Mr K Russell Morgan v Headlands Venture Ltd: 2312427/2024
EMPLOYMENT TRIBUNALS
Case No 2312427/2024
Between
Mr K Russell MorganClaimantHeadlands Venture LtdRespondent
Before
Employment Judge RamsdenDate 23 January 2025
JUDGMENT
[1]The Claimant worked for the Respondent as a Kitchen Porter at the café in the Towner Gallery in Eastbourne from 5 May 2022 until either November or December 2024.[2]The Claimant worked shifts, and at least some part of his hours of work varied, as he was asked and agreed to work shifts. The parties disagree whether there were “core” shifts that the Claimant was entitled, and required, to work. The Respondent says that the Claimant’s engagement was as a casual worker, not as an employee for the purposes of the Employment Rights Act 1996 (the 1996 Act). The Claimant says he was an employee at the time of the matters complained of.[3]The Claimant attended and began working a shift on 2 November 2024. The parties agree that he left that shift early. a) The Claimant says, by way of explanation for leaving that shift, that he told Adam Creasey, the senior chef on duty, that he was leaving for his mental health, and that he needed a mental health break. 1 of 18 b) The Respondent says that when the Claimant left that day, he did so saying that he “quit”, before walking out. Neither of the Claimant nor Mr Creasey has given evidence on this point. Mr Collier’s witness statement records that Mr Creasey told him that this occurred.[4]The parties also agree that the Claimant was asked by Andrew Sutherland (the Head Chef) on 3 November 2024 to work another shift the following day, and that the Claimant attended and did work that shift on 4 November 2024.[5]The parties agree that the Claimant did not work any further shifts for the Respondent after that date.[6]On 7 November 2024 the Claimant sent Ellie Pattison, the Respondent’s Operations Manager, a WhatsApp message, which included the following: “I spoke to Rupert on Monday [the 4 November – the last day the Claimant worked for the Respondent] to explain what happened… I was wondering what is happening about the matter as I’m scheduled to work tomorrow .I now have a really bad flu and chest infection since working on Monday with Adam he was work in the light kitchen instead of the winter gardens he was coughing in the kitchen and the window was closed an now I have a chest infection and flu since Monday… plus Michael lied to me saying to go clean the kitchen on Monday and that there wouldn’t be anyone there but when I got there Adam was there and plus a person doing a fire check which took him over a hour…”. This, the Claimant contends, was a protected disclosure, and is referred to in this judgment as the First Averred Disclosure.[7]In that same exchange on the same day (7 November 2024), the Claimant wrote: “I don’t want to go back to a toxic environment mayhem lies and arguing”. Ms Pattison replied: “Ok don’t come in tomorrow due to being unwell and needing to explore this further. I’ll come back to you tomorrow.” The Claimant replied: “Ok thanks for your help I just need to get this sorted for my own mental health”.[8]On 8 November 2024 the Claimant forwarded some WhatsApp messages he received from Mr Sutherland to Ms Pattison, interspersed with some messages from the Claimant himself addressed to Ms Pattison. Those messages read: a) (A forwarded message) “Can you come in mate if possible I dunno why she said not too”; b) (A forwarded message) “I wasn’t told until just now and now we have no k.p”; c) (A message from the Claimant) “ellie has said not to she said she would speak to you”; d) (A forwarded message) “Ok are u able to come in please”; e) (A message from the Claimant) “No I’m ill with chest infection and flu that’s why she said stay at home and she said she would tell you”; 2 of 18 f) (A forwarded message) “Right but why didn’t you tell me?”; and g) (A message from the Claimant) “Michael sent this”. These exchanges are together described as a single protected disclosure by the Claimant, and are referred to collectively in this judgment as the Second Averred Disclosure.[9]ACAS Early Conciliation began on the same day (8 November 2024).[10]The Claimant sent a letter to Ms Pattison on 11 November 2024, entitled “Subject: Formal Request to Address Workplace Concerns and Legal Breaches”. That letter made various allegations and complaints, none of which are said by the Claimant to be protected disclosures upon which he relies for this interim relief application. That letter included a paragraph that read: “I am formally asserting that any attempt to terminate my employment under these circumstances would constitute unfair dismissal under Section 94 of the Employment Rights Act 1996”.