the Second Respondent cancelling the assignment on its online system should not be allowed as amendments to the alleged detriments as set out in paragraphs 33(i) – (v) of the August 2021 application. Save for that matter, the alleged detriments set out in those paragraphs are allowed by way of amendment.[71]Turning to paragraph 34, paragraphs (vi) – (xi), these matters are contained in the detailed paragraphs within the Further and Better Information from March 2019. They are presented under a heading ‘Post Dismissal Detriment’.[72]I have carefully considered Mr Phelp’s submissions about the status of the Further and Better Information. As Mr Phelp’s submits, that document has not been ruled on and there was no guarantee in March 2019 that the Claimant would have those matters added to his case by way of amendment. I have also taken into account his points about Ms Degnman no longer being employed by the Third Respondent and general difficulties with witnesses remembering relevant things at this stage.[73]However, on balance, I am satisfied that those alleged detriments should be allowed in by way of amendment. Again, this should not be taken as any indication of the strength of argument that any of the identified matters actually amount to a detriment. Rather, and for the purposes of this application, I am satisfied that taking account of the balance of prejudice and the hardship test, that those matters should be permitted as amendments. In particular I note that the alleged detriments come from an examination of documentary material provided to the Claimant following a data subject access request. In this way, the comments referred to are a matter of documentary record and not alleged oral exchanges. They were also identified by the Claimant at an early stage in this litigation. I allow those amendments. The Draft List of Issues[74]An issue arises concerning paragraph 10 of the draft List of Issues. This refers to the 5 July 2018 letter as a disclosure to R1. It is said, principally by R1, that the information set out in the draft List of Issues at this section requires a successful application to amend if it is to remain within the list for the Tribunal’s consideration at the full merits hearing in October.[75]In essence, the Claimant relies upon four paragraphs contained in the letter of 5 July as amounting to disclosures of information and then, at paragraphs 10.2.1, 2 and 3, refers to relevant sections of Section 43B of the ERA 1996.[76]Having heard submissions from Counsel for each of the parties, I have reached the view that there was relevant narrative included by the Claimant in the ET1 but that it was not presented at that time as a Public Interest Disclosure claim with the legal labels that the Tribunal has to apply. Accordingly the Respondents were aware of the points being raised by the Claimant as to alleged leaking of his personal data and references to unqualified staff but, as Mr Hayes put it, it wasn’t expressly ‘packaged’ as disclosures and a PIDA claim. I consider it could have been capable of that interpretation but also it was entirely capable of other interpretations – for example, the data breaches were thought to be a freestanding complaint over which the Tribunal did not have jurisdiction. It was also understandable that the parties may not have embraced the narrative as amounting to a public interest disclosure claim when, in the early stages of this litigation, there was a greater emphasis by the Claimant as to criminal allegations and fraud.[77]It is in this context, that I do find that an application has to be brought by the Claimant to amend the claim. The amendment sought is essentially a relabelling of the pertinent narrative of data leaks and unqualified staff into a PIDA claim. Mr Devlin has referred to a fleshing out of these claims in the further and better information and the August 2021 application. He also refers to their being a minimal prejudice to the Respondents due to the fact that these issues always formed part of the case presented by the Claimant to the Tribunal.[78]Mr Hayes tells me that the application is for an alternative cause of action for facts already pleaded. He refers me to points on time limits and the balance of prejudice. The prejudice he alights upon is that the Claimant’s allegation is inherently contradictory. In one way, the Claimant says that there was an intrusion into his privacy by the leak of data as to payment of a particular daily wage – however, he says that it was clear that the Claimant was never paid that daily wage. In other words, there is a suggestion that because the information which apparently became known by others was incorrect, this may inform the position as to whether there can truly be said to be a leak of personal data.[79]Mr Hayes also refers to prejudice caused by the vagueness of the alleged disclosure concerning unqualified staff. He takes me to the relevant section of the letter of 5 July 2018 and identifies that there is no specific qualifications referred to and he submits that the statement made is a bare allegation rather than the detail required for a disclosure of information.[80]This is a matter picked up upon by Mr Wilson, although the Second Respondent does not strictly have an interest in this application, it no longer being a party to the PIDA claim. Mr Wilson refers to the need for a specific qualification to be identified by the Claimant as it can’t be said that the need for any particular qualification is a given or a matter upon which judicial notice can be taken.[81]Mr Phelps on behalf of the Third Respondent refers to the fact that it is said for the first time today that somehow R3 is involved in the alleged disclosure at paragraph 10 because R3 came to know of the letter from the Claimant via R1.[82]He has taken me to relevant documents within the bundle where it is clear that R3 has repeatedly stated its case that after the letter of 5 July 2018 was sent to R1, R3 was told about it but R3 was not shown the letter nor aware of the detail of its contents.[83]Following my consideration of this matter, I am sympathetic to the submissions from Mr Phelps. I am entirely satisfied that it has not been made clear before today that it was part of the Claimant’s case that R3 had knowledge of the disclosure set out in paragraph 10 of the draft List of Issues. It was headed a disclosure to R1 and there was no further narrative to suggest that any other Respondent was being referred to as having knowledge of that disclosure.[84]For the record, I note that that observation is no criticism of Mr Devlin’s presentation of the case today. He is representing the Claimant in a full, robust and entirely professional way, as I would expect of Counsel.[85]However, taking account of the stages through which this case has passed, I am satisfied that the very late mention of R3 being said to be involved with the alleged disclosures in the letter of 5 July 2018 is prejudicial to R3. As I have commented, there was no proper and clear suggestion that this was the case before today. I entirely accept the points made by Mr Phelps as to prejudice and I am satisfied that that prejudice results in the balancing exercise favouring the amendment not being permitted. I do not allow the claim to be amended to include an assertion that R3 had knowledge of the disclosures within the letter of 5 July 2018, such that any alleged detriments from R3 have flowed or been caused by those alleged disclosures.[86]Turning to the first part of the application, I do allow the amendment of the claim and therefore for the issues at paragraph 10 of the draft List of Issues to proceed to a full merits hearing.[87]I do not find that the prejudice identified by Mr Hayes, of a weak or inconsistent case on the part of the Claimant, to be such that it outweighs the prejudice caused to the Claimant if the amendments are not allowed.[88]I observe that there are apparent weaknesses to the Claimant’s case – the issue of what qualification and the question of what amounts to a disclosure - but I am not satisfied that the weaknesses are such that the matter should not proceed to a full merits hearing or that those weaknesses tip the balancing exercise in favour of refusing the amendment.[89]Accordingly I will allow the amendments in so far as paragraph 10 of the draft List of Issues is concerned. Application for a Deposit Order[90]The First Respondent makes an application for a deposit order pursuant to Rule 39. Rule 39 states that where the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success it may make an order requiring a party to pay a deposit.[91]The first argument that Mr Hayes puts forward is in relation to issue 15 within the draft List of Issues – was the Claimant co-employed by the First Respondent in addition to being employed by the Second Respondent?[92]Mr Hayes details multiple arguments that he identifies show the inherent weakness in the Claimant’s case that he was co-employed. These include that co-employment is a reasonably rare scenario and his assertion that the Claimant specifically elected to be employed by the Second Respondent and to not be employed by the First Respondent. He also refers me to relevant case law, which I have considered. It is agreed that the pertinent legal issue is whether there is necessity to imply a contract of employment. Mr Hayes refers me to payslips and identifies other clear arrangements he says were in place, in submitting that there is no need to imply a second contract of employment when there is no obligation on the First Respondent to pay the Claimant and the Claimant asked for his contract with the First Respondent to end. Mr Hayes has also made a submission that there was no breach if the assignment was brought to an end without notice.[93]In addition Mr Hayes refers me back to the alleged disclosure about unqualified staff – he reiterates his points that this alleged disclosure is wholly speculative absent the identification of any specific individual or any specific qualification when imparting the information.[94]I agree with Mr Hayes that the First Respondent has strong arguments on both of these matters – the need or not to imply a second contract of employment and whether the information imparted amounts to a[95]I am required to apply Rule 39 and, in particular, decide whether I am satisfied that in this regard the claim has little reasonable prospect of success. On the information before me I am satisfied that the Claimant has some arguments on both of the relevant limbs of his case. There is some evidence that, at the relevant time, the First Respondent regarded themselves as the Claimant’s employer. They apparently told him this in a meeting. There is also some evidence in support of the First Respondent carrying out some tasks expected of an employer. In those circumstances, on the brief information and evidence I have before me at this time, and guarding against conducting a mini-trial, I am not satisfied that the Claimant has little reasonable prospect of success on this point such that a deposit order is appropriate. There is a weight of authority the Claimant will need to navigate in order to succeed with this part of the claim and I acknowledge that but I accept Mr Devlin’s point that the detail of the arrangements and the practical exercising of the responsibilities of employer need to be understood in detail.[96]Insofar as the alleged disclosure is concerned, I am not satisfied that it is appropriate for me to make a deposit order in this regard. Again I note that there are weighty arguments against the contention that this amounts to a disclosure but in the circumstances of this case I am not satisfied that a deposit order should be made. The alleged disclosure made in the letter of 5 July 2018 was made in the context of several discussions and meetings which had happened beforehand. I do consider it is important for the Tribunal to have an understanding of this context in full and in my judgment it is not possible to reach a conclusion that the allegation has little reasonable prospect of success without a proper and thorough grasp of this context.[97]Accordingly the First respondent’s application for a deposit order is refused.
