Mr E Passley v Greene King Retail Services Ltd: 2401763/2024

EMPLOYMENT TRIBUNALS

Case No 2401763/2024

Between

Mr E PassleyClaimant

Greene King Retail Services LtdRespondent

Before

Employment Judge Ainscough

Date 8 January 2026

JUDGMENT

[1]The complaint of Unfair dismissal is struck out because the claimant has less than 2 years service with the respondent.

[2]The claimant’s remaining complaints will continue.

[1]The complaint of harassment related to race, contrary to Equality Act 2010 section 26, was not presented within the applicable time limit. It is not just and equitable to extend the time limit. The complaint is therefore dismissed.

[2]This Judgment does not apply to the other complaints of the Claimant, the proceedings in respect of which continue Approved

[1]The claim of having been subject to a detriment on the grounds of having made a Public Interest Disclosure fails and is dismissed in its entirety.

[2]The clam for wrongful dismissal fails and is dismissed.

[3]For the avoidance of doubt, all claims in this case have failed and have been dismissed.

REASONS

[4]An oral judgment was handed down to the parties on 07 January 2026. The written judgment was sent to the parties on 23 February 2026. The claimant made a request for written reasons by email dated 02 March 2026. These are the written reasons as requested by the claimant.

[5]The claimant worked as a Kitchen Manager for the respondent from 02 October 2023 until 27 January 2024. The claimant presented his claim form on 15 March 2024, and this was following ACAS Early Conciliation, which took place between 18 March 2024 and 22 March 2024.

[6]The case was considered across three Preliminary Hearings in advance of this final hearing. At the first of these, which was a Case Management Preliminary Hearing in front of Employment Judge Ainscough on 25 October 2024, the list of issues was considered, and a copy was appended to the back. The claimant did not bring a claim for automatic unfair dismissal. And his complaint of ordinary unfair dismissal was dismissed as the claimant did not have two years’ continuous service. The second hearing was listed as a Public Hearing on 24 February 2025. This hearing was heard by Employment Judge Cookson. She determined the claimant’s application to amend his claim but was unable to make progress on other matters that were due to be considered at this hearing. A third Preliminary Hearing (again in Public) took place before Employment Judge Kenward on 08 July 2025. EJ Kenward struck out the claimant’s race discrimination complaints. And applied a deposit to allegation 3.1.1. EJ Kenward finalized the list of issues, which was appended to the back of his Case Management Orders (pp.79-82). At the beginning of the final hearing, the parties confirmed that the list of issues remained accurate, and the Tribunal was satisfied that this accurately represented the claim as brought in the claim form (subject to the decisions already made).

[7]Neither party raised any preliminary issues at the beginning of the hearing that the tribunal needed to be aware of before commencing with the case. The respondent informed the tribunal of its witness running order following being asked by the tribunal. This ensured that the claimant could organise his cross-examination questions.

[8]On day two, the claimant raised an issue with p.212 of the bundle. He explained that this document was added late and that he did not think it should be included in the evidence bundle. However, the document was simply the email to which his termination letter was attached. It added nothing more than giving the date on which he was sent his letter. And this was after the claimant had confirmed the date that he was sent the email when being cross-examined. In short, there was nothing controversial about the document and it contained nothing that was in dispute between the parties. The Tribunal struggled to understand the claimant’s objection to it in those circumstances. The Tribunal decided to allow the document to be included. The claimant was invited to give further evidence on the email if he considered it necessary (although it was unclear what he could say about it). The claimant wisely chose not to give any further evidence on it.

[9]The tribunal was assisted in this case by a bundle of documents that ran to 212 pages (inclusive of the index).

[10]The tribunal heard evidence from the Claimant, who gave evidence on his own behalf. The claimant called no additional witnesses.

[11]The Respondent called the following witnesses:a. Ms Lisa Dolphin, who investigated and decided the claimant’s grievance.

b. Ms Ali Coxon, who was General Manager of the respondent for part of the claimant’s employment and was the dismissing officer. LIST OF ISSUES Time Limits

LIST OF ISSUES

[12]Given the date that the ET1 Form of Claim was presented and the dates of early conciliation, any complaint about something that happened on or before 18 December 2023 may not have been brought in time.

[13]Were the complaints of victimisation by being subjected to detriment by reason of having made a protected disclosure made within the time limit in section 48 of the Employment Rights Act 1996? The Tribunal will decide upon the matters set out below.a. Was any complaint made to the Tribunal within three months (plus early conciliation extension) of the act about which complaint is made?

b. If not, in relation to any complaints of victimisation by being subjected to detriment by reason of having made a protected disclosure, was there a series of similar acts or failures and was the complaint made to the Tribunal within three months (plus early conciliation extension) of the last one?

c. If not, was it reasonably practicable for the complaint to be made to the Tribunal within the time limit?

d. If it was not reasonably practicable for the complaint to be made to the Tribunal within the time limit, was it made within a reasonable period? Protected Disclosure

[14]Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide the issues set out below.

[15]The Claimant says that he made disclosures as set out below: a. By e-mail sent to the Respondent’s Employee Relations Team on 31 October 2023 which submitted a complaint about the Respondent’s General Manager, Megan Haywood, which included allegations of misappropriating food.

[16]Did the Claimant disclose information?

