Mr W Mulvaney v Independent Living Services (North West) Ltd: 2404993/2022 and 2401188/2023

EMPLOYMENT TRIBUNALS

Case No 2404993/2022, 2401188/2023

Between

Mr W MulvaneyClaimant

Independent Living Services (North West) LtdRespondent

Before

Employment Judge Kenward

In person for claimant

Mr G Price (instructed by Counsel) for respondent

Date 28 May 2024

JUDGMENT

[1]The complaints of victimisation contrary to Employment Rights Act 1996 section 47B by being subjected to detriment on the ground of making public interest disclosures are not well-founded and are dismissed.

[2]The complaints of victimisation contrary to Employment Rights Act 1996 section 103A by being unfairly dismissed by reason of making public interest disclosures is not wellfounded and is dismissed. Signed

REASONS

JUDGMENT and oral reasons having been given at the hearing on 24 May 2024, with Judgment having been sent to the parties on 5 June 2024, and written reasons having been requested by the Respondent on 18 June 2024, written reasons are now provided, as set out below. Judgment

[1]The Judgment of the Tribunal was as set out below.(1) The complaints of victimisation contrary to Employment Rights Act 1996 section 47B by being subjected to detriment on the ground of making public interest disclosures are not well-founded and are dismissed.

(2) The complaints of victimisation contrary to Employment Rights Act 1996 section 103A by being unfairly dismissed by reason of making public interest disclosures is not well-founded and is dismissed. Introduction - 1 -

Introduction

[2]The Respondent is a business which runs two homes for vulnerable children. It operated within a regulatory framework which required the Respondent to have a “Responsible Individual”. The Respondent employed the Claimant in the post of Responsible Individual from 15 November 2021.

[3]The Claimant says that he made a number of protected disclosures and that his working relationship with the Respondent’s Directors broke down as a result. He claimed that he was subjected to detrimental treatment and that this treatment amounted to victimisation for having made a protected disclosure. He was dismissed on 4 April 2022. The Respondent claimed that this dismissal was on the grounds of gross misconduct, whereas the Claimant contended that the real reason for his dismissal was that he had made protected disclosures, so that his dismissal amounted to victimisation for whistleblowing. Following his dismissal, the Claimant’s efforts to find other work were frustrated by safeguarding concerns raised by the Respondent. The Claimant’s case was that this also amounted to victimisation for having made protected disclosures.

[4]The case was heard over five days from 24 May 2024. The Judgment dismissing all of the various complaints was announced at the end of the hearing with detailed oral reasons being given. After the written Judgement had been sent out to the parties, the Respondent made a request for written reasons for the Judgment on 18 June 2024.

[5]I apologise to the parties for the subsequent delay in providing these written reasons which has been caused by pressure of work.

[6]References in square brackets below are to page numbers for the main bundle. The Claim and the proceedings

[7]Following his dismissal on 4 April 2022 the Claimant commenced the obligatory process of early conciliation by notifying ACAS of his prospective Claim on 7 April 2022. ACAS issued an early conciliation certificate on 26 April 2022. The ET1 Form of Claim and attached Particulars of Claim complained of unfair dismissal and victimisation as a whistleblower. As the Claimant had less than two years’ qualifying service in terms of his employment with the Respondent, he was unable to bring a complaint of ordinary unfair dismissal. However, where an employee, with less than two years’ service, can show that the reason (or principal reason) for his dismissal was that he or she had made a qualifying protected disclosure, the requirement for two years’ service does not apply, and such a dismissal would be automatically unfair. The Tribunal also subsequently accepted that the ET1 Form of Claim complained of victimisation by being subjected to detriment(s) on the ground of having made protected disclosures. - 2 -

[8]The Claimant was required to provide particulars of his Claim by setting out the protected disclosures and detrimental treatment upon which he relied for the purposes of his Claim and did so on 30 September 2022.

[9]On 14 December 2022, the Claimant obtained another ACAS early conciliation certificate which had been issued on that date in respect of notification of a prospective Claim having been provided to ACAS on 12 December 2022. On 11 January 2023 he filed a second ET1 Form of Claim with the Tribunal with attached Grounds of Claim by which he brought further complaints of victimisation through being subject to detriments, with these complaints being in respect of alleged post-termination victimisation arising out of the responses of the Respondent in dealing with requests for references or information arising out of applications for employment made by the Claimant. This Claim was subsequently combined with the first Claim on the basis of the Claims should be heard together.

[10]An initial preliminary hearing for case management purposes took place before Employment Judge Humble on 7 February 2023 with the outcome that that a further preliminary hearing was listed in order to decide whether the Claimant needed permission to amend his Claim to rely upon the full extent of the alleged detriments and disclosures which had been particularised in the further information provided. He also directed that the Claimant provide further particulars of the alleged protected disclosures with these details being provided by the Claimant on 13 March 2023.

[11]Accordingly, a further preliminary hearing took place before Employment Judge Horne, as he then was, who decided that the Claimant did not need permission to amend the Claim and, on this basis, listed the various alleged protected disclosures which were in issue, together with the alleged detriments, and formulated the questions which would need to be included in a List of Issues.

[12]On this basis, the Respondent set out its position by way of Grounds of Resistance dated 18 August 2023.

[13]A third preliminary hearing then took place before Employment Judge Shotter on 7 March 2024 which resulted in the list of eight alleged protected disclosures (labelled as PID1 to PID8) [231- 237] and a list of complaints consisting of 11 alleged detriments and the dismissal [237-239] being finalised together with the List of Issues [237-241] which the Tribunal would need to determine in order to arrive at a decision on the various live complaints. Relevant law Protected disclosures

Relevant law

[14]The term “qualifying disclosure” is defined by section 43B Employment Rights Act 1996 (“ERA 1996”) as set out below. - 3 - “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, [is made in the public interest and ]2 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”.

[15]In Williams v Michelle Brown [2019]

UKEAT/0044/19

, HHJ Auerbach considered (at paragraph 9) the questions that arise in determining whether a qualifying disclosure has been made, as set out below. “It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held”.

[16]There must be a disclosure of information. An allegation against the employer or a simple expression of dissatisfaction by the employee will not be enough (see Cavendish Munro Professional Risks Management Limited v Geduld

[2011] IRLR 38

, EAT). However, a disclosure of information may be made as a part of making an allegation. In Kilraine v London Borough of Wandsworth

[2018] ICR 1850

, CA, it was held that sometimes a statement which can be categorised as an allegation will also contain information and amount to a qualifying disclosure, but it depends on whether it falls within the language of ERA section 43B(1). Sales LJ stated that, in order for a communication to be - 4 - a qualifying disclosure it has to have “sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1)”.

[17]In relation to the public interest requirement, in Chesterton Global Limited v Nurmohamed

[2018] ICR 731

, the Court of Appeal held that Tribunals need to ask(1) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and

(2) whether, if so, that belief was reasonable.

