Mr K A Hagan v The Millwall Football and Athletic Company: 2305074/2023
JUDGMENT
[1]The claim for breach of contract succeeds in the sum of £273.04[2]The Tribunal makes an award in favour of the Claimant in the sum of £553 under section 38 Employment Act 2002[3]The total of the above sums namely £826.04 must be paid by the Respondent to the Claimant by 3/9/25. (The Claimant must account to HMRC for any tax and NICs which may be due on the sum of £273.04)[4]The claim under section 47B(1) Employment Rights Act 1996 is dismissed[5]The Claimant’s preparation time application is dismissed.REASONS
[1]These were claims of breach of contract (notice pay) and detriment because of protected disclosures (section 47B ERA 1996) as identified in a CMO dated 3/4/25. It was agreed that the Claimant had been a worker and not an employee of the Respondent. It had been previously held that he made two protected disclosures. The detriment he claimed was the non-renewal of his contract as a part-time coach for the 2023/2024 football season.[2]A worker has a right not to suffer a detriment for making protected disclosures. Whether or not the detriment or dismissal flows from a protected disclosure is a question of causation. The detriment must be more than just related to the disclosure for a link to be established. It is not enough to establish that but for the disclosure the employers act or omission causing the act of detriment would not have happened. The Tribunal must consider the mental processes that caused the employer to act or fail to act to determine whether the disclosure actually caused the detriment or dismissal. The protected disclosures must have been a material and not just a trivial cause of the detriment for the claim to succeed. Section 48(2) provides that in a complaint about detrimental treatment it is for the employer to show the ground on which any act or deliberate failure to act was done.[3]I heard evidence from the Claimant and then from the Respondent’s witnesses Mr M Jones (under 15s and 16s Lead Phase Coach), from D Mlinar, (Academy Head of Coaching), and then from Mrs C O’Sullivan, (Head of HR and Payroll). Findings of fact.[4]The Claimant is a fireman as his main job but he has had a strong interest in football coaching. On 22/11/22 he obtained an appointment with the Respondent to work part-time in the late afternoon and evenings and on match days to assist with the coaching of the U15s and U16s squads. He was paid £40 per each 2 hour training session and did about 7 sessions per month. His line manager was Mr Jones whose line manager was Mr Mlinar.[5]In mid-November 22 the Claimant had been given videos and other information about players and he had noticed that player A had Osgood Schlatter’s disease. At the first training session he attended on 23/11/22 he raised concerns with Mr Jones that Player A was exhibiting symptoms of this problem. In response Mr Jones told the Claimant that “it was just Player A’s unusual running gait”.[6]The Claimant was not satisfied with this and raised the issue about two or three times orally with Mr Jones until 10/1/23 when the Claimant sent Mr Jones an email re-iterating his concerns about this and asking that Player A be give a “circuit breaker” - ie a two week rest from football and school sports. Mr Jones replied politely in writing to the Claimant , saying that the medical and science department which was aware of the situation would be making the decisions about this.[7]The Claimant did not have any formal relevant training or qualifications to equip him to make judgments or decisions about the treatment of Player A. Mr Jones took the view that he preferred to be guided in the matter by the Respondent’s specialist physio and medical team who were already aware of and monitoring and advising him about Player A’s training. In his oral evidence Mr Jones explained that Player A had a history of knee problems which the club was aware of but it was trying to get him back into training, and this included specialist assessment before every training session and match.[8]On 28/1/23 after the match against Watford Mr Jones told the Claimant that he did not trust him and he shouldn’t rock the boat too early.[9]Also on 28/1/23 there was an exchange of phone of messages between the Claimant and Mr Jones. The Claimant had been sending messages directly to a player’s phone. This was against policy which required all such communications to go through the Respondent’s central and monitored Kairos system. Mr Jones messaged the Claimant to instruct him “Kofi stay away from individual calls or contacts please. This is a safeguarding issue. As previously stated you are encroaching on areas outside of your role”.[10]There were also difficulties caused by the Claimant sending messages late at night.[11]On 13/2/23 the Claimant sent a detailed unsolicited email to Mr B Dunn, the Respondent’s head of recruitment. This email contained recommendations of players which the Claimant had spotted and thought should be added to the “recruitment library database”. This email annoyed Mr Dunn who sent an email the next day to Mr Mlinar requesting “Dan can you have a word please mate he's getting above his station”.[12]By February 23 the relationship between the Claimant and Mr Jones had deteriorated. During the course of a conversation Mr Jones had stated that acting on a suggestion of the Claimant’s would be like “the lunatics running the asylum”. The Claimant took exception to this and other comments made by Mr Jones. The Claimant complained to Mr Mlinar who had a meeting with the two of them. Mr Mlinar told the Claimant that he could make a formal complaint against Mr Jones if he wished to, but ultimately the Claimant chose not to.