Employment Judge MJ ReedIn person for claimantRichard Roberts (instructed by Solicitor) for respondentDate 17 November 2025
JUDGMENT
[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed. The respondent shall pay the claimant the following sums:a. A basic award of £7,344. It is just and equitable to reduce the basic award payable to the claimant because of his conduct before the dismissal. This award takes account of that reduction.b. The Tribunal concluded that there is a 100% chance that the claimant would have been fairly dismissed in any event and therefore makes no compensatory award.[2]The complaints of being subject to a detriment for making a protected disclosure are not well-founded and are dismissed.[3]The complaint of breach of contract in relation to notice pay is not wellfounded and is dismissed.[4]The complaint of breach of contract in relation to the claimant’s entitlement to shares is not well founded and is dismissed.[5]The complaint in respect of holiday pay is well founded. The respondent failed to pay the claimant in accordance with regulation 14(2). The respondent shall pay the claimant £4,487.79. The claimant is responsible for paying any tax or National Insurance due on this sum.
REASONS
[1]Mr Joo brought claims for unfair dismissal (including automatically unfair dismissal on the basis of a protected disclosure); wrongful dismissal / notice pay; protected disclosure detriment; accrued holiday pay on termination and breach of contract (in respect of his entitlement to shares).[2]The issues involved in these claims were identified at the preliminary hearing that took place on 26th April 2023, page 28-31[28-31] Procedure, documents and evidence heard[3]There was a bundle of documents agreed between the parties, running to page 456[465]. References to page numbers within these reasons refer to that bundle unless otherwise indicated. It is apparent from the page numbering that after that bundle was paginated further documents were added. This means that the physical page numbers and the electronic page numbers are often different. These reasons use the convention of placing the electronic page numbers in square brackets. For example, the Response form begins at page 58[67] of the bundle.[4]A number of documents are written in Korean. The parties had agreed English translations for the purposes of the Tribunal. In these reasons page references are to the English translations, unless otherwise indicated.[5]The Tribunal heard evidence from Mr Joo on his own behalf. On behalf of the respondent we heard Mr Jong Ho Kim, Manager; Miss Sea Rom Chung, Ex-Director of Pan Asia GB and Mr Xuejun Ji, Director of Pan Asia GB.[6]Unfortunately, the hearing of this case encountered a number of problems. The hearing was not completed in the original listing, in large part because of technical difficulties with the CVP video system. Although the hearing was primarily conducted in person, it was a hybrid hearing to the extent that an interpreter and one member of the Tribunal attended by video. On a number of occasions there were technical difficulties with the video, including the Tribunal member being cut off. Although these difficulties were resolved and did not affect the fairness of the hearing, they delayed matters significantly. The hearing was then re-listed for the 18th and 19th July 2024. This hearing, however, did not go ahead because one of the members of the Tribunal became unavailable, due to a family illness. The Tribunal consulted with the parties about the possibility of proceeding with a reduced panel, but Mr Joo indicated that he did not wish to do so. The hearing therefore did not recommence until 4th November 2024.[7]On the 4th November 2024 the Tribunal was not able to begin the hearing until 2.35pm, because, due to administrative error, an interpreter had not been booked to assist Mr Joo. This again resulted in the hearing going part heard. Although the Tribunal considered inviting the parties to provide written submissions rather than attend a further hearing, it concluded that this would not be fair to Mr Joo, who was appearing as a litigant in person.[8]The Tribunal is grateful to both parties for their patience and cooperation when dealing with these difficulties.[9]Employment Judge Reed also wishes to record his apology to both parties for the delay in producing this judgment and reasons, due to a number of personal circumstances. Finding of fact[10]The tribunal considered the oral evidence and documentary evidence to which we were referred. All findings of fact were made on the civil standard of proof. That means that they were reached on the basis that they are more likely to be true than not.[11]These written reasons are not intended to address every point of evidence or resolve every factual dispute between the parties. The Tribunal made the factual findings necessary to resolve the legal disputes before us. Where findings have not been made, or are made in less detail than the evidence presented, that reflects the extent to which those areas were relevant to the issues and the conclusions reached.
Background
[12]Pan Asia GB Ltd supplies Chinese and Korean food to restaurants and other businesses in and around London. It is part of an international group of companies. Its shareholders are a group of Chinese and Korean business people.[13]Mr Joo began work for Pan Asia GB Ltd on 1st November 2008 as a general manager. He reported to Mr Seun-Wan Kim, who was the Managing Director. To avoid confusion between the two Mr Kim’s involved in this case, these reasons will refer to Mr SeunWan Kim as ‘Director Kim’.[14]In this role Mr Joo was responsible for general managerial duties. In particular, because Director Kim was not fluent in English, he was responsible for assisting him with English documents and communications.[15]The other key figures in the business were Mr Jong Wan Chung, who was the Chair of the group of companies and the ultimate authority over the business, together with Mrs Eun-sok Chung, an important shareholder and his wife. Their daughter, Ms Sea Rom Chung also later became involved with the UK business. Mr Chung.[16]Also prominent in the relevant events was Mr Jong Ho Kim, the Sales Department Manager in Pan-Asia Austria. These reasons refer to him as Mr Kim. Shares[17]The tribunal accepted Mr Joo's evidence that at the beginning of his employment, he had some discussion with Mr Chung about the possibility of him receiving shares as part of his compensation in the future. The tribunal concluded, however, that this was a general discussion, rather than a specific promise. Mr Chung said that if the business in the UK was successful and Mr Joo was an important part of that success, he was likely to receive shares. Mr Joo’s evidence did not refer to a specific discussion in which an agreement had been reached or suggest that he had been promised a particular quantity or value of shares. Nor did he suggest that there was any clear agreement about the circumstances in which he would be entitled to shares. No written agreement was produced and no witness suggested that such a document existed.[18]On the basis of this evidence, the Tribunal concluded that there was no specific promise that Mr Joo would be provided with a particular quantity / value of shares or discussion of the circumstances in which shares would be received. Mr Chung went no further than to express a general intention for the future. Director Kim[19]Both parties agree that, around September / October 2020, Mr Joo reported that Director Kim was involved in embezzling money from the company in various ways.[20]The Tribunal did not hear detailed evidence about Director Kim’s actions, which were not the main focus of this case or Mr Joo’s claims. It is sufficient, for the purposes of this decision, to record that both parties accept that Director Kim diverted money from Pan Asia GB for his personal benefit using a number of mechanisms. These included paying for personal expenses using company funds, transferring company funds to personal accounts and removing company goods for his benefit, in particular large quantities of salmon, without any payment to the company.[21]Mr Joo had a conversation with Chairman Kim about this in October 2020. He then produced a written table, setting out the ways in which he believed that Director Kim had wrongly extracted money, which he sent to the Chairman on 31st October 2020, page 395[404]. This was followed by a further written report that he sent to the Chairman on 29th January 2021, with further and more detailed allegations, page 399- 400[408-409].[22]The Tribunal did not hear detailed evidence about how the situation with Director Kim was dealt with. Mr Chung visited the UK to investigate personally as well as sending other members of the group. On 17th November 2020 Miss Chung and Mr Ji were appointed as Directors, largely replacing Director Kim while the investigation continued. On a day-to-day basis Mr Joo was in charge of the UK operation, although he referred any important matters to the Head Office.[23]It is apparent that Mr Joo was involved in that investigation and also took on further responsibilities. It is also apparent that Mr Joo was in a difficult situation since at times he was receiving instructions from both Mr Chung and Director Kim that were not compatible.[24]During this time Mr Kim also became more involved in the UK operations, effectively acting on behalf of Mr Chung.[25]It was apparent to the tribunal that the situation between October 2020 and February 2021 was confused and changeable. This is unsurprising given the profound impact on the business following the discovery of Director Kim's actions.[26]Ultimately, on 1st February 2021, Director Kim was removed from his position as Director and demoted to general worker, page 291[300]. On 3rd February 2021 he was dismissed from his employment. Although a number of documents and witnesses use the term ‘resignation’ in this context, the Tribunal accepted Mr Ji’s evidence that what was meant by this term was dismissal. Following events[27]On 2nd February 2021, immediately prior to Director Kim’s dismissal, Mr Joo had the following exchange with Mr Chung, page 123[132]: Director Joo: I don’t understand why Yoon Jin Oh is included in the notice announced today. Director Joo: Seung Wan Kim will respond to the matter with a solicitor Director Joo: Mr. Kim [Director Kim] is threatening to dismiss me by telling me not to follow the head office’s instructions. As he spoke informally, I told him strongly not to do so. Chairman: This is not instruction from the head office, but two co-directors. Director Joo: I will carry it out as noticed. Director Joo: It should be prioritised to grant me more power in order to resolve the current incident. Therefore, please appoint me as director of the company in a general meeting. As a result, I will have authority to instruct every employee, and make measures such as replacing the business credit-card. Moreover, it will be easier to take measures against [Director Kim]. Please make this decision immediately. Director Joo: I am now generally managing everything. Please provide a written delegation list regarding what I should do from now.