[18]ERA 1996 section 43F provides that a qualifying protected disclosure may be made to a “prescribed person” rather than the employer. For these purposes, His Majesty’s Chief Inspector of Education, Children's Services and Skills (Ofsted) is a prescribed person (see Public Interest Disclosure (Prescribed Persons) Order 2014 Schedule 1). This includes matters relating to the regulation and inspection of establishments, which will include children’s homes, under Part 2 of the Care Standards Act 2000. For a disclosure to be protected under ERA 1996 section 43F, not only must the worker reasonably believe that the disclosure falls within a description of matters prescribed in Schedule 1 to the 2014 Order, but he or she must also reasonably believe that the information disclosed, and any allegation contained in it, are substantially true. Victimisation by being subjected to detriment

[19]Under ERA 1996 section 47B(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”.

[20]In determining whether an employee has been subjected to a detriment on the ground that they have made a protected disclosure, the test for causation was set out by Elias LJ in Fecitt v NHS Manchester

[2012] ICR 372

, CA, as being whether the protected disclosure materially (in the sense of more than trivially) influences the employer’s treatment of the whistleblower.

[21]Employment Rights Act 1996 section 48(2) makes provision as to the burden of proof in dealing with complaints of victimisation by being subjected to a detriment on the ground of having made a protected disclosure, as set out below. “On a complaint under subsection (1), (1ZA), (1A) or (1B) it is for the employer to show the ground on which any act, or deliberate failure to act, was done”. Victimisation by dismissal

[22]Under ERA 1996 1996 section 103A, an “employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, - 5 - if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.

[23]The principal reason is the reason that operated on the employer’s mind at the time of the dismissal (see Abernethy v Mott, Hay and Anderson

[1974] ICR 323

, CA). If the fact that the employee made a protected disclosure was merely a subsidiary reason to the main reason for dismissal, then the employee’s complaint under ERA 1996 section 103A will not be made out.

[24]Where the employee lacks the requisite two years’ continuous service to claim ordinary unfair dismissal, he or she will acquire the burden of showing, on the balance of probabilities, that the reason for dismissal was an automatically unfair reason (see Smith v Hayle Town Council

[1978] ICR 996

, CA).

Evidence

[25]In terms of documentary evidence, the Tribunal was provided with a Bundle of 2013 pages and an additional bundle of 57 pages. Further documents were produced during the hearing, mainly from the Claimant or through being requested by the Claimant, and considered, where relevant, taking account of any representations from the parties and on the basis of the Tribunal being satisfied that no prejudice arose.

[26]In terms of witness evidence, the Tribunal had a Statement of Evidence from the Claimant who also gave evidence orally. The Claimant also relied upon a Statement of Evidence from a former colleague, Tracy Rothwell, who had been employed by the Respondent as the Registered Manager of one of the homes, and who had also been dismissed in April 2022. Ms Rothwell also gave oral evidence

[27]The Respondent relied upon Statements of Evidence from Patricia Neil and her husband, Geoff Cookson, as the owners and Directors of the Respondent company, as well as a Statement from Jo Hopkins, who dealt with the Claimant’s appeal in her capacity, at the time, as a self-employed business consultant. These witnesses also gave oral evidence.

[28]In considering credibility, the Tribunal considered that one the key issues in the case which was whether or not a reference for the Claimant which had purportedly been provided by Ms Neil of the Respondent to the National Youth Advisory Service (NYAS) was a fabricated document. The meta data or properties for the documentation showed that a company which had been set up following the Claimant’s dismissal, and of which the Claimant was one of two Directors (with his wife) had last modified the document. The Tribunal was satisfied that he had effectively put in place arrangements for this reference to be provided to NYAS. It had been sent from an e-mail address which gave the appearance of being an e-mail address for the Respondent but was not. When the prospective employer then sought to get in touch to seek oral verification regarding the reference, the effect was that the communication was sent to the e-mail address which was not that of the Respondent and this - 6 - enabled the recipient to provide a telephone number for the prospective employer to make contact to seek clarification regarding the reference. This was clearly an elaborate device whereby the prospective employer was provided with a reference which appeared to be from the Respondent and made no reference to the Claimant’s dismissal, but instead described the termination of his employment as having come about as a result of a resignation. The meta data pointed to this device having been put in place by the Claimant in that it was his company which had last modified the reference document. It appeared to the Tribunal that there was no other plausible explanation for the creation of the document. The Tribunal was also satisfied that the Claimant had the motivation to produce a false reference in this way. He was the obvious beneficiary of the false reference. In the course of his evidence, he did tell us that it is very difficult to obtain employment in this particular sector if you cannot obtain a reference from your previous employer. The Tribunal was satisfied, on the balance of probabilities, that the Claimant effectively resorted to circumventing his former employer by setting up arrangements whereby a prospective employer would be given a reference, which he had created, which did not make reference to his dismissal.

[29]Having arrived at this conclusion, it was inevitable that this impacted upon the Claimant’s credibility in a case where there were often competing versions of events and where only one of the competing versions of events could be correct.

[30]The findings of fact (see further below) made by the Tribunal regarding the issue of which written record of the meeting which took place between Ms Neil and the Claimant on 31 March 2022 was the correct version, also impacted upon the view formed by the Tribunal as to the credibility of the Claimant where there was disputed evidence and further called into question the reliability of documentation produced by him.

Findings of Fact

[31]The Respondent operates two homes for vulnerable children at two different residential sites in England. The Respondent company is owned and managed by Patricia Neil and her husband, Geoff Cookson, as Directors (references below to Mr Cookson are references to Geoff Cookson unless otherwise indicated). The Respondent also uses the name of Homescope as a trading name. The ET3 Form of Response gives the number of employees employed by the Respondent as 18. The Respondent operated a regulated business and was subject to regulation from Ofsted.

[32]The Claimant was employed by the Respondent in the post of Responsible Individual from 15 November 2021. The Claimant worked at the Respondent’s Head Office in St Helens and was regularly present on site at the Respondent’s two care homes based in Crosby and Bootle. - 7 -

[33]Ms Neil had always been the Responsible Individual for the Respondent company, but with the Claimant’s appointment, this responsibility was handed over to him. Ms Neil did initially resume this responsibility following the Claimant’s dismissal.

[34]From 15 November 2021, Ms Neil was absent from the business due to illness. She was unable to return to work within the business until 8 February 2022 due to her recuperation. In her absence, the Claimant was largely trusted with the running of the business.

[35]The Claimant recruited Tracy Rothwell as Registered Manager of Osborne House (the Respondent’s care home in Crosby) and Daniel Thelwell as a Residential Support Worker. The two individuals had worked together with the Claimant at another care provider, Esland Care (“Esland”).

[36]On 23 January 2022, an employee of the Respondent e-mailed the Claimant regarding an allegation made by a young person at one of the Respondent’s homes regarding a former member of staff to the effect that this individual had been grooming another young person.

[37]On 24 January 2022, the Claimant made a referral to the Local Authority Designated Officer (LADO) and Ofsted regarding the concerns raised by the young person. The Claimant relies upon information disclosed to Ofsted as amounting to a qualifying protected / public interest disclosure (PID1 in the List of Issues) on the basis that he stated that the young person had alleged that the former staff member had been grooming another young person who no longer lived at the care home by giving the young person money and further that Ms Neil had been aware of the allegation against the former staff member but failed to act upon this information.

[38]Tracey Holyhead, the Local Authority Designated Officer for Sefton Council has confirmed, in a letter dated 14 September 2022 [1353], that the above information was initially provided by the Claimant in a telephone call on 24 January 2022 with it being agreed that the Claimant would then complete a LADO referral form, which he did later that day with the content of the referral form being quoted in the letter from which it can be seen that it essentially contained the same information as that provided in the telephone call although the reference to Ms Neil was simply that “the director Patricia Neil is aware of this concern”.

[39]The letter from Tracey Holyhead also specifically stated that “I am aware that you also contacted both young people’s social workers to inform them of the allegation and completed notification to Ofsted”. In the absence of documentation confirming the precise information provided to Ofsted, the Tribunal nevertheless accepted the Claimant’s evidence that it would have been the same information as that provided to the LADO.

[40]Ofsted was scheduled to attend to inspect Oak House, one of the Respondent’s residential homes, on 8 and 9 February 2022. On 8 February - 8 - 2022, Ms Neil received a call from the Claimant, and arranged to be available for feedback from Ofsted on the 9 February 2022. In fact, she ended up also attending Oak House on 8 February 2022 when the Claimant informed her that he had made a referral to LADO. The Claimant relies upon this communication as having given rise to a qualifying protected disclosure (PID2). For the reasons set out above, the Tribunal decided that the version of events of Ms Neil was likely to be a more reliable version of events. As such, the Tribunal accepted the evidence of Ms Neil that the Claimant mentioned to her that he had had to make a LADO referral regarding a young person. He stated that the young person had made a complaint and that Ms Neil had also been mentioned but suggested that it was nothing to worry about and that he would keep her informed as to the outcome.

[41]The Claimant relies upon having made a qualifying protected disclosure (PID3) in the course of a supervision meeting, alleged to have taken place on 21 March 2022, on the basis that he made a disclosure to the effect that DBS checks had not been carried out on members of staff including Sam Cookson. The evidence he relies on is a purported record of a supervision meeting on 21 March 2022. All this said was that the Claimant had been informed that employment checks had not been completed and felt that children are at risk. It did not specifically refer to Sam Cookson. The supervision record was a disputed document. It was prepared using a template for supervision records not used by Ms Neil. The document appears to be signed by Ms Neil. She denied having signed the document. Given the findings that the Tribunal has already referred to as having made regarding the purported supervision document from 31 March 2023, and the fact that, ultimately, we concluded that Ms Neil was likely to be a more reliable witness than the Claimant where matters were directly in dispute, we concluded on the balance of probabilities that no such disclosure was made on 21 March 2022.

[42]The Claimant relies upon having made alleged protected disclosure(s) (PID4) by having raised issues on 31 March 2022 in respect of sanitary bins, outstanding repairs to fire alarms and emergency lighting urgently being required and issues in respect of not providing a company vehicle in order to be able to locate and return children at risk of harm. He also relies upon having made a protected disclosure by raising an issue regarding employees having suggested that they would not be willing to raise whistleblowing concerns with the Claimant (PID5). The Claimant’s case in his Statement of Evidence is that these issues were raised on 31 March 2022 in a supervision meeting with Ms Neil. The Claimant relies upon his version of the minutes for the meeting which took place between him and Ms Neil on this date.

[43]However, there are competing versions of the record or minutes for any meeting which took place between the Claimant and Ms Neil on 31 March 2022. The Respondent’s case is that there was a meeting between Ms Neil and the Claimant on 31 March 2022, but this was not a supervision meeting as alleged. It was a meeting to discuss the separate whistleblowing complaint - 9 - raised by Jayne Linaker, a Senior Support worker, relating to her complaint against the Osbourne House Manager, Ms Rothwell. The Tribunal noted that the version of the meeting on 31 March 2022 relied upon by the Respondent was a typed version of the minutes based upon handwritten notes which clearly gave the impression of having been taken during the course of a meeting. It would have been a particularly elaborate deception to have created a record of a meeting that was a typed record and, at the same time, to have created a consistent handwritten version of the minutes.

[44]In any event, looking at the e-mail communications which took place after any meeting, beginning with the e-mail sent by the Claimant at 1.26 in the morning, and continuing with e-mails from Ms Neil, in which she makes it clear that she considered that whistleblowing concerns which had been raised by Ms Linaker needed to be taken seriously and investigated, the Tribunal formed the view that this exchange of e-mails was more consistent with the meeting on 31 March 2022 having been a meeting for the purpose described by Ms Neil, namely to discuss the response to the concerns raised by Ms Linaker. Moreover, the various responses to the whistleblowing concerns raised by Ms Linaker indicated that Ms Neil would have been likely to have acted in an appropriate way to any whistleblowing on the part of the Claimant, rather than in the negative way which the Claimant seeks to suggest by reliance on his version of the minutes of the meeting on 31 March 2022. The Tribunal also notes that the e-mail sent by the Claimant at 1.26 am does not specifically refer to some of the whistleblowing concerns which, on his case, were raised in the meeting on 31 March 2022. In other words, his record of the meeting on 31 March was not entirely consistent with his e-mail sent at 1.26 am on 1 April 2022. The Tribunal also noted that there was no booking of a supervision meeting in the Outlook diary which is perhaps more consistent with any meeting regarding the concerns of Ms Linaker having been arranged at relatively short notice. In the circumstances, on the balance of probabilities, the Tribunal concluded that it was more likely that the meeting which took place on 31 March was that described in the minutes of the meeting relied upon by the Respondent.

[45]The Claimant’s Statement of Evidence also refers to a telephone call on 31 March 2022, but this is not specific as to the matters discussed in the telephone call so that all he says is that it was to report a number of concerns prior to the supervision meeting including an unfounded malicious allegation (which was obviously referring to the complaint of Ms Linaker). He says that the discussion became very heated and ended after a few minutes. As such, the Tribunal was not satisfied that the issues in question were raised in this call either.

[46]The Claimant also alleges in his Statement of Evidence that, in the same alleged supervision meeting, he notified Ms Neil that concerns had been raised by children regarding the conduct of Mr Cookson, that he was investigating these and advised that he had restricted Mr Cookson’s access - 10 - to Oak House whilst the allegations were being investigated, with this being relied upon as amounting to a further protected disclosure (PID6). On the basis of the findings of fact already made in relation to preferring the evidence of Ms Neil as to any meeting on 31 March 2022, the Tribunal was not satisfied that such a disclosure had been made. In any event, both Ms Neil and Mr Cookson were adamant in denying that the Claimant had, at any stage, either sought to bar Mr Cookson from Oak House or provided reasons for him being banned from Oak House. The Tribunal accepted their evidence for the reasons previously given for preferring the evidence of Mr Cookson and Ms Neil to that of the Claimant.