The issues
[98]Also on 6 July 2018, Ms Ruiz (R1) emailed the claimant about investigating his complaint and terminating his assignment. Ms Ruiz referred to clause 9.3.1 of the terms and conditions for umbrella suppliers and quoted: “the company shall be entitled to terminate the assignment forthwith without notice or liability at any time when the client requests the personnel to be removed from the assignment or the service is to be ceased.” In fact, this was a clause which was not applicable to the claimant as it was contained in a contract between R1 and R2.[99]The claimant called Ms Ruiz to discuss her email to him. Ms Ruiz then emailed Ms Pasby about her conversation with the claimant. She says that the claimant called on Friday to discuss the email and asked whether that was a clause which was within his contract with R2 or R1. Ms Ruiz told him that his employment was with R”, but the claimant said that he couldn’t find the clause. Detriment 8.6: On or around 6 July 2018, R3 banned C from its site and disabled his ICT and Pass access.[100]On 6 July 2018, Ms Day (R1) called the claimant by telephone to notify him of the termination of the grade 6 assignment. She followed up by email on 8 July 2018 (see below). July 8 2018[101]On 8 July 2018, Ms Day emailed the claimant to follow up her conversation with him on 6 July. She re-stated clause 9.3.1 which had been quoted by Ms Ruiz and which “states that the Company shall be entitled to terminate the Assignment forthwith without notice or liability at any time when the Client requests the Personnel to be removed from the assignment or the services to be ceased for any reason.”. Ms Day continued: “ Please be advised we are terminating your assignment as an EHCP co-ordinator as well as your assignment as a Business Support Officer that was due to start on Monday 9 July. The client have requested that you are not to return to site, and therefore we need to arrange collection of the following: Pass, IT equipment; Paperwork. Please be advised I will be in touch early next week to arrange collection of the above. The claimant responded requesting his P45. He said in cross examination that, at this point, he no longer considered himself to be employed by anyone.[102]At 1917, the claimant emailed Ms Bakpa confirming that both his assignments had been terminated and that he was not to return to the building. He explained that he was extremely disappointed as he and Ms Bakpa had spoken “on Friday and as far as I was aware my current role had been extended until September.” He also asked whether the request for him not to return to the building had come from R3. Detriment 8.8: On 8 July 2018, Mr James Hillam from R3 sent an email to Irene Bakpa referring to C having someone "on the inside".[103]The claimant emailed R3 to a specific IT address (ICT Portal Approvers) He said: “I am currently employed by Croydon and just wanted to know how I can go about getting emails with my name on? I believe there are “malicious rumours” being spread about me and I am just wondering how I can get these emails.”[104]This email was forwarded to Ms Bakpa by Mr Hillam who said: “Just received this to the ICT Portal Approvers mailbox from Daniel Cox. Obviously not replied as I’m aware of your investigation. Daniel will have received an automated response from this mailbox informing him that he needs to contact Capita. I’m calling capita now to let them know to issue no information. I think he has someone on the inside giving him information, there’s no way he would have the knowledge to contact this mailbox otherwise.” In his oral evidence the claimant confirmed that he did have an internal contact who had given him that email address. 9 July 2018[105]Accordingly, Ms Bakpa (R3) sent an internal email requesting that the claimant’s account was closed with immediate effect. Detriment 8.13: On 7 July, Irene Bakpa sent an email to Janel Hevezi of R3 alleging that C had been dismissed by SEN[106]On 9 July 2018 (not 7 as alleged), Ms Bakpa (R3) emailed Ms Hevezi (R3) and forward the email referred to above from Mr Hillam. She said: “with regards to the email below. Several issues have arisen between SEN and Daniel leading to his dismissal on Friday, I will bring you up to date with this tomorrow plus my recommendations on going forward.” Detriment 8.9: On 9 July 2018, Mr Adrian Thompson of R3 asked if payment to C could be withheld pending C's return of a laptop, charger and ID card. – “ Can we withhold payment until we are in possession of the below”[107]There were further emails between Ms Pasby (R1), Ms Bakpa (R3) and Mr Thomson (R3) about the return of the claimant’s laptop and work equipment. Mr Thomson did ask if payment to the claimant could be withheld pending the claimant’s return of his equipment.[108]There was some confusion over the return of the equipment. Initially, Ms Day said she would arrange for the equipment to be returned, but didn’t do so. Then, later (see below), the claimant was told that there was no problem with him coming to site to drop off his equipment, but it still wasn’t returned. 10 July 2018 Detriment 8.10: On 10 July 2018, Ms Sheryl Brand-Grant sent an email dated 10 July 2018 stating that during C's final week with R3, he had been off sick for two days before the Thursday.[109]On 10 July 2018, Ms Brand-Grant (R3) sent an email to Ms Pasby (R1) to confirm the hours the claimant had worked in his final week. That email stated that the claimant had been off sick for two days. That email was sent to ensure that the claimant would be paid correctly for his final week at work.[110]On 11 July 2018, an email was sent by Ms Pasby to Mr Maverick at R2 to say: “Please be aware that on Friday we terminated an assignment for a worker of yours Daniel Cox at London Borough of Croydon. As you aware the usual practice is for you to have these conversations with the associate directly however in this case the client urgently wanted the new assignment due to start on Monday to be terminated so we had no option to call the individual in question to ensure he did not return to site Friday.”[111]On 13 July 2018, Ms Ruiz (R1) emailed the claimant to explain that his assignment was terminated on R3’s instruction. Detriment 8.11: Deborah Degnan of R3 referred to C's attitude, performance, "wider issues" and refusal to undertake work in an undated "chronology" document and an email dated 17 July 2018.[112]On 17 July 2018, Mr Thomson (R3) sent an internal email explaining why the claimant’s assignment was terminated. He explained that the claimant’s assignment was terminated due to the claimant’s attitude; refusal to undertake work; and refusal to work under the new payment terms of BSO. He said, “If the worker isn’t accepting of the contract and terms, then there is nowhere to go with it.” He explained that the EHC co-ordinator role was always going to be terminated with the absolute intention to move across onto the correct contract, which was what the whole meeting was about in the first place”. The Tribunal finds that the claimant’s attitude in his meetings with R3, in which he demanded back pay and indicated he would not accept the new contract were the key factors in the respondent’s decision to terminate the claimant’s assignment. In those meetings, the claimant was also swept up in believing that there was some sort of fraud going on as regards his rate of pay.[113]A chronology was then prepared, in dealing with a complaint by the claimant, by R3 which states, inter alia: “..the line manager, Deborah Degnan determined to terminate the assignment in accordance with the agency worker policy. This was due to performance and wider issues relating to interaction within the team.”[114]On 18 July 2018, an email was sent by Ms Moorman (R3) to the claimant, amongst other things requesting return of R3’s property and confirming that “there is no restriction upon you attending [Bernard Weatherill House] as a visitor”. After this, there was no reason for the claimant not to return his laptop, charger etc. Detriment 8.15: On 24 July 2018, Ms Deborah Degnan of R3 sent an email alleging that C had paperwork relating to children in his locker and had not completed orders.[115]This is not addressed in the claimant’s witness statement and could not be located in the bundle.[116]On 25 July 2018, the claimant requested his P45 from R2.He requested that it be backdated to 8 July 2018. Detriment 8.12: On 30 July, SBG sent an email alleging that C had effectively stolen a laptop and asking if the matter could be reported to the police.[117]Between 30 July and 24 August 2018, there were a number of emails between R1 and R3 and the claimant about the return from the claimant of R3’s property including a laptop.[118]The email on 30 July from Ms Brand-Grant says as follows: “The SEN service has yet to receive the laptop and other equipment from DC. I was advised he would return these the week of 16 July 2018 – this has not happened. I was also advised Adecco would be sending a courier to collect. As the equipment has not been returned I would like to treat this as theft and ask that you request the laptop immediately from Daniel before the matter is reported to the police.”[119]Ms Brand-Grant did not ask if the matter could be reported to the police, but suggested that the laptop should be requested before the matter was referred to the police. This was because the claimant still had not returned his equipment despite his last day of employment being on 5 July 2018 and despite being told on 18 July 2018 that there was no restriction on him attending R3’s premises to hand back the equipment. Although R3 had said that they would arrange a courier, that hadn’t happened through no fault of the claimant.[120]On 31 July 2018, the claimant resigned from employment with R2 and asked R1 to help him obtain his P45 from R2. R2 responded to thank the claimant for officially informing them of his decision to resign and sent his P45 on 2 August 2018. Detriment 8.14: On 16 August 2018, Irene Bakpa sent an email to Jon Raby of R3 alleging that C had been dismissed and because he was upset at being dismissed, he had effectively stolen a laptop.[121]On 16 August 2018, Ms Bakpa wrote to Mr Raby (R3) as follows: “Daniel Cox no longer works for LBC. A request was sent to Sheryl Brand-Grant to capita to disable his account immediately on Friday 6 July. I subsequently sent another request on Monday 9 July. It was discovered that he had taken his laptop home and his agency were advised to chase him to return it.” She wrote again later as follows: “ I’m not having much luck with collection of laptop from leavers. I’m still chasing JG for her laptop. Daniel left for the day and SEN promptly dismissed him without considering that he had his laptop with him and because he is upset at being dismissed, he is now refusing to release the laptop. Detriment 8.16: On 27 November 2018, Ms Sheryl Brand-Grant of R3 alleged in an email to Chris Maher of R3 that C had returned at around 1 pm on 5 July 2018 to announce his resignation.