[28]On 3rd February 2021 Mr Joo wrote an email to Mr Chung and Mrs Chung, following a conversation along similar lines he had had with Mr Chung, page 293[302]. He referred to his long history with the company and his significant contribution to the business’s success. It is clear from that letter that Mr Joo was again suggesting that he should be placed in charge of Pan Asia GB. He described himself as at the centre of its growth and said that he had managed everything for the company effectively since the incident with Director Kim.[29]On 9th February Mr Joo had the following exchange with Mr Chung: Chairman: Hello. We would like to relay a message of appreciation for your proper response and devotion in these difficult times due to Covid and the changes to the company. The Head Office will make an effort to normalise management as soon as possible. We have prepared a new structure and planning regarding each role and execution. From now on, the UK branch office will be run by the Head Office directly. The Head of Branch will be deployed from the Head Office. We summarised the role of yourself, Mr. Joo, as below. General administration; Advising management; Reporting to head office weekly and monthly, recruiting members, reporting remuneration decisions; Clearing customs for containers; Ordering salmon (resolving claims from customers); and Managing Amazon sales. As for Amazon, there are about one thousand deliveries currently being made from Germany bringing in a revenue of 60,000 Euros (excluding B to C, if included, more than 100K Euros). We understand the structure of Amazon perfectly. The UK has an independent structure from the EU. In Germany, we have made revenue with about 15 goods for which we will let you know all the information. Although we need to set up a structure in the UK separately, this is the easiest way to do so. We believe Director Joo would create results by leading the matter. We will offer compensation for these results. We will give you a detailed explanation later by phone. Please understand the above. Thank you. Director Joo: Then, what happened to the purchasing job that I am currently in charge of? And please explain in detail the general administration responsibilities. Chairman: The structure and roles will be provided after the arrangement. In principle the quantity and ordering period is decided by the sales rep and storage manager. The Head Office will give orders directly. Director Joo: Then please provide a specific and detailed company operating schedule. Director Joo: Please exclude me from general administration jobs Chairman: I understand[30]Although Mr Chung avoided saying so directly, it is clear from these messages that he did not intend to accept Mr Joo’s suggestion that he be promoted to run Pan Asia GB. This is most clear from his indication that the Head Office would give direct instructions. In context, that was a clear rejection of the idea that Mr Joo should, in effect, replace Director Kim as the person in charge of the UK operation.[31]That decision was also made clear by Mrs Chung’s email, sent to Mr Joo on 10th February 2021, page 298[307]. The emails states that it is being sent on behalf of Mr Chung and states clearly that the UK branch will operate under the direct management of the Head Office, with a weekly video conference being held for this purchase. The extent of the intended control can be seen by the instructions that, when a quantity of goods is to be purchased, this must be authorised by the Head Office purchasing staff. Attached to the email was an organisational chart, page 308[317]. That has the HQ in ultimate authority, with Mr Joo and Ms Yunjin Oh both reporting directly to it. Miss Oh is then responsible for managing both the sales and warehouse teams (the only two teams operating in the UK), while Mr Joo is position to the side, with no direct managerial responsibility for staff.[32]Ms Oh had been employed in a more junior role in the business. In effect, on the 10th February 2021 she was promoted into a new managerial role with considerable responsibility for the day to day running of the UK business. It was not as senior as Director Kim’s role had been, but it gave her considerable day to day authority. On paper it was as senior a role as that held by Mr Joo. In practice she had greater authority, because she was directly managing staff. It also meant that Ms Oh was taking responsibility for much of the day-to-day management that had temporarily been exercised by Mr Joo during the investigation into Director Kim.[33]The high level of control by head office that was expected to operate can also be seen from the Company Regulations dated 12th February 2021, page 303[312] which state that, while Mr Joo may authorise transactions for less than £500, any purchases above that figure must be reported to the Head Office.[34]On 15th February 2021, Mr Joo made a report to the British authorities, using the online form used to report an immigration or customs crime, page 409-420[417-429]. The report was made against Ms Soon Hwa Kim and Ms Oh. Mr Joo alleged that Ms Kim had been paid an inflated salary, allowing them to meet the threshold salary required to obtain immigration status. He suggested that the gap between the inflated salary and the correct salary was then paid to Director Kim. In respect of Ms Oh, Mr Joo stated that he believed that she had a British passport, but alleged she had been paid a similar inflated salary with the difference again being paid to Mr Kim.[35]Mr Joo did not make any similar declaration to anyone at Pan Asia or inform anyone that he had made such a report.[36]On 18th February 2021 Mr Joo wrote an email to the central Pan Asia email (in effect to the Head Office). He referred to the proposed plan for Pan Asia GB and requested that the scope of work and the corresponding rights / responsibility be clearly defined. In context, the Tribunal understood this to be an implicit objection to the proposed organisational structure that was to be imposed.[37]On 24th February 2021 Mr Joo wrote a further email to Mr Chung and Mrs Chung, page 309-310[318-319]. He repeated his statement that he had worked hard for Pan Asia GB and was responsible for its success. He pointed out that that he was been the one to report Director Kim’s wrongdoing. He went on to write that, given this, he felt that the way that he was being treated by Head Office was ‘totally beyond my understanding’. He highlighted that there had been substantial delay in dealing with the situation with Director Kim. Further, he suggested that it was wrong for the Head Office to take director control and that, in practice, his job was being adjusted in a way that was unfavourable to him. He wrote that this suggestion that he be appointed as Director had been ignored and, instead, Ms Oh had been appointed above him. He alleged that Ms Oh had been directly involved in Director Kim’s wrongdoing and received illegal compensation for this.[38]Mr Joo went on to state that: ‘To be honest, I believe that I could have been rewarded to some extent for my seamless, continuous contributions and the report for the case of [Director] Kim to the Head Office.’ He also referred to an assurance from Mr Chung, given when he first joined the company, that he would receive some shares if he contributed to the company’s growth.[39]On 25th February 2021 Mr Chung replied to that email, page 313[322]. He wrote that Mr Joo was coping well in difficult circumstances and that he appreciated that. He went on to write that the current situation was temporary and that, within two months, a Chinese Director would be sent out by head office to take charge. He went on to indicate that Mr Joo retained a senior position in the company and that he expected that he would continue to assist the new branch head. Finally, he indicated that, in line with previous conversations, he expected Mr Joo to take forward the amazon business and that he would be supported in doing so. This support would include establishing a performance incentive system for Mr Joo.[40]The exchange between Mr Joo and Mr Chung highlights what would become a fundamental divergence of view between them about the response to Director Kim’s dismissal. Fundamentally, Mr Joo strongly believed that he had been the key employee responsible for the success of Pan Asia’s UK operations and that he had then acted properly, under difficult circumstances, both by reporting Director Kim and dealing with the ensuing pressures while that situation was dealt with. He believed that it was only right that he be rewarded for his honesty, loyalty and good work. To him, it therefore seemed natural that he should be appointed into the vacant role left by Director Kim.[41]While Mr Chung valued Mr Joo’s work, he did not share his view that the natural next step was to appoint him as Director. Rather, he concluded that there needed to be some reorganisation within Pan Asia GB, but that Mr Joo should retain something like the role he had performed under Director Kim. The Tribunal’s view was that this was not a surprising or unusual attitude. In many cases the departure, for whatever reason, of a more senior manager will result in their immediate subordinate being promoted into that role. But it is equally common for this not to happen and either an alternative internal candidate or an external candidate to be appointed.[42]It is also apparent from the documents that Mr Chung had some concerns about Mr Joo’s capability to carry out a more senior role. In particular, in his email of 3rd February 2021, Mr Joo refers to a discussion he had had with Mr Chung in which the Chairman had suggested that Mr Joo would ‘often argue with staff’. Although Mr Joo denied that tendency in the email, it indicates that it was something on Mr Chung’s mind at this time.[43]At about this time, seven employees of Pan Asia GB resigned, seemingly either in response to Director Kim’s departure or in order to take up employment with him. This represented approximately 40% of the workforce and had a significant operational impact on Pan Asia GB. Mr Kim visit to the UK[44]Mr Kim visited the UK between the 11th and 26th March 2021.