[47]In his Statement of Evidence, the Claimant also states that he informed Ms Neil as to concerns that a DBS check had not been carried out on a maintenance man working for the Respondent who was a convicted drug dealer. The Claimant also claims that this amounted to a further qualifying protected disclosure [PID8]. However, in relation to the discussions which took place between Ms Neil and the Claimant on 31 March 2022, our conclusion was that the evidence of Ms Neil regarding these discussions was to be preferred, so that we were not satisfied that such a disclosure had been made.

[48]The Claimant also claims that he made a qualifying protected disclosure on 31 March 2022 in discussing the position in respect of Ms Linaker and her complaint (PID7). In addition to referring to having described her complaint as an unfounded malicious allegation in any telephone call with Ms Neil prior to any supervision meeting, his Statement of Evidence suggests that Ms Neil was seeking to reopen the investigation and, in the subsequent meeting, he challenged this and referred to Ms Linaker having admitted making false allegations. His pleaded case is that he suggested that reopening any investigation against Ms Rothwell (on the basis that the Claimant had undertaken an investigation which had concluded that the allegations were unfounded and malicious) would be unethical and in breach of Ofsted regulations. Again, the Tribunal preferred the version of events of Ms Neil which is that there was a lengthy discussion with the Claimant, over the course of the meeting which lasted just over an hour, in which she referred to wanting to initiate a full and fair investigation into the concerns raised by Ms Linaker which, from the summary set out in the minutes of the meeting, were clearly wide-ranging concerns. The Tribunal accepted this detailed description of the matters discussed as set out in the minutes of the meeting relied upon by Ms Neil. From the minutes of the meeting, the Claimant did not put forward information which could be said to have amounted to a qualifying protected disclosure.

[49]These minutes refer to the Claimant having advised that he was worried about Ms Linaker in that “she had all these concerns and they were totally unexpected, he advised they seem to have built up”. The fact that the Claimant was recorded as having described Ms Linaker’s concerns in this way - 11 - caused the Tribunal to conclude that it was unlikely that he would have described them as unfounded malicious allegations in any earlier telephone call.

[50]In the further particulars provided by the Claimant on 30 September 2022. he alleged that, following the disclosures made on 31 March 2022, he had expressed that he would like to leave employment with the Respondent and Ms Neil made threats in relation to any future references, by saying that “if you leave Homescope, that wouldn’t be a wise decision, I will never give you a positive reference so you won’t be able to work in social care again” (Detriment 1). The Claimant claimed that this was connected to the alleged protected disclosures on 31 March 2022 as it immediately followed them.

[51]The source for the words allegedly used by Ms Neil which constitute the first alleged detriment appears to be the Claimant’s version of the record of that meeting. Even then the words used in his version of the meeting are not the same as appear in the further particulars. The words used in the disputed supervision record are that the Claimant “has informed Patricia of his intentions to leave the company due to difference in opinions and feeling this is not compatible with Homescope” and was “advised to consider his decision making and reminded … that all further employers in social care will be provided with a reference that contains information on relationships with senior leadership”. However, in relation to this alleged detriment the Tribunal has already decided that it prefers, on the balance of probabilities, the Respondent’s version of any meeting that took place on 31 March 2022. There is no reference to a discussion about references in the version of the meeting which the Tribunal has concluded is the likely correct version. The Tribunal also notes that, if a conversation along the lines alleged had taken place, it is noteworthy that there is no reference to such a conversation in the e-mail sent by the Claimant at 1.26 am on 1 April 2022. As such, the Tribunal was not satisfied that the Claimant was subjected to the detrimental treatment alleged.

[52]In the further particulars provided by the Claimant on 30 September 2022. he alleged that, following the disclosures made on 31 March 2022, Mr Cookson made threatening calls to the Claimant and stated to the Claimant that “you’re stressing our Pat, spending money and changing stuff … Sam and Jayne working for us has got nothing to do with you, I will make you sorry for medalling (sic)” (Detriment 2). The Tribunal was not satisfied, on the balance of probabilities, that such a call had been made. The Tribunal notes there is no reference to this conversation in the Claimant’s Statement of Evidence. The Tribunal also notes that telephone records have been produced for Mr Cookson which showed no evidence of such a call. The Tribunal further notes that there is no reference to any such conversation in the e-mail sent by the Claimant in the early hours of 1 April 2022. The existence of any such call or the wording used was denied by Mr Cookson and ultimately the Tribunal was - 12 - not satisfied that any such threat was made having heard the evidence of Mr Cookson.

[53]The Claimant alleges that Mr Cookson then phoned the Claimant on 1 April 2022 to the effect that he was intending to get rid of the Claimant due to changes in whistleblowing policy and the Claimant’s access to the work server was then blocked. There is no real reference to this call in the Claimant’s Statement of Evidence which says that he was working at home when he was notified of his suspension from work and his access to the computer systems was revoked. Removing his access to the computer systems would have been consistent with a decision to suspend him and would be a normal step to take if an employee was being suspended pending an investigation. The telephone call is denied by Mr Cookson and there are no call records to show that the telephone call was made . The call records which have been produced have no entry for such call. As such, on the balance of probabilities, the Tribunal was not satisfied that such a call had been made.

[54]On 1 April 2022, the Claimant was sent a letter requiring him to attend a disciplinary hearing on 6 April 2022 which was going to be conducted by Ms Neil. It was stated that the meeting was to discuss “matters of concern” namely(1) setting up a restricted access file on Osborne House computer system “that holds sensitive information, without permission”, and

(2) changing terms and conditions to previous company policy and procedures. It was stated that, these allegations, if substantiated, would be regarded as “serious misconduct” and that, if a satisfactory explanation was not provided “you may be given a warning or a final written warning if deemed appropriate”. This was followed by a paragraph drawing the Claimant’s attention to the Respondent’s disciplinary rules and procedures on the basis that they stated that “we retain the discretion to consider your length of service with us and to vary the procedures accordingly, namely if you have a short amount of service, you may not be in receipt of warnings before dismissal, but you retain the right to a hearing and right of appeal”. It was made clear that the Claimant was entitled to be accompanied by a colleague or trade union representative. The letter concluded by stating that he was not required to attend work until the outcome of the hearing was established. Technically, it is arguable that this was not a suspension letter in that it could be said that the way in which it was phrased left it open to the Claimant to attend work if he so wished.

[55]It can be seen that this letter was sent after a series of e-mails on 1 April 2022 in relation to concerns that various policy documents had been amended by the Claimant without any alterations having been approved by the Respondent’s HR advisers. As such, the reference to altering terms and conditions appears to be misleading. This was clearly an issue which had generated significant e-mail traffic on that very day.

[56]In her Statement of Evidence to the Tribunal, Ms Neil clearly gave the reason for suspending the Claimant as being that of a massive data breach. However, - 13 - this was inconsistent with her oral evidence to the Tribunal when, in answer to a question from a member of the Tribunal, she stated that the Claimant was suspended because of the concerns raised by Ms Linaker and effectively the need to investigate these. The explanation given in oral evidence seemed a little odd as the meeting on 31 March 2022 had specifically been discussing the extent to which the Claimant himself would be involved in investigating the matters raised by Ms Linaker. The Tribunal notes the points made by Mr Price in his closing submissions on behalf of the Respondent, to the effect that Ms Neil may have become confused in the course of giving this evidence having regard to the fact that she was giving evidence at the end of a full day answering questions, and was doing so remotely because of health concerns, in particular in relation to a heart condition and the effects of stress on that condition.

[57]In actual fact, in considering the tension between these two pieces of evidence the Tribunal looked at the e-mail sent by Ms Neil to Genevieve O’Reilly as Ofsted’s Social Care Regulatory Inspector for the North West Region, which was giving Ofsted notification of the decision to suspend the manager of Osborne House, Ms Rothwell as a “neutral act to protect staff who have raised concerns” with the various concerns which had been raised then being listed. The penultimate paragraph of the e-mail was in the terms set out below “As I was instructing the (Responsible Individual) regarding the investigation I became concerned that the R.I may have some knowledge that there was a document that was the intellectual property of his previous company and that he was not viewing the concerns raised by staff with any balance or neutrality. As such I have invited all three members of staff to attend a disciplinary meeting on the 7th of April”.

[58]The third person invited to a disciplinary hearing would appear to have been Mr Thelwell. Looking at this e-mail, it appears likely that the concerns raised by Ms Linaker and the data issues may both have been factors in the decision to convene a disciplinary meeting. In any event, the Tribunal was satisfied that, insofar as Ms Neil had suggested in her oral evidence that the reason was simply (or only) that of the concerns raised by Ms Linaker, this amounted to an honest mistake. More pertinently, the Tribunal was satisfied that none of the reasons which seem to have resulted in her taking the decision to convene a disciplinary hearing were as a result of any whistleblowing on the part of the Claimant.

[59]The Claimant complains that, following this letter, he received various calls and text messages from Ms Neil which were aggressive in nature demanding that a disciplinary hearing take place on 6 April 2022 (Detriment 5). In actual fact, there was no evidence of any calls that might have provided the basis for this allegation. There were a number of text messages sent on 4 April 2022, but these are simply an exchange of text messages between an - 14 - employee who wanted his disciplinary hearing to be postponed to a later date to allow his trade union representative to attend and an employer suggesting that the delay caused by such a postponement would be unwelcome so that it was intended that the meeting would go ahead as arranged.

[60]The Respondent then changed tack abruptly and decided to dismiss the Claimant (and the two other employees) without any disciplinary hearing at all. Ultimately, the Tribunal formed the conclusion that, once it had become clear through these further communications over the scheduling of any disciplinary hearing, that the Claimant was insisting upon his trade union attending the hearing, Ms Neil sought some way of avoiding any hearing taken place at all. This is consistent with the fact that, having made the decision to dismiss both the Claimant and his colleagues, without any hearing whatsoever, It appears that Mr Cookson offered to telephone the employees concerned instead of Ms Neil as he was concerned that any stress would not be good for her health, given that she had recently been seriously unwell, so that Mr Cookson ended up communicating the decision to dismiss reading from a very brief script. In deciding to proceed in this way, Ms Neil seems to have sought HR advice. Apparently, this was given on the telephone. There may also have been some legal element to that advice. It seems likely that any advice would have reflected the fact that the Claimant had less than two years ‘‘service and so had no rights in respect of ordinary unfair dismissal.

[61]The Claimant’s case was that Mr Cookson stated that the Respondent would not be conducting a disciplinary hearing, due to the alleged evidence against him, and that he would be dismissed with immediate effect. The Claimant has further complained that when he asked for the grounds for the decision, Mr Cookson refused to provide the information and stated that “you will receive a letter with details” and “it is, what it is, you deserve this, you f**cker” (Detriment 6). Mr Cookson has denied using such language. The Tribunal preferred his evidence to that of the Claimant. The Tribunal also notes that the Claimant has provided a timeline of events which does contain reference to the disputed part of the conversation, but simply on the basis that Mr Cookson recorded the fact of the dismissal and then stated that “it is what it is”. The use of the words “it is what it is” add nothing to the communication of the dismissal and would simply have amounted to saying that there was nothing else to say. It is noteworthy that the detailed description of the conversation in the timeline contains no reference to Mr Cookson saying that the Claimant deserved it or to the expletive allegedly used. The Tribunal accepted that he effectively used a script for the purposes of communicating the dismissal decision. Moreover, within 20 minutes of the call being made, Ms Neil e-mailed her HR adviser by way of confirming what had been communicated. Her e-mail is to the effect that the Claimant was told that the decision had been made to terminate his employment “as of today due to the overwhelming body of evidence to support a disciplinary action”. The Claimant asked about notice in lieu and was told that there would be a letter - 15 - with details of this. The Claimant was recorded as having made some comments about the decision including that he had overwhelming evidence to suggest that it was “an obvious stitch up”, at which point Mr Cookson advised him that it was not an easy task and was not taken lightly. Given that this was a near contemporaneous note of what had transpired, the Tribunal concluded that it was likely to be an accurate reflection of any conversation.

[62]The Tribunal was satisfied that the Claimant was dismissed on 4 April 2022 for his involvement in the removal of data and intellectual property from his previous employer, Esland, with the data containing sensitive personal information (thus giving rise to safeguarding concerns) as well as confidentially sensitive operating data belonging to Esland.

[63]On the same day as the dismissal, Ms Neil had informed Esland of the data breach that had happened and given Esland the detail of the data that had been found within the Respondent’s systems. The Claimant complains that informing Esland that he had committed a data breach in respect of their data breached the Claimant’s own data protection rights (Detriment 7) and subsequently logged a complaint with the information Commissioner regarding this.

[64]On 5 April 2022, Esland e-mailed the Respondent to say that it had not given permission for its data and intellectual property to be taken in this way.

[65]The Claimant appealed the decision to terminate his employment. The Respondent held an appeal hearing on 20 April 2022. The appeal hearing was conducted by Ms Hopkins, who was a self-employed business consultant. She was a friend of Angela Tickell, the Respondent’s HR adviser. They had been neighbours for many years. The hearing effectively proceeded on the basis that the evidence being relied upon could not be provided to the Claimant because of the data protection issues involved so that he did not really have a meaningful opportunity to challenge his dismissal, with the outcome being that the Claimant’s appeal was dismissed (Detriment 8).

[66]On 31 August 2022 and 1 September 2022, the Respondent received reference requests for the Claimant from Ofsted. On 9 September 2022, the Respondent completed the reference request form as requested by Ofsted. Ms Neil answered question 4, which asked as to any relevant disciplinary processes which had taken place, by stating that the Claimant had been dismissed for involvement in a data breach that raised safeguarding concerns (Detriment 9). She answered other questions in an adverse and negative way. She attached an additional appendix to the form which set out a summary of the Claimant’s employment history and the circumstances and reasons for his dismissal.

[67]Detriment 10 alleged that the Respondent gave a reference to the National Youth Advisory Service (NYAS) causing NYAS to withdraw, on 19 December 2022, an offer of employment that it had made to the Claimant. The - 16 - Respondent had received a reference request for the Claimant from NYAS on 24 November 2022. On 8 December 2022, Ms Neil contacted NYAS to confirm that the e-mail link to complete the reference did not work. NYAS confirmed to Ms Neil that it had already received a completed reference from her. However, Ms Neil had not sent a reference. NYAS then provided Ms Neil with a copy of the reference they had received. The reference provided by NYAS referred to the Claimant as having resigned, which was obviously incorrect. It also had a signature purporting to be that of Ms Neil. Ms Neil would not have signed a form stating that the Claimant had ended his employment by resignation given that, firstly, this was not the case, and, secondly, had she provided a reference, such as that provided to Ofsted, she would been made it clear that the Claimant had been dismissed.

[68]NYAS also referred to having spoken to Ms Neil to verify the reference. As such a conversation with Ms Neil had not taken place, a conversation had clearly taken place which NYAS had been under the impression had been with Ms Neil.

[69]Due to suspicions generated by the above circumstances, the Respondent investigated further the circumstances in which the reference had been provided. The Respondent’s findings were that the e-mail address which had sent the reference to NYAS (HR@homescope.uk) had been set up by someone other than the Respondent via GoDaddy on 28 July 2022. The reference had been provided by way of a Word document. The meta data for the document showed that it had been modified by Care Services North West. Information available from Companies House showed that Care Services North West Limited was a limited company of which the Claimant was a director, together with Stephanie Mulvaney, with the company having been incorporated on 14 April 2022, which was ten or days after the Claimant’s dismissal. On the balance of probabilities, the Tribunal concluded that the reference which was provided to NYAS referring to the Claimant having resigned was actually provided by the Claimant who also set up arrangements for verification of the reference to be provided which did not come from the Respondent.

[70]On 21 December 2022, the Respondent received a reference request for the Claimant from Blinded Faith. The Respondent completed the reference request on 4 January 2023 confirming the Claimant’s name, job title, dates of employment and that he had been dismissed for involvement in a data breach that raised safeguarding concerns (Detriment 11). Conclusions Disclosure to HM Chief Inspector of Education (Ofsted) on 24 January 2022 (PID1)

Conclusions

[71]Documentation in respect of the disclosure to Ofsted was lacking. However, the Tribunal thought that it was more likely than not that, if the Claimant had, - 17 - at the same time, notified the LADO in terms that there was an allegation that Ms Neil had not taken action, any notification to Ofsted would have contained the same information. The Respondent conceded that this involved the disclosure of information. The Tribunal was satisfied that the disclosure was in the public interest in that this related to the safeguarding of children and the issue as to whether or not appropriate steps were being taken in relation to such safeguarding. Any such belief was reasonably held. The Tribunal also accepted that Mr Mulvaney would have reasonably believed that the disclosure tended to show that there was either a breach of a legal obligation in terms of running a children’s home or in relation to the health and safety of a child. The Claimant would have reasonably believed that the information disclosed, and any allegation contained in it, were substantially true. As such, the Tribunal was satisfied that this amounted to a public interest disclosure. Disclosure to Ms Neil on 8 February 2022 (PID2)

[72]The second alleged protected disclosure involved the Claimant alleging that he told Ms Neil on 8 February 2022 that he had made a report regarding the allegations in respect of a former member of staff grooming a young person by having given that young person money and that Ms Neil had failed to report this information. The Respondent accepts that the Claimant did tell Ms Neil about making a LADO / safeguarding referral regarding a child on 8 February 2022 and suggested that that she was in some way “implicated” in the allegations . However, given our findings of fact on the key areas of dispute in this case, the Tribunal has concluded that Ms Neil is more likely to be a reliable witness than the Claimant, save where there is evidence specifically supporting the Claimant’s version of events. There is no documentary evidence in respect of the content of the Claimant’s communication with Ms Neil on 8 February 2022. In the circumstances, the Tribunal preferred Ms Neil’s version of events. On the basis of her version of events, what was communicated did not amount to providing information. It simply amounted to the fact of a referral having been made. In so far as there was an allegation that she was implicated, this simply amounted to an allegation, with no information as to the basis upon which it had been suggested that she was implicated. As such, the Tribunal was not satisfied that this amounted to a protected disclosure. Disclosure to Ms Neil on 21 March 2022 (PID3)

[73]For the reasons given in our findings of fact set out above, in relation to the alleged protected disclosure on 21 March 2022 regarding DBS checks, the Tribunal was satisfied that there was no qualifying protected disclosure made on 21 March 2022. Disclosures to Ms Neil on 31 March 2022 (PID4 & PID5)

[74]The fourth alleged protected disclosure related to the Claimant having raised issues in respect of repairs being urgently required, sanitary bins, fire alarms, - 18 - emergency lighting and issues in respect of not providing a company vehicle in order to be able to locate and return children at risk of harm. The fifth protected disclosure related to the Claimant raising an issue regarding employees having suggested that they would not be willing to raise whistleblowing concerns with the Claimant. The Claimant’s case is that the issues raised by way of the fourth and fifth protected disclosures were raised on 31 March 2022. The Tribunal has already made findings of fact in which we have found that the matters which were discussed on this date are more likely to be those set out by Ms Neil in the Respondent’s minutes from this date. As such, we were not satisfied with disclosures alleged as PID4 and PID5 were made. The Tribunal was also not satisfied that the issues in question were raised in any telephone call which the Claimant refers to as having taken place on 31 March 2025. Disclosures to Ms Neil on 31 March 2022 regarding Mr Cookson (PID6)

[75]The same reasoning applies to this alleged protected disclosure which is that the Claimant alleges that he notified Ms Neil that concerns have been raised by children regarding the conduct of Mr Cookson, that he was investigating these and advised that he had restricted Mr Cookson’s access to Oak House whilst the allegations were being investigated. In his Statement of Evidence, the Claimant refers to having raised this issue during the supervision meeting which he says took place on 31 March 2022. The Tribunal has already set out his reasons for having preferred Ms Neil’s version of events as to any meeting which took place on 31 March 2022. The Tribunal notes that, in his Statement of Evidence, all that the Claimant says is that “I informed Ms Neil that the director Mr Cookson remains banned from the home during the investigation of an allegation”. The further particulars provided as part of the Claimant’s pleaded case were that the Claimant did not go into detail regarding the allegations against Mr Cookson “as Ms Neil is his wife and the Claimant did not want to be compromised”. On the basis of the Claimant’s own evidence, this would not have amounted to a qualifying protected disclosure in that the only information provided was simply that there was an allegation which was being investigated and that Mr Cookson was banned from the home. In the circumstances, the Tribunal was not satisfied that there was a disclosure of information in relation to Mr Cookson on 31 March 2022 which amounted to a qualifying protected disclosure. Disclosures to Ms Neil on 31 March 2022 as to Ms Linaker (PID7)

[76]Similar reasoning applies to this alleged protected disclosure with the Claimant alleging that, on 31 March 2022, he made disclosures in relation to any investigation which he had conducted into the concerns raised by Ms Linaker or any further investigation which Ms Neil was proposing should take place. The Tribunal was satisfied that the version of the meeting on 31 March 2022 relied upon by Ms Neil was more likely to be an accurate version of the meeting than that of the Claimant, and was not satisfied that this involved the - 19 - Claimant raising issues in such a way as to amount to a disclosure of facts tending to show any of the matters required by ERA 1996 section 43B(1). This was essentially a discussion as to how to investigate matters which had already been raised by another individual, namely Ms Linaker. Insofar as there was reference to concerns regarding Ms Linaker’s health, the Tribunal was not satisfied that any discussion regarding these concerns met the public interest requirement, or that the Claimant could reasonably have believed that this was the case. Given the way in which the Claimant was recorded as having described the concerns of Ms Linaker in this meeting, the Tribunal concluded that it was unlikely that he described those concerns as unfounded malicious allegations in any earlier call. However, in any event, the Tribunal would not have been satisfied that describing allegations as unfounded or malicious itself involved the disclosure of any information for the purposes of making a protected disclosure. Disclosures to Ms Neil on 31 March 2022 as to DBS checks (PID8)

[77]The final alleged protected disclosure related to the Claimant allegedly raising on 31 March 2022 that DBS checks had not been carried out in relation to a maintenance man working for the Respondent and suggesting that there were matters in relation to his history which gave rise to cause for concern. Again, the Tribunal has already set out its reasons for preferring the version of events of Ms Neil regarding any discussions on 31 March 2022, in the circumstances the Tribunal has concluded that there was not a qualifying protected disclosure on 31 March 2022 in relation to the issue of DBS cheques on that individual or any reason for carrying out those DBS checks. Detriment 1. “Following the disclosures made on 31 March 2022, the Claimant expressed that he would like to leave employment with the Respondent and Ms Neil made threats in relation to any future references. Ms Neil stated to the Claimant, “if you leave Homescope, that wouldn’t be a wise decision, I will never give you a positive reference so you won’t be able to work in social care again”. This was connected to the Claimant’s protected disclosures as it immediately followed the Claimant’s disclosures”

[78]Based on our findings of fact set out above, the Tribunal was not satisfied that the Claimant was subjected to the detrimental treatment alleged. Detriment 2. “Mr Cookson of the Respondent made threatening calls to the Claimant. Mr Cookson stated to the Claimant, “you’re stressing our Pat, spending money and changing stuff. Our Sam and Jayne working for us has got nothing to do with you, I will make you sorry for medalling (sic)”.

[79]Based on our findings of fact set out above, the Tribunal was not satisfied that the Claimant was subjected to the detrimental treatment alleged. Detriment 3. “On 1 April 2022 the Claimant received a telephone call from Mr Cookson explaining that he was intending to “get rid” of the Claimant due to - 20 - “changes in whistleblowing policy” and the Claimant’s access to the work server was blocked”.

[80]Based on our findings of fact set out above, the Tribunal was not satisfied that the Claimant was subjected to the detrimental treatment alleged. Detriment 4. “Later on 1 April 2022, the Claimant received a suspension letter stating that he was suspended and inviting him to a disciplinary hearing on 6 April 2022 to discuss two concerns;(1) setting up a restricted access file on the Osbourne House computer system that holds sensitive information without permission and

(2) changing the terms and conditions to previous company policies and procedures”.

[81]The fourth detriment is that of suspending the Claimant by letter dated 1 April 2022. Technically, the letter did not suspend the Claimant but simply stated that he was not required to attend work. It did make arrangements for a disciplinary hearing in relation to the data issues listed in the letter. It is clear that this letter was also being sent the day after the meeting the previous day when there would seem to have been differences between the Claimant and Ms Neil regarding the extent to which the concerns or grievances of Ms Linaker needed to be investigated, and in relation to which the e-mail correspondence contained a recognition that the concerns raised by Ms Linaker potentially implicated the Claimant. The evidence provided by Ms Neil to the Tribunal regarding the reason for sending a letter making arrangements for a disciplinary hearing was unsatisfactory in that the oral evidence of Ms Neil relied upon a different reason from that relied upon in her written evidence. However, it seems from the e-mail which Ms Neil subsequently sent to Ofsted that both the concerns raised by Ms Linaker and the data issues may have been factors in the decision to take the action set out in the letter. It is significant that similar action was being taken in relation to two other employees which does not suggest that the Claimant was being singled out or victimised. In the circumstances, the Tribunal was satisfied that the action being taken in the letter was not on the ground of the Claimant having made protected disclosures. Detriment 5. “On 4 April 2022 the Claimant received various calls and text messages from Ms Neil which were aggressive in nature demanding that a disciplinary hearing take place on 6 April 2022”.

[82]The Tribunal was not satisfied that there were calls which might have provided the basis for this allegation. There were a number of text messages exchanged as a result of the Claimant seeking a postponement of the disciplinary hearing. The Tribunal can see that the Claimant might not have considered that Ms Neil was being particularly accommodating, but the text messages were not aggressive. In any event, the Tribunal was satisfied that any whistleblowing was not the cause of the text messages being sent. The cause of the text messages being sent was the Claimant’s request to - 21 - rearrange the disciplinary hearing and the delay that this would potentially cause. Detriment 6. “On 4 April 2022, the Claimant received a telephone call from Mr Cookson stating that the Respondent would not be conducting a disciplinary hearing, due to the alleged evidence against him, and that he would be dismissed with immediate effect. The Claimant asked for the grounds for the decision and Mr Cookson refused to provide the information and stated “you will receive a letter with details” and “it is, what it is, you deserve this, you fucker”.

[83]As far as this alleged detriment is concerned, the Tribunal was not satisfied, on the balance of probabilities, that any conversation between Mr Cookson and the Claimant, in which Mr Cookson explained that the Claimant was being dismissed, extended significantly beyond a script that was being used by Mr Cookson and which was the same script for the Claimant and the two other employees who were being dismissed. The Tribunal accepted the evidence of Mr Cookson. He was adamant that the particular words alleged would not have been used. In the circumstances, the Tribunal was not satisfied that the conversation amounted to anything more than the fact of the dismissal being communicated. In any event, the Tribunal was satisfied that the words used were not because of any whistleblowing on the part of the Claimant. Dismissal

[84]In relation to the dismissal, the Tribunal was ultimately satisfied that the dismissal was for conduct reasons. The Tribunal has already dealt with the factors which seem to have resulted in the Claimant being sent the letter convening a disciplinary hearing. Between the date of this letter and his dismissal, little changed. However, by the time of his dismissal, the Respondent had decided to rely upon the data breaches as the reason for terminating his contract of employment. The unsatisfactory aspect of this is that, at the time of the supposed suspension of the Claimant, the Respondent had told him that it would hold a disciplinary hearing to consider the allegations and that Ms Neil would conduct that disciplinary hearing. Even on the Respondent’s version of events, what was communicated over the telephone gave no more detail than the content of the letter convening the disciplinary hearing, so that the Claimant was effectively being told that the detail would be put in writing. The way in which the dismissal was handled was unsatisfactory. It was also a feature of that handling of the dismissal that the Claimant was never really provided with adequate particulars of the disciplinary case against him. The fact that this resulted in him being extremely aggrieved about his dismissal is understandable. However, the Tribunal is satisfied that the reason for the dismissal was that of the Respondent’s belief that he was involved in a serious data breach and it was not because of any whistleblowing on his part. - 22 - Detriment 7. “On or before 13 April 2022, the Respondent informed a previous employer of the Claimant, Esland Care, that he had committed a data breach of their information. In doing so, the Respondent breached the Claimant’s rights under GDPR. The Claimant logged a complaint with the ICO regarding this”.

[85]As far as this alleged detriment is concerned, from the documentation, it would certainly appear to be the case that the Respondent notified Esland that there had been a data breach in that data belonging to Esland had come to be in the possession of the Respondent in breach of data protection legislation. The alleged detriment refers to Esland being told that it was the Claimant who had committed the data breach in respect of its information. This was not immediately obvious from the documentation. However, the Tribunal is satisfied that, as at the date of notifying Esland, the Respondent would have had good reason to believe that the Claimant was involved in any data breach. The evidence certainly suggested this. In his oral evidence the Claimant accepted that telling Esland was the right thing to do. It is not clear from the documentation that there was anything inappropriate in the way in which the Respondent notified Esland of the data breach. In any event, the Tribunal was satisfied that notifying Esland of the data breach was not because of any whistleblowing on the part of the Claimant, but was because of the undoubted data breach having taken place.

[86]Detriment 8. “On 20 April 2022, the Claimant attended an appeal hearing against his dismissal. The Respondent asserted that this would be held by an independent person, but this was in fact heard by a relative of the Respondent’s director. The meeting was not impartial and an independent review to hear the Claimant’s appeal. The nature of the meeting and manner of the chairperson during the meeting led to the Claimant’s union rep challenging the conduct of the Respondent. No evidence was provided to the Claimant regarding the Respondent’s allegations against him”.

[87]This alleged detriment relates to the appeal hearing and makes a number of criticisms of the appeal hearing. Some of the criticisms would be more appropriate in relation to the fairness of an appeal hearing where an employee has the right to claim unfair dismissal, which this employee did not have. The Tribunal notes that, as he did not have two years’ service, the Respondent could effectively dismiss him without following a fair process as the Claimant could not bring an unfair dismissal complaint based on an ordinary unfair dismissal. In a way, it made little sense to have an appeal hearing, having dispensed with the disciplinary hearing. In relation to the criticism that the hearing was not conducted by an independent person, as the Respondent had asserted that it would be, and it was heard by relatives of the Respondent’s Director, this is not entirely correct. Ms Hopkins was not a relative of the Respondent’s director but was a friend and neighbour of the Respondent’s HR adviser. In the circumstances, the Tribunal accepts that she was not the most appropriate person to be conducting the hearing if the - 23 - arrangements for the hearing were premised on the basis that it would be an independent person conducting the hearing. The Tribunal also had some reservations about whether the hearing could be said to have been entirely impartial. This was not a hearing which amounted to an effective review of the reasons for dismissing the Claimant. The hearing proceeded on the basis that evidence could not be provided to the Claimant for data protection reasons so that he did not really have a meaningful opportunity to challenge his dismissal. In this sense, the criticism that evidence was not provided to him regarding the disciplinary case against him is well-founded. However, the Tribunal was not satisfied that any of these criticisms amount to a detriment to which the Claimant was subjected because of any whistleblowing on his part. The appeal hearing was taking place because of the Respondent’s reasonable belief that he had been involved in a significant data breach. Insofar as there were any shortcomings in the conduct of the appeal hearing, these were similarly not shortcomings arising from any whistleblowing on the part of the Claimant. Ms Hopkins genuinely believed that she was not in a position to conduct the appeal hearing in a way which involved being able to share evidence with the Claimant where there were data protection issues in respect of providing that evidence. If the Respondent’s purpose had really been to victimise the Claimant for being a whistleblower, then, on one view, the last thing that it would have done would have been to have entrusted the conduct of the appeal hearing to a third party. Detriment 9. “The Respondent informed Ofsted that there were suitability concerns surrounding the Claimant’s appointment as Responsible Individual, causing an offer of employment from another children’s home to be withdrawn on 7 October 2022”.

[88]Ms Neil was requested to provide a reference by completing a form which contained a question as to whether there had been any disciplinary processes. She replied by stating that the Claimant was dismissed for involvement in a data breach that raised safeguarding concerns. This was factually accurate. In completing this form there would have been a legal obligation upon her to provide factually accurate information. the Tribunal accepts the Respondent’s case that Ms Neil provided a reference by answering questions truthfully and in a way which was an accurate reflection of what had happened. As such, the Tribunal was not satisfied that any alleged detriment was because the Claimant had made whistleblowing allegations. Detriment 10. “The Respondent gave a reference to NYAS causing NYAS to withdraw an offer of employment that it had made to the Claimant. The offer was withdrawn on 19 December 2022”.

[89]The Tribunal has already made findings of fact in relation to the circumstances in which a purported reference came to be provided to NYAS. On the basis of these findings of facts, the initial reference was not provided by the - 24 - Respondent, but was provided by the Claimant himself. However, ultimately, NYAS did contact the Respondent and when the documentation was provided, Ms Hopkins carried out an investigation which then resulted in the Respondent communicating with NYAS by way of explaining that a reference which had been provided was not a genuine reference. Again, this simply involved providing factual information. The Tribunal was satisfied that the actions of the Respondent were not because of any alleged whistleblowing, but were as a result of its reasonable belief that reference had been provided purporting to be from the Respondent which was not a genuine reference Detriment 11. “The Respondent notified Blinded Faith of a safeguarding concern. Blinded Faith had made the Claimant a provisional offer of employment. As a result of the notification, Blinded Faith decided to investigate the concerns further before determining whether or not to proceed with the Claimant’s offer of employment”.

[90]The reference given referred to the Claimant having been dismissed for involvement in a data breach that raised safeguarding concerns. This was a factually accurate reference. In having responded to the request for a reference, the Respondent was under an obligation to provide information which was factually correct. It did so. The Tribunal is satisfied that the content of the reference was not materially influenced by any alleged whistleblowing on the part of the Claimant.

Outcome

[91]It follows that the complaints of victimisation contrary to Employment Rights Act 1996 section 47B, by being subjected to detriment on the ground of making public interest disclosures, and victimisation contrary to Employment Rights Act 1996 section 103A by being unfairly dismissed by reason of making public interest disclosures, are not well-founded and do not succeed. As a consequence, the Claim is dismissed. Approved

Outcome

[1]The Claimant is ordered to pay the Respondent costs in sum of £19,000.00

[2]The costs shall be paid by 27 February 2026. Approved by