[13]The Claimant wrote a long email on 14/2/23 to Mr Mlinar complaining about Mr Jones and saying that he wanted any formal meeting between him with Mr Jones in future to be either recorded or for another member of staff to be present. Notably the email does not include any reference to the Player A issue.[14]Because of the breakdown ion the relationship between the Claimant and Mr Jones, Mr Mlinar agreed to take responsibility for the Claimant’s half-season appraisal. The Claimant made no reference to his concerns about Player A in his part of the appraisal. Mr Mlinar met the Claimant and tried to guide him in improving his relationships and communications at work. In the appraisal document Mr Mlinar included the following: “Your key relationships here Kofi are myself and Murray. I appreciate how you have reached out to other people to seek answers to questions you may have and I do not want to discourage you from doing this, but we want to develop the culture here of conversation first (where appropriate) rather than lengthy emails….I appreciate you may have worked in more formal environments previously, here we want rich conversations face to face where possible. Something for you to consider moving forward….”[15]Also in February Mr Mlinar was approached by a variety of persons who questioned and criticised the Claimant’s manner and performance, and complained about matters such as the level of his coaching and the fact that he was sending messages at antisocial hours. Mr Mlinar phoned the Claimant and warned him that his name was “hot around the playing ground” .[16]There was an incident at the game at Bournemouth on 18/2/23. Mr Jones standing on the side-line uttered audible negative comments and swearing about the performance of a player on the field. This was reported to the player who became upset. Mr Jones later apologised to him. The Claimant put a report about this on Myconcern, (a Respondent intranet facility for making complaints or expressing concerns) sparking an internal investigation against Mr Jones.[17]On 28/2 there was a game against Fulham attended by Mr Mliner who was dismayed to see the Claimant and Mr Jones arguing and disagreeing with each other in the dugout and on the side of the pitch over decisions such as substitutions, tactics and other coaching decisions. The subjects being argued over included whether Player A should be on the field but also related to other players and issues . This occurred in front of players, parents and spectators and went on for much of the match, particularly during the second half during much of which Player A had already been taken off. This display made Mr Mlinar realise that the disfunctional relationship was beginning to spill over in public, was having a bad effect on morale and could not be allowed to continue.[18]On 1/3/23 the Claimant wrote another long email to Mr Jones, copied to Mr Mlinar. The first half of the email complains about Mr Jones overriding the Claimant and that Mr Jones was taking matters out of the Claimant’s hands and not giving him an opportunity to manage. The second half of the email is all about Player A, again requesting that he be allowed a circuit breaker and expressing concern about his health. This second part of the email has been held to be a protected disclosure.[19]Mr Mlinar had a meeting when he warned the Claimant that if he could not get on with Mr Jones then the Claimant’s contract would have to be terminated.[20]On 2/3/23 Mr Mlinar sent a message to Mrs OSullivan in HR seeking advice about getting rid of the Claimant. The email includes “Currently we have a PT staff member within the academy who we feel may not be a good fit for us moving forward for a variety of reasons. These concerns are both performance and character based for the individual in question….”[21]However, Mr Mlinar did not decide to terminate/not renew the Claimant’s contract then. He decided to wait to see if the situation could be salvaged. He hoped that the Claimant would settle down into his role and that he and Mr Jones could learn to work together.[22]In March 23 the Claimant noted that Mr Jones was standing separately from him at matches etc.[23]On three occasions in March and again in May the Claimant’s tutor for his attempt to obtain his UEFA A Licence (ie a further formal coaching qualification) was unable to carry out a proper assessment because sufficient numbers of players were either not made available or were taken off the pitch during the session. The Claimant believed that Mr Jones was doing this to deliberately obstruct the assessments. However he did not accuse Mr Jones of that at the time and Mr Jones in his oral evidence denied having done so. I accept Mr Jones evidence about this.[24]There was also an incident when the Claimant offered to reduce his claim for payment on his time sheet to reflect the fact that he had to leave the training session early on a few occasions, but Mr Jones told him he would be paid for the whole session in any event. The Claimant was very suspicious about Mr Jones’ motives in saying this (the Claimant believed that Mr Jones was trying to get him into trouble) but I accept Mr Jones’ evidence that he was simply trying to help the Claimant, who was always punctual and also put in time for which he was not paid on other occasions.