[122]On 27 November 2018, Ms Brand-Grant (R3) responded to Chris Maher (R3) who had asked some questions about the termination of the claimant’s contract. In answer to the question of why the claimant’s contract was ended, Ms Brand-Grant responded: “Daniel ended his own assignment on Thursday 5 July around 1pm, he informed Alison Farmer at Heathfield he was feeling poorly then returned to BWH and informed colleagues that it was his last day. He was not under contract.” In response to the question of whether Ms Brand-Grant was aware that the claimant had made a disclosure to R1 at a meeting on 5 July about salary queries/difference etc she responded: “Daniel did not make a disclosure, following a query in June to Adecco re salaries from another agency worker, Daniel met with Adecco and their management to discuss further”. Law Protected disclosures[123]A protected disclosure is a qualifying disclosure made in accordance with any of s43C-H Employment Rights Act 1996 (ERA), typically to the claimant’s employer.[124]Section 43B ERA states that a qualifying disclosure is: “ …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,…” (d) that the health or safety of any individual has been, is being or is likely to be endangered,[125]The disclosure of information must have identified the breach of legal obligation concerned: Fincham v HM Prison Service UKEAT/0991/01. This need not be in strict legal language. If the breach is obvious the test is met: Bolton School v Evans [2006] IRLR 500.[126]Section 43C ERA 1996 sets out to whom disclosure can be made: (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.[127]Section 47B ERA 1996 provides that a worker has the right not to be subjected to a detriment: (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. (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.[128]The EAT in Williams v Michelle Brown AM UKEAT/0024/19 (29 October 2019, unreported) at [9] and [10] identified five separate stages to applying the necessary tests, as follows: “It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.” Disclosure of information[129]The ordinary meaning of giving ‘information’ is ‘conveying facts’: Cavendish Munro Professional Risks Management Ltd v Geduld 2010 ICR 325, EAT the EAT. To demonstrate the practical distinction between giving information and making an allegation, the EAT in Cavendish Munro posited a hypothetical example in the context of a hospital ward. If a hospital employee were to say “the wards have not been cleaned for the past two weeks” or “yesterday, sharps were left lying around”, that would convey information. In contrast, an employee who stated “you are not complying with health and safety requirements” would merely be making an allegation.[130]In Kilraine v London Borough of Wandsworth 2018 ICR 1850, CA, the Court of Appeal held that ‘information’ in the context of section 43B is capable of covering statements which might also be characterised as allegations. Thus, ‘information’ and ‘allegation’ are not mutually exclusive categories of communication — rather, the key point to take away from Cavendish Munro was that a statement which is general and devoid of specific factual content cannot be said to be a disclosure of information tending to show a relevant failure.[131]The context of any putative disclosure is also highly relevant. The Court of Appeal in Kilraine adopted the example given in Cavendish Munro of a hospital worker informing his or her employer that sharps had been left lying around on a hospital ward. The Court explained that if instead the worker had brought his or her manager to the ward and pointed to the abandoned sharps, and then said ‘you are not complying with health and safety requirements’, the oral statement would derive force from the context in which it was made and would constitute a qualifying disclosure. The statement would clearly have been made with reference to the factual matters being indicated by the worker at the time. In bringing a whistleblowing claim in reliance on the disclosure, the worker’s claim form and evidence would then need to set out the meaning of the statement as derived from its context.[132]The question whether there is sufficient information to satisfy section 43B is a matter of fact for the tribunal. The more the statement consists of unsupported allegation, the less likely it will be to qualify, but this is as a question of fact, not because of a rigid information/allegation divide. The claimant in Kilraine had said in a letter that there had been bullying and harassment and that “Since the end of last term, there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, and all of which I have documented.” The EAT and Court of Appeal upheld the tribunal's view that this was not a disclosure because it was too vague and said nothing specific, and use of the word “inappropriate” was insufficient to bring into question any of the heads of disclosure within section 43B(1).[133]A similar result can be seen in Williams v Michelle Brown AM UKEAT/0044/19 (29 October 2019, unreported) where a relatively vague accusation of possible nepotism in recruitment by a Welsh parliamentarian's assistant was held to fail to reach the Kilraine threshold of sufficiency. One specific point arising from Williams was that, although the allegation in question was just in one relatively vague sentence in one letter, the claimant argued that he had had (to his mind) more detailed evidence of wrongdoing that he had not mentioned, and that the ET should have considered protected status in the context of that extra factual material. The EAT disapproved that argument. Thus, whatever is alleged to be a protected disclosure must in itself pass the sufficiency test. Reasonable belief the disclosure tends to show one of the six statutory categories[134]It is not necessary for the information itself to be actually true. It follows that a disclosure may nevertheless be a qualifying disclosure even if it subsequently transpires that the information disclosed was incorrect. However, the factual accuracy of the allegations may be an important tool in determining whether or not the employee did have such a reasonable belief. The assessment of the individual’s state of mind must be based upon the facts as understood by him at the time. See: Darnton v University of Surrey [2003] IRLR 133, EAT.[135]ERA states that there must be a reasonable belief of the worker making the disclosure. It follows that the individual characteristics of the worker – including their circumstances and knowledge – need to be taken into account and the relevant test is not whether a hypothetical reasonable worker could have held such a reasonable belief. See: Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, EAT.[136]Where, as here, there are a plethora of disclosures, the requirement is that there was a reasonable belief in relation to each; it is not enough that the claimant can be shown to have believed in the general gist of his or her complaints. See: Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, EAT.[137]In Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540, EAT, Slade J pointed out that, unlike the more general para (1)(b) ('that a person has failed, is failing or is likely to fail to comply with a legal obligation …') where there must be an actual or likely breach of the relevant obligation by the employer, under para (1)(d) ('that the health or safety of any individual has been, is being or is likely to be endangered') there only needs to be the fact or likelihood of that endangering, not any definable legal breach by the employer.[138]An employee wanting to rely on the whistleblowing protection before a tribunal bears the burden of proof on establishing the relevant failure. In Boulding v Land Securities Trillium (Media Services) Ltd UKEAT/0023/06 (3 May 2006, unreported) Judge McMullen said: ''As to any of the alleged failures, the burden of proof is upon the Claimant to establish upon the balance of probabilities any of the following:(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on.(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.''[139]With regard to head (b) (failure to comply with a legal obligation, possibly the most important in practice), the word 'legal' must be given its natural meaning, with the result that the fact that the individual making the disclosure thought that the employer’s actions were morally wrong, professionally wrong or contrary to its own internal rules may not be sufficient (Eiger Securities LLP v Korshunova [2017] IRLR 115, EAT).[140]UK GDPR defines personal data as: “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person” (article 4). Reasonable belief that the disclosure is in the public interest[141]The leading case on this point is Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening) 2018 ICR 731, CA. The Court of Appeal rejected CG Ltd’s argument that, for a disclosure to be in the public interest, it must serve the interests of persons outside the workplace, and that mere multiplicity of workers sharing the same interest was not enough. In the Court’s view, even where the 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. In this regard, the following factors might be relevant: ·the numbers in the group whose interests the disclosure served · the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed · the nature of the wrongdoing disclosed, and · the identity of the alleged wrongdoer.[142]Chesterton also sets out that: “while the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest that does not have to be his or her predominant motive in making it.” Detriment and causation[143]There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment. See: Jesudason v Alder Hay Children's NHS Foundation Trust [2020] EWCA Civ 73, [2020] IRLR 374.[144]Under section 48(2) ERA the burden of proof is on the employer to show the ground on which any act, or deliberate failure to act was done. The legislation requires that the act or deliberate failure to act of the employer must be done 'on the ground that' the worker in question has made a protected disclosure. This requires an analysis of the mental processes (conscious or unconscious) which caused the employer so to act. This test is not satisfied by the simple application of a ‘but for’ test (Harrow London Borough v Knight [2003] IRLR 140, EAT). The employer must prove on the balance of probabilities that the act, or deliberate failure, complained of was not on the grounds that the employee had done the protected act; meaning that the protected act did not materially influence (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower (see Fecitt v NHS Manchester [2011] EWCA Civ 1190, [2012] IRLR 64, [2012] ICR 372).[145]If the reason for the employer’s action had nothing to do with the making of the protected disclosure or was only a trivial factor in their reasoning, liability under s. 47B(1) will not be established (Jesudason).[146]It is important to note however that the assessment is directed solely at the motivation of the decision maker (William v Lewisham and Greenwich NHS Trust [2024] EAT 58).[147]While the formal burden of proof is on the employer, it is simply the standard civil burden (as opposed to the statutory reversal of the burden of proof in discrimination cases). As such:a. What is required is for the tribunal to determine the reason(s) for the relevant act, on the basis of the evidence and permissible inferences (Dahou v Serco [2017] IRLR 81).b. Consistent with the above, it is open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason(s) for an act was not that advanced by either side. It does not follow that an employer’s failure to show the reason for the relevant act entails the conclusion that the reason was as asserted by the employee (Dahou, at [40]; and Kuzel v Roche Products [2008] IRLR 530).