[45]Mr Kim’s evidence was that, when he visited the UK, he observed that Mr Joo was not talking to other employees and not doing any work. He described him simply sitting at his desk throughout the approximately two weeks that Mr Kim was in the UK. He said that Mr Joo was refusing to perform routine work when requested by Miss Oh, on the basis that it had not been specified in his employment contract. Mr Kim said that this was untenable and unreasonable, both because Mr Joo’s responsibilities had expanded considerably since he had joined Pan Asia over a decade previously and because, in reality, Mr Joo was simply refusing to perform any work at all.[46]When considering the fairness of an employee’s dismissal, the Tribunal must focus on the employer’s belief about that employee’s conduct and whether it was reasonable. In that regard, it is not for the Tribunal to reach its own findings of fact about what happened. The correct legal approach to such questions is dealt with in more detail below. For a number of other purposes, including the claim for notice pay, the Tribunal does need to reach its own factual conclusions. In this context, the question of whether Mr Joo was refusing to carry out his duties, is a key factual dispute and it is convenient to deal with it here.[47]The Tribunal accepted Mr Kim’s evidence that Mr Joo had, essentially, ceased his dayto-day work. The Tribunal found that Mr Kim’s evidence on this point was plausible and congruent with other events. In particular, it was apparent from other events, and from his evidence, that Mr Joo was extremely distressed by Mr Chung’s decision not to appoint him as Director and the decision to appoint Ms Oh. His immediate response to this had been to make a report to the immigration authorities against her, without informing Pan Asia. That was a strong reaction and demonstrated that he was willing to act in a manner outside the norm. This conclusion is also congruent with later events, in particular Mr Kim’s ill-fated attempts to mediate with Mr Joo. If Mr Joo had, as he suggested, been working normally, there would be little reason for Mr Kim to act as he did.[48]On the 19th March 2021, Ms Chung and Mr Ji issued a HR notice which attempted to set out the responsibilities of managers in the UK. This described Mr Joo as having the role of ‘Management Advisory Team Leader’. His tasks were said to be ‘provide necessary management advice as directed by the branch manager’ and to ‘carry out tasks requested by headquarters/management team (e.g. Amazon sales).[49]The Tribunal accepted Mr Kim’s evidence that this document was prepared, in large part, in an attempt to have Mr Joo return to active work. The Tribunal concluded that there was at least some discussion between Mr Kim and Mr Chung about the situation at this stage. It is clear from the documentary material that Mr Chung was closely involved in discussions of the UK operations and also in touch with Mr Joo. He would therefore have been aware of Mr Kim’s assessment of the situation.[50]Both parties agree that Mr Joo and Mr Kim also met on the 19th March 2021, but their accounts of that meeting differ markedly.[51]Mr Joo says that, without warning, Mr Kim told him that he was being made redundant, with effect from the end of March 2021. He said that he got the impression that he was being viewed as an accomplice to Director Kim’s misdeeds. He said that he objected to being made redundant and told Mr Kim that he was not being treated fairly.[52]Mr Kim says that, having observed that Mr Joo was unhappy with having not been appointed as CEO and that he had, in effect, abandoned his duties, he was seeking to discuss with him possible ways forward. He said that he saw himself as a mediator between Mr Joo and the company. He said he feared that Mr Joo was ‘on an irreversible path’, from which he was seeking to divert him. He said that he told Mr Joo that Pan Asia had decided not to appoint him as CEO and could not be expected to view his current behaviour favourably. He therefore suggested that Mr Joo proposed conditions under which he would return to work that could sensibly be accepted the Pan Asia. He also asked, if Mr Joo did not wish to continue in his job, what conditions he might want in order to agree to resign. He denied seeking to dismiss Mr Joo at that meeting.[53]The Tribunal did not accept Mr Joo’s account of the meeting. The suggestion that Mr Kim dismissed him at that meeting is not congruent with Mr Kim’s subsequent actions or with the subsequent actions of the other people involved from Pan Asia. If a decision had been taken to dismiss Mr Joo at this stage, it is unlikely that in the following weeks there would have been the extensive discussions and disciplinary processes that then occurred. The Tribunal concluded that Mr Kim was, at this stage, seeking to persuade Mr Joo that he was not going to be appointed as CEO and should therefore either find a way of returning to work or, if he was unwilling to do so, agree some form of termination agreement. In that context, the Tribunal concluded that Mr Kim did allude to the possibility of Mr Joo being dismissed if the matter was not resolved. The Tribunal concluded that Mr Joo, who was deeply upset by the situation, did genuinely interpret that suggestion as a much firmer proposal to make him redundant than it actually was. He genuinely believed that Mr Kim was suggesting his imminent dismissal. But this was not a reasonable interpretation of Mr Kim’s position in the 19th March meeting. This was, essentially, that Mr Joo was being unreasonable and that he should adopt a more measured position, since his current posture was likely to result in a decision to dismiss him the future. Given the Tribunal’s finding that Mr Joo had ceased to carry out any significant work at this point, that position was a reasonable one.[54]On 23rd March 2023 Mr Joo wrote an email to Mr Kim, Mr Ji, Ms Chung and Mr Chung, page 322[331]. The email began ‘I acknowledge receipt of your notice for my resignation from Mr Jongho Kim’. Mr Joo wrote that he could not accept the suggested resignation package, for a number of reasons. First, he suggested that it was not significantly different to the mandatory compensation under UK law. Second, he said that he had worked hard for the company for more than 10 years and the company had grown significantly, primarily because of his contribution and sacrifice. He indicated that, shortly after he had joined the company, Mr Chung had promised him shares in the company if he contributed to substantial growth.[55]There, Mr Joo suggested, an appropriate package would be a) that Pan Asia continue to pay his salary until the end of 2021 and b) pay him a lump sum of £100,000.[56]Mr Joo argued that such a package was justified given he had been acting as head of the company since September 2020 in the absence of Director Kim and that the company should have rewarded him for reporting Director Kim’s wrongdoing. He then went on to state that, if his proposal was not accepted, ‘I will be sure to take every possible measure including but not limited to legal actions available to me … I sincerely hope that you will not regret or lose opportunities because of any actions I will take against you’. Mr Kim’s email[57]On 25th March 2021, Mr Kim wrote an email to Mr Joo, page 327[336].[58]In that email, Mr Kim indicated that he had met with a solicitor to discuss both the situation with Director Kim and Mr Joo’s situation. He wrote that he wished to be ‘quite frank’ and that what he was suggesting was his ‘personal opinion’.[59]He went on to say that he proposed that Mr Joo should take the voluntary early retirement that was being offered by Pan Asia.[60]He said that the advice that he had been given by the solicitor was that there were three options (although he also suggested since the solicitor worked for their money that he found it difficult to trust them 100%). The options were that:a. Mr Joo and Pan Asia reached an agreement to wrap up the relationship smoothly. This, Mr Kim suggested, was the best option for both parties.b. That Pan Asia held a disciplinary meeting and dismissed Mr Joo. In that case, Mr Kim suggested ‘they will mobilise some nasty tactics to dig up dirt on you’. It is not clear whether the ‘they’ in that context is intended to refer to Pan Asia or to the solicitor.c. That Pan Asia reassign Mr Joo to work that is ‘not aligned to you’ in order to make his situation ‘unbearable’ and thereby induce him to give up work. Mr Kim described this as a cowardly tactic.[61]Mr Kim said that the solicitor had recommended the second suggestion: commencing a disciplinary process that would lead to dismissal.[62]He suggested, however, that he felt that he might be able to persuade Pan Asia to accept a deal in which Mr Joo agreed to leave (after a period of being placed on the Coronavirus Job Retention Scheme) on the basis of a financial settlement.[63]The email went on to say that, regardless of Mr Joo’s position on that proposal, Pan Asia intended to immediately place Miss Yunjin Oh in day-to-day charge of operations and to place Mr Joo on furlough under the job retention scheme with effect from 1st April. They would also, if Mr Joo did not agree to the proposed settlement, commence disciplinary proceedings that would remove him from work.[64]The email also suggested that Pan Asia was not overly concerned about the potential ramifications of Director Kim’s actions. Mr Kim asserted that any wrongdoing was Director Kim’s responsibility and also that of the then management, which appears to be a suggestion that Mr Joo might also bear some responsibility. He went on to suggest that, in any event, any problems would be rectified and learned from.[65]The email, on its face, raises issues about Mr Kim’s state of mind and his approach to the situation with Mr Joo. Either he did not seriously expect Pan Asia to deploy the tactics he described but sought to mislead Mr Joo about that possibility in order to use them as threats to pressure him into an agreement; or he did expect or intend such unreasonable and underhand tactics to be deployed.[66]Any plausible construction of the suggestion that nasty tactics would be used by Pan Asia or solicitors acting on their behalf suggests that Mr Kim was not approaching the situation in a reasonable or appropriate manner manner. Similarly, the suggestion that Pan Asia might deliberately assign Mr Kim to inappropriate tasks in order to force him out is troubling.[67]Further, the suggestion that, if Mr Joo was not to accept the offer Mr Kim was putting forward, he would be dismissed indicates that any subsequent investigation and disciplinary process might be based on a predetermined outcome.[68]Finally, a tactic of making threats of inappropriate action in order to induce Mr Joo to accept an offer could not be legitimate.