[17]Did the Claimant believe that the disclosure of information was made in the public interest?

[18]Was that belief reasonable?

[19]Did the Claimant believe it tended to show that:a. a criminal offence had been, was being or was likely to be committed;

b. a person had failed, was failing or was likely to fail to comply with any legal obligation;

c. the health or safety of any individual had been, was being or was likely to be endangered;

d. information tending to show any of these things had been, was being or was likely to be deliberately concealed?

[20]Was that belief reasonable? Victimisation by being subjected to detriment (Employment Rights Act 1996 section 47B)

[21]Was the Claimant treated in the ways set out below:a. in the period between 26 October 2023 and 18 January 2024, being followed by colleagues around the premises and/or colleagues being instructed by Megan Haywood to follow him around the premises;

b. on 30 December 2023, being told by Lisa Dolphin, the Respondent’s Business Development Manager, that nobody wanted to work with him

[22]By doing so, did it subject the Claimant to detriment?

[23]If so, was it done on the ground that the Claimant made a protected disclosure? Wrongful dismissal / Notice pay

[24]What was the Claimant’s notice period?

[25]Was the Claimant paid for that notice period?

[26]If not, was the Claimant guilty of gross misconduct and / or did the Claimant do something so serious that the Respondent was entitled to dismiss without notice?

[27]If not, was the Respondent otherwise contractually entitled not to pay the Claimant for his notice period?

THE LEGAL FRAMEWORK

[28]It is at s.43B of the Employment Rights Act 1996 (hereinafter ‘ERA’) where it is set out what is meant by a qualifying disclosure: 43B Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [F2 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.

[29]In essence, what a tribunal must determine can be broken down into its constituent parts:a. Did the claimant disclose any information?

b. If so, did the claimant believe, at the time they made the disclosure, that the information disclosed was in the public interest and tended to show one of those matters listed in s.43B(1) ERA?

c. If so, was that belief reasonable?

[30]Under section 47B ERA: "(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."

[31]The following case law principles were considered and applied by the tribunal:a. The EAT in Martin v London Borough of Southwark EA-2020- 000432 (previously

UKEAT/0239/20

) (10 June 2021, unreported), reminded the tribunal that a structured approach to determining a protected disclosure should be followed:

(i) there must be a disclosure of information;

(ii) the worker must believe that the disclosure is made in the public interest;

(iii) if the worker does hold such a belief, it must be reasonably held;

(iv) the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs 43(1)(a) to (f) ERA;

(v) if the worker does hold such a belief, it must be reasonably held.

b. The EAT in Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

, where Slade J explained that a protected disclosure must involve information and not simply be raising of concern or allegation: “… the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around.” Contrasted with that would be a statement that “You are not complying with Health and Safety requirements”. In our view this would be an allegation not information.”

c. In Kilraine v London Borough of Wandsworth

UKEAT/0260/15

, Langstaff J stated: “I would caution some care in the application of the principle arising out of Cavendish Munro. The particular purported disclosure that the Appeal Tribunal had to consider in that case is set out at paragraph 6. It was in a letter from the Claimant’s solicitors to her employer. On any fair reading there is nothing in it that could be taken as providing information. The dichotomy between “information” and “allegation” is not one that is made by the statute itself. It would be a pity if Tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one or rather the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information. If it is also an allegation, that is nothing to the point.”

d. It is not necessary for the information itself to be actually true. It follows that a disclosure may nevertheless be a qualifying disclosure even if it subsequently transpires that the information disclosed was incorrect (see Darnton v University of Surrey

[2003] IRLR 133

). The test is a subjective one.

e. However, the claimant must have a reasonable belief in the information being disclosed (Babula v Waltham Forest college

[2007] IRLR 346

): “75. However, I agree with the EAT in Darnton that a belief may be reasonably held and yet be wrong. I am reminded, in a different context, of the well-known speech of Lord Hailsham of St. Marylebone LC in the adoption case of Re W (an infant)

[1971] AC 682

at 700D when discussing whether or not a parent could be said to be unreasonable in withholding consent to adoption. He said: — “Two reasonable parents can perfectly reasonably come to opposite conclusions without either of them forfeiting their title to be regarded as reasonable.” In my judgment, the position is the same if a whistle-blower reasonably believes that a criminal offence has been committed, is being committed or is likely to be committed. Provided his belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong — nor, (2) the fact that the information which the claimant believed to be true (and may indeed be true) does not in law amount to a criminal offence — is, in my judgment, sufficient, of itself, to render the belief unreasonable and thus deprive the whistle blower of the protection afforded by the statute.” “82. In this context, in my judgment, the word “belief” in section 43B(1) is plainly subjective. It is the particular belief held by the particular worker. Equally, however, the “belief” must be “reasonable”. That is an objective test. Furthermore, like the EAT in Darnton , I find it difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if he knows or believes that the factual basis for the belief is false. In any event, these are all matters for the Employment Tribunal to determine on the facts.”

f. For something to amount to a detriment, it needs to be capable of reasonably being considered to amount to a detriment by the individual concerned (see Jesudason v Alder Hay Children's NHS Foundation Trust

[2020] EWCA Civ 73

[32]Chesterton Global Ltd v Nurmohamed

[2017] EWCA Civ 979

[2017] IRLR 837

[2017] ICR 731

held that in a case of mixed interests (public interest and self-interest) it is for the Tribunal to rule as a matter of fact whether there was sufficient public interest to qualify under the legislation.