[148]If the reason for the detriment is in fact the claimant’s conduct in making the disclosure as distinct from the protected disclosure itself, causation will not be established (the “Separability Principle”).[149]The Separability Principle was the subject of the Court of Appeal decision in Kong v Gulf International Bank [2022] ICR 1513, in which Semler LJ made the following observations: “56.… a decision-maker might legitimately distinguish between the protected disclosure itself, and the offensive or abusive manner in which it was made, or the fact that it involved irresponsible conduct…. In a case which depends on identifying, as a matter of fact, the real reason that operated in the mind of a relevant decision-maker in deciding to dismiss (or in relation to other detrimental treatment), common sense and fairness dictate that tribunals should be able to recognise such a distinction and separate out a feature (or features) of the conduct relied on by the decision-maker that is genuinely separate from the making of the protected disclosure itself. In such cases… the protected disclosure is the context for the impugned treatment, but it is not the reason itself. 57.…Were this exercise not permissible, the effect would be that whistle-blowers would have immunity for behaviour or conduct related to the making of a protected disclosure no matter how bad, and employers would be obliged to ensure that they are not adversely treated, again no matter how bad the associated behaviour or conduct. 59. In a proper case, even where the conduct of the whistle-blower is found not to be unreasonable, a tribunal may be entitled to conclude that there is a separate feature of the claimant's conduct that is distinct from the protected disclosure and is the real reason for impugned treatment.”[150]By way of example, in Parsons, HHJ Eady QC found that the first instance Tribunal had properly applied the Separability Principle in its finding that the reason for the claimant’s dismissal was not the protected disclosure, observing as follows (at [45]): “the Respondent was not concerned by the fact that the Claimant had drawn that information to its attention; it was not the disclosure of information that was the issue. The Respondent was, rather, concerned with what the Claimant did after she had made her disclosure; with her unresearched assumptions and demands; her conduct at meetings and failure to give rational, cogent reasons for her beliefs; her irrational fixation on her personal liability; and her inability to listen or take on board what her colleagues had to say. Of course, all of this was in the context of the Claimant's role in compliance, but the ET was clear: it was not what the Claimant was raising in that respect, but the way in which she was raising it and then, thereafter, conducting herself.” Section 43K employment[151]Section 43K ERA 1996 provides:(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,(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,[152]Section 43K covers agency workers where the worker is introduced or supplied by a third person and the terms of employment are substantially determined by the supplier or the receiver or both. This is wide enough to cover a case where there is no direct contractual relationship, e.g. because of the intercession of a service company: Croke v Hydro Aluminium Worcester Ltd [2007] ICR 1303, EAT). In Croke the claimant supplied his services through his own limited company, and then through an agency, to the end client. The imposition of the agency within the chain did not stop the end client being a section 43K employer (note the claim was brought against the end client only, not the agency).[153]In the case of McTigne v University Hospital Bristol NHS Foundation Trust [2016] IRLR 742, EAT, it was held that:(1) the extension can apply where the individual has a formal contract of employment with the agency (the 'supplier') but the allegations are made against the end user (the 'receiver'); and(2) it is irrelevant whether either or both of the supplier and receiver 'substantially' determine the terms, as long as the individual does not; the effect is that most ordinary forms of agency working are covered by section 43K. Moreover, where both 'employer' parties set terms, it is not a question which does so more substantially, but whether the party being proceeded against did so to an extent categorisable as 'substantially': Day v Health Education England [2017] EWCA Civ 329, [2017] IRLR 623, [2017] ICR 917. Co-employment[154]There is a long line of case law dating back at least to Laugher v Pointer (1826) 5 B & C 547, and summarised in Patel v Specsavers Optical Group Ltd [2019] UKEAT 0286_18_1309 (13 September 2019), to the effect that an employee cannot have simultaneously have two contracts of employment with different employers in relation to the same role.[155]The test for implying a contract between an individual and an end user in an agency worker scenario is set down in James v Greenwich Council [2008] EWCA Civ 35 – it is submitted that the same test applies as between an individual and another company in the chain of contracts. When the arrangements are genuine and when implemented accurately represented the actual relationship between the parties, as is likely to be the case where there is no pre-existing contract between worker and end user, then it will be a rare case where there will be evidence entitling the tribunal to imply a contract between a worker and the end user.[156]If any such contract is to be inferred there must, subsequent to the relationship commencing, be some words or conduct which entitle the tribunal to conclude that the agency arrangements no longer dictate or adequately reflect how the work is actually being performed and that the reality of the relationship is only consistent with the implication of the contract. It will be necessary to show that the worker is working not pursuant to the agency arrangements but because of mutual obligations binding worker and end user which are incompatible with those arrangements. (see paras 56-60 in particular).[157]The necessity to imply a contract of employment between an agency worker who is employed by the agency or an intermediary and another body further up the chain of contracts, may be further reduced where, as in the present case, the agency worker already has a contract of employment and that contract is not a sham (Astbury v. Bentley Motors Ltd [2007] UKEAT 1844_06_0905). Underhill LJ said at para 15: “If there was a contract between Adecco and the Appellant which adequately explains the basis on which the Appellant was working for Bentley, there is no need to imply a contract with Bentley whether that would be parallel to the contract with Adecco or in place of it. Contracts are not to be multiplied without necessity.” Holiday pay[158]In Lyddon v Englefield Brickwork Ltd UKEAT/0301/07, Elias J effectively paved the way for UK employers to continue paying rolled-up holiday pay. Applying Robinson-Steele, the EAT upheld a tribunal's decision that a worker's entitlement to holiday pay under the WTR 1998 was satisfied by the rolled-up holiday pay he had received. The specific calculation had not been set out in any written contract or discussed in advance of employment. However, the worker knew in advance that there was a sum allocated to holiday pay, calculated according to an established system that could have been explained to him if he had asked, and the amount of that holiday pay was then set out on his payslips. Conclusions Employment status
Conclusions
[159]It is easy to see why the claimant was confused about who his employer was. He was placed by R1 and had had dealings with them, and was formerly, expressly, their employee. R2 had almost no role to play apart from to pay the claimant. R3 was his ostensible employer in that he was line managed by R3 and performed work for them and on their premises.[160]When the claimant first commenced work with R3, he was employed by R1 and had a clear and express contract with them. However, when the claimant was given the choice to be employed by R2 and elected to be employed by them. The claimant does not dispute that he was employed by R2, but says he was coemployed by R1. However, the case law is clear that an employee cannot simultaneously have two contracts of employment with two different employers in relation to the same role.[161]The Tribunal is satisfied that the contractual relationship which existed between R2 and the claimant was that of a contract of employment. The claimant clearly chose to move to R2. R2 wrote to the claimant on 26 January 2018 to confirm that his contract of employment and assignment schedule had been uploaded onto the claimant’s personal portal. The claimant accepts that he was employed by R2. The clear contractual position is that he was employed by R2 and the claimant does not seek to argue that that contractual arrangement was, in any way, a sham. It is therefore not necessary to imply a contract with R1.[162]Further confusion was caused to the claimant by Ms Pasby’s comment to the claimant at the meeting on 2 July 2018 that that he was still R1’s employee. She had recently returned from maternity leave and said in evidence during the Tribunal hearing that she now knew this to be wrong and that the claimant had transferred to R2.[163]The claimant also pointed, as evidence of his having transferred back to R1 on 30 January 2018, to an email of that date which stated: “ Please transfer the claimant’s details to R1 as he will be working through them”. However, that email refers to “details” rather than “employment” and “through them” and not “for them”. Again, whilst some confusion is understandable, the Tribunal finds that this was no indication of the claimant transferring back to R1 or being coemployed by them. Qualifying Disclosures (1) The 18/19 June Disclosure to R3[164]It is accepted that the claimant had an in-person conversation with Ms Brand-Grant on or around 18 June 2018. However, the Tribunal does not accept the claimant’s evidence that he, during that conversation, said that his personal data had been leaked to colleagues by Ms Goldklang or asked how Ms Goldklang had obtained his personal data such as to amount to a disclosure of information.[165]The reasons for this conclusion are that Ms Brand-Grant, shortly after her conversation with the claimant, wrote an email (at 12:51 on 18 June 2018) as follows: “l would like to bring your attention to another rumour that is circulating across the 0-25 SEN service which I have discussed with Alison. An EHC Coordinator had informed Daniel Cox that the service is aware that he is on a day rate of £300 — as such they are going to file a complaint against myself for allowing that rate. Daniel Cox is not receiving a daily rate of £300 he is on a grade 6— paid via agency (Adecco) , like for like with both Mandy and Cheryl. Daniel has also expressed heavy concerns that Lynn has instigated lots of rumours about him and has held these discussions with the EHC Coordinators. This will of course have to be managed going forward. Notwithstanding, this is unacceptable, salaries between staff should not be discussed. This is not the first and l am sure it won't be the last rumour to go around the shop floor, however, l thought I would let you all be aware of what is happening on the ground.”[166]It is clear to the Tribunal, from this contemporaneous document, which was sent to other managers and was copied to her line manager Mrs Farmer, that the claimant’s conversations with Ms Brand-Grant on the 18th June 2018 concerned a complaint on his part that false rumours were being spread. The Tribunal finds that Ms Brand-Grant went into sufficient detail of the conversation that, had the claimant referred to a data breach, it would have been recorded.