[69]These issues were further complicated by Mr Kim’s evidence about this email. In both his witness statement and his oral evidence he consistently stated that he was not authorised by anyone in Pan Asia to negotiate with Mr Joo or to make him any kind of offer. He said that he was not instructed or encouraged in any way to do so. He said that he did not discuss it with anyone else in the organisation. He said that he was acting on his own initiative, because he thought that reaching some form of agreement was in both Pan Asia’s and Mr Joo’s interest. It was put to him in cross-examination that someone acting as a mediator should have some authority, but he insisted that he acted entirely alone.[70]The Tribunal accepted Mr Kim’s evidence that he had not acted on instructions from anyone else in Pan Asia. As a senior manager within the group organisation he was seeking to resolve a difficult situation. He hoped to be able to able to persuade Mr Joo to fall in with his proposals, which, as he saw it, would have benefits for both parties. This was a natural and reasonable aim, although his methods were extremely misguided.[71]The Tribunal also concluded that it would have been inevitable that Mr Kim discussed his observations of Mr Joo and the fact that he appeared to have ceased working with other people within Pan Asia, including Mr Chung. Mr Chung was, at this stage, closely concerned with the UK operations. Mr Joo was a senior employee. Mr Kim was, at this point, effectively acting was Mr Chung’s agent in the UK. Further, as detailed below, Mr Joo subsequently entered into substantial correspondence directly with Mr Chung. The Tribunal concluded that Mr Kim and Mr Chung would have been bound to discuss this and that Mr Kim would have reported his general observations to Mr Chung. Mr Joo’s email[72]On 8th April 2021 Mr Joo wrote an email to Mr Ji, Ms Chung and Mr Chung titled ‘Notice of dismissal’. It read as follows: Dear Sir / Madam, With respect to my resignation from the company, I have duly notified you of my position, conditions and the actions I will take in the future and repeatedly asked for your official response to my proposal. However, as more than a week has passed since my last letter to you, I have come to a conclusion that you have not intention to discuss with my any more and hereby declare clearly my action plans to be taken from next week onwards, which I have already notified you of. I, once again, want you to know that I will take appropriate legal actions against you for being credited for my sacrifices and contributions towards the company to date in addition to reimbursements in my redundancy guaranteed by the UK statutory law. In addition, I will report to the Uk authorities concerned all misconducts and illegal operations of the company committed thus far so that the company / you should pay the prices for such irregularities (which are out of all knowledge) and for your reference herewith attach its list I have prepared. Chang Duck Joo Pan Asia GB Ltd[73]Attached to that email was a table of the misconduct that Mr Joo believed had been committed by Director Kim, page 385-386[394-395]. Suspension[74]On 9th April 2021 Mr Joo was suspended by Mr Kim. This was communicated by an email from Mr Kim, page 74[83], attaching a suspension letter, page 72-73[81-82]. Mr Kim wrote that Mr Joo was being suspended so that the company could conduct an investigation into three matters of potential misconduct:a. That Mr Joo had refused to follow reasonable instructions, in that he was unwilling to fulfil the majority of his duties.b. That he was seeking to extract a large compensation payment from the company by threatening to disclose wrongdoing to the authorities.c. That he was withholding details of Director Kim’s wrongdoing in order to gain leverage in those compensation negotiations.[75]The letter went on to state that the investigation would be conducted by Mr Kim and once it was complete, if there was a case to answer, Mr Joo would be invited to a formal disciplinary hearing.[76]Mr Joo replied to that email on the same day, disputing Mr Joo’s power to suspend him and denying the allegations of misconduct, page 76-77[85-86]. Investigation[77]On 21st April 2021 Mr Kim met with Mr Joo for an investigatory meeting via Zoom. Notes of that meeting have been produced, page 78-84[87-93]. It is apparent from those notes that Mr Kim, with advice from Pan Asia’s lawyers, had prepared remarks and questions in advance of the meeting. The Tribunal accepted that the notes were a broadly accurate account of the meeting.[78]Mr Kim asked Mr Joo about the decisions taken in February to appoint Ms Oh as the head of Pan Asia GB. Mr Joo described the decision as absurd, saying that she was an inferior choice to himself. He also suggested that Ms Oh had been directly involved in Director Kim’s corruption.[79]Mr Kim also asked whether Mr Joo was refusing to carry out work, which he denied. He said he was simply responding to the instructions of Head Office.[80]Mr Joo was also asked about the email he had sent on 27th March 2021. He reiterated his proposal that he should receive his salary until the end of the year and then a payment of £100,000 net.[81]They then went onto discuss whether Mr Joo was withholding details of Director Kim’s previous wrongdoing. Mr Joo initially said that he had provided a list of this wrongdoing on 8th April. He denied that he intended, at any stage, to withhold details from Pan Asia. He said, however, that if agreement was not reached Mr Joo would ‘accuse the company to the relevant authorities’. He denied making any report to government authorities, although in fact he had made such a report.[82]On 22nd April 2021 Mr Joo wrote an email to Mr Chung, page 112-113[121-2]. In that email he reiterated his hard work on behalf of the company and his reporting of Director Kim’s wrongdoing. He said that following this his role had been diminished to an inferior one and that his proposals for change had been ignored. He went on to suggests that Ms Oh, who had previously been in an inferior position to Mr Joo, had been appointed as a director over Mr Joo. He went on to allege that Ms Oh had been directly involved with Director Kim’s misconduct and had been compensated for that.[83]On 30th April 2021 there was a second Zoom meeting between Mr Kim and Mr Joo. Notes of that meeting have been produced, page 85-88[94-97]. The Tribunal accepted that the notes were a broadly accurate account of the meeting.[84]Mr Kim asked Mr Joo what he had meant, in his email of 24th February, when he wrote that he believed that he deserved ‘proper treatment’. He said that he had carried out the role of managing director for five months after reporting Director Kim’s misconduct. He said that he had contributed to the company, allowing it to both claim compensation for the loss that it had suffered and avoid further loss. He indicated that he believed that he deserved a reward for this.[85]Mr Kim then asked a series of questions about the allegation that Mr Joo had withheld information about Director Kim’s wrongdoing. Mr Joo noted that he had been the one who initially reported Director Kim’s misconduct in October 2020. He said that most of the allegations had been included in that report. Mr Kim asked about Mr Joo’s statements, in his email of 27th March 2021, that he would ‘take all possible actions available to me to achieve me proposal’ and that if it was not accepted ‘you will lose the opportunity to continue discussions with me and I will at once report every illegal transaction of the company, small or big, to the tax office of the UK government’. Mr Kim asked why such a report had not already been made. Mr Joo said that he had considered making a report in September 2020 but had chosen to report to the company instead. He said that he had hoped that Pan Asia would then take ‘proper actions’, including making a report. Mr Joo denied using the possibility of a report as a ’means of negotiation’. He said that he had repeatedly said how he should have been treated by Head Office and that instead he had been threatened with a disciplinary meeting and dirty tricks. Accordingly, he said, when the redundancy negotiations were not progressing, he had told Head Office that he would take all possible legal actions against them.[86]Mr Kim then asked whether Mr Joo thought it was legitimate to use the illegal actions of a company or a manager as a tool in negotiations. Mr Joo replied that illegal actions could not be tolerated or allowed to continue, so any employee was able to report such matters to the relevant authorities. He said that whistleblowing was legitimate and the employee doing so was legally protected.[87]On 6th July Mr Kim sent Mr Joo a number of written questions about the about the use of the government’s furlough scheme, which Mr Joo had made a number of allegations about, page 143-144[152-153]. Mr Joo replied on the 8th July 2021, page 148-149[157- 158][88]On 16th July 2021 Mr Kim sent Mr Joo further questions about furlough, page 155- 157[164-166]. Mr Joo replied on 26th July 2021, page 158-159[167-168]. In summary, Mr Joo had suggested that the furlough scheme was being misused. Mr Kim was seeking to explore that allegation and also the extent that Mr Joo might have also been involved in or at fault in relation to any such misuse. The Tribunal concluded that these issues did not ultimately play a significant part in the decision to dismiss. Investigation report[89]On 29th July 2021, Mr Kim produced an investigation report, page 161-188[161-197].[90]The report gave a summarised account of the allegations and the investigation.[91]Mr Kim reached the following conclusions:a. That after his request to be appointed as a director was refused Mr Joo had ceased to carry out most of his duties.b. That Mr Joo had refused instructions from Ms Oh to carry out work that he had previously done.c. That Mr Joo had sought to use the threat of reporting illegal behaviour by Director Kim to HMRC and other organisations as a way of securing a compensation payment for himself.d. That Mr Joo had refused to provide a full list of Director Kim’s wrongdoing until 8th April 2021, after the investigation had begun.[92]The report concluded by recommending that a disciplinary hearing should be held.[93]On 20th August 2021 Mr Joo replied to Mr Kim by email responding to the report and disputing its conclusions, page 374-377[383-386]. Disciplinary[94]On 27th August 2021 a disciplinary hearing was conducted by Zoom. Mr Joo attended. The hearing was conducted by Mr Ji and Ms Chung.[95]Mr Ji took notes during the meeting and these were provided, page 455-456[464- 465]. They are, however, minimal and primarily consist of a prepared agenda, with notes for Mr Ji regarding the conduct of the meeting. The notes relating to the actual content of the meeting were minimal.[96]All the participants agreed that the meeting was not productive. Mr Joo described it as simply a reiteration of the allegations against him, with little attempt to clarify the matters or to listen to him. He said that he felt it was conducted as a mere formality.