[11]The Claimant wrote to Ms Pattison again on 14 November 2024. That letter was titled “Cease and Desist from Further Violations and Notice of Whistleblowing Claim” and, as the title suggests, alleges that the Respondent has not complied with law and that the Claimant will be bringing a whistleblowing claim. The Claimant does not aver that any of the contents of this letter were the reason or principal reason for his dismissal. That letter – clearly well-researched and citing various pieces of legislation and decided cases – demanded that the Respondent take corrective action or “I will initiate legal proceedings, including filing claims for:• Unfair dismissal and breach of contract, should my employment be terminated or adversely impacted”.[12]Joe Collier, the Respondent’s Operations Director, emailed the Claimant twice on 14 November 2024: a) Apparently in response to the Claimant’s 11 November 2024 letter, expressing regret that “you currently feel you can’t return to the workplace”, and saying that the Respondent wishes to investigate the complaints the Claimant makes. Mr Collier expressed a desire to speak to the Claimant about those matters. He concluded: “you are a valued member of the team Karlos and have worked for us for a long time, the fact you feel like this isn’t good and I will deal with this with the utmost urgency”; and b) “Regarding this Cease and Desis letter, please can we also go through this when we are able to meet. I would like to go through each point with you and precisely work out where exactly you feel Headland Ventures LTD has failed.”[13]Further attempts to communicate with the Claimant were made by the Respondent on 15, 18 and 27 November 2024. There was no evidence before this Tribunal of the Claimant responding to those. 3 of 18[14]On 6 December 2024, Mr Collier emailed the Claimant, which included: “Following several attempts to contact you, which have been to no avail, we have been unable to communicate with you regarding your employment. We have been given no indication from you that you plan to return to work or given a reason for your extended absence. We have therefore today processed your payslip with all your holiday allowance, hours worked in November and final Tronc payment – which is attached. We will be issuing your P45 next week. If you have any questions please contact me.”[15]The Claimant presented a Claim Form to the Tribunal on 12 December 2024, complaining of: a) Unfair dismissal; b) Sexual orientation discrimination; c) Disability discrimination; d) Sex discrimination; e) Protected disclosure detriment; f) Automatic unfair dismissal on the basis that he was dismissed for the sole or principal reason that he had made protected disclosures; g) Unpaid holiday pay; and h) Unauthorised deductions from his wages.[16]The Claim Form, in box 2.3, stated that the Claimant did not have an ACAS early conciliation certificate number, and ticked the box giving the reason for that as being “My claim consists only of a complaint of unfair dismissal which contains an application for interim relief. (See guidance)”. Box 8.2 of that form, which asks for the background and details of the claim, did not refer to interim relief. Box 9.2, a ”free text” box where claimants are to describe the compensation or remedy they are seeking, does not use the words “interim relief”, but does seek “Immediate payment of all wages from 6th December 2024 to the court date”. The employment details in section 5 of the Claim Form gave the Claimant’s start date as 5 May 2022, and stated that his employment was ongoing.[17]ACAS Early Conciliation ended on 17 December 2024.[18]On 18 December 2024 the Tribunal wrote to the Claimant, saying: “Your claim form indicates at section 2.3 that your claim consists of a complaint for unfair dismissal which contains an application for interim relief. [In] section 5.1 you have ticked the box indicating that your employment is continuing and you do not provide a date for your employment ending…. 4 of 18 Your claim form is ambiguous about whether or not you have been dismissed. It is further not clear that you are [claiming] that you have been automatically unfairly dismissed for being a whistleblower (one of the types of claims for which interim relief is available). Additionally, there is nothing within the narrative you present at section 8.2 to indicate you are making an application for interim relief… You do not mention interim relief as something you wish to apply for in [section 9.2 about compensation and remedy] despite setting extensive compensation and other proposed remedies…”. The letter required the Claimant to clarify whether he wished to make an application for interim relief within seven days.[19]That confirmation was provided by the Claimant on 19 December 2024.[20]The Tribunal wrote to the Respondent to notify it of the Claimant’s application for interim relief on 9 January 2025. The hearing[21]The Claimant did not attend the hearing, but was represented at the hearing by his daughter and lay representative, Yasmin Jenkins. The Claimant did not provide a written witness statement to the Tribunal. The Respondent was represented in the hearing by Counsel (Mr MacPhail).[22]The Claimant provided the Tribunal with various pieces of evidence: a) A photograph showing damp around a door or window frame, and a closerup photograph of damp, but the place is not shown. Both are apparently from the Claimant’s home, and are presented as evidence of his straightened financial circumstances; and b) Two letters about the assignment of a loan taken out by the Claimant. The letters do not identify when the loan was taken out.[23]The Respondent provided the Tribunal with: a) A bundle of evidence, running to 205 pages; b) A bundle of supplementary evidence, running to 33 pages; and c) A witness statement from Joe Collier, its operations Director.[24]Each of the Respondent and the Claimant made submissions in support of their respective positions.[25]When asked by the Employment Judge if either side wanted to make her aware of any needs that they have relevant to the conduct of the hearing, Ms Jenkins informed the Tribunal that she has some special needs, which include some development delay. She said that she needed simple questions to be put to her, and she may need more time to process information.[26]Ms Jenkins appeared confident, and the Employment Judge encouraged her to speak up if she did not understand anything that was said in the hearing, either 5 of 18 by the Employment Judge or Mr MacPhail. Ms Jenkins confirmed that she would do so.[27]Breaks were taken to give Ms Jenkins time to deal with IT problems, such as accessing the bundles the Respondent had sent, and because she had not had the opportunity to complete her reading of Mr Collier’s witness statement. Upon her return from the second of those breaks, Ms Jenkins confirmed that she had read Mr Collier’s witness statement. The Employment Judge reminded her that she could ask for any extra time to read documents that Mr MacPhail takes the Tribunal to, although it was likely that she was familiar with many of the documents in the Bundles. It was only after this time that the Tribunal invited the parties to make their submissions on the Claimant’s application.[28]In the event, the Respondent did not take the Tribunal to any part of the Supplementary Bundle, and the correspondence the Respondent referred to in its main Bundle was correspondence which the Claimant had been a party to. Ms Jenkins did not indicate that she needed more time to read any of those documents.[29]The Employment Judge explained to Ms Jenkins the legal test for granting interim relief, and the key points emerging from the case law around the meaning of the term “likely” in section 129(1) of the 1996 Act (which was also summarised in the Respondent’s written submissions, which had been sent to the Claimant shortly before the hearing, and which Ms Jenkins confirmed she had read). The Claimant said that she had already prepared the points she wanted to make on each of those matters ahead of the hearing.[30]In submissions, the Employment Judge took Ms Jenkins through each question the Tribunal would be considering, and asked her to set out the Claimant’s position on each of those questions. The Employment Judge probed the answers, and Ms Jenkins was confident and, in the main, clear in her responses. Ms Jenkins was given the right to reply to the Respondent’s submissions, which she used, and then confirmed that she had no further points to make.[31]The hearing was listed for three hours. By the end of four hours the parties had each made and completed their submissions, and the Employment Judge reserved her decision. Law “Employee” and “worker”[32]Section 230 of the 1996 Act sets out the meaning of the term “employee” in that Act: “(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.” 6 of 18[33]Subsection (2) makes it clear that a contract of employment can be express or implied, and oral or in writing.[34]Subsection (3) defines the term “worker” for 1996 Act purposes, and that definition makes it plain that the term includes subsection (1) “employees”, but also another category of persons, each of whom has: “entered into or works under (or, where the employment has ceased, worked under)- … (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”.[35]There is a substantial body of case law on the differences between: a) employees and independent contractors; b) non-employee workers and independent contractors; and c) employees and non-employee workers.[36]Significantly, that case law tells us that much turns on the factual reality of how the relationship between the individual and the putative employer operates/operated in practice.[37]The House of Lords in Carmichael v National power plc [1999] 4 All ER 879 identified mutuality of obligation – the obligation on the putative employer to provide work and the obligation on the putative employee to accept work – to be the “irreducible minimum” of an employment relationship.