[167]The Tribunal concludes that, if the claimant had actually asserted that day (as he alleges) that he had asserted there had been a leak of personal information by R1 in breach of its data obligations, this would have been recorded by Ms Brand-Grant within this email, the very purpose of which appears to have been to bring the contents of her discussion with the claimant to the attention of her fellow managers.[168]Accordingly, the Tribunal finds that the focus of the claimant’s conversation was the rumours that had been circulating and concludes that the claimant did not make an oral qualifying disclosure of information to Ms Brand-Grant on or around 18 or 19 June 2018 as alleged. Even if he had said that his data had been breached, this would be a mere allegation with no information to support how it was alleged that it had come about.[169]The Tribunal concludes that there was not a disclosure of information for the reasons stated above. (2) The 25 June 2018 Disclosure to R1[170]It is accepted that, on or around 25 June 2018, the claimant spoke to Ms Hyde on the telephone. Ms Hyde accepts that a conversation took place.[171]The claimant’s witness statement states: “I explained orally that my data had been breached and informed her that Ms Goldklang had told colleagues that I work with around the office. I was informed that Ms Hyde would speak to Ms Pasby and come back to me”.[172]The Tribunal does not, however, conclude that the claimant told Ms Hyde that his personal data had been leaked by Ms Goldklang and/or that he expressed concerns about how Ms Goldklang had obtained the information that he was earning £350 per day as an ECHP coordinator.[173]Ms Hyde recalled a conversation in which the claimant discussed the rumour which Ms Goldklang had started, which he knew to be false, about the claimant being paid a lot more than her. Her evidence is preferred to that of the claimant in this regard. This is because the follow up email written by the claimant (which forms the basis of the 3rd alleged disclosure) does not make any reference to a data breach. It says: “Did you have any joy about the malicious rumour that was spread about myself and as to how this may have come about?”[174]The Tribunal considers that the claimant is seeking to equate discussions about a “malicious rumour” with discussion about a data breach. His ET1 states, in relation to this email, at para 54: “A few days later, I sent a follow up email to Emma and asked If she had heard anything about how my data was breached.” When it was put to the claimant in cross examination that his email did not in fact ask Ms Hyde if she had heard how his data had been breached, he said: “incorrect – I do not accept that”.[175]Further, Ms Hyde’s response does not give any indication that a data breach was discussed. Ms Hyde replied on 28 June 2018 as follows: “I fully investigated this and there Is no one on my team that would discuss this. It's not professional and has not come from us. I fully appreciate the upset this has caused you and this troubles me that you are distressed. We only want to coach guide and upskill our associates The fact that the person In question thought your rate was significantly higher than what it is suggests a Chinese whispers situation. Lisa had picked up with Croydon HR but in the meantime anything I can do let me know.”[176]For these reasons, the Tribunal does not accept the claimant’s evidence that he discussed a data breach but rather discussed a malicious rumour as described in his email to Ms Hyde. Accordingly, the Tribunal concludes that the claimant did not make an oral qualifying disclosure of information to Ms Hyde on or around 25 June 2018.[177]Even if the claimant did say what he alleges, that was a mere allegation which did not amount to a disclosure of information. (3) The 28 June 2018 Disclosure to R1[178]For the reasons stated above, the claimant did not make a written qualifying disclosure to Ms Hyde by an email dated 28 June 2018. In short, what he identified in that email was a malicious rumour and not a data breach. Discussion of a malicious rumour does not amount to a disclosure of information.[179]In any event, the Tribunal finds that this communication amounted to a mere allegation. By it’s language (“data breach” if what the claimant alleges is true) the claimant has alleged a data breach but without more, in the sense that there can be no obvious link between rumours being spread by Ms Goldklang which were plainly wrong as regards the claimant and a data breach. There was no information given to back up the allegation. The claimant at no point explained how he considered the rumour to be a data breach. (4) The 2 July 2018 Disclosure to R3[180]The claimant did have an in-person conversation with Ms Brand-Grant on 2 July 2018 in advance of the ad-hoc meeting.[181]The Tribunal finds that the claimant did allege that Ms Goldklang had obtained his personal data and had leaked it to members of staff at the ad-hoc meeting and it is therefore likely that he raised it with Ms Brand-Grant at the informal meeting with her prior to the ad-hoc meeting. The claimant said, “I’m of the belief my data has been leaked.” This was in the context of discussing other people discussing his pay.[182]The Tribunal finds that this communication amounted to a mere allegation. By it’s language (“data breach”) the claimant has alleged a data breach but without more, in the sense that there can be no obvious link between rumours being spread by Ms Goldklang which were plainly wrong as regards the claimant and a data breach. There was no information given to back up the allegation. The claimant at no point explained how he considered the rumour to be a data breach. This was therefore not a disclosure of information. (5) The 4 July 2018 Disclosure to R1[183]It is accepted that the claimant had a telephone conversation with Ms Ruiz on 4 July 2018.[184]The claimant says in his witness statement that, during the call he “proceeded to inform Ms. Ruiz about my concerns as to how my Data was leaked, that unqualified workers were being used as EHCP Coordinators and that I suspected there was fraud.” Ms Ruiz had asked if I could put my concerns in writing and then and only then could she investigate my concerns.”[185]Even accepting the claimant’s witness evidence as set out in his witness statement (above), the information given does not have sufficient specificity or detail to amount to a disclosure of information as regards a data breach. The Tribunal finds it likely, on the balance of probabilities, that the claimant’s oral complaint to Ms Ruiz is likely to have been a briefer and more succinct version of the written complaint he subsequently submitted.[186]In respect of the second alleged statement, that unqualified agency workers were being placed as EHCP coordinators dealing with children with SEN, in his oral evidence the claimant first said the statement about unqualified workers was not a reference to himself. He then contradicted himself by saying that he had given Ms Ruiz two examples: himself and Ms Jung. However, neither of these examples are set out in the claimant’s witness statement and neither of the examples are set out in the letter to Ms Ruiz the following day. The Tribunal considers, on the balance of probabilities, that the claimant’s evidence was not accurate in this regard and that he did not give those examples in his telephone call to Ms Ruiz.[187]As regards the unqualified worker statement, the claimant does not give any examples; explain what qualifications the workers need but do not have; or explain what harm he thinks this could cause or what obligations R1/R3 are failing to meet. This oral disclosure did not have sufficient specificity to amount to a disclosure of information. (6) The 5 July 2018 Disclosure to R1[188]In an email sent to Ms Ruiz and Ms Fleming of R1 on 5 July 2018, the claimant included the following statements:a. "I raised my concerns that how this could even have come about and that the only way someone could have this information is because my timesheet states exactly what the EHCP Co-ordinator had said to me. I stated that this must be a breach of my data and under GDPR laws this is extremely concerning that my data being leaked can cause so much distress at work."b. "Both Adrian and Lisa confirmed that this happens a lot and that they have about 5 cases going on at the moment."c. "This is extremely concerning if staff of Adecco are giving out personal information and data to third parties without the knowledge and if true especially in light of the GDPR law that became enforceable since May 25 2018"d. "[n]ot to mention that people are covering a job that they are not qualified for, in a position of trust, to vulnerable service users"[189]The Tribunal finds that none of these amount to a disclosure of information, either separately or together.[190]As regards a, the claimant says “the only way someone could have this information is because…”. This is merely an allegation based on an assumption or deduction. The claimant has not said that X has given his timesheet to Y and his timesheet contains personal pay data. In any event timesheets do not contain data about an individual’s pay and therefore do not contain any relevant personal data.[191]What is said in b is insufficient to amount to a disclosure of information. It is also incorrect because it was made clear by Ms Pasby in the 2 July 2018 meeting that there were 5 cases of individuals who had queried their pay – not 5 cases of data breaches at R1.[192]As regards c, the claimant says “it is extremely concerning if…”. Again, he is making an allegation based on an assumption. The statement does not contain information.[193]The information in d is not specific enough. It is not clear what he is referring to and does not even state the job which the unqualified people are doing. Did C reasonably believe that this information tended to show that RI had thereby failed, or was failing, or was likely to fail to comply with a legal obligation to which it was subject within the meaning of s.43B(1)(b) ERA 1996?[194]In this regard, the claimant says that he reasonably believed the information tended to show that R1 had disclosed his personal data without his knowledge and consent and had thereby breached its obligations pursuant to the Data Protection Act 2018; and/or R1 and/or R3 was breaching an obligation to recruit qualified persons to deal with issues concerning children with Special Educational Needs.[195]The burden of proof is on the claimant to establish upon the balance of probabilities that there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on and the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.''[196]UK GDPR defines personal data as: “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person” (article 4). Reasonable belief of breach of data protection obligations Data protection[197]The Tribunal concludes that the claimant did not reasonably believe that this information tended to show that R1 had thereby failed, failing, or was likely to fail to comply with a legal obligation to which it was subject within the meaning of s.43B(1)(b) ERA 1996. In this regard, the claimant says that he reasonably believed the information tended to show that R1 had disclosed the claimant's personal data without his knowledge and consent and had thereby breached its obligations pursuant to the Data Protection Act 2018.[198]The Tribunal forms this view because the claimant cannot have believed that his personal data had been leaked, because if it had, Ms Goldklang would have known his actual rate of pay and would not have spread rumours about a salary that was so plainly wrong.