[97]Ms Chung described the meeting as not being fruitful. She said that she and Mr Ji asked questions and Mr Joo would respond, but matters were not going forward and Mr Joo was not cooperating. Mr Ji’s note suggest that the questions asked of Mr Joo were very general, essentially asking him to comment on the broad allegations that had been set out in the investigation. Mr Joo then reiterated his denials of the allegations and the positions he had already set out.[98]Mr Ji and Ms Chung wrote a letter dismissing Mr Joo on 4th September 2021, page 189-190[198-199]. The letter indicated that they had concluded that his employment should be summarily terminated for gross misconduct. This was on the basis that they upheld two of the three allegations of misconduct:a. That Mr Joo had sought to extract a large compensation payment by threatening to disclose wrongdoing to the authorities.b. That he had withheld a full copy or list of wrongdoing by Director Kim in order to gain leverage in the negotiations.[99]The letter also indicated that they had concluded that the charge that Mr Joo had refused to follow instructions or carry out his duties was not upheld. This was said to be ‘mainly because it was not clear to me what the precise scope of your duties were at the relevant times.’[100]One issue that arose in the Tribunal proceedings was who made the decision to dismiss Mr Joo and when it was made. The letter indicates that the decision was made by Mr Ji and Ms Chung.[101]In her witness statement, Ms Chung wrote that ‘Upon receiving Mr Jong Ho Kim’s investigation report, the Board of Directors decided to dismiss the Claimant immediately’. That suggests both that the decision had been made prior to the disciplinary hearing and that it was made by the Board of Directors, rather than Mr Ji and Ms Chung.[102]When she was asked about this in her oral evidence, Ms Chung said that her statement was not carefully considered when she signed it. She said that, contrary to her witness statement, the decision was made by her and Mr Ji.[103]In his witness statement, Mr Ji said that the letter of dismissal was sent after discussion between himself and Ms Chung.[104]In his oral evidence, however, he said that the decision was taken after he had discussions with Chairman and Mrs Chung, then with another shareholder. He said that the decision was made as a ‘shareholders’ decision’ and that Ms Chung was not directly involved.[105]The Tribunal concluded that the decision to dismiss was made primarily by Chairman and Mrs Chung, on the basis of the investigation report prepared by Mr Kim and an account of the meeting given to them by Mr Ji. The confusion over this matter in the respondent’s evidence strongly suggests that what occurred was not as simple and straightforward as the decision being made purely by Mr Ji and Ms Chung as the documents indicate. It apparent from much of the other evidence that Mr Chung was closely involved in the most significant decisions concerning Pan Asia GB.[106]The Tribunal accepted Mr Ji’s evidence that Ms Chung, although in attendance at the disciplinary meeting, was not actually involved in the decision.[107]The letter of dismissal indicated that Mr Joo had a right to appeal the decision to dismiss. He did not do so.[108]Mr Joo began the ACAS Early Conciliation process on 13th September 2021 and an Early Conciliation certificate was issued on 24th September 2021. His claim to the Employment Tribunal was made on 16th October 2021. The Law Unfair dismissal / Protected Disclosures
The Law
[109]The general approach to determining whether a dismissal is fair is set out in s 98 Employment Rights Act 1996. s98(1) requires the employer to establish the reason for the dismissal and that it is one of the potentially fair reasons set out in s 98(2). In this case the reason relied upon is conduct. The reason for dismissal is the factor or factors operating on the mind of the person who made the decision to dismiss.[110]This claim includes what is generally termed a claim for ‘automatically unfair dismissal’ or a ‘whistleblowing dismissal’. The stems from s 103A ERA, which provides that an employee will have been unfairly dismissed if the reason (or principal reason) for the dismissal is that they made a protected disclosure.[111]A disclosure becomes protected for these purposes if a) it is a qualifying disclosure meeting the criteria set out at s 43B ERA and b) it is made in accordance with the requirements of ss 43C to 43H (which, broadly deal with to whom a qualifying disclosure must be made if it is to be protected).[112]S 43B defines a qualifying disclosure as: … any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been or is likely to be deliberately concealed.[113]Identifying a qualifying disclosure therefore requires consideration of five separate criteria:a. Has there been a disclosure of information? This is often distinguished from a mere allegation, which contains no actual information (although this should not be allowed to suggest a simple bifurcation in which a statement can only ever be either an allegation or the provision of information).b. Did the employee believe that the disclosure was made in the public interest?c. If the employee did so believe, was their belief reasonably held?d. Did the employee believe that the disclosure tended to show one of the matters listed in paragraphs (a)-(f) above?e. If the employee did so believe, was their belief reasonably held?[114]The requirement that an employee reasonably believe that a disclosure was made in the public interest means that disclosures that concern purely private matters or disagreements between an employee and employer will not fall within the whistleblowing protection. Guidance on the meaning of public interest has been set out by the Court of Appeal in Chesterton Global Ltd v Nurmohamed [2017] IRLR 837. Lord Justice Underhill notes that it is not an issue that lends itself to absolute rules and should be approached by a Tribunal considering all the circumstances of the case. He indicates that Tribunals should be cautious before concluding that a disclosure relating to the breach of an employee’s contract could reasonably be believed to be in the public interest but declines to suggest it could never occur. He suggests that a Tribunal could usefully consider four particular factors: f. the numbers in the group whose interests the disclosure served; g. the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect; h. the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people; i. the identity of the alleged wrongdoer – as [counsel for the employee] put it in his skeleton argument, “the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest” – though he goes on to say that this should not be taken too far.[115]A qualifying disclosure is protected if it is made to a worker’s employer, see s 43C.[116]In general, the burden of proof to show the reason for the dismissal rests on the employer. Where an employee alleges that there was an automatically unfair reason for the dismissal, the Tribunal must follow the guidance given by the Court of Appeal in Kuzel v Roche Products Ltd [2008] IRLR 539, by addressing the following questions: j. Has the Claimant shown that there is a real issue as to whether the reason put forward by the Respondent was not the true reason? k. If so, has the employer proved his reason for dismissal? l. If not, has the employer disproved the s 103A reason advanced by the Claimant? m. If not, dismissal is for the s 103A reason.[117]If an employer succeeds in showing that the reason for the dismissal is potentially fair, the Tribunal must consider whether the dismissal was fair. S98(4) requires that, in doing so, it considers whether in all the circumstances (including the size and administrative resources of the employer) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissal. The fairness of the dismissal must also be determined in accordance with the equity and substantial merits of the case. Neither the employer nor the employee bears the burden of proof on the issue of fairness, which is to be approached neutrally.[118]A fundamental element of considering fairness properly, in the context of a claim for unfair dismissal, is that a tribunal must not substitute its own view for that of the employer. Instead, the Tribunal’s role is to consider the employer’s actions and decide whether they were within the range of possible options open to a reasonable employer in the circumstances. This is often known as the ‘range of reasonable responses’. See in particular BHS Ltd v Burchell [1980] ICR 303 and Iceland Frozen Food v Jones [1983] ICR 17.[119]This means that the tribunal must not ‘stand in the shoes’ of the employer and decide whether it would have reached the same decision. That would, inherently, involve the Tribunal replacing the employer’s decision with their own. The Tribunal must focus on assessing the employer’s decision, by reference to the range of reasonable responses. At the same time, that range is not infinitely wide and a finding that dismissal fell outside the range should not inevitably suggest that a Tribunal has substituted its own view for that of the employer, see Newbound v Thames Water Utilities Ltd [2015] IRLR 734.[120]In the context of a conduct dismissal, it is appropriate to analyse an employer’s decision to dismiss by applying the Burchill test – drawn from the case of BHS Ltd v Burchell [1980] ICR 303, although it has been further developed by subsequent caselaw. This requires consideration of: n. Did the Respondent have an honest belief in the allegations? o. Did the Respondent have reasonable grounds to support that belief? p. Did the Respondent carry out a reasonable investigation into the allegations? q. Given all the circumstances, were the allegations sufficiently serious that dismissal fell with the range of reasonable responses open to a reasonable employer? Unfair dismissal compensation[121]The monetary awards for unfair dismissal are determined in accordance with s 118 to 126 of the Employment Rights Act 1996. These provide for a basic award and a compensatory award.[122]The basic award is calculated in accordance with ss 119-122. It is based on an arithmetic calculation on the basis of the employee’s age, length of service and weekly pay. S 122(2) allows for a reduction to the basic award where the Tribunal considers that the conduct of the employee prior to the dismissal was such that it would be just and equitable to reduce the amount of the basic award.[123]In relation to the compensatory award, the Tribunal is required to award such amount as it considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal, in so far as that loss is attributable to action taken by the employer. In essence the purpose of the compensatory award is to place the employee in the financial position that they would have been, but for the unfairness of the dismissal.[124]In most cases this means that the compensatory award will be concerned with assessing the value of the wages that the employee would have been paid, had they not been dismissed. In many cases the Tribunal will also need to consider the pension benefits that the employee has lost as a result of dismissal. But there are many other potential financial losses, such as loss of potential bonuses, loss of access to a company car, shares etc. Polkey Reduction[125]It is also open to a Tribunal to reduce any compensatory award to reflect the possibility that the employee might have been dismissed had the employer acted fairly. This is described as a Polkey reduction, following the case of Polkey v AE Dayton Serviced Ltd [1988] ICR 142.[126]As in relation to unfair dismissal, the Tribunal must not substitute its own view for that of the employer, the key questions are a) Whether the employee could have been fairly dismissed? and b) Would the actual employer have done so? See Hill v Governing Body Great Tey Primary School [2013] IRLR 274.[127]The assessment of a Polkey reduction is an inherently uncertain exercise, since it inevitably involves an element of speculation. Although there are cases in which the evidence related to any potential reduction is so riddled with uncertainty that no sensible assessment can be made, this is unusual. Tribunals should only proceed on the basis that employment would have continued indefinitely where the evidence that it would not have done so can properly be ignored, see Software 2000 v Andrews [2007] IRLR 568. Contributory fault[128]S 123(6) of the Employment Rights Act 1996 provides that, where the Tribunal finds that an employee caused or contributed to the dismissal it shall reduce the amount of compensatory award by such proportionate as it considers just and equitable.[129]Although a reduction under s 123(6) requires an element of causation, this does not apply to the similar reduction to the basic award under s 122(2). Further, conduct by the employee that does not fall within s 123(6) may be considered by the Tribunal when it considers what compensatory award is just and equitable.[130]A reduction should only be made, however, where there has been culpable or blameworthy conduct by the employee. And, where that conduct was known about prior to dismissal, the Tribunal must generally be satisfied that the conduct caused or contributed to the dismissal to some extent, see Nelson v BBC (No.2) [1980] ICR 110. Detriment claim[131]S 47B of the Employment Rights Act 1996 established that employees have the right not to suffer detriment on the ground that they have made a protected disclosure.[132]The concept of detriment in this context is given a wide interpretation and includes any treatment that a reasonable employee might consider a detriment (see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337.[133]For a detriment claim to succeed, the Tribunal must conclude that the detriment was ‘done on the ground’ of the protected act. This requires consideration of an employer’s decision-making process, both conscious and unconscious. A detriment claim may succeed on the basis on unconscious bias; it does not require a deliberate or intentional decision to subject the employee to a detriment.[134]In a detriment claim, the burden of proof is on the claimant to show that a protected disclosure has been made and that they were subject to a detriment. If they are successful in establishing this, it is then for the respondent to prove show the ground on which the any act (or failure to act) was done. It has been held, however, that in order to succeed in a detriment claim the employee must establish a prima facie case on causation, see Dahou v Serco Ltd [2017] IRLR 81. In other words, the employee must show that there is an arguable case that there has been a detriment.[135]The time limit for bringing a detriment claim is set out in s 48 of Employment Rights Act 1996. It requires that a claim be brought within three months of the act (or failure to act) to which the claim relates. This is subject to the extensions of time relating to the ACAS Early Conciliation provisions.[136]Time may be extended where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the primary time limit and it was then presented within such further period as the Tribunal considers reasonable.[137]The definition of and approach to the concept of ‘reasonably practicability’ and extensions of time has been the subject of extensive appellate comment. The Tribunal considered in particular the guidance laid down in Palmer and Saunders v Southendon-Sea Borough Council [1984] IRLR 119, which concluded that the concept of ‘not reasonably practicable’ fell between the extremes of what is physically possible to achieve on the one hand and a simple question of what was reasonable on the other. The focus is on considering broadly whether it was reasonably feasible to present the claim to the Tribunal within the time limit. Wrongful dismissal / breach of contract[138]An Employment Tribunal has jurisdiction to consider a common law breach of contract claim pursuant to the Employment Tribunals Act 1996 and the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.[139]One form of breach of contract claimed is that the Claimant was not provided with the contractual notice that he was entitled to. It was agreed between the parties that the Claimant had been dismissed summarily and this would only be lawful if he had committed gross misconduct.[140]Gross misconduct, in this context is ‘conduct which so undermines the relationship of trust and confidence that the employer should no longer be required to retain the employee in his employment, see Neary v Dean of Westminster [1999] IRLR 288. Such behaviour must be a deliberate breach of the employee’s duty, West London Mental Health NHS Trust v Chhabra [2014] IRLR 227.
Conclusions
[141]The tribunal reached the conclusions set out below. These are organized by reference to the list of issues, although they do not follow precisely the same order. Protected disclosure Did the claimant make the following qualifying disclosures? A: In or around October 2020 informing the Chairman about embezzlement within the company? B: On 3rd February 2021 putting the same concerns in writing?[142]The tribunal accepted the factual account given by Mr Joo in relation to these disclosures. It was therefore accepted that Mr Joo, in over 2020, spoke to Mr Chung making allegations that Director Kim was engaged in serious misconduct, including wrongfully enriching himself at Pan Asia’s expense. He then placed those concerns in writing in 2021, although the Tribunal concluded that the relevant written communication occurred on 29th January, rather than in February. The Tribunal accepted that the oral communication with Mr Chung was, in substance, similar to the later written table of allegations.[143]Both communications amounted to a disclosure of information tending to show that Director Kim was both committing criminal offenses and was in breach of his legal obligations to Pan Asia arising from his status as a director and from his contract of employment.[144]The Tribunal also accepted that Mr Joo reasonably believed in the truth of these allegations and reasonably believed that his disclosures were in the public interest. As both parties accept, there was substantial evidence that suggested Director Kim had been engaged in the misconduct that Mr Joo alleged. Although the issues involved related primarily to Pan Asia GB, rather than any matter of more general import, they involved very serious allegations of fraud and theft. It was reasonable for Mr Joo to believe that it was in the public interest for such matters be reported to his employer. Did the claimant make a protected disclosure?[145]It was not in dispute that, if the above amounted to qualifying disclosures, they were protected disclosures because they were made to his employer. Unfair dismissal Was the reason or principal reason for dismissal that the Claimant made a protected disclosure?[146]The Tribunal concluded that neither the reason nor the principal reason for dismissal was that Mr Joo made a protected disclosure. The decision to dismiss him was unrelated to the protected disclosures, save that that the disclosures had led to the dismissal of Director Kim, which in turn led to the reorganisation of Pan Asia GB’s management and the other background events to the dismissal.[147]Since the Tribunal concluded that the decision to dismiss was made by Mr and Mrs Chung, who were not witnesses to the Tribunal, and there was no documentary evidence of their views or decision-making process, the Tribunal had to infer their state of mind from other evidence.[148]The dispute that had arisen between Mr Joo and Pan Asia GB over the reorganisation and his subsequent actions provide a credible and plausible explanation for the dismissal, for the reasons dealt with below. The Tribunal concluded that it was far more likely that Mr and Mrs Chung were motivated by these factors, rather than Mr Joo’s protected disclosures. It is inherently implausible that they would respond to such disclosures as Mr Joo suggested. In essence, his account would require that Mr and Mrs Chung respond by first investigating and dismissing Director Kim, then seeking to punish the employee who had exposed his misdeeds, sometime after both the disclosures themselves and the dismissal of Director Kim. This was inherently unlikely. What was the reason or principal reason for dismissal?[149]The Tribunal concluded that Mr Joo was dismissed on the basis of his conduct and that this was a potentially fair reason for dismissal.[150]In broad terms there were four potential areas of misconduct that the Tribunal considered might have contributed to the decision to dismiss. First, Mr Joo’s actions in seeking to obtain compensation for leaving Pan Asia on the basis that he would otherwise report wrongdoing to the UK authorities. Second, that he had refused or delayed providing information about Director Kim’s wrongdoing in an attempt to improve his negotiating position with Pan Asia. Third that he was not carrying out his work duties. Fourth, that he had been involved in Director Kim’s wrongdoing himself.[151]The Tribunal concluded that the decision to dismiss was based on a mixture of the first three of these potential reasons.