[25]Claimant put his concerns about Player A on myConcern. This annoyed medical staff who were already working with and supporting Player A. The Claimant then apologised to the staff for this. The Player A issue was resolved to everyones’ satisfaction and by April it was dormant.[26]On 2/4/23 the Claimant and Mr Jones were travelling to or from a match with players one of whom was playing loud drill/rap music which used the N-word and also made obscene references to female genitalia. The Claimant, who is a black man, was uncomfortable about this as were others in the vehicle. Other more senior coaches did nothing about it and it was left to the Claimant to have to go to the player concerned to tackle the issue. He followed this up the next day (2/4/23) with a long email to Mr Jones. The matter was then escalated via Mr Mlinar to a Care Officer who came up with a plan to try to prevent this type of music being played on the Respondent’s transport in future. The Claimant however was not told about this. I regard this incident as a serious one which does not reflect well on the Respondent or the responsible managers. However, there is no race harassment claim before me.[27]While this incident is largely irrelevant to the issues in this case it does give an insight into an aspect of the Claimant’s character. He is an upright person who is not scared to stand up for what he thinks is right and is proactive when others are complacent or willing to overlook or ignore things which are wrong. Apart from this aspect, this incident does not assist me with the issues I have to decide.[28]On 5/5/23 the Claimant sent another long email to Mr Jones, this time about Player B who was exhibiting behavioural and mental health problems. This email has been held to be a second protected disclosure. Mr Jones replied the same day copied to Mr Mlinart saying that the Claimant’s concerns had been noted and that Player B would be monitored. On 10/5/23 Mr Mlinar wrote a complimentary email to both the Claimant and Mr Jones saying that he “really like the fact that we have raised this and its being monitored by you both. Well done”. The Respondent monitored Player B whose behaviour worsened and who was eventually managed out of the squad. There is no evidence that this was a controversial issue between the protagonist in this case.[29]On 28/5/23 the Claimant sent in his part of his end-of-season appraisal for completion by Mr Mlinar. In it he raised the problem of finding that insufficient players were available when his tutor visited to assess him for the UEFA A Licence. It is notable that although in his part of the appraisal document, the Claimant commented on various matters including relationship issues, he made no reference to Players A or B.[30]By mid-June Mr Mlinar decided that he would not renew the Claimant’s contract for the next season. On 14/6/23 he liaised with Ms O’Sullivan in HR about this.[31]On 21/6/23 Mr Mlinar phoned the Claimant and told him that his contract would not be renewed for the next season “because of his personal relationship with Mr Jones”[32]I find that Mr Jones was not involved in this decision. Mr Jones was absent on holiday from the second week in May to mid-July 23.[33]In oral evidence Mr Mlinar expanded on his reasons for his decision. The Claimant had started the practice of sending long emails to Mr Jones and others and copying in Mr Mlinar instead of sorting things out himself face-to-face, By the end, in order to protect himself, Mr Jones also had started copying Mr Mlinar on his emails to the Claimant. On several occasions Mr Mlinar had had to act as mediator and had tried to intervene to improve matters. The poor relationship between the Claimant and Mr Jones took up a lot of Mr Mlinar’s time and was becoming a distraction from his proper role which was to coach the under 18 and under 21 squads. In addition, the coaching of the U15 and 16 squads was suffering and being delivered at a low level. Mr Mlinar discussed his decision with his line manager Sciott Fitzgerald (who is an Academy Director in overall charge of hiring and firing). Mr Fitzgerald supported the decision.[34]What Mr Mlinar had seen at the Fulham match started him thinking that the Claimant would have to go unless things improved, but they had not improved and had got worse.[35]Mr Mlinar stated that he did not criticise or privately condemn the Claimant for having raised issues about Player A and B. In fact he supported and encouraged coaches taking an interest in and being concerned for the wellbeing of players. The problem he had with the communication of 1/3/23 was the first part which showed the Claimant pointing his finger (metaphorically) at Mr Jones and disagreeing with him about coaching decisions, which was a continuation of the acrimonious behaviour he had witnessed at the Fulham match a day or so earlier. I accept this evidence.[36]As the Claimant made repeated suggestions during the Hearing that the Respondent had been lax about safeguarding and had breached the duty of care it owed to players, I record that I have seen no evidence of that.[37]On 23/6/23 the Claimant sent an email to Mr Mlinar which raised the suggestion that he had been terminated for making protected disclosures.[38]The Claimant was subsequently paid his holiday pay and what was erroneously thought to be his average months’ wages (£280 per month) up until the end of July 23. He did not challenge those amounts at the time but the figure is now conceded to be wrong.[39]The Claimant’s contract with the Respondent had a provision stating that it could be terminated by either side by the giving of 28 days written notice. It did not contain a PILON clause. The Claimant did not receive a written notice of termination.[40]The Claimant in paragraph 18 of his witness statement for the Tribunal included the following : “Myself and Murray Jones had an extremely acrimonious personal relationship after I had made a number of complaints of his conduct including foul and abusive language in front of minors, poor individual personal treatment of players, the lack of managing racist and derogatory language played on work premises, derogatory comments on mental health stating I was acting as if “the lunatics had been running the asylum” when I took the initiative in a work detail, obstruction in his control regarding my coaching qualification also identified as a concern by an outside observer, raised appropriately in my never addressed end of season appraisal and with these factors in mind took stock replying on the 13th of June 2023 of which 24 hours after sending this email the respondent took steps again to terminate my employment. “[41]Notably this paragraph which summarises the Claimant’s main points for the poor relationship between him and Mr Jones, makes no explicit reference to either player A or player B or to the Claimant’s protected disclosures about them.Conclusions
[42]Mr Mlinar terminated /decided not to renew the contract because he concluded reasonably that the relationship between Mr Jones and the Claimant was untenable. and not conducive to supporting players and that coaching provision being provided was not at a sufficiently high standard.[43]The relationship between Mr Jones and the Claimant was already bad by February 23 during which month the Claimant wrote a letter complaining about Mr Jones, such that the mid-season appraisal had to be removed from Mr Jones and taken over Mr Mlinar. The Claimant had made other complaints about Mr Jones on myconcern, and was seen arguing with him in public at the Fulham game. All this had occurred before the first protected disclosure was made on 1/3/23.[44]The reasons for the bad relationship were various: The Claimant challenged and disagreed with Mr Jones who was senior to him in the coaching hierarchy. When the two disagreed about substitutions, tactics or training methods then the Claimant should have accepted that Mr Jones, as the more senior coach with far more experience and knowledge of the Academy, would decide the matter. Instead the Claimant persistently argued and escalated the differences. Perhaps matters would have been different if the Claimant had established and proved himself first as a coach at the Academy, but he had just arrived when he started asserting his views, making suggestions and offering advice where it was not wanted, and it is not surprising that others found this irritating. It was not only Mr Jones who felt this. Mr Dunn complaining that the Claimant was getting above his station is another example. And there were clearly many more. The Claimant sent long emails sometimes at anti-social hours instead of dealing with people informally and face-to-face. This did not facilitate good personal relations and it also resulted in a slow formal approach to issues which should have been resolved quickly and informally. Mr Mlinar commented on this point to the Claimant on more than one occasion but he did not heed his advice. The Claimant also breached the policy against direct electronic communications with players and their parents.[45]Mr Jones did his part to contribute to the poor relationship for example by swearing and speaking in a manner which the Claimant found to be inappropriate. However, this type of thing is rife in football. The Claimant chose to raise formal complaints about it which he was entitled to do, but the predictable result was further damage to his relationship with his line manager.[46]One of the many subjects that Mr Jones and the Claimant disagreed over was how Player A’s Osgood Schlatters knee problem should be treated. It is not my role to decide who was correct about this but Mr Jones had many years’ experience of dealing with such problems in young players and he was guided and acting in accordance with specialist advice from the medical and physio team. The Claimant’s protected disclosure about Player A (which was dated 1/3/23) came after the subject had been live between Mr Jones and the Claimant for at least three months. The protected disclosure did not contribute materially to the bad relationship which was already very bad before then.[47]Mr Mlinar who was the decision maker, did not object to the protected disclosure and by the time that the Claimant’s contract was terminated the issue had been long since resolved.[48]It is true that shortly after the first protected disclosure was made, Mr Mlinar was taking advice about getting rid of the Claimant, but that was triggered by what Mr Mlinar had seen at the Fulham game, and not by the protected disclosure.[49]It is also plain from the contemporary documents that both Mr Jones and Mr Mlinar responded positively to the Claimant’s email on 5/5/23 about Player B (which email is the second PD).[50]It is notable that the Claimant, in his mid-season and in his end-of-season appraisal forms and in his written complaints about Mr Jones during the period of his work for the Respondent, did not attribute his relationship problems with Mr Jones to the Claimant having raised issues about Player A or B. The first time he made this suggestion was on 23/6/23 after termination of his contract, by which time he had started to formulate possible claims against the Respondent. Even in his witness statement however, when summarising the causes from his point of view for what he described as his “extremely acrimonious relationship with Mr Jones” he failed to refer to Player A or B or to the protected disclosures regarding them.[51]As I have already observed, the Claimant appears to me to be an upright, responsible and serious-minded person and not one to tolerate or standby when he thinks he should speak up even if others are willing to sit back and let things pass. A good example of this is how the Claimant challenged the racially abusive and misogynistic music on the team transport, when others more senior to him were happy to just ignore the situation. The Claimant is to be commended for being principled and acting in accordance with his beliefs about right and wrong. However, this tendency did not make for an easy relationship between him and Mr Jones and others who had a different approach and who did not welcome being told their business by a new junior coach.[52]I do not find that the decision to terminate or not renew the contract was because the Claimant had made protected disclosures. It was for other reasons as described above. Accordingly, the claim for whistleblowing detriment fails.[53]The summary termination by means of a telephone call from Mr Mlinar was a breach of contract because the contract did not provide for an oral termination without notice. That breach entitled the Claimant to damages limited to the minimum amount to which the Respondent could have reduced its liabilities, had it acted in accordance with the contract by giving 28 days written notice. Those damages did not exceed four weeks’ pay which the Respondent concedes he is entitled to. It is now conceded that he should have been paid £553.04 in this regard but was paid only £280 so his claim for breach of contract succeeds to the extent of the shortfall namely £273.04.[54]It has been asserted by the Respondent from its ET3 onwards that the Claimant’s contract was a zero hours contract which was intended to and would lapse at the end of the football season (ie around May/June) unless expressly renewed and renegotiated for the next season. This is stated for example in paragraph 3 of the Grounds of Resistance and much the same is stated in Ms O’Sullivan’s witness statement paragraph 9. However, the actual contract issued to the Claimant failed to state that it would terminate at the end of the season. Thus, it failed to comply with the requirements of section 1 ERA 1996 which requires in ss 1(da)(g) that the following must be provided in a statement of initial employment particulars “Where the employment is not intended to be permanent, the period for which it is expected to continue , or if it is for a fixed term, the date when it is to end”. The contract also lacked many other requirements of section 1, for example any reference to the holidays and holiday pay to which the Claimant was entitled. No other statement of particulars was provided. These provisions apply between work providers and workers as well as between employers and employees, seeing that the word “worker’ has been substituted for the former word “employee” in section 1(1). As the Claimant’s breach of contract claim has succeeded, section 38 EA 2002 requires me to award 2 weeks’ pay and I have a discretion to award 4 weeks’ pay if I think it just and equitable to do so. I award the latter amount because the status of the Claimant and the manner and timing of the termination of his contract have caused upset and difficulties to the Claimant. The Respondent is a large organisation which had access to specialist HR advice.[55]Summary; damages for breach of contract/notice pay : £273.04; Section 38: 4 x £138.25 = £553. Total £826.04 Preparation Time Order[56]The Claimant made an application for a preparation time order on the grounds that the Respondent had acted unreasonably by not disclosing to him a relevant document namely an email dated 5 July 2023 containing (pessimistic) advice to the Respondent about its prospects of successfully defending the Claimant’s prospective whistleblowing claims, from an organisation called The Performance Group Ltd which was a source of non-legally qualified HR support and advice used by the Respondent. The Claimant contended that had this document been disclosed to him, it would have caused the Respondent to settle his claims or re-instate him and hence the whole proceedings would have been avoided.[57]Disclosure was directed to be given in this case on 5/12/25 by which time the claim, which was presented on 20/9/23, had been running for 15 months, so, even if the document had been disclosed in December 24, it could not have saved the whole proceedings. In any event it is fanciful to submit that it would have forced a settlement. The Respondent had decided to not follow the advice in the email which turned out to be inaccurate in its predictions. The Claimant had obtained the document directly from The Performance Group Ltd pursuant to a SAR but was unable to quantify in any coherent manner the time this had taken him. Furthermore, more fundamentally, I accepted the Respondent’s submission that there was no duty on the Respondent to disclose the document because it was irrelevant to the issues. It was irrelevant because the opinions of third parties about the merits of prospective claims are of not assistance to the Tribunal in deciding such claims nor do they add to the proper evidence upon which such claims are decided.[58]Hence, I dismissed the preparation time application.