[199]The claimant tried to persuade the Tribunal that he reasonably believed his personal data had been leaked because the EHCP co-ordinator role generally on Beeline (on timesheets) comes under a broad job class called “Executive Specialist< £350. But that is information about EHCP co-coordinators generally. The Tribunal notes that < is a standard sign which means less than, though the claimant would not accept that. In any event, that would be a figure which R3 would pay R1 not what the claimant would be paid. Further, the Tribunal did not consider that timesheets would be personal data.[200]The claimant continued to put forward an argument that R3 had been paying £350 per day for him and the balance between the £350 and his daily rate had been “pocketed” and “covered up”. This was not reasonable and had no evidential basis.[201]The Tribunal concludes that the claimant was really complaining about the rumour that had been circulated about his pay, and the damage that that had been caused to him by that rumour, as opposed to a genuine belief that his personal data had been disclosed in breach of the data protection legislation.[202]Further, Ms Brand-Grant told him: ” No information, no data can, has been or would ever be leaked.” And also explained to him about the “< £350” but the claimant would not listen or accept what he was being told. Health and safety[203]The claimant says that he reasonably believed the information tended to show that the health or safety of children with Special Educational Needs was at risk because unqualified staff were dealing with issues concerning those children. He says that this showed that the health and safety of any individual has been, was being or was likely to be endangered within the meaning of .43B(1)(d) ERA 1996.[204]The claimant cannot reasonably have believed this because he did not provide any details of the qualifications he says the workers did not have or the harm which was being caused or may be caused. The claimant had, further, previously been interviewed for a substantive EHCP Coordinator role, to be employed directly by R3, and had been rejected at interview stage. By way of brief email feedback he was told that he did not demonstrate the requisite knowledge at interview – not that he was not qualified. The person specification for the EHCP Coordinator role says candidates only need to be educated to GCSE level or equivalent. Ms Farmer confirmed in her oral evidence that EHCP workers do not need formal qualifications – they need a skillset and certain knowledge.[205]In this context, and with the knowledge and experience the claimant had – of being interviewed for the role – the claimant cannot reasonably have believed that EHCP Coordinators required certain qualifications or that R3 was putting the health and safety of children at risk by recruiting EHCP Coordinators without formal qualifications. There was no evidence to suggest that there was any such requirement. Reasonable belief in public interest? Data Protection[206]Further, the claimant cannot have reasonably believed that discussing a “malicious rumour” was in the public interest, as it related solely to him and the impact was upon him. He says: “I raised my concerns that how this could even have come about and that the only way someone could have this information is because my timesheet states exactly what the EHCP Co-ordinator had said to me. I stated that this must be a breach of my data and under GDPR laws this is extremely concerning that my data being leaked can cause so much distress at work”.[207]The claimant says that there are 700 agency workers employed by R1 working at R3. But he was told repeatedly by R3 that there had not been a data leak and could not have believed that there had been, as the data he alleged was leaked was simply wrong and therefore not personal data at all.[208]It is clear that this whole issue was very much about the claimant addressing his own issues at work and the effect of the gossip on him as an individual.[209]Applying the guidance in Chesterton Global:a. the claimant was the only person in the group whose interests the disclosure served.b. As regards “the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed”, the claimant’s pay, though confidential, is not sensitive data, such as data about health or a home address. As R3 determines pay of agency workers according to its bands pay appears to be fair and transparent. Under those circumstances, a colleague discovering how much the claimant is paid does not adversely affect the claimant’s interests. In any event, it is information which could have been deduced from comparing the claimant’s job title on the system to the pay grades.c. As regards the nature of the wrongdoing disclosed, the wrongdoing is not clear, but assuming it is someone at R1 telling Ms Goldklang how much the claimant is paid, this is not serious wrongdoing, particularly in the context of pay being transparently structured according to bands. He makes no reference to the data protection issue in his submissions on this point.d. As regards the identity of the alleged wrongdoer, R1 is a private company not a public authority or other entity which the public holds in higher regard.[210]Finally, it is relevant that the claimant was clearly told, by Ms Pasby and Mr Thomson, that R1 never gives out pay information when workers raise pay queries. Unqualified workers[211]In respect of the unqualified workers comment, as above, if the claimant had thought it was necessary to raise this alarm, he would have done so directly with R3, who he says was responsible for putting vulnerable children at risk. In addition, the claimant made this statement immediately before demanding reimbursement of a sum of £24,537.50. The Tribunal finds that the claimant was likely using this allegation to leverage payment of a sum he felt he was owed (at 5 July 2018 meeting the claimant claimed he was entitled to a day rate of £350 and had been underpaid, and that R3/R1 were in breach of contract.[212]The claimant in his submissions refers to the “agency workers being placed into jobs by employees of R3 children’s services department, even though they are not qualified to do so and employees of R1, R2 and R3 re billing at “exorbitantly high” rates as though they are”. This comes back to the pay issue which was the claimant’s main concern which related to him and him alone.[213]The Tribunal concludes that the claimant did not have a reasonable belief that his alleged disclosure was in the public interest.[214]Accordingly, no qualifying disclosures have been made. For completeness, the Tribunal addresses below whether, if they had been qualifying disclosures, any of the disclosures would have been protected. Was the disclosure a protected disclosure?[215]The claimant does not allege that any of the disclosures were made to R2 who was his actual employer.[216]R3 did not pursue the line of argument that it was not a section 43K employer. Section 43K was created in particular to “catch” end user clients hiring agency workers. In the Tribunal’s view, section 43K plainly catches R3 because it substantially determined the terms on which the claimant was engaged.[217]The claimant did not carry out any work for R1 and therefore cannot have been a limb b worker for R1. Was R1 the claimant’s employer because it substantially determined the terms on which the claimant was engaged whether alone or in conjunction with R3 (s.43K(2)(a) ERA 1996)?[218]R2 was the claimant’s actual employer and paid his wages (deducting tax and NI at source); afforded the claimant all his employment rights under his employment contract, including holiday pay, guaranteed hours of work, notice pay etc; and supplied the claimant, through R1, to R3.[219]R3, as the end client determined: the claimant’s work and line managed him; his place of work and whether it would continue hiring the claimant or terminate his assignment.[220]As explained by Ms Hyde, R1 was responsible for: billing R3 for the claimant’s services; passing that money (after taking a sum for its own fees) to R2; liaising with R3 on assignments (moving the claimant from one assignment to another at R3’s request); and acting as a conduit between R2 and R3. It acted as the MSP.[221]Ms Pasby confirmed in her evidence that her experience (as the account manager) of the relationship with Mr Thomson (R3’s contracts manager) was one of “master and servant”. Mr Thomson told Ms Pasby what to do and she did it. The Tribunal does not accept that R1 “substantially determined” the claimant’s terms of engagement. Alternatively, did C's disclosures concern relevant failures which C reasonably believed related solely or mainly to the conduct of R1 or any other matter for which R1 had legal responsibility?[222]R1 is in principle responsible for data protection, but it is not responsible for ensuring qualified EHCP Coordinators are hired. Whistleblowing detriment claims Did the following acts take place; detriment and causation Detriment 8.1: On 5 July 2018, R2 locked C's access to its online system.[223]This did happen. The claimant noted, in an email at 553pm, that he was locked out of his account with R2. Mr Yates explained that he was locked out because one of the assignments had ended and the other had not started. However, it was not a deliberate act but something that happened automatically.[224]The system works in such a way to ensure that express permission is given by the employee before a new, lower paid, assignment commences.[225]Although the claimant tried to argue that there was no significant difference between the pay rates of the two assignments, the day rate paid by R1 to R2 was to change from £153.70 per day to £117.94 per day under the new assignment. That amounts to a significant reduction in pay for the claimant, in circumstances in which he had been overpaid for months. R2 would need the claimant’s consent legally for such a change. The claimant was expressly told (and chased) that his authorisation was required.[226]The Tribunal finds there was no detriment. It was entirely reasonable, and standard practice, for the claimant to be required to accept the new assignment before being permitted to access the portal to fill in timesheets and so on in relation to that assignment. Had he accepted the assignment he would have had access again.[227]The claimant, when pushed in cross-examination, named Ms Ahmed as the person he considered was responsible for locking him out. He also confirmed that she would not have been aware of any of the alleged disclosures. There is therefore no causal link between any detriment and the alleged disclosures, more so because none of the disclosures were made to R2. Detriment 8.2: On 5 July 2018, Ms Emma Hyde of R1 sent an email to a colleague stating: "I am not answering him as I feel he's trying to lead me to say something'' (in respect of a query from C).[228]This did happen. On 5 July 2018, Ms Hyde (R1) emailed Ms Pasby (R1) to say that she wasn’t going to respond to the claimant when he asked where he should sit as she felt the claimant was trying to lead her to say something. The claimant recounts in his witness statement that he had “emailed Ms Hyde just to query which floor I would be on as Irene is based on the 2nd floor and not the 4th floor. Ms Hyde could not confirm this.”[229]The Tribunal cannot see how this email was detrimental to the claimant. The Tribunal considers that no reasonable worker would consider this email or its content to be a detriment. The claimant did not explain why he thought it was detrimental to him.