[152]The Tribunal concluded that Mr and Mrs Chung were not motivated by a belief or suspicion that Mr Joo had been involved in Director Kim’s misconduct. This was for two primary reasons. First, any such belief or suspicion would be unlikely given Mr Joo’s role in reporting Director Kim’s misconduct. The evidence did not suggest that there was any other factor in Director Kim’s misconduct coming to light aside from his actions or any reason for Mr Joo to believe that it might be revealed if he kept silent. Anyone examining these factors would be bound to ask themselves why, if Mr Joo was involved, he would reveal the schemes himself. Of course, in general terms, there might be reasons someone in such circumstances to do so, but no such reasons were identified to the Tribunal. Second, if Mr and Mrs Chung had such suspicions, there was no apparent reason why they would not seek to investigate them and deal with them directly at the time. It was clear from the investigation and dismissal of Director Kim that they were willing to take a direct approach to such situations. No reason was identified why, if they suspected Mr Joo was involved, they would wait a significant period of time and then seek to have him dismissed, ostensibly on the basis of quite different matters.[153]Pan Asia argued that the decision to dismiss was motivated by both Mr Joo seeking compensation from Pan Asia on the basis that he would otherwise report the wrongdoing done by Director Kim to the British authorities and his refusal, initially, to provide details of that wrongdoing so as to maintain his bargaining position. The Tribunal accepted that these were important factors in the decision to dismiss. It was clear that Mr Joo had sought to extract concessions on this basis, in particular in his emails of 23rd March and 8th April 2021. Any employer would be likely to react negatively to this behaviour. These events immediately proceeded Mr Kim’s email on the 25th March 2021 and the suspension on the 9th April 2021. As a matter of chronology, therefore, they appear to have triggered the escalation of events into the investigation and disciplinary proceedings. These allegations were then the major focus of those proceedings. All of this suggested that these were the matters in the mind of Mr and Mrs Chung when they made the decision to dismiss.[154]Although Pan Asia argued that the allegations that Mr Joo was refusing to carry out his job role did not form part of the conduct that motivated the dismissal, the Tribunal disagreed, concluding that it did form an important part of the decision.[155]The Tribunal concluded that the reports received by Mr Chung and Mrs Chung that Mr Joo was refusing to carry out his duties formed an important part of the overall account that they received of his conduct. Although, in the letter of dismissal and his evidence to the Tribunal Mr Ji focused a narrow question of Mr Joo’s contractual responsibilities, in reality the reports that the Chungs received, in particular from Mr Kim, were of a far wider issue. Stepping back, they were being told that Mr Joo was refusing to participate meaningfully in the business at all. This, in the particular context of the reorganisation and Mr Joo’s other actions, would have been bound to be of serious concern. The suggestion that it did not form part of the decision to dismiss, because there was some lack of clarity around Mr Joo’s precise contractual duties is unlikely, given that Mr Kim’s account was that Mr Joo was refusing to carry out any work. The Tribunal concluded that it made an important contribution to a view that Mr Joo was refusing to cooperate with the reorganisation or to accept the decision that he would not be promoted to a Director position.[156]Mr Joo argued that the emails in March and April 2021 could not have been a factor in his dismissal. He argued that it was clear that Pan-Asia was already seeking to force him out in January 2021. He suggested that this was apparent from their actions in reorganising the UK's operations. The Tribunal did not accept this argument. It fails to take account of the fact that the dismissal of Director Kim inevitably required that there be some re-organisation of the UK operation and that Mr Joo’s view that the only reasonable course was for him to be appointed as a Director was not a reasonable one. This requirement fully explains what happened in January / February. The Tribunal did not find that these events implied that any decision had been made about Mr Joo at that stage. If the reason was potentially fair, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant?[157]The Tribunal concluded that Pan Asia did not act reasonably in all the circumstances and that Mr Joo’s dismissal was therefore unfair.[158]In particular, the Tribunal concluded that there were two serious procedural failings in Pan Asia’s approach to the dismissal.[159]First, Mr Kim’s email on the 25th March 2021 was fundamentally dishonest and inappropriate. He sought to pressure Mr Joo with threats of a disciplinary procedure using ‘dirty tricks’ and with the possibility of being forced out by creating an ‘unbearable’ situation for him. Although Mr Kim may have believed that he was acting in the best interests of both Pan Asia and Mr Joo, his behaviour was profoundly inappropriate. Although these actions predated the formal investigation and disciplinary process, they were so serious and Mr Kim’s involvement in the investigation so central, that they fundamentally tainted the fairness of the investigation itself. After receiving such threats it was impossible for any reasonable employee to have the necessary faith in the process for an investigation to work effectively.[160]Second, as noted above, the Tribunal concluded that the decision to dismiss was made primarily by Mr and Mrs Chung, rather than by Mr Ji and Ms Chung, who conducted the disciplinary hearing.[161]There is no axiomatic rule that the person who makes the decision to dismiss must conduct the disciplinary hearing, see Charalabous v National Bank of Greece [2023] EAT 75. But fairness does require that the employee have the opportunity to state their case to the decision maker and that the decision maker have available sufficient information to make a fair decision. Where they are not the person conducting the disciplinary hearing this is likely to require some care to ensure that information that may be provided during the disciplinary hearing is communicated to the ultimate decision maker. No such care was taken in this case. At best, Mr and Mrs Chung may have had an oral summary from Mr Ji.[162]Further, Mr Joo was not informed about who would, in fact, take the decision. Pan Asia’s process and documents suggested that the decision would be made by Mr Ji and Ms Chung, which was not the case. A fair procedure required that it be clear to Mr Joo who would take the decision. It was not.[163]Both of these matters were serious procedural failings. Both, taken alone, would have been sufficient to mean that the process used to dismiss Mr Joo was unfair. The Tribunal therefore concluded that the dismissal was procedurally unfair. If a fair process had been carried out, would the Claimant have been dismissed?[164]Leaving these procedural issues to one side, the Tribunal found that Pan Asia had a reasonable belief that Mr Joo had committed the misconduct that had been alleged against him. Much of this was not materially in dispute. Much of the relevant conduct was in the form of email communications, which Mr Joo accepted he had sent. In relation to Mr Joo’s refusal to carry out his duties, this was primarily based on Mr Kim’s account, but it was reasonable for Pan Asia to broadly accept that.[165]In broad terms, Mr Joo’s primary argument in relation to his dismissal was that dismissal was outside the range of reasonable responses, because he had done nothing wrong. Further, he argued that he had been mistreated following his reporting of Director Kim and that the dismissal needed to be considered in that context.[166]The Tribunal did not accept these arguments. In so far as Mr Joo sought to argue that he was innocent of the alleged misconduct, it was important to note that when considering the fairness of a dismissal the Tribunal must not step into the shoes of the employer and reach its own conclusions about whether an employee was guilty of misconduct. That, for the reasons set out above, is not the role of the Tribunal.[167]Moreover, Mr Joo’s arguments in relation to the severity of the sanction were based on a fundamental failure to recognise that the allegations against him were very serious indeed. Pan Asia’s view was that he was seeking to coerce them into paying him compensation, using the threat of reporting them to the authorities to do so, primarily because he was aggrieved about the decision not to appoint him as Director. They believed that, in order to strengthen his negotiating position, he had indicated that he was unwilling to provide them with information about Director Kim’s previous misconduct. Dismissal for those actions alone would have fallen well within the range of reasonable responses. Similarly, Pan Asia believed that Mr Joo was refusing to carry out his role or to follow reasonable instructions to do so, again because he was aggrieved at not being appointed as director. Dismissal for either offense alone would have fallen within the range of reasonable responses. Remedy for unfair dismissal – Basic award[168]Mr Joo’s gross monthly salary was £4,115.43, see page 380[389]. This means that his weekly pay was £949.71. For the purposes of the basic award this is capped at £544 (see s 227 Employment Rights Act 1996 / Employment Rights (Increase of Limits) Order 2021).[169]Mr Joo had accrued 12 complete years of service between 1st November 2008 and 4th September 2021. Throughout this time he was over 41 years old.[170]Applying s 119 Employment Rights Act 1996 therefore, the initial calculation of the basic award is: 1.5 multiplied by 12 years multiplied by £544, which equals £9,792.[171]The Tribunal concluded that it was just and equitable to apply a reduction of 25% to this award. This conclusion was reached balancing two factors. First, the Tribunal concluded that Mr Joo had, broadly, committed the misconduct of which he was accused and that this misconduct was extremely serious. Both his attempts to force Pan Asia’s hand in the negotiations with threats and his refusal to work were grave matters which essentially lead directly to his dismissal. Had he not behaved in this way it is unlikely that disciplinary proceedings would have begun or that he would have been dismissed. These factors needed to be reflected in the approach to the basic award.[172]At the same time, Pan Asia had also behaved in a fundamentally unfair way in its approach to the dismissal, for the reasons set out above. This too needed to be reflected in the award.[173]The Tribunal also bore in mind its conclusions in relation to the compensatory award, detailed below, and therefore the overall award in respect of Mr Joo’s successful unfair dismissal claim.