[33]The decision of the Court of Appeal contains guidance as to how to approach that task. At paragraphs 36 and 37 of the judgment, the position was outlined in the following terms: ''The statutory criterion of what is “in the public interest” does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be. I am not prepared to rule out the possibility that the disclosure of a breach of a worker's contract of the Parkins v Sodexho kind may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. I would certainly expect employment Tribunals to be cautious about reaching such a conclusion, because the broad intent behind the amendment of section 43B(1) is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers – even, as I have held, where more than one worker is involved. But I am not prepared to say never. In practice, however, the question may not often arise in that stark form. The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest. Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker…. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but [counsel for the employee's] fourfold classification of relevant factors which I have reproduced … above may be a useful tool. As he says, the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.''

[34]At paragraph 48 of the judgment, the four factors were set out: ''(a) the numbers in the group whose interests the disclosure served; (b) 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; (c) 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; (d) 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.''

[35]At paragraph 49, the judgment set out that(1) the very term 'public interest' is deliberately not defined by Parliament, leaving it to be applied by Tribunals (and not to be influenced by precedents from other areas where it is used in other contexts, e.g. in charity law);

(2) the mental element imposes a two stage test: (i) did the Claimant have a genuine belief at the time that the disclosure was in the public interest, then (ii) if so, did he or she have reasonable grounds for so believing? This point was explored further in Ibrahim v HCA International

[2019] EWCA Civ 207

[2019] 1 WLR 3981

where it was held that the Claimant's motivation for making the disclosure is not part of this test; thus, the Claimant in that case was not necessarily ruled out because at the time he had been concerned to clear his name of slurs and re-establish his reputation; the test applied by the ET ('disclosure was not made in the public interest but rather with a view to clearing his name …') was legally incorrect. As the judgment of Underhill LJ puts it: 'the necessary belief is simply that the disclosure was in the public interest' and 'the particular reasons why the worker believes it be so are not of the essence'.

(3) the necessary reasonable belief in that public interest may (in an atypical case) arise on later contemplation by the employee and need not have been present at the time of making the disclosure (though as an evidential matter, the longer any temporal gap, the more difficult it may be to show the reasonable belief).

[36]In Parsons v Airplus International Ltd

UKEAT/0111/17

(13 October 2017, unreported) the EAT pointed out that the determination that in law a disclosure does not have to be either wholly in the public interest or wholly from self-interest does not prevent a Tribunal from finding on the facts that it was actually only one of them. Thus, where the Claimant made a series of allegations that in principle could have been protected disclosures but in fact were made as part of a disciplinary dispute with the employer which eventually led to her dismissal for other reasons, the Tribunal was held entitled to rule that they were made only in her own self-interest and so her claim of whistleblowing dismissal was rejected.

[37]In Dobbie v Felton t/a Feltons Solicitors

[2021] IRLR 679

the EAT held that, although failure to cite Chesterton is not per se an error of law by an ET, it may show that overall, the ET erred in applying the correct law on this difficult subject. The judgment contains at [27] a useful summary of the Chesterton guidance and at [28] eight more 'general observations' which may be of use when considering that guidance.

[38]Detriment is assessed from the worker’s perspective (Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL) and means putting a worker to a disadvantage (Ministry of Defence v Jeremiah

1980 ICR13

[39]Where a claim relates to an alleged detriment (as opposed to dismissal), for a claim to succeed the worker must have been subjected to the detriment on the ground they had made a protected disclosure. The protected disclosure must materially (i.e. more than trivially) influence the treatment (Fecitt and ors v NHS Manchester (Public Concern at Work intervening

2012 ICR 372

, CA):

[40]In Fecitt, Lord Justice Elias compared detriment claims to discrimination claims where “unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer’s decisions” (Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases

2005 ICR 931

, CA).

[41]He found that this principle is “equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing’. He held that detriment claims under section 47B ERA will be made out if the protected disclosure “materially” (in the sense of more than trivially) influences the employer’s treatment of the whistleblower.

[42]It is for the employer to show the ground on which any act, or deliberate failure to act, was done (s.48(2) ERA). Therefore, if the Claimant has shown that there was a protected disclosure, and that the Respondent subjected them to a particular detriment, it is for the Respondent to show that the reason for the detriment was not on the ground that they had made the protected disclosure. The Tribunal may draw inferences in reaching its conclusion.

[43]In claims under s.47B ERA (detriment), knowledge of the protected disclosure is required.

[44]As held in Nicol v World Travel and Tourism Council and Others T20241 EAT 42, that knowledge must be more than simply that a disclosure has been made: the decision-maker “ought to know at least something about the substance of what has been made: that is, they ought to have some knowledge of what the employee is complaining or expressing concerns about’.

[45]In a detriment claim, knowledge of one person cannot be imputed to another, even where they are in a position of hierarchy over the employee (Malik v Cenkos Securities PLC

EAT/0100/17

, as confirmed in William v Lewisham and Greenwich NHS Trust T20241 EAT 58).