[230]Ms Hyde explained that she sent the email because she felt the claimant was trying to get her to say something which might indicate that he was not genuinely moving into a BSO role. It had nothing to do with any protected disclosure and so there is no link between any alleged protected disclosure and the alleged detriment. Detriment 8.3: On 6 July 2018, R3 asked R1 to terminate C' s assignment with it and R1 did so.[231]This did happen. Accordingly, on 6 July 2018, Ms Ruiz (R1) emailed the claimant to terminate his assignment. Ms Ruiz referred to clause 9.3.1 of the terms and conditions for umbrella suppliers and quoted: “the company shall be entitled to terminate the assignment forthwith without notice or liability at any time when the client requests the personnel to be removed from the assignment or the service is to be ceased.”[232]Ms Brand-Grant believed that the claimant had, on the previous day, announced that it would be his last day at R3. In any event, the claimant had not accepted his new assignment and had given a number of indications that he had no intention of working under the new assignment, including: asserting that he was “locked in” at £350 per day and that he was being underpaid for a role he had never carried out; alleging that a fraud was taking place and demanding back pay at the £350 rate amounting to a claim of just under £25000 despite acknowledging that he had never been an EHCP co-ordinator; leaving Heathfields prior to the meeting at which he was due to take notes; and not signing up to the new assignment when given the opportunity to do so.[233]In light of the above, the Tribunal finds that it was not detrimental to the claimant that his assignment was terminated, but even if it was, it was not because of any of the alleged disclosures but because R3 believed the claimant had terminated his contract and had no intention of continuing to work for them and/or was making allegations of fraud and for back payments. The fact that he may have alleged that his personal data had been leaked was irrelevant as was any allegation that R3 may have been using unqualified staff for the EHCP role.[234]The Tribunal notes that after the first and fourth alleged disclosures, R3 was still actively seeking to allow the claimant to continue to work for them, albeit at reduced (correct) pay. That was the purpose of the meeting on 3 July 2018. at which, after the alleged disclosure, Mr Thomson encouraged the claimant to obtain legal advice and/or put in Data Subject Access Request in order to properly deal with the issue.[235]When Mr Thomson suggested delaying the 3 July meeting so that the meeting could deal with any personal data leak concerns the claimant had, on the agreement that the claimant would continue as a BSO at the reduced rate moving forward, the claimant refused that arrangement as he wanted to argue about the pay issue. Even at this stage, R3 had confirmed that it would make no claim for the overpayments made, despite Ms Farmer’s confirmation that often R3 would seek to recover overpayments made.[236]R1 was following R3’s instructions and that was the reason they did what they did. There is no link to any of the alleged disclosures. Detriment 8.4: On or about 5th July 2018, R2 terminated C's assignment with R3 on its online system.[237]As set out above, the claimant’s access to the online system was blocked automatically because of the way the system was set up. Because there needed to be a correction of the rate mistake, the claimant was required to consent to the new assignment which he failed to do despite reminders.[238]The Tribunal finds that the claimant had no intention of signing up to the new contract because it was his view that this would allow the respondents to “get away” with their fraud, and he wanted to pursue a claim for an underpayment. In those circumstances, it was not a detriment to the claimant that his access was blocked. The Tribunal has found that he could till, at this stage, have phoned up to ask for access to be restored and to accept the new assignment.[239]Even if it was a detriment, the termination of the claimant’s assignment by R2 on the online system had nothing whatsoever to do with any protected disclosure, but was because, at this stage, the claimant had not signed up to the new assignment on the correct pay rate. Detriment 8.5: On or about 5th July 2018, R2 terminated C's "new assignment" which was due to commence on 7 July 2018 on its online system.[240]As above, whilst the claimant was locked out of his account with R2, that was because one of the assignments had ended and the other had not started. It was a system designed to ensure that employees had given consent before a new assignment could begin. The new assignment was not therefore terminated by R2. R2 was not even informed that the assignment would not be going ahead until 11 July 2018[241]R2 was waiting for the claimant to accept the less favourable payment terms of the new assignment, which was not terminated as it never started, having never been accepted by the claimant. The Tribunal finds that, at this stage ie 5 July 2018, the claimant could have written or phoned to say he accepted the contract and his access would have been restored (see above).[242]Even if R2 did terminate the assignment, there were no facts from which to conclude that there was a causal link with any alleged protected disclosure(s). It was entirely down to R3’s instructions. There is no evidence from which to conclude that R2 knew of the alleged protected disclosures in any event. Detriment 8.6: On or around 6 July 2018, R3 banned C from its site and disabled his ICT and Pass access.[243]On 6 July 2018, Ms Day (R1) called the claimant by telephone to notify him of the termination of the grade 6 assignment. She followed up by email on 8 July 2018 in which she stated: “Please be advised we are terminating your assignment as an EHCP co-ordinator as well as your assignment as a Business Support Officer that was due to start on Monday 9 July. The client have requested that you are not to return to site, and therefore we need to arrange collection of the following: Pass, IT equipment; Paperwork. Please be advised I will be in touch early next week to arrange collection of the above.”[244]Whilst the claimant was asked not to return to R3’s premises after both his assignments had ended, R3 did not “ban” him. This allegation is not therefore made out.[245]Even if R3 did “ban” him and disable his ICT and pass access, that would not be unusual action to take as regards a worker who was not longer engaged. ICT access and passes would necessarily be disabled in such circumstances. The Tribunal does not therefore accept that this was a detriment.[246]Further, there are no facts from which to conclude that there was any causal link with the alleged disclosures. The reason for him being requested not to return to site and for his pass and ICT access to be disabled would be because he had finished working for R3 and would be usual steps to take in those circumstances, particularly circumstances on which the claimant’s behaviour had been erratic (for example leaving Heathfields just before the meeting). Detriment 8.7: On or around 6 July 2018, Ms Sheryl Brand-Grant of R3 asked Ms Lisa Pasby of R1 that C's account be disabled immediately.[247]An email was sent by Ms Brand-Grant to Ms Pasby, but it was confirmed that the claimant’s account had been disabled, there was no request for them to be disabled. Therefore, the allegation made is not accurate and cannot be upheld.[248]As above, such an act could not be considered a detriment by a worker in the claimant’s position. It is standard practice for accounts to be disabled on termination, especially when there is sensitive third party data.[249]Again, there are no facts from which to conclude that the detriment was causally linked to any alleged disclosures. Mr Hillam was not aware of any protected disclosures and considered the disabling of an account to be normal practice in respect of workers no longer engaged at R3. Detriment 8.8: On 8 July 2018, Mr James Hillam from R3 sent an email to Irene Bakpa referring to C having someone "on the inside".[250]This did happen. The claimant emailed R3 to a specific IT address (ICT Portal Approvers) He said: “I am currently employed by Croydon and just wanted to know how I can go about getting emails with my name on? I believe there are “malicious rumours” being spread about me and I am just wondering how I can get these emails.”[251]This email was forwarded to Ms Bakpa by Mr Hillman who said: “Just received this to the ICT Portal Approvers mailbox from Daniel Cox. Obviously not replied as I’m aware of your investigation. Daniel will have received an automated response from this mailbox informing him that he needs to contact Capita. I’m calling capita now to let them know to issue no information. I think he has someone on the inside giving him information, there’s no way he would have the knowledge to contact this mailbox otherwise.”[252]In his oral evidence the claimant confirmed that he did have an internal contact who had given him that email address. Accordingly, the Tribunal cannot see how this could be a detriment: it was true! The Tribunal does not consider that this caused the claimant any prejudice or disadvantage.[253]Again, there are no facts from which to conclude that the detriment was causally linked to any alleged disclosures. Mr Hillam was not aware of any of the alleged protected disclosures and was simply following his normal practice. He was, understandably, concerned that a worker who had left R3 would be granted access to an email inbox by a third party, and acted accordingly. Detriment 8.9: On 9 July 2018, Mr Adrian Thompson of R3 asked if payment to C could be withheld pending C's return of a laptop, charger and ID card. – “ Can we withhold payment until we are in possession of the below”[254]This did happen. There were further emails between Ms Pasby (R1), Ms Bakpa (R3) and Mr Thomson (R3) about the return of the claimant’s laptop and work equipment. Mr Thomson did ask if payment to the claimant could be withheld pending the claimant’s return of his equipment.[255]However, the Tribunal does not consider this to be a detriment. Ms Pasby replied to Mr Thomson’s email in the negative. The claimant did not suffer any prejudice or disadvantage.[256]Again, there are no facts from which to conclude that the detriment was causally linked to any alleged disclosures. It is likely that Mr Thomson mistrusted the claimant due to his seeking to claim that he had been underpaid and not accepting the new assignment on the correct rate of pay, but that has noting whatsoever to do with the alleged disclosures. Detriment 8.10: On 10 July 2018, Ms Sheryl Brand-Grant sent an email dated 10 July 2018 stating that during C's final week with R3, he had been off sick for two days before the Thursday.[257]This did happen. On 10 July 2018, Ms Brand-Grant (R3) sent an email to Ms Pasby (R1) to confirm the hours the claimant had worked in his final week. That email stated that the claimant had been off sick for two days. That email was sent to ensure that the claimant would be paid correctly for his final week at work.[258]The Tribunal does not consider this to be a detriment, as R3 was seeking to establish how much to correctly pay the claimant in circumstances in which he had put in a timesheet for five days, which he must have known to be incorrect.[259]Again, there are no facts from which to conclude that the detriment was causally linked to any alleged disclosures. The reason for the email was that R3 wanted to ensure the claimant was correctly paid in circumstances in which the claimant had made a claim in his paysheet for five days’ work. Detriment 8.11: Deborah Degnan of R3 referred to C's attitude, performance, "wider issues" and refusal to undertake work in an undated "chronology" document and an email dated 17 July 2018.