[174]Applying the 25% reduction, the Tribunal awarded a basic award of £7,344. Remedy for unfair dismissal – Compensatory award[175]The Tribunal concluded that even if a fair process had been carried out, Mr Joo would nonetheless have been dismissed. The Tribunal therefore concluded that the compensatory award should be reduced by 100%, resulting in a nil award.[176]As noted above, the Tribunal concluded that a fundamental difference of view between Mr Joo and others in Pan Asia, but particularly Mr Chung, had emerged as early as early as February 2021. Mr Joo was bitterly disappointed when he was not appointed as Director. This led him to commit serious acts of misconduct in ceasing to perform his duties and then making threats against his employer. It was inevitable that these actions be treated seriously by Pan Asia. Although Mr Kim’s investigation was rendered unfair by his improper attempts to pressure Mr Joo, any fair investigation of the circumstances would have concluded that Mr Joo had ceased work and had embarked on a course of threatening his employer in order to extract a favourable negotiated settlement, if he could not be appointed to the more senior role that he sought.[177]It was apparent, both from the contemporaneous correspondence and from Mr Joo’s evidence, that he vehemently believed that he had been extremely poorly treated by Pan Asia and that his own conduct was entirely reasonable.[178]In those circumstances, the Tribunal concluded that there was no real likelihood that the situation could have been deescalated. Any fair procedure would have concluded that Mr Joo had committed serious misconduct, about which he was unrepentant. In such circumstances, Mr Chung would have reached exactly the same conclusion that he in fact reached and Mr Joo would have been dismissed.[179]The Tribunal therefore concluded that there should be no compensatory award on the basis of a Polkey reduction.[180]Given this conclusion, the Tribunal did not apply any further reduction for contributory fault, although it concluded that Mr Joo had committed culpable and blameworthy conduct that would have merited a 100% reduction to the compensatory award. Wrongful dismissal / notice pay[181]Both parties agree that Mr Joo was dismissed summarily by Pan Asia. As an employee with 12 years of continuous service he was therefore entitled to 12 weeks notice under s 86 Employment Rights Act 1996, which deals with minimum statutory notice periods.[182]Dismissal without notice is only lawful where an employee has committed an act of gross misconduct justifying summary termination. In contrast to unfair dismissal, when considering a wrongful dismissal claim, the Tribunal must reach its own view about what has occurred, rather than restricting itself to a range of reasonable responses review of the employer’s decision.[183]The Tribunal concluded that Mr Joo’s actions in threatening Pan Asia in an attempt to improve his negotiating position and failing to perform his duties were sufficiently serious to amount to gross misconduct. Protected disclosure detriment Did the Respondent: Promote Mrs Oh over the claimant to Director? Did it subject the Claimant to a detriment?[184]It was not in dispute that Mrs Oh was appointed as Director, but Mr Joo was not. The Tribunal accepted that, in the circumstances of this case, not appointing Mr Joo was a detriment. Did the Respondent: On 19th March 2021 inform the Claimant that he was to be made redundant? Did it subject the Claimant to a detriment?[185]For the reasons set out above, the Tribunal did not accept that Mr Joo was told that he would be made redundant on the 19th. The Tribunal therefore concluded that he was not subjected to a detriment in this respect. Did the Respondent: On 25th March 2021 inform the Claimant that if he did not accept their proposal he would be implicated in wrongdoing and sacked? Did it subject the Claimant to a detriment?[186]The Tribunal accepted that Mr Kim’s 25th March 2021 email amounted to a detriment, in that it included the threats against Mr Joo that are set out above. Did the Respondent: On 9th April 2021 suspend the claimant? Did it subject the Claimant to a detriment?[187]Mr Joo was suspended on the 9th April 2021 and this did amount to a detriment. Did the Respondent: On 27th August 2021 conduct a disciplinary hearing that was not fair and biased against him? Did it subject the Claimant to a detriment?[188]For the reasons set out above in relation to the unfair dismissal claim, the Tribunal concluded that the process used to dismiss Mr Joo was not fair and this did amount to a detriment. Were the detriments done on the ground that Mr Joo made a protected disclosure?[189]The Tribunal concluded that these detriments were not done on the ground that Mr Joo made a protected disclosure.[190]In relation to the appointment of Ms Oh as director and the fact that Mr Joo was not appointed, the Tribunal concluded that this was not related to Mr Joo’s protected disclosures.[191]Mr Joo’s argument on this point was, in brief, that it was inexplicable that Ms Oh should be appointed in preference to himself and that the only possible explanation for this must therefore be his protected disclosures. The Tribunal did not accept this. First, there was nothing inexplicable in not appointing Mr Joo to the Director post left vacant by Director Kim. Although Mr Joo’s perception was that Ms Oh had given this role, she had not. Rather there had been some reorganisation within Pan Asia GB in order to address an immediate crisis. A balanced assessment indicates that both Mr Joo and Ms Oh were being asked to take on somewhat more senior roles than they had had in the past (although Ms Oh more so than Mr Joo). Mr Joo had also been asked to take on responsibility for selling through Amazon, with a possible bonus or commission system relating to this. As noted above, although Mr Joo believed that the only reasonable course of action given his contributions to the business was for him to be made Director, this was not the view of Mr Chung.[192]It is also important to separate what might be termed ‘the moral case’ from whether an employer has acted reasonably as a matter of law. It may well be that Mr Joo is correct that he had made very significant contributions to Pan Asia GB’s success and that there was a moral case to be made that he should be rewarded for that. He may be right that his sacrifices and contributions were not always recognised at their full value. He may be right that he would have made a better Director than Ms Oh. But a company, provided it acts within the law, may organise its business as it sees fit. Decisions about promotion and compensation are not always made on the basis of seeking to recognise, with perfect accuracy, the past contributions and actions of the individuals concerned.[193]Taking the evidence as a whole, the Tribunal concluded that there was nothing in Pan Asia’s treatment of Mr Joo or Ms Oh that supported the inference that he sought to make.[194]The Tribunal also concluded that this part of the detriment claim was brought significantly out of time. The decision to appoint Ms Oh occurred on 10th February 2021. It was clear that, at that point, the decision not to appoint Mr Joo had been made. The time limit to bring a detriment claim of this nature is three months from the act of detriment. In order to be in time Mr Joo would have needed to commence the ACAS Early Conciliation procedure no later than the 9th May 2021 (in order to benefit from the relevant extensions of time). He did not do so until 13th September 2021, over four months later.[195]Mr Joo did not put forward any explanation for this delay and the Tribunal was not aware of any factor that would suggest that it was not reasonably practicable for him to present his claim within the statutory time limit. The Tribunal therefore concluded that time should not be extended.[196]In relation to Mr Kim’s email on the 25th March 2021, Mr Joo’s suspension and the disciplinary process, these were all unconnected with Mr Joo’s protected disclosures.[197]Mr Kim’s email was a direct response to Mr Joo’s actions in ceasing to carry out his day-to-day work. Although his actions were misguided, they were a genuine attempt to solve the very difficult situation that had arisen. He was not motivated by Mr Joo’s previous protected disclosures.[198]Similarly, the suspension and disciplinary proceedings arose from allegations of misconduct against Mr Joo which were unconnected with his previous protected disclosures and motivated by genuine concern that he had committed serious acts of misconduct. For the same reasons detailed above in relation to the unfair dismissal, the evidence did not suggest that any of the people involved were consciously or subconsciously motivated by Mr Joo’s protected disclosures. Holiday pay Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended?[199]Pan Asia accepted that Mr Joo was entitled to receive accrued holiday pay on termination and that no such payment had been made. The only dispute was in relation to the calculation of the correct sum.[200]Pan Asia argued that calculation of holiday pay should be based on Mr. Joo's net pay. The tribunal did not accept this. For the purposes of the working time regulations, this “week's pay” is defined by reference to the statutory definition of a week’s pay given in the Employment Rights Act 1996. This relates to gross pay.[201]Pan Asia, in its submissions, argued that its leave year began on the 1st January each year. No evidence in relation to the leave year was provided by either party. In the absence of any evidence the Tribunal concluded that regulation 13(3)(b) of the Working Time Regulations applied. This meant that Mr Joo’s leave year began each year on the anniversary of the beginning of his employment, ie. 1st November.[202]It follows from this that Mr Joo was 308 days into his leave year at the point that he was dismissed.[203]Mr Joo’s daily pay was £189.94 (his weekly pay of £949.71 divided by 5).[204]The calculation of holiday pay was therefore: 28 days multiplied by 308 over 365 multiplied by £189.94 = £4,487.79 Breach of contract[205]The Tribunal concluded that there was no contractually binding agreement that Mr. Joo would receive any shares. Rather, Mr Chung expressed at best, a general intention or expectation that in the future Mr Joo might be offered either shares in Pan Asia or some form of bonus arrangement that might include him receiving shares. This sort of general statement of intention falls well short of an agreement that can be contractually enforced.[206]The breach of contract claim is therefore dismissed. Approved by: Employment Judge Reed 17th November 2025 Sent to Parties. 19 November 2025 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employmenttribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice-directions/