[38]The Supreme Court in Uber BV v Aslam [2021] IRLR 407 – a case on “worker” status (and, as noted above, the concept of “worker” for 1996 Act purposes includes employees as well as non-employee workers) emphasised that, when determining that status: a) There could be no substitute for applying the words of the statute to the facts of the individual case; b) It was important to bear in mind the purpose of the legislation, being to afford workers rights; and c) It is the vulnerabilities of workers which creates the need for statutory protection – those vulnerabilities being subordination and dependence upon another person in relation to work done. 7 of 18 Automatic unfair dismissal: on the ground of protected disclosure[39]Section 103A of the 1996 Act provides: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”[40]This makes it plain that only employees are protected from automatic unfair dismissal on the ground of protected disclosure – non-employee workers (or category (b) workers from section 230(3) of the 1996 Act) are not protected in this way. Protected disclosure detriments[41]Section 47B(1) of the 1996 Act provides: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[42]The term “protected disclosure” is set out in section 43A: “In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[43]The basis on which a disclosure will be a “protected disclosure” is described in section 43B as follows: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”[44]A “qualifying disclosure” made to the discloser’s employer is a “protected disclosure” pursuant to section 43C. 8 of 18 Interim relief[45]Interim relief is an emergency remedy the effect of which is to maintain the status quo as regards employment until the final hearing to determine the claimant’s underlying claims. It is an order that the claimant continues in the respondent’s employment (or is compensated as if they remain in the respondent’s employment) until that final hearing. It is only available in certain prescribed circumstances, set out in section 128 of the 1996 Act. Those circumstances include where “the reason (or if more than one the principal reason) for the dismissal” is that the claimant has made a protected disclosure.[46]Section 128 also prescribes the procedure that must be followed in order for a claim for interim relief to be considered: “(2) The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date). (3) The tribunal shall determine the application for interim relief as soon as practicable after receiving the application. (4) The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing. (5) The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.”[47]Once the claimant shows that their application is within the four corners of section 128, it is for the tribunal to determine their application by either granting or dismissing it.[48]While not binding on this tribunal, it is noted that the interim relief application in the case of Astle v Travis Perkins PLC ET Case No. 2403488/2020 failed when it came before EJ Franey in the Manchester Employment Tribunal, because that Tribunal observed that section 128(2) does not give the tribunal power to extend the seven day time limit.[49]The burden of proof sits with the applicant, i.e., the claimant seeking interim relief. Section 129(1) sets out the relevant test to be applied by the tribunal considering whether to grant interim relief, which is whether: “it appears to the tribunal that it is likely that on determining the complaint to which the application relates that the tribunal will find [that complaint wellfounded]” (emphasis added).[50]The tribunal is required, on the basis of the material before it, to make a summary assessment of the chances of the claimant succeeding (Parsons v Airplus UKEAT/0023/16). It is not the role of the tribunal to decide the issue as if it were a final issue (Parkins v Sodexo Ltd [2002] IRLR 109). It is sufficient for the judge 9 of 18 to “indicate the ‘essential gist of her reasoning’: this is because the Judge is not making a final judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; and because, as far as possible, it is better not say anything which might pre-judge the final determination on the merits” (Parsons).[51]The meaning of the word “likely” in section 129(1) was considered in Taplin v C Shippam Ltd [1978] IRLR 450, where the EAT found that it required the applicant to establish: “that he has a ‘pretty good’ chance of succeeding in the final application to the Tribunal. In order to succeed… an applicant must achieve a higher degree of certainty in the mind of the Tribunal than that of showing that he just had a ‘reasonable’ prospect of success”, and noted that it is “an exceptional form of relief”.[52]The EAT in Ministry of Justice v Sarfraz [2011] IRLR 562 held that the word “likely” does not mean “more likely than not” (that is, at least 51% probability), but rather “connotes a significantly higher degree of likelihood”.[53]This was characterised in the EAT decision of Dandpat v University of Bath UKEAT/0408/09 as a “comparatively high” test, set as such for “good reasons of policy” given that, “If relief is granted the Respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the Claimant, until the conclusion of proceedings: that is not [a] consequence that should be imposed lightly”.[54]The same “likely to succeed” test has to be applied to all aspects of the complaint that might be in issue (Simply Smile Manor House Ltd v Ter-Berg [2020] ICR 570). As summarised in Sarfraz, where a claimant says they were unfairly dismissed for making a protected disclosure and seeks interim relief, the judge hearing that application has to decide whether it is likely that the tribunal at the final hearing would find four things (adapted now that the requirement to demonstrate good faith has been removed): a) that the claimant had made a disclosure to his employer; b) that they believed that that disclosure tended to show one or more of the things itemised at (a) to (f) under section 43B(1) of the 1996 Act; c) that that belief was reasonable; and d) that the disclosure was the principal reason for their dismissal.[55]Rule 94 of the Employment Tribunal Procedure Rules 2024 sets out that: “When a Tribunal hears an application for interim relief… the Tribunal must not hear oral evidence unless it directs otherwise.” 10 of 18 Application to the claims here[56]Taking the list enumerated in Sarfraz and expanding it to include:• The precursor questions of whether the procedural conditions to make an application for interim relief are satisfied (i.e., the section 128 questions); and• The particular factual disputes that arise on these facts - being whether it is likely that the Claimant will persuade the Tribunal at the final hearing that he was:(i) An employee of the Respondent; and(ii) Dismissed by it (Ter-Berg), the questions to be asked and answered by the Tribunal are ten in number: a) Did the Claimant present a complaint to the employment tribunal that he has been unfairly dismissed, and the reason is one of the reasons specified in section 128(1) of the 1996 Act? b) Did the Claimant make an application in the time prescribed by section 128 of the 1996 Act? c) Is it likely that the Claimant will persuade the Tribunal at the final hearing that he was an employee of the Respondent (as he needs to be in order to be eligible for protection under section 103A of the 1996 Act)? d) Is it likely that the Claimant will persuade the Tribunal at the final hearing that he was dismissed by the Respondent (as he needs to be in order to be eligible for protection under section 103A of the 1996 Act)? e) Is it likely that the Claimant will persuade the Tribunal at the final hearing that he had made a disclosure of information to his employer (section 43B(1) of the 1996 Act)? f) Is it likely that the Claimant will persuade the Tribunal at the final hearing that he made that disclosure “in the public interest” (section 34B(1) of the 1996 Act)? g) Is it likely that the Claimant will persuade the Tribunal at the final hearing that that belief was reasonable? h) Is it likely that the Claimant will persuade the Tribunal at the final hearing that he believed that that disclosure tended to show one or more of the things itemised at (a) to (f) of section 43B(1) of the 1996 Act? i) Is it likely that the Claimant will persuade the Tribunal at the final hearing that that belief was reasonable? 11 of 18 j) Is it likely that the Claimant will persuade the Tribunal at the final hearing that the disclosure was the reason or the principal reason for his dismissal? The First Question: Did the Claimant present a complaint to the employment tribunal that he has been unfairly dismissed, and the reason is one of the reasons specified in section 128(1) of the 1996 Act?[57]Yes: the Respondent does not dispute that the Claimant presented (on 12 December 2024) a complaint to the employment tribunal that he has been unfairly dismissed for the reason or principal reason that he made a protected disclosure. The Second Question: Did the Claimant make an application in the time prescribed by section 128 of the 1996 Act?[58]This is a point of contention between the parties for two reasons: a) While the Claimant says that his employment ended on 6 December 2024 when Mr Collier emailed him in the terms described above, the Respondent says that the Claimant’s employment ended at an earlier point in time at the initiative of the Claimant; and b) While the Claimant says that he made an application for interim relief when he presented his Claim Form on 12 December 2024, the Respondent says he did not do so until he responded to the Tribunal’s questions on 18 December 2024.[59]On the second of those, the Tribunal finds that it is clear that the Claimant did apply for interim relief in the Claim Form on 12 December 2024. He ticked the box in section 2.3 to say he was, and the Tribunal’s letter on 18 December 2024 opened with the following words: “Your claim form indicates at section 2.3 that your claim consists of a complaint for unfair dismissal which contains an application for interim relief” - i.e., the Tribunal understood him to have made that application.[60]There was confusion caused by the fact that the form indicated the Claimant’s employment was continuing and, in light of that, the absence of express reference to interim relief in the remedy section at box 9.2, but that section did seek “Immediate payment of all wages from 6th December 2024 to the court date”, which (when it was clarified that the Claimant understood his employment to have ended) is clearly seeking interim relief.[61]On the first point of contention, this is a matter that will likely be relevant at the Final Hearing of the claim, and there is factual evidence pointing both ways (e.g., Mr Collier’s email to the Claimant of 14 November 2024 refers to the Claimant “currently” feeling he cannot return to work, which suggests that the Respondent did not regard that as a permanent state of affairs; on the other hand there is evidence of the Claimant’s lack of responsiveness to the Respondent’s attempts 12 of 18 to engage with him about his concerns from mid-November to 6 December 2024, which may indicate that the Claimant had no intention to return).[62]This is not a matter that lends itself to summary determination, particularly where no witness evidence has been presented by the Claimant and (as is appropriate in light of Rule 94) no oral evidence heard from the Respondent. Were it not for the fact that the Claimant’s application plainly cannot succeed on the basis of the Claimant’s representations in this hearing about the reason for the Claimant’s dismissal (the Tenth Question), I would be required to determine this issue as a matter of fact in order to answer the question of whether the application was made within the time prescribed by section 128(2). In the absence of needing to do so (because the application otherwise fails), I have not decided if the application was made ‘in time’, and I consider this consistent with the principle referred to in the Parsons decision, of not ‘tying the hands’ of the Tribunal at the Final Hearing regarding a point of disputed fact. The Third Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that he was an employee of the Respondent?[63]The burden sits with the Claimant to satisfy the Tribunal, for the purpose of this interim relief application, that he is “likely” to establish at the final hearing that he was an employee of the Respondent for 1996 Act purposes (section 129(1) and Ter-Berg).[64]As the Uber case demonstrates, where status is disputed this can involve a deep level of factual enquiry, taking account of the degree of subordination and dependence of the individual on the putative employer (itself a matter for determination). On the facts here, there was no written contract between the Claimant and the Respondent, and therefore the determination of whether the Claimant was an employee (as he asserts) or a non-employee worker (as the Respondent would have the Tribunal believe) will necessitate an examination of the way in which that relationship operated in practice.[65]The Claimant has made representations to say that: a) He worked a regular shift pattern, plus additional shifts if he was asked and agreed to undertake them (which, he says, was a regular occurrence); b) The Respondent was obliged to provide him with full-time shifts according to his regular shift pattern, even if the Respondent did not have need of his work; c) He was paid holiday pay by the Respondent; and d) He was not paid sick pay.[66]The bare assertion that the Respondent was obliged to provide work the Claimant is not sufficient to establish that that was the case where this is denied by the Respondent. The payslips included in the bundle show that the Claimant had variable earnings, which could be consistent with the position taken by either 13 of 18 party. Non-employee workers are entitled to be paid for holiday, so that does not answer the question.[67]Comments, such as that from Mr Collier that the Claimant was a valued “member of the team” may indicate integration, but again, this is insufficient to persuade the Tribunal that it is “likely”, in the sense of a significantly higher degree of likelihood than ‘more likely than not’ (Sarfraz) that the Tribunal in the Final Hearing will conclude that the Claimant was an employee of the Respondent.[68]Consequently the Tribunal finds that the Claimant has not discharged the burden of proof that sits with him to establish that it is “likely” that he will persuade the Tribunal at the Final Hearing that he was an employee of the Respondent. The Fourth Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that he was dismissed by the Respondent?[69]Again, this is a contested point.[70]The Claimant says that he was dismissed by the Respondent on 6 December 2024, the Respondent says that Mr Collier’s letter of 6 December 2024 was an acknowledgement of a state of affairs brought about the Claimant – i.e., that the Claimant had already terminated the contract between them.