[46]The Employment Appeal Tribunal in Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust [2019] 9 WLUK 556 restated that the detriment complained of must be on the ground that the worker has made a protected disclosure, this involves an analysis of the mental processes conscious or unconscious of the acting employer, it is not sufficient to demonstrate ‘but for’ the disclosure the Claimant would not have been subject to the detriment the test is that the Claimant ‘because of’ the disclosure was subject to the detriment. CLOSING SUBMISSIONS

[47]The Tribunal considered written submissions and oral submissions made on behalf of the respondent. And considered oral submissions made by the claimant. These were considered during the decision-making process. These are not repeated here. FINDINGS OF FACT The Tribunal makes the following findings of fact based on the balance of probability from the evidence it has read, seen, and heard. Where there is reference to certain aspects of the evidence that have assisted the Tribunal in making its findings of fact this is not indicative that no other evidence has been considered. The Tribunal’s findings are based on all of the evidence and these are merely indicators of some of the evidence considered in order to try to assist the parties understand why it made the findings that it did. The Tribunal does not make findings in relation to all matters in dispute but only on matters that it considered relevant to deciding on the issues currently before it. General Findings

FINDINGS OF FACT

[48]The claimant started employment on 02 October 2023 as a Kitchen Manager. His normal weekly hours amounted to 48 hours per week. He could be required to work any day. There was an expectation that he would work 5 full days and a half day each week.

[49]The claimant was invited to a probationary review meeting that was due to take place on 01 November 2023.

[50]On 30 October 2023 the claimant had a meeting/had a discussion with Ms Hayward. The claimant was due to be off work on 31 October 2023. However, Ms Hayward contacted him and wanted him to work. And she told the claimant that if he did not want to work then he would have to put in an absence request. Instead, the claimant told Ms Hayward that he was resigning.

[51]Ms Hayward contacted the claimant by letter that same day and him to put his resignation in writing.

[52]The claimant, having discussed the matter with Employment Resolution, withdrew his resignation. And the respondent accepted the claimant’s withdrawal. The claimant was told that the concerns that led to his resignation could be considered through the grievance process.

[53]The claimant made an absence request on 31 October 2023 at 11.36 (p.134).

[54]The claimant presented his grievance on 31 October 2023 at 15.29 (p.135).

[55]It is more likely than not that the claimant remained absent on 01 and 02 November 2023. And specifically, the probationary review meeting arranged for 01 November 2023 did not take place. The Tribunal makes this finding as there is no record of the meeting taking place and the claimant in evidence said that he cannot recall being in work from 31 October 2023 to 28 November 2023. Further, it is likely that the review meeting was put on hold until after the claimant’s grievance was resolved given his grievance concerned his line manager, Ms Hayward, who would be involved in reviewing the claimant’s progress.

[56]The claimant submitted a sick note covering 03 November 2023 to 10 November 2023 (p.136). Has the claimant made a Public Interest Disclosure?

[57]The claimant sent an email to the respondent’s Employee relations team on 31 October 2023 (p.135). He wrote the following (email copied in full): “Hello, to whom this may concern, i want to put a complaint in against my general manager, as i feel like i'm not being treated fairly, due to being undermined, my views and points are not being action-ed as she will get in trouble if she action-ed my things I've addressed, i have been asking how to do certain things and she replies with 'ill show you tomorrow' like she cant be bothered, i went on my break and 5 minutes later i was told to come off my break just to stand there with no orders on. Everything changed when i found out Megan had a gambling problem where i have the same problem but i'm managing mine correct the change in her appear once she found out i was winning and she wasn't, she would take her addiction out on me. Example when stock used to be down when she used to take food, i would ask was she putting them through and she said she already has so i noticed she was bypassing the kitchen printer and making it herself clearly i was challenging everyone as that was my job but there is something going on in that business but the more i was getting closer to it i noticed people following me around the building, i felt like she set people to watch what i was doing because i was onto something they tried to cover up but every time i would challenge the management t the would walk off, it finally clicked on when i realized that i was being watched, cancellation was being put through the kitchen anymore, so this goes to show me that somethings happening in the business that i was nearly onto now she wants me out as soon as possible.”

[58]The claimant did not see Ms Hayward put food through the till in conflict with the process. Nor did he see her take food or bypass the printer. Rather he presumed she was doing this. This was the claimant’s own evidence.

[59]When the claimant discussed his grievance with Ms Dolphin in a meeting on 05 December 2023, the claimant only referred to stock levels. He did not raise concerns about a criminal offence being committed, any legal obligation being breached or the health and safety of customers being endangered. This is because the claimant did not see a link between them.

[60]When the claimant met with Mr Roach on 04 January 2024 (noted below), Mr Roach asked the claimant questions about his understanding of various industry processes. This includes his knowledge about line checks (p.171). The claimant makes no link to line checks, the impact on stock and the endangering of customers’ health and safety, a criminal offence or a failing in a legal obligation. Conclusions on whether the claimant made a Public Interest Disclosure

[61]The claimant was asked specifically on Day 1 of this hearing to identify what information within his email of 31 October 2023 made his communication a Qualifying Disclosure. The claimant explained that it was the part of the email where he refers to Ms Hayward taking food and bypassing the kitchen printer.

[62]Despite the claimant expressing which part of his email he was relying on in alleging that he had made a Qualifying Disclosure, the Tribunal still considered the email in its entirety. This was to ensure that the claimant was not disadvantaged through a lack of legal knowledge.