[260]This did happen. On 17 July 2018, Mr Thomson (R3) sent an internal email explaining why the claimant’s assignment was terminated. He explained that the claimant’s assignment was terminated due to the claimant’s attitude; refusal to undertake work; and refusal to work under the new payment terms of BSO. He said, “If the worker isn’t accepting of the contract and terms, then there is nowhere to go with it.” He explained that the EHC co-ordinator role was always going to be terminated with the absolute intention to move across onto the correct contract, which was what the whole meeting was about in the first place”.[261]A chronology was then prepared, in dealing with a complaint by the claimant, by R3 which states, inter alia: “..the line manager, Deborah Degnan determined to terminate the assignment in accordance with the agency worker policy. This was due to performance and wider issues relating to interaction within the team.” 262. |It is possible to see that this could be detrimental to the claimant as it has negative comments about him. However, there were no facts from which the Tribunal could conclude that the comments were linked to any alleged protected disclosure. The comments reflect the reasons given by Mr Thomson as the reasons for the claimant’s assignment being terminated. Detriment 8.12: On 30 July, SBG sent an email alleging that C had effectively stolen a laptop and asking if the matter could be reported to the police.[263]The email on 30 July from Ms Brand-Grant says as follows: “The SEN service has yet to receive the laptop and other equipment from DC. I was advised he would return these the week of 16 July 2018 – this has not happened. I was also advised Adecco would be sending a courier to collect. As the equipment has not been returned I would like to treat this as theft and ask that you request the laptop immediately from Daniel before the matter is reported to the police.”[264]Ms Brand-Grant did not ask if the matter could be reported to the police, but suggested that the laptop should be requested before the matter was referred to the police. This was because the claimant still had not returned his equipment despite his last day of employment being on 5 July 2018 and despite being told on 18 July 2018 that there was no restriction on him attending R3’s premises to hand back the equipment. Although R3 had said that they would arrange a courier, that hadn’t happened through no fault of the claimant.[265]The matter never was reported to the police despite multiple chasers before the laptop was finally returned on 24 August 2018.[266]The Tribunal considers that such an email, in circumstances in which the claimant has not made any attempts to return equipment in his possession which doesn’t belong to him, is not a detriment. The claimant has not demonstrated that he was disadvantaged in any way by the email.[267]In any event, there are no facts from which to conclude that the detriment was causally linked to any alleged disclosures. The reason for the email was simply that the claimant had not returned his equipment some weeks after he had finished working for R3 and despite having been told that there was no restriction on him returning to R3’s premises to do so. Ms Brand-Grant was under the impression that the laptop etc was to be returned by 16 July 2018. Her request was actually for the claimant to be asked, once again, to return his laptop. This was in the context of the claimant’s unreasonable approach and behaviour at 3 July meeting which may explain such an approach. There is no evidence anywhere to link the alleged disclosure to Ms Brand-Grant’s email. Detriment 8.13: On 7 July, Irene Bakpa sent an email to Janel Hevezi of R3 alleging that C had been dismissed by SEN[268]This did happen. On 9 July 2018 (not 7 as alleged), Ms Bakpa (R3) emailed Ms Hevezi (R3) and forwarded the email referred to above from Mr Hillam. She said: “with regards to the email below. Several issues have arisen between SEN and Daniel leading to his dismissal on Friday, I will bring you up to date with this tomorrow plus my recommendations on going forward.”[269]The Tribunal cannot see how this was a detriment to the claimant as it records what he himself believed to have happened. It is impossible to conceive that this email has created any disadvantage or prejudice to the claimant. No reasonable worker in the claimant’s position would hold such a belief.[270]There are no facts from which to conclude that the alleged detriment was causally linked to any alleged disclosures. Ms Bakpa was simply conveying her understanding of what had occurred. Detriment 8.14: On 16 August 2018, Irene Bakpa sent an email to Jon Raby of R3 alleging that C had been dismissed and because he was upset at being dismissed, he had effectively stolen a laptop.[271]On 16 August 2018, Ms Bakpa wrote to Mr Raby (R3) as follows: “Daniel Cox no longer works for LBC. A request was sent to Sheryl Brand-Grant to capita to disable his account immediately on Friday 6 July. I subsequently sent another request on Monday 9 July. It was discovered that he had taken his laptop home and his agency were advised to chase him to return it.” She wrote again later as follows: “ I’m not having much luck with collection of laptop from leavers. I’m still chasing JG for her laptop. Daniel left for the day and SEN promptly dismissed him without considering that he had his laptop with him and because he is upset at being dismissed, he is now refusing to release the laptop.[272]This cannot be considered a detriment. R3 were seeking to be reunited with their property which was in the claimant’s possession and should have been returned.[273]In any event, there are no facts from which to conclude that the alleged detriment was causally linked to any alleged disclosures. The email was written because it seemed to Ms Bakpa that the claimant was not voluntarily returning R3’s property in his possession which was, in fact, the case. Detriment 8.15: On 24 July 2018, Ms Deborah Degnan of R3 sent an email alleging that C had paperwork relating to children in his locker and had not completed orders.[274]This is not addressed in the claimant’s witness statement and could not be located in the bundle. It cannot therefore be maintained as a detriment.[275]In any event, the claimant had not returned his locker key at this point and was simply a concern raised by Ms Degnan as to the location of paperwork relating to the claimant’s work. Again, the Tribunal concludes that there was no detriment to the claimant in this email being sent to him. Detriment 8.16: On 27 November 2018, Ms Sheryl Brand-Grant of R3 alleged in an email to Chris Maher of R3 that C had returned at around 1 pm on 5 July 2018 to announce his resignation.[276]This did happen. On 27 November 2018, Ms Brand-Grant (R3) responded to Chris Maher (R3) who had asked some questions about the termination of the claimant’s contract. In answer to the question of why the claimant’s contract was ended, Ms Brand-Grant responded: “Daniel ended his own assignment on Thursday 5 July around 1pm, he informed Alison Farmer at Heathfield he was feeling poorly then returned to BWH and informed colleagues that it was his last day. He was not under contract.”[277]This email was sent after the claimant had commenced proceedings.[278]There is no detriment. The email simply records Ms Brand-Grant’s understanding of what had occurred on 5 July 2018. The claimant has not indicated that he suffered any relevant prejudice or disadvantage from the email.[279]In any event, there are no facts from which to conclude that the alleged detriment was causally linked to any alleged disclosures. The reason for the email is that Ms Brand-Grant was asked for her recollection, which she gave. Wrongful dismissal/breach of contract[280]As set out above, R2 was the claimant’s employer. He was not coemployed by R1.[281]Clause 7(d) of the claimant’s assignment summary meant that assignments could be ended with immediate effect if “the Client terminates the Assignment at any time for whatever reason and whether or not any formal written notice of termination is given”.[282]There was no breach of contract when the assignments were terminated as it was permitted under the contract (see clause 16.4 set out above). In any event, the “old” assignment was only due to last until 30 July 2018. The new assignment could be withdrawn at any time (clause 7(d)). The reason why the assignments were terminated by the client is irrelevant to the breach of contract point.[283]The terms of the claimant's contract of employment with R2 allowed for the 2018 Assignment to be ended before its scheduled end, as set out above. The claimant’s contract of employment made specific reference to it being able to be ended with immediate effect when the client (R3) terminated the agreement.[284]Employees of R1 and R3 (on 3rd July 2018) telling the claimant that the 2018 Assignment would end on 6 July 2018, did not amount to a breach of the claimant’s contract of employment as a mistake had been made which was being rectified. It was not a case of terminating the claimant’s employment at this stage, just the old assignment which contained a mistake as regards rate of pay, with a new, correct assignment being offered.[285]There was no breach of the claimant's contract of employment when the 2018 Assignment was ended on 6 July 2018 with immediate effect and the offer of the New Assignment withdrawn before C had accepted or rejected the same as R2 was entitled to end an assignment with immediate effect where the client asked them to do so as set out in the claimant’s contract of employment.[286]In any event, the claimant asked for his p45 on 8 July and considered his employment terminated at that stage. Nonetheless, he was sent “pay between assignment” emails by R2 with which the claimant did not engage. Those emails indicate that the clamant remained on R2’s books.[287]The claimant is not entitled to any notice pay. R2 was not in breach of the claimant’s contract of employment. R2 did not terminate his employment, rather the claimant requested his P45, which is an unambiguous communication that the claimant no longer considered himself employed, and thereby treated himself as dismissed from 8 July 2018. Holiday pay[288]On 26 January 2018 R2 sent the claimant a mini-guide and a contract ready for acceptance. The claimant was also informed that his personal portal had been fully activated so that he could track all activity, including pay, on the system . The mini guide sent to the claimant by R2 which stated: “If you are set to accrue holiday pay instead of it being paid in each payroll, this area of your payslip will be blank until you request holiday pay to be processed.”[289]In the payslips the claimant received from R2, his pay was spilt into two sections: basic pay and holiday pay. Holiday pay was paid as rolled up holiday pay in each pay period. When this was put to him in cross examination, the claimant said that this was the first time it had been explained to him but agreed that his payslips showed entries for holiday pay. When asked how he could claim holiday pay that he had already been paid, he said: “guess I can’t”.[290]It is clear that the claimant has been paid all holiday pay owed to him from the payslips.[291]R2 did not fail to pay the claimant holiday pay for the period 29th January 2018 to 30th September 2018.[292]The claimant’s claims fail and are dismissed. CERTIFICATE OF CORRECTION Under Rule 67, the judgment sent to the parties on 29th January, is corrected as set out in block type at paragraphs 219 of the corrected judgment and to note that the hearing was heard at London South, but that it was a CVP Hearing. Approved by: