Mr S K Tam v Michels Ventures 3 Ltd T/a DoubleTree by Hilton Manchester Airport: 2401325/2024
EMPLOYMENT TRIBUNALS
Case No 2401325/2024
Between
Mr S K TamClaimantMichels Ventures 3 Ltd T/a DoubleTree by Hilton Manchester AirportRespondent
Before
Employment Judge AspinallIn person for claimantMr Reid for respondentDate 26 June 2025
JUDGMENT
[1]The claimant’s claim for automatically unfair public interest disclosure dismissal and detriment is STRUCK OUT.[2]It had no reasonable prospect of success in establishing that the disclosure was made in the public interest and was therefore a protected public interest disclosure.[3]This judgment brings this claim in its entirety to an end. _____________________________ Approved by
REASONS
[1]The claimant worked as a food and beverage assistant for the respondent from 24 July 2023 until he was dismissed for conduct and performance reasons on 26 October 2023. The claimant did not have two years service. He was not entitled to bring a claim for ordinary unfair dismissal.[2]He went to ACAS on 1 November 2023 and achieved an ACAS certificate on 13 December 2023 he brought his claim for automatically unfair dismissal, he didn’t Case Number: 2401325/2024 need two years’ service if he was a whistleblower, and public interest disclosure detriment.[3]The matter came to a case management hearing before Employment Judge Allen on 1 May 2025. Employment Judge Allen clarified the claim and ordered that this hearing take place.[4]This was a public preliminary hearing to determine whether or not the claimant’s claim for public interest disclosure detriment and dismissal should be struck out or whether a deposit should be ordered. Procedure today[5]The interpreter was sworn in. Everyone agreed to proceed by submission only.[6]The Tribunal heard submissions from the respondent and from the claimant.[7]The respondent had provided an 89 page bundle of documents. The claimant had an 81 page bundle of documents but everyone agreed that the additional eight pages were the appeal outcome letter that the claimant had already seen.[8]The Tribunal saw a written skeleton argument and submission from the respondent which helpfully set out the relevant law in relation to qualifying public interest disclosures.[9]The submission helpfully referred to establish case law, particularly the Cavendish and Kilraine cases and to the Chesterton Global case on the important point about public interest in a disclosure and whether the claimant believed disclosure was made in the public interest.[10]The Tribunal had oral submissions from both sides and when listening to the claimant’s submission, was also looking at his letter of 12 June 2025, because he said that he had had help with that letter and that all of his submissions were in that letter.[11]Before judgment the claimant said that he would like to make more submissions because he had not felt well prepared. The Tribunal’s observation is that he was very well prepared, with relevant written and oral submissions. He was supported as a litigant in person by explaining things in clear language, and by rephrasing Mr Reid’s submissions when he had used technical legal language. When asked what extra content he wanted to cover he reiterated that everything he wanted to say was in his 12 June 2025 document.[12]The Tribunal used summarising techniques to simplify the respondent’s submissions for the claimant into 5 points and to read them back to him and use checking back questions to ensure that the claimant had understood each point. The interpreter was permitted to feed the points back to him when he asked to Case Number: 2401325/2024 be reminded of them so as to help him structure his oral submissions. The Tribunal was satisfied that he understood and engaged because he made good relevant arguments in his own case and in response to each of the respondent’s submissions. Relevant Law Whistleblowing
Relevant Law
[13]Section 43B Employment Rights Act 1996 provides:(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, is being or is likely to be deliberately concealed.(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.(5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).[14]Section 103A Employment Rights Act 1996 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.[15]Section 47B Employment Rights Act 1996 provides Case Number: 2401325/2024 (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.[16]The Employment Tribunal Procedure Rules 2024; Rule 38 on Striking Out is relevant. Rule 38 provides that the Tribunal may strike out all or part of the claim if it has no reasonable prospect of success.[17]Whilst strike out is rare, there is no blanket ban against there being a strike-out, for instance in particular classes of cases such as discrimination, although in Lockey v East North East Homes Leeds UKEAT/0511/10/DM, a decision of 14 June 2011 before HHJ Richardson sitting alone, the EAT said at paragraph 19: “…In cases of discrimination and whistleblowing there is a particular public interest in examining claims on their merits which should cause a Tribunal to consider with special care whether a claim is truly one where there are no reasonable prospects of success: see Ezsias at paragraph 32, applying Anyanwu v South Bank Student’s Union [2001] IRLR 305. …..The Tribunal is in no position to conduct a mini-trial; issues which depend on disputed facts will not be capable of resolution unless it is clear that there is no real substance in factual assertions made, as it may be if they are contradicted by contemporaneous documents.”[18]In Chandhok v Tirkey [2015] IRLR 195, at paragraph 20 the Employment Appeal Tribunal observed that there were occasions when a claim could properly be struck-out where, for instance, on the case as pleaded, there was really no more than an assertion of a difference of treatment and a difference of protected characteristic, which according to Mummery LJ, at paragraph 56 of his Judgment in Madarassy v Nomura International plc [2007] ICR 867: “… only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[19]The EAT in Chandok went on to add that the general approach was nonetheless that the exercise of a discretion to strike-out should be sparing and cautious, adding: “… Nor is this general position affected by hearing some evidence, as is often the case when deciding a preliminary issue, unless a Tribunal can be confident that no further evidence advanced at a later hearing, which is within the scope of the issues raised by the pleadings, would affect the decision.”[20]In Mechkarov v Citibank NA [2016] ICR 1121 the EAT (Mitting J) summarised the approach in discrimination cases as follows in paragraph 14: “On the basis of those authorities, the approach that should be taken in a strike out application in a discrimination case is as follows:(1) only in the clearest case should a discrimination claim be struck out;(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;(3) the Claimant’s case must ordinarily be taken at its highest;(4) if the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts. “ Case Number: 2401325/2024[21]In Ahir v British Airways plc [2017] EWCA Civ 1392, Underhill LJ put it as follows (paragraph 16): “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between ‘exceptional’ and ‘most exceptional’ circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success’.” Applying the law[22]The Tribunal had regard to relevant case law in discrimination law that reminds the Tribunal that striking out is the exception not the rule, it is rare, that it is a serious and important thing to consider extinguishing someone’s right to complain about whistleblowing. Accordingly at this stage when considering striking out, a tribunal looks at the claimant’s case at its strongest.[23]The Tribunal identified the information or allegation that was disclosed. The Tribunal relied on what the claimant said in his claim form, how Judge Allen recorded the information and allegation in his case management order, the notes of the meeting at which the disclosure was made on 3 October 2023 (though it is noted that the claimant does not agree the accuracy of those meeting notes), the claimant’s written submission of 12 June 2025 and his oral submissions today[24]Taking it at its highest the disclosure is: That the claimant told Jamie and Claire at his return to work meeting on 3 October 2023, that he had been off sick, that the reason he had been off sick was because he had bumped his head in the back of the police van and been taken to hospital, that he was in the back of the police van because he had confronted his wife on 22 August 2023 about an affair that he believed she was having with a work colleague called Rohan, that he believed that the affair was being conducted at work, that he believed it was being conducted in the respondent’s hotel rooms between the checkout of some guests and the check in of others, usually between 5 and 6:30 pm, at times that Rohan knew the rooms would be unoccupied, that Rohan conducting an affair in the hotel rooms, when he was supposed to be working was in breach of the respondent’s Code of Conduct. Case Number: 2401325/2024[25]The claimant has no reasonable prospect of success in establishing that what he said on 3 October 2023 to Jamie and Claire was a qualifying protected disclosure because; i. He had not identified information that he could reasonably believe tended to show a breach of a legal obligation. He has no prospect of establishing that he disclosed information that he reasonably believed tended to show a breach of a legal obligation ii. He had no reasonable prospect of establishing that the disclosures were made in the public interest. 25. The timing of the disclosures is significant. The claimant had suspected the affair and the use of the hotel rooms, prior to 22 August 2023 and had not disclosed until he was asked about his absence from work on 3 October 2023.[26]The context is also significant. It was a return to work discussion. He was explaining to his employer how he had come to be injured and why he had been off sick. He does not refer in the meeting minutes to the impact of the alleged affair on anyone other than his wife, himself and Rohan. He does not, for example, talk about the potential impact on colleagues or hotel guests, or costs to management. He is not complaining about lost working time. He is not reporting wrongdoing, he is explaining how he came to be injured and absent. He was clearly upset and aggrieved at what he believed to be the conduct of his wife and Rohan.[27]The Tribunal finds that the documentation at the time, the claim form, and the claimant’s own submissions show that he has no reasonable prospect of successfully establishing any public interest in what he said to Jamie and Claire on 3 October 2023.[28]The Tribunal also considered causation points, that is, if the disclosures had been protected qualifying disclosures whether or not any of the bad things that happened to Mr Tam happened to him because of his disclosures. The Tribunal accepts the respondent’s submissions based on documentary evidence, 1. That the respondent saw the alleged affair and use of hotel rooms as an internal employee conduct issue. 2. That the respondent had been planning to address the claimant’s performance issues in August 2023 but had not done so because he had gone off sick. 3. That the return to work interview on 3 October 2023 was to ensure that the claimant was well enough to return to work. 4. That the meeting on 17 October 2023 at which the performance issues were raised (the alleged detriments) issues for which the claimant was subsequently dismissed (the dismissal) related to matters that the respondent had been wanting to deal with since August, that is prior to any alleged qualifying protected disclosure. Case Number: 2401325/2024
Conclusion
[29]This was a rare case in which it was evident from the claimant’s stated case taken at its highest and from the documents that he had no reasonable prospect of establishing that he had made protected public interest disclosures.[30]The claim was struck out in its entirety[31]The judgment brought his claim to an end.