[71]The key pieces of relevant evidence cited to the Tribunal in this hearing are as follows: a) Even if the Claimant said that he “quit” on 2 November (which he denies), the parties agree that he returned to work on 4 November, which could be regarded by the Tribunal at the Final Hearing as revoking any resignation; b) Even if the request from Mr Sutherland for the Claimant to work on 4 November is explained by Mr Sutherland not being aware of what had been said by the Claimant on 2 November 2024, the correspondence between the Claimant and each of Ms Pattison and Mr Collier may be regarded by the Tribunal at the Final Hearing as inconsistent them considering that the Claimant had terminated their relationship. Ms Pattison wrote, in a WhatsApp message to the Claimant, “Ok don’t come in tomorrow due to being unwell and needing to explore this further”. This appears to be an employer authorising leave. Mr Collier wrote, on 14 November 2024: “you are a valued member of the team” – present tense – “and I will deal with this with the utmost urgency”; c) The communication from the Respondent on 6 December 2024 is unclear as to whether it regarded the Claimant as already having ended his engagement (as is now asserted by the Respondent), or whether, in consequence of the Claimant’s lack of responsiveness to communications, Mr Collier regarded it as now appropriate, on 6 December 2024, to bring things to a close by the Respondent terminating the Claimant’s employment; and 14 of 18 d) The Claimant made it plain to the Respondent that he regarded his employment relationship with the Respondent as continuing on 11 and 14 November 2024, and that belief was expressed clearly to the Respondent, whatever the Respondent thought on 3 November 2024, and may well be relevant to the assessment of the Tribunal at the Final Hearing as to whether the Claimant terminated the relationship prior to Mr Collier’s letter of 6 December 2024.[72]Again, this is a factual dispute which needs to be aired properly before the Tribunal, with evidence brought by the Claimant, and relevant witnesses being cross-examined and subject to Tribunal questions.[73]In light of these questions, this Tribunal finds that the Claimant has not discharged the burden of proof that sits with him to establish that it is “likely” that he will persuade the Tribunal at the Final Hearing that he was dismissed by the Respondent. The Fifth Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that he had made a disclosure of information to his employer?[74]The terms of the First Averred Disclosure and the Second Averred Disclosure are set out in the Background section above.[75]It is likely that the Claimant will persuade the Tribunal at the Final Hearing that he disclosed information in the First Averred Disclosure. There are several parts of that message which this Tribunal thinks that Tribunal could find to be pieces of information - that he spoke to Rupert, that he has flu and a chest infection, what happened with Mr Creasey’s work arrangements on 4 November, the fact that Mr Sutherland had led the Claimant to believe something different to the reality of his work arrangements on 4 November, and the fact that the window was closed. That Tribunal only needs to find one of them to be made out to satisfy this limb. Therefore this Tribunal considers it likely that one of them, if not more, will be found to be information that was disclosed by the Claimant in the First Averred Disclosure.[76]It is also likely that the Claimant will persuade the Tribunal at the Final Hearing that he disclosed information in the Second Averred Disclosure – namely, that Mr Sutherland sent him the forwarded messages. The Sixth Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that he believed that the disclosure was made in the public interest (section 43B of the 1996 Act)?[77]The Claimant says that the information in the First Averred Disclosure was made in the public interest because the Claimant worked in the café of the Towner Gallery, many people go to that café, and “it’s a matter of public health” if they do so and the kitchen porter is ill. 15 of 18[78]The Respondent disagrees. It says that there is no indication whatsoever from that message that the Claimant had the public interest in mind when he made the First Averred Disclosure.[79]The Tribunal finds that the Claimant has not shown that it is “likely” that the Tribunal in the Final Hearing will find that the First Averred Disclosure was made in the public interest. It could have been, but that Tribunal could also find that the context of the message is given by the words “I’m scheduled to work tomorrow”. The message may well be found to have been sent to ensure that the Respondent knew the Claimant was too unwell to attend his shift the next day, rather than to raise a concern of health and safety that is of public interest.[80]As for the Second Averred Disclosure, the same analysis applies. While the Claimant says that the messages from Mr Sutherland show a disregard on Mr Sutherland’s part for the health and safety of people using the café in the Towner Gallery (given Mr Sutherland wanted the Claimant to work his shift while unwell with flu and a chest infection), those messages would also be explicable by the Claimant asking Ms Pattison to tell Mr Sutherland that the Claimant would not be attending work due to his being unwell, and/or to shut down Mr Sutherland’s criticism that the Claimant did not inform him of that fact directly. The Tribunal finds that the Claimant has not shown that it is “likely” that the Tribunal in the Final Hearing will find that the Second Averred Disclosure was made in the public interest. The Seventh Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that that belief was reasonable?[81]In light of the Tribunal’s conclusions on the Sixth Question, the Seventh Question does not arise. The Eighth Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that he believed that that disclosure tended to show one or more of the things itemised at (a) to (f) under section 43B(1) of the 1996 Act?[82]The Claimant avers that the disclosures tended to show that: a) Under section 43B(1)(b) (“that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject”), the Respondent had failed, was failing or was likely to fail to comply with its obligations to him under the Equality Act 2010 as regards his mental health breakdown, failing to make reasonable adjustments for his disability, and the health and safety risk his mental health breakdown posed, and that it had victimised him; b) Under section 43B(1)(c) (“that a miscarriage of justice has occurred, is occurring or is likely to occur”), the Respondent did not uphold its workplace standards or the Claimant’s employment rights because it unfairly dismissed him; and 16 of 18 c) Under section 43B(1)(d) (“that the health or safety of any individual has been, is being or is likely to be endangered”), the Respondent was endangering the health and safety of others by not reporting injuries or occurrences. The Claimant also referred to the Claimant’s rights under the 1996 Act and the Equality Act 2010 – i.e., that the disclosures tended to show that the Respondent was not complying with its obligations as an employer under the 1996 Act and/or the 2010 Act.[83]The Tribunal finds that these arguments are not likely to persuade the Tribunal at the Final Hearing that the Claimant believed the disclosures tended to show any of these (b), (c) or (d) matters. a) In relation to the argument made regarding section 43B(1)(b), neither the First Averred Disclosure nor the Second Averred Disclosure is likely to be found by the Tribunal at the Final Hearing to show that the Respondent’s obligations to the Claimant under the 2010 Act were not being met as regards the Claimant’s mental health. There was no mention of the Claimant’s mental health in either of those disclosures – each concerned the Claimant’s physical health – and nor was there any mention of victimisation in either disclosure. b) In relation to the argument made regarding section 43B(1)(c), neither the First Averred Disclosure nor the Second Averred Disclosure is likely to be found by the Tribunal at the Final Hearing to show that a miscarriage of justice had occurred, was occurring or was likely to occur. There was no indication in either disclosure that the Respondent intended to unfairly dismiss the Claimant (and, indeed, the Ms Jenkins said that there was no indication that the Respondent intended to dismiss him until 6 December 2024), and the exchanges that make up the First Averred Disclosure and Second Averred Disclosure involve Ms Pattison agreeing, or the Claimant referring to Ms Pattison’s agreement, that he should not attend work given he was ill. c) In relation to the argument made regarding section 43B(1)(d), neither the First Averred Disclosure nor the Second Averred Disclosure is likely to be found by the Tribunal at the Final Hearing to show that the health or safety of any individual has been, is being or is likely to be endangered:(i) by not reporting injuries or occurrences – as no injuries or occurrences are cited in the messages; or(ii) by reference to the Claimant’s rights under the 1996 Act or the 2010 Act – as those rights are not cited in the messages either. The Ninth Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that that belief was reasonable?[84]In light of the Tribunal’s conclusions on the Eighth Question, the Ninth Question does not arise. 17 of 18 The Tenth Question: Is it likely that the Claimant will persuade the Tribunal at the final hearing that the disclosure was the reason or the principal reason for his dismissal?[85]The Claimant’s clear submission – and the Employment Judge asked about this twice to be sure that Ms Jenkins had a clear opportunity to point her point across – was that the Claimant was dismissed because of: a) His mental health breakdown; and b) The Respondent’s desire to avoid making reasonable adjustments for him to accommodate his mental health disability.[86]The Claimant was given an opportunity to reply to the Respondent’s representations, which made it plain that that position would not satisfy the conditions for granting interim relief, but Ms Jenkins did not seek to change the Claimant’s position on this point.[87]In light of this, it is not likely that the Claimant will persuade the Tribunal at the Final Hearing that any disclosures, whether protected or otherwise, were the reason or the principal reason for his dismissal. The Claimant’s position is that he was dismissed because of his mental health difficulties. Conclusions[88]For all of the above reasons, the Claimant’s application does not succeed.