[63]The Tribunal considered that the email did disclose information. That is clear. It disclosed information relating to how the claimant was being treated by Ms Hayward, information about gambling addictions, information on Ms Hayward taking food and bypassing the kitchen printer and information on him being watched.

[64]The Tribunal considered the information in two parts:(i) the information outside of that relating to Ms Hayward taking food and bypassing the kitchen, and

(ii) the information concerning Ms Hayward taking food and bypassing the kitchen itself.

[65]With regards (i), the Tribunal concluded that this information was not considered by the claimant to have been disclosed in the public interest. And nor would it have been reasonable for him to consider this to be the case. All this information concerns private matters between the claimant and Ms Hayward. The claimant had disclosed private workplace disputes concerning his treatment by Ms Hayward, a private issue between the two with regards gambling, and further concerns about his individual treatment, including about him being followed and watched around the workplace.

[66]None of the information that falls into (i) was information that the claimant considered, nor would it be reasonable for him to consider, tended to show that a criminal offence was being, has been or would be committed, that a person failed, was failing or would fail to comply with a legal obligation, that the health or safety of any individual had been, was being or was likely to be endangered, nor that such matters had been, was being, or would be concealed. There is simply no information that draws this connection.

[67]Turning to the information that fell within (ii). This, in the judgment of the Tribunal, was still information that was not being raised in the public interest. And rather it remained information disclosed in a private workplace dispute. The claimant’s disclosure was a continuation of the dispute between himself and Ms Hayward, and was the claimant following through with raising a complaint about Ms Hayward (on 26 October 2023). And even if the Tribunal is wrong on this, it is not information that tends to show that there was some criminal activity taking place, or a failing with regards a legal obligation or the health and safety of a person was being endangered. The claimant tried to link this disclosure to a health and safety risk in his statement (paragraph 3.2) and when cross-examined. And that was that if food was not properly accounted for, then some food could end up being missed off the inventory and that could result in a person eating food that had passed its sell by date. However, the claimant did not have this understanding at the time and therefore could not make that link in his disclosure. For example, he made no such link when he was asked about line checks by Mr Roach on 04 January 2024, nor does he raise it in his grievance meeting with Ms Dolphin when the matter was being discussed. The claimant’s understanding of the impact of line checks at the time does not support the fact that he made this disclosure of information with a reasonable belief that it tended to show one of those things. It couldn’t as that was not his understanding at the time.

[68]So not only does the information disclosed not tend to show any risk on to the health and safety of customers or that there was some criminal activity taking place, or a failing with regards a legal obligation, but it would not be reasonable for the claimant to believe that he was disclosing this information for these purposes either.

[69]Given the above, the Tribunal concludes that the claimant has not made a Qualifying Disclosure as alleged. His claims for victimisation on the grounds of having made a Public Interest Disclosure therefore fails and is dismissed in its entirety.

[70]The Tribunal, despite its conclusion above, still considered what its decision would have been had it concluded that the claimant had made a Qualifying Disclosure. Detriment 1: in the period between 26 October 2023 and 18 January 2024, being followed by colleagues around the premises and/or colleagues being instructed by Megan Haywood to follow him around the premises

[71]The claimant’s evidence was that he first noticed being followed around at work from 04 October 2023.

[72]On 26 October 2023, Ms Chloe Mckee popped her head into a room where the claimant was in a meeting with a recruitment agent. And afterwards Ms Hayward asked the claimant about it. The claimant told Ms Hayward that he was going to put a complaint in about her because of her confronting him (p.64).

[73]The claimant did not hear Ms Hayward tell anybody to follow and watch him. He just presumed that she had.

[74]On 19 January 2024, the claimant had completed his shift. Due to the time that he finished his shift, he missed the last bus.

[75]The claimant, on realizing that he had missed the last bus, returned to the bar area to wait for a taxi.

[76]Whilst the claimant was in the bar area, he was asked by two members of bar staff why he was still there. And Ms Coxon asked him whether he was working the following day, and whether he could get home.

[77]Ms Coxon was not aware of the claimant’s alleged Qualifying Disclosure on 18 January 2024. This was Ms Coxon’ clear evidence. Ms Coxon was considered a reliable witness of fact. Her evidence was clear and it remained consistent both in her answers given to the Tribunal and with the documentary evidence in the bundle. The claimant has adduced no evidence to the contrary. In those circumstances, the Tribunal accepted Ms Coxon’s evidence when she explained that a handover with Megan Hayward was brief, that there was mention of a grievance having been raised by the claimant, but she was provided with no details and did not know of its details at this stage. Conclusion on Detriment 1

[78]The claimant’s alleged Qualifying Disclosure was made on 31 October 2023. Anything before this date could not have been influenced by that alleged Qualifying Disclosure. This is what was explained by EJ Cookson at the Preliminary Hearing on 24 February 2025.

[79]The burden of proof rests on the claimant to establish with evidence the alleged detrimental treatment on which he relies. The claimant has only identified two specific dates in respect of Detriment 1. That is that colleagues followed him around the premises and/or they were instructed by Ms Haywood on 26 October 2023 and on or around 19 January 2024.

[80]Given that the claimant has not adduced any evidence of such treatment outside of 26 October 2023 and 19 January 2024, the allegation insofar as it relates to any other date must fail as the claimant has not adduced any evidence.

[81]The detriment insofar as 26 October 2023 (or before) is concerned must fail as the detriment pre-dates the alleged Qualifying Disclosure. The claimant could not have been treated to a detriment because of a Qualifying Disclosure on a date that takes place before he made any Qualifying Disclosure. For a claim to succeed with such a claim the Qualifying Disclosure must have taken place before any alleged detrimental treatment.

[82]Turning to the allegation as it related to 19 January 2024. The Tribunal does not consider this to reach the level of being detrimental treatment. Staff, and Ms Coxon, asking the claimant questions that related to (aside from Ms Coxon asking about whether the claimant was in work the following day) him being in the bar area when his shift had ended, is not detrimental treatment. It would be unreasonable for the claimant to perceive such questions to be detrimental treatment in the circumstances. And the same can be said about Ms Coxon asking the claimant about whether he was working the following day.

[83]The allegation falls well short of being detrimental treatment.

[84]For completeness, the claimant was asked questions by staff members about why he was still there as the claimant had completed his shift, left to go home and then returned to the work premises. This was not because he had sent his email on 31 October 2023 but rather was more likely due to his presence following him still being present in the bar area despite his shift having ended.

[85]Ms Coxon, likewise was just asking ordinary line management questions. She was enquiring about whether the claimant had a shift the next day. And was checking to make sure the claimant could get home, in circumstances where she knew that he had missed his last bus. Again, none of these treatments were because the claimant sent his email on 31 October 2023. Further, the claimant’s email could not have influenced Ms Coxon’s action given she had no knowledge of what the claimant had sent on 31 October 2023.

[86]Given the above, even if the claimant had established that his email of 31 October 2023 was a Qualifying Disclosure, the Tribunal would have concluded that he had not been subjected to detriment in the ways pleaded. And further, that any treatment identified was not on the grounds that the claimant had sent his email on 31 October 2023. Detriment 2: on 30 December 2023, being told by Lisa Dolphin, the Respondent’s Business Development Manager, that nobody wanted to work with him

[87]The claimant met with Ms Dolphin on 05 December 2023. The meeting notes are at pp.149-154. This was part of the investigation into the claimant’s grievance. The claimant explained various matters that were contained in his grievance. Including that Ms Hayward was constantly asserting her authority over him (p.150, p.152), that he was concerned with stock levels (p.151) and considered that Ms Hayward was cancelling tickets to make money back (p.152).

[88]The claimant was sent a grievance outcome letter on 19 December 2023. The claimant’s grievance was rejected.

[89]The Tribunal makes the finding that Ms Dolphin did not make the comment that nobody wanted to work with the claimant on 05 December 2023 or 30 December 2023.

[90]This finding could only be made by the tribunal based on whose evidence it preferred, as it was one person’s word against the others.

[91]This was one of the claimant’s allegations, but he did not include any mention of it in his witness statement. However, when he was crossexamined on this allegation, he explained that it was in a meeting with Ms Dolphin about him returning to work on 30 December 2023. And it was in the context of other staff leaving (Ms Hayward and Chloe), and Ms Dolphin telling the claimant that nobody wanted to work with him and that he would have to find his own staff. The claimant says that this is why he sent the message on 23 January 2024 (see below). However, the claimant has also considered this allegation against 05 December 2023 too, as there was a suggestion in the case management orders of EJ Cookson that this was the correct date. And so the Tribunal considered this date too so as to not disadvantage the claimant.

[92]Ms Dolphin’s evidence was quite clear that she did not make this comment (paragraph 31 and 32 of Ms Dolphin’s witness statement) and that Ms Hayward and Chloe left the employ of the respondent for reasons unconnected to the claimant.

[93]The Tribunal preferred the evidence of Ms Dolphin for the following reasons, amongst others:a. The allegation in the list of issues places this at 30 December 2023 (paragraph 3.1.2, p.80). This differs from the information that was presented by the claimant to Employment Judge Cookson at the Case Management Preliminary Hearing on 24 February 2025. At this hearing, the claimant explained to EJ Cookson that the incident occurred on 05 December 2023. (paragraph 12, p.56). This, in part, appears to be motivated by EJ Cookson’s explanation that if the detriment was on 05 December 2023 then it was presented outside of the primary time limit.

b. The claimant explained on several occasions during his evidence that his memory was not great. And this manifested itself in vague responses to several questions asked of him.

c. The claimant knew that he could raise grievances, as he did so with regards Ms Hayward. The claimant was more likely than not, based on past behaviour, to raise a grievance where he considered himself to be treated detrimentally. The claimant did not raise a grievance for this matter.

d. The notes that were taken at the meeting on 05 December 2023 are at pp.149-154. The claimant was sent copies of these notes and at no point replied to explain that they were inaccurate and that such a comment was made but missed out. No comment to the effect that nobody wanted to work with the claimant was recorded in those notes. Those unchallenged notes are considered accurate by the Tribunal.

e. Ms Dolphin’s evidence was consistent throughout her being crossexamined. And remained consistent with the documentary evidence in this case.

f. Ms Dolphin gave evidence that both Ms Hayward and Chloe left for reasons unconnected to the claimant. This was not challenged by the claimant. And therefore, the claimant’s attempt to link this comment with those two people leaving was considered illogical by the Tribunal.

g. When the claimant resigned on 19 January 2024 (p.190) there is no mention of this comment. Conclusion on Detriment 2

[94]Given the above, the Tribunal concluded that the comment as alleged was not made by Ms Dolphin on either 05 December 2023 or 30 December 2023. Consequently, even if the Tribunal had concluded that the claimant email of 31 October 2023 was a Qualifying Disclosure, this allegation therefore would still have failed. Notice Pay

[95]The claimant’s probationary period is expressed in Clause 1 of his employment contract. The claimant’s contract is at pp.107-118. At Clause 1 (p.107) it explains that the claimant was subject to a 16-week probationary period. This further explains that a one week notice period applies whilst the claimant was still in his probationary period, should the respondent decide to terminate his employment (clause 1, p.108).

[96]The claimant started employment on 02 October 2023. His probationary period was due to end on 22 January 2024. As part of the contractual agreement, the respondent reserved the right to extend the probation period to further assess the claimant’s suitability, where appropriate (Clause 1, p.108). This was not in dispute.

[97]The claimant was invited to a probationary review meeting to take place on 07 November 2023 (pp.137-138) and 14 November 2023 (pp.139-140). In both of these invites it is explained that this review was part of the formal assessment of the claimant as part of his probationary period, and that there were three possible outcomes:(i) no formal action, and the original probation period would continue with further review or successful completion;

(ii) the probation period could be extended, or;

(iii) termination of contract (either for gross misconduct or because he had failed his probation period).

[98]The claimant understood from the invitation letters to the probationary reviews that he would need to be assessed as having successfully completed his probation period to no longer be subject to the terms contained in Clause 1 of his contract.

[99]Neither of the meetings on 07 November 2023 or 14 November 2023 took place. This was because the claimant was absent with sickness.

[100]The claimant was invited to a meeting on 28 November 2023. On 27 November 2023, the claimant informed the respondent that he would attend the meeting. The claimant understood the meeting to be an investigation meeting and that there would be 5 specific matters that would be discussed (these are the issues recorded at p.143).

[101]The meeting took place between the claimant and Ms Hayward. This was a combined meeting, where the issues identified at p.143 were discussed, followed by a probationary review meeting. This in essence was the review meeting that had been rearranged from 14 November 2023. The claimant did not know that there would be discussion of his probationary period in advance of the meeting, however, he accepted under crossexamination that the meeting was a combination of an investigation and probationary review meeting. And this is consistent with the claimant’s email sent on that same day (p.146).

[102]The meeting of 28 November 2023 was not completed. And was adjourned.

[103]The claimant was not informed by Ms Hayward either in the meeting of 28 November 2023 or afterwards that he had passed his probationary period. The claimant knew on this date that he remained in the probationary period and that he still needed to be assessed.

[104]Ms Dolphin emailed the claimant to discuss next steps after the grievance had been concluded (p.162). She wrote as follows: “Your last day of work at the Grapes, you adjourned a probationary meeting, we now need to reconvene that. I have asked a General Manager from another pub to hold that meeting so it remains impartial due to the relationship breakdown between yourself and Meg. We can then hold a meeting between myself, you and Meg before recommencing work in the kitchen at the Grapes.”

[105]Ms Dolphin also explained that the claimant would have his probationary review meeting arranged with Mr Roach on 28 December 2023.

[106]The claimant was absent from work 19 December 2024 to 30 December 2024. The claimant attended a meeting with Ms Dolphin on 30 December 2023.

[107]Mr Roach wrote to the claimant (undated) to arrange the recommencement of the probationary review meeting, as explained by Ms Dolphin (pp.163-164). The probationary review meeting was arranged to take place on 04 January 2024, rather than 28 December 2023. This explained again that this was part of the formal assessment of the claimant as part of his probationary period, and that there were three possible outcomes:(i) no formal action, and the original probation period would continue with further review or successful completion;

(ii) the probation period could be extended, or;

(iii) termination of contract (either for gross misconduct or because he had failed his probation period).

[108]On 02 January 2024, Mr Roache wrote to the claimant and stated the following: “I would seem that your 12 weeks probation has elapsed while this issue has been under investigation. Therefor the previous letter is Null and void. I would however like to invite you to an investigation meeting (Thursday 4th Jan @ 4pm) same date and time as there are a few issues I would like to discuss with you before you can return to work. My apologies the confusion and I look forward to hearing from you.

[109]Despite Mr Roach’s email, the probationary review meeting took place on 04 January 2024 in line with the initial invitation. In short, Mr Roach’s email made an error in identifying a 12-weel probationary period, whereas the claimant was subject to a 16-week probationary period. The contents of his email were therefore inaccurate.

[110]The meeting notes of the 04 January meeting are at pp.166-175. In that meeting various incidents in the workplace were discussed. This was part of the probationary discussion and particularly whether the incidents warranted a termination of the claimant’s contract for gross misconduct, which was explicitly contained within the invite letter. The decision was reserved by Mr Roach due to time.

[111]The claimant was sent an outcome of the 04 January 2024 meeting by letter dated 08 January 2024. This explained that there would be no further action taken with regards allegations of wrongdoing and falsification of kitchen paperwork. Mr Roach then made the following recommendations:a. A probationary review meeting to be set up ASAP by your new Line Manager.

b. Extension of your probationary period by a further 4 weeks at the above meeting with achievable goals to be laid out.

c. Use the departure of your current line manager as an opportunity for fresh start and to build positive relationships with your new Line Manager.

[112]At no point before, during or after the meeting of 04 January 2024 was the claimant explicitly told that his probationary period had ended or that he had passed his probation period. The claimant relies on the message from Mr Roach of 02 January 2024. However, that does not say that. Rather it identifies, in error, that a 12-week probation period had elapsed. It says no more than that. And then Mr Roach proceeds to hold the meeting as per his invitation letter, from which the claimant must have understood that Mr Roach had made an error. And this is especially given that the claimant knew that his probation period was for 16 weeks and did not end until 22 January 2024 and that at this stage he was still within that period.

[113]Given Mr Roach’s recommendations, the respondent used the discretion reserved to in the claimant’s contract to extend his probationary period by 4 weeks. The claimant’s probationary period was now not due to end until 19 February 2024.

[114]On 19 January 2024, the claimant resigned by email (p.190).

[115]Shortly after the claimant’s resignation, after he has liaised with the Employee Relations team, it was decided that the claimant’s emailed resignation of 19 January 2024 would not be processed but would be discussed at a meeting between the claimant and Ms Coxon. His employment would continue but he would remain absent from work.

[116]A meeting was arranged to take place between the claimant and Ms Coxon on 24 January 2024. This was so that the respondent could understand the claimant’s reasons for having resigned and his reasons for wanting to return (p.191). At that meeting Ms Coxon agreed that the claimant could retract his resignation email. This was the evidence of the claimant under cross-examination.

[117]In line with Mr Roach’s recommendations, Ms Coxon invited the claimant to a probationary review meeting on 26 January 2024 (pp.193- 194). This again explained to the claimant that he was within an extended probationary period, his performance needed to be assessed and that the purpose of the meeting was to assess the claimant’s suitability for the role. It was explained to the claimant that there were four possible outcomes:(i) no formal action, and the probation period would continue with further review or successful completion;

(ii) the probation period could be extended;

(iii) termination of contract with notice because he had failed his probation period, or

(iv) termination of contract without notice for gross misconduct.

[118]The claimant informed Ms Coxon that he could not attend the meeting on 26 January 2024.

[119]Ms Coxon rearranged the meeting to be held on 27 January 2024. The letter contained the same information as contained in the previous letter (pp.195-196).

[120]The claimant did not attend the meeting as he was not in the country.

[121]Ms Coxon held the meeting in the claimant’s absence. And decided to terminate the claimant’s employment (p.197). The claimant was sent this outcome by email on 27 January 2024 (p.212).

[122]The claimant was paid in lieu of one week’s notice. Conclusions on Wrongful Dismissal/Notice Pay claim

[123]The claimant, at the point of his dismissal was still in his probation period. He had not been informed that he had passed probation and the respondent continued to invite the claimant to probationary review meetings up until his dismissal. There is no doubt, based on the facts of this case that the claimant was in a probationary period up until dismissal.

[124]The claimant developed two arguments in respect of this allegation.

[125]First, the claimant relies on an email that was sent by Mr Roach on 02 January 2024 to suggest that this meant that he had passed his probation by virtue of the passage of time. However, the claimant knows, and knew at the time, that Mr Roach had made an error. And that he was still in his probationary period, as he was subject to a 16-week probation period, rather than a 12-week period as identified by Mr Roach. And therefore, he could not have passed his probation by passage of time, as the 16 weeks had not passed at that stage. Further, the claimant knew that he remained in his probation period by events that subsequently took place, particularly the meeting he had with Mr Roach on 04 January 2024, the outcome letter he received from Mr Roach on 08 January 2024, and the probationary review meeting invites he received from Ms Coxon. Mr Roach’s email did not have the status that the claimant now attaches to it, and he had not informed the claimant, nor implied to the claimant, that he had now passed out of his probation period.

[126]Secondly, the claimant also submits that the extension applied by Mr Roach was null and void as he had not agreed to it, as agreement was needed by him to vary his contract. The claimant misses one fundamental point in his analysis: the claimant had reached a contractual agreement when he entered into an employment contract with the respondent. And part of that agreement gave the respondent an unfettered discretion to extend the probationary period so long as they notified the claimant in advance of the end of probation period. In other words, the claimant had agreed contractually to give the respondent this power. The respondent did what was required to use this contractual power when Mr Roach notified the claimant on 08 January 2024 that his probation period was being extended, with this notification being within the original probationary power. The respondent complied with the notice requirements to extend the probationary period.

[127]It is for the reasons above that the Tribunal rejects the claimant’s arguments on this allegation.

[128]The claimant was still within his probationary period, albeit an extended one, when he was dismissed on 27 January 2024. As such he was only entitled to one week’s notice. The respondent had the contractual right to make a payment in lieu of notice. The claimant was paid one week’s pay in lieu of notice, which was what he was entitled to under Clause 1 of his contract.

[129]The claimant’s allegation of unpaid notice pay/wrongful dismissal therefore fails and is dismissed.

CONCLUSIONS

[130]For the reasons explained above, the claims brought by the claimant all fail and are dismissed.

[131]Allegation 3.1.1 has failed for substantially the same reason as identified in the Deposit Order. The claimant’s deposit will be released to the respondent. Approved by: